Title: Privative Clauses and the Courts: Why and how Australian courts have resisted attempts to remove the
citizen’s right to judicial review of unlawful executive action.
Author: The Honourable Duncan Kerr SC MP
I. Judicial Review and Federal Systems
Judicial review is necessarily implicit in a federation – power and duty of the supreme court of a nation to declare
infringing laws or conduct to be invalid – well known to framers of Constitution from Marshall CJ in Marbury v
Not necessary to write in express provisions to authorise the High Court – implied in s76(i) Dixon J in Jesting Pilate
– never doubted HC’s authority as final arbiter – in our system the principle of Marbury v Madison is accepted as
II. Rule of Law
Scope and character of judicial review is shaped by underlying assumptions of the constitution – primarily ‘rule of
law’. Rule was brought into Australia by British CL: s24 Australian Courts Act
Judicial Review is neither more nor less than the enforcement of the rule of law over executive actions: means by
which executive action is prevented from exceeding the powers and functions assigned to the executive by law and
the interests of the individual are protected accordingly.
III. Andrew Inglis Clark and Section 75(v) of the Constitution
S75(v) – High Court has original jurisdiction in all cases in which constitutional writs are sought against an officer
of the Commonwealth.
Moving force behind it’s inclusion was Andrew Inglis Clark: to overcome the restriction (on power of the court to
grant relief – like what happened in Marbury v Madison).
Therefore HC was invested, from outset, not only with implicit powers to adjudicate on validity of legislation, but
also with explicit and constitutionally entrenched power to issue writs to require Cth to comply with common law,
relevant legislation and the constitution.
IV. Attempts to thwart Judicial Review of Executive Action
R v Cth Court of Conciliation and Arbitration; Ex parte Whybrow: Q whether judges of Cth Court of Conciliation
and Arbitration were ‘officers of the Cth’ for puposes of s75(v); and therefore effect should give to privative clause
in that case.
HELD: ‘Officers of Cth’ wide enough to cover judges of inferior courts as well as public servants and granted
prohibition to prevent the industrial court from overstepping the law. (Didn’t necessarily need to cover
The Tramways Case [No 1]: HC unanimously affirmed its power to review executive action could not be removed
by ordinary legislation. – Became settled law –
V. A Detour to Deference – The Hickman Myth
R v Hickman; Ex parte Fox and Clinton: HC prohibition under s75(V) was available in respect of the erroneous
finding of the Local Reference Board; Ratio same as above cases;
HOWEVER - Dixon J: proposed a different approach to interpretation of privative clauses: general rule of statutory
interpretation to apply both under Cth law and unitary systems. “No decision shall be invalidated on ground that it
has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined
its act within the limits laid down by the instrument giving it authority, provided always that its decision is a bona
fide attempt to exercise its power, that it relates tot eh subject matter of the legislation, and that it is reasonably
capable of reference to the power given by the body.”
Designed to reconcile the ‘prima facie inconsistency between one statutory provision which seems to
limit the power of the decision maker and another provisions, the privative clause which seems to
contemplate that the decision shall operate free from any restriction.