[2022] HCATrans 181
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M32 of 2022
B e t w e e n -
MARTIN JOHN DAVIS
Appellant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY OF DEPARTMENT OF HOME AFFAIRS
Second Respondent
ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS
Third Respondent
Office of the Registry
Sydney No S81 of 2022
B e t w e e n -
DCM20
Appellant
and
SECRETARY OF DEPARTMENT OF HOME AFFAIRS
First Respondent
ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS
Second Respondent
KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT JTRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 20 OCTOBER 2022, AT 9.45 AM
(Continued from 19/10/22)
Copyright in the High Court of Australia
____________________
KIEFEL CJ: Mr Horan, would you be dealing with your notices of appeal?
MR HORAN: Yes, I am sorry. I have some proposed amended notices in each matter. I apologise, I did not provide them to the Court before we rose. Perhaps, while that is being done, just to make use of the time, the only substantive difference to the proposed notice in DCM20 that was handed up yesterday is to add the declaratory relief in the orders sought in both Davis and DCM20, and that is now an order to declare that the guidelines as described are inconsistent with and repugnant to
sections 351, 417 and 501J of the Migration Act 1958, which is relief that we say is tied with and flows from ground 2 of the notice of appeal in Davis in respect of which special leave has been granted.
KIEFEL CJ: You have only handed up the notice of appeal in relation to Davis.
MR HORAN: I think there should be a notice for each. It is only a one‑page double‑sided document. But the order sought is identical in each. They are really intended to harmonise the position in each of the appeals.
GORDON J: Can I just ask one question about that. Does the addition of the second declaration in the orders sought in Davis affect the orders that would then be made in paragraph 3?
MR HORAN: It may do, insofar as the ‑ ‑ ‑
GORDON J: They are not consistent, are they?
MR HORAN: What we have done is inserted, because this ground is, at least in DCM20, only being raised in this Court, if special leave is granted and leave to amend is granted, the order should be an order made by this Court rather than a substituted order of the court below. So, it may be that some reconciliation would need to be done between the orders originally sought.
KIEFEL CJ: I am sorry, I do not really follow that. I think Justice Gordon is pointing out that the declaration in paragraph 3 in Davis and in paragraph 6(b) in DCM20 are not the same as ‑ ‑ ‑
MR HORAN: I see, your Honour, yes. I am not sure why that is ‑ ‑ ‑
KIEFEL CJ: ‑ ‑ ‑ those in the new paragraph 2.
GORDON J: In other words – I will just make it – if you are going to ask this Court to make the declaration in 2, is it necessary to, or is it – we would not then go on and make orders in lieu, in 6(b), making different declarations?
MR HORAN: It might be ‑ ‑ ‑
GORDON J: Am I wrong about that or have I just misunderstood it?
MR HORAN: I tried to ‑ ‑ ‑
GORDON J: Be minimal?
MR HORAN: ‑ ‑ ‑ minimise the textual amendments. What I had in mind was that declaration 2 would almost be in the alternative to – it may mean that ‑ ‑ ‑
KIEFEL CJ: So, it is open to us to put declaration 2 in the orders made in lieu in the paragraphs (3) and (6)?
MR HORAN: Yes. And/or to have declarations – maybe to put the declaration, which is in order 3(b)(iii), in as an alternative declaration to order 2. But the substance is that we seek – if ground 2 is considered and, ultimately, upheld, I think we would seek either or both the declaration about inconsistency of the guidelines and the declaration that the request is finalised and that could be done either directly or through a substituted order of the Court below.
GLEESON J: But, 3(b)(i) in Davis is predicated on the guidelines being valid.
MR HORAN: Yes, I think that is correct, your Honour. I think it is probably the case that the declaration in 3(b)(iii) was previously intended as connected to the legal unreasonableness challenge and the setting‑aside or declaration of invalidity of the Assistant Director’s decision. It was for that reason that the request is not finalised and it, perhaps, needs to be now appreciated that that declaration that the request is not finalised can also flow from ground 2 in each matter and not only from ground 1. I could go back to the drawing board and attempt to make some amendments to order 3, but I was hoping that this was sufficient to, at least, raise the issues for the Court so that the suite of possible orders is ‑ ‑ ‑
KIEFEL CJ: We would then fashion orders if you were successful.
MR HORAN: Well, if we were successful we would seek the orders in order 2 and any orders in order 3 that are relevant, depending on the ground on which your Honours decide the appeal.
GAGELER J: Mr Horan, if you get up on ground 2 – because I understand the way you put it yesterday, we do not get to ground 1, and if you get up on ground 2, the appeal is allowed because it is a ground of your appeal ‑ ‑ ‑
MR HORAN: Yes.
GAGELER J: ‑ ‑ ‑ the orders below must be set aside and you want two declarations in their place.
MR HORAN: Yes. Perhaps I should have put “could” or perhaps “should” have put this declaration as an alternative in 3(b).
GAGELER J: That is what you want.
MR HORAN: Yes.
GAGELER J: Yes.
MR HORAN: Yes, your Honour.
GORDON J: Just so I am abundantly clear, that comes down and it becomes part of 3(b)(i).
MR HORAN: It would become 3(b)(i), yes.
GORDON J: Then 2 will be – what is the second declaration you want?
MR HORAN: Declare that the applicants’ request ‑ ‑ ‑
KIEFEL CJ: Three.
MR HORAN: ‑ ‑ ‑ for ministerial intervention is not finalised.
GORDON J: And the rest would fall away.
MR HORAN: The rest would either fall away or be in the alternative. They would rest on – they depend on ground 1. So my learned friend, I think, is still – may not have yet received instructions about whether this is opposed, but we say the issue is already within the four corners of the Davis appeal in ground 2 and all we are doing by these proposed amendments is to harmonise the grounds in DCM20 and to add an order that perhaps should have been included initially but does not raise any new issue. It simply – the respondents have been on notice that the issue of validity – using that term loosely – of the guidelines has been directly raised in the Davis appeal from the application for special leave onwards. So, we say there is no reason that these amendments should be opposed. If your Honours please.
KIEFEL CJ: Mr Solicitor, have you had an opportunity to obtain instructions?
MR DONAGHUE: Your Honour, I need to separate my answer to that question. As to the proposed amendment in DCM20 to regularise by adding ground 2, I do have instructions. That is the amendment your Honours saw yesterday. And my instructions are these. Your Honours will have seen that in our notice of contention in Davis where currently ground 2 is raised, we have taken an objection on the basis that the Full Court would not have had jurisdiction to entertain that ground. If that argument is correct, it would apply equally to the proposed new ground here.
KIEFEL CJ: Yes, of course.
MR DONAGHUE: And so my instructions are that we would invite your Honours to reserve on the application to amend, and if we succeed in Davis, then you should refuse leave to a line of 2. If we fail on that objection in Davis, I have no objection to the amendment to add ground 2 in DCM so as to align the two proceedings in that respect. I hope that makes sense. So that would seek to achieve the objective of having the two matters travel together ‑ ‑ ‑
KIEFEL CJ: The Court will follow that course.
MR DONAGHUE: In respect of the other amendment proposed to both matters, adding the new declaratory relief, we saw this document five minutes before court. I do not have instructions in relation to it. It creates the various problems of consistency within the various paragraphs of the relief sought that your Honours have identified. It also raises a question that your Honour Justice Gageler put to me yesterday about whether we would concede that there is standing to seek a declaration in those terms and off the back of very preliminary consideration of that, because I have come to court this morning assuming that issue did not arise – because a declaration in those terms was not sought, but I do not accept that there is standing and I will say something – I am in a position to say something about that when I get to relief, if I can.
There is also a question that I had understood, looking at the notice of appeal, that there were still claims for relief on foot in relation to certiorari and mandamus. I am not sure if my friend just abandoned those in answering your Honour Justice Gageler’s question. So, we are in a position where it is ‑ ‑ ‑
KIEFEL CJ: Speaking for myself, I had not understood them to be abandoned, but rather the conversation was as to what follows in relation to ground 2. But just identifying that those other orders sought relate to ground 1, I think that was the exchange between Justice Gageler ‑ ‑ ‑
MR DONAGHUE: I understand, your Honour. I have sought instructions about the addition of these two declarations and I do want to say before I sit down something about all of the relief sought, which will include the declaratory relief. So, if I could, I do not consent to that amendment but ‑ ‑ ‑
KIEFEL CJ: We will deal with it when you are able and if there is a requirement that you put a note in or further submissions in relation to it, we will do that as well.
MR DONAGHUE: Thank you, your Honour. Can I ask your Honours to go to the 2009 guidelines, which you can find in the DCM joint book of further materials, starting on page 68. These are the guidelines that were in issue in S10 insofar as S10 concerned section 351 and section 417 of the Act. Can I ask you then to turn, in that book, to the bottom of page 69, where you will see:
INTRODUCTION
1PURPOSE OF THESE GUIDELINES –
These guidelines, of course, having been issued by the Minister. The Minister says:
The purpose of these guidelines is to:
•explain the circumstances in which I may wish to consider exercising –
a variety of powers:
•explain how a person may request my consideration . . .
•inform departmental officers when to refer a case to me so that I can decide whether to consider –
In my submission, that language plainly reflects that the Minister has not yet decided whether to consider. What the officers are asked to do is an anterior step to explain when the Minister might wish to undertake the first procedural decision whether to consider the exercise of the power. There is an equivalent to that purpose section in similar but not identical terms in the current guidelines.
There is, in our submission, no preclusion of liberty about the capacity of the Minister still to consider, because it is quite plain, from these guidelines at section 19 and from the current guidelines at section 12, that the guidelines in terms say, I might consider it, even if it does not fall within the terms of these guidelines. And there are ways that have been discussed yesterday where a request might make its way up to the Minister.
So, there still remains the possibility that the Minister might choose to make a first stage decision, even if it does not come through this process. But this process is about helping the Department to help the Minister by saying, sort the requests according to the criteria that come forward so as to identify those where I might wish to consider the power.
If your Honours then go on to bottom of page 71, you see a heading, number 7, “Cases which may be finalised without further assessment”, and there is a list of bullet points that specify what I accept are largely objective criteria, whereby if the Department concludes that those criteria are satisfied, that is it. And you see that from the bottom under the bullet points:
Generally, these cases should not be brought to my attention and may be finalised without further assessment. The department should reply on my behalf that I do not wish to consider exercising my power.
So that is one category of case under the 2009 guidelines, where it is quite plain that the Minister will never see it. If the vice of the guidelines is said to be that the Minister cannot issue guidelines that have the consequence that the Minister never considers the exercise of the power, then the S10 guidelines had that vice, just by reason of section 7. They had it for other reasons as well that I am going to come to, but by reason of section 7 alone, there was plainly a capacity to intercept requests so that they would never make their way to the Minister.
So, if the appellants are here to avoid a collision with that aspect of the old guidelines, they would have to have an argument that is more subtle than saying that the inconsistency is that the Minister might be prevented in some way from considering a request, because these are requests that the Minister would be, on that argument, prevented from considering.
EDELMAN J: I think their argument is more subtle than that.
MR DONAGHUE: Yes, I am coming to the more subtle version, but I am taking time to take it in stages.
GLEESON J: But, Mr Donaghue, why does that last sentence not reveal an advance procedural decision in respect of those matters?
MR DONAGHUE: Well, your Honour, it was argued in S10 it did. That was one of the arguments that the Court was confronting in S10 and it said that it did not; that these processes are all anterior because, I think, your Honour, as I showed your Honours in paragraph 1, it is all about when the Minister might want to consider. So, the Minister has not committed and all the Minister is saying is that you, the Department, do not put it on my desk. It is still possible the Minister might choose to consider it through some other process, as section 19 at the end of the guidelines contemplates.
GLEESON J: But how could a reply in those terms be true if it did not involve a procedural decision?
MR DONAGHUE: Well, your Honour, it is certainly true that at this stage what the Minister is saying is, I do not want it to come to my attention and I am not going to consider it. But that is not to say that if the person responded to that letter by speaking to the media and the media then published stories about it that created some public momentum around the case, that the Minister would not be able to make a first stage procedural decision. That would still be a course open to the Minister.
JAGOT J: Putting it another way, you read paragraph 7 as saying from the Minister, I do not want to consider considering the exercise of my first stage power for these categories of cases.
MR DONAGHUE: Yes.
JAGOT J: And characterised that way, it is anterior.
MR DONAGHUE: Exactly.
JAGOT J: Which was, you say, the approach in S10.
MR DONAGHUE: I do. Thank you, your Honour.
Moving on from section 7, we then get, over the page on page 72, about point 2 or point 3 down the page, the heading “Cases which are to be brought to my attention”, we then have a series of paragraphs in 9, 10 and 11 dealing with that. The Minister explains, recognising the terms of 351(1), that it is a public interest power. But the Minister says in the second paragraph:
I may only exercise my public interest powers . . . What is and what is not in the public interest is a matter for me –
So, the Minister is quite expressly asserting, that is my job to make a public interest decision. The Department is not being asked to make a public interest decision. Instead, what the Minister says in the next paragraph is, I, the person who has this personal public interest power:
will generally only consider –
it:
in cases which are referred to the department . . . which exhibit one or more unique or exceptional circumstances.
So, it is a different question that the Department is being asked to apply at the interior stage Justice Jagot identified and put to me, to sort out which ones might go forward.
The Minister then gives some help in understanding that rather broad, more evaluative expression “unique or exceptional circumstances” in paragraph 11, with a very detailed list of things that the Minister thinks that that meets. And it embraces the kinds of things that one might expect a sensible, responsible Minister to want to have advice about in relation to the exercise of the public interest power including, as you see on paragraph 74, whether the legislation is having unanticipated or clearly unintended consequences, or unfair or unreasonable results, or – a few bullet points down – whether there is:
exceptionable economic, scientific, cultural or other benefit to Australia.
The Minister is specifying a range of things where the Minister says, maybe, excepting that the Act usually – or, in fact, that the Act defines the rights of non‑citizens to be in Australia or not, and that the people who get to the stage of a request for a 351 decision have, by definition, been found to have no right to stay because they have been through the visa process – the visa process, as your Honours all know from section 65, is a binary process. If you meet the criteria, you have a legal right to a visa. If you do not meet the criteria, the visa must be refused.
So, these are all people whose legal rights, through the Act, have been found to be – no right to stay in Australia. We are here in the territory of 351 in these guidelines because the Minister says maybe – exceptionally – despite the absence of legal rights, I should let you stay because the legislation is having unfair or anticipated consequences or, even though you do not have a right, it would be a good thing for Australia in the public interest, if you were permitted to stay.
So that is the way that the guidelines are setting up to help the Minister work out which cases, personally, the Minister should have a look at to decide whether or not he or she wants to consider the exercise of the power.
GAGELER J: All of those factors in 11 involve the Minster identifying considerations that bear upon the public interest, do they not?
MR DONAGHUE: Or that the Minister might think – if we get there – bear upon the public interest. That is right.
GAGELER J: So, it is fleshing‑out the subsection (1) decision‑making criterion.
MR DONAGHUE: It is fleshing‑out what might bear on the public ‑ ‑ ‑
GAGELER J: Yes.
MR DONAGHUE: Yes, that is correct. So, we do not have to get to – your Honour Justice Gleeson put a question to me yesterday about no red‑headed people. I do not need to go there because, under these guidelines, all of the criteria are very plausibly referrable to the public interest. So, that would be a difficult and harder case for me if I had to have irrational criteria, but I do not. They all line up in the way that Justice Gageler just put to me.
GLEESON J: But you did also say, I think, yesterday, that requests do not matter. I took you to be saying from that that the Minister could make an irrational decision.
MR DONAGHUE: Your Honour, I think I answered your question in a number of parts. I said the Minister could say, none at all; I do not want any at all.
GLEESON J: Yes. And I think you said – and I think I asked you, he might say that because he had a resource problem ‑ ‑ ‑
MR DONAGHUE: Yes.
GLEESON J: ‑ ‑ ‑ or he might say that because he simply did not for no reason.
MR DONAGHUE: Yes. I do stand by the submission that subsection (7) must mean what it says, and it says, you do not have to consider, ever but ‑ ‑ ‑
GLEESON J: But there is no qualification of reasonableness or arbitrariness – lack of arbitrariness – in relation to that.
MR DONAGHUE: In relation to the non‑consideration. So, I should be clear, your Honour. I take your Honour’s question to be referring here to the Minister’s statutory power, not to the anterior non‑statutory power of the officer.
GLEESON J: Correct.
MR DONAGHUE: So that is a different question to the question in issue in the case. But, in my submission, the answer I would give to your Honour’s question is not this case, but if we needed to go there, you cannot imply reasonableness into that power because, otherwise, there would be circumstances in which reasonableness would mean the Minister would have to consider the exercise of the power and the statute says that is not the case.
EDELMAN J: Not necessarily, not necessarily. There can be an absence of consideration for rational reasons which means that there is no requirement for the Minister to consider. But, if the same absence of consideration is attended by irrational reasons, then that just means its invalid. The converse is not necessarily true. It does not mean the Minister must consider, it means whether or not the Minister must consider has to be rational.
MR DONAGHUE: Your Honour, I might have to come and have this argument with the Court at some point. In my submission, at the moment, because these guidelines are not irrational on any view of it in terms of their relationship – and the argument I am trying to meet is an argument that the guidelines are invalid. If I might, I would ask your Honours to focus on these guidelines and the criteria rather than hypothetical extreme ones ‑ ‑ ‑
EDELMAN J: The questions may not be entirely disconnected from the appellants’ first ground, though, because if on a proper construction of the guidelines – and I realise this is heavily contested, but if what has occurred is in fact or in law a delegation of the consideration requirement, then that delegation to consider an immigration requirement would come with all the conditions that are attached to it, including any reasonableness condition.
MR DONAGHUE: Your Honour put that all to me in the context of ground 1. I realise I need to meet ground 1 and Mr Wood is largely going to meeting ground 1. In the context of meeting ground 2 and in the invalidity of the – of the asserted invalidity of the guidelines, in my submission, I do not need to concern myself with it because the criteria are obviously rational.
EDELMAN J: Yes.
MR DONAGHUE: Now, what happens – so we have in 9, 10 and 11 some criteria. Not public interest criteria, but criteria the Minister specifies for the Department to apply that might rationally inform the Minister’s public interest judgment if the Minister ever decides to make one. We then get to section 16, on page 76, dealing with initial requests. The process here is that the Department is asked, as under the current guidelines, to make an assessment against the unique and exceptional criteria with two possible pathways then to follow, identified in the two bullet points. If the Department thinks it falls within the:
Unique or exceptional circumstances . . . bring the case to my attention –
If the Department thinks it falls outside then:
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 –
Now, this is the main difference between the ‑ ‑ ‑
GORDON J: Mr Horan accepted that was the principle; the high ground, the height point of the difference.
MR DONAGHUE: Yes.
GORDON J: Do you accept under these guidelines that each of those matters comes before the Minister in some form?
MR DONAGHUE: Each of those matters does, but the point that I am seeking to develop – so, yes, but, in my submission, this is – what I am about to develop is that this does not provide any basis for distinguishing the S10 guidelines, for reasons that I will come to. But with respect to these categories, the difference is where the Department assess against the guidelines – which they have to do under both sets; considering unique and exceptional which they have to do under both sets – if the Department thinks it does not meet the criteria under this set of guidelines for a first request there is a schedule, referral. Under the current guidelines, there is not, and you see that through section 10 of the current guidelines.
But, in our submission, really, that difference when one gets right down to it is not a legal difference. It is a difference in – it might be thought, to suggest a factual difference in practice as to how likely it is that the Minister will decide to consider exercising the power.
GORDON J: I am sorry, could you just put that submission again?
MR DONAGHUE: Yes.
GORDON J: It is not a legal difference, but a factual difference in ‑ ‑ ‑
MR DONAGHUE: It is a factual difference based on the unproven, factual proposition that the fact that a case was mentioned in a schedule that was put before the Minister might make it more factually likely that the Minister will do something the Minister has no legal duty to do – consider the application. We just do not know one way or the other how likely it was – whether the Minister ever exercises the intervention power in relation to cases in the schedule. Perhaps the Minister does, perhaps the Minister does not; we cannot tell. But that is the difference. A practical, factual difference perhaps.
GAGELER J: Mr Donaghue, both of those pathways in section 16 result in the Minister making a statutory decision one way or the other, do they not?
MR DONAGHUE: No. So, if your Honour looks under the two bullet points:
If I do not wish to exercise, or consider exercising my power, the department should reply on my behalf –
there remains in fact, in my submission, neither of those. So, if you look at the end of the first bullet point, even in the cases that the Department thinks meet the exceptional circumstances, it is brought:
to my attention . . . so that I may consider exercising my power –
not so that I might exercise the power. So, it is all about, as the purpose shows in paragraph 1, bringing it to the Minister’s attention for a possible but not certain first stage decision.
GAGELER J: With two boxes, one of which the Minister will cross, indicating assent to that course of action. One course of action or one possibility will be an exercise by the Minister of the subsection (7) power ‑ ‑ ‑
MR DONAGHUE: Not consider.
GAGELER J: ‑ ‑ ‑ to consider, and the other will be a decision not to consider – that is, not to exercise that power – but it is a statutory decision being made, is it not?
MR DONAGHUE: In my submission, as I understand S10 and SZSSJ, it is possible for a request to land on the Minister’s desk and for the Minister to pick it up and to say, I do not even wish to consider the exercise of my power with respect to that application, and that is not a statutory decision.
GORDON J: What is the source of decision? It is a decision. You accept that is a decision. What is it?
MR DONAGHUE: It is not to enter into the field of the exercise of the public interest power at all.
GORDON J: Is that not a statutory decision?
MR DONAGHUE: Well, I can try to turn up some paragraph references, but I think on the authorities of the Court, no.
STEWARD J: Your point is if he decides to nothing, he does not need statutory authority for that.
MR DONAGHUE: Precisely.
STEWARD J: Because he is under no duty to exercise the power or, indeed, to consider whether to exercise the power. Doing nothing is not the same as making a decision.
MR DONAGHUE: Indeed, it is just doing nothing, and there is no obligation to do anything; whereas, in practical terms, if the Minister ticks the box, I wish to consider the exercise of the power, we still have not got to the question of the Minister ‑ ‑ ‑
JAGOT J: Doing the considering – doing it.
MR DONAGHUE: Yes, doing it.
EDELMAN J: But, Mr Solicitor, this is why language is so important, because there is a difference between a duty to do something and a liberty to consider whether to perform a duty. Subsection (7) of section 351 makes express that the Minister does not have a duty to consider. The premise of that subsection must be, surely, that there is a statutory liberty for the Minister to consider. If the Minister did not have a liberty to consider, then there would be no point in saying that the Minister had a duty to consider.
MR DONAGHUE: Your Honour said a “statutory liberty”. It does not need to be a statutory liberty. It needs to be an ability to consider the exercise of the power – that logically follows – but it does not need to be grounded in the statute.
EDELMAN J: Well, it is very difficult to see how the granting of a power in section 351(1) does not include impliedly a liberty to consider the exercise of the power.
MR DONAGHUE: It would have but for subsection (7).
EDELMAN J: No, that is the difference between a liberty and a duty. Subsection (7) makes clear that the liberty that is contained in subsection (1) is not a duty.
GORDON J: Another way of putting it is to see the power in 351(1) as having these two aspects to it. It is one power, it has two aspects to it. There are plenty of authorities which say, where I have been given a power to do it, even when I do not have a duty to do it, then the refusal to take that step – let us put it in neutral terms – itself is an exercise of – is a statutory decision; it is sourced in the statute.
The other way to look at it is this. The Minister’s powers are given to him the way we discussed yesterday – have a statutory source, have a constitutional source; they come from somewhere. The reason why he is being asked to think about the 351(1) powers – because the Migration Act says it is a potential for him to do so.
MR DONAGHUE: Your Honours, ultimately, here, of course, the conduct that is the subject of the application for review never made it to the Minister’s desk. In that context, in my submission, the unanimous judgment in SZSSJ is unequivocal that what has occurred is not based in the statute at all. The Court expressly said that in the second half of paragraph 54.
GORDON J: It depends what you are saying is what is not based in statute. If we ‑ ‑ ‑
MR DONAGHUE: That the activity of the Department, reading the words:
a process undertaken by the Department on the Minister’s instructions . . . has no statutory basis –
EDELMAN J: Which must be right that a Department’s processes – advising, assisting – that is not exercising any liberty. That is just helping, advising, guiding, assisting ‑ ‑ ‑
MR DONAGHUE: But that is what is challenged.
EDELMAN J: Well, that is the question. The very question is: is the Department doing anything more than advising or assisting the Minister or is, as a matter of proper construction of the 2016 direction, a line crossed between advising and assisting to substantive exercise of the liberty itself?
MR DONAGHUE: That is the case I am trying to meet, your Honour, and I am trying to meet it on the basis that the S10 guidelines did not cross that line, for reasons I am taking your Honours through, and therefore the current guidelines do not either. But, in my submission, I come back to the fact that the slate is not clean; there are prior decisions of the Court construing these powers which our friends do not challenge, and those decisions establish that what the Department was doing was not based on the statute.
GORDON J: One of the problems that may arise is because, I think – is that you start with, well, the Executive can do this, therefore there is no limit. The problem here is that you accepted yesterday in an answer to Justice Gageler that the Executive is, of course, able to be constrained by statute. So, the question here is – or by the Constitution; 61 and 64, advise and assist, as Justice Edelman put to you – and, absent that, as the Chief Justice said when she was in her former life as Justice Kiefel in CPCF, at about paragraph 279, there is nothing left. Once you have identified that as the ability or the power for the Executive to act, there is nothing else out there.
So, if it is not advice and assistance in the 61, 64 kind of analysis, and they are constrained by statute in the context of section 351, then one asks oneself: how can it sit with 351 in these circumstances? So, to say they are not doing anything under statute does not provide you with the answer. It does not provide you with an answer because you have got to identify, I think, and meet the case that there is this incongruence, potentially, arising in that way.
MR DONAGHUE: I think, if I understand your Honour’s question correctly, it is predicated on the proposition that what is happening is not advice and assistance to the Minister. In my submission, one only needs to read the guidelines to say, if you are a decision‑maker, a Minister, administering a large department where this is one of many powers that you possess – and an extraordinary one in the sense that it is to step in to alter the normal set of arrangements that Parliament has legislated – and you get thousands of these applications, from the perspective of the decision‑maker, it would very much be of assistance to have somebody say, I have sorted them out and these are the good ones. These are the ones, where in the limited time you have personally available to consider, you should focus your attention to try to get the best outcome on this set. So, I do not accept the premise that these guidelines are not about advising or assisting the Minister; they are.
GORDON J: So, the two issues are, what are the constraints imposed by 351 – is the first question – and the second question is, having identified those constraints, if there are some, whether or not this is advice and assistance consistent with those constraints. Do you accept that proposition?
MR DONAGHUE: I accept that if one can identify constraints from section 351 – as your Honour says to me, I answered some questions from Justice Gageler about that to that effect – then, yes, I would accept that premise. But, in my submission, the reason that it is important that the Court has looked at this and held that the departmental process is not based on the statute, is that it was rejecting thereby the idea that you did get constraints upon the departmental activity from the statute. So, the holding is no procedural fairness in SZSSJ; that is, the departmental officers administering these guidelines can be unfair – can be procedurally unfair to the person who made the request and it has no legal consequence. Why is that?
GAGELER J: But, so can the Minister. I mean, that was part of the holding in S10.
MR DONAGHUE: Yes.
GAGELER J: There were some ministerial decisions and there were some departmental decisions. Neither were governed by procedural fairness.
MR DONAGHUE: Neither, yes.
GAGELER J: Mr Solicitor, you are at section 16 of the 2009 guidelines.
MR DONAGHUE: Yes.
GAGELER J: An example of that process in action is provided in this very case; that is, in DCM20. If you look back at page 20 of the ‑ ‑ ‑
MR DONAGHUE: The same book.
GAGELER J: ‑ ‑ ‑ joint book of further materials, you see a brief to the Minister under the 2009 guidelines. If you turn to page 22, you will see the recommendation that is made to the Minister which is either:
Begin considering –
the section 351 power, or:
Not exercise –
the 351 power – meaning “not intervene”. The Minister has circled “not intervene”. What I suggest to you is that that is an exercise of statutory decision‑making not to exercise the subsection (7) procedural power in the circumstances of the individual case. I also suggest that that is actually what was held in respect of a number of the decisions of the Minister in S10 itself.
GORDON J: And just to add to that, in SZSSJ, I think at 53 it says:
whether to make a . . . decision –
which includes a decision not to consider.
MR DONAGHUE: I do not want to be at cross‑purposes with your Honours, but even if that would be right – and as some of your Honours put to me yesterday, the language in this area and in the judgments is not always entirely consistent. So, it is a little bit difficult to sometimes pin down exactly what the content of “begin considering” is; whether it means embark upon the process of giving a submission about the public interest, which is often how it is used, but maybe it is not always used that way.
Even if the Minister’s decision is grounded – as your Honours put to me – is if that is an exercise of statutory power by the Minister, SZSSJ is unequivocal that the process that leads to it is not.
GAGELER J: The only point – I think this is the point that you are seeking to make in going to section 16 – is that the section 16 process which is anterior to any statutory exercise of power is one that puts the Minister in the position to decide, one way or another, whether to exercise the statutory power.
MR DONAGHUE: Yes, but to decide one way or the other – indeed. And it happened in the 2016 guidelines in a slightly different way, in that you had actual recommendations from the Department to consider and you had recommendations not to, but you had a schedule, so that one – perhaps if the Minister had said, well, I think maybe the Department is being too rigorous, I can step in. In my submission, that option makes no legal difference in terms of the process that the Department are undertaking, but it might make a practical difference in terms of what the Minister does. But even if your Honours are not with me on that, I do not need you to be for the argument to succeed, because if you turn over the page to “repeat requests” on page 77 of the same book, you see in the middle paragraph, the Minister saying:
I generally do not wish to consider a repeat request.
So that is the default. If there has been one before that has been declined, then I expect the person to depart – generally expect the person to depart. But – this, the final paragraph:
In limited circumstances, a repeat request may be referred –
What are those “limited circumstances”? There are two conditions, both evaluative. First:
the department is satisfied there has been a significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request –
So, we are dealing here with repeat requests, but they are expressly dealing – even though it is a repeat request – with claims that have not been considered before, because if it has been considered before, you do not meet the first of the evaluative conditions.
So, in a sense, it does not really matter that it is a repeat request. We are dealing here with a request for intervention on new grounds, and it will only get to the Minister if it meets the second condition:
in the opinions of the department, falls within the ambit of section 9 . . . section 10 . . . and section 11 –
If, in the opinion of the Department, it does not, then the last sentence says:
the department should reply on my behalf that I do not wish to consider –
EDELMAN J: The word “ambit” is quite important, is it not? Is it not suggesting – and I think Justice Jagot asked a question to similar effect yesterday – that the departmental official does not make a decision as to whether or not the public interest, or unique or exceptional circumstances, are satisfied? Rather, the departmental official is deciding whether this type of case falls within the boundaries, or the ambit, of those type of considerations so that the Minister can consider.
MR DONAGHUE: Well, your Honour, in my submission, the guidelines should not be construed in that way. The officer is being – as the second condition on a repeat request directed back to 9, 10 and 11 to think about it, but in this context – in the context of repeat requests, there is no schedule, no give the Minister a schedule. Even if you think it does not meet the criteria, the guidelines do not say that. They say, reply on my behalf, I do not wish to consider it.
GLEESON J: You say that means, I do not wish to consider whether to consider it?
MR DONAGHUE: Well, yes. Your Honour, my ultimate point is that that is exactly the same as what you now see in the current guidelines. Exactly the same. The Department conducting an evaluation of the unique or exceptional circumstances and not referring cases to the Minister where not satisfied. And that condition, as I am about to show your Honours factually, that was Ms Kaur, one of the four plaintiffs in S10 who had a repeat request not referred to the Minister on that criteria and it was upheld as valid.
GORDON J: There were two differences, possibly, accepting what you put about the construction. One is these are requests that the Minister will have seen under this arrangement.
MR DONAGHUE: But not on the relevant criteria.
GORDON J: At least first request will have been to the Minister, unlike the current guidelines. So that is a substantive difference in terms of – a factual difference on the way in which the guidelines work.
MR DONAGHUE: Yes, your Honour, it ‑ ‑ ‑
GORDON J: Between 2009 and 2016. And then the second aspect is the ambit aspect.
MR DONAGHUE: As to the first aspect, your Honour, in my submission, it cannot make a difference, such that the 2009 guidelines are valid and the 2016 guidelines are not, that a person has made a request on the basis of factors (a), (b) and (c) that has been rejected, and then the person makes another request on the basis of factors (d), (e) and (f) never considered before, which never get to the Minister, that would be an irrational basis to distinguish between the two.
GORDON J: I was just challenging your proposition that this was no different between the two sets of submissions and that this arrangement was reflected in the 2016. My point was to say that there is a factual difference about the way in which the initial requests feed into this one, because under the 2016 it is possible for a first request never to go to a Minister.
MR DONAGHUE: Your Honour, I understand the point your Honour is putting to me, but, in my submission, the answer to it is that if under the 2009 guidelines you have, as I said, a first request on various identified grounds, (a), (b) and (c), considered by the Minister personally, perhaps actually only in a schedule – that is actually what happened in some of the cases – but gone to the Minister in a schedule, the Minister says, I do not wish to consider it. Then you get a second request raising new grounds that meet the first evaluative criteria:
significant change in circumstances which raise new, substantive issues not previously . . . considered –
This is (d), (e) and (f). Under the 2009 guidelines, even though the Minister has not looked at (d), (e) and (f), the Department screens it out and it never goes forward. Under the current guidelines, a first request that raises issues (d), (e) and (f) likewise get screened out by the Department without ever going to the Minister. The situations are, in substance, exactly the same; so that it is possible to raise a public interest ground seeking intervention that the Minister will never consider if the Department thinks, in its opinion, that the circumstances are not unique or exceptional. As I say, in S10, as I am about to show you, that was a basis upon which some requests did not get to the Minister and that was what the Court upheld.
KIEFEL CJ: But the question for the departmental officer is different in relation to a first request and a repeat request, is it not?
MR DONAGHUE: I am trying to establish, your Honour, that it is not. I do not understand ‑ ‑ ‑
KIEFEL CJ: I am talking about the current guidelines, not the 2009. Under the current guidelines the question – I am sorry. Section 17, which we are dealing with of the 2009 guidelines, in the repeat request the question for the departmental officer is: is there a significant change in circumstances?
MR DONAGHUE: The first question. So, there are two cumulative conditions. One, is there:
a significant change in circumstances . . . and –
You see the “and” at the end of the fifth line. Then, only then, does the Department consider “unique or exceptional”. But it has to be both.
KIEFEL CJ: Yes, I see.
MR DONAGHUE: So, my submission, your Honour, is that it is exactly the same. The Department is considering unique and exceptional circumstances and not referring in the event that the Department is not satisfied. So, the significance of that, your Honours, is – as I said, in S10 I will show it was factually the case. But here with DCM20, your Honours are confronting an appellant who had four requests. So, her repeat requests fell to be assessed under the current guidelines that you see at paragraph 10.2 on page 66 of the same book, and you see near the bottom of that page under the heading “10.2 Repeat requests”:
In limited circumstances, a repeat request may be referred to me –
Two bullet points. They are the same two bullet points that you see in paragraph 17. So, S10, having lost on paragraph 17 of the old guidelines, DCM20 is in not a relevantly distinguishable position. S10 is not challenged, DCM20 loses.
GAGELER J: To be fair about S10, there was no issue of this kind in S10. The validity of that provision of the 2009 guidelines was not in issue. The only question was one of procedural fairness. So, the point simply was not addressed.
MR DONAGHUE: Your Honour, can I come to S10, because what was argued in S10 – I am not suggesting to your Honours that the validity of the guidelines was challenged, but I am suggesting that as part of the ratio reasoning of the Court, the Court said, particularly in paragraph 91, this is what the Minister has done; some applications will never get to the Minister; that is within the competence of the Minister. The Court said that in paragraph 91, and footnote of the Federal Court cases that would support it. So, unless that is wrong, my objective here is to seek to intercept the argument that our friends have encouraged your Honours to pick up, that there is some different process being undertaken by the Department under these guidelines and under the old guidelines, and my submission is it is not right.
EDELMAN J: Paragraph 91 of S10 uses almost identically the words that Justice Gleeson used in a question to you about five minutes ago that you said the directions should not be construed as. In particular, the words:
By these directions the Minister has determined in advance –
In other words, it is a decision that is made by the Minister, but being made in advance and then just implemented by the Department. That was the – as I understood, that was the point that you rejected.
MR DONAGHUE: Your Honour, that is one illustration of some inconsistencies in the language in the judgments in this area, in that, obviously, this is 2012, that was said in those terms in SZSSJ by four justices. In SZSSJ, discussing the same point, the Court says, not based on the statute. So, in my submission, the latter unanimous judgment is the one that states the law as it currently stands.
Can I defer paragraph 91 for a moment to take your Honours more systematically through S10. Starting at paragraph 1 in the joint judgment of then Chief Justice French and your Honour the Chief Justice, where your Honours set out the factual context:
Four plaintiffs . . . who tried and failed to obtain visas –
who then sought intervention under the dispensing power, and there were four different sections in play, one of which you can see from the end of paragraph 1 was section 351. Then, in paragraph two:
The Minister has issued . . . guidelines –
which obviously your Honours have seen:
setting out the circumstances in which the Minister may wish to consider exercising the discretionary powers –
“may wish to consider”, we submit, completely correct having regard to paragraph 1. The plaintiffs over the page, near the third line down, say that:
their rights and interests were directly affected by that consideration and that the valid exercise of the powers –
must comply with “procedural fairness”. Your Honours say that proposition should be rejected. Then, paragraph 3:
Each of the applications is said to raise a matter arising under the Constitution . . . whether the executive power of the Commonwealth is constrained by a requirement that procedural fairness be afforded to a person whose rights, interests or legitimate expectations may be destroyed . . . That question arises if the plaintiffs were to establish that the inquiries made, and the submissions prepared, by officers of the Department . . . pursuant to the ministerial guidelines were themselves capable of affecting, defeating or prejudicing rights, interests or legitimate expectations. They were not.
That is, your Honours expressly held that the process undertaken by the Department did not affect “rights, interests or legitimate expectations”. And that was important to the ultimate conclusion that there was no procedural fairness owed.
The judgment then goes on at paragraph 8 to deal with the facts of one of the four cases, Ms Kaur’s case, and you can largely see the facts sufficiently from the judgment at paragraph 8 through to 11, I think. But we have, I hope, provided to your Honours overnight and to our learned friends the agreed statement of facts that before the Court in the Kaur Case, to explain what had happened, which makes things a little clearer. Turns out, I think we have not handed it up ‑ ‑ ‑
EDELMAN J: Yes, I think we have it.
MR DONAGHUE: You have?
KIEFEL CJ: Yes, we have it.
MR DONAGHUE: Thank you, your Honour. So, if your Honours look in the agreed statement of facts about Ms Kaur at about paragraph 14, near the bottom of the second page – pages do not seem to be numbered. At paragraph 14, there was a request for Ministerial intervention under section 351. It was:
referred to the Minister on a Schedule –
So, this is under the procedure your Honours have just seen, section 16. Together with a:
number of non‑citizens . . . The Schedule stated –
I do not need to read it to your Honours, but it stated, in effect, the reason why it had not been recommended for intervention. And then, in paragraph 16:
the Minister signed a record titled ‘Consideration Under Section 351 . . . stating that he had read the attached Schedule concerning the request by the named persons . . . and . . . did not wish to consider the exercise of that power –
So, there was a first request rejected under the provisions that your Honours have just seen in section 16 of the guidelines. Then, going down to paragraph 19, after an unsuccessful judicial process, there is another request. A repeat request:
submitted a further request to the Minister for him to exercise his power under s 351 . . . a Minute was prepared in relation to this further request. The Branch Manager, Ministerial Intervention Unit, agreed with the assessment which stated that no compelling information had been provided that had not previously been considered which would warrant the request being referred –
So that request, the second request, stopped. It never went to the Minister under the criteria that you have seen in section 17 of the old guidelines. And the judgment at paragraph 8 through to 11 summarises that process. At paragraph 10, you see a reference to the further request being declined by officers, and then in paragraph 11, Ms Kaur complained of the breach of procedural fairness in relation to the assessment of that repeat request.
I emphasise all of that, your Honours, because when one then comes on in the judgment to the discussion of the legal principles which – relevantly, if your Honours could turn to paragraph 46, you see the judgment recording that the Minister had not taken the first step:
no statutory step equivalent . . . It was submitted . . . that, properly understood, each of the guidelines in this case does 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.
So that is the source of the screening metaphor that I was using yesterday:
The issue of the guidelines itself did not involve a decision on the part of the Minister, acting under the relevant section, to consider the exercise of the power –
So that was the submission which – it is recorded in the last sentence:
should be accepted.
And it is explained in 47 that:
There are variants, in public administration, of departmental processes which are anterior to the exercise of statutory powers but do not constitute or evidence their exercise.
You might recall, when I took your Honours to SZSSJ at 47 yesterday, I pointed out one of the footnotes. I said that was an approving reference to three passages in S10. One of those passages is paragraph 46, the screening mechanism paragraph. So, it has the imprimatur of the SZSSJ analysis. Then, at paragraph 48, there is an analogy drawn with Mayer. In the light of time, I will not take your Honours to Mayer, but Mayer was a departmental assessment process of whether people had the status of refugees or not, which was initially accepted as a non‑statutory process that had no effect on rights, which the High Court said, at page 300 of the report of Mayer – but I will not go there. Then, in paragraph 50, in the second half, really, on page 655 and following – and this passage was quoted in full in SZSSJ at paragraph 50.
KIEFEL CJ: It was quoted from the words “with no statutory duty”.
MR DONAGHUE: Sorry, the bit I am reading to your Honour was quoted. So, I said the second half; the whole paragraph was not quoted, your Honour is quite right. But the part that I am relying on was quoted in SZSSJ:
If, on ministerial instructions, certain classes of request or case are not even to be submitted . . . for consideration, the position . . . is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with . . . procedural fairness.
So, that is what happened to Ms Kaur; never referred because of paragraph 17 in the same terms as the current guidelines. So, that is Chief Justice French and your Honour the Chief Justice. Then, if one goes to paragraph 91 in the plurality, the guidelines on page 665:
The . . . guidelines provide criteria to distinguish between requests which will not be referred to the Minister –
which is section 7 and section 17 of the old guidelines:
and those which may be referred to the Minister for consideration . . . By these directions the Minister has determined in advance the circumstances . . . wishes to be put in a position to consider exercise of the . . . power –
And then:
It was within the competence of the Minister to do so.
In my submission, that sentence must refer to what precedes it in the paragraph, which includes the non‑referral, and if it did not include the non‑referral of Ms Kaur, then it would not have dealt with her case because she was a non‑referral, as the facts show.
Then, paragraph 94 refers to a pair of Federal Court cases that support – and in my submission, this can only read as endorsing – the particular analysis that is referred to in the pinpoints of those passages. And you will see in the footnote, one of those two cases is a case that was mentioned a little in argument yesterday, Raikua – particularly at paragraphs [63] through to [66]. In my submission, when we go to Raikua – which I am about to do – those paragraph ranges have the endorsement of a plurality of the Court in support of the proposition that it is within the competence of the Minister to issue guidelines that include specifying circumstances where there is no referral at all.
If I could take you to Raikua – it is volume 8, tab 55 of the joint book of authorities, (2007) 158 FCR 510 – and you will have a real sense of déjà vu with this case, because it is exactly the same kind of issues that your Honours have been considering over the last day and a half. At paragraph 8 in Justice Lindgren’s analysis – just setting out the facts – there was a request for intervention under one of the non‑compellable powers. That request resulted in a schedule going to the Minister. So, it was in that schedule – sort of recommendation against, but the schedule goes to the Minister, recommending:
that the Minister not consider the exercise of his power under s 417, because the circumstances were “neither exceptional nor unique”.
And the Minister agreed. You see that in paragraph 9. And not just did the Minister agree, but the Minister made a note, saying:
that he did not wish further requests . . . brought to his attention
unless such further requests provide additional information that –
and Justice Lindgren then emphasises:
in the opinion of the assessing officer . . . brings the case within my Guidelines . . . where I may consider –
the exercise of the public interest power. So, there had to be, do not want to look at it again unless there is extra information and, in your opinion, it comes within the guidelines.
There was then, inevitably, a further request, in paragraph 11, and that further request was assessed by an officer – you see this at paragraphs 12 and 13 – and rejected at not meeting the guidelines – the circumstances not being exceptional or unique. The applicant was advised to that effect by the Department in paragraph 13.
The guidelines, I will not take your Honours through in any detail, but you see them quoted at paragraphs 25 and 26. It was then in the form of MSIs – Ministerial Series of Instructions. MSI 386 looks remarkably like paragraph 1 of the 2009 and the current guidelines. Paragraph 26 setting out “unique or exceptional” also has a real ring of familiarity about it. Justice Lindgren then discusses at 28 the reality that even though the section does not call for a request or applications for its exercise, they will happen – that was all dealt within the guidelines.
If you could just note paragraph 32, one interesting feature perhaps of the arrangement there that is not present here but which cannot, in my submission, make any legal difference is that the old MSI expressly said, in setting these criteria, I have not delegated my power to substitute a decision, I have just:
identified the characteristics that may indicate the type of case –
that I want to consider:
in the public interest –
True, I cannot point to an equivalent paragraph, but it would be extraordinary if the current guidelines would be valid if the Minister added a statement, I have not delegated my power. But, in substance, the task was the same that was being conducted under these old guidelines and the new ones.
If your Honours then turn the range – pages endorsed in S10 – it is at 522. The setup is in paragraph 61. His Honour says, the question is, was there a “jurisdictional error”:
In my opinion, it cannot be.
At 62, Justice Lindgren says:
The Minister could have decided not to consider any requests for the exercise of his power . . . for a specified period –
So that is your Honour Justice Gleeson’s example:
that decision would not have been subject to review . . . It is plain that the Minister’s intention, as expressed in his note –
and in the guidelines was:
to decide not to consider exercising the power in the case of any request where the criteria of “unique and exceptional circumstances” were not met “in the opinion of the assessing officer” –
So, in the same way that you see under paragraph 17 and 10.2 of the new guidelines. Then, we get to the paragraphs endorsed. I will not read 63. I rely on all of these, but 64 is key:
Ms Connolly’s –
who was the officer:
decision is not something provided for by the Act, and does not itself affect legal rights . . . The decision of Ms Connolly is not susceptible to judicial review. The only decision that might conceivably be susceptible to judicial review is that of the Minister.
Then there is a reference to Bedlington. So, Justice Lindgren held – in passages specifically approved by the plurality in S10, in the context of saying guidelines could be issued of this kind – held that the officer’s assessment does not affect rights and is not subject to judicial review. That is our case on the notice of contention. It is a case that is consistent with Raikua, S10, SZSSJ and the understanding of judicial review as controlling and limiting the exercise of power – the officer not exercising power, judicial review is not available. His Honour reiterated that in similar terms in paragraphs 70 and 71:
not subject to judicial review –
at the end of 70:
did not affect legal rights.
at paragraph 71. So, in my submission, why all of that matters is that the way that the argument in this case has developed as such that there has been a great deal of attention focused on the validity of the guidelines, but the guidelines follow a form that has a history of at least 15 years in this country – perhaps longer – that has been looked at and upheld by the Federal Court as a valid way for the Minister to discharge – to be assisted in the exercise of these personal non‑compellable powers; by the Federal Court in Raikua and Bedlington; by this Court in S10, specifically referring to those cases.
There is not – for the reasons that I have tried to develop – any solid basis for saying that the current guidelines do anything different to the guidelines that have been held up. Yes, they operate upon a subjective evaluation of unique or exceptional circumstances, but that is not new; it has been happening for years and the Act has been administered on that basis.
Your Honours, in our respectful submission, in circumstances where none of these cases are challenged, should not upend a regime for the administration of the Act that has informed the Minister’s assessment of this suite of powers ‑ ‑ ‑
GLEESON J: Mr Donaghue, do you agree that Justice Lindgren’s paragraph 64 seems to contemplate procedural decisions via the guideline – by the issuing of guidelines?
MR DONAGHUE: Paragraph 64?
GLEESON J: Where he says:
it was permissible for the Minister take the decision not to consider exercising his power . . . by laying down guidelines –
MR DONAGHUE: That, your Honour, is the similar language to the language Justice Edelman asked me about in paragraph 91. I do accept that. But, in my submission, ultimately it does not matter because even if that is how the matter is characterised, the end result is that what the officers are doing – forming the evaluative or subjective judgment – is not itself reviewable, and that is what this case is about.
Can one – as the Federal Court is increasingly being taxed with – be asked to get involved in the question of have officers properly formed opinions under these guidelines where none of it is about legal rights and it is all just about helping the Minister. The Minister’s decision is or is not reviewable, depending on the authorities of the Court. It is a statutory decision, obviously, so one has questions about is procedural fairness attracted, is unreasonableness attracted. But whatever the answer to those questions, what the officer does under guidelines materially not distinguishable does not affect rights and is not subject to judicial review. If your Honours accept that – and that is what the cases say – the appeal fails.
GAGELER J: Mr Solicitor, there is a reading of Justice Lindgren’s decision. It is just slightly different. I want to put it to you for your comment. It is really based on what he says in the first sentence of paragraph 63, read in context. I will not read the sentence or the context, but it comes down to this. Here, the Minister has made a statutory decision not to exercise the – or put it another way – here, the Minister has made the procedural decision not to consider exercising the power ‑ ‑ ‑
MR DONAGHUE: Here, as in Raikua, yes.
GAGELER J: ‑ ‑ ‑ unless it is a conditional decision, unless certain things occur, which means that the difference is that in this case – and arguably in S10, but let us limit ourselves to this case – you actually have a statutory decision made by the Minister, albeit in conditional terms, slightly different.
MR DONAGHUE: The decision being the issuing of the guidelines?
GAGELER J: No, the decision in the individual case not to intervene – not to consider exercising the substantive power unless there is a change of circumstances.
MR DONAGHUE: But that decision could only be manifest in the guidelines because that is where the “unless” comes from. So, in my submission, that analysis would ground the issuing of the guidelines in the statute, and the Court says they are not grounded in the statute. So, conceptually, I accept if it had been a case‑by‑case type situation one might analyse it that way, but if the “unless” can only be located in the guidelines then unless the statute is the source of the guidelines then, in my submission, the analysis cannot hold.
EDELMAN J: Do you accept or concede that it would not have been open to the Minister to issue guidelines in broad terms which said something to the effect of the Department should engage in the exercise of deciding which cases I should consider?
MR DONAGHUE: Your Honour, it is difficult to answer a hypothetical in those terms. If your Honour puts to me, would I accept that if the Minister purports to delegate his powers, would I accept that that is invalid, then I think I would have to accept that, because the Minister cannot delegate his power, but everything turns on whether that is ‑ ‑ ‑
EDELMAN J: And by “power” in that sentence, you include what is sometimes referred to as the procedural decision or the liberty to consider the exercise of the power. You also accept that cannot be delegated?
MR DONAGHUE: I think I have to accept that that is so. But as I sought to emphasise here, the Minister very clearly in both sets of guidelines has said, what is in the public interest is for me.
EDELMAN J: I appreciate that submission. I just want to understand the basis. By “delegation”, you also include “agency”; that, rather than a circumstance of delegation where the procedural decision would be undertaken by the officer themselves, you would also accept that the officer could not take the procedural decision as an agent of the Minister.
MR DONAGHUE: Yes. In the same way as I would accept if the Minister purported to delegate the substantive exercise started saying, you start issuing visas under this power. That would not be valid.
GORDON J: Can I ask you just to clarify something you just provided in answer to Justice Gageler? There is a distinction, is there not, between Raika and these cases, because in Raikua there was the concession ground argued, as Justice Gageler put to you, that – this was in the opening line of 63 – in effect, the procedural decision, having been made.
MR DONAGHUE: “Had not been”, did your Honour ‑ ‑ ‑
GORDON J: Had been made.
MR DONAGHUE: Had been made. I am not seeking to avoid this. This is another example of my reference to some differences in the language. I can accept as a matter of language that one might be able to say that when the Minister says, sort these into ones that might be plausible for me to exercise and ones that are not, one might be able to say that with respect to the category that are not, that is the personal procedural decision. With respect to the category that come onto the desk, there still remains a question possibly to be made about whether the Minister is going to consider those or not. Justice Gageler puts to me, well, you must be at least considering those, but the way that the –
GORDON J: So, is that a splitting of it? I do not understand that submission.
MR DONAGHUE: I am not endorsing that analysis. I am saying I understand how that analysis could be put forward, but it is not the analysis that has prevailed in the Court. Because if it were the analysis that it has prevailed, then the issuing of the guidelines would be grounded in the first‑stage procedural decision and the authorities say that it is not. The issue is ‑ ‑ ‑
KIEFEL CJ: I am sorry. I am not sure you have completed.
MR DONAGHUE: Yes, I have.
KIEFEL CJ: Can I take you up on that in relation to section 17 of the 2009 guidelines. Is it possible to read the guidelines as saying – in accordance with Justice Gageler’s question to you about conditional procedural decisions – as the Minister saying in relation to the first procedural decision, I do not wish to consider a repeat request. That is my general position; the exception to it is where the departmental officer is of the opinion there are a change in circumstances and identifies what the departmental officer has to do. Has the Minister made a decision under section 351 by saying, I do not wish to consider a repeat request except in this particular circumstance which I am now giving to a departmental officer? Is that the effect of what section 17 is doing?
MR DONAGHUE: In my submission, what section 17 is doing is definitely making the question of whether a repeat request goes forward in a way that might result in ministerial consideration contingent upon the Minister’s trust in the judgment of officers to apply those criteria.
KIEFEL CJ: But the Minister’s whole decision is, in the first place, my preferred view is I do not want to consider repeat requests, but I will if my departmental officers assess these matters and come back to me and say ‑ ‑ ‑
MR DONAGHUE: Or, I might.
KIEFEL CJ: “I might”. I am sorry, that is the correct qualification.
MR DONAGHUE: And this is, I think, Justice Steward’s question to me earlier, that because none of this has to happen at all, that the Minister’s instruction to the Department, I might want to do this possibly, does not have to be granted in the statute because it does not have to happen at all.
KIEFEL CJ: But my question of you, really, is: has not the Minister entered upon the exercise of the section 351 power, the procedural question?
MR DONAGHUE: Your Honour, my answer to that is that one of the arguments that was advanced in S10 seeking to build upon that very conclusion in M61 – that that is what had happened by the issuing of the equivalent guidelines in M61 – was to say that that is how these guidelines should be understood and, had that argument succeeded, then procedural fairness would have been owed.
GAGELER J: No, the Minister made decisions in S10 which were also challenged and the Minister was not under any obligation of procedural fairness. That is one of the holdings.
MR DONAGHUE: Sorry, yes, I accept that, your Honour. I withdraw – that is one of the holdings because, as a matter of statutory construction, the Court held that the duty of procedural fairness was excluded.
EDELMAN J: This is not a point that goes against your argument. This is a point that assists your argument because if it is right that the guidelines reflect in broad terms procedural decisions that have been made by the Minister, then the Minister has made those decisions under the Act.
MR DONAGHUE: The Minister has made those decisions under the Act, arguably, and ‑ ‑ ‑
EDELMAN J: And there is no decision that has been made by – the officer has just implemented the Minister’s decision.
MR DONAGHUE: There cannot be any question of delegation and – well, in the end, your Honour, that is why I have been saying it is kind of about the language because, in one sense, as long as it is accepted that the conclusion is that the officers are not making decisions, they are just making evaluative judgments upon which a ministerial decision bites or intersects with that judgment, then I agree with your Honour put to me.
STEWARD J: But it would follow from that that the guidelines must have a statutory source.
MR DONAGHUE: That was my answer to Justice Gageler. It would seem to follow from that, and the Court has said that they ‑ ‑ ‑
STEWARD J: Previously said that they do not.
MR DONAGHUE: Said that they do not.
STEWARD J: I understand.
MR DONAGHUE: So that is why I have been putting the argument as I have. Your Honours, I am conscious of the time that I am taking with this, can I – so, really, everything I have put to your Honours this morning is really directed to establishing the proposition that this case cannot be resolved on the basis that there is some material difference between the current guidelines and the old guidelines that mean that the guidelines should just be declared to be invalid, and that it therefore follows that everything that occurred below falls over.
If I am right about that, then we come back to the question upon which I opened, which is, accepting that the guidelines operate in the way that has now been discussed at some length, is there any basis to disagree with Justice Lindgren and the endorsement of Justice Lindgren in paragraph 91 of S10 when his Honour says, no effect on rights, no judicial review. We contend that that is right as a matter of first principles, for the kind of reasons I developed yesterday.
There are cases that support that same analysis not in the migration context, which might assist your Honours in situating the kind of arguments I have been developing, which are not particular to the Migration Act scheme. We make the more general proposition that judicial review is not relevant to action of the Commonwealth Executive which does not affect rights. I will not take your Honours right through it, but could I commend to your Honours the judgment of the Full Court of the South Australian Supreme Court in L v South Australia, which is in volume 7, tab 43. It is in (2017) 129 SASR 180.
That was a case where Chief Justice Kourakis, with Justices Parker and Doyle agreeing, was concerned with a non‑statutory process where departmental officers in South Australia prepared reports about the care being provided by foster parents. And those reports could have the consequence that children were removed from care of those foster parents and they were published within the government and could have various reputational consequences within the government. But non‑statutory processes affecting – we submit, obviously affecting the interests of the foster parents, but not affecting their legal rights.
There is an extensive analysis by the Chief Justice as to the availability of judicial review in relation to an activity of that kind discussing many of the leading authorities in Australia, particularly from paragraph 97 onwards, emphasising that the report was without legal consequences. There is a discussion of what power means in this context. Their conclusion reached at paragraph 135 and 136 is that while the “breach” of the instructions given by the Minister might – as to how this function should be deployed – result in “disciplinary action” against the public service, they:
cannot affect the validity . . . of the reports . . . because they do not exercise any public power.
GORDON J: Sorry, what paragraph was that?
MR DONAGHUE: Sorry, it is paragraphs 135 and 36. Also, your Honours, there is a discussion of the Victorian Supreme Court – Full Court of the Supreme Court’s decision in the Master Builders Case from 1995. It is a critical discussion of that case; it is one of the few cases in Australia about the exercise of non‑statutory power. The Chief Justice concludes at 152 that the decision is wrong because it conflates:
practical economic and social power with a legal power –
and judicial review is about legal power. In our submission, what we have put to you in the particular context of the Migration Act coheres with the applicable analysis more generally in judicial review of executive conduct of this kind.
There were two identified effects on legal rights in the Full Court that I should say something about. One of them was the conclusion reached by Justice Charlesworth, with whom Justice Griffiths relevantly agreed, that there was an enforceable duty on officers of the Department to bring a request under 351 to the Minister’s attention absent a lawful instruction from the Minister not to do so.
That reasoning was expressly not adopted by Justices Mortimer and Besanko – Justice Mortimer at 121 to 122, and Justice Besanko at 52 to section 53 – on the basis that it would amount to reading the Act as if there is a duty to consider whether to consider exercising the dispensing power and that it was inconsistent with the acknowledgment of the validity of the screening out processes in S10 and SZSSJ. We respectfully adopt their Honours’ analysis in that respect, which is really also consistent with most of the submissions I have made to your Honours on this appeal.
The other ground is the bridging visa ground. I note the time, your Honour. Is that a convenient time?
KIEFEL CJ: Yes, is that a convenient time?
MR DONAGHUE: Yes.
KIEFEL CJ: The Court will adjourn for 15 minutes.
AT 11.13 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: Your Honours, can I take you to the second basis upon which an identified – it was suggested in the Full Court that the conduct of the officers had an effect on legal rights, and that is the bridging visa issue which was really the main issue that our friend relied on in answering some questions from your Honour Justice Steward yesterday. To that end, can I invite your Honours to take up the core appeal book in DCM20 and to turn to page 61 of that book, which is paragraph 10 of Justice Kenny’s reasons in the Full Court below.
KIEFEL CJ: I am sorry, what was the page reference?
MR DONAGHUE: Page 61. Hopefully your Honours there have paragraph 10 of Justice Kenny’s reasons, where her Honour sets out the terms of the clause 050.212(6) which is one of the criteria for one of the classes of bridging visa that exist under the Migrations Regulations:
An applicant meets the requirements of this subclause if –
(a)the applicant is the subject of:
(i)decision in relation to an application made in Australia for a visa –
which obviously must be the case before you can be in 351 territory, and:
(b)in relation to the decision mentioned in paragraph (a), the applicant:
(i)is the subject of a decision for which the Minister has the power to substitute a more favourable decision under –
relevantly, section 351, and:
(ii) has made a request –
for the exercise of that power, and:
(c)the applicant has not previously sought, or been the subject of –
an exercise of power under 351. So, this is one time of application criteria or one category of bridging visa and you can meet that time of application criteria if it sought a 351 – made a request for an exercise of 351 power for the first time. That is what you need to do in order to meet this criteria. Now, interestingly, as Justice Kenny records at the bottom of that page in the last line and over onto the top page, it appears that each applicant currently holds a bridging visa that was not a bridging visa of that kind. So, the asserted legal right existed by reference to, as you will see, visa criteria that were not the visa criteria applicable to the visa that was held, and in circumstances where, as is implicit within that observation, in fact neither of the appellants was detained at all while this process was underway.
So, in my submission, that is a very unpromising foundation for a submission that the conduct of the officers in assessing against the guidelines affected liberty when they at liberty, and really that link is never satisfactorily bridged, in my submission.
Now, the reasoning that refers back to that criteria I have just shown your Honours appears on page 72 of the core appeal book at paragraph – well, it is actually, sorry, 71 through to 72. It is paragraphs 44 and 45. So, her Honour says, that is the paragraph I just took you to:
As already noted, the statutory scheme . . . includes . . . makes provision for bridging visas including where the visa applicant has made a request . . . to substitute a more favourable decision –
See the regulation your Honours have just looked at:
The grant of a bridging visa prevents the recipient’s compulsory removal from Australia –
Well, that is true, but only if they are in detention. If they are not in detention, on some other ground, it does not do that:
If the appellants’ requests to the Minister to exercise his discretions under s 351 succeeded and they were each granted a further visa, their permission to remain at liberty in Australia continued.
That is also true, but that depends upon an exercise of the statutory power by the Minister. It is not referable to the conduct of the officers in question here:
If their requests failed, then –
they have to be removed. Well, also true, but that is the effect of the existing provisions of the Act, not intercepted by anything that the officers were doing because there had not been – we are not in the context of a statutory decision, as was the case in M61. Then at 45, her Honour says:
it would not matter whether individuals making a request . . . held a bridging visa –
of this kind:
or under some other provision . . . The fact remains that the grant of an effective bridging visa permits the visa holder to remain at liberty in Australia until such time as the request is finalised –
That appears to posit that the duration of the bridging visa is connected to the completion of the ministerial assessment process under the guidelines, but that is not so. The duration of a bridging visa of this kind is specified in a provision I do not need to take your Honours to but you have it in the materials. It is in volume 2, tab 6, and it is specified in 050.517 as ending on – a bridging visa of this subclass ends:
on a date specified by the Minister –
So, the Minister each time granting a bridging visa of this kind fixes the end date. It is not like the categories of bridging visas I am sure your Honours have all seen that operates until the end of litigation, for example, which is a common form, or until the person leaves the country if they take steps reasonably to do so.
So, in very short compass, my submissions about the purported effect on legal rights are this. For DCM20, she had made four requests for intervention. Your Honours see that in the core appeal book – you do not need to go there – on page 24 in the first instance judge’s reasons at 8 to 9. As a person who had made four requests for intervention, she could never have satisfied, at the time this assessment was underway in relation to the fourth request, subsection (6)(c)(i) because it says, you do not satisfy the criteria if you have made a previous request. So, in my submission, on no view did this criteria have anything to do with DCM20. If she was going to get a bridging visa, it was not on that ground.
As to Davis, the position is more complicated because Davis was held to have only made one request. There was a debate in the Full Court below about whether there was a repeat request or not and Mr Wood will address your Honours in relation to that to some extent. But, even in relation to Davis, as I have just submitted, the duration – one, he did not hold a bridging visa of this kind. He was not in detention while the assessment process was underway and even if he had held a bridging visa of this kind, its duration would not have linked to the assessment processes of the officers under guidelines.
So, there is, in our submission, just no nexus at all between the assessment process that the officers were engaged in and the liberty of Mr Davis or DCM20. In both cases, their liberty depended upon statutory decisions to grant bridging visas, depending on whether or not the criteria were met which were, obviously, reviewable. If there was to be a debate about the validity or otherwise of a removal of liberty, it would depend upon a quite different statutory decision to be made under a different part of the Act. So, really, this whole question of a liberty effect has echoes of M61 but misleading echoes because that analysis depended upon a factual circumstance not present here of applicants in detention whose detention were prolonged by the assessment process.
GORDON J: I understood that you have taken M61 – can I just ask you about S10, in particular at 69 to 70 where it talks, in general terms, about, I think, language which talks about the interests being described as “entry” and then “continued presence in Australia”. Does that affect this analysis?
MR DONAGHUE: Does it affect the analysis? Your Honour, it is ‑ ‑ ‑
GORDON J: In a sense – at the moment you have talked about legal interests – legal rights – being affected ‑ ‑ ‑
MR DONAGHUE: Yes.
GORDON J: ‑ ‑ ‑ and you have talked about duty to consider and then you have dealt with a bridging visa. You have explained that M61 has a detention aspect ‑ ‑ ‑
MR DONAGHUE: Yes.
GORDON J: ‑ ‑ ‑ and, therefore, it is distinguishable. All I am asking is whether or not the analysis at 69 to 70 of S10 which is talking about, as I understand it, interest being ‑ ‑ ‑
MR DONAGHUE: An interest, yes.
GORDON J: ‑ ‑ ‑ the continued – sorry, “entry and continued presence in Australia”.
MR DONAGHUE: Yes. All I am seeking to do by this argument that I am advancing is to establish that there was no effect on the legal rights. I am not attacking the idea that there was an interest there because my fundamental proposition is that an interest is not enough to attract judicial review.
GORDON J: Thank you.
MR DONAGHUE: Can I say, finally, before handing to Mr Wood, something about relief. Your Honours will note, if you take up the proposed amended application in either of the matters that – and, perhaps, I will use DCM20 – notwithstanding the significant focus in argument on the validity of the guidelines with the exception of the new paragraph proposed this morning – which I will come to – the relief sought is, actually, all about the conduct of the officers; what is called in DCM20 “the administrative assessment”.
Your Honours might recall when I took your Honours to Quin yesterday, Justice Brennan saying common law judicial review – which is what this case involves – does not give relief in relation to preparatory action. There, his Honour was speaking even of the Minister giving advice to the Governor. It only grants of relief in relation to preliminary activities where they have to be taken into account by the decision‑maker which, as M61 and all the cases following make very clear, is not the case with the ministerial assessment.
So, one is here dealing with a list of claims for relief in a judicial review action in relation to preliminary conduct for which those remedies are quite ill‑suited. It is therefore not surprising that one finds, when one looks at what the Court said about the limits of relief, that it does not fit at all well with an application with respect to something like the administrative assessments in question here.
If I could start with certiorari, which is sought in paragraph 2, and ask your Honours to go to one authority – I will not detain your Honours for long – Hot Holdings v Creasy, volume 4, tab 20 of the joint book, (1996) 185 CLR 149 – in the joint judgment of Chief Justice Brennan and Justices Gaudron and Gummow. If your Honours turn to 159 of the report, about halfway down there is a reference to Ainsworth – a quote from the judgment of four members of the Court in Ainsworth – where their Honours said:
“The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.”
And at the end of the paragraph:
if an act or decision has no legal effect, there is nothing to quash.
Then, over two pages onto 161, their Honours are discussing Justice Stephen’s analysis in the case of ACTU‑Solo Enterprises, which was about an attempt to quash a report of a Royal Commission. You see the block quote in the middle of that page where Justice Stephen said, end of the third line down:
The reported conclusions of the Commission no doubt serve to inform the mind of government and may in consequence to a greater or lesser extent be instrumental in shaping the course of future legislative or executive initiatives, but they neither directly determine, or of their own force affect, rights –
So, certiorari was unavailable. One might apply that same language to the kind of activity that the assessment officer, at a much more modest level, was undertaking. Finally, on 165, a few pages further forward, their Honours say, having quoted from a decision of Justice Thomas in the Queensland Supreme Court:
“A line needs to be drawn between the ‘purely recommendatory’ decisions and those which are regarded as having a sufficient effect upon the rights of an individual. In the former category there may fall Royal Commissions and recommendations which are not conditions precedent to the making of a final decision and which the final decision‑making body may ignore.” (Emphasis added.)
If the final decision‑making body is not obliged to take the recommendations into account, then certiorari will not lie.
In my submission, it is plain that certiorari will not lie to quash the actions of an assessment officer in this case on Ainsworth, Hot Holdings and the authorities to which they refer, because it cannot be said that the Minister must take into account the recommendations. Indeed M61, I think at paragraph 77, says the contrary.
As to mandamus, could I ask your Honours to turn to M61, which is volume 5, tab 28, (2010) 243 CLR 319. There is a brief discussion of remedies at the end of that judgment. Starting on page 358, paragraph 99, under the heading “What relief may be granted?” and the Court says, because the sections in question – like 351 – state that:
the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power. That the Minister decided to consider exercising the powers and . . . directed the making of Refugee Status Assessments . . . does not entail that, if the process of inquiry miscarried, the Minister can be compelled again to consider exercising the power.
Then their Honours say:
the unavailability of mandamus entails that there is no utility in granting certiorari –
So, that is another reason why certiorari will not issue. So that, even though, as M61 found, there was a flaw in the departmental assessment process, it did not mean that mandamus could issue because there was no obligation to do it again, and that also meant that certiorari would not issue to quash the recommendation, as paragraph 100 records. So, no certiorari, no mandamus, in my submission.
What then of the claim for declaratory relief? If one focuses first on – if I can separate out the declarations about the assessment from the declaration about the guidelines. I will deal with them differently. Starting with the declaration about the assessment, it was recognised in paragraph 101 of M61 in the second last sentence:
In many cases, the conclusion that certiorari and mandamus do not lie would require the further conclusion that no declaration of right should be made.
That is the same caution Justice Brennan expressed in Quin at 31 – which I noted as I went through that case – saying that where you do not have substantive relief often that will mean no declaratory relief should follow, but not invariably so.
Your Honour the Chief Justice, when a member of the Federal Court in a case called the Minister for Immigration v Ozmanian – which I will not take your Honours to, given the time, but it is (1996) 71 FCR 1 – was considering a situation, again, about non-compellable powers – section 417 – where the only relief potentially available was a declaration. And in your Honour’s judgment, with which Justice Sackville agreed, you said at paragraph 31 that left only the possibility that:
a bare declaration not declaratory of any present right, and amounting only to an acknowledgment of past infringement of . . . procedural fairness –
And your Honour went on to explain that in the circumstances, it was not appropriate for declaratory relief to issue because it was not declaratory of right and it did not, therefore, produce any foreseeable consequence. Here, if we are correct that the conduct in question had no effect on legal rights, then it is very difficult, in my submission, to see what the content of that declaration would be in relation to those matters. I think I ‑ ‑ ‑
GORDON J: Can I just ask whether you proposed to address the balance of 103 in M61 about declaratory relief? It may be that – sorry to interrupt – it may be that it is addressed to your question of standing. I do not know.
MR DONAGHUE: In M61, in a context where there had been – the debate was about whether there was a foreseeable consequence for the parties in that context. And the Court was satisfied on the facts of that case that there was a sufficient consequence, bearing in mind that these plaintiffs had been detained while the process was undertaken, and that there were questions in play about performance of Australia’s international obligations, which you see at the end of 103 that are not present here.
If your Honours think that a declaratory relief in the kind sought in paragraphs 2 and 3 would involve a declaration of right – which I dispute – and would have foreseeable consequences, then I accept that that relief could be granted. But, in my submission, in this case, unlike M61, we are not in a territory where there is any effect on rights, particularly for the liberty reasons that I have already touched on.
GAGELER J: Are you suggesting that either of the declarations sought would have no foreseeable consequences?
MR DONAGHUE: Their consequences would entirely depend on what the Minister, not as a matter of law, but as a matter of practical reality chose to ‑ ‑ ‑
GAGELER J: Good administration.
MR DONAGHUE: ‑ ‑ ‑ do with them and ‑ ‑ ‑
GORDON J: Sorry, I just missed what you just then said, Mr Solicitor.
MR DONAGHUE: Sorry, your Honour. I let my voice drop. The consequences would depend entirely on how the Minister chose to respond to the declaration. It might depend – the foreseeable consequence might depend on why your Honours came to that conclusion, but my more fundamental point is not – and I think I have perhaps blurred this is in the way that I made the submission that I did. My submission is not so much dependent upon absence of foreseeable consequences, but that the declaration is supposed to be a declaration of right, and in the absence of right it is not an appropriate remedy, and that I think is ‑ ‑ ‑
GORDON J: But if you ‑ ‑ ‑
MR DONAGHUE: ‑ ‑ ‑ more how your Honour viewed it in Ozmanian, as I understand it.
GORDON J: Just so I am clear, in response to Justice Gageler’s question, it is the position that you can identify foreseeable consequences or you accept there would be foreseeable consequences if you are wrong about the right submission?
MR DONAGHUE: Your Honour, I do not have instructions to say – and one would not expect me to have instructions to say – that the Minister would not pay attention to the Court’s declaration. So, I accept that it would possibly have foreseeable consequences. I cannot ‑ ‑ ‑
GAGELER J: And if the declaration going to ground 2 were a declaration of invalidity, would you say that that is not a declaration of right?
MR DONAGHUE: Yes.
GAGELER J: You would say that?
MR DONAGHUE: Yes, I would say that. And in support of that proposition – I was just coming to that declaration. It is connected, I think, with the question your Honour asked me about standing, because if the position be that what was happening here does not have a legal effect on rights, then the declaration in the context of the invalidity – and that is not actually, interestingly, what our friends seek. They seek a declaration of inconsistency or repugnancy, which seems perhaps to be a slightly coy way of seeking what they are really after, which is a declaration of invalidity.
There is a difficulty, in our submission, with invalidating something that is without legal effect and, in our submission, that difficulty was well captured by the Full Court in the last case I want to mention to your Honours – which we gave to your Honours overnight in response to this issue having emerged. So, I apologise for its late provision, but it is a new issue and a new claim for relief. It is Victoria v Construction, Forestry, Mining and Energy Union, which is a Full Federal Court case, (2013) 218 FCR 172. Your Honours can see the issue in Justice Kenny’s judgment at paragraphs 1 and 2. So:
These appeals arose out of the adoption by the State of Victoria of the Victorian Code of Practice for the Building and Construction Industry . . . and the “Implementation Guidelines –
both of which – as you see recorded in paragraph 2 – were policy documents, not issued pursuant to any authorising statute, which, quoting from four lines up from the bottom of the page:
were . . . formulated to govern or affect the power of the Executive to make building and construction contracts.
These were guidelines to inform the way Victorian executive power was exercised. The CFMEU sought, as you see at paragraphs 13 and 14, declarations that the code and the implementation guidelines were “invalid and of no effect”, argued that they:
lacked a valid foundation in executive power and should, therefore, be declared to be of no force and effect.
And all three members of the Full Court held that that declaration was not a declaration of right that could properly be made. So, at 15, you see can grant the declaration only if:
has identified some “right, whether legal, equitable or statutory, to base . . . the order.
I will not go through the analysis, but at paragraph 21 her Honour Justice Kenny concludes:
As Buchanan and Griffiths JJ hold, and as the primary judge also concludes, the . . . challenge to the adoption and promulgation of the Code and Guidelines is not –
subject to the grant of declaratory relief:
This is because the Code and the Guidelines did not themselves create any rights, duties, liabilities or obligations; hence none such fall for the Court’s determination. There is therefore no justiciable controversy to found declaratory relief.
Exactly the same, in my submission, can be said here. If that be right then, in my submission, your Honours would either refuse leave to amend to introduce the claim for relief that is legally infirm in that way or grant leave and dismiss the claim on that basis. But either way, in our submission, no declaration of the kind sought should be made.
If the Court pleases, I would ask Mr Wood to complete the Commonwealth’s submissions.
KIEFEL CJ: Yes, Mr Wood.
MR WOOD: Thank you, your Honour. If it pleases the Court, I thought I would commence by orienting what I am proposing to address by reference to the oral outline, which has changed somewhat the way that the controversy has played out over the past day or so. So, if I can take the Court to the oral outline, my submissions will substantially address from paragraph 10 through to paragraph 16. It had originally been contemplated that I would deal with paragraph 17, which you might regard as essentially the substance of the argument about ground 2 – originally just with Mr Davis, now proposed to be for DCM20 – but I think the way that things have travelled, the Solicitor‑General has dealt with the substance of the argument, so what I will be left to deal with in that respect – so that is ground 2 and proposed ground 2 – is merely the jurisdictional wrinkle that we have raised about 476A of the Migration Act, and I will deal with that last. That is in paragraph 16.
So, otherwise, the first two topics I will address – the first topic, starting from paragraph 10, is essentially ground 1 of the appeal in both matters, and then 14 and 15 is boiling down to the proposition on the premise that the officers’ conduct was non‑statutory; whether or not there is a basis upon which this Court can discern a standard of reasonableness and then seek to enforce that by the grant of relief; then the second topic at 14 and 15, if the issues of principle fall against us, whether or not unreasonableness by whatever standard is identified has been demonstrated on the facts of the case.
Can I start, then, with the first point. The first point, again, locating it in ground 1 of the appeals, starts from the premise that it was lawful for the Minister to issue the guidelines. So, I well appreciate there has been much debate about that. That is ground 2, of which I am addressing only a part. So, I assume that it was lawful for the Minister to issue the guidelines. The first question that arises, which had been a focus of our notice of contention, was whether or not there is a constraint of reasonableness that the Court is able to ascertain and enforce on what would have been, on that premise, the non‑statutory conduct of the Department – non‑prerogative – in assisting the Minister.
I wish to focus my submission on the particular nature of executive power under section 61 and consistent with section 64 that is at play here which amounts to, in substance, activity of an officer in a Department of State in response to instructions from a Minister. At root, the appellant’s argument appears to boil down to the proposition that, in this part of their case, the officers in the two cases did not respond conformably to the instructions of the Minister and that the Court can ascertain that and grant relief in that respect.
In short, our submission in this part of our case is that the Court would have no such role but that rather, in accordance with the constitutional structure – subject to legislation of the kind that has been enacted in the Public Service Act, which I will mention obliquely through Comcare v Banerji – the supervision of the adequacy of the performance of a task of an officer of the kind at play here, responsive to an instruction of a Minister, that supervision is by the Minister who, in turn, is responsible to the Parliament. By that way, the performance of the task of the officer responding to the instruction of the Minister through the scheme of responsible and representative government embedded in the Constitution enjoys the confidence of the people. It is not the role of this Court to itself – independently of the role of the Minister in appraising the performance of his or her officers – to erect standards and, indeed, to grant relief on the basis that the standards that the Court has sought to ascertain have not been complied with.
Can I clear away two possible and – hopefully, fairly briefly – two possible punitive sources of the constraint of reasonableness that, we say, just cannot operate. The first is the Act itself and the second are the guidelines themselves. On the premise that I have sought to identify, which is that the – on the assumption that the guidelines are lawful, in a broad sense – the ground 2 issue – and, therefore, the conduct of the officers was non‑statutory – it was not performance, if you like, invalidly of a delegated function that the Minister could not have delegated. It is merely an assistance‑type role – the proposition is that the Act, on that premise, cannot possibly be the source of the constraint of reasonableness that is suggested by our friends because the premise is that the conduct of the officers is not under the Act and, therefore, the Act cannot be the location from which one gleans a constraint of reasonableness.
Can I seek to pick up, in that respect, a question that I think Justice Edelman asked of the Solicitor‑General, if I understood the question correctly. If it were the case that the Minister had, in substance, delegated the power or function of making a procedural decision, then obviously, as with any process of delegation, a constraint that would apply to the Minister, including in the making of a procedural decision – so let us posit a constraint of reasonableness for the sake of argument on the Minister in making a procedural decision – if the Minister could delegate that function then, obviously, that constraint would travel to the delegate, but the Minister cannot delegate that function. If the Minister has purported to do so, then we are in the territory of ground 2 that the Solicitor‑General has largely addressed.
So, again, if we come back to the premise that the guidelines are lawful, that there has not been a delegation of the power to make a procedural decision, then one cannot move anywhere meaningful from a discussion about whether or not unreasonableness is a constraint bearing upon the exercise of the procedural decision‑making power of the Minister to a question about whether or not there is a constraint of reasonableness on the conduct of the officers because the officers on that premise are not performing any statutory task, so the Act provides no assistance.
Can I take the Court in that respect to Jabbour, which in some respects is an index case in a way of the more recent jurisprudence of the Federal Court bearing on the reviewability of conduct of the officers in this space, notwithstanding that of course we have had cases in the past like Raikua ‑ ‑ ‑
EDELMAN J: Just before you do, Mr Wood, do I take it the premise of this submission, being that this is an exercise by officers of non‑statutory executive power, is one that you accept is ultimately sourced in either section 61 or 64 or both of the Constitution?
MR WOOD: Yes.
EDELMAN J: Which is it, and also are those sections just instantiating the type of power that had previously existed, or power that a polity would have by virtue of its nature as a polity, or are those sections positively creating the non‑statutory executive power?
MR WOOD: I think the kind of power at issue here can be distinguished from entering a contract or that kind – so person‑type powers that a polity subject to Williams and Pape‑type limits that might be said to be possessed by a polity. But, clearly, the Constitution in section 64 contemplates that. Ministers will be assisted by Departments of State and the Minister will administer that Department of State.
I would, I think, locate the source of what the officers were doing in section 61, but the force of the argument that I will be addressing shortly is that the constitutional structure vests responsibility in the Executive, being the Minister, ultimately responsible to the Parliament for the adequacy, in short, of an officer in a Department of State’s performance of their task of responding to a ministerial instruction.
It may well be that there are – I think some of the interveners have made the point that the case has to be addressed at a level that is not too abstract – that there might be different issues that arise where you have got activity of officers that are not intramural between the Department and the Minister which is of the kind at issue here. But the proposition I am advancing is that if the Minister who administers the Department is responsible to the Parliament and the Court does not have a role to intervene and adjudicate upon the adequacy of the performance by the officer under section 61.
EDELMAN J: Is that a submission that is to the effect that the accountability processes would exclude an implication that might otherwise exist of reasonableness in the exercise of a power that one sees broadly across all areas of the law and not necessarily excluded by the Constitution?
MR WOOD: That is right. And one of the difficulties which I will seek to come to as efficiently as I can, is identifying what is the content. We know from the cases about ascertaining reasonableness as a limit on the scope of statutory power, that it is context and value-sensitive and so forth; it can be expanded, contracted; it might be as little as good faith, it might be nothing at all, depending on the circumstances. But that whole discourse is in the context of the availability of a court to adjudicate upon the limit. Parliament having set the limit on the exercise of the executive power that affects rights or interests, the Court can ascertain what the limit has been set by Parliament and adjudicate upon it.
But what must lie under our friend’s argument on ground 1 is that there a limit, perhaps autonomously at common law that is picked up by section 61 that the Court can explicate across the wide and diverse fields of non‑statutory, non‑prerogative executive power, identify what the limits are and effectively adjudicate upon them, cutting across the fact that section 64 confers on Ministers the function of administering the Department, including ascertaining whether or not officers are following instructions in the manner that the Minister wanted them to do.
But if I can come back to the Act, to try to cast that aside if I can, relatively briefly, as a possible source – ultimate source of the constraint of reasonableness here, I have made the proposition that it cannot be on the premise that the officers are engaging in non‑statutory conduct. If I can take the Court to Jabbour again. It is volume 7 of the authorities, tab 42. And it is his Honour Justice Robertson’s judgment in Jabbour that was assumed to be correct on many occasions by a single justice of the Federal Court and upon which our friends have expressly placed reliance and support of their ground 1 argument. I will not take the Court to it, but at paragraph 26, his Honour recognised and acknowledged the common position of the parties in that case, but the officer’s conduct for assessing the request was:
anterior to any personal procedural decision by the Minister –
and therefore:
purely non‑statutory –
which is my starting premise as well, noting that there is a debate about that. Then, if I can come to paragraph 79 – that is where the analysis of his Honour starts. At paragraph 80, and 81 in particular, what his Honour purports to do is to reject an argument attributed to the Minister – the substance of which is summarised – that is the Minister’s argument – at paragraph 51. The argument attributed to the Minister that his Honour purports to reject is the proposition that, because procedural fairness is being ousted under the Act, that legal unreasonableness has been ousted, too. That is the point that his Honour makes, essentially, at paragraph 81.
It is probably not best use of time to descend to the question about whether or not the argument that his Honour was purporting to deal with here was the argument that was made before him, but the point I would simply make here is that one cannot – whether or not reasonableness has or has not been displaced, the Court, having concluded in S10 that procedural fairness has, under the Act, whether or not reasonableness has been displaced or modified in the exercise by the Minister under the act of a procedural power or a substantive power says nothing about whether reasonableness is constraint on the non‑statutory action of an officer anterior to the procedural decision of the minister.
GAGELER J: Can I just ask about that – just about the statutory position. Is the substantive position of the Minister under section 351(1) conditioned by a requirement for legal reasonableness? That is part one of the question and part two of the question is the same in respect of the procedural decision under subsection (7). What is the answer? Is there an answer in the authorities and do you have an answer?
MR WOOD: I am uncertain as to whether there is an answer in the authorities. It does not, I do not think, directly arise in this case. What I would say is that the exercise by the Minister of a substantive power, favourably, under 351, turns on a formation of an opinion about the public interest in respect of which one might think – depending on what one’s conception of reasonableness is – that that is an opinion that must be formed reasonably and so forth. That would not be a large leap. So, in the Minister deciding whether he or she is satisfied it is in the public interest to grant a visa, it would not be a large leap to think that that state of mind, or not, would have to be formed reasonably.
EDELMAN J: Although, reasonableness would be subject to what is said in SZVFW that the context involves such a broad evaluative criterion that it is a very, very loose use of reasonableness.
MR WOOD: Absolutely, absolutely. That is one of the – I think your Honour discussed this, perhaps in a different context, in ABT17, at 124 and 125. So, sometimes, the Federal Court, when looking at cases about reasonableness, has distinguished between procedural discretions, with which courts have a degree of familiarity, and substantive decisions like character cancellation or the like, with which the Court is less familiar. It does not mean that reasonableness does not exist as a constrain – I do not think the authorities say – but I think it would mean that the line is different – certainly in terms of the line of the Court’s preparedness to impugn the formation of a state of opinion.
That, indeed, is contextually one of the – if I can use that premise to come back to a point I was making earlier – but that is one of the difficulties with our friends’ attempt to locate, in the common law – as a sort of autonomous limit on the exercise of non‑statutory, non‑prerogative power – a constraint that, I think, the higher form of their argument is then recognised in the descriptive form of section 61 because it is monolithic. It does not account for – it is insensitive to – the diverse kinds of powers that are exercised, including the exercise of non‑statutory executive power. We are looking at a particular kind here which is, effectively, response by officer in a Department of State to instructions of the Minister.
GAGELER J: And the other part of my question concerned whether the Minister’s procedural power is conditioned by a requirement for legal reasonableness.
MR WOOD: I do not think I can meaningfully add more to what Dr Donaghue said about that in response, I think to questions with Justice Edelman as well, where I think Dr Donaghue submitted the proposition that it might be hard to see the reasonableness as a constraint if that were to, by implication, result in a consequence that there would be circumstances where it would be unreasonable for the Minister not to consider.
Now, I acknowledge that Justice Edelman I think put a point to the Solicitor‑General about the reasonableness constraint, if it exists, might bite in the reasoning process. I acknowledge that proposition. I do not think I have got more way up to that debate. I do not see that it arises directly here, but perhaps your Honour does.
GAGELER J: I will just tell you why I think it is sort of important in the background. Because if there were a requirement for legal reasonableness in the Minister’s decision whether or not to consider the exercise on the substantive power – that is the subsection (7) procedural decision – then the factors or at least the circumstances that would be taken into account in assessing reasonableness of the Minister’s decision would include the departmental processes leading to the departmental brief to the Minister, would they not? You would assessed the reasonableness of the Minister’s decision by reference to the material put before the Minister as gathered by the Department.
MR WOOD: You might, depending on the particular nature of the complaint and what was said to be unreasonable if there was some attack on the reasoning process said to transcend some limit of reasonableness, then that might form part of the context but we do not – we certainly do not have here a – and this might come back to the Raikua discussion that was being had with the Solicitor-General just before he had sat down. But if one was to – we do not have a challenge to the reasonableness of any conduct of the Minister here to the extent that the guidelines themselves – which is not really my part of the case, but to the extent of the guidelines themselves are said to be bad, they are said to be bad because they delegate, rather than because – as I think the Solicitor‑General discussed – there is anything in the nature of the content.
GORDON J: That is because the challenge here is to the reasonableness of the officers’ conduct.
MR WOOD: Yes, but ‑ ‑ ‑
GORDON J: So, the question being asked here is at a different level to the Ministerial level.
MR WOOD: Yes, which is why, for this part of my submission to be coherent, it has to be understood as operating on the premise that the officers’ conduct is non‑statutory. So, it is not like a Raikua style. The Minister has made a decision operating upon – so, the Minister has made a decision that operates upon the state of mind of the officer that might raise a different issue. I hope that assists.
The second aspect of Jabbour that I wanted to address – and I am moving on now to the notion that the guidelines themselves might be the source of a – or somehow themselves populate this notional constraint of reasonableness. Perhaps our friend’s submissions, in this respect as well, also seek to pick up on analysis of Justice Robertson in Jabbour. If I can take your Honours, still looking at that case, to paragraph 89. So, at 89, his Honour held that:
departure from non‑statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision‑maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not –
in truth as ascertained by the Court:
the policy but something else –
Now, that may be so, but cases like Gray that are identified by his Honour there are readily distinguishable from the present because the way to analyse those cases is – so Gray was a case about deportation power under section 55 of the Migration Act as it then stood and the question was whether or not – in part, the question was whether or not the Tribunal in purporting to apply a policy in making a statutory decision in exercise of its review function under section 55, was transcending a limit that could be ascertained by the Act. So, you might say the limit is to act rationally. If the limit imposed by the Act by implication is to act rationally, then one can readily understand how a misapplication of a policy – albeit the policy is not itself sourced in the Act – might manifest the unreasonableness.
But we are not in that world on a premises I have erected here. The guidelines cannot themselves be the source of a constraint. Fundamentally that is so here because the guidelines are not law. They cannot be law because the Minister, as a member of the Executive with no delegated legislative function and certainly not exercising the power under 499, has no power to make law. We refer to the cases cited by New South Wales at paragraph 28 of their submissions in that respect.
Can I turn then to – if not the Act, if not the guidelines, as the source of the constraint, we come back to the common law. Here, I just want to briefly substantiate the proposition that I foreshadowed earlier, which is that the Court just has no role in adjudicating upon the performance by officers in the Department of their responsiveness or otherwise to instructions by a Minister. Certainly, there are no structural features – textual or structural features of the Constitution that our friends identified.
This case is certainly far away from Williams or Pape where particular features of the Constitution were said to provide the basis upon which there were limits on the power of the Executive to spend appropriated funds absent a legislative grant of power. We make the point positively that structural features of the Constitution strongly undermine the suggestion that there is a common law constraint of reasonableness on Executive activity of the kind at issue that the Court can adjudicate on.
Can I take the Court in that respect to Comcare v Banerji, volume 3, tab 15 of the materials. I am going to take the Court to the reasons of Justice Gageler for no more reason than the explication of the constitutional provisions and the history informing the role of the public service is lengthy, but I see it as harmonious with other reasons given by the Court and I will refer to the paragraphs of the other reasons given by the other justices of the Court as well. But if I could take the Court within the reasons of Justice Gageler to paragraph 56 and following, where your Honour, having noted that the Public Service Act is enacted under section 51(xxxvi) and (xxxix) of the Constitution, says in the final line of 56:
it is necessary first to understand the peculiar constitutional position of Ministers.
The result of the provisions that your Honour refers to in 58 – so principally being section 64 that your Honour refers to there – and the role of the Minister to administer departments, but also the provisions referred to in 59 that in summary give effect to principles of representative and responsible government. Your Honour says in the final line of 59:
The result is “that the actual government of the [Commonwealth] is conducted by officers who enjoy the confidence of the people” –
If I can jump then to – and, of course, at paragraph 60, your Honour refers to the collective and individual responsibility that Ministers hold to the Parliament and, therefore, to people.
GORDON J: Do you accept there when it is talking to officers, it is talking about officers in the context of Ministers under 61 and 64 for the purposes of the Constitution?
MR WOOD: Sorry, your Honour, can ‑ ‑ ‑
GORDON J: Do you accept that the word “officers” is, in effect, referring to the Ministers? They are talking about Ministers in that context, at the end of 59?
MR WOOD: No, your Honour, I had – so Comcare v Banerji being concerned with the conduct of an officer in the State and the question was about the validity of the Public Service Act. I read this part, not continuing through it, to ensure that the officers governed by the Public Service Act ultimately are doing work for which the Ministers are responsible under section 64. The Ministers are then themselves responsible, individually and collectively, to the Parliament, which ensures that the ‑ ‑ ‑
GORDON J: I think we are speaking about the same thing. That is what the final line of 59 is directed to, just that proposition for the moment.
MR WOOD: I can see what your Honour is – it may be that – it is certainly in a direct sense.
GORDON J: That is all I am asking.
MR WOOD: Yes, thank you.
GAGELER J: It is a quote from Sir Samuel Griffith, I think.
GORDON J: Exactly.
MR WOOD: If I can take the Court then to paragraph 65, your Honour then makes the point that:
The overall constitutional context within which the PSA is enacted –
is of:
responsibility of Ministers –
and:
political accountability of Ministers –
At 67, your Honour makes the point that:
like its predecessors, the PSA “serves public and constitutional purposes as well as those of employment” –
and it does so:
against the background of the –
system of “political accountability” that your Honour has already adverted to. Then at 68 and following, there is a discussion of the mechanics by which a responsibility is discharged. Then we come back at paragraph 70 to what your Honour calls the:
long tradition of professionalism and political neutrality of officers . . . of State –
which is consistent with the objects of the Public Service Act that your Honours see in paragraph 75, is what section 3(a) of the Public Service Act gives “contemporary expression to”. Moving then to paragraph 77, your Honour records that the Public Service Act specifies, amongst other things, “APS Values”. The Court will see in the middle of paragraph 77 there is a variety of values that are described, one of which is that the public service is, quote:
responsive to the Government in providing frank, honest . . . advice and in implementing the Government’s policies and programs” –
Honesty being a concept that evokes notions of good faith, which are said by our friends to be at a bare minima of what they say is the constraint of reasonableness sourced in the common law, given effect in section 61.
The appellants, in their argument, appear to accommodate the possibility that Parliament could modify, expand, or contract – and so forth – the constraint of reasonableness that they posit, which rather poses the question – in the context of a Public Service Act that articulates values like that the public service provides honest, timely advice, and in implementing government policies and program, which would be apt to include here the guidelines – that on our friends’ own account, it would seem to raise the spectre of the question: why could not then a person, individual or corporate, with an interest in a matter being considered by the Department – using the examples that the Solicitor General gave at the very outset of his oral address yesterday – bring a proceeding in the Court saying, in evaluating whether or not the Department should be moved to this location, take a lease out here, or buy pencils from this or that company, that the Department had not provided honest advice in advising the Minister which company to go for, which lease to take out, or not advising the Minister at all.
Yet, it would be a large proposition to accept that a litigant could ask the Court to make a declaration to the effect that in light of the expression by Parliament of what would appear to be their case, a reasonable style value on the exercise of the public service function, that a litigant could come to a court to seek that relief. The answer, we say, is that should not be accepted in the absence of affectation of rights by the Executive, which would obviously be apt to enliven the possibility of judicial review, the Public Service Act, including by the expression of values of this kind, but also by the articulation and a great degree of detail of the architecture by which the performance of the officers in departments is assessed, and who assesses it – there being no direct role for the courts themselves.
We say that under the constitutional structure with which the Public Service Act is consistent that it is the Minister who has the responsibility for issuing the instructions, for ascertaining – if it is wished – the extent to which the public service has been responsive to those instructions, and the Minister then bears that responsibility to the Parliament, and ultimately to the people, and the Court does not have a role – absent affectation of rights – to insert itself in that scheme.
I will mention other paragraphs of the judgment which I submit are harmonious with those I have taken the Court to. So, within the plurality, I would emphasise paragraphs 31, 34, and 42. In the reasons of Justice Gordon, 143 through to 155, and in the reasons of Justice Edelman, 202 through to 204.
The second – and I will make this point more briefly because I have largely addressed it in the run‑up – the second conceptual difficulty with our friends’ attempt to locate the source of a constraint of reasonableness in the common law is the monolithic problem. This is not a submission that our friends are seeking to constitutionalise the constraint of reasonableness in the sense that one interprets the words of section 61 – interprets the words of section 61 like one might interpret a statute, as subject to an implied constraint of reasonableness. If that was the argument, it would have significant problems because it would have the consequence that every exercise of power described by and contemplated by section 61 would be subject to the constraint of reasonableness which give rise to anomalies of the kind that South Australia in particular discuss.
I think the better form of our friends’ argument is that the common law itself autonomously is the source of the constraint. That is described by section 61, but it still fails to account for the context‑sensitive nature of the process of identification of particular limits on particular powers which this Court has explored in a subtle way in the context of statutory powers, and it is unclear how our friends could account for those context‑sensitive features of reasonableness and to avoid this monolithic concept that the common law says there is a constraint of reasonableness. Of what? What precisely is the constraint? And how is that variant ‑ ‑ ‑
EDELMAN J: Even on your submissions, you would accept, I take it, that the common law would step in to impose a requirement of reasonableness but at the next stage. So, at the stage of, say, the exercise of power to enter into a contract or the exercise of power to affect somebody’s rights.
MR WOOD: If there is an executive prerogative power that affects rights, that is a sort of large question I do not propose to address. But, certainly, if you have got affectation of rights because you have got a statute that authorises that, then we have the common law which provides the means by which the courts have developed an interpretive aid.
EDELMAN J: I am talking about the stage after, for example, entering into a contract, then one looks at the contract and you can get the reasonableness from that. The common law provides the reasonableness from that source.
MR WOOD: That is right.
EDELMAN J: Your point is anterior to that. There is no free‑standing reasonableness contract.
MR WOOD: Exactly. That is the monolithic problem I am trying to address. If I can move, then to the second part – and I will be relatively brief on this – on the question of whether unreasonableness is being demonstrated on the facts. I wanted to emphasise just a couple of ‑ ‑ ‑
GORDON J: Is this outline 14 and 15? Is that where we are?
MR WOOD: Yes, that is right. So, there are a couple of features of the Full Court’s judgment about which no flaw has been identified by my friends that essentially boil down to two propositions. That the nature of the criteria that the officers are asked to apply – the exceptional circumstances criteria – are highly evaluative. So, for example, it is not just a change in circumstances, it is significant change giving rise to compelling reasons or whatever the criteria might be. There is a string of evaluative criteria, both in the clause that deals with matters that might be referred, as well as in the repeat request. And it is evaluative criteria of that kind, a criteria that in a comparable context, albeit a statutory one, this Court in plaintiff M64, in a passage reproduced in paragraph 348 of the judgment, suggests that it is – I think the language of virtually insuperable is used – a virtually insuperable barrier to demonstrating true unreasonableness in the application of highly evaluative criteria of that kind. Not impossible, but difficult.
The second layer of difficulty that is imposed, which is not reflected, really, in our friends’ submissions on this point, but which is also emanating from M64, is the absence of a duty to give reasons. And so the point that the Court made in M64 – looking at similarly evaluative criteria, where there was likewise no obligation to give reasons – that it is particularly hard to impugn as unreasonable or irrational an evaluative conclusion formed but, on the basis of reasoning – not mentioned in a document, not styled as a comprehensive statement of reasons, therefore not considered – that it might be easier to say that there is something mentioned in the document, an assessment that positively evinces irrationality. That is a different question, but difficult to draw by implication a proposition that something has not been considered because it has not been mentioned.
Can I very briefly, given the time, address what I think are the high points of our friends’ complaints about the reasonableness of the conduct. With respect to Davis first, the proposition is advanced that the relationship between the appellant and Ms Giddins, and the impact on Ms Giddins, had not been assessed. We say that the Full Court’s reasoning – the ratio of which is really embodied in the reasoning of Justice Griffiths, with whom other members of the Court – with the possible exception of Justice Charlesworth – agreed on this point.
The analysis of Justice Griffiths is located principally at paragraphs 100 to 101 and 111 of the judgment. Justice Kenny agreed at paragraph 3, Justice Besanko at paragraph 54, Justice Mortimer at paragraph 118(c) – boils down to the proposition that notwithstanding that it may not have been considered the first time around, in substance, the relationship between the appellant and Ms Giddins was demonstrably considered, but not demonstrated not to have been considered applying the criteria and the guidelines a second time around.
That consideration is manifested – or is evidenced – at page 64 of the book of further materials for Davis, where in the penultimate paragraph the same assessor – so the Assistant Director – expressly observed the evidence about the close relationship, particularly with a person who is identified as a:
73 year old Australian citizen –
but it is not demonstrated that somehow in that process – notwithstanding it was done through the lens of a repeat request – was not directly assessed by the Assistant Director at that stage as not being apt to enliven the “unique or exceptional circumstances” to which the guidelines are addressed.
With respect to the length of residence in Australia, again, I think Mr Horan, in his own submissions, foreshadowed what the answer to that might be. If one looks at page 51, again, at the book of further materials, the assessment here – looking, for example, at the “decision to purchase property”, which is the third point of that page – the proposition is made that:
the decision to purchase property in 2017/2018 when he did not have an entitlement to remain in Australia permanently –
at a point in time when he did know that, because he had a 457 visa that was granted to him after the interview at the airport where – there was a surprise that he had at that point, but the property was purchased after that point – was his own personal choice. That does not demonstrate any irrationality. Likewise, the final dot point before it moves on to “Employment, skills, and qualifications” does not demonstrate any irrationality because one reads the reference there to:
the investment and business ties to Australia, obtained in the full knowledge that he did not have the right to remain in Australia permanently –
You have to read that in context:
are the ordinary results of his latter periods spent in Australia on temporary work and bridging visas –
So, the assessor is locating that aspect of the analysis in the period in time that Mr Davis knew that he did not have a right to be here permanently. And insofar as the complaint boils down to the proposition that the assessment does not discuss other features of the request that had been made, it fails to confront the M64 problem, which is that this did not purport to be, and was not required to be, a comprehensive statement of reasons and so fails for substantially the same reason as M64 failed.
With respect to DCM20 – again, quite briefly, if I can – it is creative to suggest that the problem was that DCM20 had proposed that there was a new circumstance; the circumstance being the proposal that she be granted a three‑month visa. That might well have been the particular proposal made, but the circumstance that was said to justify that in the fourth request that was made, which starts at page 42 at the book of further materials, was that DCM20 had recently become the full‑time carer of her mother, or her parents. But that was expressly picked up in the assessment which appears at page 7 of the core appeal book in the third paragraph appearing on that page.
As for risks in Fiji – if I can just briefly respond to that for addressing the final jurisdictional argument – the substance of our friends’ argument in this respect is that, well, DCM20 did not advance a claim to be owed protection obligations. For a start, that premise is not right. So, if one goes then to the request, which starts at page 42 of the book of further materials for DCM20, we move then to page 43. The background was said as follows – the second paragraph in heading “Background”:
the main impetus for the Applicant’s family departure from Fiji –
many years ago:
was . . . military uprisings and a violently hostile environment from the native Fijian majority towards the Indian minority –
It is recorded that the appellant did not, at that time, get a protection visa. That was refused back in 1995. So that is the background. Then we get to page 47 of the book, and under the heading, halfway down the page:
f)the Applicant’s particular circumstances . . . provide a sound basis for believing that there is a significant threat to their personal security –
The proposition is made that the appellant has personal characteristics – being a single female of Indian descent, without male support on the hypothesis that she would go back – which would create the “significant threat” to her personal security and so forth, arising from being Indian minority in a native Fijian majority in that country. So, if we turn that page then to 48, the conclusion is, now with these change of circumstances – which is, the appellant will be going back as a single woman without family support – she is:
more vulnerable than ever to violent abuse, including sexual assault.
We turn then to page 56. A statutory declaration provided by the father who, in paragraph 5 – this is part of the package of material that is provided to the Minister or the Department – specifically requested that the daughter be allowed:
to apply for one of the many visas she is likely to be eligible for, including a Carer Visa and a Protection Visa –
So, we say that it is no great leap to think that, in substance, DCM20 was advancing claims apt to enliven at least an implied claim to evoke Australia’s protection obligations. Even if we are wrong about that, the point is that the guidelines – I am now looking within the same book, at page 63 – the guidelines there in the final dot point on that page ask the Department to consider whether or not:
a person’s particular circumstances . . . provide a sound basis for believing that there is a significant threat to their personal security –
and so forth:
but the mistreatment does not meet the criteria for the grant of any type of protection visa.
That does not depend on the characterisation given by the person who is requesting intervention. That depends on the formation of the judgment by the officer. The apparent purpose being to subdivide requests under 351 guidelines from the 48B guidelines which might be applied to a person in her circumstances, being someone who has been rejected for a protection visa but could make a new one if a dispensing power is exercised under section 48A.
I note the time. I only have now the jurisdictional point which should probably take about five minutes.
KIEFEL CJ: Why do you not continue with it then?
MR WOOD: Thank you, your Honour. So, the jurisdiction point, your Honours, arises in this way. The Federal Court, by operation of section 476A of the Act, has a confined ambit of jurisdiction in relation to matters that are described as being in relation to a migration decision. So, the form of section 476A(1) specifically says, despite any other law, including 39B the Judiciary Act – but evidently not confined to that, so it would also carve out, for example, section 32 of the Federal Court Act concerned with associated jurisdiction – so despite any other law, the Federal Court:
has . . . original jurisdiction in relation to migration decisions –
only in the categories set out in (a),(b), (c) or (d), none of which apply here. Both appellants commenced proceedings in the original jurisdiction of the Federal Court under 39B. They could only have commenced the proceedings in the Federal Court on the premise that they were not proceedings in relation to migration decisions. Because, if they were, the proceedings could not have been commenced in the Federal Court in the first place, which is part of the explanation for why the Solicitor‑General said from the outset, these proceedings were commenced on the basis that the officers’ conduct was not statutory, was not under the Migration Act, otherwise they would have had to have commenced in a different court.
What happened was an attempt to add ground 2. I am sorry, we know that the expression in relation to the migration decision is to be read consistently with cases like Bodruddaza as essentially adverting to cases seeking public law remedies in relation to a migration decision. “Migration decision”, as defined in section 5 to include:
(a)a privative clause decision; or
(b)a purported privative clause decision –
If I can take the court to the definition of “purported privative clause decision” in section 5E of the Act:
purported privative clause decision means a decision purportedly made . . . under this Act . . . that would be a privative clause decision if there were not –
relevantly:
(b)an excess of jurisdiction –
You then go to the definition of “privative clause decision” in section 474 of the Act. That definition in subsection (2):
means the decision of an administrative character . . . under this Act –
but you have to read that, of course, with the 5E definition of the “purported”, so lacking in jurisdiction. So, purportedly under the Act, but affected by jurisdictional error when you add the purported limb. “Decision” is:
other than a decision referred in subsection (4) or (5).
Then “decision” is given an expanded definition in subparagraph (3) to include, for example, in paragraph (c) there:
(c)granting . . . an authority –
or:
(g)doing or refusing to do any other act or thing –
So, what we say is that if the import of our friends’ ground 2 – which they were refused leave below – is that the vice with the issuing of the guidelines is that the guidelines purported to confer power in officers in the Department to make a procedural decision – in other words, whether the Minister was going to consider – the complaint then, really, is located in the limit in subsection (3) of 351 which says that the Minister’s power – including procedural and substantive limbs – is non‑delegable.
So, although the appellants seek their relief in abstract form as to the invalidity of the guidelines, the underlying basis of that is, they say, the guidelines were issued by the Minister – so that falls within granting an authority or doing or refusing to do any other act or thing – the premise of the argument is that the Minister was purporting to give to officers the power to decide whether he should consider whether a procedural decision should be made. The vice then is a contravention of 351(3). We are then dealing, on those premises, with a purported privative clause decision. But that is a decision expressly – sorry – that does not fall within any of the four categories about which the Federal Court is given a limited jurisdiction.
GAGELER J: Mr Wood, under section 474(2), the privative clause decision has to be under the Act. Nobody is suggesting that the Minister’s issuing of the guidelines was under the Act.
MR WOOD: The difficulty that raises, your Honour, is that you then have to read that with the concept of a purported privative clause.
GAGELER J: You purport to do it under the Act. None of the officers, in carrying out the Minister’s instructions, are purporting to act under the Act.
MR WOOD: But if the argument is that what the Minister was purporting to do was to delegate the power to make a procedural decision to the Department – if that is the complaint – then what the Minister would be doing is something which the Act says cannot be done. So, a purported delegation by the Minister would be a purported exercise of power that lacks jurisdictional authority because of 351(3). So, you get this difficulty of, in a sense, any conduct of a Minister or officer under the Migration Act that is not authorised by the Migration Act is, in a sense – could be said to be not under the Act because it is excluded, or it represents a transgression of a limit that the Act supplies.
GAGELER J: “Under this Act” is referring to the source of power, and when you get to a purported decision it is the purported source of power. I just do not see how we are in that ballpark yet.
GORDON J: It is not dissimilar to what I put yesterday. It is about whether or not there has been, in effect, an engagement of the power. It is not about delegation. That is the way the argument is put, not dissimilar to the analysis in Plaintiff S157.
MR WOOD: Well, the argument is put both in the notice of appeal below and that above in terms of a complaint about delegation but I take, Justice Gageler, your proposition to be that the Minister has not in the terms in which the guidelines are expressed to purport to say that the power on which the Minister is relying in issuing the guidelines is the Act.
GAGELER J: Well, yes, and it goes a little further than that because the way in which issue has been joined between the parties everyone accepts that this is either a permissible, valid exercise of non‑statutory power by the Minister and by those departmental officers acting on the Minister’s instructions or not.
MR WOOD: Can I attempt in my final point to navigate the issue by a different route. So, if we take the Davis core appeal book and we go to the amended notice of appeal, if the complaint is that setting aside the role of the Minister that in order 3(b) ‑ ‑ ‑
KIEFEL CJ: Where are you taking us to in the core appeal book?
MR WOOD: Yes, so it is the proposed amended notice of appeal for Mr Davis.
GORDON J: That was handed up this morning?
MR WOOD: Yes, I was trying to use the latest articulation of the claim. The declaration sought at 3(b)(i) is a declaration:
that the Third Respondent –
so that is the Assistant Director:
erred in law in deciding . . . that the Applicant’s request for ministerial intervention did not meet the guidelines –
Insofar as that kind of relief is sought to be obtained by operation of ground 2, ground 2 expressed the complaint about the non‑delegability of the power of the Minister. So, if the point is being made that what the delegate in substance has done is to purport to decide to consider, the only known – the only source of that power in our legal environment here is the Act, and the Act says that that power rests exclusively with the Minister. So, if the characterisation of what the officer is doing is purporting to make the procedural decision, then one way of seeing the complaint in substance is a complaint in relation to a purported privative clause decision.
EDELMAN J: In other words, this submission is a submission that this whole proceeding ought to have been brought on this basis under section 75(v)?
MR WOOD: That is right, and that could readily have been done. So, I mean, in Abebe the Court recognised that you can have Parliament making provision, limiting the jurisdiction of particular courts so a whole controversy cannot be decided in one court. Here, we raised these complaints below. What the appellants could have done is to commence proceedings, for example – this is not the only way – in the Circuit Court and have that then transferred up where under then 476(1)(a) of the Migration Act the Federal Court would have had jurisdiction on both bases.
GORDON J: Can I just ask you about ground 2 – and I notice the time. I had understood ground 2 to be put not just on this delegability purported basis. So, this is just dealing with that aspect of ground 2 – so one limb of it?
MR WOOD: Well, I think it depends on how you characterise – and I know that – and suggest that there are different ways to slice and dice it, but if on a proper characterisation, the true vice is delegation ‑ ‑ ‑
GORDON J: If it is not, then this complaint falls away?
MR WOOD: If it is not, depending on how otherwise it is characterised, then it may be difficult to advance the same argument.
GORDON J: Thank you.
MR WOOD: Those are my submissions.
KIEFEL CJ: Yes, thank you. The Court adjourns until 2.15 pm.
AT 12.54 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2:15 PM:
KIEFEL CJ: Solicitor‑General for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, in our written submissions, we, essentially, dealt only with the issue that was raised by the notice of contention and in the light of the oral argument that has taken place with the parties, we are content to rely just on those written submissions. We did put in an outline of oral argument but it, essentially, tracks those submissions, in any event. So, your Honours, will see that – which I assume your Honours have at the moment. So, unless there is anything else, if your Honours please.
KIEFEL CJ: Yes, thank you, Mr Solicitor. Solicitor‑General for the State of South Australia.
MR WAIT: Thank you, your Honour.
KIEFEL CJ: They are all ready.
MR WAIT: Thank you. If the Court pleases, I intend to commence at point 6 of the outline of oral argument that has been provided. South Australia submits that if this Court accepts the appellant’s submission that non‑statutory capacities of the Commonwealth are conditioned by legal reasonableness, then such a limitation should be understood to be sourced, not in the common law but, instead, in the terms of the particular grant of executive authority. The proposition that the Executive may condition the grant of non‑statutory capacities finds some support in some English authorities, and in particular, the decision of R v Criminal InjuriesCompensation Board; Ex parte Lain [1967] 2 QB 864 – that is found at JBA 8, tab 52.
I will take Court very briefly to Lain’s Case but I just note – without taking the Court to the terms of the particular instrument – that the terms of the document were debated in Parliament. They were highly legalistic and they purported in their very terms to govern the circumstances by which the Board was authorised to make ex gratia payments.
The amenability of the Criminal Injuries Compensation Board to judicial review in Lain’s Case did not arise from limitations imposed by the common law. Instead, amenability arose because the executive instrument itself established – sorry, the executive instrument that established the Board also defined the legal limits of its authority. Now, if I could go to the judgment of Lord Diplock, which is at – if I can go firstly just in passing to page 884 of the report, Lord Diplock’s judgment commences at page 883. At page 884, as I say, in passing and for reasons I will come back to, Lord Diplock says, at about point C:
The earlier history of the writ of certiorari shows that it was issued to courts whose authority was derived from the prerogative, from Royal Charter, from franchise or custom as well as from Act of Parliament.
Now, that is a diversion for immediate purposes because I really want to go on to page 888 which contains the nub of Lord Diplock’s reasoning. At point E on page 888 Lord Diplock says:
The moneys which the board is authorised to distribute are held by the board in a fiduciary capacity and “The Scheme” defines and limits the board’s authority to make any payment out of them to anyone.
Then skipping a few lines, just under point F:
Any payment made by the board to any person contrary to those instructions, that is, without a prior determination that an offer of that sum to the payee is justified in accordance with the principles laid down in “The Scheme”, would constitute a breach of duty by the board as agents of the Crown –
Now, there is some further support for the discernment of limitations on the exercise of non‑statutory capacities in the decision of CCSU, and I do not need to take the Court to CCSU but, of course, as your Honours will all be well aware, that decision builds very much upon the foundation that is laid in Lain’s Case. Again, the terms of the authority that were conferred on the Minister relevant to the CCSU case were highly formalistic and they took the form of an Order in Council.
It is important to note that there were two distinct arguments that were advanced in the CCSU Case and those – I will just give your Honours the page references without taking your Honours there – the case is at JBA 7, tab 39 and the page references to the arguments presented are at 383, 385 and 391. The first argument that was put was that the order made by the Minister could be judged by the terms of the limitations set down in the executive instrument itself. That argument – which I might call a “narrow” argument – was accepted by Lord Fraser with whom Lord Brightman agreed.
The second argument – which Lord Fraser and Lord Brightman did not determine – went further and that argument was that, putting questions of justiciability to one side, non‑statutory executive powers are amenable to review on grounds that have been developed impliedly to control the exercise of statutory powers. That broader argument – the broader position – was accepted by Lord Scarman, Lord Diplock and Lord Roskill. In South Australia’s submission, it is arguable that it is the acceptance of that broader position that has led the United Kingdom public law jurisprudence down a different path to that which has been followed by Australian courts.
The CCSU decision, as your Honour will be well aware, has received some attention at an intermediate appellate level in Australia, most recently in the case of L v South Australia (2017) 129 SASR 180, the reason that the narrow reasoning of Lord Fraser was preferred over the broader reasoning of Lords Scarman, Diplock and Roskill by the Full Court of the South Australian Supreme Court at paragraph 134 of the reasons of Chief Justice Kourakis with Justices Parker and Doyle agreeing at paragraphs 198 and 199.
The narrower source of the obligation to act legally reasonably, namely as a condition, express or implied, from the terms of the grant of executive power or executive authority should be preferred to an acceptance of a freestanding common law principle. This approach promotes congruence with the matter by which jurisdictional limits on the grants of statutory power are discerned, and it ensures that the grounds of review are tethered to the text, context and purpose of any particular grant.
Commonly, the grant of non-statutory capacities will have features that can be contrasted importantly to the granting of statutory powers. At paragraph 11 of the hand‑up I summarise those differences, which are elaborated in greater detail in the written submissions. Many of these features are factors that have been discussed at some length in argument already, but of course, first and foremost, the facultative nature of the non‑statutory capacities can be contrasted to the unilateral alteration of legal rights, or about, generally, by statute.
EDELMAN J: What if the grant of the executive authority derives from nothing more than the Constitution, or section 61 or 64?
MR WAIT: Your Honour, we make no specific submission about the nature of executive power under section 61 and 64. Our submissions really are directed at a more general level – noting that, of course, the Commonwealth has made submissions on sections 61 and 64.
EDELMAN J: That is really just then to say that we have an instrument, whether it be an executive instrument or a legislative instrument, one construes the instrument and generally there would be an implication of reasonableness as a condition of conferral within the instrument.
MR WAIT: And so, your Honour, the point that we seek to make at paragraph 11 is that the construction of a grant of executive power, and an instrument that confers executive power, will proceed in a very different manner to the way in which the grant of a statutory power would proceed. The reason for the important differences that we seek to note in paragraph 11 and in greater detail in our submission, is that there is a greater need to constrain the grant of a statutory power because of its coercive unilateral effect on rights and interests. That can be contrasted with the exercise of an executive capacity which may have some effect on interests and the nature and extent of that effect on interests may become relevant to ‑ ‑ ‑
EDELMAN J: But that is not really a submission about the instrument itself, that is just about the context or the nature of the power. So, it is just a question of, whatever the instrument may be, one condition or one circumstance for determining any implication of reasonableness or the extent of the implication is the nature of the power to be exercised and the circumstances in which it will be exercised.
MR WAIT: Yes, your Honour, that is really as far as we seek to take that point. Secondly, the grant of an executive capacity – again, in contrast to statutory powers – is very often cast in very general terms and statutory powers, of course, are generally cast in much more narrow and proscriptive terms. Thirdly, the conferral of non‑statutory capacities is generally subject to ministerial and, ultimately, parliamentary oversight.
The Commonwealth, of course, has relied on some of these features to reject the contention that the non‑statutory capacities can ever be conditioned by legal unreasonableness. We certainly do not speak against that proposition but we say that if that is not accepted, then these same features speak to the reason why it will only be in very rare circumstances – of which both Lain’s Case and CCSU present rare instances – that it will be appropriate to conclude that the Executive has intended to self‑impose a legally justiciable limitation upon its own agents.
GORDON J: Is that any more to say you need to look to the source and identify where it is coming from, its subject matter and purpose?
MR WAIT: Your Honour, at a general level, that is what we are saying, but we are then saying, if one is analysing that source, one must drill down – and the risk, therefore, with a common law approach is that it distracts attention from that focus upon the source ‑ ‑ ‑
GORDON J: Thank you.
MR WAIT: ‑ ‑ ‑ detailed focus on the source. The inherent unlikelihood that the Executive will intend to fetter its non‑statutory capacity of its own officers finds reflection in a footnote in Justice Brennan’s judgment in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, JBA 3, tab 9. At page 585, in a very well‑known passage, at the top of the page, Justice Brennan refers to the general position that:
The conduct of a person or body of persons acting without colour of statutory authority is not amenable to judicial review –
His Honour then footnotes a reference to CCSU and Ex parte Lain, and he picks up the language that I paused upon earlier from Lord Diplock’s judgment in Lain where he notes an exception that might arise where the:
authority derived from the prerogative, a Royal Charter, franchise or custom –
Now, what we ‑ ‑ ‑
GORDON J: Is that, in a sense, what his Honour is saying is that the source in England is different because their constitutional structure is different?
MR WAIT: Your Honour, he is certainly not saying – it is qualified, it is a perhaps, so he is certainly not saying there is an exception.
GORDON J: But raising it as an issue?
MR WAIT: Yes, and I think his Honour is saying if there is an exception it would be so narrowly tailored as the type of rare exception where you might have a Royal Charter with very clear boundaries defining executive power. So, although we do not say that if the Executive can impose limitations on its own executive capacities exercised by its agents, then they must fall within those examples cited by Justice Brennan. We do rely on that footnote in Justice Brennan’s reasoning to support our view that any
exception to the general principle that amenability arises from statutory construction ought to be very limited and rarely defined.
Unless the Court has any questions, they are our submissions.
KIEFEL CJ: Thank you, Mr Solicitor. The Solicitor‑General for Victoria.
MS ORR: If the Court pleases, although we filed a brief outline of oral submissions, we are now content to rely on our written submissions. May it please the Court.
KIEFEL CJ: Thank you, Ms Solicitor. Reply, Mr Horan?
MR HORAN: Yes, your Honour. I wish to make some points in reply, both on the broad case advanced by the respondents in relation to the scope of judicial review, and some points in relation to the specific instance arising in the present context of the dispensing powers under the Migration Act.
Dealing with the first, the availability of judicial review, we submit that, contrary to the submissions put by the Solicitor-General, judicial review is not defined or limited by reference to the exercise of a power. The Commonwealth submissions reimagine or recast the concept of judicial review as concerned solely with the exercise of power and adopts a specific definition of power that is confined to the unilateral ability to alter legal rights and obligations.
We say that is the wrong starting point. There is no need to seek to define judicial review as so‑called, let alone to do so by importing definitions and concepts developed in the context of the AD(JR) Act which is concerned solely with a statutory concept of decisions under an enactment. Rather, it is necessary to begin with the jurisdiction that is invoked and exercised, namely the jurisdiction conferred on this Court by section 75(v), on the Federal Court by section 39B of the Judiciary Act, and on the State Supreme Courts as part of their inherent supervisory jurisdiction.
Now, that jurisdiction is not limited by reference to any limited definition or concept of judicial review, rather, if there is a matter – including a matter or controversy involving an assertion that a public official is acting without or beyond their authority or otherwise unlawfully – then, subject to rules of standing, this can be the subject of judicial enforcement. Concepts from cases dealing with the AD(JR) Act definition, we submit with respect, are not relevant. Amongst other things – as Justice Robertson noted in Jabbour, at paragraph 92 – the AD(JR) Act expressly provides that rights conferred by that Act:
are in addition to, and not in derogation of, any other rights that the person has to seek –
judicial review. The second point is that there is no reason why that jurisdiction cannot include the judicial declaration and enforcement of legal limits on non‑statutory capacities of public officials or agencies. Those limits can be sourced either from statute, from the Constitution or, we submit, from the common law. The Commonwealth has already accepted in argument the possibility of statutory limitations on executive capacities, and we do not think anything is said against the enforcement of limits imposed by the Constitution, such as those that might arise from this Court’s judgment in Pape and Williams.
We say it also extends to the enforcement of limits derived from the common law. The most obvious of these is procedural fairness obligations, and while the Commonwealth accepts that the interests falling short of legal rights can attract procedural fairness, strangely, it confines this concession to statutory powers, but there are numerous cases which accept that procedural fairness can apply to the performance of non‑statutory executive capacities. Observations – such as that made in SZSSJ, at paragraph 75 – that, procedural fairness is an implied condition on statutory powers, does not – or should not – be taken to mean that procedural fairness can only arise as a result of statutory intention and, therefore, can never apply to non‑statutory powers.
There have been a line of cases dealing with inquiries and reports commissioned by a Minister for a range of purposes, but which may include publication or dissemination to the general public. If one has a situation like that where that investigation and report might contain adverse findings affecting the reputation of an individual, then it is accepted that that might give rise to procedural fairness obligations even though it is a non‑statutory capacity that is being exercised.
Now that – in part, the decision that has been referred to my learned friends at L v South Australia at tab 43 is an example of that, but there is also – your Honours will see a useful discussion of the relevant authorities in the case of Apache Northwest Pty Ltd v Agostini, joint book of authorities tab 37, volume 7, on whether or not procedural fairness can be attracted in relation to a non-statutory investigation and report commissioned by a Minister. In that case, it was into the causes of a series of explosions at a gas processing plant.
Now, the relevant paragraphs there, after a discussion of authorities at paragraphs 16 to 35, Justices Wheeler and Newnes held that while there was no duty of procedural fairness in the particular case due to the limited dissemination of the report, their Honours concluded:
However, if the purpose of the report was in order to inform not just the Minister, but the public at large, then, in our view, a duty of procedural fairness would have been owed.
Similarly, Justice Buss at paragraph 183 concluded that procedural fairness was in fact owed on the facts of that case. Before leaving that point, in relation to common law limitations, we would also refer to the judgment of your Honour Justice Gageler in Smethurst v The Commissioner of Police, and several judgments in that case look at the jurisdiction under section 75(5) to grant injunctions as a public law remedy.
Now, in that case, your Honour Justice Gageler, at paragraphs 111 to 112, contemplated that the holder, as an aspect of the rule of law guaranteed by section 75(5):
the holder of a constitutional or statutory office is bound by the common law when doing anything in an official capacity except to the extent that non-compliance with the common law is specifically authorised or excused by statute.
In that context, “constitutional officer”, we submit, was intended to encompass any officer of the Commonwealth, including civil servants under section 67 of the Constitution and the Public Service Act. So, we say that that is an example of where there can be jurisdiction to grant relief as a public law remedy against the holder of a constitutional or statutory office if based on non‑compliance with some common law right or limitation.
Essentially, that is really the essential question: can a right or limit be sourced from the common law in a case such as the present? The limited conception of judicial review advanced by the Commonwealth would place Australia out of step with most other common law jurisdictions in which it has been accepted, or at least left open, that there is scope for judicial review of what has been called the general administrative powers of the Crown. So, not simply the true prerogatives, in the Blackstone sense, but the residual powers.
Finally, on the general point, we say that the condition of legal reasonableness that we seek to rely upon, derived from the common law, is not monolithic and is capable of being discerned and applied in a manner that takes into account the context of the particular executive power function or capacity that is being exercised.
Now, if I could turn to the specific context and the points raised in submissions dealing with the Act and the guidelines. Firstly, in relation to the relationship between the concepts of public interest for the purposes of section 351(1) and (7) and the criteria of unique and exceptional circumstances under the guidelines, our submission is that, while the latter does not exhaust the ambit of public interest, it is clearly a central aspect of the public interest, to which the dispensing powers are directed. So, it is not a different evaluative function as the Commonwealth suggests and, as I earlier submitted, this is candidly revealed in the opening paragraph of section 9 of the 2009 guidelines.
One can posit, if the Department does assess a case as satisfying or meeting the unique and exceptional circumstances, it would be inconceivable that the submission to the Minister based on that assessment would be not to consider the exercise of the powers. So, that dichotomy between the submission and the schedule, it was generally a dichotomy whereby the former would be positive recommendations for at least, consideration, if not exercise of the power, and the schedule ones would be ones that, for whatever reason, the Department had assessed should not be considered, and the Minister then had to circle one of the two options.
Now, in that regard, the second point I would make is that the personal procedural decision is whether or not to consider a request. That language “or not” appears in SZSSJ at paragraph 47. So, the Minister can make a personal procedural decision not to consider and can seek the assistance from his department to make such a decision.
In some of the previous decisions, there can be some confusion arise in relation to what the personal procedural decision at stage one is, but that is only because there are often statements, such as, at paragraphs 43 and 53 of SZSSJ, that there is no obligation to make a personal procedural decision. But one has to then look in every case where that is stated. The sentence goes on and says to make:
a personal procedural decision to consider –
the exercise of the powers. I do not think it said expressly in SZSSJ whether or not there is any obligation to make a procedural decision whether or not to exercise the powers.
The appellants – our submission does not go so far as to suggest that there is a duty to make a procedural decision either to consider or not to consider because we acknowledge that the Minister might be able to do nothing in relation to requests that have been received by him or her, but the Minister cannot be deprived, and cannot deprive himself or herself, of the opportunity to make such a decision, which is perhaps ‑ to put in other language – the liberty or power recognised by subsection (7).
The next point was just a brief point in relation to the Commonwealth’s reliance on Quin, the earlier passage from Justice Brennan’s judgment at page 26 regarding provision of advice by a Minister to the Governor. Now, again, we say too much is sought to be made of that passage. The present case is not concerned with a preliminary step to the exercise of a power.
The decision by the departmental officer under the current guidelines is dispositive. It is not the provision of advice or recommendations to a Minister who then must or may make a decision so that where a request is finalised without referral, there is no subsequent exercise of power that is amenable to judicial review as was contemplated by Justice Brennan in Quin. The second misuse of that passage is that the reference to what Justice Brennan called the:
major intrusion by the court into the workings of the Executive Government –
was not some broad concern about judicial review in relation to capacities performed by public servers. It was specifically in relation to the proposition that the courts could review advice from a Minister to the vice‑regal representative. Now, again, and relatedly, the respondents submitted that the case was not run below on the basis that there was a decision made under the statute.
I think this is perhaps water under the bridge, but your Honours should be aware that there was an argument run below that the guidelines were a decision in advance to consider the exercise of the dispensing power, if a case was assessed as meeting the guidelines. That appears in the Full Court’s judgment. It is substantively considered by Justice Charlesworth at paragraphs 235 to 244, and 265, and is also referred to in other judgments at paragraphs 47, 54, and 114(a).
The submission was actually based directly on a submission made by my learned friend the Solicitor-General for the Commonwealth, in Plaintiff S10, which was said to be accepted by the Court at paragraph 91:
that the adoption of the guidelines by the Minister represents decisions by the Minister –
We were granted below leave to run the argument, but it was not accepted by the Court at paragraph 265. That was primarily because the guidelines state, as my learned friend has pointed out, that referral is for possible consideration. So, we accept that we cannot say that there is a decision in advance to consider along the lines of Plaintiff M61 where the instruction or announcement that was made was essentially that the Minister would consider cases that were assessed favourably.
So, here, we accept that it was found below that the guidelines do not evidence any advanced personal procedural decision to consider a request, but Justice Charlesworth at paragraph 266 to 267, after dealing with our argument, nevertheless referred to what she called the:
potential for the Minister to exercise his non-compellable discretion as to whether or not to consider it.
That potential is analogous, I would submit, to the liberty or power which has been referred to in argument yesterday and today. And also, Justice Charlesworth seemed to treat the guidelines as a conditional procedural decision in advance not to consider requests that did not meet the criteria – and that appears at 266 and 284.
So, we say that, in relation to screened‑out cases, it can be said that there was an advanced procedural decision but, it is one not to consider and, up until now, I think the approach has been taken that, because it was a negative procedural decision, it was not under the statute. But we would respectfully revisit that assumption as maybe being an incorrect concession or assumption, that in fact it may be that a procedural decision not to consider is equally able to be treated as a statutory decision.
We were aware below, in raising that, that we might have shot ourselves in the foot by kicking ourselves out of the Federal Court. That was put against us in argument and we, frankly, conceded that, in seeking to run this advance decision argument, we might end up being met with an argument that the whole case – as initiated in the Federal Court – was outside jurisdiction and we would have to start again elsewhere.
EDELMAN J: In the Circuit Court.
MR HORAN: But, we would do so – either in the Federal Circuit Court or in this Court – with the considerable benefit of then not having to make out an implied condition of legal reasonableness on a non‑statutory power, we would be in the orthodox and well‑accepted territory of rationality in a statutory decision. So, that was why the argument was run and it was not accepted and we not have reagitated it but it has peripheral relevance to some of the issues that have been raised in argument, and it certainly not true to say – as my learned friend did – that this case was never run at any stage of the proceeding on the basis ‑ ‑ ‑
EDELMAN J: Do you maintain that concession in this Court?
MR HORAN: The concession that it is not a statutory decision?
EDELMAN J: That if the proper construction of 351 is that it involves a liberty to consider that has been exercised by the officials, then you are caught by the privative clause.
MR HORAN: In ground 1, we may be. It may have other relevance for ground 2, which would not raise jurisdictional issues.
STEWARD J: Do you want to put an argument about why you would not be caught by 474 in those circumstances?
MR HORAN: Well, 474, your Honour, is not really the problem because that does not apply to decisions that are ‑ ‑ ‑
STEWARD J: Or 476A?
MR HORAN: It is 476 that is the problem, and we would say that in relation to ground 2, for the reasons that Justice Mortimer articulated, it is simply not a decision under the Act.
STEWARD J: Ground 1?
MR HORAN: For ground 1, I think if we had revived this possibility that it is in fact a statutory decision in advance, then I think we probably maintain the position, as we accepted below, that it could attract section 476.
STEWARD J: Are you going to tell us if it would or would not?
MR HORAN: We would submit that it would not, but I can see the force of the argument as to why it would.
STEWARD J: All right.
KIEFEL CJ: Well, you either have to put the argument or not.
MR HORAN: Well, your Honour, our primary submission in this Court is based on this being a non‑statutory power.
GORDON J: Do you seek to move from that submission? That is the first question.
MR HORAN: Not as a primary submission, but if ‑ ‑ ‑
GORDON J: Do you now seek to run it as an alternative submission?
MR HORAN: As an alternative. If the guidelines are looked at as an advance decision ‑ ‑ ‑
KIEFEL CJ: Well, I do not think that puts the first respondent and the Attorney‑General in a very good position.
MR HORAN: Yes. Well, it may be that we are ‑ ‑ ‑
KIEFEL CJ: I would have to hear from the Solicitor‑General, but my first impression is they have not had an opportunity to consider this as a clear ground that you are running.
MR HORAN: I think what I would accept, your Honour, is that we have not agitated that issue on the appeal, so we do not ‑ ‑ ‑
KIEFEL CJ: Yes.
MR HORAN: We have not put as a submission on this appeal that it is an advance decision not to consider that would then make it a statutory decision. We did put in our written submissions that it was an advance decision not to consider that was given effect, but we did not – we have not put that on the basis that that makes it a statutory decision.
KIEFEL CJ: Yes.
MR HORAN: So, I think our concession stands, your Honour, if the Court pleases.
EDELMAN J: I suppose your argument, to pick up what the Solicitor‑General called the subtlety of it, as I understand it, is that you accept that it may be the case that some of the provisions or sections in the 2009 directions could be seen, at least to the extent that they operate in a mechanical way, as operating as an advance procedural decision not to consider. But that others, to the extent that they involve large evaluative questions, are not that advance procedural decision, that they are leaving it to the official to make the decision.
MR HORAN: Yes.
EDELMAN J: The question is, in those circumstances, is that, the leaving of those large questions, leaving that liberty to officials which would otherwise have been exercised by the Minister, on your submission, caught by a privative clause, either 474 or 476.
MR HORAN: We say no, not. Because our attack on that aspect, the leaving the consideration of the public interest criteria to officials, we do not necessarily characterise that as being the Minister’s decision, as Justice Lindgren did appear to do in Raikua. We say the vice of that is that it confers a function or gives rise to a function that is constrained by reasonableness and it gives rise to our ground 2, which is that it is transferred or it is inconsistent with the personal nature of the powers conferred on the Minister by the section.
EDELMAN J: But, in relation to ground 2, whether you call it an inconsistency ground or a purported but failed delegation ground, however you might describe it, why is that not a purported decision within the privative clause?
MR HORAN: I think because we do not characterise it as a decision under section 351, it is an attempt to hive off the powers in section 351, which is repugnant to the section. But we do not challenge it as itself being a decision under the section. And – I was about to say, “ironically”, but perhaps it is not the – we actually do not take issue ‑ ‑ ‑
KIEFEL CJ: Well, to do so is actually accepting that there is a major disconnect between the 2009 guidelines and what happened there, and what occurs under the 2016 guidelines.
MR HORAN: There is a major difference, yes. And that – precisely, your Honour ‑ ‑ ‑
KIEFEL CJ: In fact, in a way, although it is interesting in relation to S10 and SZSSJ, about what section 7 in the 2009 guidelines means, it is a distraction from what occurs under the 2016 guidelines.
MR HORAN: Yes, and I was about to make that very point, because – and I had to say, “ironically”, but I am not quite sure it is the right qualifier – that we do not actually challenge, in this case, the section 7 inappropriate to assess, although if that be characterised as an advance decision not to consider in those objective categories, we do not take issue with that. We take issue with the extension of non-referral to the unique or exceptional.
So, it is precisely that difference that we seize on. In relation to repeat requests, there is, potentially, one can say that there is not a starker difference when one looks at the position for non‑referral of repeat requests.
KIEFEL CJ: This is under section 10.2?
MR HORAN: Yes – as compared to the previous guidelines which also, I think at least on one construction, contemplate non‑referral. Although, we just note in passing without going to them, the first dot point in section 7 of the 2009 guidelines says it is inappropriate for further assessment. It identifies repeat requests – not all repeat requests – but a sub‑category of repeat requests, which seems to have assumed that not all repeat requests fall within section 7.
The balance – assuming that repeat requests are not referred – which seems to be consistent with the facts in some of the cases that were before the Court in S10 – we say the major difference is that repeat requests now are dealt with in a completely different context and with a completely different effect. This is really the point that your Honour Justice Gordon, identified in that previously a request was only a repeat request, as defined, where an earlier request had been personally considered by the Minister and the guideline used that in defining a repeat request.
Quite tellingly, the current guidelines changed the definition of repeat request so that it now covers if an earlier request has been previously received. So, that can apply even if no request has ever been brought to the Minister’s attention. I have only got four very short points to conclude, your Honour.
EDELMAN J: Just one final point, just on this. Assuming that everything you say is correct and that one can take what might be a usual approach of verbal calisthenics to a purported privative clause decision, would one do so in circumstances where it is not a true privative clause in the sense of knocking someone out of all of the courts subject to constitutional limits but where it is really just shifting the authority from one court to another?
MR HORAN: Well, that is similar in some respects to the issues this Court dealt with in relation to the regional processing litigation where the relevant bar was ultimately construed – I cannot remember the section number now, 494B, AB – where that was construed as a limitations defence. Now, I am not sure that section 476 – I think the way that is drafted is in contrast. I think it, without going to it, is expressed as a limitation on jurisdiction.
So, it is one of these, sometimes annoying, consequences of the Parliament’s attempt to carve up the jurisdiction and allocate it between different courts. It is sort of the antithesis of cross‑vesting where we have these sterile abstract arguments at the outset about whether something should be commenced in one court or the other. Even as my learned friend said, what we should have commenced in the Federal Circuit Court not to run it there but so it could be immediately referred up, and sometimes it is said, well, you should go to the High Court Registry and commence there, not so you can run it there, so you can immediately have it referred – remitted down.
I mean, one cannot second‑guess why Parliament thinks it is efficient to divide up jurisdiction in that way, but we are stuck with the consequences of that allocation, and I think, as I said before, on the primary case that we have run in this Court, we say that those limits have – do not arise in relation to the issues that we now run on the appeal.
I was just going to deal briefly with the reliance on Raikua. The three points I would make there are that, firstly, it dealt with the previous form of the guidelines. Secondly, it assumed that there as a decision made by the Minister, and, thirdly, at paragraph 63, it is quite telling and potentially important that the condition of the Minister’s intention that was described by Justice Lindgren there included the words:
provided the officer in good faith formed the view that –
there were no:
“unique” or “exceptional circumstances” –
So, in making this decision and saying, do not refer anything back to me unless there are “unique or exceptional circumstances” in your judgment, it was contemplated that that was conditioned upon the officer, in good faith, forming the view. So, there is some foothold there for some constraint on the scope of the function or power that is conferred and trusted to the officer. And that echoes what the Full Court said in Bedlington v Chong – also a case cited in that footnote in SZSSJ upon which my learned friend places such heavy reliance. In Bedlington v Chong at pages 80 to 81, there are the critical words:
so long as the Secretary was acting in within the guidelines –
governing section 48(b), “she had no duty” to refer Ms Chong’s application to the Minister. Now, I accept that the Court then expressly left open and said they were not saying that there would be a duty if there was a failure to act in accordance with the guidelines, but the point is that no court has previously said that, in cases analogous to this, that a failure to act in accordance with the guidelines has no legal consequence on the relevant rights and obligations given rise to under the Act.
Just a short point in relation to bridging visas. I think we have already made the submission that the point is that the finalisation of a request affects eligibility for the grant of a further visa, effectively disqualifying the person from a further grant.
Now, that does not depend on what visa they currently hold, or whether they are in detention now. The fact that the visas expire on a specified date is conventional and my understanding, this might be wrong, but even visas granted when someone has pending judicial review or merits review proceedings are not granted with a date that expires on the end of that proceeding. Usually, all bridging visas expire on a specified date for practical reasons and reasons of certainty, because it would be highly inconvenient if, on the moment that a decision was handed down, the bridging visa expired in the absence of a stay, and it would also be practically impossible for an officer to form a reasonable suspicion based upon – unless they went to and did a case search to see what the outcome of pending litigation was.
So, we say there is nothing unusual in the present case of having a bridging visa granted under sub‑clause 6 pending the making and finalisation of a request for intervention, having from to time being expressed to expire on a specified date and then, if that date arrives, and the person still has made a request that is on foot, they would usually, unless there is some other concern, get a visa which would enable them: one, to stay in Australia and two, not to be taken into detention. And we say that they are rights. It is artificial to say there is no right to liberty affected because the person is not currently in detention.
Our penultimate point is I just wanted to refer your Honours to is that your Honour Justice Gageler referred to the brief to the Minister under the former guidelines in schedule format, which I think was at joint book of further materials, page 20 of DCM20. The only point I wanted to make was that the other thing to note about that, apart from the decision indication, is to look at what was provided in that so-called schedule format.
There was a summary of key issues which set out the facts of the case. But the attachments listed at page 21 of the further materials, show that the Minister was provided with – in relation to DCM20 – three attachments: one entitled, “Case background”; the second entitled, “Case details” and the third, a copy of the request. So, it is not simply an Excel spreadsheet which the Minister then said, okay, I am happy without further inquiry. There is enough provided so that the Minister could say, hang on, DCM20 has been in this country for close to 30 years, all of her family are Australian citizens, she is a hard‑working aged care nurse now providing – all of those things would be apparent, and the Minister could say, yes, that is the sort of case that I want to consider – it would raise compelling circumstances.
He would look at Mr Davis’ case and he could say, through no fault of his own – at least on his account – Mr Davis has resided in Australia,
commenced a business, employed Australians, paid taxes and has been here for over 20 years – that might be the sort of case that I would consider. But the Minister has no opportunity to see those and to asses them as, potentially, triggering the care and compassion that are referred to section 9 of the 2009 guidelines.
The final point – and it is a very minor one – is, on the facts of Davis, which, relating to the timing of the investment and business ties – I will just draw your Honours’ attention to the first dot point on further materials, page 51, which states that those ties were developed since 2009 when Mr Davis established his construction and maintenance business and that, of course, was five years prior to any knowledge by which it came to light that he was not a permanent – or had not an entitlement to permanent residence.
Your Honours, those are my submissions.
KIEFEL CJ: Yes, thank you.
MR DONAGHUE: Your Honour, may I raise one matter?
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: It may be that this does not go anywhere, because I think where my friend ended up was that he did not seek to resile from the concessions in the Court below.
KIEFEL CJ: That is as I understand it.
MR DONAGHUE: But, in order to make sure your Honours are aware of the full picture, I do not dispute what Mr Horan says, that part of the case below was run on the basis that there had been a decision in advance. I think I misspoke yesterday to the extent that I suggested otherwise. That argument failed and then was not renewed on appeal.
The point that I rise to just draw to your Honours’ attention is that in the definition of privative clause decision in 474, in subsection (7), so tucked away at the end of that definition, the Act says:
To avoid doubt, the following are privative clause decisions within the meaning of subsection 747(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under –
a whole list of sections that includes section 351. So, the Act expressly and particularly says a non-consideration decision is a privative clause decision. And so, to the extent that that argument were to be re-run, it would immediately present the jurisdictional problem in the Federal Court, and your Honours would then be hearing an appeal here from a proceeding that the Federal Court had no jurisdiction to determine. So, I just wanted to make sure your Honours were aware of that provision.
Just finally, for the sake of completeness, your Honour Justice Edelman asked a question about other courts. There is also a particular exclusion from the jurisdiction of the Federal Circuit Court in relation to decisions of this kind that you see in 476(2). So, generally the Federal Circuit Court’s jurisdiction mirrors this Court under 75(v) but 476(2) says:
The Federal Circuit Court has no jurisdiction in relation to the following decisions:
. . .
(b)a privative clause decision, or purported privative clause decision –
mentioned in subsection 474(7), the one I just mentioned. So, that the end result of all of that is you can come here to run the argument, but nowhere else.
If the Court pleases.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.
AT 3.07 PM THE MATTER WAS ADJOURNED
- AGLC
- Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor [2022] HCATrans 181
- Case
- [2022] HCATrans 181
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the delegates of the Minister and the Secretary, in making the respective decisions, had failed to take into account a relevant consideration, namely the best interests of the children who were family members of the applicants. This question required the Court to consider the scope of the obligation to consider the best interests of children under s 4(2) of the *Australian Citizenship Act 2007* (Cth) and its application in the context of visa cancellation and protection visa decisions.
The Court held that the delegates had failed to take into account a relevant consideration. It reasoned that s 4(2) of the *Australian Citizenship Act 2007* (Cth) imposed a mandatory obligation on the Minister, and by extension, their delegates, to consider the best interests of children in circumstances where the Minister had the power to make a decision that would affect a child. This obligation extended to decisions concerning visa cancellation. Similarly, in the context of protection visa applications, the Court found that the best interests of children were a relevant consideration that ought to have been taken into account by the delegate. The Court emphasised that the failure to consider this mandatory consideration rendered the decisions unlawful.
Consequently, the High Court made orders quashing the decisions of the Minister and the Secretary in both matters. The matters were remitted to the respective decision-makers to be determined according to law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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Ratio Decidendi
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