Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)

A Threat to the Rule of Law Values?

Abstract

In Australia, the Commonwealth executive enjoys significant power to make decisions applying a national interest criterion in Commonwealth statutes. Ultimately, this paper argues that the utilisation of such a criterion by the Commonwealth executive in the Migration Act 1958 (Cth) undermines the rule of law doctrine in Australia. A fundamental tenet of the rule of law is the idea that the law is clear, identifiable and consistent in its approach. Given the imprecise and vague nature of a national interest criterion, it is argued that the notion is often far from clear and identifiable. The net result has meant that aggrieved litigants have had significant difficulties in both understanding and enforcing their rights, given the ambiguity associated with a national interest criterion in the Migration Act. Further, an examination of various Australian cases demonstrated a lack of consistency in the interpretation of a national interest criterion in the Migration Act. This lack of consistency led to a deficiency of clarity in the operation of particular Australian laws, especially in the context of the Migration Act.