This brief analyses the current conundrum surrounding the exercise of ministerial discretion in migration matters in historical context. The machinery legislation of the 1901 and 1958 Migration Acts conferred wide discretionary powers upon the Minister. In 1989, reforms to the Migration Act 1958 removed most of these discretionary powers by creating legally binding statutory rules for visa categories, but allowed the Minister a residual public interest power to grant a visa in individual circumstances.

As initially conceived, these discretionary powers were meant to balance what is an otherwise inflexible set of regulations. However in practice ministerial discretion has undergone an evolution, from being an informal mechanism used sparingly, to a systematised administrative process employing more than 50 staff to manage thousands of requests on an annual basis. This brief considers the contemporary policy implications that have arisen in this context and questions whether the current formulation of ministerial discretion is sustainable.