Din v Minister for Immigration and Multicultural Affairs

[1997] FCA 780

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Immigration - Visa application - Requirement that an applicant demonstrate an “ability to communicate in English in a mix of social and work situations” - Regulations prescribed criteria including that the applicant “has successfully undertaken ... at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister” - Claim that Minister had not personally nominated the time and place of relevant tests nor their content - Regulations provided power of delegation but this not used - Whether tests answered description in the regulations.

Migration (1993) Regulations, reg 1.6, Schedule cl 816.732.

FAZAL DIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 132 OF 1997

JUDGE:         WILCOX  J
PLACE:         SYDNEY
DATED:        19 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 132 of 1997
)
GENERAL DIVISION	)

BETWEEN:	FAZAL DIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
PLACE:	SYDNEY
DATED:	19 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The matter be stood over to a directions hearing at 9.30am on 11 September 1997 or such other date as may be arranged with my associate.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 132 of 1997
)
GENERAL DIVISION	)

BETWEEN:	FAZAL DIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
PLACE:	SYDNEY
DATED:	19 AUGUST 1997

REASONS FOR JUDGMENT

WILCOX J:  This action is brought to the Court pursuant to s 486 of the Migration Act 1958. The applicant is Fazal Din, one of a number of people adjudged to have failed tests purportedly administered pursuant to clause 816.732 of the Migration (1993) Regulations.  He brings the action as a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976, claiming relief not only for himself but also for fourteen other named persons who are said to have failed the tests.

The issue
Schedule 2 of the Regulations contains provisions with respect to the grant of visas.  The Schedule deals with many subclasses of visas.  It has been amended on numerous occasions.  But it is common ground between the applicant and the respondent, the Minister for Immigration and Multicultural Affairs, that at all material times the Schedule included, by clause 816.73, a subclass of visa styled “Special (Permit) Entry Visa”, the requirements for which included the following criteria to be satisfied at time of decision:

“816.731The applicant is the holder of a section 47 temporary entry permit.

816.732(1)      If the applicant is a principal person, he or she has the ability to communicate in English in a mix of social and work situations, demonstrated by evidence of the kind set out in:

(a)      subclause (2); or
  (b)      subclause (3).

(2)The evidence mentioned in paragraph (1)(a) is evidence that the applicant:

(a)has successfully met the the [sic] academic progress requirements in the institution at which the applicant was enrolled for:

(I)        at least 1 year of full-time study; or

(ii)part-time study equivalent to at least 1 year of full-time study;

in an accredited course leading to a post-secondary qualification where the primary language of instruction was English; or

(b)      holds an overseas qualification:

(I)that is assessed by NOOSR as comparable to an Australian associate diploma, diploma, degree or higher degree; and

(ii)for which the primary language of instruction was English; or

(c)has passed, within the period of 2 years before the date of the application, at a level that satisfies the Minister that the applicant has the ability to communicate in English in a mix of social and work situations, one of the following English proficiency tests:

(I)the Occupational English Test conducted by the National Languages and Literacy Institute of Australia;

(ii)the Australian Assessment of Communicative English Skills Test;

(iii)the International English Language Testing System test.

(3)The evidence referred to in paragraph (1)(b) is evidence that the applicant has ... successfully undertaken, at the first or second attempt, and at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister.

(4)If under subclause (3) the Minister has nominated a test to be undertaken by an applicant, and the applicant has failed to undertake that test for a reason acceptable to the Minister, the Minister may nominate a further test to be undertaken by the applicant at a time and place nominated by the Minister.”

The validity of clause 816.73 was upheld by Lockhart J in Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439. His Honour’s reasons in that case include (at 442-443) a description of the nature and operation of the clause.

As I understand the situation, no issue arises under clause 816.731. But the applicant raises a question about clause 816.732 which extends, at least, to the operation of par (3). The applicant says the Minister did not approve, either personally or by an appointed delegate, all the tests administered to him and the group members, and/or the times and places at which those tests were to be administered. Accordingly, he argues, he and the group members have yet to be subjected to the test required by the regulations. He says this must be done before they can be regarded as having failed the requisite test and their visa applications refused.

The facts
The evidence concerning the tests is non-contentious.  It is contained in an affidavit of Peter Douglas Job, an officer of the Department of Immigration and Multicultural Affairs.  From 1 December 1993 to February 1996, Mr Job was Director of a task force within the Department called  “the November 1 Task Force”.  This was a task  force set up to deal with applications for visas under Part 816 of the Schedule.

It appears the Department entered into a contract with the National Centre for English Language Teaching and Research (“NCELTR”) at Macquarie University, Sydney. That contract required NCELTR to develop specifications for a test of proficiency in English, as envisaged by par (3) of clause 816.732, that would demonstrate visa applicants’ “ability to communicate in English in a mix of social and work situations”, as required by par (1) of that clause. The contract also required NCELTR to develop and trial the test itself, to administer it to visa applicants and mark the results. The test was required to include three components: listening, reading and writing.

Specifications were developed and, on 27 May 1994, approved by the then Minister for Immigration and Ethnic Affairs.  NCELTR then prepared the test itself.  The test became known in the Department as the STEP test.  It was intended to occupy two hours and comprise the three components mentioned in the specifications, for each of which there was a separate paper.  Because of the number of likely candidates and test sittings, nine separate versions of the test were devised.  They were submitted to the Minister under cover of a memorandum of 27 October 1994 from Peter Judd, Assistant Secretary of the task force.  After stating the purpose of the memorandum and background information, Mr Judd said:

“Regulation 816.732(3) of the Migration Regulations provides that the Minister is to ‘nominate a test of proficiency in English’ to be undertaken by a Class 816 applicant.  The Regulation also provides that the nominated test is to be undertaken ‘at a time and place nominated by the Minister’.

As the possibility of a legal challenge to the English proficiency test cannot be discounted, Legal opinion is that for completeness and to remove as much doubt as possible, you should specifically approve the test/questions as well as the times and places Class 816 applicants can attempt the test.

Attached are nine versions of the English proficiency test developed by NCELTR.  Also attached is a schedule of the test times and venues that NCELTR has arranged and scheduled applicants to sit the two hour test.

RECOMMENDATION:

That, in accordance with Regulation 816.732(3) you:-

1.agree the attached English proficiency test be nominated by you as the test to be undertaken by Class 816 applicants; and

2.agree to the attached times and places for the above test to be attempted by Class 816 applicants.”

The attachments to the memorandum included a letter to Mr Judd from the Executive Director of NCELTR setting out the places and times at which tests would be conducted.  There were ten proposed test centres, covering all States and Territories, and up to eight separate sittings (two per day) in a particular centre.  Sittings were to commence on Tuesday, 1 November 1994 and extend over the remainder of the week. 

The attachments also included the papers proposed to be administered to applicants:  nine papers for each of the three skills (writing, reading and listening).  The papers referrable to each skill were numbered SA to SI.  The Minister accepted Mr Judd’s recommendations on 1 November 1994.

On 25 November 1994, Mr Judd submitted to the Minister a memorandum dealing with the level of proficiency that applicants must demonstrate in order to satisfy the requirement of clause 816.732(1). It is not necessary to go to the detail of the proposal but it is important to note it did not regard each of the three papers as separate tests; rather they were each to be treated as elements in determining whether a particular applicant had demonstrated the communication skills required by clause 816.732(1). That approach is not challenged in this litigation. The Minister approved the proposed standard on 1 December 1994.

Not all applicants were able to be tested in the four day program that commenced on 1 November 1994.  Moreover, the regulation required that applicants have two opportunities to pass the test.  So further test sittings were held in January 1995.  So far as appears, the Minister did not approve the program for those tests. Further tests were held in May 1995; once again, it seems, without Ministerial approval of the program.   At some stage in the later programs, additional test papers were used.  These were papers that had not been approved by the Minister.  Mr Job explained how this came about:

“8.      In addition to the original 9 versions of the STEP Test, further papers were produced from time to time as a security measure.  In relation to the Reading and Listening Tests, questions from the original 9 versions were randomly selected and amalgamated into new papers.  In relation to the Writing Test however, the Department had been advised that standard answers to those tests were being provided to potential candidates.  To overcome this problem, NCELTR modified some of the questions slightly and mixed these new questions with questions that had been included in the 9 original versions to form several new versions of the Writing Test. ...”

The submissions of counsel
As I have mentioned, the applicant claims he and each group member was adjudged to have failed a test, held outside the November 1994 program, the time and place of which was not approved by the Minister, personally or by an appointed delegate, and/or that comprised one or more papers the Minister had not so approved.  The factual correctness of these claims has not yet been established, and is not conceded.  However, as I understand the position, the respondent concedes no approval was given by a delegate of the Minister appointed under reg 1.16 of the Regulations.  His counsel, Mr A Robertson SC, assumed the correctness of the applicant’s claims for the purpose of arguing that personal approval of the Minister was not legally necessary.  He reserved the factual issues for later investigation if this argument failed.

Counsel for the applicant, Ms M Bateman, drew attention to the wording of par (3) of clause 816.732: “at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister”.  She referred to one of the Macquarie Dictionary definitions of “nominate”, viz. “to specify”, and suggested that in par (3) the word “nominated” had this sense; accordingly the time, place and content of the test must all be specified by the Minister.  Ms Bateman accepted the Minister could specify a pre-existing test by description.  For example (although this would, of course, be an inappropriate standard), as a matter of law the Minister could have specified the two-unit Higher School Certificate English paper of a particular year, without sighting the particular set of questions. However, where there was no pre-existing paper, as here, Ms Bateman contended the Minister could only specify a test by identifying a particular set of questions.

Ms Bateman accepted the Minister could not reasonably be expected to undertake personally all the duties involved in the administration of the Migration Act and Migration Regulations.  But she said this situation was covered by provisions in the Act (s 496) and Regulations (reg 1.16) permitting the Minister to make a written delegation of his powers to an officer.   Regulation 1.16(1) provides:

“The Minister may, by writing signed by the Minister, delegate to an officer any of the Minister’s powers under the Regulations, other than this power of delegation.”

Where there was no written delegation, Ms Bateman said, the Court should not treat a provision conferring power on the Minister as being satisfied by an officer’s purported exercise of the power. 

Mr Robertson commenced his argument by recalling that, on 1 November 1994, the Minister personally approved the initial test papers and test program.  He said that, having nominated the STEP test, it was unnecessary for the Minister personally to do more.  Alternatively, if it was necessary for the Minister personally to approve examples of the STEP test, he did so; he approved the original nine sets of papers.  The later papers were similar to the original sets of papers; many were “scissors and paste” adaptations of them.

A further alternative argument put by Mr Robertson was that the papers or questions the Minister did not see personally were approved by an authorised officer; in that sense they were nominated by the Minister.  In support of this argument, he referred to what has become known as “the Carltona principle”, because of its enunciation by Lord Greene MR in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. That case concerned a requisition of a factory under wartime regulations authorising a “competent authority” to take possession of any land, if satisfied it was necessary or expedient to do so for one or more specified purposes connected with the conduct of the war. The term “competent authority” was defined to include the Commissioners of Works. In contesting the validity of a requisition notice, the appellant argued, amongst other things, that the notice was invalid because the Commissioners, as a body, did not consider whether the factory was needed for a specified purpose. However, it appeared the Commissioners never met; pursuant to statutory authority, their functions were performed by the First Commissioner of Works. But that circumstance was not enough to meet the appellant’s point; there was no evidence that the First Commissioner had personally considered the need for the premises. The matter had been handled by a senior officer answerable to him, the Assistant Secretary of the Office of Works. At 563 Lord Greene said:

“In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to minsters because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them.  To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries.  It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter.  The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department.  Public business could not be carried on if that were not the case.  Constitutionally, the decision of such an official is, of course, the decision of the minister.  The minister is responsible.  It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament.  The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials.  If they do not do that, Parliament is the place where complaint must be made against them.”

Goddard and du Parcq LL J agreed with Lord Greene.

The Carltona principle has been widely applied in the United Kingdom:  see Lewisham Metropolitan Borough and Town Clerk v Roberts [1949] 2 KB 608, The Queen v Skinner [1968] 2 QB 700 and In re Golden Chemical Products Ltd [1976] 1 Ch 300.

Australian authorities concerning the Carltona principle
A noticeable difference between the United Kingdom cases concerning the Carltona principle and their Australian counterparts is that, so far as I know, in none of the United Kingdom cases is there any consideration of the significance of an express statutory power to delegate by writing, whereas this is a feature of the Australian cases.  And, as Ms Bateman pointed out, the Migration Regulations include a general power to delegate by writing.  So it is appropriate to concentrate attention on the Australian cases .

Lord Greene’s statement was considered by Brennan J, sitting as President of the Administrative Appeals Tribunal, in Re Reference under section 11 of the Ombudsman Act 1976; ex parte Director-General of Social Services (1979) 2 ALD 86. An application for reconsideration of a refusal of unemployment benefits was referred to a senior departmental officer, Mr Prowse. He wrote back to the applicant, in the name of the Director-General, stating he had reviewed the case but was not satisfied the applicant complied with all requirements for eligibility. One of the questions referred to the Tribunal was whether this was a determination of the Director-General, or Mr Prowse as his delegate. Brennan J held it was the latter.

In the course of discussing this issue (at 93), Brennan J quoted Lord Greene’s observations.  He introduced the quotation by saying:

“Where the power is not delegable, but the authority could not have been expected by the Parliament to have exercised it personally in the multitude of instances when its exercise would be required, it has been held that some classes of acts done by others for and on behalf of the authority should be treated as though they were the acts of the authority.”

Brennan J commented that the “extent to which an authority may commit to other officials the performance of duties is primarily dependent upon the nature of the power to be exercised”.  He went on to make the point, with reference to decided cases, that, where “acts are clothed with the character of acts” done by the statutory authority, they have the legal effect of acts done personally by that authority; however, where acts are performed by a delegate in the capacity of delegate, they are acts of the delegate and any discretion that is exercised must be that of the delegate.  His Honour also observed, at 94, that the “practical administrative necessity which warrants an authority’s exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other”.

Gibbs CJ picked up this comment in O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1. That case concerned the validity of a notice to produce documents, purportedly issued under s 264(1) of the Income Tax Assessment Act 1936. The sub-section conferred on the Commissioner of Taxation the power to issue the notice, but he had delegated all his powers to each Deputy Commissioner. The subject notice was issued, in the name of a Deputy Commissioner, by a Supervisor in the Investigation Department of the Department of Taxation acting pursuant to an authority given him by that Deputy Commissioner. Gibbs CJ said (at 10) the “question whether s 264 requires that the Commissioner (or his delegate) should personally sign the notice in writing is simply one of construction”. After referring to various authorities, he commented (at 12) that the fact that the exercise of the power will be likely adversely to affect the rights of individuals was a reason for inclining in favour of the view that it must be exercised personally. On the other hand, he said, the section, and a number of other sections of the Act, “confer on the Commissioner powers which may be expected to be exercised in myriads of cases”. He referred to the millions of taxpayers in Australia and said “it would reduce the administration of the taxation laws to chaos if the powers conferred by those sections could be exercised only by the Commissioner or a Deputy Commissioner personally. It can not be supposed that the Parliament intended such a result”. After pointing out that s 13 of the Income Tax Assessment Act envisaged only a delegation to a Deputy Commissioner and quoting the dictum of Brennan J in the Ombudsman case, Gibbs CJ went on:

“The existence of a power to delegate is of course an important consideration in deciding whether the designated authority may act through an authorized agent. However, the fact that the Act itself contemplates that the delegation will be to a Deputy Commissioner only (notwithstanding that s. 8(1) of the Taxation Administration Act confers a wider power of delegation) suggests that it was not intended that there should be a wholesale delegation of powers to comparatively minor officials.  But in any case it would hardly be practicable to make a delegation of that kind, and it seems to me that there exists, as the Parliament must have known, a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorized agents.  On the whole I have reached the conclusion that the powers conferred by s. 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorized officer.”

Murphy J agreed with Gibbs CJ.  Wilson J expressed a similar view.  At 32 he referred to Brennan J’s observation in the Ombudsman case and said:

“The question is whether the existence of the power of delegation requires that the Commissioner or his delegate must direct his mind personally to the exercise of every power or function vested in him.  Stated in that way, in my opinion, the question admits only of one answer.  The practical administrative necessity to allow a Deputy Commissioner to exercise the powers delegated to him by the actions of officers authorized by him is evident.  The opposing argument would oblige the Commissioner himself to delegate his powers, not only to the Deputy Commissioners, but to a host of departmental officers throughout Australia, rendering each of them a Commissioner in his own right.  It would be wholly destructive of any semblance of administrative order and efficiency.”

Mason J dissented on this point. He pointed out that the concluding words of s 8(1) of the Taxation Administration Act 1953, which conferred power on the Commissioner to delegate any of his powers or functions to a Deputy Commissioner or other person, specifically excluded sub-delegation. He said (at 17) that this restriction would be unimportant if the particular power or function was exercisable by officers of the Taxation Department without a delegation. At 18 Mason J said:

“What is important is that the Act contemplates that the powers and functions of the Commissioner may be exercised by a second Commissioner and by delegates who are Deputy Commissioners or, if s. 8(1) is taken into account, other persons, presumably officers.  On this view of the relevant provisions there is neither a need nor a basis for implying an authority in officers of the Department to exercise powers and functions of the Commissioner, at least when the exercise of the relevant power or function involves the exercise of a discretion or the formation of an opinion.  In the face of such a wide power of delegation it would seem correct in principle that, if the Commissioner desires others to exercise large areas of his powers and functions, he should expressly delegate to them those powers and functions pursuant to s. 8(1).  Only those powers and functions involving little or no exercise of discretion should be capable of being exercised otherwise.  This must be particularly so when the statutory scheme permits delegation of all of the authority’s powers to any person or persons, in contrast to the position where a prospective delegate can only be chosen from a restricted class of persons or where one specific officer is designated.”

Mason J returned to this topic in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. That case concerned a Ministerial decision to recommend a land grant pursuant to s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976. In making the decision, the Minister had been unaware of the location of a uranium deposit over which the respondent had sought mineral leases, although this had been disclosed to officers of his Department. The Minister was aware the respondent had applied for mineral leases in the area, but not their precise location. The respondent argued the recommendation was invalid because the Minister had failed to take into account a relevant consideration. Amongst other submissions, counsel for the Minister argued that, where officers provide to a Minister a summary of a matter omitting certain details, the Minister cannot be said to have failed to take the omitted details into account; he is entitled to delegate to his staff the function of determining what weight, if any, should be given to a particular fact. Mason J (with whom Gibbs CJ and Dawson J agreed) referred at 37 to the power of delegation contained in the Land Rights Act.  He went on:

“The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others.  By way of illustration there are cases which establish that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his Department:  Carltona; In re Golden Chemical Products Ltd. This principle partly depends on the special position of constitutional responsibility which Ministers occupy and on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally:  O’Reilly ... The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.

However, there is nothing in the nature, scope and purpose of the power conferred by s.11, or in the context in which it is to be found, that makes it susceptible to this treatment.  The Minister’s function under the section is a central feature of the statutory scheme.  Exercise of the power has important consequences, not only for the Aboriginals who will benefit from a grant of land to a Land Trust, but for others who may suffer detriment by reason of interference with their interests as a result of land being so granted.”

The application of the Carltona principle to decisions under the Migration Act was recently considered in this Court by Merkel J:  see Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103. The applicant had sought the exercise in his favour of a discretion conferred on the Minister by s 417(1) of the Act.  That subsection provided, if “the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of (the Refugee Review Tribunal) a decision that is more favourable to the applicant ...”  Subsection 417(3) provided that the power under subs (1) may only be exercised by the Minister personally.

The section did not require the Minister personally to consider whether to exercise the power and it was accepted it would have been competent for a decision not to exercise the power to have been made by a delegate of the Minister appointed under s 496(1) of the Act.  But the decision in Ozmanian had been made by an officer who was not a s 496(1) delegate.  The applicant contended this was not a valid decision and his application under s 417 therefore remained unresolved.  The respondent argued the Carltona principle applied to the case. Merkel J rejected that argument. He pointed out (at 120) that s 497 of the Migration Act provides that, if the Minister delegates the power to grant or refuse or cancel visas, the delegate is not required personally to perform any task in connection with the grant, refusal or cancellation except the taking of the relevant decision.  Merkel J commented:

“The existence and detail of the specific powers I have referred to in relation to delegation and the power to give directions, suggest that, in general, under the Migration Act the legislature intended that the exercise of the relevant powers be by the repository personally or by his or her delegate pursuant to s 496.”

His Honour said s 417 is not inconsistent with that approach.

“Further, in addition to the above matters, given the ability of ministerial or departmental officers to assist the minister in determining whether to ‘embark on’ ... a consideration of the exercise of the power in question, there is little in the nature or scope of the function vested in the minister under s 417 that brings it within the rationale for the Carltona principle of administrative necessity in modern government.”

Merkel J observed that, “(t)raditionally the courts have been reluctant to imply a statutory authorisation to act by others where the exercise of the power may have serious or drastic consequences on an individual”.

Conclusions
Mr Robertson’s first two submissions are clearly untenable. It will be recalled he suggested it was unnecessary for the Minister to do more than nominate the STEP test; alternatively, it was enough for him personally to approve examples of the STEP papers. But the STEP test was not a pre-existing test, like the Higher School Certificate, constructed for other purposes by people independent of the Department. It was a test prepared only for the purpose of clause 816.732. It was impossible for anybody to determine whether the papers that constituted what became called the STEP test were appropriate for their purpose without seeing them and it was essential to specify exactly what was being approved.

In fact the Minister never gave a general approval to “the STEP test”, or to tests that might be composed of papers of which the approved papers were samples.  Mr Judd suggested to him that he should “specifically approve the test/questions as well as the times and places Class 816 applicants can attempt the test”.  The Minister adopted recommendations that “the attached English proficiency test be nominated by you” and he “agree to the attached times and places”.  The word “attached”, in each recommendation, makes clear that the Minister was being asked to consider and approve the content of specific documents.  That is all he did.

The substantial question in the case arises out of Mr Robertson’s third submission, that the Carltona principle applies.  I have reached the conclusion it does not.  I  have done so for reasons similar to those expressed by Merkel J in Ozmanian.

The present case does not involve a decision about the granting or refusal of a visa to a particular person, or the recognition or non-recognition of a particular person’s claim to be a refugee.  But it does involve the determination of the content of a test intended by the regulations to be used in deciding whether particular people shall be granted or refused a particular type of visa, and the fixing of the times and places at which that test is to be administered.  From the viewpoint of affected individuals, these are matters of great importance; the outcome of the test may affect the whole course of their lives.

It seems to me the regulations recognize the importance of these matters by providing that the Minister, rather than a  departmental officer or other person, shall nominate the test and the times and places of its administration.  It is true the Minister has power to delegate these tasks to a nominated person or persons; he or she need not personally consider the appropriateness of the papers or the test arrangements.  But any delegation must be in writing signed by the Minister.  It must identify a particular officer or officers, if not by name then at least by position.  So a degree of Ministerial accountability remains; if the nominations are not made by the Minister personally, they will at least be made by a person or persons selected by the Minister, not by an officer of whose competence and experience - even existence - the Minister may be unaware.

Not unnaturally, Mr Robertson placed primary reliance on O’Reilly.  That is a strong case, from his point of view, because the Carltona principle was applied by the majority despite the existence of a statutory power of delegation.  Yet it is apparent from the reasons of Gibbs CJ and Wilson J that both their Honours thought it was a very special case.  Both were heavily influenced by the sheer impossibility of the Commissioner and Deputy Commissioners personally exercising statutory powers in relation to millions of taxpayers.  That problem is absent from this case.  As is demonstrated by the Minister’s approval of the first set of papers and the November 1994 test schedule, it was a simple task for the Minister personally to approve a batch of papers and a schedule of tests; and if there was likely to be a problem, the Minister could have made a delegation under s 496 to an appropriate officer.  To pick up the words of Mason J in Peko-Wallsend, this is not a case where “administrative necessity indicated it was impractical for (the Minister) to act otherwise than through his officers or officers responsible to him”. Accordingly, it is not a case where those who made and approved the Regulations must be taken as having accepted that the persons who might exercise the power under cl 816.732 could extend beyond the Minister and his reg 1.16 delegates.

Some people may regard the applicant’s point as a mere technicality.  They may think it likely the Minister would have approved the later test papers and test schedules,  if asked to do so.  On this view, it is unlikely any particular test result was affected by absence of Ministerial approval.  I understand that viewpoint.  It has much force.  But I think there is a principle involved in the case that goes beyond the question whether compliance with the regulations would have led to a different outcome for particular people.  Such is the complexity of modern government that it is impossible for Parliament itself to make all necessary legislation.  Parliament has no option but to delegate much law-making to the Executive.  Nonetheless, Ministerial responsibility remains at the heart of our constitutional system; no doubt that is why legislation so frequently reposes discretions in Ministers rather than public servants.  The notion is that, if the discretion miscarries, the Minister may be held accountable in the Parliament.  The notion is compromised, it is true, by Parliament’s acceptance of provisions for written delegations of Ministerial powers; but at least the Minister may be held accountable for his or her choice of delegates and the functions to be entrusted to them.  It is not without significance that the power of delegation contained in these regulations (reg 1.16) specifically excludes sub-delegation. 

It seems to me that, once we go beyond the principle that a statutory discretion must be exercised by the nominee personally or by an appointed delegate of the nominee, and allow any officer to exercise a statutory Ministerial power, there is no accountability; the day has long gone when Australian Ministers were expected to answer with their resignation for the acts and omissions of departmental officers.

I think the applicant’s legal point should be upheld. Tests administered under clause 816.732 of Schedule 2 of the regulations must be approved by the Minister personally or his delegate appointed under reg 1.16 of the Migration Regulations; similarly in relation to times and places for administration of the tests.  The application of those conclusions to the applicant and group members depends on facts yet to be investigated.  That being so, I will not make any formal order at this stage.  I think it is appropriate to give the parties an opportunity to consider the future course of the proceeding.  For that purpose, I will stand it over to a directions hearing in about three weeks’ time.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:  19 August 1997

Counsel for the Applicant:	M Bateman
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	A Robertson SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 July 1997
Date of Judgment:	19 August 1997