PRIMARY CONSIDERATION FOUR: INTERNATIONAL OBLIGATIONS

1. Australia has international obligations arising under a variety of agreements and conventions that must be considered where appropriate. In this case, the only obligation that is relevant is the obligation to have regard to the best interests of any children that might be affected if the applicant's visa is cancelled.
2. The applicant has seven children under the age of 18 who currently reside in Australia. At least three of them are Australian citizens. One of the children continues to reside with the applicant's first partner, who is the child's biological mother. It was unclear whether the applicant continues to have a close relationship with that child. The material provided by the Department of Communities confirms there is a serious rift between the applicant and his first partner, and that rift appears to have led to a more distant relationship between the applicant and his daughter. It is unclear how the interests of that child would be affected if the applicant were to be removed from this country. We are certainly not persuaded that the best interests of the child require that the applicant remain here.
3. The applicant has two other children who are currently in the care of the state as a result of orders made by the Children's Court under the Child Protection Act 1999 (Qld) in 2010. Those children will remain in care until October 2012. One of the children continues to have limited contact with his family. We have already pointed out the applicant was denied access to the other child because of threats of violence.
4. The relationship between the applicant and the two children in care is necessarily limited. Indeed, in the case of one of the children, the relationship has (for now, at least) effectively ceased. Regrettably, we were not provided with any evidence from the Department of Communities that would allow us to assess what impact the removal of the applicant would have on the children in care. In the absence of that evidence, we have no choice but to rely on the evidence of the poor relationship with their father that contributed to the Department's decision to place them in care. That evidence suggests the children's interests will not be affected if he is removed.
5. The interests of the other four children who continue to reside with the applicant may be different. They have an established relationship with their father. The letters of reference from family members and members of the applicant's church (exhibit one at pp 71-97) suggest the applicant is a warm and caring father. If that is so, the best interests of the children might be compromised if the relationship with their father were to be interrupted. The material summarised in the affidavit of the child safety officer (exhibit two at p 52ff) paints a more disturbing picture of relationships in the applicant's household. We are also mindful of the applicant's history of violence and aggression, including attacks on women and children.
6. As it happens, the applicant's wife insisted she would return to New Zealand with her husband and children if he were required to leave. It follows the relationship between the applicant and the four children who reside with him will not be interrupted if he is required to leave Australia. We accept that would still occasion some inconvenience and disruption to the children: they would have to change schools and form new friendships, for example. We also accept the children would be denied ready access to other members of the applicant's extended family in this country, albeit they would have the opportunity to form relationships with other relatives in New Zealand. We do not think the language or cultural differences the children would encounter are especially significant in the circumstances.
7. We do not accept there is a proper basis for us to conclude the best interests of the children count against cancellation of the applicant's visa. We would reach the same conclusion even if we did not have regard to the applicant's wife's statement she would return to New Zealand with her four children the applicant if he were required to leave.

1. We turn now to other considerations that might be relevant. These are addressed in clause 11 of the Direction.
2. The applicant's relationship with his extended family would be disrupted if he were to be required to leave Australia. He spoke of a close relationship with a large number of relatives who reside in this country. He apparently has regular contact with his parents and siblings and other kin. If the applicant's wife and children were to return to New Zealand, their relationships with the applicant's Australian family would also be disrupted. Given the apparent strength of the family bond, this is no small thing.
3. The applicant's relationship with his church would also be disrupted, although there is no reason to believe he would be unable to form a relationship with another branch of the same church in New Zealand. The applicant does not have any business or employment relationship that would be disrupted.
4. The applicant is not an old man. He is currently 43 years of age. He is in poor health. We have already explained he suffers from gout and osteoarthritis. He could obtain treatment for those conditions in New Zealand, of course. But he says he experiences particular discomfort in the cold as a result of the arthritis. If that is so, he is unlikely to find the climate in New Zealand congenial. We have no reason to doubt his claims in this regard. We accept he would experience less pain if he were permitted to remain in this country with its warmer climate.
5. The Direction also requires that we consider whether the applicant has any family ties in New Zealand. The applicant and his wife highlighted the strong ties with family in Australia, but the applicant conceded he still has relatives in New Zealand. We accept his family ties in Australia are stronger, but we do not think the evidence establishes he will be bereft of support and kinship if he were required to leave this country. In those circumstances, we do not think the relative weakness of the ties in New Zealand counts heavily in the applicant's favour.
6. We are also required to consider the extent of any hardship that will be experienced by the person or immediate family members (which we take to include the applicant's wife and his children) if he is required to leave Australia. We have already acknowledged the applicant's wife and four of her children who reside with them will experience some disruption or even hardship if they relocate, but that effect will presumably pass. We noted the impact of a visa cancellation on the other children is unclear. We suspect it will have minimal impact on the child who remains with the applicant's former wife, given the apparent coolness of the relationship with her father. The two children in care have little or no contact with their father as it stands because of the conditions attaching to the protection orders, so they are unlikely to experience significant hardship if his visa is cancelled and he returns to New Zealand.
7. For the sake of completeness, we will also refer to the submissions made about the applicant's parents. We understand they are both elderly and frail. We were told from the bar table that the applicant's mother in particular would be very upset if her son were to be sent back to New Zealand. We accept they will both experience some hardship if that occurs.
8. The Direction also requires that we take into account the applicant's level of education. As it happens, he is not well-educated. We are satisfied, however, that the case he could make to stay in Australia was fully put before us. He was represented by a migration agent and further assisted by his articulate wife. In addition, we have carefully considered the material before us to see if there is any matter not expressly put before us which might assist the applicant. We are unaware of efforts the applicant has made to improve his education but any efforts would not be to any particular end given he is disabled and unable to participate in the workforce.
9. That leaves only the question of whether the applicant was warned by the Minister's department that his visa might be cancelled if he were to continue misbehaving. We do not have any evidence that the applicant was provided with such a warning, but we do not think that makes any difference. The applicant plainly knew his record would be an issue when he entered the country in 2004 and lied about his criminal convictions.

1. We made orders during the course of the hearing under s 35(2) of the Administrative Appeals Tribunal Act in the following terms:
   • A transcript of the hearing was not to be published to any person apart from the respondent and its legal advisers and the applicant's representative; and
   • Documents in the applicant's file (including any documents provided under summons) must not be published to any person apart from the respondent and its legal advisers and the applicant's representative.
2. We made those orders after careful consideration. We are mindful that the Tribunal is obliged, where possible, to conduct its proceedings in public: s 35(1). But matters that involve allegations in relation to children raise special concerns. The sensitivity of those matters is underlined by the fact legislation in each state and territory places limits on the disclosure of certain allegations. The Tribunal must be conscious of its responsibility to children in cases where their interests might be affected. We are satisfied it is appropriate to make the orders set out above under s 35(2) given the confidential nature of the material relating to the children that was discussed at the hearing and which is spread throughout the Tribunal's file.

1. We should add one final word about the evidence. In reaching our conclusion, we have not had regard to a number of documents tendered on behalf of the applicant at the hearing. The documents were marked for identification but they were not admitted into evidence. We have taken this approach because the evidence in question was not provided to the respondent at least two days in advance of the hearing as required under s 500(6J). We have also declined to have any regard to evidence led from the applicant's wife that was not foreshadowed in advance of the hearing. Section 500(6H) says the Tribunal is prevented from having regard to the material in those circumstances. We add, however, because we are aware of the contents of the evidence, that had we had regard to it the result in the case would not have changed.
2. In preparing these reasons the Tribunal has, however, taken into account, in addition to the submissions presented at the hearing, a set of written submissions forwarded by the applicant's wife after the hearing concluded.
3. At the request of the Tribunal, after the hearing, the Minister provided the Tribunal with copies of six decisions referred to in the separate reasons of the President which follow. The names, but not the copies of the decisions, were provided to the applicant. A decision in this matter must be given by 6 October to comply with the time requirements of the legislation (s 500(6L)). Because the decisions contain sensitive information and because the Tribunal has no need to have regard to them in this case the Tribunal has decided to make a confidentiality order under s 35 of the Act relating to them and not to furnish them to the applicant or his representative.

1. The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations - and without forgetting other considerations that are generally regarded as being of lesser weight - we must ask ourselves: what is the preferable decision in this case?
2. The primary considerations suggest the preferable decision in this case is to cancel the applicant's visa. In reaching that view, we have been particularly impressed by the appalling nature of the applicant's conduct and the significant if diminishing risk that he could re-offend. None of the other considerations we have discussed suggest a different outcome is appropriate. We think that the Direction, supported by our assessment of community standards or values, requires us to give these factors significant weight. We judge that community values in Australia assess the right to live in Australia as a significant and beneficial right which should be conferred with care and only on persons deserving the privilege. In the present case the preferable decision is adverse to the applicant.
3. The decision under review is affirmed.

THE NATURE OF DISCRETIONARY ADMINISTRATIVE DECISION-MAKING

1. It seems appropriate to repeat in this case some of the comments made in another decision of the Tribunal (Justice Downes, President and Deputy President P E Hack SC), also published today (Rent to Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689) and to add some additional remarks.
2. In Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 235 CLR 286 the High Court endorsed the oft repeated observation of Bowen CJ and Deane J in Drake v Minister for Immigration (1979) 24 ALR 577 at 589 that the question for the Tribunal is what is "the correct or preferable decision". The well-known understanding of the phrase was explained by Gleeson CJ and Kirby J in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 427 where they referred to "the correct or (in the case of discretionary decisions) the preferable one".
3. Where the alternative obligation to arrive at "the preferable decision" arises, the Tribunal is exercising a general discretion. Such a discretion arises frequently in the Tribunal's jurisdiction but it still does not arise in the bulk of cases. When the Tribunal is dealing with an employees' compensation application, a veterans' entitlement case or a social security claim, in nearly every case there is no discretion. The question is simply whether the Tribunal is satisfied that the claimed entitlement is made out. The task is to arrive at the correct decision. There is no general discretion. For such cases the matters I will deal with have no operation. The following remarks are confined to cases in which there is a general discretion - in which the task of the Tribunal is to arrive at the preferable decision. These are cases in which, for example, it can be said that the question for the Tribunal is whether the better (or preferable) decision is that a financial adviser should be banned or a visa should be cancelled. There will always be specific matters to be assessed and taken into account in these cases, but there will remain a judgment as to whether the balance ultimately tips one way or the other.
4. While the obligation of the Tribunal to arrive at the preferable decision in an appropriate case is repeated in very many decisions of the Federal Court and even more decisions of the Tribunal itself, very little has been said about how the preferable decision is to be arrived at; about what considerations should inform its determination.
5. The essential characteristic of a discretionary decision is that there will be alternatives which will be equally lawful. The decision chosen may not be the best decision, but the decision will have been made without error of law and will accordingly be final. That will be so even if an alternative which is not chosen is, in fact, the preferable decision, or, perhaps more accurately, the decision which another considers to be the preferable decision. That this is so serves to emphasise the importance of the selection of the preferable decision and the fundamental importance of addressing the right considerations in making the selection.
6. Although, to a greater or lesser extent, depending on the nature of the proceedings, the Administrative Appeals Tribunal conducts its determinations in a court like fashion, it is not a court. It does not exercise judicial power. It is part of the executive government of the Commonwealth of Australia. It is part of Australia's federal government administration. It arrives at its decisions in a manner familiar in courts, but that is not to say that the matters guiding the decision-making process are the same as those guiding courts. Of course, the Tribunal must correctly determine what the law is and apply it correctly. However, outside this role, the nature and functions of the Tribunal are quite different to the usual functions of a court.
7. The Tribunal, in its determinations, must be informed by matters of good administration. It needs to be conscious that it is in this case, for example, contributing to the many decisions made within government which together determine how the population of Australia should be made up.
8. None of this is to deny the very important role of the Tribunal in ensuring that individual justice is done. One of the great advances in public administration which was achieved by the establishment of the Tribunal was the placing of emphasis on considerations of individual justice in administrative decision-making. This was emphasised in a speech made by Sir Anthony Mason in 1989 when he gave as one of the five differences in reasoning between primary administrative decision-makers and decision-makers in review proceedings, the following (A. Mason, 'Administrative Review : The Experience of the First Twelve Years' [1989] FedLawRw 3; (1989) 18(3) Federal Law Review 122 at 130):

Finally, he [the primary decision-maker] is inclined to subordinate the claims of justice of the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures.

1. Ideals of individual justice do not, however, replace the demands of good administration.
2. Nor does focussing on the role of the Tribunal as an administrative decision-maker qualify the Tribunal's power to depart from government policy: Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, 644-5. The ability of the Tribunal to depart from government policy in a particular case is closely associated with the importance of achieving individual justice. Individual justice will generally be achieved, however, by making the preferable decision - even when that decision does not accord with government policy.

1. This leads to the question of just how the preferable decision is to be arrived at. Decision-makers are apt to say that they are satisfied about a discretionary matter. They may offer "an opinion" or "view" as to what is appropriate. The test, however, cannot be subjective. It cannot admit of idiosyncratic ideas. Evaluation in accordance with the decision-maker's own personal standards or philosophy must not guide the determination.
2. It is important to remember the difference between court adjudication and administrative decision-making. Judges are not often called on to make decisions which require an evaluation of the consequence of a decision in terms of public interest. Their focus is more on questions of lawfulness of conduct. The power of administrative decision-makers, both within government and on review, is often a significant power. In terms it can exceed the powers of courts. The extent of the power implies that it must be exercised with care. Administrative decision-makers at all levels frequently make decisions which affect the operations of government where individuals are affected. Very often the only clearly applicable measure or touchstone is the public interest. So how is the public interest to be determined?
3. It must be the case that the proper basis of evaluation, of reaching the preferable decision, in these cases, is reference to community standards or community values. It is not the decision-maker's personal or idiosyncratic view of what will adequately protect the public which is relevant, but what the decision-maker determines will achieve that result in accordance with community standards or values.
4. Although little has been said about the method to be employed in arriving at the preferable decision, and even less about the relevance of community standards or values, a good deal has been written about community standards or values in the judicial context. Because discretionary decision-making is associated more with administrative decision-making than court adjudication, this discussion is equally applicable to administrative decision-making. Indeed, the width of general discretionary decision-making for administrators makes it even more important than it is to court adjudication where discretions are generally more confined. The constraints on court adjudication generally leave less latitude to judges than administrative decision-makers. Greater latitude calls for increased care.
5. In writing for the majority of the court in Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 at 42 Brennan J said this:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of unsettled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.

1. Stephen J, in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 42, dealing with the standing of members and descendants of the Gournditch-jmara Aboriginal people to bring proceedings for contravention of legislation to protect aboriginal relics said this:

Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others.

1. Lord Atkins' famous statement of the basis for a tort of negligence was founded not only in the universal moral code but in "a general public sentiment of moral wrongdoing for which the offender must pay" (Donoghue v Stevenson [1932] AC 562 at 580).
2. A more recent English example is a family law case, (Miller v Miller [2006] UKHL 24; [2006] 2 AC 618 at 631) in which Lord Nicholls saw "social and moral values" as an aspect of fairness:

Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case.

1. Mabo [No. 2] and Donoghue v Stevenson were concerned with questions of law, not with broadly based decision-making, where community standards must assume an even more significant role.
2. Sir Anthony Mason in the National Institute of Government and Law's inaugural public lecture on "The Courts and Public Opinion" (20 March 2002) (NSW Bar Association Journal (Bar News - Winter 2002) 30) stated (at 34) that "[i]n interpreting statutes and giving them an operation judges will, where appropriate, take into account community standards and values".
3. The focus, according to Sir Anthony (33), is on reference to "an enduring moral value or principle rather than one which is merely current or transient". Lying behind Sir Anthony's remarks was his proposition (30) that "the courts act at their peril if, by their action and decisions, they set at risk public confidence in the courts".
4. A difficult question arises as to how judges inform themselves of community standards and expectations; not to mention the further difficulty that in a plural society there may not always be a community standard or expectation. Judges draw on their knowledge of the world. Contrary to common misconceptions, judges live in the same world as their fellow citizens and experience it in much the same way. Indeed they have the advantage of being able to draw on "knowledge gained from other cases" as well as personal experience (33).
5. There may be some occasions, although rare, when community standards can be established by evidence. Most importantly, factors which go to making up community standards, will sometimes be capable of being established by evidence. These occasions will also be rare. It must be recognised, as well, that assessing community standards calls for judgment as much as evidence. In the Administrative Appeals Tribunal it also needs to be remembered that the Tribunal has a statutory obligation to be "economical, informal and quick" as well as "fair and just" (s 2A of the Administrative Appeals Tribunal Act). Reviewing evidence as to community standards will inevitably be time consuming and expensive.
6. Sir Anthony Mason isolates, among "four points to be made in relation to judicial ascertainment of community standards", the following (33): "the diffidence of judges in discussing how community standards are ascertained and determining what are community standards". This may explain the absence of much discussion of the issue from decisions in which it might have been relevant. He adds the following further factors:

Secondly, the difficulty of taking judicial notice of matters that are controversial (as community standards generally are); thirdly, the difficulty of determining community standards in the absence of evidence; and finally, the magnitude of the undertaking if evidence were to be allowed.

1. Nevertheless, Sir Anthony expressed the following views (33):

The judge draws not only on personal experience but on knowledge gained from other cases. In this respect, the judge has a unique window on the world. If you read the transcript of a trial or an appeal book you will begin to understand just how valuable that window is. It gives you a perspective on how people behave, seen through their eyes and the eyes of bystanders. Once you compare the transcript of a trial or an appeal book with a departmental file with its absence of detailed information about individuals, you will appreciate that the judge is better informed about people and the way they behave in particular circumstances than the administrator and even perhaps the politician.

1. Sir Anthony came to the following conclusion (36):

Although there are difficulties in saying that a judge can take judicial notice of public opinion, to require proof by evidence scarcely seems sensible. No doubt the judge can have regard to any relevant pattern of legislative history and statements made by the responsible minister. The judge may also be entitled to have regard to responsible expressions of opinion in the Parliament so long as it appears that they reflect a broad consensus of opinion.

Can the judge go further and look also to informed writings and to the elements of public and political debate and distil from them what are matters of public concern? This is an approach which seems to involve a substantial degree of subjective evaluation. To that extent, it may be thought to be questionable, though in some instances it may be possible to identify matters of public concern with some confidence.

1. Returning to the same theme six years later, Sir Anthony Mason wrote this ('The Art of Judging' (2008) 12 Southern Cross University Law Review 33 at 41, 42):

Just how judges inform themselves about matters such as standards, values and sentencing, has been a matter of controversy. How does a judge measure the community's sense of outrage at the commission of a particular offence? Presumably by ranking it on a scale of seriousness relating to an offence of that kind.

From time to time, politicians criticise judges for being 'soft' on crime and embark on a 'law and order' campaign, demanding that judges impose harsher sentences. The climate of opinion generated by these campaigns present a dilemma for sentencing judges. Do the judges remain uninfluenced by these events or do they treat them, if endorsed by the electorate, as reflecting a shift in the community's sense of moral outrage? Although the evidence is not conclusive, it may suggest that the judges give effect to the second alternative.

It is accepted that a judge must decide a case without regard to the popularity or unpopularity of the decision. On the other hand, when a judge has regard to community values and standards in arriving at a decision, the judge is looking to enduring values and standards, not matters of transient impression which may arise by way of reaction to particular and immediate events.

1. Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect "a broad consensus of opinion" (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker's belief based on experience. Evidence will rarely be of any practical assistance.
2. It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.
3. Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief.
4. An additional benefit may be that making decisions in terms expressed to accord with community values will present administrative decisions more persuasively to the public. The decision-maker will be making it clear that the decision is not based on any personal conviction, but on the decision-maker's belief as to what community values require. Some of the criticism that decisions receive from time to time in the media may be avoided.
5. In cases under s 501 of the Migration Act the Tribunal must carefully assess the applicant's case in accordance with the Minister's Direction. That is the basis for assessment of the case. But when this is done there is still an ultimate question of what is the preferable decision. Members of the tribunal often deal with this issue by referring to their "satisfaction" or "opinion". The purpose of these remarks has been to suggest that another basis of assessment might be added to their assessments so that the ultimate decision is not concluded in terms which may appear to be personal.

MINISTER'S DECISIONS UNDER SECTION 501A

1. The Tribunal has been informed that the Minister has recently exercised the power given under s 501A to set aside decisions of the Tribunal not to cancel a visa in six cases. The decisions are:
   • Adamson and Minister for Immigration and Citizenship [2010] AATA 823 (26 October 2010)
   • Gbojueh and Minister for Immigration and Citizenship [2011] AATA 275 (21 April 2011)
   • Tewao and Minister for Immigration and Citizenship [2011] AATA 329 (18 May 2011)
   • Maurangi and Minister for Immigration and Citizenship [2011] AATA 408 (15 June 2011)
   • Williams and Minister for Immigration and Citizenship [2011] AATA 416 (17 June 2011)
   • Nweke and Minister for Immigration and Citizenship [2011] AATA 484 (12 July 2011)
2. These were considered decisions of the Minister. They represent occasions in which the Minister has determined that the decision of the Tribunal was not the preferable decision in circumstances in which the Act permits the Minister, when it "is in the national interest" to do so, to set aside a Tribunal decision.
3. This was not a difficult case to decide. It is not a case in which the preferable decision is difficult to arrive at. It was not necessary to consider precisely where the balance tips in terms of the preferable decision or precisely what community standards or values require. It was not necessary to address the differences in assessment which led the Minister to arrive at different results to the Tribunal in the six cases referred to. It must be recognised, however, that these cases suggest that with respect to some recent decisions of the Tribunal, the Minister, where he has the right to make the final decision, has formed the opinion that community values or standards have pointed in favour of cancelling visas when the Tribunal has come to a different conclusion. These are matters which the Tribunal should take into account for the future in assessing in similar cases what "is in the national interest" and what is required by community values or standards.
4. In making a decision under s 501A the Minister is in a special position. The section gives the minister power to set aside the decision of the Tribunal. The conferring of this power is rare, if not unique. In addition to an application for review in the Federal Court there is a de facto further review on the merits (constrained by a requirement that it be in the "national interest") by the Minister personally which will generally only be available when the Tribunal decision favours the applicant. A necessary consequence of the Minister having this unusual power to overrule the tribunal is that the Tribunal should take note of occasions in which the power is exercised.
5. None of this affects or threatens the independence of the Tribunal, which has never been in doubt, as the Tribunal's recent decisions show.
6. In the usual case in which the Tribunal has jurisdiction to review the decision of a Minister or a delegate of the Minister it is the decision of the Tribunal which is the final decision on the merits. Because, in those cases, the Tribunal is exercising the power given to it by the parliament to definitively review the Minister's decision, the Minister's decision cannot bind the Tribunal in any way.
7. The Tribunal remains, however, part of the one administration of the Commonwealth. Consistency of administrative decision-making is an important aspect of good administration. The opinion of a Minister on a matter of discretion and any supporting reasons should accordingly be carefully considered and evaluated by the Tribunal before it comes to a different decision.
8. It is not appropriate, as some commentators have done, to identify a supposed competition or conflict between a Minister and the Tribunal and to support one side or the other. We are all constituent parts of the one Commonwealth administration which should work together through our respective roles to advance good administration. Where the Tribunal makes a final decision within power; where a Minister makes a final decision within power, they are both contributing to good administration.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the reasons for decision herein of the Honourable Justice Downes, President and Senior Member Bernard J McCabe in paragraphs one (1) to fifty-one (51) and the Honourable Justice Downes, President in paragraphs fifty-two (52) to ninety-one (91).