Case: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577
Outcome: discussed
The starting point is the decision of the Full Court of this Court in Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 (" Drake "). In Drake , the relevant power was the power of deportation in s 12 of the Migration Act 1958 (Cth) as it then was. The Minister had issued a policy statement on the question of considerations relating to the deterrence of others. A question which arose was whether the Tribunal had attached such importance to the policy statement as to result in a failure by the Tribunal to exercise its own independent judgment. Bowen CJ and Deane J discussed the general principles relating to the role of policy in administrative decision-making. 37 Their Honours started by stating some general principles as to the role of the Tribunal. Those principles are now well known. They include the fact that the role of the Tribunal is an administrative one and its task is to make the correct or preferable decision on the material before it. There may be cases in which the Tribunal is precluded from having regard to general government policy by the terms of the statutory power and other cases in which, again by the terms of the statutory power, the Tribunal is bound to apply principles laid down in advance. Absent statutory prescriptions of this nature, the Tribunal may take into account a policy and that is particularly so where the statute itself does not specify the criteria which are relevant to the exercise of the statutory power. In the ordinary case, a policy is a relevant factor for the Tribunal to take into account. It is desirable in terms of consistency in decision-making that a policy be taken into account by the Tribunal and that follows from the fact that the original decision-maker has applied or taken into account the particular policy. However, the Tribunal cannot apply a policy in a way which indicates that, in truth, it has abdicated its function to reach the correct or preferable decision on the material before it. The weight to be placed on a policy is a matter for the Tribunal to determine and it will ordinarily do so, balancing the need for consistency in decision-making and the need for justice in the individual case. 38 Bowen CJ and Deane J said the borderline between cases in which a Tribunal has, after an independent assessment, applied a government policy and cases in which a Tribunal has abdicated its function may well be blurred. Their Honours said (at 591): "It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved."