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.
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’.
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.
Simon Young, Privative Clauses: Politics, Legality and the Constitutional Dimension, in Groves, above n 6, 277.
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 1. See also, Charter of Human Rights and Responsibilities 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Bill of Rights Act 1990 (NZ) s 5.