In Australia, it is presently unclear whether and to what extent the unreasonableness ground applies to administrative action based on non-statutory executive power. Earlier this year, Robertson J handed down a decision which advances the limited jurisprudence in this area.

Examples of non-statutory executive power include the power to prorogue Parliament, the government’s power to enter into contracts and the power to prevent non-citizens from entering into Australia. Non-statutory executive power is heavily relied on but has been described as ‘opaque’ because it ‘lacks the legitimacy, public exposure, quality control and accountability that typically are associated with legislation’.[1]

In Australia, the unreasonableness ground of judicial review applies to exercises of statutory executive power. The relevant test is whether the decision is unreasonable or plainly unjust.[2] The ground is based on the common law principle that reasonableness should be implied as a condition of validity to the exercise of a statutory power.[3]

Given the rationale relates to a principle of statutory interpretation, it is not immediately apparent how the ground might be justified in non-statutory contexts. However, the case of Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 (Jabbour) suggests one way the ground might be extended.

Summary of the facts in Jabbour

The applicants arrived in Australia on a subclass 457 visa. Their visas expired in 2007 and the applicants became unlawful non-citizens. In 2015, the applicants requested that the Minister for Immigration and Border Protection exercise his public interest power under s 351 of the Migration Act 1958 (Cth) to substitute a decision of the Administrative Appeals Tribunal with a more favourable decision to the applicants. In 2017, the Assistant Minister declined to intervene.

In 2018, the applicants sent a further letter requesting the Minister exercise his power under s 351. The Acting Assistant Director resolved not to refer the request to the Minister and in making that decision he referred to the Minister’s guidelines on s 351. Part of the guidelines are extracted below:

… I do not wish to consider repeat requests. Where I or another Minister (current or previous) have declined to intervene or consider intervening in a case, I expect the person concerned to leave Australia.

In limited circumstances, a repeat request may be referred to me if:

  • the Department is satisfied there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request; and
  • the Department assesses that these new, substantive issues fall within the unique or exceptional circumstances described in section 4 of these guidelines.

The applicants submitted that the Acting Assistant Director acted unreasonably in two ways. First, that he failed to understand correctly the substance of the request, which contended that there had been a significant change in circumstances since the previous request. Second, that he acted unreasonably because he failed to refer the request to the Minister in circumstances where no reasonable person would fail to do so.

Summary of the parties’ submissions

Drawing on existing case law, the applicants submitted that the availability of the unreasonableness ground should depend on the substance and character of the discretionary power being exercised, not the source of the power. The applicants also submitted that the ground should apply to non-statutory executive power, otherwise it would reveal a significant gap in the accountability of the Executive.

In relation to how the Court would discern the limits of the power exercised by the Acting Assistant Director, the applicants submitted that the Executive could and had structured the exercise of that power through the use of guidelines.

The Minister resisted the application for various reasons. Three of those reasons are explained below. First, the Minister submitted that there was no source of power for the proposed ground of judicial review.

Second, even if a source could be found, without legislation there could be no sufficient content given to the non-statutory executive power. In relation to the applicants’ submission that the guidelines provided the limits of the power, the Minister submitted that the applicants were in effect seeking to elevate the guidelines to the status of law which was not permitted given the rejection of the doctrine of substantive legitimate expectations in Australia.[4]

Third, even if the unreasonableness ground applied, the High Court’s decision that procedural fairness does not apply to administrative action under s 351 was a bar to the applicants’ success.[5]

Decision

His Honour accepted in principle that non-statutory executive power is amenable to judicial review for legal unreasonableness, but held that the Acting Assistant Director did not act unreasonably.

In relation to the source of power for the ground, his Honour referred to s 75(v) of the Constitution and the function of judicial power in controlling actions by the Executive which go beyond the exercise of executive power vested by s 61 of the Constitution. His Honour also referred to the common law.

As to the scope of the discretionary power to refer the applicants’ request to the Minister, his Honour agreed with the applicants that the limits could be identified from the Ministerial guidelines. Since the guidelines provided a purpose and set out criteria, they performed a function comparable to a statutory framework.

His Honour did not directly address the Minister’s submission that defining the scope of the power by reference to the guidelines is inconsistent with the High Court’s rejection of the doctrine of substantive legitimate expectations. However, his Honour appears to reject that submission in part by stating that a reasonableness review which concentrates on the decision maker’s reasoning process does not require an analysis of the power’s limits. The position might be different where it is alleged that the result, rather than the process, is unreasonable. His Honour stated that in those circumstances a court would need to refer to the guidelines to determine whether the decision was within the limits of the discretionary power.

His Honour also disagreed with the Minister’s submission that the ground was not available because procedural fairness does not apply to s 351. While his Honour accepted that there can be overlap between procedural fairness and legal unreasonableness, he stated that the principles are distinct in their history, principles and terms. Consequently, the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced.

What next?

Jabbour has attracted some attention since it was handed down in April, but the decision has not been applied. In September, an appellant relied on Jabbour for part of an appeal before the Full Court of the Federal Court. Although the appeal was dismissed, the Court did not criticise the reasoning in Jabbour that a decision might be set aside if the decision maker has applied a departmental policy but has misconstrued it.[6]