It has been well settled in Australia, at least since the judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, that a Minister can seek assistance and advice from officers of their Department in making their decisions under the law. They can also rely on Departmental summaries of information, as long as that does not result in failing to take into account a relevant consideration. Such reliance is not tantamount to an impermissible delegation of ministerial function.
In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  HCA 10, the High Court confirmed that statement of principle but found that in the particular circumstances of the cases before it, there had been an impermissible delegation of ministerial function, having regard to the terms of the ministerial instructions issued by the relevant Minister in relation to a discretionary Ministerial power.
The High Court declined to answer the interesting question of whether the exercise of non-statutory executive power is amenable to judicial review on the ground of legal unreasonableness, although Justice Edelman appears to be drawn to the view that there could be circumstances where the exercise of a non-statutory executive power is amenable to judicial review on that basis. Justice Steward, in dissent, noted that there is no authority ‘to support the existence of a freestanding measure of reasonableness which conditions the exercise of all power other than that conferred by statute’.
Under s 351(1) of the Migration Act 1958, the Minister has a discretionary power to substitute an adverse decision of a relevant Tribunal with a more favourable decision, provided that the Minister is satisfied that it is in the public interest to do so. The power ‘may only be exercised by the Minister personally’ (s 351(3)). The Minister is not under any duty to consider whether to exercise the power under s 351(1), ‘whether he or she is requested to do so by the applicant or by any other person, or in any other circumstance’ (s 351(7)). In effect, the section confers a personal, non-compellable power on the Minister.
The Minister relevantly issued a set of instructions in 2016 (2016 Ministerial Instructions) which relevantly set out the circumstances in which requests made by applicants under s 351 of the Act were to be brought to their attention. In relation to ‘first requests’ (namely, the first time an applicant had made such a request under s 351 to the Minister), the 2016 Ministerial Instructions instructed that the Minister wished to consider whether to exercise the power under s 351(1) only in cases assessed by the Department to have unique or exceptional circumstances. Cases assessed by the Department not to have unique or exceptional circumstances were to be ‘finalised’ by the Department without referral to the Minister.
In relation to ‘repeat requests’ (namely, where an applicant had previously made a request under s 351 to the Minister) the 2016 Ministerial Instructions instructed that the Minister wished to consider whether to exercise the power under s 351(1) only if the Department was satisfied of a significant change in circumstances raising new substantive issues and even then only if the Department assessed those new substantive issues to have unique or exceptional circumstances.
The 2016 Ministerial Instructions included a non-exhaustive list of various matters that may constitute unique or exceptional circumstances.
Mr Davis and DCM20 requested the Minister to exercise their power under s 351(1) of the Act. Those requests were finalised by officers of the Department without referring the requests to the Minister. Both then challenged the non-referral of their requests in the Federal Court of Australia on the basis that the officers’ exercise of the non-statutory executive power was legally unreasonable. They were unsuccessful at first instance, and on appeal before the Full Court of the Federal Court of Australia. The Full Court relevantly held that the exercise of non-statutory executive power is amenable to judicial review on the ground of legal unreasonableness, but found that the exercise of the power in the cases before it was not legally unreasonable.
On appeal, the High Court by majority (6:1) held, relevantly, that:
- the 2016 Ministerial Instructions required Departmental officers to make a value judgment about whether there were ‘unique or exceptional circumstances’, which, in substance, amounted to the officers making findings about what was in the ‘public interest’. The Minister therefore purported to entrust the dispositive evaluation of the public interest to Departmental officers;
- section 351(3) of the Act made it explicit that the power in s 351(1) is to be exercised by the Minister personally. This displaced the presumption that the Minister could delegate the power to other Departmental officers;
- by refusing to refer the requests to the Minister, the Departmental officers, in substance, made decisions not to exercise the power in s 351(1) of the Act in respect of Mr Davis and DCM20. As the power can only be exercised by the Minister personally, their decisions were ultra vires;
- it would not be unlawful for instructions to implement a Departmental screening mechanism, including in relation to classes of cases, but this should be based on objective criteria; and
- the appropriate relief was declarations that the decisions of the Departmental officers in purported compliance with the 2016 Ministerial Instructions exceeded the executive power of the Commonwealth.
Where to from here
The question of whether the exercise of non-statutory executive power can be reviewed on the basis of legal unreasonableness remains unanswered. Given the High Court did not decide the point, it appears that the Full Court’s judgment on that point is not overturned.
There is no doubt that the issue will come up again in the immediate future. If the High Court were to be called for determination of that question, it appears that at least Justice Steward will be inclined to the view that that the exercise of non-statutory executive power is not amenable to judicial review on the ground of legal unreasonableness.
As Justice Edelman colourfully quoted in his judgment, ‘[a] loose vocabulary is a fruitful mother of evils’. It is important that Departments review Departmental instructions and policies to ensure that they do not impermissibly delegate ministerial functions to Departmental officers.
The link to the judgment can be found here.
This article was written by Sophie Lloyd, Partner and Max Gao, Senior Associate.