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Faculty of Law · Te Kauhanganui Tātai Ture : Student Research Papers

Permanent URI for this collectionhttps://ir.wgtn.ac.nz/handle/123456789/11067

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Browsing Faculty of Law · Te Kauhanganui Tātai Ture : Student Research Papers by Subject "Absolute discretion"

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    Absolute discretion and the rule of law: Uneasy bedfellows
    (Te Herenga Waka—Victoria University of Wellington, 2016) Leggat, Antonia
    "Absolute discretion" in decision-making under the Immigration Act 2009 is intended to generate administrative efficiency and balance individual and national interests. While New Zealand courts have reached a consensus that the use of absolute discretion does not create ouster clauses and Immigration New Zealand's internal instructions have also eroded the absolute nature, each of them have differed their definitions of the scope of absolute discretion over time, within the same sections and over the whole Act. This paper proposes that the uncertainty surrounding absolute discretion's precise meaning—both within and between the varying definitions provided by the Legislature, Judiciary and Executive—threatens the vital rule of law concept of legal certainty. Considering the potential encroachment of unrestrained absolute discretion on international obligations, human rights and access to information, clarity is essential. Two steps could be taken to enhance clarity, with minimal impingement on the Act's policy: removal of the descriptive "absolute"; and clarification, in regulations, of the mandatory considerations, recording standards and extra-legislative factors to which must be given effect within each decision made in absolute discretion.
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    Immigration Act 2009: Is the Use of “Absolute Discretion” an Invitation for Arbitrary Decision Making?
    (Te Herenga Waka—Victoria University of Wellington, 2017) Scurr, Eleanor
    Immigration law is a direct product of the State’s sovereign right to control its borders. One way this powerful right has manifested is in the use of “absolute discretion” in the Immigration Act 2009. “Absolute discretion” essentially allows the decision maker to make any decision they deem fit and they do not have to provide any reasons for that decision. This raises concerns in the deportation context, where the outcome of the decision may result in the person being forced to leave New Zealand. Given the human rights considerations and international obligations that are often relevant in the deportation context, such a broad use of power should be subject to sufficient accountability mechanisms to ensure arbitrary decisions are not being made. This paper analyses the use of “absolute discretion” in ss 61 and 177 of the Immigration Act. Sections 61 and 177 are arguably the two most significant uses of “absolute discretion” in the Act, essentially allowing the Minister of Immigration or an immigration officer to stop the deportation process. Part II will introduce the concept of “absolute discretion” and how it arises in the deportation context. Part III will examine the accountability mechanisms that exist in this context, with a specific focus on the mechanisms that react to the use of “absolute discretion”. Part IV concludes that the use of “absolute discretion” in s 61 appears to be adequately safeguarded against the making of arbitrary decisions. However, the same does not appear to be true for s 177. Possible solutions to ensure good s 177 decisions are being made are considered.