Constraining Executive Discretion in the 'Public Interest'

Blog: Verfassungsblog

Abstract

The use of highly-discretionary executive powers to make immigration decisions has given rise to debate in Australia and internationally. In Australia, the problem is particularly acute because a number of provisions in the Migration Act 1958 (Cth) (the Migration Act) allow the Minister for Immigration (the Minister) to intervene in visa decisions on 'public interest' grounds. These intervention powers are controversial as they are personal to the Minister, non-reviewable and non-compellable. As a result, they have been subject to criticism by both civil society and academics. In addition to these intervention provisions, other sections in the Migration Act include a broad and subjective 'national interest' criterion for the grant or refusal of certain visa decisions. These two sets of powers were recently adjudicated in a series of High Court cases in Australia.