Broad Discretions and Constitutional Limitations: Current Issues

35 Pages Posted: 30 Jul 2013

See all articles by David Hume

David Hume

Gilbert + Tobin Centre of Public Law; Six Selborne / Wentworth Chambers

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

Suggested Citation

Hume, David, Broad Discretions and Constitutional Limitations: Current Issues (July 30, 2013). Available at SSRN: https://ssrn.com/abstract=2303229 or http://dx.doi.org/10.2139/ssrn.2303229

David Hume (Contact Author)

Gilbert + Tobin Centre of Public Law ( email )

Kensington, New South Wales 2052
Australia

HOME PAGE: http://www.gtcentre.unsw.edu.au

Six Selborne / Wentworth Chambers ( email )

Sydney
Australia

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
141
Abstract Views
1,013
Rank
370,936
PlumX Metrics