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

Abstract

Populist commentators often, and senior political figures sometimes, claim that judges have no business setting aside decisions made by parliaments and governments. Because that argument is so often made, and so rarely publicly responded to, it seems worthwhile to go back to the genesis of Australian legal theory to explain the case for judicial review. I hope to be able to demonstrate, through a brief examination of our unique constitutional legacy, that Australian public lawyers need not suffer from intellectual vertigo if they are asked to explain why appointed judges, and not our democratically elected and accountable federal parliament and government, have the final word over whether laws and administrative decisions are valid. I will then turn to examine how the High Court of Australia has dealt with federal laws which, on their face, direct judges to not question the lawfulness of particular conduct of the executive and administrative tribunals. Such laws, designed to prevent judicial review, are commonly referred to as ‘privative clauses’.The discussion will finally turn to privative clauses enacted by state parliaments— and to the residual question of whether the constitutional position of state legislatures and state courts is so different as to justify a different result.