Administrative law › Module guides › Privative clauses and limitation devices

The idea

A privative clause is a statutory provision that tries to shield a decision from review. The whole topic runs off one presumption: Parliament is not taken to have ousted the supervisory jurisdiction of the courts, and clear words cannot achieve what the Constitution forbids. The six mark format wants three things, so fix the polity, construe the clause, and state why jurisdictional error survives it.

The polity decides the line of authority. A clause in Commonwealth legislation meets s 75(v) as an entrenched minimum provision of judicial review, so a decision affected by jurisdictional error is no decision under the Act and the clause is read down (Plaintiff S157/2002). A clause in State legislation meets Kirk: a State Parliament cannot strip a State Supreme Court of its supervisory jurisdiction for jurisdictional error, a defining characteristic protected through Chapter III. Dressed up devices fare no better, whether a clause shielding the material from the court (Graham) or a no invalidity clause (Futuris).

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Fix the polity. A clause in Commonwealth legislation runs the Plaintiff S157/2002 line off s 75(v); a clause in State legislation runs the Kirk line off Ch III and the entrenchment of State Supreme Courts.
2. Construe the clause. It is strictly construed and read down so that it attaches only to decisions untainted by jurisdictional error.
3. State what survives. Review for jurisdictional error survives at both polities and the clause cannot touch it.
4. State what is validly excluded. Review for non jurisdictional error of law on the face of the record is not entrenched and can be excluded, the line that earns the last mark. **Router:** polity? then Cth S157 line or State Kirk line, then jurisdictional error survives, then ask what the clause validly excludes. Keep it compact and stop.

Cases at a glance

Case	In a line
Plaintiff S157/2002 v Commonwealth	The s 474 clause was read down so that a decision affected by jurisdictional error is no decision under the Act, and s 75(v) is an entrenched minimum provision of judicial review
Kirk v Industrial Relations Commission (NSW)	A State Parliament cannot strip a State Supreme Court of its supervisory jurisdiction for jurisdictional error, a defining characteristic protected through Ch III
Graham v Minister for Immigration and Border Protection	A clause denying the court access to the material the Minister relied on was invalid, because its practical operation shielded the exercise of power from review
Commissioner of Taxation v Futuris	A no invalidity clause signalled that breach did not void the assessment, yet review for jurisdictional error still survived it
Bhardwaj (SUPP)	A decision affected by jurisdictional error is a purported decision and, in law, no decision at all. The taxonomy lives in Module 5

The rules

R122 · How is a privative or ouster clause construed against the presumption Parliament does not oust review? arrow A privative clause is strictly construed against ouster, so it is presumed that Parliament does not cut down the jurisdiction of the courts save where the legislation expressly states or necessarily implies it. Plaintiff S157/2002.

R123 · Can a Commonwealth privative clause exclude review for jurisdictional error? arrow Section 75(v) is an entrenched minimum provision of judicial review, so a Commonwealth clause cannot exclude review for jurisdictional error, and a decision affected by jurisdictional error is no decision under the Act. Plaintiff S157/2002.

R124 · When does a clause offend the entrenched jurisdiction through its practical operation? compass A clause is invalid to the extent its practical operation denies the entrenched jurisdiction by shielding the exercise of power from judicial scrutiny. Graham v MIBP.

R125 · How is a no invalidity clause analysed? arrow A no invalidity clause signals that breach of the Act does not produce invalidity, yet review for jurisdictional error survives it, and bad faith or conscious maladministration reads it down. Futuris.

R126 · Can a State Parliament strip a State Supreme Court of supervisory jurisdiction for jurisdictional error? arrow A State Parliament cannot deprive a State Supreme Court of its supervisory jurisdiction to grant relief for jurisdictional error, a defining characteristic protected by Ch III of the Constitution. Kirk v IRC (NSW).

R127 · What review can a privative clause validly exclude? arrow Review for non jurisdictional error of law on the face of the record can validly be excluded at both polities, because that jurisdiction is not constitutionally entrenched. Plaintiff S157/2002; Kirk v IRC (NSW).

R128 · Why is a jurisdictionally flawed decision outside the clause rather than the clause being struck down? arrow The court reads the clause to attach only to decisions untainted by jurisdictional error rather than invalidating it, because a jurisdictionally flawed decision is no decision under the Act; read down rather than strike down. Bhardwaj.

R129 · Which entrenchment source applies before construing the clause? arrow Fix the polity first: a clause in Commonwealth legislation runs the entrenchment off section 75(v), while a clause in State legislation runs the entrenchment off Ch III and the entrenchment of State Supreme Courts.

Common traps

The clause at face value. Reading final and conclusive as a complete bar is the error the whole topic exists to correct. The clause is strictly construed and read down, never applied literally. A decision affected by jurisdictional error falls outside it, so the applicant is untouched by the ouster.

The wrong entrenchment. Do not cite Kirk for a Commonwealth clause or S157 for a State one. Fix the polity first. The Commonwealth route is s 75(v); the State route is Ch III and the defining characteristic of a State Supreme Court. Swapping them shows the marker you missed the constitutional basis.

The no invalidity slip. A no invalidity clause is not an ouster clause (Futuris). It goes to whether breach voids the decision, not to the court's jurisdiction. Review for jurisdictional error survives it, and bad faith reads it down. Do not analyse it as if it barred the writs.

The overbuilt answer. This is a 6-mark question. Spending 20 marks of words on entrenchment theory earns nothing beyond the three moves. Construe, state the entrenchment for the right polity, say jurisdictional error survives and non jurisdictional review is excluded, then stop.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

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