PART XIII PRIVATIVE CLAUSES

PART XIII PRIVATIVE CLAUSES I Intrductin A The Privative, Ouster, r Preclusin Clause Privative clauses are prvisins in a statute which preclude the pssibility f certain frms f administrative review. Typically, they vary the availability f certirari s as t prevent the decisin f a tribunal frm being quashed. Synnyms include uster and preclusin clauses. Such clauses have been cnstrued restrictively by curts. Privative clauses are relatively cmmn in legislatin. By means f such clauses, curts will regularly be denied the pprtunity t examine the lawfulness f administrative decisins. Recently, they have been used in the cntext f migratin tribunals t restrict review. Examples f privative clauses: A decisin by this tribunal is final and cnclusive A curt may nt grant remedy X (eg, certirari) Judicial review is nly pssible fr reasn f X N judicial review is pssible after time Y (time limits) Anything dne by bdy X shall have effect as if enacted by Parliament This decisin shall be self-executing Judicial review is nt available in circumstances A, B, Z Sme privative clauses purprt t cmpletely ust judicial review. Fr example, s 150 f the Wrkplace Relatins Act 1996 (Cth) prvides as fllws: Sectin 150: [A]n award (a) (b) (c) is final and cnclusive; shall nt be challenged, appealed against, reviewed, quashed r called in questin in any curt; and is nt subject t prhibitin, mandamus r injunctin in any curt n any accunt. B Idelgical Tensins Privative clauses exist primarily fr practical and prcedural reasns: Prtecting the integrity f tribunal systems by separating infrmal tribunals frm frmal legal prcesses: curts shuld nt decide, eg, industrial disputes; Ensuring finality: decisins f tribunals ught nt t be appealed and are thus said t be nn-reviewable; Preventing unnecessary litigatin and interventinist curts: tribunals and internal avenues f appeal are said t affrd justice, s t g beynd these measures is arguably unnecessary (hence, eg, migratin privative clauses); Page 1 f 10

Efficiency: appeals litigatin cnsumes resurces f curt and Minister In this way, they prtect the integrity f the tribunal system, and ensure that executive and judicial functins are separated in apprpriate circumstances. Fr example, the executive branch has the capacity t issue certificates certifying that disclsure under the FOI Act wuld be cntrary t the public interest. Because this is an essentially executive decisin, privative clauses are used t prtect that decisin frm being undermined by the curts. Hwever, the existence f private clauses des raise cmplex issues: Incnsistent parliamentary intentin prima facie incnsistency between ne statutry prvisin which seems t limit the pwers f the Tribunal and anther prvisin, the privative clause, which seems t cntemplate that the Tribunal s rder shall perate free frm any restrictin (Cldham at 418) Parliamentary svereignty T what extent ught curts relinquish their wn jurisdictin and t what extent shuld they give effect t ne r ther f the legislative intentins f Parliament? Give effect t the parliamentary intentin but, which intentin? Prvisins which restrict the exercise f tribunals pwers? Or privative clauses? Rights f the citizen t access the curts (rule f law) Access t the curts is an essential precnditin fr the peratin f the rule f law; therefre, clauses shuld arguably be read dwn Alternatively, if the cntent f the law must be given effect, then the privative clause shuld be enfrced But what abut the verriding cnsideratin that the Cnstitutin creates the judicial bdies and prvides fr their use by individuals t enfrce their rights and expectatins (eg, natural justice, fairness f applicatin)? Cnstitutinally cnferred jurisdictin The High Curt s jurisdictin t hear applicatins fr certain writs against Cmmnwealth fficials under s 75(v) cannt be abrgated Cnstitutinalism: that cnstitutinal prvisins shuld prevail Sectin 75(v): hw shuld a curt recncile a prvisin purprting t ust the High Curt s ability t review a decisin with its cnstitutinally-enshrined riginal jurisdictin t d s? Clauses cannt ust jurisdictin under s 75(v); hwever, they shuld be interpreted cnsistently with the Cnstitutin where pssible t d s (Cldham) Representative demcracy Suggests enfrcement since Parliament, being demcratically elected, is in a mre legitimate psitin t create legal cnstraints than curts are t review decisins Separatin f judicial pwer Judicial pwer: the pwer t authritatively decide legal rights and interests (Bilermakers) Privative clauses effectively give tribunals pwer t authritatively decide the legal limits f its pwer This wuld amunt t cnferring judicial pwer upn a bdy that is nt a Chapter III curt T give such a privative clause its literal effect wuld therefre be in breach f the Bilermakers principle Page 2 f 10

These tensins raise cmplex interpretative issues. Page 3 f 10

II Classes f Privative Clause A Clauses Preventing Appeal The phrase final and cnclusive refers t the claimant s inability t appeal a decisin. Hwever, it des nt exclude the remedy f certirari (Hckey v Yelland). Hckey v Yelland (1984) HCA: Facts A medical bard refuses cmpensatin t Hckey n the basis that he had nt suffered an injury in the sense required by the Wrkers Cmpensatin Act 1916 (Cth) Sectin 14C(11) f the Act prvided that The determinatin by the Bard shall be final and cnclusive, and the claimant shall have n right t have any f thse matters heard and determined by way f appeal r therwise, by any curt r judicial tribunal whatsever Hckey seeks certirari t quash t Bard s decisin, n the grunds that it reveals an errr f law n the face f the recrd Issue Des s 14C(11) preclude issue f certirari? Reasning (Gibbs CJ) The subject s right f recurse t the curts is nt t be taken away except by clear wrds If the subsectin had prvided that the determinatin shuld nt be quashed r called in questin, it wuld have been effective t ust certirari fr errrs f law (but nt jurisdictin) Hwever, simply prviding fr final and cnclusive determinatins is nt enugh t exclude certirari Decisin N On the facts, hwever, there is n errr f law disclsed by the decisin B Clauses Denying a Remedy A clause which purprts t prevent a decisin frm being challenged, appealed against reviewed, quashed r called in questin will be effective t ust the issue f prergative writs (Hussein). Hussein v Department f Industrial Relatins and Technlgy (1982) HCA: Facts Sectin 84(1) f the Industrial Arbitratin Act 1940 (NSW) prvides as fllws: (a) any decisin f the cmmissin shall be final; and n award shall be vitiated by reasn nly f any infrmality r want f frm r be liable t be challenged, appealed against reviewed, quashed r called in questin by any Page 4 f 10

curt f judicature n any accunt whatsever. (b) N writ f prhibitin r certirari shall lie in respect f any award f (i) the cmmissin r (ii) any member f the cmmissin relating t any industrial matter r matter in which a tribunal has jurisdictin Issue Des s 84(1)(a) prevent recurse t prergative writs? Reasning Only certirari is requested here: there is n jurisdictinal errr, errr f law, r ther basis fr review The wrds f s 84(1)(a) refer t quashed (being the result f certirari and nt ther prcedures) and are therefre amply wide enugh t include certirari, thereby usting it Hwever, s 84(1)(b) takes the unusual step f distinguishing between industrial and ther matters, heavily prtecting the frmer frm review but nt the latter Decisin Even s, the uster is effective and n prergative writ may be issued C Clauses Denying Judicial Review In rder fr a privative clause t perate, the decisin being prtected must fall within its scpe. If it des nt, the clause will have n effect (Osmnd). Osmnd v Public Service Bard f NSW (1984) NSW CA: Facts Mr Osmnd is denied a psitin n the Bard He seeks a declaratin that he was entitled t reasns fr that decisin Sectin 65A(6) f the Public Service Act 1979 (NSW) prvides as fllws: (6) n prceedings, whether fr an rder in the nature f prhibitin, certirari r mandamus, r fr a declaratin r injunctin r fr any ther relief, shall lie in respect f (c) the appintment r failure t appint a persn t a psitin in the Public Service Issue Des s 65A(6) prevent the Curt frm issuing a declaratin? Reasning (Kirby P) Exclusinary clauses are prperly read strictly by the curts Hwever, the language here chsen is very wide It is necessary t examine the descriptin f the acts prtected frm review: here they are the appintment r failure t appint, the entitlement r nn-entitlement r the validity r invalidity f any such appintment Hwever, the appellant seeks a declaratin that he was entitled t reasns; this is an rder that the Bard perfrm its legal duties in issuing reasns; this is anterir t his appintment, s it falls utside the scpe f the uster clause Even if it didn t, the uster clause may be circumvented by ther rutes: the Curt may examine usted cnduct fr jurisdictinal errr (Anisminic v Freign Cmpensatin Page 5 f 10

Cmmissin) r denial f natural justice Decisin Appeal allwed; s 65A(6) has n applicatin t the appeal D Clauses Purprting t Oust Cnstitutinal Jurisdictin The High Curt s inherent jurisdictin under s 75(v) f the Cnstitutin cannt be usted. An attempt t d s will be uncnstitutinal. Indeed, any attempt by the Parliament t vest authritative pwer t determine a matter in a nn-judicial bdy (as by making its decisins unreviewable) is incnsistent with its being a nn-judicial bdy (Cldham). R v Cldham; Ex parte Australian Wrkers Unin (1983) HCA: Facts The ACCC makes an rder that a Laburers Federatin has the exclusive right t represent cnstructin wrkers The decisin was wrng (wrkers did nt have autmatic membership f the AWU) Sectin 60(1) f the Cnciliatin and Arbitratin Act 1904 (Cth) prvides as fllws: An award f the cmmissin is final and cnclusive It cannt be challenged, appealed, reviewed r quashed It is nt subject t prhibitin, mandamus r injunctin in any curt n any accunt Issue Can the prhibitin and mandamus be granted by the Curt? Reasning Dawsn J: The prvisin is effective t exclude any general judicial review f the Cmmissin s prceedings Hwever, it cannt preclude the High Curt frm exercising pwers cnferred upn it by s 75(v) f the Cnstitutin because the members f the Cmmissin are fficers f the Cmmnwealth The Cmmissin s rder with respect t a class f emplyees is dependent upn the existence f a jurisdictinal fact (that the emplyees f that particular class are eligible fr membership f the relevant rganisatin) Here, s 60(1) des nt cnfer cnvulsive character n the Cmmissin s finding The rder is therefre beynd the pwers f the Cmmissin and liable t be crrected by writ f prhibitin (A refusal n grund f lack f jurisdictin wuld be a failure by the Cmmissin t perfrm its lawful functin and liable fr crrectin by writ f mandamus) It is nt pen t the Curt t abrgate bth its wn jurisdictin and the cnstitutinal rights f the citizen by treating the Cmmissin s wn decisin n jurisdictinal fact as being prima facie cnclusive Masn ACJ and Brennan J: The jurisdictin cnferred by s 75(v) f the Cnstitutin cannt be usted by a private clause Sectin 60 will validate an rder f the Cmmissin, t the extent cnstitutinally Page 6 f 10

permissible, if three cnditins are fulfilled: The purprted exercise is a bna fide attempt t exercise the pwer It relates t the subject matter f the legislatin Is reasnably capable f being referred t the pwer (ie, des nt n its face g beynd the pwer) R v Hickman; Ex parte Fx and Clintn at 614 15 Sectin 60 is ineffective t prevent prhibitin ging when the Tribunal transgresses the restraints upn its jurisdictin Nt being a judicial bdy, the Cmmissin cannt determine authritatively the questin f eligibility fr membership: s 142A did nt vest judicial pwer in the Cmmissin Decisin Writs can be granted The rder nisi fr prhibitin and mandamus is made abslute E Mdern Apprach A tw-step apprach t characterising privative clauses is currently favured by the High Curt: 1 Scpe Des the decisin fall within the scpe f the privative clause? 2 Hickman Prviss Assuming it des, can immunity frm review be affrded t the decisin? Decisins falling utside the scpe f the privative clause will nt be excluded frm review. Of thse decisins falling with a privative clause, immunity frm attack will nly attach where the decisin represents an hnest attempt t deal with the subject matter cnfided t the tribunal and in reaching which such a bdy acted in pursuance f [its] pwers in relatin t smething that might reasnably be regarded as falling within its prvince (Hickman per Dixn J). It is a functin f cnstitutinalism, cnflicting Parliamentary intentins, the separatin f judicial pwer (Bilermakers) and the High Curt s inherent jurisdictin under s 75(v) f the Cnstitutin that cnstruing privative clauses is an exercise in recnciliatin (Plaintiff S157/2002). Plaintiff S157/2002 v Cmmnwealth (2003) HCA: Facts The Refugee Review Tribunal denies P a temprary prtectin visa P seeks t challenge that decisin n the basis f a denial f natural justice Sectin 474 f the Migratin Act 1958 (Cth) prvides as fllws: (1) A private clause decisin: (a) is final and cnclusive; (b) must nt be challenged, appealed against, reviewed, quashed r called int questin in any curt; and (c) is nt subject t prhibitin, mandamus, injunctin, declaratin r certirari in any curt n any accunt (2) privative clause decisin means a decisin f an administrative character, made under this Act Page 7 f 10

Sectin 486A further prvides: (1) An applicatin t the High Curt fr a writ in respect f a privative clause decisin must be made within 35 days f the actual ntificatin f the decisin (2) The High Curt must nt make an rder allwing an applicatin utside the 35 day perid Issue Can the High Curt make such an rder? Reasning Gleesn CJ: Parliament cannt cnfer upn a tribunal pwer t make an authritative and cnclusive decisin as t the limits f its wn jurisdictin, because that wuld invlve an exercise f judicial pwer (Cldham) Legislatin which cnfers jurisdictin n tribunals and which, in additin, purprts t deprive, curts f jurisdictin t cntrl excess f pwer r jurisdictin invlves a ptential incnsistency. A prvisin that defines and limits the jurisdictin f a tribunal may be difficult t recncile with a prvisin that states that there is n legal sanctin fr excess f jurisdictin A clear intentin must be demnstrated befre fundamental rights and freedms will be infringed The Cnstitutin is framed upn the assumptin f the rule f law The clauses must be cnstrued n the basis that the legislature des nt intend t deprive its citizens f their right t access the curts The plaintiff submits that a privative clause purprting t deny the High Curt s jurisdictin t prhibit acts f Cmmnwealth fficers in excess f their jurisdictin shuld be declared invalid Hwever, the Hickman prviss attempt t recncile rather than invalidate privative clauses Giving effect t a statute cnferring jurisdictin whilst als denying review invlves a prcess f statutry cnstructin described as recnciliatin This prcess invlves tw steps: First, t nte that the prtectin is inapplicable unless there has been an hnest attempt t deal with the subject matter cnfided t the tribunal and t act in pursuance f the pwers f the tribunal in relatin t smething that might reasnably be regarded as falling within its prvince Secnd, t cnsider whether particular limitatins n pwer and specific requirements as t the manner in which the tribunal shall be cnstituted r shall exercise its pwer are s expressed that they must be taken t mean that bservance f the limitatins and cmpliance with the requirements are essential t valid actin This apprach, enunciated by Dixn J in Hickman, has been accepted as authritative Sectin 474 des nt prtect a decisin taken in breach f the rules f natural justice This is a matter t be decided as an exercise in statutry cnstructin The issue is whether the requirement f a fair hearing is a limitatin upn the decisin-making authrity f the tribunal f such a nature that it is invilable Parliament has nt evinced an intentin t treat as valid decisins made Page 8 f 10

unfairly in cntraventin f the requirements f natural justice Peple whse fundamental rights are at stake are rdinarily entitled t expect mre than gd faith. They are rdinarily entitled t expect fairness. Sectin 474 des nt manifest an intentin t treat unfair decisins as binding If the Tribunal s decisin was taken in breach f the rules f natural justice, then it is nt within the scpe f prtectin affrded by s 474 because nt a decisin t which s 474 applies Sectin 486A als des nt perate in relatin t a purprted decisin made in breach f the requirements f natural justice (at [42]) Gaudrn, McHugh, Gummw, Kirby and Hayne JJ: There are tw steps when determining the applicatin f privative clauses 1) Des the decisin itself cme within the scpe f the privative clause? Privative clauses nly prtect particular kinds f decisins, s any given decisin must first be brught within a clause s scpe 2) If s, des the immunity affrded by the clause apply t that decisin? Clauses are nt t be interpreted literally It wuld be cnstitutinally invalid t d s (s 75(v)) Where there is such ppsitin, it shuld be reslved by adpting an interpretatin cnsistent with the Cnstitutin It is presumed that Parliament des nt intend t cut dwn the jurisdictin f the curts save t the extent that the legislatin in questin expressly s states r necessarily implies Judicial pwer cannt be exercised by a nn-chapter III curt (Bilermakers), s a private clause cannt have the effect f usting all review (this wuld effectively give authrity t determine cnclusively the matter, cnsistent with judicial and nt administrative pwer) If a decisin des cme within a privative clause, the secnd step wuld still have t be satisfied N prtected decisin will be invalidated prvided that the decisin is an utcme f: an hnest attempt t deal with a subject matter cnfided t the tribunal and t act in pursuance f the pwers f the tribunal in relatin t smething that might reasnably be regarded as falling within its prvince (R v Hickman per Dixn J; the Hickman prviss ) These cnstraints are relatively undemanding, but they d exist Here: A determinatin which is invalid fr errr f law f jurisdictinal errr, will nt be a decisin fr the purpses f s 474(2); cnsequently, the privative clause des nt apply the decisin des nt cme within the scpe f the privative clause Sectin 474 f the Act des nt prtect decisins invlving jurisdictinal errr, s it des nt cnflict with s 75(v) f the Cnstitutin and is therefre valid Sectin 474, whilst valid, des nt apply t the decisin impugned by the plaintiff because a decisin flawed fr want f natural justice will nt be a privative clause decisin within s 474(2) f the Act The same reasning applies t s 486A Page 9 f 10

This reasning is analgus t the cases cnsidering the effect f unlawful decisin-making Callinan J: The incidental pwer may be applied with respect t the federal judicature Hwever, any limits impsed n the High Curt s jurisdictin in time must be truly regulatry in nature and nt such as t make any cnstitutinal right f recurse virtually illusry as s 486A in my pinin des Sectin 474 is effective t prevent certirari, but will nt cure manifest errr f jurisdictin Hwever, s 486A is invalid 35 day limit effectively denies peple in detentin, withut a lawyer, and withut English language skills, access t the High Curt It is thus cnstitutinally invalid Decisin A narrw cnstructin is preferred Majrity: the determinatin is nt within the scpe f s 474 because nt a privative clause decisin Callinan J: s 486A is cnstitutinally invalid F Statutry Develpments In 1979, the AD(JR) Act was amended t include a s 4, with the effect f nullifying privative clauses in frce upn the cmmencement f the Act. Of curse, the AD(JR) Act effectively has its wn privative clauses. Schedule 1 precludes review f certain decisins, such that a decisin will nt be ne t which this Act applies. In this sense, the Act establishes its wn uster mechanism, having effect in s 3 ( decisin t which this Act applies ). Hwever, general law remedies are unaffected by the AD(JR) Act: s 10. Thus, privative clauses d nt exclude cmmn law remedies just thse issued under the Act. Nte als s 12 f the Administrative Law Act: privative clauses passed befre the cmmencement f the Act have n effect. This is n lnger f any significance tday. Sectin 85(1) f the Cnstitutin Act (Vic) cnfers jurisdictin upn the Victrian Supreme Curt t hear claims in respect f Victrian parties. T exclude s 85 jurisdictin, a prvisin must indicate the intentin t alter (s 85(5)(a)) and prvide a statement f reasns fr ding s (s 85(5)(b)). It will be vid if these requirements are nt cmplied with: s 85(6). Privative clauses are difficult t add in respect f Victrian judicial review prcedures because s 18(2A) requires an abslute majrity in bth Huses f Parliament t effect an alteratin f jurisdictin under s 85. Page 10 f 10