The Expansion of Ministerial Discretion in Refugee Law

By the Rights Advocacy Project

Justice Felix Frankfurter once said that ‘[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority’. Justice Frankfurter’s aphorism applies to Australian migration law, where legislative change has gradually, but with increasing rapidity, resulted in the accretion of a great deal of dangerous power in one person: the Minister for Immigration and Border Protection.

Early instances of ministerial discretion in Australian migration law were primarily exercisable for the benefit of migrants. For instance, the Immigration Restriction Act 1901 (Cth) conferred on the Minister the power to grant a ‘certificate of exemption’, an instrument that authorised a person to remain in Australia. But over the last three decades, there has been an explosion in the occurrence of discretionary ministerial powers. While it is true that there still exists a provision that allows for the exercise of statutory power for the benefit of a migrant, namely s 195A, the recent history of Australian migration and refugee law is a tale of increasing ministerial discretion and the ouster of effective means of review.

So, for instance, s 197AB of the Migration Act 1958 (Cth) (‘Migration Act’) allows the Minister to make a residence determination — a decision that a person reside in a specified place other than immigration detention — if he or she considers it is in ‘the public interest’ to do so. Similarly, s 411 of the Migration Act permits the Minister to issue a conclusive certificate, which blocks all future review processes, if he considers it would be contrary to ‘the national interest’ to change the decision or for the decision to be reviewed.

These are not the only references to the protean concepts of ‘the public interest’ and ‘the national interest’ in the Migration Act. Indeed, the very object of the Migration Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. The ‘national interest’ powers serve to leave great power within the Minister’s discretion, and thereby to shield his decisions from substantive review by courts and tribunals. In construing these phrases, courts have emphasised that their content ‘is largely a political question’, one ‘calling for a broad evaluative judgment’ that leaves the Minister ‘largely unrestrained’ to determine what factors are relevant. In practical terms, this makes it impossible to challenge a decision made on public interest or national interest grounds in a court. This basic check and balance has been checked out.

The public interest or national interest criterion is just one mechanism used in Australian refugee law to inoculate decisions from judicial scrutiny. Other devices commonly deployed include the exclusion of the common law of procedural fairness and the test of ‘ministerial satisfaction’ — that is, where a statutory power requires not that a particular state of affairs exists, but that the Minister be satisfied that it exists.

All three of these tools of power are being deployed more and more regularly in the legal regime that affects people seeking asylum. In the face of this blank legislative slate, courts are often left powerless to devise interpretive means of avoiding the harsh operation of the legislation.

This historically unprecedented growth in ministerial discretion should not pass unremarked. As Liberty Victoria’s Rights Advocacy Project explains in its our forthcoming report Playing God: The Immigration Minister’s Unrestrained Power, discretion of this kind should not be a hallmark of the exercise of any kind of public power, much less in the context of legislation that can significantly affect the rights of some of the most vulnerable people in the world. We should not permit the existence of such broad, unreviewable discretion.

Liberty Victoria’s Rights Advocacy Project (‘RAP’) is a community of lawyers, activists and policy makers working to advance human rights. RAP’s report on the expansion of ministerial power in migration law, Playing God: The Immigration Minister’s Unrestrained Power, will be available soon here. The report will be launched with a panel event, held on 4 May at the Castan Centre for Human Rights. Further information about the launch event can be found here.

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