Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] HCA 10
•12 April 2023
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJMatter No M32/2022
MARTIN JOHN DAVIS APPELLANT
AND
MINISTER FOR IMMIGRATION, CITIZENSHIP,
MIGRANT SERVICES AND MULTICULTURAL
AFFAIRS & ORS RESPONDENTSMatter No S81/2022
DCM20 APPELLANT
AND
SECRETARY OF DEPARTMENT OF HOME
AFFAIRS & ANOR RESPONDENTSDavis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
DCM20 v Secretary of Department of Home Affairs[2023] HCA 10
Date of Hearing: 19 & 20 October 2022
Date of Judgment: 12 April 2023M32/2022 & S81/2022
ORDER
Matter No M32/2022
1. Grant leave to the appellant to file an Amended Notice of Appeal.
2.Appeal allowed.
3. Set aside the orders made by the Full Court of the Federal Court of Australia on 23 November 2021 (as varied by the orders of 15 December 2021) and in their place make the following orders:
(a)Appeal allowed.
(b)Set aside the orders made by O'Callaghan J on 9 June 2020 and in their place make the following orders:
(i)Declare that the decision made by the third respondent on 8 May 2019 in purported compliance with section 10.1 of the Minister's guidelines on ministerial powers (s351, s417 and s501J) (11 March 2016) exceeded the executive power of the Commonwealth.
(ii)The first respondent pay the costs of the applicant.
(c) The first respondent pay the costs of the appellant.
4.The first respondent pay the costs of the appellant.
Matter No S81/2022
1.Grant leave to the appellant to file an Amended Notice of Appeal and vary the grant of special leave to appeal accordingly.
2. Appeal allowed.
3.Set aside the orders made by the Full Court of the Federal Court of Australia on 23 November 2021 (as varied by the orders of 15 December 2021) and in their place make the following orders:
(a)Appeal allowed.
(b)Set aside the orders made by Perry J on 20 July 2020 and in their place make the following orders:
(i)Declare that the decision made by the second respondent on 10 January 2020 in purported compliance with section 10.2 of the Minister's guidelines on ministerial powers (s351, s417 and s501J) (11 March 2016) exceeded the executive power of the Commonwealth.
(ii)The first respondent pay the costs of the applicant.
(c) The first respondent pay the costs of the appellant.
4.The first respondent pay the costs of the appellant.
On appeal from the Federal Court of Australia
Representation
C J Horan KC with A F L Krohn and A R Sapienza for the appellant in each matter (instructed by Rasan T. Selliah & Associates)
S P Donaghue KC, Solicitor-General of the Commonwealth, and N M Wood SC with M F Caristo for the first respondent in each matter and for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the Attorney-General for the State of New South Wales, intervening in both matters (instructed by Crown Solicitor (NSW))
M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening in both matters (instructed by Crown Solicitor's Office (SA))
R J Orr KC, Solicitor-General for the State of Victoria, with M A Hosking for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor's Office)
Submitting appearances for the second and third respondents in M32/2022 and for the second respondent in S81/2022
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
DCM20 v Secretary of Department of Home AffairsConstitutional law (Cth) – Executive power of the Commonwealth – Where s 351 of Migration Act 1958 (Cth) permitted Minister to personally exercise power to substitute more favourable decision for decision of tribunal – Where requests made for Minister to exercise power under s 351 – Where Minister issued instructions to departmental officers in purported exercise of executive power for general conduct of requests to substitute more favourable decision under s 351 ("Ministerial Instructions") – Where Ministerial Instructions required departmental officers to refer requests to Minister only where satisfied that "unique or exceptional circumstances" exist in respect of request – Whether Ministerial Instructions purported to instruct departmental officers to make decisions required to be exercised personally by Minister – Whether Ministerial Instructions exceeded limits of executive power as constrained by s 351 of Act.
Administrative law – Judicial review – Whether decisions in purported compliance with Ministerial Instructions exceeded limits of Commonwealth executive power.
High Court – Appellate jurisdiction – Whether Federal Court lacked jurisdiction to hear appeals by reason of s 476A(1) of Act – Consideration of character of purported decisions of departmental officers – Whether High Court accordingly deprived of jurisdiction to hear appeal.
Judgments and orders – Where appellants sought declarations as to departmental officers' legal error – Whether appellants had sufficient material interest to seek declaratory relief – Whether declaratory relief appropriate.
Words and phrases – "decision made personally", "declaratory relief", "evaluation of the public interest", "executive power of the Commonwealth", "guidelines", "Ministerial Instructions", "more favourable decision", "non-compellable power", "non-delegable power", "non-statutory action", "personal power", "procedural decision", "public interest", "repeat request", "statutory decision", "statutory limitation", "substantive decision", "unique or exceptional circumstances", "2009 Ministerial Instructions", "2016 Ministerial Instructions".
Constitution, ss 61, 64, 67, 73.
Federal Court of Australia Act 1976 (Cth), s 21.
Judiciary Act 1903 (Cth), ss 37, 39B.
Migration Act 1958 (Cth), ss 351, 474, 476A.
KIEFEL CJ, GAGELER AND GLEESON JJ. Two appeals are brought from a decision of the Full Court of the Federal Court of Australia[1]. Each arises out of an application in the original jurisdiction of the Federal Court for judicial review of a decision of a departmental officer not to refer to a Minister a request to exercise the power conferred on that Minister by s 351(1) of the Migration Act 1958 (Cth) ("the Act") to substitute in the "public interest" a more favourable decision for a decision made or taken to be made by the Administrative Appeals Tribunal ("the Tribunal") under s 349(2)(a) of the Act affirming a refusal by a delegate of the Minister to grant the applicant a visa. The Full Court dismissed an appeal from the dismissal of each application.
[1]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23.
Each departmental decision not to refer a request to the Minister was made in purported compliance with instructions issued in 2016 by the then Minister for Immigration and Border Protection ("the 2016 Ministerial Instructions")[2]. The 2016 Ministerial Instructions relevantly instructed departmental officers not to refer a request to exercise the power conferred by s 351 of the Act to a Minister in any case which departmental officers assessed not to "have unique or exceptional circumstances". Each departmental decision not to refer turned on the departmental officer assessing the case in relation to which the request was made not to meet that criterion for referral.
[2]Minister's guidelines on ministerial powers (s351, s417 and s501J) (11 March 2016).
The 2016 Ministerial Instructions superseded earlier instructions issued by the then Minister for Immigration and Citizenship in 2009 ("the 2009 Ministerial Instructions")[3]. The 2009 Ministerial Instructions were considered by this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship[4].
[3]Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) (14 September 2009).
[4](2012) 246 CLR 636.
Consistently with what was found in Plaintiff S10/2011 in relation to the 2009 Ministerial Instructions and in relation to departmental decisions made in purported compliance with the 2009 Ministerial Instructions, the Full Court found that neither the issuing of the 2016 Ministerial Instructions nor the making of the departmental decisions in purported compliance with the 2016 Ministerial Instructions involved exercise of any power conferred by statute. Each was rather a purported exercise of the executive power of the Commonwealth conferred by s 61 of the Constitution. More specifically, each was a purported exercise of "an executive function incidental to the administration of the Act and thus within that aspect of the executive power which 'extends to the execution and maintenance ... of the laws of the Commonwealth'"[5]. Those findings are not contested in these appeals.
[5]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 at 29 [14], citing Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 655 [51].
The Full Court held that the aspect of the executive power of the Commonwealth purportedly exercised in making the departmental decisions is conditioned by a common law requirement for reasonableness in its exercise. The Full Court nevertheless found that neither impugned departmental decision was in fact unreasonable.
The first ground of each appeal challenges the finding that the departmental decision impugned was not unreasonable. By notice of contention in each appeal, the first respondent denies that any aspect of the executive power of the Commonwealth is conditioned by a common law requirement of reasonableness.
Whether any aspect of the executive power of the Commonwealth is conditioned by any requirement of reasonableness is a very large question. The question need not, and therefore should not, be addressed in the determination of these appeals.
Each appeal is rather to be determined on a second, logically anterior, ground not fully developed before the Full Court. The ground is founded on the proposition that, by conferring statutory power to substitute or not to substitute a decision in the public interest on a Minister personally, s 351 of the Act limits the executive power of the Commonwealth by excluding the capacity for another executive officer to decide that it is or is not in the public interest for the statutory power to be exercised. The ground is to the effect that the issuing and maintenance of the 2016 Ministerial Instructions, and the departmental decisions made in purported compliance with them, exceeded the executive power of the Commonwealth as so limited to the extent that the 2016 Ministerial Instructions instructed departmental officers not to refer requests in cases which departmental officers themselves assessed not to have unique or exceptional circumstances.
To explain the upholding of that ground further, and to explain the orders which are appropriate to be made in the appeals, it is best to begin by examining the nature and content of the statutory power conferred by s 351 of the Act before turning to examine its impact on the executive power of the Commonwealth.
The nature and content of the statutory power
Section 351 provides:
"(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
(4)If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a)sets out the decision of the Tribunal; and
(b)sets out the decision substituted by the Minister; and
(c)sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances."
The references throughout s 351 to "the Minister" encompass any of the Ministers who from time to time administer that section in accordance with Administrative Arrangements Orders issued by the Governor-General[6] as well as any other Minister who might be authorised to act on behalf of such a Minister[7].
[6]See ss 19(1) Item 1 and 19(2)(a) of the Acts Interpretation Act1901 (Cth).
[7]Section 34AAB of the Acts Interpretation Act1901 (Cth).
Section 351(1) is a conferral of power on the Minister. Section 351(3) and s 351(7) explain the nature of the power so conferred. The prescription in s 351(3) that the power may only be exercised by the Minister personally means that the power is neither delegable by the Minister under s 496 of the Act nor exercisable on the Minister's behalf by any officer of the Department administered by the Minister under s 64 of the Constitution[8]. The prescription in s 351(7) that the Minister does not have a duty to consider whether to exercise the power in any circumstances means exactly what it says. Under no circumstances can the Minister be compelled to exercise the power.
[8]See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 449-450 [176]-[179].
The structure of the section is relevantly indistinguishable from the structure of a number of other sections of the Act which confer personal and non-compellable powers on the Minister. Those other sections include ss 46A, 48B, 195A and 417, each of which has been considered by this Court in one or more of Plaintiff M61/2010E v The Commonwealth[9], Plaintiff S10/2011, Plaintiff M79/2012 v Minister for Immigration and Citizenship[10], Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship[11] and Minister for Immigration and Border Protection v SZSSJ[12]. Drawing on the reasoning in those cases, the content of the power conferred by s 351(1) can be explicated as follows.
[9](2010) 243 CLR 319.
[10](2013) 252 CLR 336.
[11](2013) 251 CLR 322.
[12](2016) 259 CLR 180.
The Minister exercises the power conferred by s 351(1) by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make. The first is procedural. The second is substantive. The procedural decision is either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal. The substantive decision – which the Minister may but need not make where the Minister has made a procedural decision to consider whether it is in the public interest to substitute a more favourable decision – is either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so. The procedural decision, no less than the substantive decision, involves "a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the legislature could have had in view"[13]. The power is not further divisible.
[13]Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 648 [30] (cleaned up); Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 at 353 [39], 377 [127].
A procedural decision made personally by the Minister to consider making a substantive public interest decision is an exercise of the power conferred by s 351(1). Likewise, a procedural decision made personally by the Minister not to consider making a substantive public interest decision is an exercise of the same statutory power. Within the meaning of the Act, each is a "privative clause decision" made under s 351(1)[14]. For the avoidance of doubt, s 474(7) spells that out. Within the meaning of the Act, each is therefore also a "migration decision"[15].
[14]See s 474(2) and (3)(g) of the Act.
[15]See s 5(1) of the Act.
The Minister is not limited to exercising the power conferred by s 351(1) to make a procedural decision – to consider or not to consider making a substantive public interest decision – only in an individual case. The Minister can exercise the statutory power to make a procedural decision in a specified class of case and can do so in advance of a case arising within that class. Thus, the Minister can exercise the power conferred by s 351(1) to make a procedural decision to the effect that "I will consider making a substantive public interest decision in any case that has the following characteristics ... but I will not consider making a substantive public interest decision in any case that has the following characteristics ...".
For example, the Minister could exercise the power conferred by s 351(1) to make a procedural decision not to consider making a substantive public interest decision in any case which does not meet objective criteria specified by the Minister. The Minister could exercise the statutory power to make a procedural decision not to consider making a substantive public interest decision in any case where the Department has received a request for the exercise of the power which is not supported by information which a departmental officer assesses to bring the case within a class which the Minister has indicated to be a class in which the Minister wishes to consider making a substantive public interest decision[16].
[16]cf Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at 512 [9], 522 [62]-[63].
But the power conferred by s 351(1) to make the procedural decision not to consider making a substantive decision in a class of case is not unbounded. The power is bounded by the exclusivity which s 351(3) attaches to the totality of the power which s 351(1) confers on the Minister and which s 351(3) attaches in particular to the assessment of the public interest. Plainly, it would not be open to the Minister to decide not to consider making a substantive decision in a class of case defined by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the Tribunal. For the Minister to do so would be for the Minister to abdicate to that other person the core aspect of the substantive decision-making power under s 351(1) which s 351(3) makes clear can be exercised by no one but the Minister.
Being under no obligation to exercise the statutory power to make a procedural decision at all, however, the Minister can choose to make no procedural decision one way or the other under s 351(1). The Minister can instead choose to exercise executive power, involving the Minister acting in "a capacity which is neither a statutory nor a prerogative capacity"[17], to give a non-statutory instruction to officers of the Department administered by the Minister under s 64 of the Constitution as to the occasions, if any, on which the Minister wishes to be put in a position to consider making a procedural decision. Thus, the Minister can exercise executive power to give a non-statutory instruction to departmental officers to the effect that "I wish to be put in a position to consider making a procedural decision in any case that has the following characteristics ... but I do not wish to be put in a position to consider making a procedural decision in any case that has the following characteristics ...". That was found to be the effect of the 2009 Ministerial Instructions in Plaintiff S10/2011[18] as explained in SZSSJ[19] and has been found to be the effect of the 2016 Ministerial Instructions by the Full Court in an unchallenged aspect of the decision under appeal[20].
[17]Davis v The Commonwealth (1988) 166 CLR 79 at 108. See Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 97 [132]-[133].
[18](2012) 246 CLR 636 at 653 [46], 665 [91]. See also Bedlington v Chong (1998) 87 FCR 75 at 80.
[19](2016) 259 CLR 180 at 198-200 [46]-[54].
[20]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 at 31 [23]-[24], 38 [54]-[55], 48 [87], 81 [264], 85 [283]-[284].
In Plaintiff S10/2011, the only question raised in relation to departmental decisions made in purported compliance with the 2009 Ministerial Instructions was whether the making of those decisions was conditioned by a requirement of procedural fairness. The answer was that those decisions were not so conditioned.
Not raised in Plaintiff S10/2011, but squarely raised in each of the present appeals, is whether the permissible scope of such a non-statutory instruction is itself bounded by the exclusivity which s 351(3) attaches to the power which s 351(1) confers on the Minister. For reasons now to be explained, it is so bounded.
The statutory power limits the exercise of executive power
The unanimous reasons for judgment of this Court in Brown v West[21] contain the following statement of constitutional principle:
"Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope."
[21](1990) 169 CLR 195 at 202.
The principle is central to the relationship between the Commonwealth Parliament and the Executive Government of the Commonwealth within the system of representative and responsible government established by Chs I and II of the Constitution[22]. The principle was applied in Brown v West to hold that a "necessary implication" of the statutory fixing of the expenditure able to be incurred by a parliamentarian using a postal credit card was to deny the existence of executive power to increase the level of expenditure[23]. The principle is applicable here.
[22]See Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 93 [121]-[122].
[23](1990) 169 CLR 195 at 205.
Section 64 of the Constitution requires that Ministers be appointed to administer departments, although it permits several Ministers to be appointed to administer the one department[24]. Section 67 of the Constitution makes clear that departmental officers, like Ministers, are "officers of the Executive Government of the Commonwealth"[25].
[24]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 403 [17], 415 [65], 459-460 [210]-[211], 464-465 [221].
[25]See Comcare v Banerji (2019) 267 CLR 373 at 409-412 [56]-[65].
The relationship between a Minister and the department administered by the Minister which can ordinarily be taken to be contemplated by the Parliament when conferring a discretionary statutory power on a Minister is that described by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[26]:
"The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision."
[26](1986) 162 CLR 24 at 65-66.
When conferring on a Minister a discretionary statutory power unaccompanied by any duty to consider its exercise, the Parliament can ordinarily be taken to contemplate that the Minister will be able to task the department administered by that Minister with sorting the wheat from the chaff so as to bring to the personal attention of the Minister only those requests for exercises of discretionary statutory powers which departmental officers assess to warrant the Minister's personal consideration. The Parliament can be taken to contemplate that, in undertaking such assessments, departmental officers will comply with instructions issued by or under the authority of the Minister or the Secretary of the department[27].
[27]See s 57 of the Public Service Act 1999 (Cth).
All of this accords with the general observation that "when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department"[28]. The "underlying principle" throughout is that "where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred"[29]. But the availability of such an inference must ultimately depend on the precise statutory scheme.
[28]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 128 [33], quoting O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 at 11 discussing Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563.
[29]New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 88 NSWLR 125 at 129 [12].
The sections of the Act which are expressed to confer powers capable of being exercised in the public interest, if at all, only personally by a Minister are obviously designed to cut across the ordinary relationship between a Minister and the department administered by that Minister. The sections cut both ways. They confine to a Minister (as distinct from the department administered by that Minister) any decision to exercise such a power in the public interest. They also confine to a Minister (as distinct from the department administered by that Minister) any decision not to exercise such a power in the public interest.
In enacting s 351 of the Act, the Parliament has seen fit to entrust to the Minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the Tribunal. A necessary implication of the exclusivity imposed by s 351(3) on the power which s 351(1) confers on the Minister is to deny the existence of executive power to entrust the dispositive evaluation of the public interest in substituting a more favourable decision to an executive officer other than the Minister.
Put another way, the extension by s 61 of the Constitution of the executive power of the Commonwealth to "the execution and maintenance ... of the laws of the Commonwealth" does not authorise a Minister or any other officer of the Executive Government of the Commonwealth to undertake any non-statutory action that is expressly or impliedly excluded by a law of the Commonwealth. By confining evaluation of the public interest for the purpose of s 351(1) to the Minister personally, s 351(3) of the Act effects such an exclusion.
Put yet another way, being limited by s 351(3) to exercising personally the power conferred by s 351(1) – to make a statutory decision as to whether or not to consider whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal and likewise to make a statutory decision as to whether it is or is not in the public interest to substitute a more favourable decision – the Minister cannot circumvent that statutory limitation through a purported exercise of executive power which gives conclusive effect to an anterior consideration of the public interest undertaken by a departmental officer outside, but for the purpose of, the statutory power. What s 351 prevents the Minister or a departmental officer from doing directly in the exercise of statutory power, it prevents the Minister or a departmental officer from doing indirectly in the exercise of executive power[30].
[30]Wragg v New South Wales (1953) 88 CLR 353 at 387-388; Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522-523; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305.
That is the statutory limitation on executive power which will be seen to be transgressed by the 2016 Ministerial Instructions and by the two impugned departmental decisions made in purported compliance with the 2016 Ministerial Instructions.
The 2016 Ministerial Instructions
The 2016 Ministerial Instructions were not expressed with statutory precision. But their import was tolerably clear.
In relation to "first requests" for exercises of the power conferred by s 351(1), the Minister instructed in section 10.1 of the 2016 Ministerial Instructions that he wished to be put into a position to consider making a procedural decision only in cases assessed by the Department to have unique or exceptional circumstances. Cases assessed by the Department not to have unique or exceptional circumstances were to be "finalised" by the Department without referral to the Minister.
In relation to "repeat requests" for exercises of the power conferred by s 351(1), the Minister instructed in section 10.2 of the 2016 Ministerial Instructions that he wished to be put into a position to consider making a procedural decision only if the Department was satisfied of a significant change in circumstances raising new substantive issues and then only if the Department assessed those new substantive issues to have unique or exceptional circumstances.
Unique or exceptional circumstances were described non-exhaustively in section 4 of the 2016 Ministerial Instructions. Examples there given of circumstances meeting that description included: "strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident"; "compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person"; "exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia"; and "circumstances [in which] the application of relevant legislation leads to unfair or unreasonable results in a particular case".
Other sections of the 2016 Ministerial Instructions stressed that it was for the Minister under the Act to determine what was and was not in the public interest and made clear that the Minister might "consider intervening in cases where the circumstances do not fall within the unique or exceptional circumstances as described in section 4".
No doubt, it is possible to imagine cases in which the Minister might think it to be in the public interest to substitute a more favourable decision than that of the Tribunal which would not fall within an example in section 4 of the 2016 Ministerial Instructions and which would not meet its more general description of unique or exceptional circumstances. However, it is impossible to avoid the conclusion that the concept of unique or exceptional circumstances was used in the 2016 Ministerial Instructions as an approximation of the public interest. By instructing that those cases assessed by the Department not to have unique or exceptional circumstances were to be finalised by the Department without referral, the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers. The Minister thereby exceeded the statutory limit on executive power imposed by s 351(3).
The same problem did not arise in relation to the treatment of first requests in accordance with the 2009 Ministerial Instructions. As Griffiths J pointed out in the Full Court[31], the 2009 Ministerial Instructions instructed that first requests were in all cases to be brought to the attention of the Minister. In the case of a first request assessed by them to have unique or exceptional circumstances, departmental officers were instructed to "bring the case to my attention in a submission so that I may consider exercising my power". In the case of a first request assessed by them not to have unique or exceptional circumstances, departmental officers were instructed to "bring the case to my attention through a short summary of the issues in schedule format, so that I may indicate whether I wish to consider the exercise of my power".
[31]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 at 49-50 [94].
Whether the same problem arose in relation to the treatment of repeat requests in accordance with the 2009 Ministerial Instructions was touched on in the present appeals in the context of an argument put by the first respondents that the 2016 Ministerial Instructions were sufficiently similar to the 2009 Ministerial Instructions for the second ground of appeal to be taken to be foreclosed by Plaintiff S10/2011.
The 2009 Ministerial Instructions instructed that a repeat request was ordinarily to be dealt with by the Department replying that the Minister did not wish to consider exercising power but that a repeat request might be referred to the Minister where the Department was satisfied that there had been a significant change in circumstances which raised new substantive issues not previously provided to and considered by the Minister and which, in the "opinion" of the Department, fell "within the ambit" of unique or exceptional circumstances. If it were necessary to consider the manner in which repeat requests were dealt with under the 2009 Ministerial Instructions in more detail, much would turn on the understanding in practice of the nature of the opinion to be formed. If the understanding was that the departmental officers were to form and act on their own opinions as to whether there were unique or exceptional circumstances, the same problem may well have arisen. If the understanding was that departmental officers were to form and act on opinions as to whether there was a basis upon which the Minister might think that there were unique or exceptional circumstances, the problem would not have arisen.
Whether the same problem arose in relation to the treatment of repeat requests in accordance with the 2009 Ministerial Instructions, however, is simply not an issue which arises in these appeals. Even if the instructions in the 2009 Ministerial Instructions in relation to repeat requests had been interpreted and applied in the same way as instructions in the 2016 Ministerial Instructions, Plaintiff S10/2011 would not assist the first respondents. No issue was raised in that case as to whether the 2009 Ministerial Instructions or their implementation infringed a statutory limitation on executive power. Nothing said in any of the reasons for judgment in this Court was directed to such an issue. Plaintiff S10/2011 is not authority for what it did not decide[32].
[32]See CSR Ltd v Eddy (2005) 226 CLR 1 at 11 [13].
Davis
Mr Davis is a citizen of the United Kingdom. He arrived in Australia in 1997 on a working holiday visa. He applied for a partner visa. Afterwards, he remained in Australia under the mistaken belief that he had been granted permanent residency. He became aware that he did not hold a current visa only in 2014, following which he was granted first a tourist visa (which expired) and then a working visa (which was cancelled after he ceased employment with the sponsoring employer). In the meantime, he applied again for a partner visa. His application was refused by a delegate of the Minister. The decision of the delegate was affirmed on review by the Tribunal in 2019.
On 11 February 2019, Mr Davis requested an exercise of power under s 351 of the Act to substitute a more favourable decision for that of the Tribunal. In purported compliance with section 10.1 of the 2016 Ministerial Instructions, an Assistant Director of the Department of Home Affairs on 8 May 2019 assessed Mr Davis' case not to have unique or exceptional circumstances and two days later notified him that his request was finalised without referral to the Minister.
On 15 May 2019, Mr Davis complained to the Department about how his request had been dealt with. Treating the complaint as a repeat request, the Assistant Director assessed it in purported compliance with section 10.2 of the 2016 Ministerial Instructions and on 20 May 2019 notified him that it too was finalised without referral to the Minister.
Mr Davis then applied to the Federal Court for judicial review of the Assistant Director's decision of 8 May 2019 on grounds which included legal unreasonableness. The application was dismissed at first instance by O'Callaghan J[33].
[33]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791.
On his appeal to the Full Court, Mr Davis sought leave to raise a ground of appeal substantially to the effect of the second ground now raised in the appeal to this Court. The Full Court, by majority, refused that leave[34].
[34]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 at 37 [47], 38 [54], 54 [114(b)], 95 [330]-[332], see contra at 56 [124].
On 12 May 2022, Gageler and Steward JJ granted special leave to appeal on both grounds.
DCM20
DCM20 is a citizen of Fiji. She arrived in Australia in the early 1990s. She has lived here continuously since.
DCM20 initially applied for a protection visa. That application was refused by a delegate of the Minister. The decision of the delegate was affirmed on review by the then Refugee Review Tribunal in 1996. She requested an exercise of power to substitute a more favourable decision under s 417 of the Act. The Minister then administering the Act personally decided not to exercise that power in 1997.
DCM20 then applied for a resolution of status visa. Much later, that application was refused by a delegate of the Minister, whose decision was affirmed on review by the then Migration Review Tribunal in 2013. She requested an exercise of power to substitute a more favourable decision under s 351 of the Act. On 17 March 2016, an Assistant Minister then administering that section personally decided not to consider the exercise of that power.
On 22 June 2016, DCM20 again requested an exercise of power under s 351 of the Act with respect to the same decision of the Migration Review Tribunal. That further request was assessed by an Assistant Director of the Department of Immigration and Border Protection in purported compliance with section 10.2 of the 2016 Ministerial Instructions on 28 June 2016. The assessment resulted in DCM20 being notified that her repeat request had been finalised without referral to the Minister.
On 20 December 2019, DCM20 yet again requested an exercise of power under s 351 of the Act with respect to the same decision of the Migration Review Tribunal. This time, the request was assessed by an Assistant Director of the Department of Home Affairs in purported compliance with section 10.2 of the 2016 Ministerial Instructions on 10 January 2020. The result was DCM20 again being notified that her repeat request had been finalised without referral to the Minister.
DCM20 then applied to the Federal Court for judicial review of the Assistant Director's decision of 10 January 2020 on grounds including legal unreasonableness. The application was dismissed at first instance by Perry J[35].
[35]DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022.
DCM20's appeal to the Full Court was heard and determined concurrently with that of Mr Davis. Unlike Mr Davis, DCM20 did not seek leave to raise any new ground of appeal.
DCM20 subsequently sought and, on 12 May 2022, was granted by Gageler and Steward JJ special leave to appeal solely on the ground of unreasonableness. In the course of the hearing of her appeal, she applied to amend her notice of appeal to add a second ground mirroring that on which Mr Davis had already been granted special leave to appeal. The Court reserved its decision on that application. There being no forensic prejudice to the respondents, leave to amend the notice of appeal should be granted and the earlier grant of special leave to appeal should be varied to include the additional ground.
Jurisdiction, standing and declaratory relief
By their originating applications to the Federal Court, Mr Davis and DCM20 each claimed, amongst other relief, a writ of prohibition or an injunction against one or more officers of the Commonwealth. There being no suggestion that those claims for relief were incapable of legal argument[36], the matter to which each application related was within the original jurisdiction conferred on the Federal Court by s 39B(1) of the Judiciary Act 1903 (Cth).
[36]Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476 at 486-487 [35]-[36]; 400 ALR 1 at 10.
At first instance and on appeal in the Federal Court, Mr Davis and DCM20 challenged only decisions made in the purported exercise of executive power. The same is true of their appeals to this Court. Neither ground of appeal in either matter challenges or relies on any decision or purported decision made, or proposed or required to be made, under the Act. Neither ground of appeal can therefore be characterised as "in relation to a migration decision" so as to be excluded from the jurisdiction of the Federal Court by s 476A(1) of the Act. It follows that neither ground of appeal is derivatively excluded from the appellate jurisdiction of this Court under s 73 of the Constitution.
Section 37 of the Judiciary Act confirms the power of this Court, in the exercise of its appellate jurisdiction under s 73 of the Constitution, to "give such judgment as ought to have been given in the first instance". The relief now sought from this Court in relation to the second ground of appeal does not go beyond the making of a declaration of right. Whether relief by way of a writ of prohibition or an injunction might also have been available and appropriate need not be considered[37].
[37]cf Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 25 [42]; In re K L Tractors Ltd (1961) 106 CLR 318 at 338.
Section 21(1) of the Federal Court of Australia Act 1976 (Cth) empowers the Federal Court to, "in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed". "It is neither possible nor desirable to fetter" the power to grant such declaratory relief "by laying down rules as to the manner of its exercise"[38].
[38]Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437; see also Sankey v Whitlam (1978) 142 CLR 1 at 20, 23; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.
Declarations appropriate to reflect the disposition of the second ground of each appeal are to the effect that the impugned departmental decisions made in purported compliance with sections 10.1 and 10.2 of the 2016 Ministerial Instructions exceeded the executive power of the Commonwealth. Being declarations that conduct found to have been engaged in by executive officers exceeded a legal limit on executive power, they are by definition declarations of right[39] and are unquestionably appropriate to be made in the exercise of judicial power[40].
[39]See Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182 at 193; Croome v Tasmania (1997) 191 CLR 119 at 126, 132-133; Egan v Willis (1998) 195 CLR 424 at 439 [5].
[40]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 379-380; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 157 [56]; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [39].
Each of Mr Davis and DCM20 has a "sufficient material interest"[41] to seek such a declaration in relation to the particular decision which he or she impugns. That is so notwithstanding that neither has a legal right or legally protected interest which would be vindicated by the declaration[42] and that neither had an interest which attracted any obligation of procedural fairness in the process which resulted in the making of the impugned decision[43]. The sufficiency of their respective interests arises from the fact that it would follow from the declaration of right that their request for an exercise of the power conferred by s 351(1) of the Act is yet lawfully to be finalised. It could not be said that the declaration would produce no foreseeable consequences for the ministerial and departmental respondents or for them.
[41]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257.
[42]Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234 at 253 [64]-[65]; 399 ALR 214 at 233. See also Edwards v Santos Ltd (2011) 242 CLR 421 at 436 [37]; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 373 [102].
[43]See Griffith University v Tang (2005) 221 CLR 99 at 117-118 [45], quoting Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 568. Compare Kioa v West (1985) 159 CLR 550 at 621-622; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 659 [68].
Orders
The orders appropriate to be made in the appeal by Mr Davis are:
1.Grant leave to the appellant to file an Amended Notice of Appeal.
2. Appeal allowed.
3.Set aside the orders made by the Full Court of the Federal Court of Australia on 23 November 2021 (as varied by the orders of 15 December 2021) and in their place make the following orders:
(a) Appeal allowed.
(b)Set aside the orders made by O'Callaghan J on 9 June 2020 and in their place make the following orders:
(i)Declare that the decision made by the third respondent on 8 May 2019 in purported compliance with section 10.1 of the 2016 Ministerial Instructions exceeded the executive power of the Commonwealth.
(ii)The first respondent pay the costs of the applicant.
(c) The first respondent pay the costs of the appellant.
4. The first respondent pay the costs of the appellant.
The orders appropriate to be made in the appeal by DCM20 are:
1.Grant leave to the appellant to file an Amended Notice of Appeal and vary the grant of special leave to appeal accordingly.
2. Appeal allowed.
3.Set aside the orders made by the Full Court of the Federal Court of Australia on 23 November 2021 (as varied by the orders of 15 December 2021) and in their place make the following orders:
(a) Appeal allowed.
(b)Set aside the orders made by Perry J on 20 July 2020 and in their place make the following orders:
(i)Declare that the decision made by the second respondent on 10 January 2020 in purported compliance with section 10.2 of the 2016 Ministerial Instructions exceeded the executive power of the Commonwealth.
(ii)The first respondent pay the costs of the applicant.
(c) The first respondent pay the costs of the appellant.
4. The first respondent pay the costs of the appellant.
GORDON J. These appeals touch upon some basic principles concerning the executive power of the Commonwealth. The appeals are to be decided by reference to only one of those principles: that the executive power of the Commonwealth is susceptible of control by statute[44].
[44]Brown v West (1990) 169 CLR 195 at 202. See also Williams v The Commonwealth ("Williams [No 1]") (2012) 248 CLR 156 at 250 [195], 369 [579]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 93 [121]-[122], 96 [128], 158 [369], 158-159 [372]-[373].
For the reasons given by Kiefel CJ, Gageler and Gleeson JJ[45], s 351 of the Migration Act 1958 (Cth) requires that the decisions to exercise or not to exercise the power given by that section may be made only by the Minister. Neither a decision to exercise the power, nor a decision not to exercise the power, may be made by an official in the department administered by a Minister (or any other person). I agree with the orders proposed by Kiefel CJ, Gageler and Gleeson JJ.
[45]See reasons of Kiefel CJ, Gageler and Gleeson JJ at [14]‑[15].
I write separately to make the point that it is always necessary first to identify the source of a power which is said to be executive power. It is not sufficient to state that the power is "non-statutory executive power" or "common law executive power". Each phrase assumes but does not demonstrate the existence of the asserted power.
Constitutional structure
The Constitution constitutes the Commonwealth of Australia; it creates "one indissoluble Federal Commonwealth under the Crown ... and under the Constitution" (preamble). The Commonwealth is a legal or juristic person[46], although that label may have a different meaning in respect of the Commonwealth compared to when it is applied to a private corporation or a natural person[47]. The branches of the Commonwealth do not have a separate legal personality[48]. Rather, those branches are empowered under the Constitution to exercise certain powers of the Commonwealth. And in setting up the institutional arrangements for the exercise of the powers of the Commonwealth, the Constitution separates and limits those powers.
[46]Williams [No 1] (2012) 248 CLR 156 at 184 [21], 185 [23], 237 [154].
[47]See Williams [No 1] (2012) 248 CLR 156 at 193 [38].
[48]Williams [No 1] (2012) 248 CLR 156 at 184 [21], 237 [154].
What is significant is that each of the three chapters of the Constitution creating the three branches of the Commonwealth – Ch I (the Parliament), Ch II (the Executive Government) and Ch III (the Judicature) – begins with a section which provides that the relevant power of the Commonwealth is vested in a particular organ of government. "The legislative power of the Commonwealth shall be vested in a Federal Parliament ..." (s 1); "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative ..." (s 61); and "The judicial power of the Commonwealth shall be vested in [the High Court and such other courts as Parliament creates and/or invests with federal jurisdiction]" (s 71). None of the three chapters defines the power it is concerned with – legislative, executive or judicial.
It is true that Ch I, addressing legislative power, gives very elaborate specification of subject matters but it does not tell you what legislative power is. It simply provides that there is power to make laws with respect to those subject matters. In Ch III, there are elaborate provisions about who can exercise the judicial power of the Commonwealth and in what circumstances, but there is no definition of the judicial power of the Commonwealth. Similarly, in Ch II, the sections do not define executive power. As will be explained, the chapter identifies the institutions that are entrusted with the exercise of executive power, and marks out the boundary of that executive power to be the execution and maintenance of the Constitution and the laws of the Commonwealth[49]. Critically, like Chs I and III, Ch II also limits the power it confers: "the extent it marks out cannot be exceeded"[50].
[49]The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd ("Wool Tops Case") (1922) 31 CLR 421 at 437; see also 431. See also Davis v The Commonwealth (1988) 166 CLR 79 at 92, 107; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 55 [113], 87 [227], 89 [234]; Williams [No 1] (2012) 248 CLR 156 at 342 [483], 362 [560].
[50]Wool Tops Case (1922) 31 CLR 421 at 438. See also In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264; Davis (1988) 166 CLR 79 at 111.
It is this structure that not only is consistent with, but points directly to, the need to identify the source of executive power.
Executive power of the Commonwealth
The Executive Government is a "creature[] of the Constitution" and "has no powers except such as are conferred by or under [the Constitution], expressly or by necessary implication" from the text and structure of the Constitution[51]. Hence, the first question is to ask, "does the Executive have the asserted power and, if so, how?"; not to ask what prevents the Executive from doing what it seeks to do. In some cases the source is constitutional – including some prerogatives[52], nationhood[53], emergency[54], and ss 61 and 64, giving power to administer departments of State[55]. But otherwise, the source is statutory (and therefore, ultimately, also derived from the Constitution).
[51]Wool Tops Case (1922) 31 CLR 421 at 453; see also 431, 437‑438, 441. See also Barton v The Commonwealth (1974) 131 CLR 477 at 498; Victoria v The Commonwealth and Hayden ("AAP Case") (1975) 134 CLR 338 at 362; Pape (2009) 238 CLR 1 at 23 [8(5)]; Williams [No 1] (2012) 248 CLR 156 at 362 [559]; Williams v The Commonwealth [No 2] (2014) 252 CLR 416 at 454-455 [24]-[25]; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 538 [42].
[52]See Wool Tops Case (1922) 31 CLR 421 at 437-439; Barton (1974) 131 CLR 477 at 498; Davis (1988) 166 CLR 79 at 93; Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 at 226 [86]; CPCF (2015) 255 CLR 514 at 538 [42].
[53]See Davis (1988) 166 CLR 79.
[54]See Pape (2009) 238 CLR 1.
[55]The source to contract to buy paperclips is to be found in s 61 because officers (Ministers) are appointed – and so conferred power – to administer departments of State under s 64 of the Constitution.
As was held in R v Kirby; Ex parte Boilermakers' Society of Australia[56]:
"[I]n very many cases the propriety of the exercise of a power by a given department does not depend upon whether, in its essential nature, the power is executive, legislative or judicial, but whether it has been specifically vested by the Constitution in that department, or whether it is properly incidental to the performance of the appropriate functions of the department into whose hands its exercise has been given."
[56](1956) 94 CLR 254 at 279 (emphasis added). That analysis in Boilermakers goes back to Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; see in particular at 89-93, 96-98.
In Boilermakers, the concern about the separation of powers had its focus in Ch III but it was situated in a larger and fuller understanding of the separation of powers in the Australian context which is directly contrary to the implied premise in the Solicitor‑General of the Commonwealth's submissions, which appeared to be that[57] the Executive can do anything it wants (anything, or "substantially" anything, a natural person can do) unless some limit can be identified[58]. That is the wrong analysis. It starts at the wrong point. And it is contrary to what was held in Boilermakers and said in The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd ("the Wool Tops Case")[59].
[57]See also Williams [No 2] (2014) 252 CLR 416 at 467 [76].
[58]cf Gageler, "The Legitimate Scope of Judicial Review: The Prequel" (2006) 57 Admin Review 5; Perry, "The Crown's Administrative Powers" (2015) 131 Law Quarterly Review 652.
[59](1922) 31 CLR 421 at 431-433, 437-439, 441, 453. See also CPCF (2015) 255 CLR 514 at 598-601 [270]-[279].
The proper starting point for an inquiry about executive power is to identify the source of the asserted power, function or capacity in the grants of executive power in s 61 and the other provisions in Ch II of the Constitution[60]. Section 61 of the Constitution provides:
"The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." (emphasis added)
[60]Wool Tops Case (1922) 31 CLR 421 at 438; CPCF (2015) 255 CLR 514 at 538 [42].
There are two points to be made about s 61 of the Constitution. It does not say "includes" but "extends to". The phrase had to be "extends to" because executive power in a written constitution creating a federal government of limited powers was historically and necessarily different from executive power in a unitary state with no single written constitution and with executive power centred in the monarchy[61].
[61]See Wool Tops Case (1922) 31 CLR 421 at 439-440; Boilermakers (1956) 94 CLR 254 at 267-268; AAP Case (1975) 134 CLR 338 at 378-379; Williams [No 1] (2012) 248 CLR 156 at 363 [562].
And the "extends to" clause in s 61 should not be read as indicating the existence of a broad and undefined executive power. Rather, "extends to" is used in the sense of "adds to" and gives a certain range or scope to the executive power. Thus, s 61 contains both an addition and a limit[62]. The extension is "delimiting"[63] in the sense that it adds to executive power the execution and maintenance of the Constitution and the laws of the Commonwealth but, at the same time, it gives a specific range, scope or magnitude to both the extension of executive power and executive power more generally. As was said in Boilermakers, "[a] federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them"[64]. Put in different terms, executive power is subject to boundaries and, in the case of the extension under s 61, the boundary is the execution and maintenance of the Constitution and the laws of the Commonwealth[65]. As observed, the content of executive power in s 61 may be said to extend to some prerogative powers, appropriate to the Commonwealth, that were accorded to the Crown at common law[66]. Critically, however, as Williams v The Commonwealth[67] and Williams v The Commonwealth [No 2][68] demonstrate, the determination of the ambit of the executive power of the Commonwealth cannot begin from a premise that it is the same as the ambit of British executive power at common law. For present purposes, it is appropriate to put prerogatives, nationhood and emergency to one side.
[62]See Re Judiciary (1921) 29 CLR 257 at 264; Wool Tops Case (1922) 31 CLR 421 at 431, 438; Williams [No 1] (2012) 248 CLR 156 at 362 [560].
[63]Wool Tops Case (1922) 31 CLR 421 at 431, 444; see also 437‑438.
[64](1956) 94 CLR 254 at 267 (emphasis added). See also Wool Tops Case (1922) 31 CLR 421 at 437-438, 458; Dignan (1931) 46 CLR 73 at 96-97.
[65]See Wool Tops Case (1922) 31 CLR 421 at 438. See also AAP Case (1975) 134 CLR 338 at 378-379; Williams [No 1] (2012) 248 CLR 156 at 230 [130], 364 [564].
[66]CPCF (2015) 255 CLR 514 at 538 [42], citing Cadia Holdings (2010) 242 CLR 195 at 226 [86] and Williams [No 1] (2012) 248 CLR 156 at 227-228 [123].
[67](2012) 248 CLR 156.
[68](2014) 252 CLR 416 at 469 [81], see generally 467-469 [76]-[83].
Next, Ch II of the Constitution, headed "The Executive Government", was established to take from its inception the form of a responsible government[69]. Two ideas are central to the concept of responsible government – the Executive acts on the advice of its Ministers and the Ministers are responsible to the Parliament for the actions of the Executive[70]. So how is that addressed in the Constitution?
[69]Plaintiff M68 (2016) 257 CLR 42 at 92 [119].
[70]Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 147; Boilermakers (1956) 94 CLR 254 at 275; NewSouth Wales v The Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337 at 364-365; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135, 184-185; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 415 [63]-[64], 463 [217]; Comcare v Banerji (2019) 267 CLR 373 at 409-410 [59], 436‑437 [146]-[149].
In addition to s 61, there are five provisions in Ch II about the institutions exercising executive power that are important. First, s 62 provides that there shall be a Federal Executive Council to advise the Governor‑General in the government of the Commonwealth.
Second, s 64 provides that there will be Ministers of State, who are members both of the Federal Executive Council and of Parliament:
"The Governor‑General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives." (emphasis added)
The requirement that Ministers are senators or members of the House of Representatives (or become so within three months of appointment) "provides the machinery by which a Minister is accountable to Parliament"[71].
[71]Re Patterson (2001) 207 CLR 391 at 415 [64].
Third, under s 65, Ministers shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs. Fourth, s 67 provides for the appointment of civil servants: "[u]ntil the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor‑General in Council". Fifth, under s 69, there will be the transfer of certain departments from the former colonies to the Commonwealth.
As is clear, departments of State expressly form part of the institutions of Executive Government under the Constitution, as do the officers (Ministers) appointed to administer those departments[72]. Consequently, under s 61, the executive power for the "execution and maintenance of this Constitution" includes a field of action for the administration of departments of State under s 64 of the Constitution[73].
[72]See Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 at 70 [199].
[73]Williams [No 1] (2012) 248 CLR 156 at 191 [34].
There are also provisions in Chs I and III of the Constitution that directly concern executive power and mark out its relationship to legislative and judicial power. In Ch I of the Constitution, s 51(xxxix) provides:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
...
(xxxix)matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth." (emphasis added)
As was explained in Boilermakers[74]:
"[The legislative power in s 51(xxxix)] takes the powers vested by the Constitution respectively in the three branches of government, that is to say by s 1, by s 61 and by s 71, and gives a power to make laws with respect to matters incidental to the execution of these various powers, and adds, apparently for the purposes of such provisions as ss 64 and 69, a reference to the powers vested in any department or officer of the Commonwealth."
[74](1956) 94 CLR 254 at 269 (emphasis added). See also Plaintiff M68 (2016) 257 CLR 42 at 93 [122].
What s 51(xxxix) does – as Boilermakers recognised – is to provide legislative power in relation to matters incidental to the "execution of any power" vested by the Constitution "in any department or officer of the Commonwealth". It provides incidental legislative power to Parliament to make laws with respect to the two institutions of the Executive Government – or structures of the Executive Government – namely officers (Ministers) and departments that are established under s 64 of the Constitution. It allows not only for facilitation of executive power, but also for limitation of the manner and circumstances of its exercise, and so reflects the subordination of the Executive to Parliament[75]. And the Executive and the officers of the Commonwealth are always subject to the entrenched jurisdiction of this Court under ss 75(iii)[76] and 75(v)[77] of the Constitution.
[75]Plaintiff M68 (2016) 257 CLR 42 at 93 [122]-[123].
[76]The "Commonwealth" in s 75(iii) has been described as referring to the Executive Government of the Commonwealth, the purpose of s 75(iii) being "to ensure that the political organization called into existence under the name of the Commonwealth and armed with enumerated powers and authorities, limited by definition, fell in every way within a jurisdiction [which could be invoked]": Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 362-363; Plaintiff M68 (2016) 257 CLR 42 at 94 [124].
[77]Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [38]-[39]. See also Bank of NSW (1948) 76 CLR 1 at 363; Church of Scientology v Woodward (1982) 154 CLR 25 at 70; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 482-483 [5], 513-514 [103]-[104]; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 668-669 [45]-[46]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 580 [98]; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 347 [57]-[59]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 204 [71], 206 [81]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 463-464 [92]; 390 ALR 590 at 612.
Underlying all of these provisions – across Chs I, II and III of the Constitution – is the principle of government accountability: "the basic idea that the executive branch and its delegates must be answerable, and as a general principle justify their actions, to the public, the Parliament, the courts or any administrative agency"[78]. This is the idea underpinning the relationship between members of the public and the Executive Government, between the Executive Government and the Parliament, and between the Executive Government and the Judicature[79].
[78]MZAPC (2021) 95 ALJR 441 at 465 [98]; 390 ALR 590 at 614, quoting Boughey and Weeks, "Government Accountability as a 'Constitutional Value'", in Dixon (ed), Australian Constitutional Values (2018) 99 at 103. See also MZAPC (2021) 95 ALJR 441 at 463-464 [92]; 390 ALR 590 at 612, quoting French, "Administrative Law in Australia: Themes and Values Revisited", in Groves (ed), Modern Administrative Law in Australia: Concepts and Context (2014) 24 at 29.
[79]MZAPC (2021) 95 ALJR 441 at 465 [98]-[99]; 390 ALR 590 at 614.
It also reflects that the Constitution "is framed upon the assumption of the rule of law"[80]. While the precise meaning of the rule of law is often contested[81], the irreducible meaning of the rule of law, about which there cannot be any debate, is "that Government should be under law, that the law should apply to and be observed by Government and its agencies, those given power in the community, just as it applies to the ordinary citizen"[82]. The "agreed beginning" for debates about the rule of law is "that State power must be exercised in accordance with promulgated, non‑retrospective law made according to established procedures"[83]. Public power is not to be exercised in a way that is contrary to law, and, of no less significance, the Executive cannot itself authorise a breach of the law[84].
[80]Plaintiff S157 (2003) 211 CLR 476 at 492 [31]. See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Graham (2017) 263 CLR 1 at 24-25 [40].
[81]MZAPC (2021) 95 ALJR 441 at 463 [91]; 390 ALR 590 at 612.
[82]MZAPC (2021) 95 ALJR 441 at 463 [91]; 390 ALR 590 at 612, quoting Stephen, "The Rule of Law" (2003) 22(2) Dialogue 8 at 8. See also Laws, The Constitutional Balance (2021) at 13, 15.
[83]MZAPC (2021) 95 ALJR 441 at 463 [91]; 390 ALR 590 at 612, quoting Laws, The Constitutional Balance (2021) at 15.
[84]MZAPC (2021) 95 ALJR 441 at 464 [96]; 390 ALR 590 at 613, citing A v Hayden (1984) 156 CLR 532 at 540.
Executive power for the administration of departments and execution of laws
One of the two limbs of executive power mentioned in s 61 is the execution and maintenance of the laws of the Commonwealth. The term "laws of the Commonwealth" is a reference to statute law[85]. The execution of laws means doing something authorised or required by those laws[86].
[85]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 487.
[86]Australian Communist Party (1951) 83 CLR 1 at 230.
The function is characteristically performed by execution of statutory powers[87]; however, it also extends to doing things which are necessary or incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect[88]. The latter field does not require express statutory authority, nor is it necessary to find an implied power in the statute[89]. In that sense, administrative action that is incidental to the execution of a law does not involve statutory power, but finds its source in – and is controlled by – the statute and s 61 of the Constitution. Incidental action is strictly ancillary[90]; the Executive "cannot change or add to the law; it can only execute it"[91]. In that respect, executive action is qualitatively different from legislative action[92]. There is no executive power or capacity to dispense with the operation of the general law – whether statute or common law[93]. This principle, as was said in A v Hayden[94], "is fundamental to our law, though it seems sometimes to be forgotten when executive governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies".
[87]Davis (1988) 166 CLR 79 at 109. See also Williams [No 1] (2012) 248 CLR 156 at 190 [31].
[88]Williams [No 1] (2012) 248 CLR 156 at 184 [22], citing R v Kidman (1915) 20 CLR 425 at 440‑441 and Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 464. See also Williams [No 1] (2012) 248 CLR 156 at 191 [34]; CPCF (2015) 255 CLR 514 at 648 [484].
[89]Williams [No 1] (2012) 248 CLR 156 at 191 [34].
[90]See Kidman (1915) 20 CLR 425 at 440; Australian Communist Party (1951) 83 CLR 1 at 193; Shanahan v Scott (1957) 96 CLR 245 at 250.
[91]Kidman (1915) 20 CLR 425 at 441. See also Plaintiff M68 (2016) 257 CLR 42 at 158-159 [372]-[373].
[92]Williams [No 1] (2012) 248 CLR 156 at 187 [27].
[93]Plaintiff M68 (2016) 257 CLR 42 at 98 [136], 158-159 [372]‑[373]. See also Kidman (1915) 20 CLR 425 at 441.
[94](1984) 156 CLR 532 at 580.
The other of the two limbs of executive power mentioned in s 61 is the execution and maintenance of the Constitution. As explained, this limb includes an area of executive action necessary for the administration of departments of State under s 64 of the Constitution. But to describe it as non‑statutory or common law is likely to distract and mislead. Its source is the Constitution – ss 61 and 64.
Because only the Minister can exercise the powers given by s 351, it is not necessary to examine, in this case, what has come to be known as the Carltona principle[95]. Three points, however, should be made. First, I accept that, as Brennan J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[96], part of a department's function is to undertake an analysis, evaluation and précis of material to which a Minister is bound to have regard, or to which the Minister may wish to have regard, in making decisions. As Brennan J explained, the Minister may personally make a statutory decision while relying on the department's summary, provided the Minister does in fact have regard to all relevant considerations that condition the exercise of the power[97]. In such a case, the department is assisting the Minister; it is not exercising a power on the Minister's behalf.
[95]Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563.
[96](1986) 162 CLR 24 at 65-66.
[97]Peko-Wallsend (1986) 162 CLR 24 at 66.
Second, however, it is an altogether different proposition (which I do not accept) that a Minister may ordinarily give the department administered by the Minister the task of deciding which requests for the exercise of discretionary statutory powers should be brought to the personal attention of the Minister by assessing which requests warrant the Minister's personal consideration. I do not accept that Parliament can ordinarily be taken to contemplate that this can or will be done. Prima facie, when Parliament confers a statutory power on a person, it intends that person to exercise the power[98]. Further, subject to a contrary intention, the conferral of a statutory discretion implies a duty to consider any application that is made for the exercise of power[99].
[98]Racecourse Co-operative Sugar Association Ltd v Attorney-General (Q) (1979) 142 CLR 460 at 481; Dainford Ltd v Smith (1985) 155 CLR 342 at 349.
[99]Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17‑18, referring to R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177 at 189.
That said, I accept that there is a general principle that, "where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of [agency] may be inferred"[100]. In these appeals, it was clear that s 351(1) did not permit such authorisation because Parliament expressly required under s 351(3) that the power – both its procedural and substantive limbs – be exercised personally. The plurality suggest that, were it not for s 351(3), that principle would have applied to the procedural limb of s 351(1), because Parliament can "ordinarily" be taken to permit a Minister entrusted with a non-compellable discretionary power to instruct departmental officials to sort through requests so as to bring to the Minister's attention only those that the officials assess to warrant the Minister's consideration. But these are not matters to be answered according to some broad and untethered assertion of what "ordinarily" Parliament can be taken to contemplate. Whether such an authorisation is possible will depend on the construction of the statute, in particular the nature, scope and purpose of the power, the consequences of its exercise, and its function under the statutory scheme[101].
[100]New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 88 NSWLR 125 at 129 [12]. See also O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 at 11; Peko-Wallsend (1986) 162 CLR 24 at 38; Plaintiff M61 (2010) 243 CLR 319 at 350 [68]; Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 128 [33].
[101]Peko-Wallsend (1986) 162 CLR 24 at 38.
Third, and finally, there is both a critical difference, and an important commonality, between officials assisting the Minister to exercise a power in the manner described by Brennan J in Peko‑Wallsend, and officials permissibly acting under an authorisation to exercise the Minister's power under the statute. The critical difference is that in the first category the Minister exercises the statutory power whereas, in the second category, the official exercises the statutory power in the Minister's name (not some "non-statutory" power or capacity). The important commonality is that in both categories – whether the power is exercised by the Minister or by the official as the agent of the Minister – the power is subject to the enforceable limits that inhere in the statute.
Ultimately, the Executive Government was and remains relevantly subordinated to the Parliament[102]. Put in different terms, "[w]hatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute"[103]. Its scope must be identified with proper understanding of the "basal assumption of legislative predominance inherited from the United Kingdom" and the relationship between Chs I and II of the Constitution[104].
[102]Plaintiff M68 (2016) 257 CLR 42 at 93 [123].
[103]Plaintiff M68 (2016) 257 CLR 42 at 93 [122], quoting Brown (1990) 169 CLR 195 at 202.
[104]Williams [No 1] (2012) 248 CLR 156 at 232 [136].
Where a statute conditions powers or functions by reference to the persons who can exercise them, the circumstances in which they can be exercised, and the purposes for which they can be exercised, there will not be any unconstrained executive power or function covering the same subject matter that is preserved[105]. If a statute regulates or controls how executive power is to be exercised, then the statute governs to the exclusion of any residual power[106].
[105]CPCF (2015) 255 CLR 514 at 538 [41].
[106]CPCF (2015) 255 CLR 514 at 600-601 [279].
Exercise of executive power under s 351
As has been stated, s 351 of the Migration Act requires that the decisions to exercise or not to exercise the power given by that section may be made only by the Minister. Neither a decision to exercise the power, nor a decision not to exercise the power, may be made by an official in the department administered by a Minister (or any other person). That is, s 351 excludes the capacity of another to decide that it is or is not in the public interest for the Minister to consider exercising the power or for the statutory power to be exercised. Aspects of the exercise of power under s 351 are worth restating.
Section 351 is a conferral of statutory executive power on the Minister. The Minister does not have a duty to consider whether to exercise the power under s 351(1) in any circumstances[107]. This means the Minister cannot be compelled to consider whether to exercise the power. It must be recognised, however, that a Minister might put themselves in a position where they are committed to following a certain process and may become obliged to consider exercising the power[108].
[107]Migration Act, s 351(7).
[108]cf Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 340-341 [24]-[26], 357-358 [88]-[91].
A Minister can exercise the statutory power under s 351(1) to make a decision to consider or not to consider making the substantive decision under s 351 by reference to a specified class of case and can do so before a case within that class exists[109]. As the plurality state, the Minister could exercise the power conferred by s 351(1) to make a procedural decision to the effect that "I will consider making a substantive public interest decision in any case that has the following characteristics ... but I will not consider making a substantive public interest decision in any case that has the following characteristics ...". But the characteristics identified by the Minister must be objective and cannot be whether a departmental official or any other person might think it to be or not to be in the public interest to substitute a more favourable decision for that of the Tribunal. The exercise of the statutory power under s 351 is not unbounded.
[109]Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 665 [91].
Thus, I do not accept that, because the Minister is under no obligation to exercise the statutory power to make a procedural decision at all[110], the Minister can choose to make no procedural decision one way or the other under s 351(1) but give some "non‑statutory" instruction to officials in the department administered by the Minister under s 64 of the Constitution as to the occasions, if any, on which the Minister wishes to be put in a position to consider making such a procedural decision.
[110]Migration Act, s 351(7).
This contention raises two further issues: first, the jurisdiction of the Full Court of the Federal Court of Australia to hear and determine the appeals against the orders dismissing each appellant's originating application, and second, the standing of the appellants, which, in federal jurisdiction, is related to the existence of a matter or justiciable controversy involving "some immediate right, duty or liability to be established by the determination of the Court"[264]. These further issues are readily resolved in respect of the challenges to the Minister's Instructions 2016 and the declaratory relief sought in consequence.
[264]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; see also CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 368 [85]; Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234 at 245-246 [29]-[31], 249-250 [49], 256-257 [79]; 399 ALR 214 at 223, 228, 237.
Jurisdiction
Section 476A of the Act limits the jurisdiction of the Federal Court. It provides, in sub‑s (1), that "[d]espite any other law, including section 39B of the Judiciary Act 1903 ... the Federal Court has original jurisdiction in relation to a migration decision if, and only if" specified criteria are satisfied. For present purposes, the key words in this provision are "in relation to a migration decision". That is, the jurisdiction the Federal Court would otherwise have under, relevantly, s 39B of the Judiciary Act 1903 (Cth) is not excluded in the present cases if the matter is not "in relation to a migration decision".
A "migration decision" is defined in s 5(1) of the Act to mean a "privative clause decision", a "purported privative clause decision", a "non‑privative clause decision", or an "AAT Act [Administrative Appeals Tribunal Act 1975 (Cth)] migration decision". Of these, the first three are relevant. The meanings the Act gives to each of these three terms in ss 5E, 474(2), and 474(6) require the impugned decision to be made, proposed to be made, or required to be made, in effect, under the Act. As noted, the Minister issued the Minister's Instructions 2016 to the department and the officers of the department purported to implement those Instructions for the purposes of, but not by exercise of any power under, the Act.
It follows that the limit on the jurisdiction of the Federal Court imposed by s 476A of the Act was not engaged in the present cases. The Federal Court had jurisdiction to hear and determine the appeals under, at least, s 39B(1), (1A)(b), and (1A)(c) of the Judiciary Act. Accordingly, this Court has jurisdiction to hear and determine the appeals under s 73(ii) of the Constitution. In so doing, this Court "may give such judgment as ought to have been given in the first instance" as provided for in s 37 of the Judiciary Act.
Standing/"matter"
In the context of the challenges to the decisions of the departmental officers on the ground of legal unreasonableness, the appellants contended that finalisation of their respective requests by the departmental officers without referral to the Minister in purported compliance with the Minister's Instructions 2016: (a) foreclosed the possibility of the Minister exercising power to substitute a more favourable decision; (b) rendered any further request a "repeat request" under the Minister's Instructions 2016; and (c) excluded their eligibility for the grant of a bridging visa[265]. Accordingly, the appellants said that their legal rights were affected by the impugned decisions such as to render the decisions capable of judicial review at the suit of each appellant. In response, the Solicitor‑General of the Commonwealth submitted that the decisions were not amenable to judicial review as the officer's conduct in each case was incapable of affecting any legal right of the appellants[266]. This was said to result from the fact that the Minister had no duty to consider exercising any power under s 351(1) by operation of s 351(7) of the Act.
[265]By operation of cl 050.212(6)(c) of Sch 2 to the Migration Regulations 1994 (Cth).
[266]Citing, in support, eg, The Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70; Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 585; Griffith University v Tang (2005) 221 CLR 99 at 128 [80]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 641-642 [2]-[3], 665 [91] (citing Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at 522‑523 [63]‑[66]) ("Plaintiff S10"); Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 380 [184]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 98 [134]-[135]; cf Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 353 [76] ("Plaintiff M61") (in which the Minister's consideration of a statutory power "affected [the claimants'] rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete").
This dispute between the parties need not be resolved. The new ground the subject of the grants of leave in this Court relates to the legal status of the Minister's Instructions 2016 and the actions of the departmental officers under those Instructions. The relief sought involves related declarations as of right. It was not (and could not be) suggested that the appellants did not each have a "real", "sufficient", "special", or "sufficient material" interest[267] in respect of these matters to support their claims for declaratory relief. The implementation of the Minister's Instructions 2016 resulted in each appellant's request for the exercise of Ministerial power under s 351(1) of the Act being finalised without referral to the Minister. If that implementation exceeded the executive authority of the departmental officers, each appellant's request for Ministerial intervention would remain undetermined in law[268]. Accordingly, an appropriately framed declaration would produce "foreseeable consequences"[269] for each appellant. It follows that there is a matter in each appeal and each appellant has the requisite standing to pursue that matter[270].
[267]eg, The Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 71; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36, 41-42, 43, 44, 62-63, 72-76; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 265-266 [46], 267 [50], 280-284 [92]-[103].
[268]cf Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 300, in which the Minister's functions were "without any identified statutory foundation, undefined by any identified statutory obligation or control and devoid of any direct statutory or legal effect"; Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 31-33 per Kiefel J, Sackville J agreeing at 30.
[269]Plaintiff M61 (2010) 243 CLR 319 at 359-360 [103], citing Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188, 189; 18 ALR 55 at 69, 71. See also Plaintiff M68/2015 v Minister for Immigration and BorderProtection (2016) 257 CLR 42 at 75 [59], 76 [64], 90 [112], 122 [230], 152 [350].
[270]Croome v Tasmania (1997) 191 CLR 119 at 125.
Exceeding power
The scope of executive power under s 61 of the Constitution[271] in the present cases involves the fundamental concept of parliamentary supremacy. Parliamentary supremacy dictates that "it is of the very nature of executive power in a system of responsible government that it is susceptible to control by the exercise of legislative power by Parliament"[272]. It follows that the "Executive cannot change or add to the law; it can only execute it"[273]. In the words of Brennan J[274]:
"The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy."
[271]See, in respect of the concept of "capacity" in the context of the exercise of executive power, Williams v The Commonwealth (2012) 248 CLR 156 at 252-253 [201]-[203].
[272]Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 441 (footnote omitted), see also at 459 referring to Attorney‑General v De Keyser's Royal Hotel [1920] AC 508 at 526, 537-540, 549-550, 561-562, 575-576 and Brown v West (1990) 169 CLR 195 at 205; Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 70 [85].
[273]R v Kidman (1915) 20 CLR 425 at 441. See also Williams v The Commonwealth (2012) 248 CLR 156 at 232 [135].
[274]A v Hayden (1984) 156 CLR 532 at 580.
The relevant constitutional principle is that[275]:
"Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope."
[275]Brown v West (1990) 169 CLR 195 at 202. See also, eg, Davis v The Commonwealth (1988) 166 CLR 79 at 108; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 600-601 [279].
This being so, the next question involves the construction of the Act, in particular s 351 itself. The key aspects of s 351 are that: (a) sub‑s (1) vests the relevant power in the Minister (to substitute for a decision of the Tribunal a decision more favourable to the applicant); (b) by sub‑s (1), that power is contingent on the Minister thinking it is in the public interest to do so; (c) by sub‑s (2), the Minister does not have to comply with certain provisions of the Act or the whole of the Migration Regulations 1994 (Cth); (d) by sub‑s (3), the power may only be exercised by the Minister personally; (e) by sub‑s (4), if the Minister substitutes a decision under sub‑s (1), the Minister is to cause a statement to be laid before each House of Parliament that sets out specified matters including the reasons for the decision; and (f) by sub‑s (7), the Minister has no duty to consider exercising the power in any circumstances. These provisions, operating together, create the zone of exclusive Ministerial personal decision‑making power to which I have referred.
Section 351(3), construed in the context of the whole provision, has several consequences. It excludes the capacity which the Minister otherwise would have under s 496(1) of the Act to delegate the exercise of the power in s 351(1). It also qualifies the operation of what is known as the Carltona principle, which is an exception to the "obvious proposition that a statute which on its proper construction confers a power on A does not permit the power to be exercised by B"[276]. In Carltona Ltd v Commissioners of Works[277], Lord Greene MR explained that, given the nature and number of decisions required to be made under the regulation there in question, the regulation could not be construed as meaning that the "minister in person should direct his mind to the matter"[278]. Rather, the Minister's departmental officers could act as the Minister's decision‑making agents.
[276]Racecourse Co-operative Sugar Association Ltd v Attorney‑General (Q) (1979) 142 CLR 460 at 481.
[277][1943] 2 All ER 560.
[278][1943] 2 All ER 560 at 563.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[279], Mason J explained that the Carltona principle "partly depends on the special position of constitutional responsibility which Ministers occupy and on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally"[280]. The application of the principle depends on whether the "nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for [the repository] to act otherwise than through [the repository's] officers or officers responsible to [the repository]"[281].
[279](1986) 162 CLR 24.
[280](1986) 162 CLR 24 at 38, citing O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 at 11.
[281]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38.
Section 351 unequivocally conveys Parliament's requirement that the power in s 351(1) not be exercisable by any person other than the Minister personally. Section 351 does not exclude that, if the Minister wishes to consider exercising the power in s 351(1), the Minister may obtain assistance and advice from officers of the department. The fact that a Minister's appreciation of a case to be considered may depend "to a great extent"[282] on the analysis and advice of departmental officers does not mean that the Minister, in deciding a response to a request based on that analysis and advice, is not personally making the decision.
[282]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65.
A power such as that in s 351 has been characterised as involving two aspects: a procedural aspect enabling the Minister to consider exercising the power; and a substantive aspect enabling the Minister to exercise or not exercise the power[283].
[283]eg, Plaintiff M61 (2010) 243 CLR 319 at 350 [70].
Five points should be made now.
First, this procedural and substantive distinction is necessary because s 351(7) refers to considering exercising the power in s 351(1) and, thereby, subdivides the power into the consideration of its exercise and its exercise. The distinction drawn in s 351(7) reflects that, depending on the terms of the statute, the statutory vesting of a power may carry with it an express or implied duty to consider the exercise of the power in certain circumstances[284]. In this case, any such potential duty is expressly excluded by s 351(7). Further, as s 351(7) provides that there is no duty to consider exercising the power, it must also follow that there is no duty to exercise the power[285].
[284]eg, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 374-375 [102]-[103], referring to Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 88 (applying Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1033-1034) and Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18 (applying R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189).
[285]Plaintiff M61 (2010) 243 CLR 319 at 350 [70].
Second, the Minister does not need to deal with any or all requests by separating the procedural and substantive aspects of the power. If the Minister chooses, the Minister can make a single decision (to exercise or not to exercise the power to substitute a more favourable decision) about a, or certain classes of, request, or all requests. Of course, as a practical matter, the extent to which the Minister can consider the public interest in the context of making (or refusing to make) a procedural decision about a particular request may be constrained by a lack of knowledge of the details of the request. The same lack of knowledge does not necessarily apply to Ministerial procedural decisions about certain classes of request or all requests in which the public interest might depend on common features of the class or common circumstances. In any event, whatever the level of detail available, the Minister's view as to the public interest conditions all decisions which s 351(1) empowers the Minister to make, be they positive or negative decisions.
Third, while the power in s 351(1) involves two aspects (the procedural and the substantive), both aspects give rise to a positive and a negative decision‑making potential. The procedural aspect, enabling the Minister to consider exercising the power, is capable of a positive decision ("I will consider exercising my power") or a negative decision ("I will not consider exercising my power"). The substantive aspect, enabling the Minister to exercise or not exercise the power, is also capable of a positive decision ("I will exercise my power") or a negative decision ("I will not exercise my power"). Accordingly, the fact that s 351(1) is expressed in terms of the positive decision only ("... the Minister may substitute ...") does not mean that a negative procedural or substantive decision is not a decision under s 351(1).
Fourth, not all statutory or non‑statutory powers are able to be disaggregated. Nor are all conceptual distinctions useful. As explained, given the terms of s 351(7), the procedural and substantive aspects of the power in s 351(1) must be distinguished. But no further disaggregation of the power in s 351(1) of the Act is possible. However, once distinctions of this kind have been introduced, clarity of language in describing actions or non‑actions is critical. The earlier authorities[286], when viewed from the perspective of the issues in the present matters, must be read with this in mind.
[286]eg, Plaintiff M61 (2010) 243 CLR 319 at 350-351 [70]-[71], 353 [77]; Plaintiff S10 (2012) 246 CLR 636 at 653 [46], 665 [91]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 195 [33], 200 [54] ("SZSSJ").
Fifth, and critically for the present appeals, the zone of exclusive Ministerial personal decision‑making power created by s 351 of the Act applies to the whole power in s 351(1). It applies to the procedural aspect of that power (deciding in the public interest to consider or not to consider exercising the power) and to the substantive aspect of that power (deciding in the public interest to exercise the power or not to exercise the power).
Plaintiff M61/2010E v The Commonwealth[287], Plaintiff S10/2011 v Minister for Immigration and Citizenship[288], and Minister for Immigration and Border Protection v SZSSJ[289], on close analysis, do not support the Solicitor‑General's position[290].
[287](2010) 243 CLR 319.
[288](2012) 246 CLR 636.
[289](2016) 259 CLR 180.
[290]In Davisv Minister (2021) 288 FCR 23 at 62 [155], Mortimer J reached much the same conclusion, principally by reference to her Honour's succinct statement at 58 [136]: "Yet the power in s 351 is a power personal to the Minister."
In Plaintiff M61, the Minister had made a positive procedural decision and the steps taken by departmental officers were directed towards the Minister deciding whether to make a positive substantive decision. As the claimants were in detention, the steps taken directly affected their liberty and were conditioned on the observance of procedural fairness[291].
[291]Plaintiff M61 (2010) 243 CLR 319 at 353-354 [78].
In Plaintiff S10, the issue was whether the consideration of requests for a more favourable decision by the Minister by departmental officers under the 2009 version of the Minister's Instructions ("the Minister's Instructions 2009") – referred to in Plaintiff S10 as "the guidelines" – was subject to a duty of procedural fairness. The answer given was that it was not[292].
[292]Plaintiff S10 (2012) 246 CLR 636 at 642 [4], 666 [96].
In SZSSJ, the difference between cases in which the Minister has declined to consider the exercise of the substantive power and cases in which the Minister has not so declined was explained in these terms[293]:
"[P]rocesses undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non‑compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness."
[293](2016) 259 CLR 180 at 200 [54].
In the passage from SZSSJ quoted above, the condition "[i]f the Minister has not made a personal procedural decision ...", in context, means that the Minister has not made a positive or a negative procedural decision. This is apparent from the subsequent statement about the department assisting the Minister to make the procedural decision, which, of necessity, must encompass both a positive and a negative procedural decision. In Plaintiff S10, one request had been referred to the Minister and the Minister had decided not to consider exercising the power, one repeat request was not referred to the Minister at all, and two other repeat requests were referred to the Minister, who decided to not "intervene"[294].
[294](2012) 246 CLR 636 at 643 [7], [10], 645 [16], 645-646 [21], 664 [89].
The foundation of the distinction between a personal Ministerial decision to not "intervene" and a negative procedural decision is not immediately apparent. But, as will be explained, the foundation of that distinction is not critical to the resolution of the present cases.
In Plaintiff S10, it was concluded that the Minister's Instructions 2009 did no more than "facilitate the provision of advice to the Minister in particular cases and otherwise operate as a screening mechanism in relation to any requests which the Minister has decided are not to be brought to his or her attention"[295] or represented "decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise"[296]. These characterisations of the Minister's Instructions 2009 depended on both the arguments put in Plaintiff S10 and, to some extent, the substantive effect of the principal provisions of the Minister's Instructions 2009[297].
[295](2012) 246 CLR 636 at 653 [46].
[296](2012) 246 CLR 636 at 665 [91].
[297]As Mortimer J recognised in Davis v Minister (2021) 288 FCR 23 at 59-62 [141]-[155].
In Plaintiff S10, no argument was put that the implementation of the Minister's Instructions 2009 involved decisions of departmental officers within the zone of exclusive Ministerial personal decision‑making power created by s 351 of the Act[298]. It follows that the statements in Plaintiff S10 about the Minister's Instructions 2009 are to be understood in the context of the issues for decision in that case.
[298]This is apparent from Plaintiff S10 (2012) 246 CLR 636 at 641-642 [2], 651 [39]-[40], 655 [52].
The same observation applies to SZSSJ. The statement in SZSSJ – that, if the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis[299] – does not engage with the appellants' arguments in the present cases. Again, it was not suggested in SZSSJ that the issuing and implementation of the Minister's Instructions 2009 exceeded a limit on executive power imposed by s 351.
[299](2016) 259 CLR 180 at 200 [54].
It may be accepted that the Minister may issue instructions to the department that: (a) the Minister has made a negative procedural decision under s 351(1) of the Act that the Minister does not want to consider any requests to substitute a more favourable decision under s 351(1); or (b) the Minister has made a positive and/or negative procedural decision under s 351(1) of the Act that the Minister does or does not want to consider certain requests to substitute a more favourable decision under s 351(1)[300]; or (c) the Minister does not want to be put in a position to make a procedural decision (negative or positive) about any or only certain requests under s 351(1) of the Act. These propositions follow from s 351(7), which excludes any duty on the part of the Minister to consider whether to exercise the power under s 351(1)[301].
[300]eg, Bedlington v Chong (1998) 87 FCR 75 at 80-81.
[301]See footnote 284.
What does not follow is that more confined instructions concerning only certain kinds of requests necessarily do not involve impermissible actions of departmental officers within the zone of exclusive Ministerial personal decision‑making power created by s 351 of the Act.
The question whether the instructions conform to the limit on both statutory and executive powers prescribed by s 351 was never posed in Plaintiff M61, Plaintiff S10, or SZSSJ. As a result, the statements in those cases on which the Solicitor‑General relies[302] do not answer the appellants' cases.
[302]eg, Plaintiff M61 (2010) 243 CLR 319 at 350-351 [69]-[71]; Plaintiff S10 (2012) 246 CLR 636 at 653 [46]-[47], 665 [91]; SZSSJ (2016) 259 CLR 180 at 197-200 [41]-[55].
This question is answered by determining whether, as a matter of substance and not form, the instruction or relevant part thereof purports to enable a departmental officer to decide a matter within the zone of exclusive Ministerial personal decision‑making power created by s 351 of the Act. This constraint imposed by s 351 limits departmental officers in the exercise of both executive non‑statutory power and statutory power.
In the case of the request of each appellant in the present cases, the departmental officer finalised the request by implementing s 10.2 of the Minister's Instructions 2016 (concerning repeat requests). The officers decided that the requests would not be referred to the Minister and would be finalised by the department because, as provided for in s 10.2, the department was not satisfied that there had been a significant change in circumstances since the previous request which presented unique or exceptional circumstances as described in s 4 of the Minister's Instructions 2016.
In applying s 4 of the Minister's Instructions 2016 to each request, the departmental officers were required to evaluate whether the circumstances on which each appellant relied involved, for example, "strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit", or "compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person", or "circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or [where] the application of relevant legislation leads to unfair or unreasonable results in a particular case".
In performing this evaluative task and deciding to finalise the request without referral to the Minister, the departmental officers both decided that the Minister should not make a procedural decision about the request and, in substance, made a negative procedural decision about the request. In so doing, the departmental officers acted beyond the executive power, which was confined by s 351 of the Act.
This conclusion is not gainsaid by the fact that the Minister's Instructions 2016 say that what is and what is not in the public interest is for the Minister to determine[303] and that the Minister may intervene whether the case is brought to the Minister's attention or not[304]. The Minister's Instructions 2016, by the operation of s 4 of that document, required the departmental officers to decide matters within the zone of exclusive Ministerial personal decision‑making power created by s 351 of the Act. That was impermissible.
[303]Minister's Instructions 2016, s 2.
[304]Minister's Instructions 2016, s 12.
As noted, the Minister's Instructions 2009 were considered in Plaintiff S10, but no argument was put in that case that the substance of those Instructions exceeded the limits of executive power. Accordingly, Plaintiff S10 is not authority to the contrary of the appellants' arguments in the present cases.
There is also at least one key difference between the Minister's Instructions 2009 and the Minister's Instructions 2016. It is that s 16 of the Minister's Instructions 2009 provided that, for initial requests that the departmental officers considered did not involve unique or exceptional circumstances, the Minister instructed that the department was to "bring the case to my attention through a short summary of the issues in schedule format, so that I may indicate whether I wish to consider the exercise of my power". This is an important difference from s 10.1 of the Minister's Instructions 2016 because it means that, under the Minister's Instructions 2009, the department's consideration or evaluation, as a matter of substance, could not be said to involve any aspect of the Minister's personal power in s 351(1). The department's consideration or evaluation under s 16 of the Minister's Instructions 2009 was necessarily in the nature of advice, analysis, and assistance to the Minister to enable the Minister to decide whether to make a procedural (and substantive) decision or not[305].
[305]As concluded in Plaintiff S10 (2012) 246 CLR 636 at 653 [46]-[47], 665 [91].
If s 17 of the Minister's Instructions 2009 (concerning repeat requests) had been the subject of the arguments put in the present cases (which it was not), several further issues would have required analysis. The fact that there is no such analysis in Plaintiff S10 reinforces that the Court was not dealing with the issues to which the present cases give rise. It would have been relevant that, in contrast to the Minister's Instructions 2016, s 17 of the Minister's Instructions 2009 characterises a "repeat request" as one that has previously been considered by a Minister. The Minister's Instructions 2016 characterise a "repeat request" as one that a Minister had "previously received" (which, in the context of the Minister's Instructions 2016, would be taken to mean received but not considered as permitted by s 10.1). Further, the Minister's Instructions 2009 instructed the departmental officers to decide if they were satisfied there had been a significant change in circumstances which raised new, substantive issues and which, in the opinion of the departmental officers, fell "within the ambit of" the public interest provisions of the Minister's Instructions 2009.
It is not that these differences are necessarily sufficiently material to distinguish the substantive operation of the Minister's Instructions 2009 from the Minister's Instructions 2016 in respect of repeat requests. It is that the absence of analysis of the substantive operation of s 17 of the Minister's Instructions 2009 in Plaintiff S10 confirms that no argument was put in that case that the Instructions exceeded the executive power of the Minister (to issue) and/or the departmental officers (to implement) given the terms of s 351 (and the equivalent Ministerial personal and non‑compellable power in the public interest provisions in ss 48B, 195A, and 417 of the Act).
For these reasons, the orders and declarations proposed by Kiefel CJ, Gageler and Gleeson JJ should be made.
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
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