Constitutional law – executive power of the Commonwealth

High Court casenotes

In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10 (12 April 2023), the High Court, in two appeals from the Full Court of the Federal Court of Australia, was required to consider whether the Minister’s instructions to departmental officers – and the decisions made by the officers in compliance with those instructions – exceeded the limits of the Commonwealth’s executive power.

Section 349(1) of the Migration Act 1958 (Cth) (Migration Act) empowered the Minister with a discretion to substitute a decision made by the Administrative Appeals Tribunal (AAT) with a more favourable decision, if the Minister thought it in the public interest to do so.

Relevantly, s349(2) of the Migration Act provided that the discretion, under s349(1), could only be exercised by the Minister personally. The Minister issued certain instructions to departmental officers as to which requests – for the Minister to exercise the discretion under s349(1) – should be brought to the Minister’s attention (ministerial instructions).

The ministerial instructions provided that, in respect of ‘first requests’, only those assessed as having unique or exceptional circumstances should be referred to the Minister. Otherwise, the request could be ‘finalised’ by the department alone.

In respect of ‘repeat requests’, the ministerial instructions provided that only those raising new substantive issues, which the department had assessed as having unique or exceptional circumstances, should be referred to the Minister. The ministerial instructions also included a non-exhaustive list of unique or exceptional circumstances together with examples.

Mr Davis (a citizen of the United Kingdom) and DCM20 (a citizen of Fiji) each made repeated requests to the Minister to exercise the discretion under s349(1) in their favour. The requests were finalised by department officers without referral to the Minister.


Both Mr Davis and DCM20 unsuccessfully applied to the Federal Court for a review of the department’s decision on grounds that included unreasonableness. Both Mr Davis and DCM20 appealed to the Full Court.

Those appeals were heard together by the Full Court and were also unsuccessful. The Full Court considered that the departmental decisions were amendable to judicial review but found that the decisions were not unreasonable.

Mr Davis and DCM20 then obtained special leave to appeal to the High Court. In the High Court appeal the appellants raised two grounds of appeal.

The first ground challenged the Full Court’s finding that the departmental decision was not unreasonable. The second ground contended that the issuing of the ministerial instructions, and departmental decisions made in compliance with them, exceeded the Commonwealth’s executive power.

The High Court allowed the appeals (Steward J dissenting). The High Court determined the appeals on the second ground (identified by Kiefel CJ, Gageler and Gleeson JJ, at [8], as being the “logically anterior” ground of appeal).

Keifel CJ et al observed, at [14], that the exercise by the Minister of the power conferred by s351(1) involved the Minister making two sequential statutory decisions – the first decision being procedural, the second substantive.


The first (procedural) decision to be made by the Minister is whether to consider at all if it is in the public interest to substitute a more favourable decision for a decision of the AAT. The second (substantive) decision is to determine whether it is in the public interest to substitute a more favourable decision for a decision of the AAT.

Keifel CJ et al observed, at [30], that s351(3) displaced the presumption that the Minister could delegate this decision-making to departmental officers.

At [38], Keifel CJ et al considered that “it is impossible to avoid the conclusion that the concept of unique or exceptional circumstances was used in the ministerial instructions as an approximation of the public interest [and] . . . the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers”.

Keifel CJ et al concluded that the Minister exceeded the statutory limit on executive power imposed by s351(3) of the Migration Act. In separate judgments, Gordon, Edelman and Jagot JJ agreed with the orders made by Keifel CJ et al.

Steward J, in dissent, considered, at [205], that the ministerial instructions were a “rational means” of sorting through the many requests the Minister received to exercise the power conferred by s351(1). Steward J considered, at [211] and [212], that the consequences of the referral or non-referral of requests by departmental officers were practical only (and not an exercise of power).

Consequently, at [248], Steward J included that the departmental officers’ decision not to refer a request could not be subject to judicial review on the ground of unreasonableness.


Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email The full version of these judgments can be found at

Share this article

Leave a Reply

Your email address will not be published. Required fields are marked *

Search by keyword