FEDERAL COURT OF AUSTRALIA

Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    For the reasons expressed by Bromwich J, I agree that the appeal must be dismissed with costs.

Associate:

Dated:    27 April 2017

REASONS FOR JUDGMENT

BROMWICH J:

2    This is an appeal from orders of a judge of this Court made on 22 August 2016. The primary judge dismissed the appellant’s application for judicial review of a decision made under s 501CA of the Migration Act 1958 (Cth) not to revoke the cancellation of his Class BF Transitional (Permanent) visa. The appellant’s visa cancellation took place on mandatory character grounds under s 501(3A) of the Migration Act because he had a “substantial criminal record”, within the meaning of s 501(6)(a) upon the basis of s 501(7)(c) of the Migration Act, arising from a criminal conviction and single sentence in excess of 12 months.

3    The cancellation decision was made by a delegate of the respondent Minister for Immigration and Border Protection. The decision not to revoke the appellant’s visa cancellation was made in person by the Parliamentary Secretary to the Minister for Immigration and Border Protection, using the title “Assistant Minister for Immigration”.

4    This appeal raised two issues by which the appellant seeks to establish error on the part of the primary judge. The first issue was whether the Parliamentary Secretary was a “person” bound by Direction No. 65 made by the former Minister under s 499(1) of the Migration Act on 22 December 2014 (Direction 65) by virtue of s 499(2A). The second issue was whether the Parliamentary Secretary failed to take into account particular parts of Direction 65. The second issue only arose for determination if the appellant succeeded on the first issue, the second issue otherwise being hypothetical.

Background

5    In March 1988, the appellant arrived in Australia with his family from Poland. He was seven years old. He became homeless when he was about 14. He commenced committing criminal offences when he was about 16. He was first convicted when he was 18, initially having the benefit of no conviction being recorded for offences committed whilst a minor.

6    In April 2005, a delegate of the Minister cancelled the appellant’s visa. The decision was based on criminal convictions involving imprisonment. In July 2005, the Administrative Appeals Tribunal set aside that cancellation decision.

7    In December 2008, February 2010 and June 2010, the appellant committed further offences which resulted in gaol terms. The December 2008 and June 2010 sentences were each for multiple offences. The sentence for each offence was below the 12 month single sentence threshold for mandatory visa cancellation. However the February 2010 offence was more serious and resulted in a single sentence well over that threshold.

8    It is not necessary to describe the February 2010 offence in much detail. The appellant took offence at an older man making derogatory comments towards, and perhaps inappropriately making physical contact with, his female partner. An altercation ensued with the older man. The appellant inflicted serious injuries on the older man using his fists.

9    At his jury trial in August 2011, the appellant did not deny what he had done, but contended his actions had been in self-defence or alternatively that his conduct had been reckless rather than intentional. The jury did not accept that he had acted lawfully in self-defence. The jury found him not guilty of the offence of without lawful excuse intentionally causing serious injury, but guilty of, without lawful excuse, recklessly causing serious injury.

10    On sentence, the trial judge accepted the characterisation of the offence as being an overreaction in the heat of the moment to some degree of provocation, and that the appellant was remorseful. The appellant was sentenced to a term of imprisonment of three years and six months, with a non-parole period of two years and four months, less time served in custody prior to sentence. The applicable maximum penalty was 15 years’ imprisonment.

11    On 13 January 2015, nine days before the appellant was due to be released from prison, his visa was again cancelled by a delegate of the Minister. Upon concluding his prison sentence, he was taken into immigration detention where he has remained ever since, a period now in excess of two years.

12    On 19 February 2015, the appellant made a request to the Minister to revoke the cancellation decision pursuant to s 501CA(4) of the Migration Act. Thirteen months later, on 18 March 2016, the Parliamentary Secretary decided that he was not satisfied that the appellant passed the character test and was not satisfied that the original decision should be revoked for any other reason.

13    All of the appellant’s family, apart from a grandparent living in Poland, live in Australia. This includes a grandparent, mother (who is dying of cancer), father, stepfather, brother, sister, two uncles, two aunts, two nieces, seven nephews, three cousins and probably most importantly, his now 14-year-old daughter. He is now 36 years of age. He knows no one in Poland and apparently barely speaks Polish, leading to poor prospects of obtaining employment there. The material before the Court indicates that he has serious physical and mental ailments and that health care in Poland is of substantially lower quality than is available in Australia. All of these matters were specifically referred to in the 18 March 2016 written reasons signed by the Parliamentary Secretary for his decision not to revoke the visa cancellation (Reasons).

14    The Reasons at [12] list the grounds advanced by the appellant as to why the mandatory visa cancellation decision should be revoked. They include in particular the best interests of his minor child, his strong and long-standing ties to Australia, having arrived as a child, the emotional hardship his family would suffer (especially his mother with advanced cancer) and the hardship he would suffer due to his lack of support in Poland and cultural and language differences. He sought also to address his offending behaviour and his risk of reoffending, among a range of other considerations.

15    Each of the considerations expressly raised on behalf of the appellant for revoking the visa cancellation decision was addressed in the Reasons, with most of the personal factors being found to support the conclusion that the visa cancellation should be revoked. However the Reasons also include a finding that the Australian community would expect non-citizens to obey Australian laws while here; and that when this has not occurred or there is an unacceptable risk this may not occur in the future, it may be appropriate not to revoke the mandatory visa cancellation for such a person. The Reasons state that appellant had breached the “trust” accompanying such a community expectation because he had been convicted of multiple violent, property, dishonesty and other offences in Australia. The Reasons record a finding that the Australian community would expect that the appellant should not hold a visa.

16    The theme of community protection was further developed in the Reasons by considering the need to protect the Australian community and referring in some detail to the appellant’s criminal record. Particular emphasis was placed on the September 2011 sentencing reasons which described the injuries inflicted by the appellant on the older man. Any risk of repetition of such offending was held in the Reasons to be unacceptable.

17    The Reasons conclude that the appellant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the primary considerations of the best interests of his child and other minor family members, as well as any other considerations, including his lengthy residence and bonds from a young age, employment and community activities, efforts towards rehabilitation, familial and social ties to Australia, and the hardship that he, his family and particularly his seriously ill mother would face if the visa cancellation decision was not revoked.

18    Relevantly, at the time that the Parliamentary Secretary made the decision not to revoke the appellant’s visa cancellation, Direction 65 made on 22 December 2014 by the former Minister was in force. Entitled “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”, it provided directions binding upon the decision-makers to whom it was addressed in the performance of functions and exercise of powers under the Migration Act.

19    The Reasons do not expressly refer to Direction 65. Whether it was in fact considered and taken into account by the Parliamentary Secretary remains an open question in this appeal, although it only arises for consideration if the threshold issue below is established.

The threshold issue

20    The threshold issue in this case is whether the Parliamentary Secretary was a “person” bound by Direction 65.

21    The Minister’s power to issue a binding direction was conferred by s 499 of the Migration Act, which provides as follows:

499    Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

(3)    The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)    Subsection (1) does not limit subsection 496(1A).

22    Direction 65, given by the former Minister under s 499(1), was specifically, by its heading and contents, concerned with decisions as to visa refusal and cancellation made under s 501 of the Migration Act, and revocation of a mandatory cancellation of a visa made under s 501CA of the Migration Act. By reason of s 499(2A), a “person” the subject of Direction 65 was bound to comply with it when making any such decision.

23    The substance of the appellant’s case is that the Parliamentary Secretary was a “person” bound by Direction 65 by force of s 499(2A), making applicable parts of that direction mandatory relevant considerations required to be taken into account in the exercise of jurisdiction to make the revocation decision.

24    It is common ground that – by reason of the terms of s 19(1) item 1 and s 20 of the Acts Interpretation Act 1901 (Cth), reproduced and discussed below – the “Minister” referred to in s 499(1), (2) and (3) can be either the Minister or the Parliamentary Secretary. It is also common ground that the expression “a person” in s 499(1) and (2A) is not a reference to the Minister by reason of a line of authority that is not challenged, discussed in more detail below.

25    It is also not disputed that the Parliamentary Secretary was performing the functions and exercising the powers of the “Minister” in making the decision now under challenge. There was no suggestion that the Parliamentary Secretary was merely a delegate of the Minister under s 496 of the Migration Act.

26    Rather, the appellant asserts that the terms of s 499 of the Migration Act by which directions may be issued by the Minister were such that they bound not just delegates of the Minister, but also any other “Minister” administering the Department of Immigration and Border Protection and Migration Act who was subordinate in rank or status to the Minister who issued such a direction, most clearly by the designation of being a Parliamentary Secretary to such a Minister.

27    The Minister’s case is that the Parliamentary Secretary was not so bound. Indeed, the Minister’s case goes a step further, and asserts that, in keeping with well-established principles of administrative law, the Parliamentary Secretary would have erred in treating himself as being bound by Direction 65.

28    The Minister argues that the Parliamentary Secretary treating himself as bound by Direction 65 would constitute an unlawful fettering of his discretion which was to be limited only by the terms of the statutory provisions governing the exercise of the revocation power. In support of that proposition, the Minister relies upon the statement of principle to that effect in Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35; (2003) 216 CLR 277 per Gleeson CJ at 286-7 [17], citing and quoting from R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496-7; see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590.4.

29    The Minister also pointed to Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667 at 670 [10], in which Dowsett J observed that in the absence of express provisions to the contrary, the Minister cannot fetter his (or her) own exercise of discretion, in that case under s 501, but may formulate a policy to guide that exercise. That view was endorsed by Jacobson J in Ongel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 525 at [64].

30    It is common ground that the cases that touch on this issue are direct authority, albeit without detailed reasoning, for the narrower proposition that the Minister is not personally bound by a direction issued by him or herself or by a prior Minister under s 499(1) of the Migration Act. Particular reference may be made to the following authorities as containing the strongest or clearest statements that the Minister or successor Minister will not be bound by a direction under s 499 of the Migration Act:

(1)    Bukvic v Minister for Immigration and Multicultural Affairs [2001] FCA 517; (2001) 110 FCR 554 at 557 [6]-[8];

(2)    Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327; (2004) 139 FCR 580 at 585 [31]; see also 595-6 [106]-[110], 597 [113]-[115] and 598 [122]-[123]; and

(3)    NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at 4 [6].

31    On the Minister’s case, the application of the principle against fettering discretion in the exercise of a statutory power without clear or express statutory authority to do so did not preclude the Minister (including the Parliamentary Secretary) having regard to considerations that are consistent with (or at least not inconsistent with) the terms of the power bestowed, such as government policy, including Direction 65.

Before the primary judge

32    The primary judge accepted the Minister’s contention that the Parliamentary Secretary was not bound by Direction 65.

33    The primary judge observed at [49] of his reasons that once it was accepted that the “Minister” referred to in s 499(1) included the Parliamentary Secretary appointed to administer the Department together with the Minister, the appellant’s argument became difficult to sustain. This observation was made in the context of the prior authority cited and quoted as to the Minister not being bound by his or her own direction or one issued by a prior Minister. His Honour adopted with approval the observation of French J in Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at [10] that, as a matter of syntax, s 499 did not bind the Minister. The primary judge in this case applied the syntax reasoning in Damanik to reach the conclusion that the persons or bodies to whom directions are given are other than the Minister or the Parliamentary Secretary. The primary judge therefore concluded that the Parliamentary Secretary was not bound to comply with Direction 65.

34    The appellant did not at any stage challenge the prior authorities as to the Minister not being bound by a s 499(1) direction, but contended that those authorities did not dictate the outcome in this case in relation to whether or not the Parliamentary Secretary was bound by Direction 65 by reason of it having been given by the former Minister. The appellant contended that the primary judge erred by treating the prior authority as leading to the conclusion that the Parliamentary Secretary also was not so bound.

The legal context

35    In considering this appeal, it is accepted that – as submitted by the Minister and not opposed by the appellant – the exercise of a discretion reposed by statute can only be fettered by reasonably clear statutory authority, whether by the terms by which the discretionary power is granted or otherwise. The arguments in support of and opposing the proposition that the Parliamentary Secretary is bound by Direction 65 must therefore be considered in the context of this principle with reference to the language and interpretation to be given to the terms of s 499 of the Migration Act, when read with the Constitution, the Interpretation Act and the executive orders made by the Governor-General appointing the Parliamentary Secretary and allocating ministerial duties.

36    It is important to emphasise that no controversy as to the interpretation of the Constitution is involved, although reference has been made to its plain terms as a matter of the framework and context guiding the interpretation of the legislative provisions and the effect of their implementation. It was common ground that there was no need for notices under s 78B of the Judiciary Act 1903 (Cth).

37    It is helpful now to turn to the relevant provisions of the Constitution, the Interpretation Act, and executive orders made by the Governor-General.

38    Section 62 of the Constitution provides as follows:

62    Federal Executive Council

There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

39    Section 64 of the Constitution relevantly provides as follows:

64    Ministers of State

The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

…

40    Section 65 of the Constitution provides as follows:

65    Number of Ministers

Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.

41    It was observed in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at 451 [184] that the effect of s 64 of the Constitution is that those appointed as Ministers of State must be members of the Federal Executive Council. That reasoning necessarily places all such Ministers of State at the peak of federal executive power as advisors to the Governor-General by reason of s 62 of the Constitution. Those appointed to offices prescribed by the Parliament as contemplated by s 65, and appointed to administer departments of State of the Commonwealth established by the Governor-General in Council under s 64, are Ministers of State. There is no constitutional distinction between cabinet ministers, ministers or parliamentary secretaries.

42    As contemplated by the above terms of s 65 of the Constitution, s 4 of the Ministers of State Act 1952 (Cth) provides that the number of Ministers of State must not exceed 12 parliamentary secretaries and 30 other ministers. No other title is used for any Minister of State in that Act, the Constitution, the Interpretation Act or the Migration Act, such as “Assistant Minister”. Any such title is a matter of usage rather than reflecting any formal position or office held. Nothing turns on the Parliamentary Secretary having used the title “Assistant Minister for Immigration” on the decision record or the Reasons signed by him, instead of the formal title of his appointment for the office he held.

43    On 30 September 2015, the Governor-General made an “Administrative Arrangements Order” which revoked all prior administrative arrangements. The order, including its schedule, detailed the matters dealt with by each department of State and the legislation administered by “the Minister” for each department. The version of the schedule to this order provided to this Court was published as amended by a subsequent Order in Council of 18 February 2016 referred to below. In the case of the Department, the matters dealt with include “entry, stay and departure arrangements for non-citizens”. The list of legislation administered by “the Minister” for the Department includes the Migration Act.

44    On 18 February 2016, the Governor-General appointed the Parliamentary Secretary to administer, inter alia, the Department and to hold the office, inter alia, of Parliamentary Secretary to the Minister, pursuant to ss 64 and 65 of the Constitution respectively.

45    The Acts and Instruments (Framework Reform) Act 2015 (Cth) relevantly amended the Interpretation Act so that by the time of the Parliamentary Secretary’s decision not to revoke the appellant’s visa cancellation on 18 March 2016:

(1)    section 19(1) item 1 read as follows:

If a provision of an Act refers to a Minister, the following table provides which Minister the provision refers to in relation to a particular matter (the relevant matter) on a particular day (the relevant day).

…

(2)    section 20 read as follows:

References to holders of appointments, offices and positions in Acts and Commonwealth agreements

In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being:

(a)    hold or occupy the office, appointment or position; or

(b)    perform the duties of the office, appointment or position.

46    It may be seen that the combined effect of the above provisions is to confirm that the word “Minister” as it appears in s 499 of the Migration Act is a reference both to the Minister and to the Parliamentary Secretary. This interpretation was not in dispute.

47    The above amended provisions are different in form, but not in substance, to the provisions that preceded them in the former s 19A (corresponding to the above s 19(1) item 1) and in the former s 20 (corresponding to the above present version of s 20) of the Interpretation Act. Authority on the prior provisions is directly applicable to the corresponding present provisions.

48    Section 2 of the Interpretation Act provides that it applies to all Acts subject to a contrary intention. The appellant did not rely upon any overt expression of any relevant contrary intention in relation to the application of s 19(1) item 1 and s 20 of the Interpretation Act to the provisions of the Migration Act under consideration in this case.

49    In Re Patterson it was held that the appointment of a parliamentary secretary as a Minister of State was not invalid and that the appointment of two persons to administer a department was not inconsistent with s 64 of the Constitution: see 403 [17], 415-6 [66]-[67], 464-5 [220]-[221], 498 [320], 519 [380]. The parliamentary secretary in that case was the “Minister” exercising the powers personally under s 501 of the Migration Act: see Re Patterson at 452 [187]; see also 398 [1], 413 [55], 416 [68], 499-500 [325]; but cf 420 [87]. That conclusion also flows through to two persons exercising powers personally as the “Minister” under the Migration Act. There was no suggestion in this appeal that any different conclusion should be reached in relation to s 501CA of the Migration Act. These conclusions applied to the actions of the Parliamentary Secretary in this case.

50    The case advanced on behalf of the appellant did not take issue with any of the above reasoning.

The parties’ competing interpretations

51    The case advanced on behalf of the appellant was that, notwithstanding that the Parliamentary Secretary made the decision not to revoke the visa cancellation personally and in his capacity as the “Minister”, there was nonetheless a status-based hierarchy as between the Minister and the Parliamentary Secretary. This was said to be so despite both being Ministers of State for the purposes of the Migration Act as contemplated by s 19(1) item 1 and s 20 of the Interpretation Act, an arrangement found to be valid by the High Court in Re Patterson. The essence of the appellant’s argument is that this hierarchy meant that the Parliamentary Secretary, in making the personal decision not to revoke the visa cancellation, was bound to apply Direction 65 by s 499(2A) of the Migration Act.

52    The question is therefore one of statutory construction, as affected by the concept advanced on behalf of the appellant of a status hierarchy. It depends upon there being a meaningful distinction between powers under the Migration Act, which it was accepted were allocated equally both to the Minister and to the Parliamentary Secretary, and hierarchy based on status affecting the interpretation and operation of s 499 of that Act. It necessarily requires that s 499 be interpreted in a way that requires the discretion of the Parliamentary Secretary in exercising the revocation power personally as the “Minister”, and therefore as a Minister of State, to be fettered by Direction 65.

53    The case advanced on behalf of the Minister was that references in the Migration Act to the “Minister” do not relate to a specific natural person but rather to any holder or holders of the office for the purposes of that Act, as specifically provided by s 20 of the Interpretation Act. Further, s 19(1) item 1 of the Interpretation Act provides that if a provision of an Act refers to the “Minister” without identifying the Minister, that is a reference to the Minister or any of the Ministers administering the provision on the relevant day in relation to the relevant matter, which then applies to the references to the “Minister” in the Migration Act and in particular to references within ss 499 and 501CA.

54    The Minister therefore contended that the correct interpretation of s 499 of the Migration Act was that it created a dichotomy between:

(1)    the Ministers of State appointed to administer the Department and allocated responsibility for administering that Act who gave or could give directions at any point in time; and

(2)    those to whom such directions were given and who were then bound, being a class other than such Ministers of State from time to time, however described.

This asserted dichotomy preserves the principle that a Minister of State is not to be fettered in the exercise of discretion other than by the terms of the statute bestowing the power in question (or perhaps another legislative provision). On this interpretation it did not matter who was the individual “Minister” giving the direction, nor when it was given. The Minister’s case was that once a direction is given under s 499(1), unless and until it was revoked or replaced, the operation of s 499(2A) made it binding on delegates, tribunals or any other decision-maker performing functions or exercising powers under the Migration Act other than Ministers of State appointed to administer the Department and allocated responsibility for administering the Migration Act.

55    On the Minister’s argument, all holders of an office of Minister of State appointed to administer the Department and allocated responsibility for administering the Migration Act would not be bound by a direction given under s 499(1) of that Act for so long as they held that office. That reasoning and conclusion applied whatever title any Minister of State responsible for administering the Migration Act held, including the present nomenclature of Parliamentary Secretary. Necessarily, the Minister’s argument denied that any concept of a status hierarchy that might exist between Ministers of State administering the Migration Act affected the interpretation of s 499 so as to make Direction 65 binding on the Parliamentary Secretary. Whether such a hierarchy might exist for other purposes does not need to be determined.

56    Counsel for the appellant based his argument for the existence of a status hierarchy between Ministers of State responsible for administering the Migration Act on the application of what he described as two rules of statutory construction, followed by two fundamental principles about the exercise of public power. The application of these rules and principles was advanced as the means to explain why the Minister issuing a direction did not bind himself nor a successor in that same position, in accordance with existing authority, but did bind the Parliamentary Secretary. Those rules and principles were stated to be as follows:

(1)    The first asserted rule was a “natural meaning rule” going to the question of whether the Parliamentary Secretary was a “person” within the meaning of that word in s 499 of the Migration Act. Counsel for the appellant posited that on such a natural meaning, the answer had to be “yes”.

(2)    The second asserted rule was that terms used in one Act should ordinarily be given an interpretation consistent with their use elsewhere in the same Act. It was argued that because the phrase “person or body” as used in ss 198AHA and 501L of the Migration Act applied to a member of the relevant executive council (albeit not of the Federal Executive Council, but rather non-federal domestic or overseas ministers), consistent usage demanded that the phrase “person or body” be given the same meaning in s 499 of the Migration Act. Therefore, it was contended, “person” as it appears in the phrase “person or body” in s 499 was capable of, and in the situation in this case did, refer to a Minster of State responsible for administering the Migration Act apart from the Minister who gave the direction.

(3)    The first asserted fundamental principle about the exercise of public power was that the holder of a public office cannot direct or bind him or herself in the exercise of the powers of that office.

(4)    The second asserted fundamental principle about the exercise of public power was that the holder of a public office cannot direct or bind a public officeholder who is hierarchically superior, but can direct or bind a public office holder who is hierarchically subordinate, even if the two officeholders have equivalent power.

Consideration

57    Turning first to the rules of statutory construction advanced by the appellant, it is accepted that each of the two asserted rules of statutory construction is uncontroversial in the abstract. The controversy arises from the way in which they are sought to be used. The argument as developed by counsel for the appellant was that their application leads to the conclusion that a “person” within the phrase “person or body” includes the Minister, either on a natural meaning because the Minister is in fact a person, or because in ss 198AHA and 501L “person” in the same phrase includes Ministers. That is the appellant’s starting point.

58    However, taken alone that conclusion produces an inconsistency between that outcome whereby the Minister would be bound to follow Direction 65 and the line of authority that holds that a Minister is not bound by his own directions and cannot fetter his own discretion. The appellant’s argument that follows about status hierarchy is then intended to resolve that inconsistency.

59    The two asserted rules of statutory construction do not, however, so clearly lead to the starting point relied upon by the appellant. In relation to the first asserted rule, the natural meaning of the word “person” begs the question as to whether or not it refers to the Parliamentary Secretary, but is not capable of providing the answer on its own.

60    In relation to the second asserted rule as to consistency of meaning of words and phrases, the word “person” as it appears in the phrase “person or body” in ss 198AHA(1) and 501L(7) of the Migration Act is indeed apt in the context of those sections to apply to Ministers as “persons” (albeit Ministers of foreign countries in relation to s 198AHA and Ministers of Australian States or Territories in relation to s 501L). However those provisions are sufficiently different when compared to the syntax and context of s 499 to provide a weak basis for concluding that the same construction follows in relation to s 499, even as a starting point. That is especially so as the appellant’s argument accepts that the Minister is not a “person” referred to in s 499 and seeks only to apply the word “person” to the Parliamentary Secretary, and even then only when the Parliamentary Secretary is not the person who gave a direction. As a matter of logic it is difficult to see why a principle of consistency of meaning for a particular word or phrase would operate as between different sections in disparate parts of the same Act dealing with different subject matter, but not within the same provision, let alone having a meaning that changes according to circumstances such as who has issued a direction.

61    It follows that neither of the asserted rules of statutory construction relied upon by the appellant provide even the starting point for the outcome that the appellant seeks, namely that “person” in the phrase “person or body” is capable of including a reference to a Minster of State. However even assuming that the starting point is made out, a number of distinct hurdles remain.

62    The first asserted fundamental principle about the exercise of administrative power is reflected in the well-established principle, referred to at [27] above by reference to Neat Domestic Trading, that (absent legislative provision to the contrary) an administrative decision-maker, and thus a Minister of State, cannot fetter the exercise of his or her discretion other than by application of the terms of the statutory provisions governing the exercise of the relevant power. The decision-maker can have regard to considerations that are not contrary to such a power, such as government policy, including in this case Direction 65. The broader principle was advanced by the appellant, but insufficient regard was had to its ambit and the scope for adverse effect on his argument. Properly considered, this principle ordinarily requires statutory clarity before a statutory discretion may be fettered, and usually must be achieved by express language. That clarity is present in s 499(2A) for decision-makers who are delegates or Tribunal members, whereas for the appellant’s argument to succeed it must be capable of being inferred to apply, in certain circumstances, to a particular Minister of State appointed to administer the Department and allocated responsibility for administering the Migration Act. Such an inference should not lightly be drawn, and even less so readily when it necessarily involves fettering the personal discretion of a concurrently appointed Minster of State.

63    The second asserted fundamental principle about the exercise of administrative power, to the effect that the holder of a public office can direct or bind a public office holder who is hierarchically subordinate even if the two officeholders have equivalent power, was not advanced with any support from authority, but rather was sought to be drawn from the terms of s 499 itself. The appellant’s argument relies upon it being established that the structure of s 499 places persons exercising the powers of the Minister under s 501CA who are not delegates (relevantly in this case the Parliamentary Secretary) in a position subordinate to the Minister but superior to delegates. Counsel for the appellant argued that “almost the singular purpose” of s 499 is to “spell out how the hierarchy of public power in this limited respect operates”. He argued that this was because s 499, when considered closely, identifies a hierarchy:

(1)    from the Parliament at the top of the hierarchy to the Minister who issued Direction 65, reflected in s 499(2);

(2)    from that Minister to other persons exercising the powers of the Minister who were not delegates (relevantly in this case, the Parliamentary Secretary), reflected in s 499(2A); and

(3)    at the bottom of the hierarchy, to delegates in the exercise of powers delegated under s 496(1A).

64    A critical part of this argument for the existence of a hierarchy between the Minister and other persons exercising the powers of the Minister who were not delegates (relevantly in this case, the Parliamentary Secretary) depends on the meaning to be derived from the reference to s 496(1A) in s 499(4), namely “Subsection (1) does not limit subsection 496(1A)”. Section 496 relevantly provides:

496    Delegation

(1)    The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.

(1A)    The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

…

(5)    Subsection (1A) does not limit subsection 499(1).

65    It should be noted that directions under s 499(1) are confined to written directions, whereas directions under s 496(1A) are not so confined. Further, written directions under s 499(1) are required to be tabled in Parliament: s 499(3). It follows that directions under s 499(1) are both public and formal, as well as clearly binding on delegates and Tribunal members as an overt fetter on discretion.

66    The appellant’s argument was that, because s 499(4) refers to s 496(1A), the source of restraint on the exercise of power by a delegate is a direction under s 496(1A) to the complete or substantial exclusion of a direction made under s 499(1), leading to the submission on behalf of the appellant that s 499(2A) has “almost no work to do in respect of delegates”. It followed, the submission went, that the reference to a “person” in “person or body” in s 499 must at least include a reference to the Parliamentary Secretary in order to give s 499(2A) real work to do. This argument cannot be accepted for the following reasons.

67    Just as s 499(4) provides that s 499(1) does not limit s 496(1A) as relied upon by the appellant, s 496(5) provides that s 496(1A) does not limit s 499(1). That is, neither the power to direct the exercise of delegated powers in s 496(1A), nor the power to direct the performance of functions or the exercise of power under the Migration Act in s 499(1) limits the other power. They are separate and independent sources of power reposed in a Minister of State administering the Migration Act to give directions for the purposes of decision-making and related administrative actions. It follows that s 496(1A) does not of itself support any conclusion that s 499(2A) has limited work to do in relation to delegates, let alone support any conclusion as to the absence of any actual or practical application to them in aid of the proposition that the reference to “person” in the phrase “person or body” in s 499 must therefore include a reference to the Parliamentary Secretary.

68    There is no restriction or even limitation on the application of s 499(2A) to delegates to be found in the reference to s 496(1A) in s 499(4). Even if directions that fettered the exercise of power by delegates were mostly in fact derived from an oral or written direction made under s 496(1A) rather than from a written direction made under s 499(1), that circumstance does not of itself provide any basis for concluding that Direction 65 made under s 499(1) is, by the operation of s 499(2A), binding on the Parliamentary Secretary as a “person”. This reasoning therefore does not assist the appellant in his argument that the word “person” includes the Parliamentary Secretary.

69    The rejection of the argument that s 499(2A) does not have any significant application to delegates because of the reference to s 496(1A) in s 499(4) undercuts a significant plank of the appellant’s case that “person” must therefore refer to the Parliamentary Secretary in order to give s 499(2A) real work to do. That argument therefore fails, as a matter of statutory construction, to create the critical part of the hierarchy upon which the appellant’s case relies, namely as between the Minister and the Parliamentary Secretary.

70    The basis for the existence of a status hierarchy relevant to the operation of s 499 asserted on behalf of the appellant also depends, to a lesser extent, upon a number of propositions which do not depend upon the terms of the section, but were said to support the interpretation being urged upon this Court. First, it was argued that the title of Parliamentary Secretary to the Minister suggests subordination. Secondly, it was argued that the antecedent existence of the hierarchy was consistent with the ordinary customs and practices adopted in the Parliament, as described in Odgers’ Australian Senate Practice and also detailed in The role of parliamentary secretaries by M Healy, by which it was sought to be demonstrated that parliamentary secretaries function as assistants to ministers, with only the latter sitting in Cabinet and made accountable to Parliament at question time. However much these additional arguments might give comfort to the correctness of a conclusion otherwise reached in favour of the appellant, they cannot of themselves affect the meaning to be attributed to s 499 of the Migration Act. They cannot overcome the deficiencies in the construction argument relied upon by the appellant and rejected above.

71    The customs and practices of the Parliament and the practicalities of politics, as well as the appointment of the Parliamentary Secretary to the Minister, probably mean that the Parliamentary Secretary is subordinate to the Minister in a day-to-day sense, including as to the allocation of who will deal with particular issues and problems. But the Parliamentary Secretary is not placed by the Constitution or by the Migration Act in any subordinate position when it comes to exercising powers under that Act. Customs, practices, practicalities, titles and even political realities do not afford any proper basis for concluding that the exercise of the power otherwise equally bestowed is subject to differential operation going to the heart of the exercise of discretion. Were the Minister able to bind the Parliamentary Secretary in the manner of the exercise of a power otherwise equally bestowed, that power would not, at least in its implementation and exercise, be equal, at least in relation to any topic upon which the Minister chose to give a direction under s 499(1). One repository of power would be fettered by the direction of the other. In this way, the exercise of legislative power would be qualified by the exercise of executive power in a manner not specifically provided for by Parliament. Clear and express words would be needed to achieve such an outcome. Such words are not to be found in s 499.

72    A further factor running against acceptance of the appellant’s overall argument is that there is no readily discernible need for any hierarchical divide in the exercise of power under the Migration Act by different Ministers of State based on whether or not they are described in a statute of the Parliament as a “Minister” as opposed to as a “Parliamentary Secretary”. The statutory policy in favour of creating such an additional hierarchy encroaching on the exercise of power suggested on behalf of the appellant of consistency in Minister of State decision-making is a solution in search of a problem that has not been demonstrated to exist, let alone be the subject of any apparent Parliamentary intention to correct or address. It also overlooks the fact that the evident central concern manifested clearly enough by the terms of s 499 is consistency between the decisions of non-Ministers of State. The need for such consistency by the device of a direction may be seen as being greater for the decisions made by delegates and the Tribunal (formerly several tribunals) who are not a part of the elected body politic and whom a Minister of State may wish to bind to a particular policy of the government of the day. Elected officials are required to be viewed differently in relation to decision-making than are courts, tribunals and even delegates: Minister for Immigration Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 533 [78], 539 [102], 564-5 [187], 583 [245].

73    In any event, as a matter of practicality and volume, the relatively few decisions able to be made by Ministers of State personally relative to those of delegates and tribunals, at least under the Migration Act, do not have the same problem with achieving the objective of reasonable consistency in the application of policy that is inherently desirable in any form of discretionary decision-making. Such a consideration is, in any event, insufficient to alter an otherwise clear and rational basis for statutory construction which does not recognise such an additional hierarchy affecting the differential exercise of power by a Minister of State otherwise fettered only by the terms of the power bestowed and any attendant principle of legality, including jurisdictional error.

74    A further problem with the arguments advanced on behalf of the appellant is that the Parliamentary Secretary has a power to revoke or amend a Direction given under s 33(3) of the Interpretation Act. While doing so against the wishes of the Minister might provoke a political controversy or even crisis, it was accepted that such a power exists and can be exercised by the Parliamentary Secretary. The existence of such a power is a further reason to doubt the existence of a hierarchy as between the Minister and the Parliamentary Secretary for the purposes of s 499 of the Migration Act. The revocation power in this context may be seen to render the practical effect upon the exercise of power based on hierarchy for the purposes of s 499 illusory. It would be an improbable outcome that a person who has power to vary or vacate a s 499(1) direction should be regarded as someone who was intended to be bound by it. It would seem that on this reasoning the Parliamentary Secretary would not be bound by the parts of a direction that he or she varied, but remain bound by the parts left untouched. There is no apparent rational Parliamentary intention to support such an outcome.

75    The arguments forcefully and skilfully advanced on behalf of the appellant cannot overcome the plain words of both s 499 of the Migration Act and ss 19(1) item 1 and 20 of the Interpretation Act which place the Minister and Parliamentary Secretary on an equal footing when it comes to the exercise of the power in s 501CA of the Migration Act. Those plain words unambiguously support the dichotomy relied upon by the Minister. There is insufficient basis to infer the existence of any status hierarchy for the purposes of s 499, let alone such a hierarchy that would so fundamentally alter the well-established principle that the exercise of a discretion other than by the terms by which the power to be exercised is bestowed is not to be fettered, as opposed to being able to be guided, by policy. That principle has particular force when the power is being exercised by a Minister of State in person. When either the Minister or the Parliamentary Secretary personally exercises the power in s 501CA, they each do so without being fettered by Direction 65, although both may be guided by it.

76    It follows from the foregoing that the word “Minister” as it appears in s 499, when read with s 19(1) item 1 and s 20 of the Interpretation Act, means any Minister of State appointed to administer the Department and allocated responsibility for administering the Migration Act. The word “person” in the phrase “person or body” in s 499 means anybody other than such a Minister of State who personally exercises powers or performs functions under that Act (as opposed to doing so under the auspices of a “body” such as the Tribunal). Viewed in this way, the terms of s 499 do not reflect or recognise any ministerial hierarchy, which might otherwise exist in other contexts, as disturbing that dichotomy or operating to qualify differentially the exercise of the power in s 501CA(4).

77    Section 499 fulfils its evident statutory purpose of enabling Ministers of State to dictate the exercise of discretion by non-Ministers of State, a fetter otherwise not permissible. Viewed in this way, s 499 may be seen at most to reflect or recognise a hierarchy which recognises or places the Parliament at the apex (of course subject to the powers of the Governor-General under the Constitution), then the Ministers of State appointed to administer the Department and allocated responsibility for administering the Migration Act, and then any other persons or bodies performing functions or exercising powers under the Migration Act (being delegates and the Tribunal).

78    It follows that the Minister’s argument must be accepted. There are two classes contemplated by s 499:

(1)    one or more members of the Federal Executive Council who are eligible to be and are appointed Ministers of State appointed to administer the Department and allocated responsibility for administering the Migration Act who can issue directions under s 499(1), but none of whom are bound by any such directions while holding such an office; and

(2)    persons or bodies to whom such directions are issued and who are bound by any such direction in the performance of functions or the exercise of powers under the Migration Act, namely delegates and the Tribunal.

79    The Parliamentary Secretary was not bound by Direction 65. Determination of whether the Parliamentary Secretary in fact complied with that direction is therefore theoretical and does not require determination.

80    The appeal must therefore be dismissed with costs.

Associate:

Dated:    27 April 2017

REASONS FOR JUDGMENT

CHARLESWORTH J:

81    I have had the benefit of reading the judgment of Bromwich J. I agree with the reasons of his Honour and the orders that his Honour proposes.

Associate:

Dated:    27 April 2017