Dr Darren O’Donovan, together with Assistant Professor Narelle Bedford (Bond University) will present a paper at the 2016 National Administrative Law Conference, organised by the Australian Institute of Administrative Law. The paper, abstract below, addresses the conference’s overall theme of “Administrative Law – Making a Difference: Improving public administration and providing administrative justice”. The conference is being held at Royal International Convention Centre, Brisbane from July 21st and 22nd with the full programme available here.
Interpreting Discretion: Administrative Decision-Making in the ‘age of statutes’
By Narelle Bedford and Darren O’Donovan
How are decision-makers to understand the relationship between law and discretion? In this paper we will argue for a greater appreciation of the impact of statutory interpretation on the day to day exercise of discretion. Despite the requirement on tribunals (and thus upon primary decision-makers) to find the correct and/or preferable answer, administrative law discussions often stress the separation of discretion and the law, not their complex interaction. Debates often fall back upon what Ronald Dworkin termed “the hole in the doughnut” thesis, where the law’s function is seen as being to prescribe outer limits. Reflections upon the nature of discretion from courts and tribunals have been underdeveloped, culminating in opaque phrases such as the “interests of justice” or “community values”.
Recent refinements to existing administrative review principles have, however, underlined the importance of statutory interpretation not merely in limiting or “managing” discretion, but in providing it with an underlying structure or logic. Current developments before the courts have reemphasised the centrality of statutory interpretation to the exercise of discretion. To illustrate the consequences of this emerging trend, and its practical impact, we will discuss:
– The role of ministerial policy and directions in channelling discretion and the recent Federal Court decisions concerning deportations of New Zealand nationals.
– The case of Li v Minister for Immigration and how statutes can provide a framework of rationality for administrative decision-makers.
– Recent instances where Administrative Appeals Tribunal has reflected upon how to find the “preferable answer” in particular whether it is appropriate to allow “community values” to shape discretion.
– The challenge of harmonising often conflicting statutory purposes and logics.
At the ground level, the modern method of statutory interpretation requires increasing recognition by administrative decision-makers that decisions are not merely to be ‘legally proofed’ but legally structured. At the human level, it underlines the importance of adequate legal professional development, particularly in statutory interpretation, for primary decision-makers and Tribunal members who will stepping into their shoes.