Privative clause

A privative clause, also known variously as an ‘ouster clause’, a ‘preclusive clause’, and a ‘no-review clause’, represents an attempt by a legislature to insulate action of the executive government from judicial review. Considered from the perspective of the legislature, such clauses have largely been a failure, and their interpretation has placed under great strain the notion of parliamentary supremacy.

Privative clauses take various forms, but they typically involve an assertion that a decision is to be ‘final and conclusive’ or ‘without appeal’, that it ‘may not be called into question in any court of law’, or some similarly minded incantation. One of the more expansive privative clauses provided that a decision was ‘final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal’. It is difficult to conceive of a more clear expression of legislative intent. Yet neither in Australia nor abroad have courts ever accepted privative clauses as amounting to a complete bar against judicial review. As Kirby once put it, ‘unreviewable administrative action is a contradiction in terms’ (Warringah Shire Council v Pittwater Provisional Council (1992)). In essence, the common law position is that it is inconceivable that a parliament would grant authority to an administrative entity to define its own jurisdiction. It is through this inference of legislative intent that the courts have always—even in the face of the most explicitly phrased privative clause—been able to justify judicial review for jurisdictional error (such error being, of course, itself of considerable elasticity in definition:).

The High Court has a special view of privative clauses because of section 75(v) of the Constitution, which vests the Court with original jurisdiction in all matters ‘in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. This provision makes it constitutionally impossible completely to preclude judicial review of Commonwealth administrative action. Much of the judicial discussion about the scope of section 75(v) has concerned the various versions of privative clause that have been included in Commonwealth industrial relations legislation. In a series of cases, the Court repeatedly rebuffed attempts to insulate the work of the old Commonwealth Court of Conciliation and Arbitration from judicial review (see, for example; Ex parte Whybrow (1910); Allen Taylor's Case (1912); Ince Bros v Federated Clothing and Allied Trades Union (1924)). In a typically colourful characterisation, Prime Minister W M Hughes described the interplay between the Court and the Parliament over the clause as a ‘miserable battledore and shuttlecock business’. As to the resulting jurisprudence, Higgins (in his capacity as President of the Court of Conciliation and Arbitration) once described the High Court's holdings on the issue as ‘a veritable Serbonian bog of technicalities’ (see Australian Boot Trade Employees v Whybrow & Co (1910)).

While it will not permit a complete ouster of judicial review, the High Court has suggested on occasion that it will be prepared to read a privative clause as an indication that it should tread softly in the exercise of its review powers. As Mark Aronson and Bruce Dyer have put it, ‘the trick is to increase the relevant tribunal's jurisdiction rather than to decrease the Court's’. This judicial ‘compromise’ stems from the judgment of Dixon in R v Hickman; Ex parte Fox and Clinton (1945). Stated at its simplest, the Hickman principle, as it is sometimes known, holds that provided a tribunal's decision represents a bona fide attempt to exercise its power, and provided that the decision relates to the subject matter of the legislation and is reasonably capable of reference to the power given to the tribunal, then the net of jurisdictional error should be narrowly cast. The Hickman principle has been cited by the Court several times. It was once described by Douglas Menzies as ‘classical’, and Hickman has been given contemporary currency through two recent decisions which relied upon it, R v Coldham; Ex parte Australian Workers Union (1983), and O'Toole v Charles David (1991). Yet it would be an exaggeration to say that it has been applied faithfully by Australian courts since 1945.

The High Court has been no less complicating in its approach to privative clauses than its counterparts in the UK or Canada. In the seminal case of Anisminic v Foreign Compensation Commission (1968), the House of Lords held that a provision of the Foreign Compensation Act 1950 (UK) that determinations by the Foreign Compensation Commission ‘shall not be called in question in any court of law’ did not operate to oust review for jurisdictional error. Significantly, their Lordships found the relevant jurisdictional error to be an error of law. In Canada, the bog of complexity around privative clauses is even more Serbonian, to use Higgins' words. In Canadian Union of Public Employees v New Brunswick Liquor (1979), the Supreme Court of Canada issued its own counterpart to the Hickman principle, stating the scope of review in the face of a privative clause in even more restrictive terms (for Canada does not have an analogue to section 75(v) of the Australian Constitution). Yet every year since, the Supreme Court has found it necessary to revisit the issue of privative clauses. Whether in its Australian, Canadian, or British form, the simple fact is that the common law will never permit a legislative injunction to totally insulate administrative injustice from review.