Interrogating ‘Absolute Discretion’: Are Nz's Parliament and Courts Compromising the Rule of Law?
| Published date | 01 December 2017 |
| DOI | 10.22145/flr.45.4.4 |
| Date | 01 December 2017 |
| Subject Matter | Article |
INTERROGATING ‘ABSOLUTE DISCRETION’: ARE NZ’S
PARLIAMENT AND COURTS COMPROMISING THE RULE
OF LAW?
Hanna Wilberg*
ABSTRACT
It is elementary in administrative law that there is no such thing as unfettered
discretion—yet, in a development that appears to have gone largely unnoticed, statutes
increasingly confer ‘absolute discretion’ on public decision-makers. This article explores
and evaluates these provisions and their judicial treatment in New Zealand. It surveys
the range of contexts in which they are used and the various purposes or functions they
appear to serve, and evaluates each against orthodoxy. It also surveys the judicial
responses to such provisions, finding that these are mixed and too often muted. Of
particular concern are the ‘absolute discretion’ provisions in the Immigration Act, and the
lack of a consistently resolute judicial response to these.
I INTRODUCTION
Every student of administrative law knows that there is no such thing as an unfettered
discretion in public decision-making: courts stand ready to uphold the rule of law by
reviewing every exercise of discretion even in the face of legislative attempts to exclude
review, and they will find implied limits in even the most broadly worded powers.
1
Yet
there are now a significant number of statutory powers that purport to confer ‘absolute
discretion’ on decision-makers. In New Zealand, some of these provisions in the
Immigration Act 2009 (NZ) (‘Immigration Act’) have come to attention due to being
extensively litigated. Given the orthodox administrative law attitude to discretion, one
might expect these Immigration Act provisions to be highly unusual, but further
investigation reveals many further instances in the Immigration Act and in other
legislation, including a great many enacted within the past 20 years.
* Associate Professor, University of Auckland. I am grateful to Yoav Zionov for c arrying out
the quite extensive research required for this article; to Ross Carter for very enlightening
discussions; and to the anonymous referees for some helpful comments and suggestions. The
usual disclaimer applies.
1
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (6th
ed, Thomson Reuters, 2017) 116–22 [3.20]–[3.50].
542 Federal Law Review Volume 45
_____________________________________________________________________________________
This article sets out to examine the use of these provisions in New Zealand and the
judicial response to them.
2
This is surprisingly uncharted territory: aside from the cases
on the Immigration Act provisions and a very small smattering of case law on a few of
the other provisions, the new legislative practice has so far passed with little comment.
The latest edition of the Legislation Advisory Committee Guidelines, for instance,
emphasises the orthodox position on the c ontrol of discretion,
3
but still makes no
mention of this type of provision.
4
Neither do the standard administrative law textbooks
I have consulted, and there are only a very few articles.
5
The concern is that these provisions challenge administrative law orthodoxy on the
control of discretion and hence on the rule of law. While they do not seek to exclude
judicial review as such (as ouster or privative clauses seek to do), they appear to be an
attempt to discourage challenges, and to constrain judicial scrutiny by taking away some
of the basis for applying the usual grounds of judicial review. As such, they take their
place alongside a range of similar such measures, attempting to ‘judge-proof Executive
action’ without the use of privative clauses, that are discussed by Mark Aronson in his
contribution to this special issue.
6
Given the orthodox position, one would expect courts
to push back very determinedly, but the judicial response in New Zealand has in fact
been mixed and often muted.
On the other hand, it is possible that some justification may be found for some of
these provisions. Even orthodox administrative law doctrine recognises some limits to
the application of administrative law standards and obligations, and of judicial review.
Arguably, some of the uses of ‘absolute discretion’ are at least partly consistent with
orthodoxy in this regard, giving the courts reason to respect those provisions at least to
some extent.
I will begin by outlining the orthodoxy on the judicial control of discretion and its
limits, as understood in New Zealand and the United Kingdom (part II). Next, I will
survey the range of ‘absolute discretion’ provisions on the New Zealand statute book in
terms of their significance, their subject-matter, and their timing (part III). I will then
explore the meaning and effect of the phrase by reference to both legislative sources and
case law (part IV), before surveying and evaluating a range of uses against
administrative law orthodoxy (part V). In the final substantive part, I turn to evaluate
2
It seems that a similar examination of the Australian situation remains to be done; but see
generally ibid.
3
See Legislation Advisory Committee, Legislation Advisory Committee Guidelines: Guidelines on
Process and Content of Legislation (2014 ed, October 2014), pts 3, 25.1; see also pt 14.2.
4
Neither does the Law Commission, Legislation Manual: Structure and Style, Report No 35
(1996).
5
Doug Tennent, ‘Absolute Discretion in Immigration’ [2012] New Zealand Law Journal 144;
Jessica Birdsall-Day, ‘Section 177 of the Immigration Act’ [2012] New Zealand Law Journal 230.
The matter is also touched on in Tim Cochrane, ‘A General Public Law Duty to Provide
Reasons: Why New Zealand Should Follow the Irish Supreme Court’ (2013) 11 New Zealand
Journal of Public and International Law 517.
6
Mark Aronson, ‘Between Form and Substance: Minimising Judicial Scrutiny of Executive
Action’ (2017) 45 Federal Law Review 519; see also Rayner Thwaites, ‘The Changing Landscape
of Non-Justiciability’ [2016] New Zealand Law Review 31, 60; Amanda Sapienza, ‘Justiciability
of N on-Statutory Executive Action: A Message for Immigration Po licy-Makers’ ( 2015) 79
AIAL Forum 70.
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