Consideration
48 The Minister submits that the primary judge was wrong to be so critical of the word "usually" in section 5.12.5 of the Instructions and wrong to see in the statutory breadth of the discretion in s 24(1) an embedded resistance towards structured guidance through policy. The Minister notes that policies that employ words such as "usually" and "normally" have been upheld in previous cases: see Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [34]; Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission (2004) 139 FCR 73 (Cummeragunga) at [156]. See also MLC Investments Ltd v Commissioner of Taxation (2003) 137 FCR 288 at [30].
49 The Minister submits that the distinction between process and outcome, which the primary judge discerned in the authorities, and which appears to have informed her Honour's ultimate conclusion about inconsistency, is unhelpful and inapt. It is submitted that the distinction between process and outcome is unstable, and that this is illustrated by the present case.
50 The Minister submits that it is precisely when discretions are broad that policies are welcome in order to "promote values of consistency and rationality in decision-making": Plaintiff M64 at [54].
51 The Minister submits that the extent to which policy can guide a statutory discretion should, in principle, depend on interpretation of the relevant statutory provisions: see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) at [5.270]. It is submitted that s 24(2) is, in express terms, an open-ended discretion that can only be confined, therefore, by the subject-matter, scope and purpose of the Australian Citizenship Act; and that the subject-matter tells against confining the executive's capacity to give guidance to delegated decision-makers on how to go about exercising the discretion.
52 The Minister submits that the effect of the primary judge's reasoning on significant hardship or disadvantage is that, in deciding whether to refuse citizenship under s 24(2), a decision-maker cannot consider whether a person would suffer significant hardship or disadvantage without being granted citizenship. It is submitted that, contrary to the primary judge's analysis, significant hardship or disadvantage is not a mandatory irrelevant consideration; it is a permissible consideration, which policy can therefore direct decision-makers to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [9].
53 In relation to the primary judge's concern about the extent to which the Instructions resemble legal rules, the Minister submits that: the primary judge gave insufficient weight to the language of the introduction to the Instructions (quoted at [19] above); there is no principle of law that requires the executive to limit itself to policy drafted at any particular level of generality; and, unless the relevant statute, properly construed, precludes detailed policy guidelines being given, it is a matter for the executive as to how to draft its policies.
54 G submits that, because the Minister has not appealed from the orders made by the primary judge setting aside the decision of the Tribunal and remitting the matter for determination according to law, which were made on the basis of all four grounds in the amended originating application, it is not open to the Minister to challenge the primary judge's conclusion that part of the Instructions was unlawful. G submits that the Minister's appeal must fail because it neither raises as a ground of appeal, nor shows (or even attempts to show) in written submissions, that the primary judge's exercise of the discretion to make the declaration miscarried. It is submitted that the Minister is seeking, impermissibly, to challenge reasons rather than orders.
55 G submits that even if the issues of construction of the Australian Citizenship Act, and of consistency of part of the Instructions with it, could properly be said to be before this Court (which is not the case), the Minister:
(a) accepts that a policy may exceed limits which are identified having regard to the relevant statute; and that, in determining whether a policy will do so, it is permissible to look at both the structure and content of the policy; and
(b) fails to identify error with the conclusion that, properly and contextually construed, section 5.12.5 of the Instructions "impose[s] a matter in the nature of a precondition on the exercise of the power under s 24(1) (or, for that matter, the subsidiary discretion in s 24(2)) that is not present in the statute, and is inconsistent with it" (Reasons, [247]).
56 G submits that, instead of identifying error, the Minister in his written outline of submissions:
(a) makes a de-contextualised attack on what the primary judge said about "usually" and how the term is deployed in this particular policy, which in any event was not central to her Honour's reasoning as to invalidity, let alone to her discretion to grant declaratory relief;
(b) cites and/or quotes from a range of decisions that either arose in different contexts (i.e. different policies), or are ones where the particular issue in respect of the Instructions was quite different; and
(c) wrongly suggests that at issue is the correctness of an "effects" test, which the Minister contends (i) flows from the primary judge's reasons and (ii) means that "significant hardship or disadvantage" will always be a mandatory irrelevant consideration - whatever might be the precise text of the particular part of the Instructions - even though this was not how her Honour concluded the policy was invalid, and once again, in any event, having nothing to do with the exercise of discretion to grant declaratory relief.
57 We will first consider the applicable principles and then address whether the primary judge erred.
58 It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J.
59 An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker "free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case": Drake (No 2) at 641.
60 However, as Brennan J stated in Drake (No 2) at 641, "[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies". In Elias v Federal Commissioner of Taxation, Hely J stated at [34]:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will "normally" be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case. See Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 492-493.
This passage was approved by Jacobson J in Cummeragunga at [156].
61 In Plaintiff M64, in the context of considering an executive policy that prioritised the processing of certain categories of visa applications, French CJ, Bell, Keane and Gordon JJ said at [54]:
Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in "high volume decision-making", such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2], Brennan J, as President of the Administrative Appeals Tribunal, said that "[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable" because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by "diminishing the importance of individual predilection" and "the inconsistencies which might otherwise appear in a series of decisions". The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of "compelling reasons for giving special consideration" is readily apparent.
(Footnotes omitted.)
Justice Gageler (at [62]) substantially agreed with the reasons of French CJ, Bell, Keane and Gordon JJ.
62 An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations, which are discussed in cases such as Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438.
63 Having regard to these principles, in our respectful view, the primary judge erred in concluding that part of section 5.12.5 of the Instructions (namely, the words appearing in bold in the declaration set out at [4] above) was inconsistent with the Australian Citizenship Act and unlawful. Our reasons are as follows.
64 First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6) or (7). Further, the relevant eligibility category for present purposes, namely that set out in s 21(5), contains little by way of criteria. In contrast with the eligibility criteria in s 21(2), which are more detailed, s 21(5) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident at the time the person made the application and at the time of the Minister's decision on the application.
65 The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the Instructions and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].
66 Secondly, section 5.12.5 of the Instructions (or at least the part considered by the primary judge to be inconsistent with the statute) allows the decision-maker to take into account relevant considerations and does not require the decision-maker to take into account irrelevant considerations. The primary judge focussed on the reference, in the third bullet point in section 5.12.5, to the applicant suffering "significant hardship or disadvantage" if not granted citizenship. This third bullet point relates to a limited class of applications under s 21(5): children under 16 who are living with a responsible parent who is not an Australian citizen. If and to the extent that the primary judge considered "significant hardship or disadvantage" to be an irrelevant consideration (in the sense that it was impermissible for the Minister to take it into account when exercising the discretion to approve or refuse to approve an application for citizenship), we would respectfully disagree with her Honour. Neither the text of the legislation, nor the objects of the Act, suggests that the Minister cannot take this matter into account in exercising the discretion. The use of the expression "significant hardship or disadvantage" in s 22(6) should not be read as excluding consideration of this matter in the exercise of discretion under s 24(1). We would not infer that the use of the expression in one context, and its absence in the other, is explicable only on the basis that it was intended to be excluded from the latter.
67 Thirdly, section 5.12.5 of the Instructions does not serve a purpose foreign to the purpose for which the discretionary power was created. In considering this aspect, regard is to be had both to the discretion in s 24(1) to approve or refuse to approve an application for citizenship, and the relevant eligibility category, namely applicants who satisfy the criteria in s 21(5).
68 The executive has historically had a large role in deciding admission into the people of the Commonwealth. This is confirmed by the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth), which stated in relation to cl 24 of the Bill:
It has been a uniform feature of naturalisation legislation (ie. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship. This is because Australian citizenship by conferral is a privilege and not a right. The new Act will continue to promote this understanding.
69 Further, the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth) envisaged the application of an executive policy in relation to proposed s 21(5) as to when an applicant would "usually" and "not usually" be approved. Before setting out the relevant passage, it should be noted that s 21(5) as originally introduced was not in the same terms as the current provision. As originally introduced, s 21(5) provided that a person was eligible to become an Australian citizen if the Minister was satisfied that the person was under 18 years of age at the time the person made the application; the section did not require the person to be a permanent resident. Section s 21(5) was repealed and replaced by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth). The effect of the amendment was to add the requirement that the person be a permanent resident at the time the person made the application and at the time of the Minister's decision on the application. (The background to the 2009 amendment is helpfully discussed in Rubenstein K, Australian Citizenship Law (Lawbook Co, 2nd ed, 2017) at [4.700] (chapter authored by K Rubenstein and J Field).) Returning to s 21(5) as originally introduced, the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth) made the following observations:
Subclause 21(5) outlines the eligibility provisions for citizenship where a person is aged under 18 years.
It specifies that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application.
This new subsection is the equivalent of section 13(9)(a) of the old Act.
As a matter of policy, applications considered under this subclause would usually be approved if the applicant meets the criteria in subclause (2). That is, the applicant is a permanent resident, satisfies the residence requirements, has a basic knowledge of English, the privileges and responsibilities of citizenship, the nature of the application and is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved, and is of good character. In addition, applications under this subsection would not usually be approved unless the applicant has a responsible parent (as defined by section 6 of this Act) who is an Australian citizen.
70 Thus, the revised explanatory memorandum envisaged the existence of an executive policy in relation to s 21(5) (as originally introduced) under which an application by a person under 18 would "usually" be approved if the person met the (more detailed) eligibility requirements set out in s 21(2), but "would not usually be approved" unless the applicant had a responsible parent who was an Australian citizen. There is no suggestion, in the extrinsic materials relating to the 2009 amendments, that the Parliament intended to depart from the approach outlined in the revised explanatory memorandum for the 2005 Bill.
71 The primary judge was concerned that, under section 5.12.5 of the Instructions, certain applications would usually not be approved unless certain policy guidelines were met. For the reasons indicated, we do not consider the adoption of this policy in relation to certain applications to be contrary to the purpose for which the discretionary power was created.
72 Fourthly, section 5.12.5 of the Instructions does not preclude an applicant raising arguments as to why the policy should not be applied in the particular case, nor does section 5.12.5 seek to control the outcome of the exercise of the discretion. We note, in particular, the following matters:
(a) The introduction to the Instructions includes the statements that "[d]ecision makers should be mindful that policy must not be applied inflexibly" and that "[p]olicy cannot constrain the exercise of delegated powers under the Act" (see [19] above).
(b) Section 5.12.5 states, in the second paragraph, that in the case of an applicant who does not meet the policy guidelines below, decision-makers "must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances" (see [21] above).
(c) Under the heading "Children under 16 applying individually in their own right", section 5.12.5 states that children under 16 applying individually in their own right would "usually" not be approved under s 24 unless they meet the policy guidelines there set out.
73 The language used by the section, namely that certain applications would "usually" not be approved unless certain policy guidelines are met, indicates that there will be cases outside the usual course. Thus the policy contemplates that a person may not meet the policy guidelines but their application may nevertheless be approved. In these circumstances, we do not consider it accurate to say that section 5.12.5 of the Instructions imposes a matter in the nature of a precondition on the exercise of the power under s 24(1) (cf Reasons, [247]).
74 Fifthly, we do not regard the structure or content of section 5.12.5 as having a rule-like quality such that it purports to control the exercise of the discretion. As already discussed, section 5.12.5 states that children applying individually in their own right would "usually not be approved" unless they meet certain policy guidelines. But it is also stated that, in the case of an applicant who does not meet these guidelines, decision-makers must consider the full circumstances of the case and whether they are unusual. And, as set out in the introduction to the Instructions, the "policy must not be applied inflexibly".
75 Sixthly, the circumstances of this case are quite different from those in Green v Daniels. In that case, Stephen J held that a policy was inconsistent with a statutory provision regarding the entitlement to unemployment benefits. The statutory provision (set out at 4 of the report) contained specific criteria. As Stephen J said (at 9), "[n]o general discretion is conferred upon [the Director-General]; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer".
76 Seventhly, we do not accept G's submission that it is not open to the Minister to challenge the declaration because he has not sought to appeal from the orders of the primary judge setting aside the decision of the Tribunal and remitting the matter for determination according to law. The declaration is a discrete matter and there is no inconsistency between the Minister accepting the correctness of the orders setting aside the decision of the Tribunal and remitting the matter, and challenging the correctness of the declaration.
77 We do not accept G's submission that the Minister's appeal must fail because he does not challenge the primary judge's exercise of the discretion (to make the declaration). It is true that the Minister does not challenge the primary judge's application of the general principles regarding the making of declarations. But the Minister does challenge the making of the declaration, on the basis that the primary judge erred in concluding that the relevant part of the Instructions was inconsistent with the statute and therefore unlawful. If the Minister's proposition is correct, it follows that the primary judge erred in making the declaration. It is open to the Minister to adopt this approach. Contrary to G's submissions, the Minister is not seeking to challenge reasons rather than orders; the appeal challenges the declaration, which forms part of the orders.
78 For these reasons, we respectfully disagree with the primary judge's conclusion that the relevant parts of section 5.12.5 of the Instructions are inconsistent with the Australian Citizenship Act.