Policy VS Law

Departmental policy does not always reflect the law and should not be taken as law. Policy plays an important role in preparing an application as it provides guidance as to how DIBP may decide a case and can be a good indication of any underlying issues or principles in the law. One should always prepare an application with a view to satisfying the legal requirements and where possible Departmental policy.

However, sometimes Departmental policy can narrow or even broaden the limits of what is permitted or required under law. Policy that is inconsistent with the law will be found to be unlawful and will not be applied as outlined in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 (21 November 1979), the leading case on the lawfulness of policy. Sir Gerard Brennan who was then sitting as a Presidential member of the AAT observed in Drake:

Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR I; Drake’s case, supra, at p 589, and the cases there cited). Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be; see, e.g., Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149). The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.

The principle outlined by Sir Brennan in Drake has been widely accepted as correct and subsequently followed by the Courts and Tribunals.

Accordingly, one should take into consideration the policy relevant to a client’s file but never place policy above the law. Any inconsistency between policy and law which affect your client should be noted on the file and the client’s application should be prepared to ensure that the client meets the legal requirements and not just the policy requirements.

In Durzi v MIMIA [2006] FCA 1767, the Federal Court downplayed the role of PAM3 is in relation to the interpretation of a provision (in this case, r.1.15A):

49.PAM3 is simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard in considering whether an applicant has brought himself or herself within the criteria required in reg 1.15. It has no legislative effect. It does not construe reg 1.15. A decision maker is not bound to have regard to it or if a decision maker has regard to it the decision maker commits no error (at [49]).

In Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 (15 November 2001)

Ryan J stated:

16 Moreover, this Court has either stated or implied that it is not an error of law for an administrative tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-21; Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148-49. Nevertheless, it was indicated by Brennan J in Drake (No 2) (supra) at 645, that the Tribunal should adopt “a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary”. PAM 3 specifically instructs delegates (though not the Tribunal) to give it “due weight” but “decision makers must not give it the same force as law”; Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 at [29].

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