Interrogating "Absolute discretion": are NZ's Parliament and Courts compromising the rule of law?

Abstract

It is elementary in administrative law that there is no such thing as unfettered discretion—yet, in a development that appears to have gone largely unnoticed, statutes increasingly confer ‘absolute discretion’ on public decision-makers. This article explores and evaluates these provisions and their judicial treatment in New Zealand. It surveys the range of contexts in which they are used and the various purposes or functions they appear to serve, and evaluates each against orthodoxy. It also surveys the judicial responses to such provisions, finding that these are mixed and too often muted. Of particular concern are the ‘absolute discretion’ provisions in the Immigration Act, and the lack of a consistently resolute judicial response to these.