Justiciability of Non-Statutory Executive Action: A Message for Immigration Policy Makers

JUSTICIABILITY OF NON-STATUTORY EXECUTIVE ACTION: A MESSAGE FOR IMMIGRATION POLICY MAKERS

Amanda Sapienza*

The non-statutory executive power of the Commonwealth is firmly back on the public law agenda. Far from being neutered by the High Court’s decision in
Williams v Commonwealth,[1] which focused on the non-statutory capacity of the Commonwealth to enter into contracts for the spending of money, the Commonwealth’s apparent appetite
for exploring the limits of its non-statutory executive power is currently on display again, this time in an immigration context. At the time of writing,
the High Court has reserved its judgment in CPCF v Minister for Immigration and Border Protection and the Commonwealth, a challenge to events
that occurred in June and July 2014 involving the interception by the Commonwealth of a vessel containing 157 Sri Lankan asylum-seekers outside of
Australia’s migration zone (but inside Australia’s contiguous zone), the transfer of the asylum-seekers to an Australian ship and a decision to take
them somewhere other than Australia. The Commonwealth parties submitted that, if the power to take that action was not sourced in the Maritime Powers Act 2013 (Cth)
(as was their primary submission), then it was sourced in the non-statutory executive power of the Commonwealth.[2]They
argued that a non-statutory power to take that action is not fettered by an obligation to afford procedural fairness or any notion of proportionality,
as was claimed by the plaintiff. The Commonwealth parties also submitted that the exercise of any such non-statutory power would be informed by matters
that are not for judicial determination. In light of these submissions, and the submissions of the plaintiff to the contrary, the High Court may be
providing more elucidation of limitations on the Commonwealth’s non-statutory executive power in the very near future.

The invocation of non-statutory executive power by the Coalition government in the case of the intercepted vessel is not an aberration. In the election
campaign for the 2013 Federal election, the then shadow Minister for Immigration announced a number of proposed changes to the review of immigration
decisions in respect of people who were living in the Australian community having arrived in Australia by boat without a visa.[3]For
simplicity in this paper, rather than any attempt to depersonalise or stigmatise them, this group will be referred to as ‘boat arrivals’. The proposal
that received the most attention, both by the press and academia, was the suggestion that the Coalition might seek to abolish the Refugee Review Tribunal.
[4]
But one that slipped more under the radar was the announcement that they would seek to assess any claims to Australia’s protection that boat arrivals
may make by a ‘non-statutory process’. They did not expand on precisely what they meant by a non-statutory process, except to say that it would
be ‘more streamlined’, or how they would seek to achieve it. But the announcement to move to a non-statutory process was made in the context of
removing any rights of boat arrivals to seek review of any decision made by the government in respect of them. The suggestion was that if the assessment
process is non-statutory, boat arrivals would no longer be able to obtain judicial review of the decision that Australia does not owe them protection
obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the
Refugee Convention). 

Why would the Coalition think that? Undergraduate administrative law students could tell the Coalition policy-makers that, following the House of Lords’
decision in Council for Civil Service Unions v Minister for the Civil Service[5] (CCSU)and its first reception into Australia by the Full Court of the Federal Court in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd,
[6]
(Arts v Peko-Wallsend) the non-statutory source of a decision alone is not enough to make a decision non-justiciable, in the sense of
not being amenable to judicial review of administrative action. But the High Court has never finally determined the question. Further, the Commonwealth
and other Australian governments, and also private parties advised by highly esteemed counsel and reputable solicitors, have continued to make
the submission that a non-statutory source renders a decision immune from judicial review, at least on procedural fairness grounds.[7]The
courts, in response, have where possible refused to engage with the submission, deciding the case on other grounds or accepting that the law in
this regard is not settled.[8]Perhaps
CPCF v Minister for Immigration and Border Protection will be the case in which the High Court determines this question once and for all.

It may also be that the Coalition was given hope by the reasons for judgment of the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship[9] (S10), which indicated that lawmakers had finally devised a way to exclude any obligation to afford visa applicants procedural fairness. In
that case, the High Court unanimously held that departmental officers were under no obligation to afford an applicant procedural fairness when deciding
whether to refer the applicant to the Minister for Immigration for him[10] to consider whether to grant a visa, or allow the applicant to make a visa application, in circumstances where prior visa applications had been unsuccessful.
The Minister had argued that this was the result of the non-statutory nature of the inquiries being made at that preliminary stage – the department
was simply exercising the Commonwealth’s executive power under s 61 of the Constitution to make inquiries of a person’s circumstances, rather than
affecting any legal rights or obligations. Although the joint judgment of Gummow, Hayne, Crennan and Bell JJ found that the power was sufficiently
connected to an exercise of statutory authority,[11] perhaps the upholding of the ‘mere inquiries’ scheme was enough for the Coalition to think they had found a window of opportunity: a ‘non-statutory’
way to exclude procedural fairness and possibly all judicial review of decisions in respect of boat arrivals.

This paper argues that, even if it is possible for the government to make migration-related decisions ‘non-statutory’, about which there seems to be much
doubt, these decisions will be judicially reviewable regardless of that non-statutory source. If the now government is hoping to exclude, so far as
is constitutionally possible,[12] judicial review of protection visa decisions in respect of boat arrivals, their policy-makers will need to go back to the drawing board.

Can protection visa inquiries be made on a ‘non-statutory’ basis? 

As alluded to at the beginning of this paper, the High Court has recently cast some doubt on the ease of the invocation of the Commonwealth’s non-statutory
executive power to authorise government action.[13]The
non-statutory executive power referred to is that authorised by s 61 of the Constitution that is not incidental to an exercise of statutory power:
that executive power extending to the execution and maintenance of the Constitution. The High Court has accepted,[14] without closing off the possibility of new categories,[15] the following as categories of non-statutory executive power:

• prerogative power, understood in Blackstone’s sense as the powers that the government has by virtue of its sovereign authority that are not shared
  with the sovereign’s subjects,[16] such as the power to enter into a treaty and declare war;
• non-prerogative capacities, being the powers that the government has the nature of which[17] is shared with its subjects, such as the power to enter into contracts[18] and make inquiries;[19] and
• ‘nationhood’ power, which is the shorthand name generally accepted by academics, and now even the High Court,[20] for the power to ‘engage in enterprises and activities peculiarly adapted to the government of a nation and which otherwise cannot be carried out
  for the benefit of the nation’.^[21]

In Plaintiff M61/2010E v Commonwealth[22] (the Offshore Processing case), the Commonwealth and another plaintiff, M69, submitted that the power to make inquiries of detainees on Christmas
Island for the purpose of determining whether they should be allowed to make applications for visas was a non-statutory power, falling within the non-prerogative
capacities. The Commonwealth submitted that, as the inquiries were of this nature, they could not affect the plaintiff’s legal rights or obligations
so in making the inquiries the departmental officers and reviewers were not obliged to afford the plaintiffs procedural fairness. The High Court delivered
a unanimous joint judgment, deciding in accordance with the submissions of plaintiff M61 that the process was actually taken under and for the purposes
of the Migration Act 1958 (Cth).[23]This
being the case, and there being no statutory indications that the principles of common law procedural fairness had been excluded from the process,
well-established procedural fairness principles applied to the inquiries[24] and those principles had been breached.[25]

Of relevance to the present discussion, however, is the conclusion by the Court that the inquiry process had statutory foundations.[26]This
was due in large part to the connection of the inquiries to the exercise of a statutory power by the Minister for Immigration. Although there was no
explicit statutory authorisation for the inquiries of detainees by the department or independent reviewers, the inquiries were for the purpose of assisting
the Minister to decide whether he should consider exercising his statutory powers: his personal and non-compellable power to allow an offshore detainee
to make a valid application for a visa where the Migration Act 1958 (Cth) otherwise precluded it,[27] and his further personal and non-compellable power to grant a visa to a person in detention if he thought it was in the public interest.[28]The
powers being personal and non-compellable meant that the Minister could not delegate their exercise to another person and that the Minister was under
no duty to consider exercising the powers and could not be compelled to do so. However, the Minister had made an announcement to the effect that each
time an offshore detainee invoked Australia’s protection obligations, he would consider whether to exercise either or both of those powers. Inquiries
into whether Australia’s protection obligations were engaged were therefore necessary for and incidental to an exercise of that statutory power.

A further reason for determining that the process was essentially statutory was the ongoing detention of the plaintiffs.[29]If,
as the Commonwealth submitted, the process being undertaken while the applicants remained in detention was non-statutory, where was the Commonwealth’s
authority for keeping the applicants in detention while the inquiries were being conducted? There was no non-statutory executive power to keep a person
in the plaintiffs’ circumstances in administrative detention.[30]The
process must have been necessary and incidental to the exercise of the Minister’s statutory power to decide whether to lift the bar on a visa application,
otherwise the Commonwealth could not keep the applicants in detention during the course of the inquiries.

The consequences for the Commonwealth’s detention policy of a non-statutory source of the inquiries meant that the High Court arguably did the Commonwealth
a favour by deciding that case in the way that it did. But their finding that the process was sufficiently connected to statutory power in that case
has made it quite difficult for the Commonwealth to develop another scheme in the realm of migration that will be found to have a non-statutory source.
In the Offshore Processing case, it was the close relationship of the department’s and reviewer’s inquiries to the exercise of the Minister’s
statutory power that gave those inquiries a statutory foundation. Given that it is Parliament’s intention that the provisions for visas in the Migration Act 1958 (Cth)
be the only source of a right of non-citizens to enter or remain in Australia,[31] it is difficult to conceive of a scheme for the purpose of informing the exercise of the corresponding power that would not be statutory.

The difficulty of proceeding on a non-statutory basis in migration decision-making was raised again in S10.At a broad level, this case presented
similar kinds of statutory regimes as that in the Offshore Processing case: the personal, non-compellable power that is preliminary to an
exercise of statutory power that, if exercised in a beneficial way, confers on an applicant a benefit that he or she would not otherwise have, namely,
the capacity to make a valid visa application and be considered for a visa.[32]However,
as the High Court saw it, there was a crucial difference between the regime in question in the Offshore Processing case and the regimes in
question in S10.This was that the plaintiffs in S10 were not detainees who were offshore persons (that is, persons who entered Australia
at an excised offshore place), as were the plaintiffs in the Offshore Processing case.[33]The
consequence of this was that the plaintiffs in S10 had been permitted to apply for visas (and had in fact done so and had sought and obtained
merits and judicial review of the visa refusal decisions)[34] whereas the plaintiffs in the Offshore Processing case were not so permitted unless the Minister lifted the statutory bar on doing so. Whereas
the process in question in the Offshore Processing case could have been the only opportunity for an offshore detainee to have his or her claims
to Australia’s protection assessed,[35] the powers in question in S10 were ministerial discretions that only arose for consideration after an applicant had had his or her claims
to a visa assessed, refused by a departmental officer, refused by either the Migration Review Tribunal or Refugee Review Tribunal and had an application
for judicial review dismissed. Therefore, the discretions in S10 only arose after an applicant’s claims had been well-ventilated. Chief Justice
French and Kiefel J identified a second important distinction: unlike in the Offshore Processing case, in S10 the Minister had not
decided that he would consider in every case whether to exercise the personal, non-compellable powers.[36]Would
these differences render the inquiries process in S10 non-statutory, with the consequence submitted by the Commonwealth: that the inquiries
were not required to be attended by obligations of procedural fairness?

In joint reasons, Gummow, Hayne, Crennan and Bell JJ determined, consistently with the approach in the Offshore Processing case, that the inquiries
were not divorced from the exercise of statutory authority.[37] The implication was that the inquiries were conducted pursuant to, or at least incidental to, statutory power. However, unlike in the Offshore Processing case,
in S10 the conclusion was that departmental officers conducting the inquiries and assessments were not required to afford applicants procedural
fairness. Far from the clear and express words that previously had been required to exclude procedural fairness, Gummow, Hayne, Crennan and Bell JJ
relied on certain aspects of the statutory scheme to imply an exclusion of an obligation to afford procedural fairness. These aspects included the
personal and non-compellable nature of the powers, the accountability to Parliament for exercise of the powers, the presence of ‘the public interest’
as a relevant consideration if the Minister decides to consider exercising the powers, personal circumstances of an applicant not being a mandatory
consideration and that the powers only become available after an applicant has exhausted other visa application and review avenues.[38]

It may be that this conclusion gave the Coalition some hope of reviving a non-statutory preliminary assessment process to exclude procedural fairness requirements,
and therefore prevent most judicial review applications. But if it did, the government would need to take care: it was only the statutory scheme that
excluded the common law requirements of procedural fairness in S10.If the government attempts to further divorce assessments from the statute,
there may be no statutory scheme the features of which operate to exclude procedural fairness requirements. If, on the other hand, by ‘non-statutory’
the Coalition meant that it will simply mimic the S10 assessment process, it should be aware that a process that will be used, as the media
reports suggested, to assess protection visa claims in the first instance will be more akin to the process in the Offshore Processing case than
S10.Even without any announcement by the Minister regarding an intention to consider exercising his powers, a process for assessing protection
claims, or for recommending whether even to allow protection claims to be made, in circumstances where no claim has previously been assessed and the
consequence of an adverse decision is removal from Australia, is likely to be judicially reviewable in the usual way and attended by procedural fairness
obligations. 

It thus becomes clear that the government will have a difficult time crafting a process for assessing Australia’s protection obligations in respect of
boat arrivals that will be ‘non-statutory’ in the sense of an exercise of non-statutory power under s 61 of the Constitution. But even if it can craft
such a non-statutory process, will it achieve the apparent aim of rendering decisions in respect of boat arrivals non-justiciable?

Would a non-statutory assessment of protection obligations be non-justiciable?

The term ‘justiciable’ is used here in its narrow, administrative law sense of amenability to the administrative law process of judicial review, rather
than broader questions encompassing jurisdiction and suitability for determination by a court in other kinds of legal proceedings.[39]On
the current state of the law of justiciability of non-statutory action, would a court examine a non-statutory assessment of protection obligations
for the presence of legal error, or satisfaction of an administrative law ground of judicial review?[40]Although
the High Court has not yet been required to answer this question, other Australian courts, both state and federal, have considered it in the years
since CCSU and Arts v Peko-Wallsend. Based on the cases and previous academic consideration of the subject,[41] there now seem to be four principles relevant to the general question of justiciability of non-statutory executive action. These are the public power
principle, the subject matter principle, the affectation principle and the decision-maker principle.

The public power principle

The most recent cases examining the justiciability of exercises of non-statutory power have looked closely at the nature of the power being exercised:
is it an exercise of public, as opposed to private or contractual, power? If it is an exercise of public power, then, subject to satisfaction of the
subject matter principle, the exercise of power is likely to be justiciable.

The public power principle has risen to prominence largely in cases in which it was argued that a private actor, rather than a government actor, was subject
to judicial review.[42]However,
the cases reveal that its relevance extends to justiciability questions arising from government action also. This relevance is reflected in two aspects
of modern governance:

1. the distinction between the private and public non-statutory actions of the government and the justiciability conclusions that proceed from that distinction;
   and
2. the trend of outsourcing various governmental functions, such as the management of facilities and investigation of executive misconduct, to the private
   sector.

Public v private functions of the government

The leading case here is Victoria v Master Builders.[43]This
is a key case for the justiciability of non-statutory executive action because it extended reviewability beyond the prerogative powers to the non-prerogative
capacities. Pursuant to its non-statutory executive power, the executive branch of the Victorian government established a taskforce to examine collusive
practices in the building industry. Based on responses by building contractors to its inquiries, the taskforce compiled a ‘black list’ of building
contractors who were not to be used by state or local government agencies.When the taskforce circulated this black list, the Master Builders Association
challenged the compilation and circulation of the black list on the basis that the contractors contained on it had been denied procedural fairness.

In determining whether the action of the taskforce in compiling and circulating the black list was justiciable, Tadgell J drew a distinction between ‘the
exercise of a power in the performance of a public duty’ (which would likely be justiciable) and ‘the mere exercise of a capacity to make arrangements
for the government’s internal purposes’,[44] (which would be unlikely to be justiciable).[45]It
seems that for Tadgell J the characterisation of the task force’s duty as ‘public’ was the essential criterion of justiciability. What took the compilation
and promulgation of the black list out of the realm of private government action was that it was ‘part and parcel of a scheme designed to induce former
contractors and tenderers (successful and unsuccessful) to atone for their presumed past misconduct’.[46]

Justice Eames was willing to accept, without finally deciding, that for judicial review of non-statutory action to be permitted the impugned action needed
to have a public law element or public law consequences.[47]In
establishing whether this public law element was present, the source of the power would be relevant, but not determinative. More relevant in the present
case was the need for a comprehensive analysis of the nature of the power being exercised, the characteristics of the body making the decision, and
the effect of determining that the exercise of the power is not amenable to review.[48]Having
conducted that analysis, his Honour decided that the action in question had a clear public law basis. This conclusion was based on considerations such
as the fact that 50% of building contracts in Victoria were awarded by State or local government bodies, so the industry’s integrity and efficiency
were of immense public importance.[49]Further,
he considered the task force to be applying the ‘coercive force of the state’,[50] echoing the concern of Tadgell J about the punitive intention of the scheme. Justice Eames also considered that the importance of the well-being of
the building industry to the financial stability of the state indicated the presence of public law consequences.[51]It
seems that, for Eames J, what made the power being exercised public power was the importance of the integrity of an industry kept afloat by public
money.

The relevance of this for a non-statutory assessment process for the protection claims of boat arrivals is that if the assessments can be characterised
as exercise