18.82 Stakeholders expressed concerns about current restrictions on access to the courts. They emphasised that restrictions should only be imposed in exceptional circumstances.
18.83 Limits on judicial review have been justified on a number of grounds, including the need for certainty and efficiency. Professor Simon Young has written that privative clauses
have been employed by parliaments over many years for many reasons—a desire for finality or certainty, a concern about sensitivity or controversy, a wish to avoid delay and expense, or a perception that a matter requires specialist expertise and/or awareness of executive context.
18.84 The ARC stated that limits on judicial review are justified where judicial review:
would pose a risk to personal safety, such as interim orders designed to protect against security threats, or programs designed to protect witnesses;
relates to decisions about representatives of the diplomatic or consular community;
relates to decisions about the management of the national economy, which do not directly affect individual interests, and are most appropriately resolved in the High Court (for example, decisions of the Treasurer to make payments from consolidated revenue);
is strongly connected with constitutional considerations;
relates to the deployment or discipline of defence force members;
relates to national security decisions, particularly where sensitive information is involved, which may be exposed as a result of increased litigation.
18.85 The Refugee Advice and Casework Service submitted that restrictions on access to judicial review should require ‘a heavy burden of proof to justify encroachment upon a principle so central to the rule of law’. PIAC submitted that any limits on judicial review should be ‘strict, limited and exceptional, closely tied to legitimate purpose and justifiable on public interest grounds’. The Human Rights Law Centre submitted that where ‘powers are invasive or infringe upon rights and freedoms, there should be a proportionate availability of judicial review’.
Simon Young, Privative Clauses: Politics, Legality and the Constitutional Dimension, in Groves, above n 84, 277.
Administrative Review Council, ‘Federal Judicial Review in Australia’, above n 30, [5.110], [5.118].
Refugee Advice and Casework Service, Submission 30.
Public Interest Advocacy Centre, Submission 55.
Human Rights Law Centre, Submission 39.