By Dr Michelle Sharpe -
Key decisions
- Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10
- Kingdom of Spain v Infrastructure Services Luxembourg S.A.R.L & Anor
[2023] HCA 11
CONSTITUTIONAL LAW
Executive power of the Commonwealth
In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10 (12 April 2023), the High Court was required to consider whether the Minister’s instructions to departmental officers, and the decisions made by the officers in compliance with those instructions, exceeded the limits of the Commonwealth’s executive power.
Section 349(1) of the Migration Act 1958 (Cth) (‘Migration Act’) empowered the Minister with a discretion to substitute a decision made by the Administrative Appeals Tribunal (‘AAT’) with a more favourable decision if the Minister thinks that it is in the public interest to do so. Relevantly, s 349(2) of the Migration Act provided that the discretion, under s 349(1), could only be exercised by the Minister personally.
The Minister issued certain instructions to departmental officers as to which requests, for the Minister to exercise the discretion under s 349(1), should be brought to the Minister’s attention (‘2016 Ministerial Instructions’). The 2016 Ministerial Instructions provided that in respect of ‘first requests’, only those assessed as having unique or exceptional circumstances should be referred to the Minister, otherwise the request could be ‘finalised’ by the Department alone. In respect of ‘repeat requests’, the 2016 Ministerial Instructions provided that only those requests raising new substantive issues, which the Department has assessed as having unique or exceptional circumstances, should be referred to the Minister. The 2016 Ministerial Instructions also included a non-exhaustive list of unique or exceptional circumstances together with examples.
