Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The High Court considered appeals from decisions of the Full Court of the Federal Court of Australia concerning the exercise of executive power by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The central dispute involved Ministerial Instructions issued by the Minister, which directed departmental officers to refer requests for the Minister to substitute a more favourable decision under section 351 of the *Migration Act 1958* (Cth) only if "unique or exceptional circumstances" were present. The appellants argued that these instructions purported to instruct officers to make decisions that were required to be exercised personally by the Minister, and that this exceeded the limits of executive power as constrained by section 351.

The legal issues before the High Court included whether the Ministerial Instructions impermissibly instructed departmental officers to make decisions that were statutorily required to be exercised personally by the Minister, and whether such instructions exceeded the limits of the Commonwealth's executive power. The Court also considered whether the Federal Court lacked jurisdiction to hear the appeals due to section 476A(1) of the *Migration Act*, by examining the character of the decisions made by departmental officers in purported compliance with the Ministerial Instructions. Finally, the Court addressed whether the appellants had the requisite legal interest to seek declaratory relief and whether such relief was appropriate.

The High Court reasoned that the executive power of the Commonwealth is constrained by law, and the Executive cannot authorise a breach of the law. The Court emphasised that the executive power to execute and maintain the laws of the Commonwealth involves doing what is authorised or required by those laws, and any incidental action must be strictly ancillary, without changing or adding to the law. The Ministerial Instructions, by requiring departmental officers to refer requests only in "unique or exceptional circumstances," effectively instructed officers to make decisions that were required to be exercised personally by the Minister, thereby exceeding the limits of executive power and the statutory constraints imposed by section 351 of the *Migration Act*. The Court found that the decisions made in purported compliance with these instructions did exceed the executive power of the Commonwealth.

The High Court allowed the appeals, set aside the orders of the Full Court of the Federal Court, and made declarations that the decisions made by departmental officers in purported compliance with the Ministerial Instructions exceeded the executive power of the Commonwealth. The first respondent was ordered to pay the costs of the appellants.