Australian Administrative Law – THE LAW OF PRIVATIVE CLAUSES

Discuss and analyse the following statement:

The combined effect of Plaintiff S157 /2002 v Commonwealth (2003) 211 CLR 476 and Kirk v Industrial Relations Commission (2010) 239 CLR 531, along with the expanded modern definition of jurisdictional error in Australia, is that the ability of both Commonwealth and State and Territory legislatures to protect the decisions of any administrative tribunal from judicial review has been restricted almost to nothingness. There may sometimes be sound policy reasons for restricting judicial review, not least that a particular policy area is economically or politically sensitive and that the tribunal appointed to decide matters in that area has special expertise in that area which makes it better suited than a court to assess the nature and limits of its jurisdiction and the most appropriate procedures to govern its exercise. Appeals by refugee asylum seekers in particular are an obvious example. Significant numbers of asylum seekers launch unmeritorious judicial review applications apparently designed to delay their deportation as illegal immigrants, despite having already had the benefit of independent merits review before the Refugee Review Tribunal. This unnecessarily protracted legal process just encourages other would-be illegal immigrants to take their chances with people smugglers on highly dangerous boat voyages so they in turn can joust with the Australian legal system.

The High Court’s former approach to interpreting privative or ouster clauses in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 was greatly preferable to the new approach, in that it successfully struck a balance between the Court’s entrenched constitutional jurisdiction to review jurisdictional error and the need for a degree of deference to Parliament’s judgment in relation to sensitive policy areas whose nuances judges may not fully appreciate. Moreover, the constitutional reasoning underpinning Plaintiff S157 and Kirk is rather dubious in any event. The Court should take the opportunity of revisiting these decisions with a view to propounding a more balanced, sustainable approach to the interpretation of privative clauses.

Length: 2,500 words


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