Use of a National Interest Criterion in Commonwealth Legislation – Suggested Reforms for Greater Accountability in Executive Decision-Making

Abstract

Since Federation, the national interest concept has progressively been invoked in Australia's legal and political tradition in various respects. One such usage of the concept has been the increasing designation of a national interest criterion in Commonwealth legislation, providing the repository of such a statutory power with a broad authority to make executive decisions that can significantly affect rights and interests of individuals and legal entities.

After surveying the usage of the national interest concept across all Commonwealth statutes and delegated legislation in Australia, this thesis identifies a number of apparent deficiencies in the use of the concept under Australian law. This thesis broadly argues for more considerable legal and political accountability mechanisms in the application of a national interest statutory criterion by Commonwealth Ministers.

First, the thesis offers a number of structural legislative changes regarding the application of a national interest test under Commonwealth law. The thesis argues that only Commonwealth Ministers should be able to exercise such a statutory standard. This thesis contends for a 'mandatory parliamentary tabling obligation' of all decisions that concern the application of a national interest criterion, with the relevant Minister having to table the decision (and reasons for so acting) before both Houses of Parliament.

Secondly, this thesis offers a definition of a national interest statutory criterion. Where a Commonwealth Minister has regard to a consideration of the national interest not reflected in the proposed statutory definition, it would be mandatory for that matter to be clearly put to the aggrieved party. These proposed legislative structural changes, it is argued, will generate greater consistency in Ministerial decision-making that more amply apply the procedural fairness doctrine.

Thirdly, this thesis argues for the potential of greater judicial intervention in decisions made by Commonwealth Ministers that apply a national interest statutory criterion. The thesis offers a working model of judicial and manageable standards that can be used by the federal judiciary in the context of judicial review cases in Australia that consider national interest decisions. The net result is greater accountability for the exercise of a national interest statutory criterion by the executive.