This part of the textbook addresses the tension in the tribunals role – whether or not it should regard consistency and certainty as core values of public administration, accepting that policy making is a government responsibility
- OR whether it should act as an adjudicative body, giving pre-eminence to the justice of the individual case
This controversy was first ignited by the Kerr Committee which concluded that tribunals shouldn’t substitute decisions ‘when it is shown that the administrative decision is properly based on government policy’ and in such a case inform the minister that the policy applies in an oppressive/discriminatory/unjust manner
- But in Drake the Full Federal Court held that an unreflective application of executive policy would abdicate the tribunal’s function to reach the correct or preferable decision on the merits of the case under review
  - Bowen CJ and Deane J referred to the tension between consistency and justice in the individual case – criticizing the blank application of policy but asserting that Tribunal’s should make it clear that tribunals have considered the propriety of the particular policy and expressly indicate considerations that lead it to its conclusion
- On remittal to the Tribunal the judgement of Brennan J has been followed by other courts (see below)
  - Nevistic v Minister for Immigration and Ethnic Affairs – Deane J: “While consistency may properly be seen as an ingredient of justice it does not constitute a hallmark of it...[it] must ultimately be related to policy and is safely sought by reference to a policy only when the policy is appropriate and acceptable”
- The tensions lie in what exactly amounts to a ‘policy’’ and what are ‘cogent reasons’ for departure, what is an ‘unjust’ result etc.
In this context there have been many criticisms that tribunals have ignored policy while judicial protests are aimed at the executive disregard for the independent adjudicative role of the Tribunals (Wilcox J in Nikac re: not accepting decisions of the AAT in the field of criminal deportation)
- Sir Gerard Brennan: Talks of the difficulties caused by policy to the AAT and the benefits associated through exposure to “critical examination” which can commence a useful dialectic between the executive and the tribunal while injustices in the individual case are relieved by the Tribunal’s power to make the correct/preferable decision
- Mr M Sassella: Talks of the problems with tribunals – their “lack of sufficient interest in government and departmental policy and practice” (making the ‘preferable decision’ at odds with the ‘correct’ and the “not so preferable decision” made by the decision maker. They are an “unacceptable subversion of government policy”
This tension is exemplified in the enactment of provisions that give statutory backing to administrative policies – these are generally directed at administrative tribunals
- E.g. the Victorian Civil and Administrative Tribunal Act 1998 provides the tribunal is obliged to apply valid policy in reviewing the decision if a minister has certified the policy’s authenticity
  - This has posed confusion (p852.10)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Facts: The minister made a decision under s12 of the Migration Act to deport Drake (US Citizen) who was convicted and sentenced to a year in prison for the cultivation of cannabis in the NT. s12 provided that the Minister could do so. The Minister adopted the Criminal Deportation Policy to explain how the discretionary power should be exercised – the policy noted whether it would be in the best interests of the Cth of AU that the person be deported and other matters to be taken into account (recidivism, public interest etc.) A statement supplementing the policy stated ‘I am less disposed to exercise my discretion not to deport...where sex offences against young children or trafficking or distribution in drugs has been involved’.

Litigation History: The minister’s decision was reviewed by Davies J in the AAT who affirmed it. The full FCA held the tribunal didn’t apply its function properly – applying the policy without making an independent assessment of its propriety. Upon remission to the AAT, Brennan J affirmed the minister’s decision that it would be in Australia’s best interest to have Drake deported.

Brennan J:

Begins his judgement referring to the inconsistency which can result from the differing significance attached to things both between Tribunal members and Ministers. Suggests that it isn’t just “inelegant” but brings the process into “disrepute, suggesting an arbitrariness...incompatible with commonly accepted notions of justice”. Then asks how this can be diminished:

One of the courses is for a Minister adopting a policy which has the advantage of focussing attention on the purpose which the discretionary decision is calculated to achieve. This gives the decision-making guidance.
Brennan J then referred to the limits of taking such an approach:
- It must be consistent with statute – allowing the minister to take into account relevant circumstance and not requiring him to take into account irrelevant circumstances
- It must not serve a purpose foreign to the purpose for which the power was created
- Each case must be decided on the merits and the Minister’s discretion cannot be so truncated as to preclude consideration of the merits on each case
  - Quoted Lord Denning “The administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not ‘shut its ears to an application’. The applicant is entitled to put forward reasons urging that the policy should be changed...[or] that it should not be applied to him”
Found support in such an idea with Professor KC David (US Admin law writer) – “When legislative bodies delegate discretionary powers, without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit...confine their own discretion through principles and rules”
Referred to the distinction between decisions made by Ministers and Tribunals – Tribunals aren’t bound to adopt the same reasoning of the Minister, if they used the Ministers policy it is because of how it can assist them in reaching the preferable decision in the circumstances of the case; one of the factors of a preferable decision is consistency.

What is the policy that should be applied

Applicant’s counsel submitted that the applied policy would sap the independent of the Tribunal, which grows out of court’s resistance to Executive attempts to influence their decisions
- But this is inapplicable – there is a difference between courts and Tribunals decision making. One turns upon the application of law to facts, the other to reviewing a discretionary decision of an administrative factor, taking into account the possible application of a policy (which may seek to achieve an objective of public significance)
- “The adjudication of rights and liabilities by reference to governing principles of law is a different function from the function of deciding what those rights or liabilities should be” – The former ignores the executive function and its policies while the latter should not.
He then referred to how Policies like the one evoked has wide significance to society and how it is also subject to Parliamentary scrutiny through the tenets of representative government
- And though Tribunals has power to give no weight to an executive policy, by doing so it would not only nullify the policy but also any mechanism of surveillance which the statute permits or provide. It thus denies the parliaments ability to supervise the content of the policy guiding the discretion which it created (though this may be warranted in some occasions)
Furthermore it isn’t correct for Tribunals to adopt their own broad policy – Tribunal’s aren’t linked to the chain of responsibility from Minister Government Parliament and therefore its membership isn’t appropriate for forming policies.
If consistency is sought then polices can aid this. These considerations warrant the Tribunal’s adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary (e.g. injustice in the particular case – consistency is not preferable to justice or if it is unlawful in its application; either way cogent reasons must be shown)
- Injustice means a disproportion to the detriment suffered by those affected by the execution of deportation and the benefit reasonable expected to result to the community at large if it were affirmed

There are no grounds going to the merits of the policy in the present case, advanced by the applicant. Having regard to the fullness of considerations required by the policy in this case, it is right to apply it.
It enjoins me to regard a conviction for drug trafficking tending in favour of deportation as compared to other offences –that course applies the Minister’s policy and accords with my own personal opinion and others of the Tribunal

Re Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs (1996) 42 ALD 651

Facts: To be eligible for youth training allowance under the Employment Services Act, one was required to enter ‘into an activity agreement with the department’. One requirement of receiving the allowance was satisfaction of an officer of the department of taking reasonable steps to comply...

#7235 - Merits Review Iii - Administrative Law

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