Protections from statutory encroachment

Australian Constitution

15.16  The Constitution has an ‘entrenched minimum provision of judicial review’,[28] which cannot be removed by statute, even where it may purport to do so. Section 75(v) of the Constitution provides that the High Court shall have original jurisdiction in all matters ‘in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. Gleeson CJ said that this provision ‘secures a basic element of the rule of law’:

The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.[29]

15.17  The High Court defined its entrenched minimum provision of judicial review in the following terms:

First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer a non-judicial body the power to conclusively determine the limits of its own jurisdiction.[30]

15.18  What constitutes jurisdictional error is uncertain. It depends on the statutory context.[31] Drawing from the leading cases, Professors Mark Aronson and Matthew Groves list some examples of instances of jurisdictional error:

  • a mistaken assertion or denial of the existence of jurisdiction;

  • a misapprehension or disregard of the nature or limits of the functions and powers of a decision maker;

  • entertaining issues or making the types of decisions or orders which are forbidden under any circumstances (for example, a civil court trying a criminal charge);

  • mistakes as to the existence of a jurisdictional fact or other requirement—that is, the relevant Act treats the fact or requirement as a condition precedent to the validity of the challenged decision.

  • disregarding relevant considerations;

  • taking into account irrelevant considerations;

  • some, but not all errors of law;

  • acting in bad faith;

  • acting extremely unreasonably.[32]

15.19  Helen Robertson provides a useful survey of Federal Court cases that identified additional examples of jurisdictional error. These include a failure to:

  • ask the correct question;

  • consider all elements of a claim;

  • properly undertake the jurisdictional task of review;

  • correctly address the prescribed criteria for a decision;

  • afford procedural fairness.[33]

15.20  In Plaintiff S157, the High Court made it clear that where there is a jurisdictional error, a privative clause is ineffective to oust judicial review.In light of this constitutional jurisdiction, courts may construe privative clauses much more narrowly than the text of the provision suggests, to the point that such clauses may sometimes be largely or even entirely deprived of effect.[34] A number of commentators have therefore expressed the view that such clauses are of little value. Professor Mary Crock and Edward Santow state that jurisdictional error is ‘fatal to the effectiveness of most privative clauses’.[35] Aronson and Groves comment that courts ‘have long responded to legislative attempts to limit or completely exclude the scope of judicial review of administrative action with a mixture of incredulity, hostility, and thinly disguised disobedience’.[36]

15.21  The courts have justified such interpretive approaches by reference to the assumption that legislation should, as far as reasonably possible, be interpreted in a way that favours constitutional validity.[37]

15.22  Additionally, a separate constitutional mechanism which protects access to the courts is s 75(iii) of the Constitution. It vests original jurisdiction in the High Court in all matters ‘in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’.

Principle of legality

15.23  The principle of legality provides some protection to judicial review.[38] When interpreting a statute, courts will presume that Parliament did not intend to restrict access to the courts, unless this intention was made unambiguously clear.[39] For example, in Magrath v Goldsborough Mort & Co Ltd, Dixon J said:

The general rule is that statutes are not to be interpreted as depriving superior Courts of power to prevent an unauthorized assumption of jurisdiction unless an intention to do so appears clearly and unmistakably.[40]

15.24  The usual mechanism for restricting access to the courts is a ‘privative clause’—‘essentially a legislative attempt to limit or exclude judicial intervention in a certain field’.[41] Some examples include clauses that make orders, awards or other determinations final, clauses forbidding courts from granting remedies traditionally used in judicial review, ‘no invalidity’ or ‘conclusive evidence’ provisions, and clauses prescribing time limits.[42] Another, blunter technique is stipulates that anything a body does shall have effect as if enacted by Parliament, and vests exclusive jurisdiction in that body. However, privative clauses are read narrowly by the courts.

15.25  In Public Service Association (SA) v Federated Clerks’ Union, Dawson and Gaudron JJ said:

Privative clauses … are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied.[43]

15.26  Dawson and Gaudron JJ went on to say:

Thus, a clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction.[44]

15.27  Using this approach, the courts have held that a privative clause has no impact on remedies not named in that clause.[45] This includes constructions that, for instance, conclusions that protecting a tribunal’s orders or directions did not protect a tribunal’s rejection of a submission that there was insufficient evidence of a certain fact.[46] Similarly, the courts have held that protecting a decision did not extend to protecting unstated assumptions.[47]

15.28  A ‘no appeal’ clause modifies or repeals an earlier statutory grant of appeal rights, and has no effect on the availability of judicial review.[48] For example, in Hockey v Yelland, the High Court held that a Queensland statute that provided that determinations by a medical board ‘shall be final and conclusive’ and the claimant ‘shall have no right to have any of those matters heard and determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any Court or judicial tribunal whatsoever’[49] did not ‘oust the jurisdiction of the Supreme Court to issue writs of certiorari’. Gibbs CJ said:

It is a well recognized principle that the subject’s right of recourse to the courts is not to be taken away except by clear words … The provision that the board’s determination shall be final and conclusive is not enough to exclude certiorari … The words of the further provision … are in my opinion quite inapt to take away from the Court its power to issue certiorari for error of law on the face of the record.[50]

15.29  Provisions which prescribe time limits for bringing an action, or include alternative processes for bringing an appeal or challenging a decision have generally been accepted by courts, as they still provide for judicial oversight.[51] In Commissioner of Taxation v Futuris Corporation Ltd, the High Court held that conclusive evidence and no invalidity clauses do not constitute privative clauses where full appeal rights are available.[52]

International law

15.30  Article 14.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that in the determination of a person’s rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’.[53] The phrase ‘suit at law’ has been taken to include some administrative law matters, and this right extends to all individuals, including non-citizens.[54]

Bills of rights

15.31  In some countries, bills of rights or human rights statutes provide some protection of procedural fairness.

15.32  In the United States, persons enjoy a constitutional guarantee of due process in the administration of the law.[55] Any person who alleges a deprivation of due process or equal protection, may bring an application for review of the constitutionality of the action (or failure to act). In New Zealand, art 27(2) of the New Zealand Bill of Rights Act 1990 (NZ) grants a right to judicial review to a person affected by a decision by a public authority or tribunal.