When Ministerial Decisions Must Be Made Personally
A summary of the High Court’s decision in Davis v Minister for Immigration
In April this year the High Court delivered judgment in Davis v Minister for Immigration  HCA 10, which concerned Departmental officers making decisions which the Migration Act 1958 (Cth) reserved for exercise by the Minister personally.
Davis is an important reminder that Departments and other government decision-makers should carefully consider whether some powers may not be exercised by a delegate, and whether there are other statutory limitations on their executive power.
This article briefly outlines the relevant legislative and factual background, before summarising the reasoning of the Court.
Section 351 of the Migration Act 1958 (Cth) (the Act) provides a power for the Minister to “substitute for a decision of the Tribunal … another decision that is more favourable to the applicant”, where “the Minister thinks that it is in the public interest to do so”. However, the provision makes clear that the Minister “does not have a duty to consider whether to exercise the power … in respect of any decision” (sub (7)).
Both Mr Davis and DCM20 are citizens of other countries (the United Kingdom and Fiji, respectively), who had applied for and been refused visas, the refusal of which had been affirmed by a Tribunal (the Administrative Appeals Tribunal and Migration Review Tribunal, respectively). Subsequently, each had requested an exercise of the power under s 351 of the Act.
In purported reliance on Ministerial Instructions issued in 2016, an Assistant Director of the Department of Home Affairs purported to finalise the requests of both Mr Davis and DCM20 without referring them to the Minister. This was on the basis that the Instructions indicated that the Minister only wished to be put into a position to consider making a decision under s 351 “in cases assessed by the Department to have unique or exceptional circumstances” (which were described non-exhaustively) – which the Department considered to not be the case for either Mr Davis or DCM20.
At first instance, both Mr Davis and DCM20 had sought judicial review of the refusal to refer their requests to the Minister on grounds which included legal unreasonableness. Both were unsuccessful. The Full Federal Court dismissed their appeals, which were heard concurrently.
The issue in the High Court
The High Court granted special leave to Mr Davis and DCM20 to argue a ground that was “not fully developed before the Full Court”. The ground was essentially that the 2016 Ministerial Instructions, and the Department decisions made in purported reliance on them, exceeded the executive power of the Commonwealth, in that they involved persons other than the Minister determining whether or not it was in the public interest for the s 351 power to be exercised.
A majority of the High Court upheld that ground of appeal (per a plurality judgment of Kiefel CJ, Gageler and Gleeson JJ; Gordon J, Edelman J and Jagot J each wrote separately in support of the same conclusion). Steward J dissented. The remainder of this article focuses in particular on the reasons of the plurality.
Why the appeal was successful / how executive power had been exceeded
The plurality observed that, ordinarily, Parliament will be taken to contemplate that a Minister can task a Department with “sorting the wheat from the chaff”, so as to bring to the Minister’s attention only those requests for the exercise of discretionary statutory powers which “warrant the Minister’s personal consideration”.
“A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope.”
In this case, a valid law of the Commonwealth – namely, s 351(3) of the Act – imposed a limit on the circumstances in which the Minister’s power could be exercised. Its prescription that the power may only be exercised by the Minister personally meant that it was “neither delegable by the Minister … nor exercisable on the Minister’s behalf by any other officer of the Department”. In other words, it would be beyond executive power to “entrust the dispositive evaluation of the public interest” under s 351 to an “executive officer other than the Minister”.
Their Honours considered that the decisions made by Departmental officers in this case, pursuant to the Ministerial Directions, had exceeded executive power as limited by s 351(3) of the Act. In particular, that was because:
“… it is impossible to avoid the conclusion that the concept of unique or exceptional circumstances was used in the 2016 Ministerial Instructions as an approximation of the public interest. By instructing that those cases assessed by the Department not to have unique or exceptional circumstances were to be finalised by the Department without referral, the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers. The Minister thereby exceeded the statutory limit on executive power imposed by s 351(3).”
Consequently, the appeal was allowed, and the Court declared that the decisions made to not refer the requests of Mr Davis and DCM20 to the Minister (for an exercise of the power under s 351) had exceeded the executive power of the Commonwealth.
The dissent of Steward J
In dissent, Steward J considered that each ‘decision’ made here had no legal consequences. Each was only an anterior step that “could have led, but ultimately did not lead, to an exercise of power” by the Minister. The result was that the rights and obligations of Mr Davis and DCM20 remained untouched.
In his Honour’s view, since there had been no exercise of ‘power’ (defined as the “capacity to interfere with or legally alter rights, obligations and legally recognised interests”), there was no warrant for judicial review.
SAVE THE DATE – 25 July 2023, 5:30pm
Australian Institute of Administrative Law Seminar
Gim Del Villar KC SG on Davis v Minister for Immigration
Inquiries can be directed to the AIAL (Queensland Chapter) Secretary, Mr Matthew Paterson at: email@example.com
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 (1990) 169 CLR 195, 202.
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 Ibid -. Quoting Brennan J in Quin (1990) 170 CLR 1, 35: “The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government.”