I have a couple of points of information. In terms of the judicial reviews to date and where the government or the courts have ruled, I think the figures that we gave at a previous session were that six applications for judicial review were dismissed, which means the government was successful, and in four cases the applications were granted. That was since 2004 in the Federal Court in a total of 10 cases. We just had five decisions yesterday in which two of the applications were dismissed and three of the applications were granted, so it's probably about a 50-50 split.
On the issue of ministerial decision-making, I guess my perspective comes from having done this job since 1985. I've had responsibility for international transfers in the department throughout that time period, so I've seen many, many decisions on or discussions about transfers during those decades.
I think as a public servant I go back to section 6 of the existing act, which states, “The Minister is responsible for the administration of this Act.” It is the minister. the minister, of course, is always provided with advice, but I think there's a difference between, if I may, a minister's personal opinions and the minister acting as a minister of the crown.
Without revealing too much--at least prior to publication of the book, there have been occasions when a minister has perhaps expressed more of a personal opinion. I can assure you that officials have the obligation and are very quick to advise the minister about the parameters that surround his or her decision-making. So it's not, if I can just be clear, a minister sitting alone making a personal decision about something. It is a minister operating as a minister of the crown in conformity with the law.
On the addition of the words “in the Minister's opinion”, clearly, reasonable people can disagree about the impact of that on the test, but I think it's really to clarify that it is the minister who is responsible for this act. It is the minister who must make the decisions and will be guided by advice. Mr. Laprade has just pointed out a portion of a judgment from yesterday that states, in one particular case, “While the Minister is not bound by his Department’s advice, it is incumbent on the Minister to advance his reasons for coming to a different conclusion”.
So even if the minister takes a position, which happens occasionally, that is contrary to advice, nonetheless in the ITOA situation the courts have said it must still be reasonable and rational, and conform with the case law. So all I can offer from our perspective is that this was really a clarification. I appreciate the point that, yes, courts do ask why something has changed--there must be a reason. Sometimes the reason is a rather large substantive one. Sometimes the reason is really a clarification, in my experience. I don't know if there's anything else I can offer that would help.