Justifications for encroachments

18.13   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.[16]

18.14   These reasons may not, however, justify laws that limit judicial review of jurisdictional errors. Administrative decision makers, no matter how expert, should presumably be required to act within their prescribed powers.

18.15   Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[17]

18.16   Some laws that limit judicial review may be justified. The ALRC invites submissions identifying Commonwealth laws that limit judicial review without justification, and explaining why these laws are not justified.