Departmental advice in ministerial decision-making: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11
22.5.2024
Anyone who has worked in a government department for more than a brief period knows how much ministers differ in their interest in their portfolio, diligence, and competence. The best ones (from a departmental staffer’s perspective, at least) are efficient, yet seem to be across all of the important details, which they might demonstrate by asking pointed questions which raise issues the department may not have considered. Others are quick, but one gets a sense that they might not have really engaged with issues in their portfolio—that they are simply doing a ‘tick and flick’. They might, for instance, require all briefings to be less than a page long which, on complex policy issues, means leaving out important details and nuances. Then there are ministers who pore laboriously over every detail of even the most mundane, routine decisions.
I did not work in government for long enough to know how common each type of minister is. But I saw enough to appreciate how much is involved in being a minister of the first variety. It requires an extraordinary knowledge of one’s portfolio and a high level of trust in expert, departmental advice. This trust is crucial because ministers (unless they have an unusually narrow portfolio) simply cannot personally exercise every function that our complex, lengthy legislation confers on them, or personally read all of the material relevant to the many decisions they are charged with making.
Administrative law has developed several principles which recognise this reality. First, ministers may formally delegate functions, if delegation is authorised under legislation. Second, the Carltona doctrine allows ministers to act via agents, where there is a practical administrative necessity to do so. Third, even when ministers do make decisions themselves (ie have neither delegated their powers nor appointed an agent to exercise them on the minister’s behalf), ministers are not expected to read every relevant document for themselves. Rather, there is a longstanding principle that ministers may rely on summaries written by their departments, to make decisions, provided that those summaries are accurate and include all of the material facts.
The recent judgment of the High Court in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (McQueen) raised questions about this third set of administrative law principles—the circumstances in which ministers can rely on departmental summaries. The High Court’s judgment itself was somewhat mundane. The Court essentially re-iterated the orthodox principles in overturning the Full Federal Court’s decision. But the re-iteration of these principles in the broader factual context of the case does raise some important questions about the assumptions which underpin the principles. In particular, I suggest in this post that the principles assume that ministers are supported by a professional, expert and independent public service, and highlight the importance of public service expertise and independence to protect the fairness and legitimacy of administrative decision-making.
Factual and Procedural Background
Joseph McQueen is a US citizen who was convicted of drug offences and whose Australian visa was mandatorily cancelled on character grounds as a result. After being notified that his visa had been cancelled, Mr McQueen made representations to the Minister—who at the time was Alex Hawke—urging the Minister to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) to revoke the decision to cancel his visa. The Department of Home Affairs (the Department) summarised Mr McQueen’s representations and other relevant material in a 13-page submission to the Minister, which attached 213 pages of material,[1] including the actual representations made by Mr McQueen. The Department recommended that, if the Minister chose to make the decision personally rather than delegate it, he should decide not to revoke the decision to cancel Mr McQueen’s visa, and provided the Minister with a draft statement of reasons in support of this finding.
The Minister could have delegated the decision, but chose to make it himself. The most significant consequence of this for Mr McQueen was that he had no right to appeal the decision to the Administrative Appeals Tribunal (Tribunal). Decisions made under s 501CA(4) of the Migration Act by departmental officers are subject to merits review, but decisions made personally by the Minister are not (s 500(1)(ba)).
The general policy rationale for excluding decisions made personally by ministers from merits review is that typically ministers only make decisions personally if they are of ‘high political content’, and ministers are directly accountable to parliament for those kinds of decisions. However, the Administrative Review Council has made it clear that the mere fact that a decision-maker is of high status ‘is not, of itself, relevant to the question of review. Rather, it is the character of the decision-making power…that is relevant.’ In other words it is the political nature of decisions typically made by ministers that may, from a policy perspective, justify their exclusion from merits review, not the fact that the minister is the decision-maker. Nevertheless, the Migration Act excludes all decisions personally made by the Minister under s 501CA(4) from merits review, irrespective of their political content. Mr McQueen’s case does not seem to be especially politically sensitive. So it is unclear why the Minister chose to make this decision himself; though a cynic might suspect that it was the fact that Mr McQueen could not appeal the decision that prompted that choice.
That cynic’s suspicion would be bolstered by the evidence indicating that the Minister ‘rubber stamped’ the Department’s recommendations, and gave ‘no actual consideration himself to whether there was another reason to revoke Mr McQueen’s visa cancellation.’ (Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2022] FCAFC 199 (McQueen FCAFC) at [6]). The Minister circled the relevant choices he had made on the front page of the Department’s submission, indicating that he had noted Mr McQueen’s application; would consider it personally; had decided not to revoke the cancellation; had signed the statement of reasons the Department had drafted; and noted that this would mean Mr McQueen would remain in detention until he was removed from Australia (McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 (McQueen FCA) at [5]-[7]). The Minister made no annotations on the submission or statement of reasons, other than indicating these choices and adding his signature at the ‘sign here’ stickers (McQueen FCA at [35]). The Minister made the decision 30 hours and 20 minutes after receiving the submission, during which he travelled from Canberra to Sydney and no doubt had many other demands on his time (McQueen FCA at [6], [46]). And, most curiously, the Minister conveyed his decision to the Department via a photograph of the signed front page ‘decision record’, taken on an unidentified person’s lap, with a car steering wheel in view (McQueen FCA at [9]).
Mr McQueen argued that these facts meant that the Minister had not personally made the decision but had de facto delegated the function to the departmental staff who prepared the statement of reasons, or had failed to give ‘proper, genuine and realistic’ consideration to Mr McQueen’s representations. Mr McQueen also advanced arguments relating to alleged deficiencies in the reasons for decision (McQueen FCA at [15]).
At first instance, Colvin J found that while the Minister had not ‘rubber stamped’ and de facto delegated the function, he had failed to give proper, genuine and realistic consideration to Mr McQueen’s representations (McQueen FCA at [90]). Colvin J relevantly explained (at [63]) that:
[I]t is entirely appropriate for officers of the Minister's department to brief the Minister as to technical and factual matters known to the Department. However, there is an important line to be drawn when a decision-making power is being exercised by the Minister personally. In such cases, Parliament has seen fit to allow or require the deliberative task to be performed by the Minister. A statutory power of that kind is exceeded if the Minister delegates all or any of that deliberative responsibility. In a case like the present, that has particular significance because an exercise of the power under s 501CA(4) by a delegate of the Minister is amenable to merits review, but a personal exercise of the power is not. In either case reasons are required. Plainly, where the Minister acts personally, it is the Minister who is to be accountable for the performance of the responsibility to consider the representations in order to undertake the particular deliberative task required by s 501CA(4).
Colvin J found that the Minister had failed to undertake this deliberative task personally, by acting entirely on the summary provided by his Department (McQueen FCA at [85]).
The Full Federal Court, comprised of Mortimer, Banks-Smith and O’Sullivan JJ, dismissed the Minister’s appeal. Their judgment emphasised the photograph which, they found, suggested that there was a sense of urgency in the Minister’s decision-making (McQueen FCFCA at [49]-[50]). The Full Court also noted the different form in which the summary presented Mr McQueen’s representations, compared to the representations themselves (McQueen FCFCA at [53]-[55]); the format of the departmental submission which had the decision page before the reasons and explanation (at [58]); the absence of any markings on the submission (McQueen FCFCA at [61]); and the large volume of material (McQueen FCFCA at [61]).
The Full Court also agreed with Colvin J on the question of whether the Minister was permitted to rely entirely on the Department’s summary. They noted that the statutory context of the power in s501CA(4) was one in which ‘the odds are stacked against the individual affected’, so that the representations a person in Mr McQueen’s position made were ‘an exercise of persuasion’ (McQueen FCFCA at [80]). They noted that reading Mr McQueen’s representations in full gives a different impression and carries more emotional weight compared with the summary (McQueen FCFCA at [124]).
The Full Court found the fact that the Minister could have delegated the function but chose not to, persuasive, explaining that the fact that the Minister chose to exercise the power personally ‘has consequences for the manner in which the power can be lawfully exercised by the Minister.’ Specifically, given the statutory context in which the representations are an exercise of persuasion, the Full Court said that ‘the satisfaction…must be the Minister’s personal satisfaction…formed by having directly considered those representations, not another person’s summary of them’ (McQueen FCFCA at [82], emphasis in original). They went on to explain that in the context where a Minister chose to make a decision personally (McQueen FCFCA at [128]:
In that situation, Parliament intended that he look at the representations himself, in order to provide an occasion for his own mind to be persuaded by what Mr McQueen had said ... The formation of that state of mind could not occur vicariously through selections of the material made by Departmental officers, and a different classification and presentation of them under the structure of Direction 79. Those selections might assist the Minister in the way Black CJ described in Tickner. But they would remain someone else’s views about what was important from the representations, and it would be someone’s mind which had, or had not, been influenced not only by what the representations said, but how they said it, and what the representations looked like, as we have explained.
The Full Court also agreed with Colvin J that the fact that there is no right to merits review when the Minister choses to make a decision personally, makes it all the more important that the Minister personally consider the representations (McQueen FCFCA at [82]).
The new Minister, Andrew Giles, appealed to the High Court on the narrow question of whether the Minister was entitled to rely on the submission in reaching his own decision. The Government was reportedly concerned about the potential for this particular aspect of the Federal Court judgment to create precedent, but less so about whether the conduct of the former minister (the lap photo and timing) in reaching this particular decision was acceptable. The limited scope of the appeal meant that the High Court, unlike the courts below, was focussed just on whether s 501CA(4) required that the Minister consider submissions in a particular form (that is their original form), and if not, whether the summary provided was deficient.
The High Court Judgment
The High Court unanimously (but in two separate judgments) upheld the Minister’s appeal. The judgment of Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ reasoned that the orthodox position, set out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) and Tickner v Chapman (1995) 57 FCR 45, is that a minister may:
rely on his or her department to sift and organise material received, to prepare summaries of information, and to prioritise correspondence. Generally, there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally (McQueen at [19]).
A minister’s ability to rely on departmental summaries in making decisions, of course, depends on the particular statutory function being exercised, as well as on the nature of the documents (McQueen) at [25]). In certain circumstances, a minister might be required to personally read or look at the primary document. For example, if the legislation expressly or impliedly requires that they consider a particular document, if the information is incapable of being summarised (such as, in some cases, a photograph), or if the departmental summary requests that the minister engage with a document. But the orthodox position is that ministers can, do, and often must (as a matter of practical reality), rely on their departments to summarise material on which they make decisions.
The High Court found nothing in either the statute, or in the material itself in this case, that warranted departure from this orthodox position (McQueen at [26]). In particular, they were unpersuaded, as a matter of statutory interpretation, that s 501CA(4) requires the Minister to personally consider the representations themselves rather than a summary (McQueen at [32]). Unlike the courts below, they did not find the fact that the Minister’s personal exercise of the power deprived Mr McQueen of a right to merits review evinced a legislative intention to depart from the orthodox position.
Jagot and Beech-Jones JJ’s separate, concurring judgment emphasised the point that, so long as the summary on which the Minister relied accurately and effectively conveyed Mr McQueen’s representations, then the Minister had considered those representations (McQueen at [45]).
Broader questions about the relationship between ministers and their departments
In one sense, the High Court’s judgment in McQueen is unremarkable. It essentially re-iterates the orthodox principles we teach in foundational administrative law courses. But it does raise some questions about the implications of these principles for the public service and its relationship with ministers. If ministers are ordinarily able to rely on their departments to perform the ‘deliberative task’ of summarising and organising material and making recommendations, what are our expectations of the way in which the public service will approach that task?
In articulating the relevant principles, the High Court referred to the rationale underpinning them. In Bushell v Environment Secretary [1981] AC 75, Lord Diplock relevantly explained (at p 95) that:
Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise.
As this passage highlights, ministers are the transient, political heads of portfolios. They do not usually have the time or expertise to be across all of the detail of every decision they are legally responsible for making. When Parliament confers decision-making functions on a minister, it does not expect that the minister will read every relevant document for themselves. Rather, Parliament anticipates that ministers will rely on their departments, filled with expert career public servants, to summarise the technical and factual details for them. As the political heads of their portfolios, however, ministers bring their own (or their party’s) political priorities to decision-making. As Brennan J explained in relation to the decision at issue in Peko-Wallsend (at p 63):
a decision under s. 11 (1) is a political decision…That is, it is a decision which the Minister might make having regard to considerations of the public interest as he sees it ... The Minister is not acting as a judge; he is entitled to act upon his view of the public interest - which requires neither evidence nor the Commissioner's comments to prove it - and thus to make a decision which may be contrary to the weight of evidence at the Commissioner's inquiry or contrary to the comments made by the Commissioner …
Like the power at issue in Peko-Wallsend, the power to cancel a person’s visa (and to refuse to revoke a cancellation) similarly refers to the national interest as a consideration.
The assumption that underpins these principles, then, is that public servants are expert professionals, who provide high quality, impartial advice to ministers. It is for the Minister, not the public service, to add political considerations into the decision-making mix. There is no reason to doubt that the public servants who provided the Minister with advice in this particular case meet this standard of providing expert, impartial advice. Or indeed, that most public servants do. But several recent reports have identified a concerning trend of public servants becoming ‘excessively responsive’ to ministers. The Robodebt Royal Commission Report found that the failure of public servants to provide ‘frank and fearless’ advice contributed to the Robodebt program, its continuation, and its devastating consequences. The 2019 Thodey Review on the Australian Public Service and the 2023 Victorian Ombudsman’s Report on alleged politicisation in the Victorian Public Service highlighted the same concern that some public servants had become overly concerned with whether the advice they were giving would be accepted by ministers, and so failing to give frank and fearless advice. All three reports have pointed to the precarious employment and lack of merit-based appointment in upper levels of public service as one of the contributors to this ‘creeping politicisation’.
I hope that the cynic in me is wrong: that there is not a general directive or policy that the Minister will personally make decisions on applications like Mr McQueen’s in order to avoid merits review. But even if there is (or was under the previous Minister) such a directive, a strong public service can protect the integrity, fairness and legitimacy of decision-making. The individuals affected by administrative decisions and the public more broadly have a right to expect that Ministers act based on expert, fair, impartial advice. As the Victorian Ombudsman put it ‘Decisions made in “echo chambers”, not subject to the scrutiny of expert career officials, do not make for good public administration’ (at p 5). The fact that the Minister’s choice to personally make the decision in Mr McQueen’s case deprived Mr McQueen of a right of Tribunal review may not have any implications for the Minister’s ability to rely on a departmental summary and evaluation of Mr McQueen’s submissions. But it does make it more important that the public servants summarising and evaluating Mr McQueen’s submissions are empowered to do so fairly, expertly and impartially.
[1] There was a discrepancy in the Federal Court and High Court judgments as to the length of the documents. I have used the High Court’s numbers here.
Janina Boughey is an Associate Professor in the UNSW Faculty of Law and Justice, and the Director of the Administrative Law and Justice Project in the Gilbert + Tobin Centre of Public Law.
Suggested citation: Janina Boughey, ‘Departmental advice in ministerial decision-making: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11’ (22 May 2024) <https://www.auspublaw.org/blog/2024/5/departmental-advice-in-ministerial-decision-making-minister-for-immigration-citizenship-and-multicultural-affairs-v-mcqueen-2024-hca-11>