Administrative law updater: Lawfulness of government policy guiding a decision-maker's discretion

By John Carroll, Cain Sibley, and Neil Cuthbert
05 Sep 2019
Policy must genuinely allow decision-makers the freedom to depart from the usual application of a statutory discretion in an appropriate case.

What is the problem decision-makers face?

Statutes will often confer a broad discretion upon decision-makers. To guide their decision-making, a statement of policy can be an important tool to guide decision-makers tasked with exercising the discretion. But when does a policy become an impermissible constraint on that discretion?

How did Minister for Home Affairs v G affect this?

In Minister for Home Affairs v G [2019] FCAFC 79, (2019) 164 ALD 103 the Full Federal Court has affirmed that a detailed policy will not be unlawful simply because it guides decision-makers on how a broad statutory discretion should usually be exercised. This could be different where the policy prohibits consideration of unusual cases on their merits. It will generally not be permissible for a policy to take on a rule-like quality where the discretion is otherwise unconstrained by the statute.

The facts and decision in Minister for Home Affairs v G

In Minister for Home Affairs v G the Full Federal Court rejected a claim that part of the Australian Citizenship Instructions dealing with citizenship applications from children under 16 was inconsistent with the Australian Citizenship Act 2007. The Court concluded that the relevant section of the Instructions was not contrary to the Citizenship Act because:

  • the Citizenship Act confers a broad discretion, and the breadth of the discretion is not inimical to the adoption of a detailed policy to guide the exercise of the discretion - on the contrary, it supports the adoption of one;
  • the Instructions do not seek to control the outcome of the exercise of the discretion in the Citizenship Act. An applicant may raise arguments why the policy should not be applied in a particular case, and the language of the Instructions contemplates that there will be cases outside the usual course;
  • the Full Court did not consider that the section of the Instructions had a rule-like quality. Although the Instructions directed decision-makers as to how the discretion should usually be exercised, when confronted with an applicant who did not meet these guidelines the Instructions directed decision-makers to consider the full circumstances of the case and whether they are unusual; and
  • the Instructions are not contrary to the purpose for which the discretionary power was created. The explanatory memorandum to the bill which introduced the statutory discretion envisaged an executive policy providing guidance as to when an application would usually and not usually be approved.

After Minister for Home Affairs v G, here's what you need to do

The Full Court's decision confirms that where a statute confers a broad discretion, it is appropriate for a policy to set out how that discretion should usually be exercised. In doing so, the policy should correctly set out the statutory task and adequately identify the range of relevant matters to which the decision-maker should have regard.

It is also important that any policy instructs decision-makers to consider all the particularities of any case which falls outside the usual range of circumstances contemplated by the policy. In other words, the policy must genuinely allow decision-makers the freedom to depart from the usual application of the discretion in an appropriate case. This will help ensure that the policy does not impermissibly intrude on the discretion afforded by the statute.

Get in touch

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.