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…
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- AGLC
- Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
- Case
- [2023] HCA 10
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court included whether the Ministerial Instructions impermissibly instructed departmental officers to make decisions that were statutorily required to be exercised personally by the Minister, and whether such instructions exceeded the limits of the Commonwealth's executive power. The Court also considered whether the Federal Court lacked jurisdiction to hear the appeals due to section 476A(1) of the *Migration Act*, by examining the character of the decisions made by departmental officers in purported compliance with the Ministerial Instructions. Finally, the Court addressed whether the appellants had the requisite legal interest to seek declaratory relief and whether such relief was appropriate.
The High Court reasoned that the executive power of the Commonwealth is constrained by law, and the Executive cannot authorise a breach of the law. The Court emphasised that the executive power to execute and maintain the laws of the Commonwealth involves doing what is authorised or required by those laws, and any incidental action must be strictly ancillary, without changing or adding to the law. The Ministerial Instructions, by requiring departmental officers to refer requests only in "unique or exceptional circumstances," effectively instructed officers to make decisions that were required to be exercised personally by the Minister, thereby exceeding the limits of executive power and the statutory constraints imposed by section 351 of the *Migration Act*. The Court found that the decisions made in purported compliance with these instructions did exceed the executive power of the Commonwealth.
The High Court allowed the appeals, set aside the orders of the Full Court of the Federal Court, and made declarations that the decisions made by departmental officers in purported compliance with the Ministerial Instructions exceeded the executive power of the Commonwealth. The first respondent was ordered to pay the costs of the appellants.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, GAGELER AND GLEESON JJ, GORDON J
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.