Refusal to refer cases for Ministerial Intervention exceeded executive power of the Commonwealth?

Some of the questions to the High Court (HCA) were as follows:

Question 1: Is the power under s 351(1) of the Migration Act 1958 (Cth) delegable by the Minister under s 496 of the Act or exercisable on the Minister's behalf by an officer of the Department administered by the Minister under s 64 of the Constitution?

Question 2: Are there any circumstances in which the Minister can be compelled to exercise the power in s 351(1)?

Question 3: Is the structure of s 351 relevantly indistinguishable from the structure of a number of other sections of the Act which confer personal and non-compellable powers on the Minister, such as ss 46A, 48B, 195A and 417?

Question 4: Does s 351 involve 2 sequential statutory decisions neither of which the Minister is obliged to make?

Question 5: If the answer to Question 4 is 'yes', is the first of those 2 decisions a procedural decision to "either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal"?

Question 6: If the answer to Question 4 is 'yes', is the second of those 2 decisions a substantive decision to "either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so"?

Question 7: If the answer to Question 4 is 'yes', do both decisions involve "a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the legislature could have had in view"?

Question 8: If the answer to Question 5 is 'yes', is that procedural decision an exercise of the power conferred by s 351(1)?

Question 9: If the answer to Question 8 is 'yes', is that procedural decision a "privative clause decision" and therefore a "migration decision", as defined?

Question 10: If the answer to Question 5 is 'yes', can the Minister "exercise the statutory power to make a procedural decision in a specified class of case and can do so in advance of a case arising within that class"?

Question 11: If the answer to Question 10 is 'yes', could the Minister "make a procedural decision not to consider making a substantive public interest decision in any case which does not meet objective criteria specified by the Minister"?

Question 12: If the answer to Question 11 is 'yes', is it "open to the Minister to decide not to consider making a substantive decision in a class of case defined by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the Tribunal"?

Question 13: If the answer to Question 4 is 'yes', is there a third, but anterior, step where the Minister can "choose to exercise executive power, involving the Minister acting in "a capacity which is neither a statutory nor a prerogative capacity", to give a non-statutory instruction to officers of the Department administered by the Minister under s 64 of the Constitution as to the occasions, if any, on which the Minister wishes to be put in a position to consider making a procedural decision"?

Question 14: If the answer to Question 13 is 'yes', is the permissible scope of such a non-statutory instruction itself bounded by the exclusivity which s 351(3) attaches to the power which s 351(1) confers on the Minister?

Question 15: Can it be said that, "where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred"?

Question 16: In the sections of the Migration Act which are expressed to confer powers capable of being exercised in the public interest only personally by a Minister, is there a procedural decision whether to exercise such a power in the public interest?

Question 17: Can it be said that, "what s 351 prevents the Minister or a departmental officer from doing directly in the exercise of statutory power, it prevents the Minister or a departmental officer from doing indirectly in the exercise of executive power"?

Question 18: The instructions issued in 2016 by the then Minister for Immigration and Border Protection ("the 2016 Ministerial Instructions") in relation to the exercise of the power in s 351(1) provided that the the Department should refer to the Minister only cases assessed by the Department to have unique or exceptional circumstances. Were the 2016 Ministerial Instructions an approximation of the public interest, with the result that the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers, thereby exceeding the statutory limit on executive power imposed by s 351(3)?

Question 19: Can it be said that neither ground of appeal challenges or relies on any decision or purported decision made, or proposed or required to be made, under the Act, with the result that neither ground of appeal can be characterised as "in relation to a migration decision" so as to be excluded from the jurisdiction of the Federal Court by s 476A(1) of the Act, with the consequence that neither ground of appeal is derivatively excluded from the appellate jurisdiction of the High Court under s 73 of the Constitution?

Question 20: Were departmental officials subject to the obligation of procedural fairness in determining whether to refer a matter to the Minister under s 351(1)?

Question 21: If the answer to Question 2 is 'yes', can it nevertheless be said that "a Minister might put themselves in a position where they are committed to following a certain process and may become obliged to consider exercising the power"?

Question 22: Do the branches of the Commonwealth (Legislature, Executive and Judicature) have a separate legal personality?

Question 23: Can it be said that the Executive "has no powers except such as are conferred by or under [the Constitution], expressly or by necessary implication" from the text and structure of the Constitution?

Question 24: May the Minister "personally make a statutory decision while relying on the department's summary, provided the Minister does in fact have regard to all relevant considerations that condition the exercise of the power"?

Question 25: Can it be said that, "subject to a contrary intention, the conferral of a statutory discretion implies a duty to consider any application that is made for the exercise of power"?

Question 26: Can it be said that, "since s 476A(1) is part of a scheme to exclude the jurisdiction of the courts, it is a provision that should be interpreted narrowly, consistently with reasonable expectations informed by deep common law values"?

Question 27: Can it be said that "a person's legal relations (rights, powers, privileges, and immunities) need not be affected for the person to have standing to challenge the authority or legality of such public action", but that "the person must have a sufficiently special interest, with "foreseeable consequences", over and above that of the general population arising from the legal relation that is the subject of the order sought"?

Question 28: Would it 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 non‑statutory executive power"?

Question 29: Must the fundamental principles of the common law that inform statutory implications "also inform the scope of executive liberty and power which is prerogative or otherwise implied from the creation of a functional Commonwealth polity"?

Question 30: Will the liberty or power to act be commonly, but not necessarily, identified as a liberty or power to act reasonably?

Question 31: Will any reasonableness requirement for the exercise of an extremely broad non‑statutory executive power usually involve a high threshold?

Question 32: Would the invalidity of the delegate's decisions have been avoided by the inclusion of "an additional sub-section, s 351(8), permitting departmental officials, as either delegates or agents, to exercise a liberty to decide whether to refer to the Minister an application for the exercise of the personal override power"?

Question 33: Is the Minister bound to follow what the Department might recommend?

Question 34: For the purposes of deciding whether to consider exercising the power in s 351(1) (the procedural step), is the Minister confined to what is in the public interest?

Question 35: Does the Minister "need to deal with any or all requests by separating the procedural and substantive aspects of the power"?

The HCA answered those questions as follows: