Rokobatini v Minister for Immigration & Multicultural Affairs

WHITLAM and GYLES JJ: 1 The decision of the Administrative Appeals Tribunal ("the Tribunal") under challenge in this appeal involved an error of law for which the respondent ("the Minister") is entirely responsible. The Migration Act 1958 ("the Act"), as in force at the time of the Tribunal's decision, gave the Minister power to issue general policy directions to persons performing functions or exercising powers under the Act. Although there was such a direction and it governed this case, the Minister failed even to draw its existence to the attention of the Tribunal. 2 How this unfortunate situation came about may be briefly sketched. The appellant is a Fijian national who has lived in Australia since arriving here shortly after his ninth birthday. He had not long been granted permanent residence when, aged eighteen, his conviction and sentence on four counts of robbery in company rendered him liable to deportation by the Minister under s 200 of the Act. On 24 August 1998 a delegate of the Minister made a deportation order against the appellant. A report to that delegate assessed the case on the basis of what was described as "the Government's Criminal Deportation Policy". This was a policy statement by a predecessor of the Minister that came into effect on 24 December 1992. It is convenient to refer to this statement as "the Policy". 3 The appellant applied to the Tribunal for a review of the delegate's decision. The Policy was included in the so-called "T" documents lodged with the Tribunal, thus indicating that it was considered to be relevant to the review by those representing the Minister. The application was heard on 14 January 1999, and on 19 January 1999 the Tribunal affirmed the delegate's decision. In the Tribunal's reasons for decision extensive reference is made to the guidelines for deportation set out in the Policy. 4 Meanwhile, however, on 21 December 1998 the Minister had signed an instrument described as General Direction - Criminal Deportation - No. 9. It is convenient to refer to this instrument as "the Direction". By it the Minister purported to "give the following General Direction pursuant to section 499 of the Act to any person or body having functions or powers in relation to the deportation of a non-citizen under s 200 of the Act." There then follows thirty-four numbered paragraphs, the last of which states: "34. This direction has effect on and from the date of signing." 5 After the appellant instituted his appeal to the Court from the decision of the Tribunal, his legal advisers became aware of the Direction. At the hearing before Emmett J, the appellant was given leave to amend his notice of appeal so as to raise as a further question whether the Tribunal erred in law by failing to have regard to the Direction. 6 Section 499 of the Act provided: "499. (1) A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing. (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (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." 7 Emmett J did not accept the appellant's contention "that the mere fact of failure of the Tribunal to advert to the Direction is sufficient ground to set aside the Tribunal's decision". His Honour analysed the Tribunal's decision and its reasons for decision. He concluded: "27. Notwithstanding that the Deputy President did not refer to the Direction, it appears to me that, on a fair reading of the Direction and the Policy, there is no relevant substantial difference between them. The significant difference is that the Direction imposes an obligation on a person performing a function or exercising power to which section 499 applies whereas the Policy, at best, was a matter which should have been taken into account by the Tribunal. I am not satisfied that the Deputy President's decision was not "in accordance with" the Direction. In a sense, of course, that is fortuitous in the circumstances, but it is easily explained, as I have said, by the fact the Deputy President had regard to the Policy which contains observations which are not significantly different from the Direction." Emmett J then held that the other ground of appeal was not made out. Accordingly the appeal was dismissed with costs. 8 In the court below it was common ground between the parties that the Direction was binding upon the Tribunal. However, we were informed by counsel for the Minister that a copy of the Direction was, in fact, never furnished to the members, officers or staff of the Tribunal until after its decision in this case was given. There is no evidence about this, one way or the other. If correct, this information raised the question whether the Direction could be effective prior to a copy being received by the Tribunal on the basis that the expression "given to" in s 499(1) of the Act required such notification before the Tribunal could be bound by the Direction. 9 We may say at once that, in our opinion, the word "give" and its past participle "given" in s 499 are not used in the sense of "serve" or "send": see Acts Interpretation Act 1901, s 28A. In the context the expression "to give" means "to issue", as in the ordinary English phrase "to give a command" or, as in the phrase familiar to lawyers, "to give judgment". The preposition "to" placed before the nouns "person" and "body" in subs (1) does not denote a requirement that a written direction be actually delivered, physically or electronically, to such persons before they are bound by it. The word "to" following the word "given" requires only that the person or body whose functions or powers are affected by the direction be identified. In other words, the person or body to whom it is directed must be indicated. In this case the Direction is clearly addressed to "any" person or body exercising power under s 200 of the Act. The requirement that a direction be "in writing" ensures the formal recording of such an important pronouncement by the Minister. It follows that, in our opinion, paragraph 34 of the Direction operated in terms to bring it into effect on 21 December 1998, being the day it was signed. 10 The construction we favour is supported too by practical considerations. A "general direction" by its very nature is likely to be addressed to several persons. It cannot be supposed that the tabling obligation under subs 499(3) arises each time the terms of a direction are actually communicated to a delegate of the Minister. In addition, a general direction may affect the performance of functions and exercise of powers by persons to whom such functions and powers are delegated well after such a direction is made. 11 This last consideration is reflected in other legislation. The Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 was assented to on 11 December 1998. Although the changes made to s 499 by that Act had not come into operation on 19 January 1999 when the Tribunal gave its decision in this case, the relevant transitional provision is instructive. Item 31 of Schedule 1 to that Act provides: "(1) This item applies to a direction given by the Minister that was in force under section 499 of the Migration Act 1958 immediately before the commencement of this item. (2) The direction has effect after the commencement of this item as if it had been given under section 499 of the Migration Act 1958 as amended by this Act." The use of the expression "in force" further suggests that a direction is given when it is made. Parliament could not have intended that a "general" direction would have a continuing effect only upon those persons to whom it had already been communicated. 12 The locus classicus on the part that government policy may play in merits review remains the joint judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 418-422. Their strictures emphasize the importance of ascertaining, as a threshold question, whether the decision-maker is under a statutory duty to regard itself as bound by government policy. In the present case s 499(1) of the Act was such a specific statutory provision. Yet the Tribunal did not advert to it at all because it was unaware of the existence of the Direction. In that respect, through no fault of its own, the Tribunal was, in our opinion, led into error of law. The Tribunal, in fact, had regard to the Policy, the provisions of which had been entirely superseded by the Direction. 13 Even if we had been of a different view, we are not persuaded that it would be appropriate to decide the appeal on a basis not argued by either party, which is contrary to that which was common ground below and where the facts have not been established in an admissible fashion, particularly where the basis, if established, would work to the disadvantage of the deportee, yet the Minister was at fault. 14 Furthermore, even if a different conclusion were arrived at as to the immediate force of the Direction in this case, it seems to us that the intention of the Minister, exhibited by his signing of the Direction, is inconsistent with the continuance of the Policy from that time on. As the Tribunal, at the very least, had regard to the Policy, this in itself would be appellable error. 15 The Minister has submitted that if the Tribunal is found to have erred in law by not having adverted to the Direction, the appeal should nonetheless be dismissed upon the basis that the error could not have affected the decision, citing Bisley Investment Corporation v ABT (1982) 59 FLR 132 at 146, 161-2 and Commonwealth Banking Corp v Percival (1988) 20 FCR 176 at 182. The same submission would apply if the error were in applying the Policy. 16 This submission raises similar, but not identical, issues as are involved in the primary judge's conclusion that the reasons of the Tribunal were, in fact, in accordance with the Direction. In view of our finding as to the error of law, it is unnecessary to pursue this latter argument to its conclusion. Underlying each is the question as to whether there is any relevant difference between applying the Policy on the one hand, or the Direction on the other, in the circumstances of this case. Even if the Direction did not bind the Tribunal at the time of its decision, it will certainly bind the Tribunal if the case is returned to it. 17 The most obvious difference between the two is that the Direction must be followed by reason of s 499 of the Act, whereas the Policy might be taken into account in the manner discussed in various decisions of the Court. Whilst this is a radical difference, its significance is lessened, and perhaps eliminated, in the present case as it appears the Tribunal may in truth have set out to give effect to the Policy. 18 This brings into sharp focus the content of the Policy compared with the Direction. In considering this question, it should be borne in mind that the Direction is not simply a list of relevant matters, it describes a process of decision-making. The Policy has the same effect. Plainly, the text of each is quite different as, in our opinion, is their effect. The Minister, for example, submits that the Direction is "tougher" than the Policy. Even if that is so (and it is a matter of debate) that illustrates the fact that it is impossible to equate one process with the other, or to assume that the outcome of following one will be the same as the outcome of following the other. 19 This becomes clearer when a concrete example is considered. Take hardship to the deportee. The Policy which the Tribunal sought to follow included as a factor to be taken into account "any unreasonable hardship the offender would suffer". On the other hand, the Direction included as a matter to be taken into account "the degree of hardship which may be suffered by the potential deportee". (Emphasis added.) The concept of hardship to the deportee is further spelled out in paragraph 22 of the Direction, which is in the following terms: "22. It is the Government's view that factors to be considered here include: (a) whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee; (b) while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported. (c) the degree and extent of the potential deportee's ties with the likely country of return; (d) the strength of other family, social or business ties in Australia; (e) social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and (f) the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration. Decision makers should have due regard to the Government's view in this respect." 20 The Tribunal dealt with the question of hardship in the following way: "35. … There is certainly no evidence of any "unreasonable hardship" which the applicant would suffer. It is true that he has been in this country since the age of 9 and that he speaks no Fijian. Nevertheless, the evidence was that he has grandparents, uncles, aunts and other relatives in Fiji. The fact that he arrived in Australia as a minor is to be taken into account, but as the Government policy makes it clear: "It is not the Government's intention that such people should never be deported. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crimes, deportation should be seriously considered." 36. Pastor Buli considered that Fiji is a "crime den" and that sending the applicant back to Fiji would be likely to result in his involvement in further crime in that country. In my view, however, this is an irrelevant consideration in the context of determining whether a deportation order should be enforced. I am bound to give most weight to the need to protect Australian society. That protection would best be afforded by the affirmation of the deportation order and I will therefore affirm it." 21 The Tribunal had earlier said, in addressing a submission that the immigration detention had prevented closely supervised parole which had been recommended by a parole officer whose report had been tendered: "This submission, it seems to me, is based on a misunderstanding of the purpose and policy of deportation. Individual rehabilitation is of relevance only insofar as it points to the extent of the risk of recidivism." 22 We do not need to decide whether, in so holding, the Tribunal did indeed follow the criteria it had set for itself. In our view, it is perfectly clear that it did not follow the Direction (albeit, as we have explained, the existence of the Direction was not drawn to the attention of the Tribunal). Nor, to take the manner in which the matter was approached below, can it be said that the decision was "in accordance" with the Direction. 23 The Tribunal was obliged to assess the degree of hardship which may be suffered by the potential deportee and, having done so, put its conclusion on that issue on the scales in the manner provided for by the Direction. The possibility of rehabilitating the appellant from a life affected by drugs, alcohol and gambling, and the almost certain exacerbation of those personal problems by reason of deportation, simply cannot be described as irrelevant to the Direction. To take that view is to misconstrue or simply not follow the Direction. It seems to us that the attention of the Tribunal focussed on the notion of "unreasonable hardship" referred to in the Policy, when it should have made an assessment of the degree of hardship to the deportee in all its facets, as required by the Direction. Therefore, we are satisfied that the Policy and the Direction are different in ways which are material to the present case, and that to follow the process laid down by the Policy is simply not to arrive at a result in accordance with the Direction. 24 An argument addressed by the Minister that it is futile to return the matter to the Tribunal necessitates some limited consideration of the merits of the matter in the light of the discussion above. The gist of the Minister's argument is that any hardship to the appellant which might be identified and assessed would be overwhelmed or swamped by the primacy accorded by the Direction to protection of the Australian community. The Minister relies upon the manner in which the Tribunal accorded that primacy in its decision. It was put that as the Direction, if anything, gave greater force to protection of the Australian community, the same result would follow. 25 We do not agree that deportation is the inevitable result of a proper de novo consideration of the matter in accordance with the Direction. We would expect, for example, that a proper assessment of the facts and circumstances would find that hardship to the appellant occasioned by deportation would be extremely severe. 26 The appellant came to Australia when aged just nine years, and he is now over twenty. His mother, father and four siblings live in Australia and have permanent residency. His life and schooling were apparently incident-free until he "went off the rails" at the age of sixteen. His formative years have been spent in Australia. He does not even speak Fijian. He has drug, alcohol and gambling problems which, according to the parole officer, require therapeutic programmes under close supervision. His family, and he, have close links with a Sydney Christian church community. There is evidence that sending the appellant back to Fiji would be likely to result in his involvement in further crime in that country. It is a matter of common knowledge that the economy of Fiji is fragile and that the opportunities for employment there, particularly by a person who has been brought up in Australia and does not speak Fijian, would be much poorer than the prospects in Australia. To uproot this person at the age of twenty, with his problems, and send him back to what amounts to a strange country away from his immediate family might be thought virtually certain to ruin the life of the deportee. This is to be compared with the prospects which he would have for rehabilitation under close supervision of family and church in Australia. 27 It would also be highly relevant for the Tribunal to note that the Direction makes it clear that deportation is a last resort in cases where the person spent his formative years in Australia and where continuing ties are with Australia. This would have particular force as the appellant has been in Australia for more than ten years. As the appellant was a minor for most of this time, his lack of status as a permanent resident might be seen as a bare technicality which permits deportation at all. 28 This is not to suggest, of course, that the appellant will necessarily succeed before the Tribunal. It is for the Tribunal to assess the severity of the hardship, and then to carry out the weighing process which is required by the Direction. It is merely to indicate that the possibility of success is not insubstantial. 29 For these reasons, we joined in the orders allowing the appeal with costs here and below and remitting the case to the Tribunal for further consideration. I certify that the preceding twenty-nine (29) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Gyles.

REASONS FOR JUDGMENT KATZ J: 30 On 21 December 1998, subs 499(1) of the Migration Act 1958 (Cth) ("the Act") provided, "A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing". (The provision has since been amended, but not in a way which affects the present appeal.) 31 On that day, the Minister for Immigration and Multicultural Affairs ("the Minister") signed a document which said in par 1 thereof that it might be cited as "General Direction - Criminal Deportation - No. 9" ("the direction"). The direction also said in what I will call hereafter its enacting clause that it was a general direction pursuant to s 499 of the Act, given to"any person or body having functions or powers in relation to the deportation of a non-citizen under section 200 of the Act". 32 The words which I have just quoted from the direction's enacting clause were not to be taken literally. 33 First, they must be taken to have been intended to encompass only persons or bodies having functions or powers under the Act in relation to the deportation of a non-citizen under s 200 of the Act, since that is a limitation imposed by subs 499(1) of the Act itself upon the implied direction-giving power which it confers. They cannot be taken to have been intended to encompass, for instance, this Court, which, although it performs, in cases such as the present one, a function "in relation to" the deportation of a non-citizen under s 200 of the Act, does not do so "under th[e] Act". (In so saying, I, of course, imply nothing about the Minister's ability to give general directions to this Court under subs 499(1) of the Act when this Court is performing a function under the Act.) 34 Secondly, the reference in the direction's enacting clause to "the deportation of a non-citizen under section 200 of the Act" was too broad. Section 200 of the Act conferred a power upon the Minister to order the deportation of a non-citizen to whom Pt 2, Div 9 of the Act applied. Section 201 of the Act, which appeared in Pt 2, Div 9 of the Act, specified, as one only of a number of circumstances in which s 200 of the Act applied to a person, the person's conviction of crime. What was meant in the direction's enacting clause, as is apparent from the operative provisions of the direction, was "the deportation of a non-citizen under section 200 of the Act",because of circumstances specified in s 201 of the Act. 35 In the result, one should, in the first instance, understand those encompassed by the direction's enacting clause as having been "any person or body having functions or powers under the Act in relation to the deportation of a non-citizen under section 200 of the Act, because of circumstances specified in section 201 of the Act". 36 However, even when read in that way, the direction's enacting clause still did not identify precisely those persons and bodies intended to be encompassed by it. 37 As I have already mentioned above, the power conferred by s 200 of the Act was conferred upon the Minister himself. It is unlikely either that Parliament intended that the Minister should use subs 499(1) of the Act to give general directions to himself or that the Minister was seeking to do so in the direction. However, it is likely that Parliament intended both that the Minister should be capable of using subs 499(1) of the Act to give general directions to those persons to whom he had delegated powers such as that under s 200 of the Act and that the Minister was seeking to do so in the direction. (Not surprisingly (and as is apparent from the facts of this very case), the Minister had delegated his power under s 200 of the Act, in so far as that power was capable of being exercised in circumstances specified in s 201 of the Act.) 38 Those being the only persons likely to have been intended to be encompassed by the direction's enacting clause, the only body likely to have been intended to be encompassed by that clause was the Administrative Appeals Tribunal ("the Tribunal"), which had had conferred upon it by s 500 of the Act a review function in respect of decisions which had been made under s 200 of the Act,because of circumstances specified in s 201 of the Act. 39 (I should, however, mention here that pars 26 and 27 of the direction referred respectively to Australia's obligations under the International Covenant on Civil and Political Rights (wrongly called in the direction (my emphasis) "the International Convention on Civil and Political Rights") and the Convention Against Torture. After making such reference, each paragraph continued (emphasis in original), "For further assistance on this point contact Legal Policy Section in Central Office [that is, of the Department of Immigration and Multicultural Affairs]". Those two statements, though obviously appropriate so far as Ministerial delegates were concerned, were equally obviously inappropriate so far as the Tribunal was concerned. However, I am not prepared, merely as a result of those two inappropriate statements, to infer that the direction's enacting clause was intended to encompass only Ministerial delegates and not the Tribunal as well.) 40 On 19 January 1999, almost one month after the Minister had signed the direction, the Tribunal affirmed a decision which had been made on 24 August 1998 by a Ministerial delegate, the delegate having exercised the Minister's power under s 200 of the Act, because of circumstances specified in s 201 of the Act. The delegate's decision had been to order the deportation by reason of crime of Mr Epinisa Tiko Rokobatini, the present appellant. It is apparent from the Tribunal's statement of findings and reasons that it did not perform its review function in respect of that decision by reference to the direction. Instead, the Tribunal performed its review function in respect of that decision by reference to a Ministerial statement on Australia's criminal deportation policy which had been effective from 24 December 1992 ("the policy"), which policy had been announced by a predecessor of the Minister. Further, it is common ground that, during the proceeding before the Tribunal, the Minister had made no submissions to the member constituting the Tribunal in reliance upon the direction, but had made submissions to that member in reliance upon the policy. (Such submissions were obviously predicated upon the policy's remaining effective at that time.) 41 Mr Rokobatini instituted an appeal (so-called) to this Court from the Tribunal's decision. Only after doing so did he become aware (by what means, I do not know) of the existence of the direction. He then amended his notice of appeal to include as a ground of appeal the ground that the Tribunal had erred in law by failing to have regard, in making its decision affirming his criminal deportation order, to the direction. 42 (I add here that any directions given under subs 499(1) of the Act, because they were required to be "general" directions, were in my view, legislative in character: for the significance of the use of the adjective, see Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565 (Black CJ and Tamberlin and Sackville JJ), a case dealing with a provision in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) which was materially identical to subs 499(1) of the Act as it was at the relevant time. However, the content of directions given under subs 499(1) of the Act was not required to be publicly notified. Whether or not the contents of the direction have ever been publicly notified, I cannot say; all I can say is that the Joint Law Courts Library in Sydney, which I requested to inquire into the matter for me, told me that it had been unable to locate any such public notification. If it be the case that the contents of the direction have not been publicly notified, that is, to say the least of it, a most unsatisfactory situation, given the direction's character.) 43 Of course, Mr Rokobatini's ground of appeal to this Court to which I have referred above could not possibly have succeeded unless, before 19 January 1999, the direction which had been signed by the Minister on 21 December 1998 had been "given to" the Tribunal "in writing", as is provided for by subs 499(1) of the Act. However, when the matter came on for hearing before the primary Judge, the Minister "conceded", wearing his hat as a litigant, that he, when wearing his hat as the repository of the power impliedly conferred by subs 499(1) of the Act, had in fact given the direction to the Tribunal in writing before 19 January 1999. The matter then proceeded before the primary Judge on that factual basis. (The Minister's advertence in the proceeding before the Tribunal to the policy, rather than to the direction, was apparently explained to the primary Judge by the Minister on the basis that the Minister had failed properly to instruct his representative in that proceeding.) 44 The primary Judge having dismissed Mr Rokobatini's appeal, Mr Rokobatini then appealed to a Full Court of this Court from the primary Judge's judgment. In part, Mr Rokobatini's appeal to the Full Court depended upon the direction's having been "given to" the Tribunal "in writing" by the Minister before 19 January 1999. However, when the matter came on for hearing before the Full Court, the Minister informed us that he had inadvertently misled the primary Judge by telling him that he, the Minister, had in fact given the direction to the Tribunal in writing before 19 January 1999. The Minister said that he had not in fact given the direction to the Tribunal in writing until some later date, of which date there was no evidence before us. 45 (I add that, unless the Tribunal was given the direction in writing before 28 January 1999, then the Minister, as well as having inadvertently misled the primary Judge in the present matter, also inadvertently misled Carr J in Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 985 (unreported; 21 July 1999): see at par 16.) 46 It thus appears that the proceeding before the primary Judge was conducted on what we now know to have been a wrong factual basis. A question therefore arises, it appears to me, as to the factual basis upon which we should proceed on this appeal. On the one hand, there are the circumstances that: Mr Rokobatini obviously considers it to be of benefit to him that we should proceed on the basis that the Minister had in fact given the direction to the Tribunal in writing before 19 January 1999; the proceeding before the primary Judge had been conducted on that basis with the Minister's concurrence; and the Minister is content that the appeal should also be conducted on that basis. On the other hand, it may be thought that, knowing what we now know, to proceed on the same basis as did the primary Judge would involve our merely giving an advisory opinion, in so far as the resolution of the appeal depended upon the Minister's having in fact given the direction to the Tribunal in writing before 19 January 1999. 47 I have had the opportunity of reading in draft form the reasons for judgment of Whitlam and Gyles JJ and I am therefore aware that the question which I have posed in the preceding paragraph of these reasons for judgment is one which they have found it unnecessary to resolve. I understand their Honours to consider the question unnecessary to resolve because they take the view that, whatever be the factual position regarding the giving of the direction to the Tribunal in writing, the direction was effective so far as the Tribunal was concerned on 21 December 1998, the date upon which it was signed. They take that view because they say that, on the proper construction of subs 499(1) of the Act, general directions are given to a person or body in writing when those directions are brought into existence in writing by the Minister, irrespective of whether there has been actual delivery of those directions to the person or body concerned. Further, proceeding on that basis, they have decided that the appeal should be allowed. I have decided instead to proceed on the basis that the Minister had not in fact given the direction to the Tribunal in writing before 19 January 1999 and that, subject to what I say below about par 34 of the direction, actual delivery to the Tribunal of the contents of the direction was necessary before it could be said that the direction had been given to the Tribunal in writing within the meaning of subs 499(1) of the Act. However, I have also decided that the appeal should be allowed, for the reasons which follow. 48 Proceeding on the basis that the Minister had not in fact given the direction to the Tribunal in writing before 19 January 1999, it appears to me that the first question which now arises is whether the Minister should nevertheless be deemed, by reason of par 34 of the direction, to have done so before that date, indeed, to have done so on 21 December 1998, the date of the direction's signing. Paragraph 34 of the direction provides, "This direction has effect on and from the date of signing". In yet another of the curious features of this case, the Minister made no submission before us that par 34 of the direction should be construed as providing that, even if the direction were to be given to a relevant person or body in writing after the date of its signing, it was nevertheless to be taken to have imposed duties on that person or body retrospectively from the date of that signing. 49 Although, as I say, no such submission was made before us by the Minister (or by Mr Rokobatini, for that matter), it appears to me that such a submission would be correct. 50 At the same time, however, I am of the view that par 34 of the direction, construed in that way (as it appears to me it would have to be if it were to have any potential significance at all), was invalid. 51 As was pointed out by Gavan Duffy CJ and Evatt and McTiernan JJ in Broadcasting Co of Australia Pty Ltd v The Commonwealth (1935) 52 CLR 52 at 60, "[W]here the executive Government attempts to give to a regulation a retroactive operation, the validity of the regulation is necessarily dependent upon the precise term[s] of the grant which the Parliament has conferred upon the Executive". (No good reason appears to think that that statement was not intended to apply to every type of delegated legislation, including not only regulations, but also, for instance, the general directions contemplated by subs 499(1) of the Act, they being a type of delegated legislation (see par 42 above).) 52 The Broadcasting Co of Australia Case was one in which a power to make regulations had been conferred in a typical form by the Wireless Telegraphy Act 1905 (Cth), namely, a power to make regulations "prescribing all matters … which are necessary or convenient to be prescribed for carrying out or giving effect to this Act". Relying upon that conferral, a regulation had been made, containing a provision reducing retrospectively, as well as prospectively, the right of certain persons to compensation for certain services rendered. However, it was said by Gavan Duffy CJ and Evatt and McTiernan JJ (at 61) that "no purpose of the Act is carried out or given effect to by such a provision" and the provision in the regulation purporting to make it operate retrospectively was accordingly held invalid. In separate reasons for judgment (see at 63) Rich J reached the same conclusion as had Gavan Duffy CJ and Evatt and McTiernan JJ. 53 The inference which I draw from the High Court's approach in the Broadcasting Co of Australia Case is of a need for quite specific language supporting the use of a power to make delegated legislation in order to remove existing rights retrospectively before that power will be so construed. (No good reason appears to think that the Court would have taken a different attitude if the power had been sought to be used in order to impose new obligations retrospectively: compare Sendall v Federal Commissioner of Land Tax; Crace v Federal Commissioner of Land Tax (1911) 12 CLR 653 at 665-66 (Griffith CJ).) 54 More recently, in Beard v South Australia (1991) 57 SASR 65, a Full Court of the Supreme Court of South Australia took a similar approach to that which had been taken in the Broadcasting Co of Australia Case (although without referring to the latter case). In Beard's Case, a Minister had been given the power by statute to fix by published notice certain land values, charging rates and water quantities in connection with charges for the residential supply of water. She purported to do so by two notices with retrospective effect. Zelling AJ, with whom Mohr J agreed (at 66), held that the two notices were invalid. He said (at 81), "If the notices are to be valid, there must be a power to backdate the operation of the notices…. I can find no such power either in the statute or in the general law". 55 I can find nothing in the precise terms of the implied grant of power in subs 499(1) of the Act (or in the subject matter of that implied grant of power either, to the extent to which that would be sufficient for the purpose: compare Australian Sugar Producers' Association Ltd v Australian Workers' Union (1917) 23 CLR 58 at 65 (Griffith CJ) and 73 (Barton J); Charlton v Members of the Teachers Tribunal [1981] VR 831 at 840 (McGarvie J)) which implies an ability in the Minister to impose duties retrospectively by general directions. In those circumstances, par 34 of the direction should, it appears to me, meet the same fate as the delegated legislation in the cases which I have discussed in the preceding paragraphs. 56 (I may add here that, in North America, an approach is taken which is similar to that to which I have referred above. 57 First, in Bowen v Georgetown University Hospital 488 US 204 (1988), Kennedy J, delivering the opinion of the United States Supreme Court, said (at 208-09), "It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress. In determining the validity of the Secretary's [that is, the Secretary of Health and Human Services] retroactive cost-limit rule, the threshold question is whether the Medicare Act authorizes retroactive rulemaking. … [A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms…. Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant." 58 Both the Court's use of the words "as a general matter" and its reference to a "reluctan[ce]" on the part of the courts, as opposed to a refusal, imply an attitude on its part that the subject matter of a grant of rulemaking power may sometimes be enough, even in the absence of express words, to justify construing that rulemaking power as authorising retroactive rulemaking. I agree with such an attitude. 59 Secondly, in Attorney-General for British Columbia v Parklane Private Hospital (1974) 47 DLR (3d) 57, Dickson J, delivering the reasons for judgment of the Supreme Court of Canada, said (at 66), "If intra vires, O.C. 4400 [that is, Order in Council 4400, a regulation] would serve to extinguish retrospectively the entire claim of Parklane, but in my view it fails to have that effect. The Lieutenant-Governor in Council is empowered to enact Regulations for the purposes of carrying into effect the provisions of the Act [that is, the British Columbia Residence and Responsibility Act], but nothing expressly or by necessary implication contained in the Act authorizes the retrospective impairment by Regulation of existing rights and obligations." 60 That approach appears to me to be very close indeed to that of the High Court in the Broadcasting Co of Australia Case.) 61 It therefore follows that the Minister should not, by reason of par 34 of the direction, be deemed to have given the direction to the Tribunal in writing before 19 January 1999. 62 (It is appropriate to add at this point, however, that, although I consider par 34 of the direction to have been invalid, I also consider it to be severable from the balance of the direction, so that the balance of the direction began to operate in respect of the Tribunal when in fact given to the Tribunal in writing, even though not when signed by the Minister.) 63 Proceeding, then, on the basis that the direction was neither in fact given to the Tribunal in writing before 19 January 1999 nor should be deemed to have been so given, I turn to the issues which appear to me to arise next. 64 I have already mentioned above that, when performing its review function in respect of Mr Rokobatini's deportation order, the Tribunal did so by reference to the policy. 65 The first issue which arises from its doing so is whether the policy remained in effect at the time of the Tribunal's decision. 66 That is an issue of which I can dispose quite briefly. While I am prepared to infer, particularly from the presence in the direction of par 34, that the Minister had the intention on 21 December 1998 that the policy cease to have effect on that date (to be replaced by the direction), I am unable to conclude that that intention could be effective without its communication to those decision-makers who would otherwise have been required to have regard to the policy in the course of their decision-making. As there is no evidence that that occurred in the present case, at least with respect to the Tribunal, until some date after the Tribunal's decision of 19 January 1999, the policy, in my view, remained in effect so far as the Tribunal was concerned at the time of its decision. 67 The next issue which arises from the Tribunal's performance of its review function in respect of Mr Rokobatini's deportation order by reference to the policy is whether the Tribunal erred in law in the particular use which it made of the policy. 68 I introduce my discussion of that issue by pointing out that the policy was not the first Ministerial policy in the area of criminal deportation. There had been a number of earlier versions of the policy over the years. In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, a Full Court of this Court discussed the role which such a policy should play in the review by the Tribunal of a decision to deport by reason of crime. What was said on that topic jointly by Bowen CJ and Deane J has been referred to with approval on many subsequent occasions, including (perfectly appropriately, in my view) occasions involving subsequent versions of the policy. Their Honours began (at 419) by pointing out that the function of the Tribunal when reviewing an administrative decision lawfully made in pursuance of a permissible policy included "adjudicat[ing] upon … the propriety of the policy". They then continued (at 420-22; emphasis added), "In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister in administering some aspect of the Act…. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy. In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be. It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions. In practice, the borderline between the two classes of decision may well be blurred and it is inevitable that there will be cases in which it is difficult to discern, from the published reasons of the Tribunal, on which side of the border the particular decision of the Tribunal lies. It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved. Examination of the reasons for decision of the learned Deputy President in the present matter indicates that the decision which he reached was the result of the application by him of ministerial policy to his careful assessment of the factual material before him. We have experienced considerable difficulty in deciding whether that application of policy was the result of an independent assessment of its propriety and an independent determination that the circumstances of the case were such that the correct decision was that resulting from the application of that policy to the relevant facts. Smithers J has analysed the reasons for decision of the learned Deputy President. The matters to which he has pointed have ultimately led us, on balance, to conclude that the published reasons of the Tribunal indicate that the Tribunal failed to make such an independent assessment and independent determination and that, in the result, it failed properly to perform its function of reviewing the Minister's decision that a deportation order be made in respect of the plaintiff." 69 I go now to the Tribunal's statement of findings and reasons in the present matter, in order to determine whether the Tribunal acted in accordance with the approach dictated by the passage from the reasons for judgment of Bowen CJ and Deane J which I have just quoted. 70 Having set out in its statement of findings and reasons various matters relating to Mr Rokobatini's criminal history and his consequent imprisonment, the Tribunal then referred to a probation and parole officer's report, on the basis of which report Mr Rokobatini had apparently obtained parole at about the end of 1998. In that report, the officer had said that he was recommending parole for Mr Rokobatini because he hoped that, while on parole, Mr Rokobatini would be able to participate in certain rehabilitative programs which were not available to him while he remained in prison. The Tribunal then recorded, "Counsel for the applicant pointed out that there had been no chance to test whether this hope could be realised because within a few days after the applicant's release on parole, he was put in immigration detention pending the hearing of this application." 71 The Tribunal responded to that point made by Mr Rokobatini's counsel as follows: "This submission, it seems to me, is based on a misunderstanding of the purpose and policy of deportation. Individual rehabilitation is of relevance only in so far as it points to the extent of the risk of recidivism…. The principal consideration is the protection of Australian society not the rehabilitation of the deportee. Paragraph 7 of the Ministerial Policy is in the following terms: '7.Consistent with Government policy, most weight should be given to the need to protect Australian society. Conversely, less weight should be given to the views of the offender and that person's family and associates, and to the possibility of adverse consequences for them of deportation.'" (Given the Tribunal's reference to and quotation from "the Ministerial policy", I take its earlier statement in the passage which I have just quoted that Mr Rokobatini's counsel's submission was "based on a misunderstanding of the … policy of deportation" to have been a reference to the policy.) 72 Having made its initial reference to and quotation from the policy in the passage which I have quoted above, the Tribunal then referred to and quoted from other paragraphs of the policy on numerous occasions in the balance of its statement of findings and reasons. First, it set out pars 9 and 10 of the policy, having introduced them as being "overriding guidelines". Next, it said, "A serious offence may base a deportation order in these circumstances", and then set out par 11 of the policy. Next, it said, "The criteria which I am called upon to follow are set out in paragraph 19 as follows", and then set out that paragraph as follows: "19. The most important broad criteria on which judgements will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued: • the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court;

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)