Privative Clauses

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [15.3.1-10]; [15.3.15C-16C].

Study Guide:

  • Extract from Kirk v Industrial Relations Commission (2010) 239 CLR 531.
  • Aronson, Dyer & Groves comment (Judicial Review of Administrative Action 4th ed, 2009, at [17.05]) that “the courts usually respond to legislative attempts to limit or completely exclude the scope of judicial review of administrative action with a mixture of incredulity, disingenuous disobedience and downright hostility”. Why might the courts resist reading privative clauses literally?

Privative clauses

[1]A privative (or ouster/preclusion) clause in legislation is one which attempts to prevent courts from pronouncing on the lawfulness of administrative actions. The courts have resisted attempts by parliament to restrict their power by giving a restrictive interpretation to such provision. There has been a resurgence in the use of privative clauses in the context of attempts to restrict access to judicial review of migration decisions and state industrial relations rulings.

  • The Kerr Committee noted that “a statutory provision of this kind confronts the court with the necessity of resolving and reconciling two expressions of intention which appear to be inconsistent, the creation of a tribunal, but with limited jurisdictional and power only, and a declaration that its proceedings and orders are not to be the subject of challenge.”[2]
  • Courts will be influenced by a number of important principles when undertaking this task of reconciliation:
    • Parliamentary supremacy
    • Preserving access to the courts
    • The High Court’s original jurisdiction under s 75 (v) of the Constitution

The guiding principle is that a privative clause will be effective if it was a bona fide attempt on the part of the tribunal to exercise its power, that it related to the subject-matter of the legislation creating the tribunal and conferring powers upon it and that the decision was reasonably capable of reference to those powers.

  • Clauses which say that a decision is “final and conclusive”, or "not appealable", will not be effective to oust judicial review.
  • A clause which denies a specific remedy, but not judicial review generally, will usually be given effect by a court.
  • There is a strong presumption that a privative clause will not be effective to exclude judicial review generally, particularly of a jurisdictional error including a breach of natural justice.
  • Clauses which limit the time within which judicial review proceedings must be commenced have generally been accepted by the courts.
  • Legislation may stipulate a procedure for review or appeal that is designed to operate in place of judicial review, generally the effect of one of these clauses will be that an error in the assessment process will not go to jurisdiction and attract review except where an assessment is only provisional or contains conscious maladministration.
  • If a power is granted in discretionary terms, such as “if X is satisfied”, parliament’s intention to exclude judicial review will be regarded as stronger.

Privative Clauses and the Constitution s 75(v)

[3]A dilemma arises when the apparent purpose of a privative clause was to deny review in the original jurisdiction of the High Court. This has typically been solved by resort to the three “Hickman” conditions:

  1. It was a bona fide attempt to exercise the power;
  2. It related to the subject-matter of the legislation; and
  3. The decision was reasonably capable of being referred to the power (that is, on the face did not go beyond the power).

It can usually be presumed that parliament did not intend to protect ‘manifest’ errors, ‘imperative duties’, ‘inviolable limitations or restraints’ or breaches amounting to jurisdictional error that will attract the issue of a constitutional writ. As indicated by Plaintiff S157,[4] the constitutional jurisdiction of the High Court cannot be ousted by a privative clause.

Plaintiff S157/2002 v Commonwealth of Australia[5]

Held: The plaintiff challenged a decision of the Refugee Review Tribunal confirming the refusal of a visa, on the grounds of breach of natural justice. The High Court considered the operation of an amendment to the Migration Act which purported to limit judicial review of the Tribunal’s decisions.
Issue: There is a strong presumption that a privative clause will not be effective to exclude judicial review generally, particularly of a jurisdictional error including a breach of natural justice.
Held: The High Court essentially rendered the privative clause useless. Although the clause was ‘valid’, the court held that parliament couldn’t have possibly intended to apply it to jurisdictional error. Jurisdictional error is not affected by privative clauses because those decisions are not decisions at all. They are nullities.

Seiffert v Prisoners Review Board[6]

Facts: The Court of Appeal accepted that there had been a denial of procedural fairness by the Prisoners Review Board. The Attorney-General contended that the board was under no duty to afford procedural fairness because of the operation of a privative clause.
Held: The decision could not be set aside on grounds of procedural fairness.


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State legislation

[7]In practice, state courts often apply the Hickman conditions, though also posing the question whether in the action being challenged there was a ‘manifest’ error, ‘imperative duty’ or ‘inviolable limitation or restraint’. The effect of Kirk[8] is that the full range of jurisdictional error attracting judicial review is preserved at both state and commonwealth level.

Kirk v Industrial Relations Commission[9]

Facts: Mr Kirk directed a company which owned a farm. He employed Mr Palmer to manage the farm and had given him an all-terrain vehicle to use. Mr Palmer was using the vehicle to deliver steel to contract workers and, whilst travelling off road down a steep slope, he crashed and was killed. He had been trained to use the vehicle and it was more of a bizarre accident, considering that Mr Palmer had always previously used the road available. Mr Kirk and the company were convicted in the Industrial Court of NSW under the OH&S Act. The Court did not have evidence to convict Mr Kirk and even called him as a witness for the prosecution. He was also not told specifically what he was charged with. The Court of Appeal held that there was no jurisdictional error to overcome the privative clause in the legislation and dismissed the application for appeal. The High Court granted special leave to appeal and reversed the decision of the NSW Court of Appeal.
Issue: NSW different to Commonwealth, s 75(v) doesn’t apply because the judicial officers are not ‘officers of the Commonwealth’.
Held: The High Court found for Mr Kirk.
  • Privative clauses are beneficial where they promote finality but not where they clash with the Constitution.
  • S 71 of the Constitution is part of an appellate structure, of which the High Court sits at the top, the Australian legal system is whole and it must be internally coherent; therefore the Supreme Courts must fit in to the Commonwealth Constitutional model. Otherwise there will be islands of power not subject to supervision.
  • Only where privative clauses seek to exclude jurisdictional error will they be ineffective.


End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 868-72.
  2. Commonwealth Administrative Review Committee, (1971) at [55].
  3. Textbook, pp 872-3.
  4. Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 476.
  5. (2003) 211 476.
  6. [2011] WASCA 148.
  7. Textbook, pp 873-4.
  8. Kirk v Industrial Relations Commission (2010) 239 CLR 531.
  9. (2010) 239 CLR 531.
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