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.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.