By Dan Star QC -
Key decisions
- Minister for Home Affairs v G [2019] FCAFC 79
- Zantran Pty Limited v Crown Resorts Limited [2019] FCA 641
- Brindle v The Corporation of the Trustee of the Roman Catholic Archdiocese of Brisbane operating as Brisbane Catholic Education [2019] FCA 609 (2 May 2019)
- Lewis v The State of Victoria (Department of Education and Training) [2019] FCA 714
- Northern Land Council v Quall [2019] FCAFC 77
Administrative law
Whether an executive policy is inconsistent with a statute and unlawful
In Minister for Home Affairs v G [2019] FCAFC 79 (21 May 2019) the Full Court allowed the Minister’s appeal and set aside a declaration by the trial judge that part of the Australian Citizenship Instructions, a policy document, was inconsistent with the Australian Citizenship Act 2007 (Cth) and unlawful. The trial judge had also held that the decision of the Administrative Appeals Tribunal (‘AAT’) to refuse the applicant’s application for Australian citizenship should be set aside and remitted for determination according to law. There was no appeal from those orders. Note: A summary of the trial judge’s decision in G v Minister for Immigration and Border Protection [2018] FCA 1229 was published on p 93 of the November 2018 edition of the LSJ.
The Full Court addressed the key principles and cases applicable to whether an executive policy is inconsistent with a statute and unlawful at [58]-[62]. The Full Court rejected G’s submission that it is not open to the Minister to challenge the declaration because he has not sought to appeal from the orders of the primary judge setting aside the decision of the AAT and remitting the matter for determination according to law. Murphy, Moshinsky and O’Callaghan stated at [76]: ‘The declaration is a discrete matter and there is no inconsistency between the Minister accepting the correctness of the orders setting aside the decision of the Tribunal and remitting the matter, and challenging the correctness of the declaration’.
