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PRIVATIVE CLAUSES

Privative clause = legislativeprovision intended to exclude

judicial review, in whole or in part. They bring the Parliament andCourts directly into conflict:

On one hand, Parliament shouldbe able to exclude courts,because:

statute overrides commonlaw judicial review; andthe exclusion is a matter of political merits for Parliamentto decide (SOP).

On the other hand, Courts

should not be excluded fromreview, because:the rule of law requiresirrational/unfair/unlawfulgovernment behaviour to becontrolled by the Courts.

In practice, courts continue toreview unlawful administrativedecisions despite apparently clearprivative clauses, by reading downthe clauses:

If Parliament has conferred anexpressly limited

jurisdiction/power on a decision-maker, it intends the exercise of power only within those limits.

The Courts gives effect toParliaments will by enforcingthose limits.Even if there is no expressstatutory limit to

jurisdiction/power, Courtsimpose implied limits (eg.

procedural fairness, abuse of discretion etc), saying that theyare enforcing the implicitstatutory intent of Parliament.BUT this argument is weak theimplicit intent of Parliamentwould contradict the expressprivative clause.

There are good reasons forexcluding judicial review: If everydecision made by administrativebodies can be appealed, justice can

become lengthy and costly, and

there would be no need for theadmin bodies in the first place.

Judicial review is entrenched in theConstitution (s 75). But the HighCourt recently held that this

entrenchment did not prevent theCth from validly legislating toexclude many of the grounds for

judicial review (including PF,RC/IRC, unreasonableness) of Migration Act decisions.

At State level, judicial review isnot entrenched. So stateprivative clauses are more likelyto work better.

Current treatment of privative

clausesReview of serious jurisdictionalerrors (eg. grossly in excess of

jurisdiction) cannot be excluded.But review of less serious errors of law may be prevented by privativeclauses.

The expansion of jurisdictionalerror means fewer errors are non-

jurisdictional, and hence fewererrors are capable of being

excluded.Nevertheless courts treatment of privative clauses is inconsistent.

PrinciplesR v Hickman; ex parte Fox &Clinton : Statutory provisionsconferring a limited jurisdictionmust be read with the privativeclause.

A purported exercise of powerprotected by a privative clause,is valid provided it (a) is a bonafide attempt to exercise thepower, and (b) appears on itsface to be within power.

Darling Casino v NSW CasinoControl Authority : The Hickmanprinciple still applies at State level.But there is no constitutionalprotection of judicial review at Statelevel, so privative clauses are notas strong.

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Examples of what can/cannot beprotected by privative clauses

NAAV v Min for Immigration : Wherethere is a relevant privative clause:

Breaches of natural justice are

not reviewable;Non-performance of importantantecedent acts needed prior toa decision being made, arereviewable.

Wang (failure to give reasons asrequired by Migration Act , was sucha fundamental defect that theprivative clause will not protect it)

CROWN IMMUNITY FROMSTATUTES

The Crown is presumed (as amatter of statutory interpretation)not to be bound by statutes of general application. Thispresumption can be displaced byexpress/implied words.S 20 Acts Interpretation Act (SA):An Act passed after June 1990 will,unless the contrary intentionappears (expressly/impliedly), bindthe Crown, but not as to imposeany criminal liability on it.

It expressly retains the Bradkenprinciple.

Bropho v WA : Can inferParliaments intention that theCrown be bound, from the content& nature of the legislation.

(WA Govt was bound by Aboriginal Heritage Act tonegotiate with Aboriginals,because 93% of WA was Crownland and if the Crown was notbound, the Act would benugatory Act intended Crownto negotiate with Aboriginals)

BHP v Bradken : If a contractor has acontractual relationship with theCrown, and the Crown is not boundby a statute, that contractor is alsoimmunised (otherwise the Crownsinterests would be prejudiced).

*Qld Railways Commissioner(the Crown) contracted to buyall its steel from BHP without a

tender process restraint of trade breach of TPA.Qld Crown was not prescribedby the TPA to be bound itcould enter into contracts in

restraint of trade.If BHP were not given immunityalso, the Crowns capacity toenjoy such contracts would beprejudiced BHP also immune.

Bridgetown/Greenbushes Friends of the Forest v CALM

Dept of Conservation was notbound by Wildlife ConservationAct it could clear treeswithout concern for habitat

protective provisions of the Act. The 3 lumber companies incontract with CALM to acquiretimber and haul it away, werenot bound by the Act either.

Atyeo v Aboriginal Lands Trust (Health Act (requirements of cleanwater & human waste removal) didnot apply to Crown land)

RemediesMandamus, certiorari & prohibitionare traditionally unavailable againstthe Crown.So, if the decision-makers theCrown, seek equitable remediesrather than prerogative writs.Do not sue the Crown directly;make AG the nominal Def.

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CASES

R v Hickman; Ex parte Fox*National Security (Coal Mining

Industry Employment) Regulations(Cth):r 14(1)(a): Subject toRegulations, a Local ReferenceBoard shall have power to settledisputes {as to any local matterlikely to affect the amicablerelations of employers &employees} in the coal miningindustry.r 4: industrial dispute andlocal matter are defined inrelation to the coal miningindustry.r 17: A Local Reference Boardsdecision shall not bechallenged, appealed against,quashed or called into question,or be subject to prohibition,mandamus or injunction, in anycourt on any account whatever.

*The Board was asked todetermination a dispute in relation

to the application of an award tolorry drivers.*The Board decided (under r 14) tomake an order that F was engagedin the mining industry, and wererequired to pay their drivers theminimum wages and conditionsprescribed in the award.*F sought a writ of prohibitionagainst the Boards chairman,prohibiting further proceeding uponthe order.

Issue[Dispute and coal miningindustry are jurisdictional facts][There was a dispute]Fs lorry operations do not fallwithin the natural meaning of coalmining industry.

The privative clause must be takeninto account in ascertaining whatthe true limits of the Boardsauthority are.PrinciplesHickman principle : A privativeclause is interpreted as meaning

that no decision by the body shallbe invalidated, provided that:

(1) its decision is a bona fideattempt to exercise its power,(2) it relates to the subject

matter of the legislation; and(3) it is reasonably capable of reference to the power given tothe body.

It is impossible for legislature to:give power to any authoritywhich goes beyond the subjectmatter of the legislative powerconferred by the Constitution; orimpose limits on an authoritywhich it sets up with theintention that any excess of thatauthority means invalidity, andyet deprive the HC of authorityto restrain the invalid act of theauthority.

Where there is a privative clause, itbecomes a question of statutoryinterpretation whethertransgression of its limits (so longas done bona fide and bearing anappearance of an attempt to pursuethe power), necessarily spells

invalidity.Decision The Boards powers are concernedentirely with the settlement of disputes. The Regulations are not intended to give the Board anypower to conclusively determinethe ambit of coal mining industry,or the extent of their own

jurisdiction as governed by thatexpression.So the Boards authority (underthe Regulations) is limited to thecoal mining industry.

The Board has tried to decide thelorry dispute completely outside itsauthority writ of prohibitionissued.

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AnalysisHickman principle is primarily a ruleof construction & compromise: Itrequires inconsistent jurisdictionand privative clauses to be read

together, and gives both clausesmeaning.As a result of reading themtogether, the privative clauseexpands jurisdiction of thedecision-maker to include bonafide attempts reasonablycapable of reference to thepower relating to the subjectmatter.Only fairly major errors will beoutside the 3 provisos & so beunprotected by the privativeclause.Overall effect: Since jurisdictionis expanded, less errors of laware jurisdictional errors lessreviewable errors.

So, privative clauses do NOTexclude review; they only expand

jurisdiction.Cant exclude review, becausecant override s 75(v)

Constitution .In Hickman , the privative clause didnot expand the tribunals

jurisdiction enough to cover theactual decision (the Boardsdecision didnt fit in the 3 provisos)

invalid decision.

Darling Casino v NSW CasinoControl Authority

*Casino Control Act (NSW):s 18: The Authority is todetermine an application.s 12: The Authority must notgrant a casino licence unlesssatisfied that the applicant, andeach close associate, is asuitable person.s 13: A person is a closeassociate, if he holds anyrelevant financial interest in theapplicants casino business, andis ( in the opinion of the

Authority ) to exercise a

significant influence over thecasino business.s 155: Except as otherwiseprovided in this section, adecision of the Authority under

this Act is final and is not subjectto appeal or review. Thesection then provides for appealto the Supreme Court on aquestion of law.

*Authority held a public inquiry todetermine whether SHC was asuitable person to hold a casinolicence.*The inquiry officer concluded thatclose associates of SHC were not of good repute.*Authority determined that theseentities ceased to be closeassociates of SHC decided togrant casino licence to SHC.No evidence that the Authorityfailed to consider the question of influence in determining that theparties found not to be of goodrepute were no longer closeassociates of SHC s 13 compliedwith valid decision.

Privative clause The Hickman principle is a rule of construction. It requires aninconsistency to be resolved byreading the provisions together andgiving effect to each.Privative clauses cannot protectagainst jurisdictional errors (ie.refusal to exercise jurisdiction, orexcess of jurisdiction) otherwise s75(v) Constitution would bedefeated.But a privative clause may protectagainst other errors (withinlegislative power) by altering thesubstantive law to ensure that thedecision/conduct/failure to exercisea power is in fact valid & lawful.Provided the intention is clear, aState privative clause may precludereview for errors of any kind, solong as it satisfies the Hickmanprinciple.

No constitutional s 75(v)equivalent at State level.

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However, privative clauses areconstrued with a presumptionthat the legislature does notintend to deprive the citizen of access to the courts, other than

to the extent expressly stated ornecessarily implied. The operation of a State privativeclause is purely a matter of itsproper meaning ascertained in itslegislative context.

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