THE LAW OF PRIVATIVE CLAUSES

THE LAW OF PRIVATIVE CLAUSES

INTRODUCTION

A privative clause is a stipulation within the milieu of Australian Law, which attempts to exercise the act of restriction or preclusion of judicial review[1]. In summary, the main objective of the privative clause is to allow for the limitation and deterrence of access to courts in order to facilitate judicial reviews innate within judicial or administrative applications of authority. The issue of privative clauses comprises the epitome for the debate on jurisdictional error in Australia. Exemplified in the cases of Plaintiff S157/2002 versus Commonwealth (2003) and Kirk versus Industrial Relations Commission (2010), it is evident that the provision of privative clauses in the protection of decisions reached upon by administrative tribunals against judicial review exudes oblivion in contemporary judicial proceedings.

Nevertheless, it is also clear that sound reasons exist for the restriction of judicial review. For instance, the appeals presented by refugee asylum seekers constitute formidable reasons for employing judicial reviews regarding specific court decisions. Most asylum seekers advance inestimable applications of judicial review, which actually hinder their deportation as illegal immigrants irrespective of the fact that they gain the benefits of independent merits review before the Refugee Review Tribunal. In effect, this unnecessarily prolongs the legal process and as such, encourages other potential immigrants to acquire opportunities as stowaways in order to wrangle with the Australian legal schema.

The previous approach used by the High Court in the interpretation of privative clauses in the cases of R versus Hickman: Ex parte Fox and Clinton (1945) was considerably preferable to the novel approach since it created a balance between the entrenched constitutional jurisdictions of the court to review jurisdictional error and the need for deference to Parliament’s judgment. In addition, the constitutional underpinning Plaintiff S157 and Kirk is dubious and as such, influences the need for the courts to review such decisions in order to assert a greater balanced, sustainable approach regarding the interpretation of privative clauses.

PLAINTIFF S157/2002 VS. COMMONWEALTH (2003)

The interpretation of privative clauses exudes further complication within federal and state spheres based on the considerations of the constitution, specifically the abdication on the High Court, by section 75(v) of the Constitution. This regards the assertion that Section 75(v) secures an intrinsic essential of the Rule of Law. Accordingly, Parliament cannot strip the court’s jurisdiction on requiring Commonwealth officers to act in accordance with the law. Within the restrictions of its legal capacity as mandated by the Constitution, Parliament may enact the legislation to which Commonwealth officers must follow[2]. If the decree implies a contractual obligation, mandamus may apply to coerce performance of the obligation. If the legislation grants authority or jurisdiction, proscription may apply to avert surplus of jurisdiction or authority. Consequently, an injunction may apply to control illegal behaviour.

As such, Parliament may make and delineate the obligation, authority or the jurisdiction and hence determine the content of the law that requires compliance. Additionally, based on a judgment by Gaudron, McHugh, Gummow, Kirby and Hayne, Section 75(v) introduces an ingrained minimum stipulation of judicial review and sets considerable obstacles in the way of legislative trials through effecting privative clauses or other ouster provisions to weaken judicial review regarding executive action[3]. Similarly, the question of Section 75(v) of the Constitution bears considerable complexity in its application in R vs. Hickman: Ex parte Fox.

As such, the question raised focuses on the probability of Section 474(1) of the Migration Act in reconciling with Section 75(v) of the Constitution. The case aforementioned concerns the jurisdiction of a tribunal built to resolve industrial disagreements, by arbitration, within the coal mining industry. According to Dixon J, a privative clause did not possess the capacity to take the jurisdiction of the High Court in order to restrict a federal entity from acting in surplus of its power. In addition, certain inviolable obligations and restraints may result from legislation, of which a privative clause may be diminutive to protect them. Simply, this illustrates that a privative clause requires assessment in its statutory milieu in order to establish whether its insulating impact covers specific lawful errors[4].

In accordance with the Hickman case, the privative clauses innate within Section 474(1) of the Migration Act possess constitutional validity as deemed. Privative clauses were not to deprive the High Court of its jurisdiction in order to confer relief with respect to declarations affirmed in the absence of, or in the surplus of, authority. Rather, the clauses possessed an inherent impact on the substantive legislature by broadening the legal influence and authority of the decision-maker.

In addition, the clauses did not conflict with the Doctrine of the Separation of Powers. On another note, the validity of Section 474(1) of the Migration Act in Plaintiff S157/2002 vs. Commonwealth (2003) received questionable criticism. In the case, the declaration rebuffed the characterization of privative clauses as expanders of the decision-makers’ powers. Furthermore, based on the case, an administrative decision that possesses jurisdictional error gained delineation as a null decision. As such, the terminology ‘a decision made under the Act’ was not proper in referring to the declarations made within the Migration Act. As such, Section 474(1) was invalid in applying decisions soiled by jurisdictional error. Additionally, the privative clause did not conflict with Section 75(v) of the Constitution and was thus valid. Through this statement, it is clear that the Commonwealth intended the privative clause to secure against judicial review for particular kinds of jurisdictional error.

KIRK VS. INDUSTRIAL RELATIONS COMMISSION (2010)

The dispute between legislature and courts regarding privative clause and jurisdictional error is also evident within the context of arbitral awards provided by State tribunals. For instance, privative clauses are innate to industrial legislation within New South Wales from 1901[5]. Usually, the main objective for the incorporation of these clauses involves integrating finality within arbitral awards and verdicts by the industrial courts and tribunals of the State. Irrespective of the recurring legal endeavours by the Parliament of the New South Wales to augment its privative clauses, the Court of Appeal and High Court of New South Wales rejected interpreting the attempt in a manner that eliminated judicial review regarding jurisdictional error based on the notion that such stipulations apply only to legal decisions.

However, the Parliament of New South Wales enhanced the 1996 Industrial Relations Act by passing Section 179, which focused on enhancing the scope of the provision by ensuring that the decisions passed by the Commission gained protection from jurisdictional error to a specific level. Nevertheless, in 2006, the Court of Appeal (NSW), in the lawsuit leading to the declaration passed by the High Court in Kirk vs. Industrial Relations Commission (2010), affirmed that the impact of Section 179 focused on restoring the administrative jurisdiction of the Supreme Court in correcting jurisdictional error[6].

As such, by the time case received its decision, Section 179 did not possess the authority to protect the decisions of the Industrial Court. Consequently, the issue that caused contention between the High Court and the Court of Appeal contemplated on whether the Industrial Court exuded possibility in committing jurisdictional error. Thus, it was pointless for the High Court to deal with the issue of the state legislatures’ authority regarding the enactment of privative clauses. Regardless of this, the Court asserted that the law-making proficiency of Parliament restricts it from taking away the power of the State Supreme Court regarding confining lower courts and tribunals in the boundaries of their jurisdiction by conferring relief based on jurisdictional error[7].

In order for the Court to arrive at this stipulation, foremost, chapter III of the Constitution gained consideration. The chapter necessitates the existence of a body that fits the description of the Supreme Court of a State. Second, the state does not possess enough legislative authority to modify the constitution or the temperament of the Supreme Court. Third, it was important to allege that a definitive trait of the Supreme Court involved an embedded administrative jurisdiction. At this point, the Court referenced one authority to cement its supposition that, by federation, the Supreme Court’s jurisdiction incorporated an incontrovertible authority to provide a summons of certiorari to a lower court or tribunal in which there was existence of jurisdictional error with reference to Section 73 of the Constitution.

Furthermore, the verdict in Kirk vs. Industrial Relations Commission (2010) purported that a privative clause, at the time of federation, could not grant a summons of certiorari on basis of jurisdictional error. Regarding the mentioned case, the Court alleged that the High Court possesses jurisdiction over appeals from all verdicts, orders, laws and sentences of all state supreme courts and as such, the administrative jurisdiction of the courts is critically open to oversight of the High Court[8].

The concealed outcome of this acknowledges that if there were absence of a platform of review from lower courts or tribunals to the Supreme Court to correct jurisdictional error, then the jurisdiction of the High Court itself would gain frustration. With respect to Kirk vs. Industrial Relations Commission (2010), the result in the case receives better explanation that alleges that the High Court was more protective of its jurisdiction rather than the Supreme Court’s jurisdiction.

INTERPRETING PRIVATIVE CLAUSES

A privative clause constitutes a stipulation that bars access to courts for the objective of facilitating judicial reviews reached upon by lower courts or independent tribunals. Several kinds of methods exist that are useful in accomplishing such objectives. Nevertheless, the type of privative clause exemplified in Section 474(1) of the Migration Act 1958 embodies the true objective of the provision with respect to the decision in its application in Plaintiff S157/2002 v Commonwealth (2003)[9].

As such, the proviso within the Act stated that a decision made under the Act is ultimate and irrefutable, is indelible to challenge, appeal, review or question and is subject to proscription, mandamus, affirmation, injunction or certiorari within any court. As such, a real privative clause seeks to restrict a court either from accrediting any type of lawful proceeding to indict a decision or from issuing particular compensations. Section 474(1) purported to perform both objectives of the clause and therefore signified an inclusive attack on the administrative authority of the courts.

The concept of an act creating lawful restrictions upon a public entity while concurrently barring law courts from policing such restraints presents a struggle within courts. Alternately, the contradiction if terms become evident whereby a grant of limited jurisdiction couples with a declaration that outlaws challenging the jurisdiction. Based on this reason, it is rather unsurprising that courts possessing administrative jurisdiction have a tendency to approach privative stipulations in legislation with suspicion and hostility and as such, typically retort to trials to expel their jurisdiction through interpreting privative clauses and providing them with inadequate impact.

Interestingly, the conditions regarding privative clauses reflect the ensuing dispute. The legal delineation of the provision utilized an array of formulations to trounce precedent judicial decisions that interpret lawmaking attempts to eliminate judicial review from public entities. For instance, a phrase such as ‘ultimate and irrefutable’ is comparatively weak and thus does not affect the accessibility of certiorari regarding jurisdictional error or law error.

Furthermore, a provision that tries to expel certiorari only guards against non-jurisdictional law error. However, it is hard to interpret provisions that seek to rule out mandamus and proscription. Generally, it is also evident that apart from the effect of jurisdictional error compounds the necessitated impact of privative clauses. Theoretically, the input of jurisdictional error in determining a summons of certiorari deprives the privative clause of its effect. This assertion illustrates considerably within Plaintiff S157/2002) vs. Commonwealth (2003) and Kirk vs. Industrial Relations Commission (2010). The interpretation of privative clauses further gained complexities due to the introduction of the Hickman Principle based on the judgment of Dixon J in R vs. Hickman: Ex parte Fox (1945)[10].

As mentioned based on the outcome of the case, a privative clause lacked the authority to strip the High Court of its jurisdiction. As such, the Hickman provisions necessitated the complexity further by gaining use as the reference and limiting points for determining the construing of privative clauses. As such, Dixon J stated that,

“No decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bonafide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power of the given body”[11].

THE ROLE OF NO-INVALIDITY CLAUSES IN INTERPRETING PRIVATIVE CLAUSES

Nevertheless, the decisions in Kirk vs. Industrial Relations Commission (2010) and Plaintiff S157/2002 versus Commonwealth (2003) require a re-assessment of the legal options that are accessible for persons affected by jurisdictional declarations in the contexts previously secured from review by privative clauses. This is because such judicial reviews protect persons such as illegal immigrants from facing deportation. With respect to both cases, it is evident that the enactment of privative clauses is not a light matter.

Fair policy grounds for desiring to protect from judicial review for certain errors may exist. For instance, numerous judges have come to terms with the fact that specific industrial commissions comprise better positions in determining industrial policies and resolving industrial conflicts than courts. These decisions affect large sections of the community and as such require finality of which privative clauses cannot achieve. As such, it is important to utilise no-invalidity clauses in replacing the weakened privative clauses.

Jurisdictional error spots the border between legitimacy and invalidity. Thus, it is notable that not all failures to conform to a legislative prerequisite regarding the application of authority create invalidity. The procedure of legislative construction as noted in Project Blue Sky Inc vs. Australian Broadcasting Authority[12] determines whether a contravention of a specific stipulation transfers to jurisdiction.

Thus, if the main question is whether Parliament intended the consequence of the specific breach to become valid, then a responsibility for provisions must exist in which the statutes do not only prescribe a stipulation that regulates the application of statutory authority but also defines that a breach of the stipulation lead not to invalidity. As such, an invalidity clause could negate the contradiction that rises with what errors constitute jurisdictional errors and as such, validate reduce the restriction towards conduction of judicial reviews.

CONCLUSION

Indeed, it is evident that the notion of privative clause presents considerable difficulty in assessment of precedent decisions made by the courts. This is because judicial review, through a summons of certiorari cannot gain application on the decisions made by the High Court. Irrespective of the negativities encompassing privative clauses, other avenues for supporting judicial review through clauses such as no-invalidity clauses as well as privative clauses require further interpretation in order to solve this legal issue.

Bibliography

Chris Finn, ‘Constitutionalising Supervisory Review at State Level: The End of Hickman?’(2010) 21 Public Law Review 92.

Enid Campbell and Matthew Groves, ‘Privative Clauses and the Australian Constitution’ (2004) 4 Oxford University Commonwealth Law Journal 51.

J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77.

John Basten, ‘The Supervisory Jurisdiction of the Supreme Courts’ (2011) 85 Australian Law Journal 273.

Justice Ronald Sackville, ‘The 2003 Term: The Inaccessible Constitution’ (2004) 27 University of New South Wales Law Journal 66.

Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook, 4th ed, 2009).

Michael Sexton and Julia Quilter, ‘Privative Clauses and State Constitutions’ (2003) 5 Constitutional Law and Policy Review 69.

Stephen Gageler, ‘The Legitimate Scope of Judicial Review’ (2001) 21 Australian Bar Review 279.

[1] Michael Sexton and Julia Quilter, ‘Privative Clauses and State Constitutions’ (2003) 5 Constitutional Law and Policy Review 69.

 

[2] Justice Ronald Sackville, ‘The 2003 Term: The Inaccessible Constitution’ (2004) 27 University of New South Wales Law Journal 67.

 

[3] Enid Campbell and Matthew Groves, ‘Privative Clauses and the Australian Constitution’ (2004) 4 Oxford University Commonwealth Law Journal 51.

[4] Ibid, 53.

 

[5] Ibid, 54.

[6] John Basten, ‘The Supervisory Jurisdiction of the Supreme Courts’ (2011) 85 Australian Law Journal 273.

[7] Ibid, 274.

[8] Stephen Gageler, ‘The Legitimate Scope of Judicial Review’ (2001) 21 Australian Bar Review 281.

[9] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook, 4th ed, 2009) 67.

 

[10] Chris Finn, ‘Constitutionalising Supervisory Review at State Level: The End of Hickman?’(2010) 21 Public Law Review 92, 99–100.

[11] Ibid, 94.

 

[12] J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 81.

 

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