Former Chief Justice of the High Court, the Hon Robert French AC, has commented on the effect of incursions on rights over time: Many such encroachments, taken individually, arguably have little effect. Taken cumulatively over time and across State, Territory and Commonwealth jurisdictions they can be the death by a thousand cuts of significant aspects of those rights and freedoms.47 Courts and tribunals can review administrative decisions to ensure the decision maker is acting fairly, within their powers and in accordance with the law.48 Yet courts tend to defer to the executive where provisions enable discretionary decisions in the ‘national interest’. For example, in the context of immigration powers, the High Court has held that ‘what is in the national interest is largely a political question’.49 Decisions made in the ‘national interest’ can incorporate decisions made to pursue ‘national security, defence, economy, environment, society and culture’.50 The Law Council submitted that: While such [national interest] provisions may be justifiable with respect to nationally significant decisions which are subject to public scrutiny and stringent parliamentary accountability, unease is caused where they are increasingly attached to decisions which are unlikely to attract such attention, are geared primarily towards individuals, are privately exercised and lack accountability.51 74 Discretionary powers of the Home Affairs Minister The Law Council noted that the Home Affairs Minister has upwards of 47 kinds of discretion that ‘for practical purposes are not judicially reviewable’, including powers to: • issue conclusive certificates so that certain decisions are not subject to merits review52 • refuse or cancel a visa on ‘character test’ grounds without notice53 • set aside a delegate/ • • • • Administrative Appeals Tribunal (AAT) ‘character test’ decision against visa refusal/cancellation and refuse/cancel the visa, choosing whether to afford natural justice54 determine that certain persons are to be excluded from Australia determine that certain information is non-disclosable55 (e.g. visa refusal reasons) determine that certain maritime safety/navigation laws do not apply in the exercise of maritime powers56 lift the bar precluding visa applications by unauthorised maritime arrivals.57 Extracted from: Law Council submission to Free & Equal