Limits on Non-Statutory Executive Power: Davis v MICMSMA; Davis v Secretary of Department of Home Affairs [2023] HCA 10
14.06.2023
The bounds of judicial review for migration matters in Australia has long been a highly-contested issue. Over the past 20 or so years, there has been significant tension between the executive and the judiciary in relation to the use of certain grounds of judicial review in refugee and migration cases (see eg Minister for Immigration and Multicultural Affairs v Eshetu). As a result, successive governments have attempted to restrict the ability of applicants to utilise what are perceived to be the ‘broad’ grounds of judicial review, namely procedural fairness and unreasonableness.
The Migration Act 1958 (Cth) (the Migration Act) also contains provisions which allow for the Minister for Immigration (the Minister) to personally intervene in visa decisions on ‘public interest’ grounds. These intervention powers are controversial as they are personal to the Minister, non-reviewable and non-compellable. Although these powers are designed to be exercised personally, ministerial guidelines were used by officers of the Department of Home Affairs (the Department) to ‘screen’ applications to be referred to the Minister as part of efficiently handling the consideration of these applications.
Against this background, the recent High Court decision in Davis v Minister for Immigration; DCM20 v Secretary of Department of Home Affairs contains some important statements on the reviewability of these non-statutory ministerial guidelines. The key questions before the High Court were whether the Court could determine whether non-statutory executive action by federal departmental officers was unlawful on the ground of legal unreasonableness, and whether the guidelines used by these officers to ‘screen’ applications to the Minister were valid.
The judgment contains some important rulings on the boundaries to be placed on the use of ministerial guidelines and will have some implications for the use of these documents, not only in migration matters, but also in other areas. However, as the case was decided on the issue of the ministerial guidelines, the court did not discuss in any detail the application of unreasonableness to non-statutory executive actions. However, Justice Edelman made some obiter comments which I will flag in my discussion below.
This was a complex case. The Attorneys-General of three states intervened (NSW, South Australia and Victoria) and issues of standing, remedies and the privative clause in the Migration Act were raised in addition to the main submissions. The resulting High Court judgment is some 103 pages in length. The 6-1 decision comprised the joint judgment of Kiefel CJ, Gageler and Gleeson JJ, with concurring but separate opinions of Gordon, Edelman J and Jagot JJ, plus a dissenting opinion by Steward J.
For the purpose of this blog post, I will focus on the findings made in relation to ministerial intervention powers and guidelines and discuss the obiter comments of Justice Edelman on unreasonableness. I will then conclude by exploring the implications of the decision for the scope of the ministerial intervention powers and identify some questions that remain open for future determination.
The Ministerial Intervention Powers and the 2016 Ministerial Guidelines
Several provisions in the Migration Act contain personal ministerial intervention powers which allow the Minister for Immigration to substitute their decision for that of the Administrative Appeals Tribunal (AAT). The provision at issue in Davis/DCM20 was s 351 of the Migration Act, which allows the Minister for Immigration to substitute a decision of the AAT with a decision that is more favourable to an applicant.
The criteria for the exercise of this important intervention power are very broad, as s 351 does not set out any relevant considerations or other limitations. Rather, it provides that such substitution can be undertaken if the Minister thinks that it is in the ‘public interest’. This is a wide and highly subjective term. Indeed, in Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ at para 99 noted that ‘[t]he expression “public interest” has no fixed or precise content. It involves a value judgment, often to be made by reference to matters that are not clearly defined’.
In addition to this, s 351 explicitly states that the power ‘may only be exercised by the Minister personally’ (s 351(3)) and that the Minister ‘does not have a duty to consider whether to exercise the power … in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances’ (s 351(7)). Understandably, it has thus been described by a number of judges as ‘an extraordinary power of last resort’ (see eg Kenny J at [26] in the FCAFC decision in Davis).
Due to the large number of applications for intervention made to the Minister each year, guidelines (called ‘instructions’) were developed to assist with the administration of these cases. At issue in Davis/DCM20 was the 2016 version of these Ministerial Guidelines (2016 Guidelines). The purpose of the 2016 Guidelines, as stated by the Minister, was to:
explain the circumstances in which I may wish to consider intervening in a case
explain how a person may request that I consider intervening in their case
explain when my Department should refer a case to me
confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case.
The 2016 Guidelines indicate that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more ‘unique or exceptional circumstances’. Unique or exceptional circumstances are described non-exhaustively in clause 4 of the 2016 Guidelines and include:
‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’
‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’
‘exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia’ and
‘circumstances [in which] the application of relevant legislation leads to unfair or unreasonable results in a particular case’ (Davis and DCM20 para 36)
Importantly, clause 10.1 of the 2016 Guidelines directs the Department to finalise cases without referral to the Minister if the Department assesses the case as not having these unique or exceptional circumstances. Furthermore, clause 10.2 set out the categorical position of the Minister in relation to repeat requests:
I do not wish to consider repeat requests. Where I or another Minister (current or previous) have declined to intervene or consider intervening in a case, I expect the person concerned to leave Australia.
Clause 10.2 goes on to say that in ‘limited circumstances, a repeat request may be referred to me if the Department is satisfied there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request’. This is relevant to the present discussion as the appellants each made repeated requests for intervention.
The Facts of Davis and DCM20 and the Decision of the Lower Court
Both appellants had resided in Australia for a significant period of time at the time of their applications for ministerial intervention.
The first appellant, Martin Davis, is a citizen of the United Kingdom who arrived in Australia in 1997 and had lived in Australia since then on various temporary visas. The second appellant, DCM20, is a citizen of Fiji who had lived in Australia since arriving with her family in the early 1990s.
Each applicant went through various visa application processes and lodged several applications for ministerial intervention under s 351. In each case, a departmental officer decided that the applicant’s circumstances were not unique or exceptional, as required by the 2016 Guidelines, and did not refer their cases to the Minister.
Although the focus of this blog post is the High Court decision, it is relevant to briefly flag the key findings at the Full Federal Court level (Davis v Minister for Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213). The Full Court of the Federal Court (per Kenny, Besanko, Griffiths, Mortimer and Charlesworth JJ) held that judicial review could be sought of a departmental officer’s decision not to refer a Ministerial intervention request under s 351 to the Minister on the ground of legal unreasonableness. However, the Full Court held that the ground of unreasonableness was not made out in this instance.
In the Full Court judgment, Kenny J clearly stated that ‘there should be no continuing doubt that an exercise of executive power (whatever its source) is amenable to judicial review on the unreasonableness ground’ (para 36). Additionally, the comments by Griffiths J on the interaction between unreasonableness and the non-compellability of the Ministerial intervention powers are compelling. In argument before the Full Court, the Commonwealth had placed particular reliance on the express statement in s 351(7) that the Minister does not have a duty to consider whether to exercise the power in respect of any decision in any circumstances. Griffiths J explicitly and clearly stated in his judgment that he ‘did not accept that contention’. As he explained:
Merely because the power under s 351 is not compellable does not mean that the obligation to act reasonably in the legal sense is displaced. The more important point is that, while the Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any request, the Minister plainly has a statutory discretion in relation to the matter. That is sufficient to attract the general principle in Minister for Immigration and Citizenship v Li … It is open to the Parliament to displace the implied condition of reasonableness on the exercise of that discretion, but the terms of s 351(7) are insufficient to displace the statutory presumption. (para 80)
Given that unreasonableness was not directly addressed by most members of the High Court in their reasons, these comments are significant for future cases relating to non-statutory powers and unreasonableness.
The High Court judgment
As noted above, the reasons in Davis/DCM are complex in relation to the implications of this judgment for the application of unreasonableness. This is because the majority ultimately made orders declaring that the relevant decision made in purported compliance with the 2016 Ministerial Instructions exceeded the executive power of the Commonwealth. It was therefore unnecessary for the court to consider the vexed issue of whether legal unreasonableness applies to exercises of non-statutory power.
I will briefly discuss the Court’s findings on the operation of the 2016 Guidelines, before spending some time highlighting some important obiter remarks by Edelman J on the issue of unreasonableness.
On the issue of the lawfulness of the 2016 Guidelines, it is important to note that much of the discussion in the hearing in these cases focused on whether the Guidelines merely allowed the department officers to provide ‘assistance’ and ‘advice’ to the Minister. The Commonwealth argued that the Guidelines did no more than facilitate the provision of advice to the Minister in particular cases and to operate as a screening mechanism.
On this issue, the majority opinion of Kiefel CJ, Gageler and Gleeson JJ noted the need for ministers to be able to seek administrative assistance from a department:
When conferring on a Minister a discretionary statutory power unaccompanied by any duty to consider its exercise, the Parliament can ordinarily be taken to contemplate that the Minister will be able to task the department administered by that Minister with sorting the wheat from the chaff so as to bring to the personal attention of the Minister only those requests for exercises of discretionary statutory powers which departmental officers assess to warrant the Minister's personal consideration (para 26).
However, the majority highlighted the importance of the personal nature of the power in s 351(3) of the Migration Act. Due to this, it was not possible to have an executive power which entrusted ‘the dispositive evaluation of the public interest in substituting a more favourable decision to an executive officer other than the Minister’ (para 29).
As noted earlier, the 2016 Guidelines provide that cases assessed by the Department as not having ‘unique or exceptional circumstances’ were to be finalised by the Department without referral. The Court found that this essentially covered the ‘public interest’ and held that the Minister had thereby purported to entrust the dispositive evaluation of the public interest to departmental officers. As a result, the Minister had exceeded the statutory limit on executive power imposed by s 351(3) (see eg Kiefel CJ, Gageler and Gleeson JJ, para 38).
Of the separate opinions in the majority, Edelman J was the only judge to make comments about the applicability of unreasonableness to exercises of non-statutory power. Like the others in the majority, Edelman J agreed that it was unnecessary to rule on the issue of unreasonableness. However, Edelman J stated that he wished to make two ‘observations’. These observations can be summarised as follows:
Edelman J stated that there was ‘obvious force’ in the view of Robertson J in Jabbour v Secretary, Department of Home Affairs (which was adopted by several members of the Full Court of the Federal Court in Davis/DCM20) that it would be ‘incongruous’ for reasonableness usually to be an implied condition upon the exercise of statutory executive power, but never to be an implied condition upon the exercise of nonstatutory executive power. Edelman J noted that ‘[t]he fundamental principles of the common law that inform statutory implications must also inform the scope of executive liberty and power which is prerogative or otherwise implied from the creation of a functional Commonwealth polity’ (para 174).
Edelman J also stated that ‘any reasonableness requirement for the exercise of an extremely broad nonstatutory executive power will usually involve a high threshold’ (para 176). Here, Edelman J noted that the decisions of the departmental officers in these cases did not ‘reflect the virtue of exceptional charity and equity – for others, tzedakah or zakah – which is part of the foundations of the grant to the Minister of the liberty and power in s 351(1)’. However, he went on to say that ‘lack of virtue may not be sufficient to establish any high threshold of legal unreasonableness in the result if that issue were to arise’ (para 176).
Implications and Conclusions
The High Court decision in Davis/DCM20 is important in two respects.
First, it clarifies the lawful boundaries of executive guidelines. There is significant incongruence between Parliament granting a minister a personal, non-delegable power and that same minister then allowing public servants to effectively decide which cases warrant the Minister’s consideration. It is important that there has been a ruling on that tension.
This case also demonstrates that the line between a statutory and non-statutory exercise of power is not clearly-defined. Although the decisions by departmental officers were not directly ‘statutory’ in nature, their roles must be understood in the context of the Migration Act and Australia’s constitutional framework. As a number of judges pointed out, departmental officers are part of our constitutional framework – they are members of the Executive and therefore come under the purview of s 61 and s 64 of the Constitution (see eg Davis/DCM20 per Kiefel CJ, Gageler and Gleeson JJ, para 24; Gordon J paras 85, 100-01). As Gordon J quite rightly noted, ‘the power to give an instruction in this context is derived from s 351 of the Migration Act and ss 61 and 64 of the Constitution, not some "non-statutory" source’ (at para 101). Accordingly, there is a strong case for permitting judicial review of such powers where appropriate, that is, in a way which respects the separation of powers. It may be that aspects of some non-statutory powers will be non-justiciable and beyond the proper role of the courts. This was recognised by Kenny J in the Full Federal Court judgment in Davis/DCM20:
It may be accepted that there will be occasions when non-statutory decisions made by the executive in exercise of power in s 61 of the Constitution are not susceptible to analysis according to judicially ascertainable standards capable of application by a court. This may be on account of the nature or subject matter of the exercise of power, or for some other reason. (para 38)
Justice Griffiths, writing extra-judicially, notes that an example of a non-statutory decision which may not be amenable to judicial review would be where ‘there is a heavy component of assessing where Australia’s foreign policy interests fall’ (p 8).
However, given the central role of the judiciary in identifying and enforcing limits on executive power, some care must be taken in categorising powers as ‘non-statutory’ and therefore non-reviewable by the courts.
The second aspect is that both the Full Federal Court decision and the obiter comments of Edelman J in the High Court judgment provide an important framework for the future development of unreasonableness in relation to non-statutory executive power. This is important because unreasonableness is a ground which has developed to constrain the exercise of a statutory rather than non-statutory discretion, but many important decisions are now increasingly made using departmental instructions and other ‘soft law’ instruments. Further consideration will need to be given as to how the threshold of unreasonableness is to be applied; it may be that, as Edelman J stated in Davis/DCM20, the threshold for some cases will be high. As in the application of unreasonableness to statutory powers, application of unreasonableness to non-statutory powers will depend on the context and circumstances of individual cases; what is ‘unreasonable’ may hence vary across different forms of non-statutory exercise of power.
Finally, it may be argued by some that the decision in this case will impede efficiency of decision-making and that guidelines like the 2016 Guidelines are necessary to ensure the good administration of government. I would argue that whilst this may be so, this should be balanced with other significant public law principles and values, including the rule of law and accountability. I would argue that in Davis/DCM20, the High Court got that balance right.
Maria O’Sullivan is an Associate Professor in the Faculty of Law at Monash University. The author has also written a post on this case for Verfassungsblog. That blog post focuses on the migration aspects of the case and takes an international comparative perspective.
Suggested citation: Maria O’Sullivan ‘Limits on Non-Statutory Executive Power: Davis v MICMSMA; Davis v Secretary of Department of Home Affairs [2023] HCA 10’ (14 June 2023) <https://www.auspublaw.org/blog/2023/6/limits-on-non-statutory-executive-power-davis-v-micmsma-davis-v-secretary-of-department-of-home-affairs-2023-hca-10/>