Ministers statutory power administrative decisions

Issued: 8 April 2022

‘Sign here’: a word of warning about briefs to ministers exercising statutory power personally to make administrative decisions

In McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258, a single judge of the Federal Court held that the minister's reliance on a departmental briefing was unlawful because the minister had not personally exercised the statutory power in issue.

The decision emphasises that, whilst departmental officers can assist with preparing draft reasons, a personal exercise of power requires a minister or relevant decision-maker to undertake the deliberate task by personally considering all relevant material and forming a personal state of satisfaction. 

Key points

  • A minister or relevant statutory decision-maker must give proper, genuine and realistic consideration to the merits of the decision before them.
  • Where a power must be exercised personally by a minister, the extent of assistance that may be obtained from departmental officers is confined.
  • There can be no delegation of the deliberative task itself, or parts of it, although a departmental brief may:
    • summarise technical or factual information, provided the summary is complete and accurate
    • provide draft reasons for adoption by the minister, provided the draft reflects the Minister's own reasons.
  • Departmental briefs to a minister or other statutory decision-maker should be carefully formulated to ensure that the decision-maker:
    • personally considers any attached material that the decision-maker is legally required to consider (in most cases, this will necessitate the minister reading all of the material provided by the person affected by the decision)
    • has sufficient time to consider all relevant material, form their own understanding of it, make their own findings as to the relevant facts, and make the decision.

Background

The applicant, Mr McQueen, had his visa cancelled because he had been sentenced to a term of imprisonment exceeding 12 months (‘the cancellation decision’). The minister had a personal power to revoke the cancellation decision.

Mr McQueen made representations to the minister seeking to revoke the cancellation decision. The minister was provided with a departmental brief, including a draft statement of reasons.

The minister personally considered the case and did not revoke the cancellation decision. The minister recorded his decision by circling options in the brief, and adopted the draft reasons prepared by the department without alteration by signing where indicated.

The applicant sought judicial review on grounds including that the minister failed to give proper, genuine and realistic consideration to the merits of his representations, based on the circumstances in which the minister's decision was made.

The decision

The Court held that the statutory power for the minister to personally decide whether to revoke the cancellation decision, coupled with the obligation to give reasons, cannot mean that the minister can merely rubber stamp reasons prepared by their department. The statute required the minister himself to engage in an active intellectual process by considering and understanding the representations received (at [47]).

The departmental brief did not indicate that the minister was required to personally consider the representations. Rather, the brief suggested that the minister was not required to do so, as it provided for the minister to respond by circling recommendations, included 'sign here' stickers, allowed little space for the minister to comment and suggested that the minister could act on the department's summary (at [79]).

Although the minister could be assisted by the department in drafting reasons, he could not act upon a summary of materials he was required to consider because he was required to personally read, understand and form his own views of the representations (at [56], [73], [90]).

The Court concluded that the minister reached his decision by acting upon the summary in the brief because he had limited time to personally read the representations and evaluate them (at [84]). The brief was not a complete and accurate summary of the representations (at [85]). The minister was assisted by departmental officers in undertaking the deliberative task in a manner that was not lawful (at [85], [90]).

Implications for decision-makers and departments

Where a minister or other statutory decision-maker is legally required to exercise a power personally (not via a delegate), the McQueen decision highlights the importance of that decision-maker personally considering relevant material before exercising the statutory power. Whilst departmental briefings can assist in this process, they are not a substitute for the deliberative task.

This case is a reminder that, where a statutory power is required to be exercised personally by a minister or other decision-maker, any brief should be carefully formulated to ensure that the decision-maker personally reads and considers the material before them.

Contact

Karen Smith, Crown Solicitor

karen.smith@cso.nsw.gov.au
02 9474 9000

Alexandra Brown, Principal Solicitor

alexandra.brown@cso.nsw.gov.au
02 9474 9000

Last updated:

07 Nov 2022

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