Common Law Restraints on Discretionary Powers: S156-2013 v. Minister for Immigration and Border Protection, [2014] HCA 22

An old debate in administrative law concerns the appropriate role of courts in imposing common law restrictions on discretionary powers. For example, when a statute says “X may, in his absolute discretion, do Y”, are any limitations of fairness or rationality implied by the common law? The modern tendency has been to admit that there are such limitations. Agreement on this is hardly uniform, however, and there is certainly no agreement on how far judges can legitimately go in imposing common law restraints on discretion.

Consider a very recent Australian case: S156-2013 v. Minister for Immigration and Border Protection, [2014] HCA 22, in which the High Court of Australia was very reluctant to go any further than the text of the law in constraining decision-making authority.

The plaintiff is a refugee from Iran who wishes to seek asylum in Australia. He made it as far as Christmas Island:

4. Whilst on Christmas Island, the plaintiff was advised by an officer of the Department that he would be sent to Manus Island in the Independent State of Papua New Guinea (“PNG”); that it would take a long time for any refugee claim he might make to be processed; and that, even if he was found to be a refugee, he would never be resettled in Australia. The assessment of the plaintiff’s claim to be a refugee was not undertaken while the plaintiff was in Australia and would not appear to have been undertaken by Australia subsequent to his removal. The Minister had designated PNG to be a “regional processing country” before the plaintiff’s arrival at Christmas Island. In consequence of that designation and a direction given by the Minister, both of which are provided for in subdiv B of Div 8 of Pt 2 of theMigration Act, the plaintiff was removed to an assessment centre at the PNG Naval Base on Manus Island (“the Centre”).

From Wikipedia, here is a summary of the background to the legislation:

The Regional Resettlement Arrangement between Australia and Papua New Guinea, colloquially known as the PNG solution, is the name given to an Australian government policy in which any asylum seeker who comes to Australia by boat without a visa will be refused settlement in Australia, instead being settled in Papua New Guinea if they are found to be legitimate refugees. The policy includes a significant expansion of the Australian immigration detention facility on Manus Island, where refugees will be sent to be processed prior to resettlement in Papua New Guinea, and if their refugee status is found to be non-genuine, they will be either repatriated, sent to a third country other than Australia or remain in detention indefinitely. The policy was announced on 19 July 2013 by Australian Prime MinisterKevin Rudd and Papua New Guinean Prime Minister Peter O’Neill, effective immediately, in response to a growing number of asylum seeker boat arrivals and subsequent deaths at sea. The then title=”Leader of the Opposition (Australia)” href=”″>Opposition Leader Tony Abbott initially welcomed the policy, while Greens leader Christine Milne and several human rightsadvocate groups opposed it, with demonstrations protesting the policy held in every major Australian city after the announcement.

The plaintiff’s attack on the constitutional validity of the scheme failed: the Commonwealth has extensive powers to regulate immigration and this set-up (however much one might disagree with it on policy grounds) is lawful.

What, though, of the Minister’s exercise of his power to designate Papua New Guinea as a regional processing country? The legislation provided that the “only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country”, with the further condition that the Minister must, in determining “national interest”, consider whether the regional processing country has given assurances that it will not expel refugees sent there by Australia.

The plaintiff urged the court to impose additional requirements: that the Minister should, in exercising his discretion, consider Australia’s international law obligations; the need to consult with the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) prior to designation; PNG’s international obligations and its domestic law; PNG’s capacity to implement its obligations; the framework, if any, for processing refugee claims in PNG; the possibility of indefinite detention; and the conditions in which UMAs would be detained (para. 39).

The Court refused:

40. The fundamental difficulty with the plaintiff’s argument is that there is no mandatory condition for the exercise of the power of designation under s 198AB apart from the formation by the Minister of an opinion that it is in the national interest to do so. Section 198AB(2) expressly states that the “only condition” for the exercise of the power under sub-s (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country. What is in the national interest is largely a political question, as s 198AA(c) recognises. The only matter to which the Minister is obliged to have regard, in considering the national interest, is whether or not the country to be designated has given Australia any assurances as set out in s 198AB(3)(a). There is no issue in this case that such assurances were in fact given.

44. There may be some doubt whether the provisions of subdiv B…can be said to respond to Australia’s obligations under the Refugees Convention. Indeed, that is part of the plaintiff’s complaint. This possibility does not assist the plaintiff’s argument. Rather, it would follow that the conditions for which the plaintiff contends cannot be implied on the basis of any assumptions respecting the fulfilment by Australia of its international obligations.

To a foreigner’s eyes — especially one not very familiar with Australian administrative law — this all looks very traditionalist: if the legislature wishes to grant sweeping discretionary powers, that is its business, and courts should be restrained about imposing restraints that are neither express nor necessarily implicit. The Minister is, after all, responsible to the legislature for the exercise by statutory instrument of his power, which is “largely a political question”.

A more radical response would be to read the discretionary power in the most appropriate light according to Australia’s status as a liberal democracy in the common-law tradition, one which emphasizes the importance of rationality in decision-making. On this approach, the mere fact that the Minister sought assurances would not necessarily suffice; some attention would have to be paid to the sufficiency of the assurances and the risks posed to individuals by the exercise of the Minister’s discretionary power. Political accountability is no substitute for the legal accountability that the common law has imposed for centuries — especially when those subject to the power in question never had or will have a say in public debate.

That these possibilities are so very different highlights the open texture of administrative law. The legitimate scope of common law restraints on discretionary powers is always a live issue.

This content has been updated on June 27, 2014 at 08:22.