Broad Discretions and Constitutional Limitations: Current Issues
35 Pages Posted: 30 Jul 2013
Date Written: July 30, 2013
Abstract
Broad discretionary powers pose risks for the maintenance of the rule of law. This article considers an area of particular risk — where those powers operate in an area protected by a constitutional limitation. This article considers several issues which often arise in that area. It considers, first, the various control mechanisms, both judicial and extra-judicial, which apply to constrain broad discretions. One of these control mechanisms is that broad discretions can be read as ‘subject to’ constitutional limitations, with the result that exercise of the discretion which is incompatible with the Constitution is ultra vires the statute. This article explores whether, where a discretion is read in that way, constitutional limitations are a ‘relevant consideration’ — that is, considerations to which regard must be had. This article also explores whether there may be circumstances in which the breadth and vagueness of a statutory discretion, coupled with the absence of mechanisms for controlling abuse of the discretion, could render the conferral of the discretion fundamentally incompatible with constitutional limitations.
Keywords: Constitutional Law, Australia, Rule of Law, Discretions, Public Law, Rights, Individual Rights
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