Clauses of the following varieties are generally regarded as privative clauses:

 

1.
Clauses which seek to make
orders, awards or other determinations final

2.
Clauses forbidding the courts
from granting the remedies traditionally used by them for
judicial review, such as certioari, prohibition or mandamus

 

Section
150 of the Workplace Relations Act
1996 is
illustrative of both these techniques. It reads as follows:

 

(1)
Subject to this Act, an award (including an award made on appeal):

(a)
is final and conclusive;

(b)
shall not be challenged, appealed against, reviewed, quashed or called in
question in any court; and

(c)
is not subject to prohibition, mandamus or injunction in any court on any
account.

(2)
An award is not invalid because it was made by the Commission constituted
otherwise than as provided by this Act.

 

Sub-section
474(1) of the Migration Act is couched in similar terms.[1]

 

Section
177 of the Income Tax Assessment Act
1936 also seeks to
exclude judicial review by making the decision final and by excluding judicial
challenge. It reads:

 

The production of a notice of assessment, or of a document
under the hand of the Commissioner, a second Commissioner, or a Deputy
Commissioner, purporting to be a copy of a notice of assessment, shall be
conclusive evidence of the due making of the assessment and, except in
proceedings under Part IVC of the Taxation Administration Act 1953 on a review
or appeal relating to the assessment, that the amount and all the particulars
of the assessment are correct’.

 

3.
Clauses expressly stating that
judicial review lies only on stipulated grounds

 

Section 5 of the AD(JR) Act does this in describing the
grounds on which review shall be permissible under that Act. Additionally,
review is limited to administrative decisions under an enactment and does not
extend to decisions by the Governor-General.[2]

 

Another example is provided by former section 166LA of the
Migration Act which defined what were judicially reviewable decisions for the purposes
of that Act. Application for review could not be brought on the grounds of
unreasonableness, failure to take into account relevant or taking into account
irrelevant considerations, bad faith or breach of natural justice and actual
bias replaced reasonable apprehension of bias as a ground of review. The ‘no
evidence’ rule was restricted and the error of law and improper exercise of
power grounds could also be restricted.

 

Subsection
500A(ii) of the Migration Act, relating to the refusal or cancellation of
temporary safe haven visas, provides that:

 

The rules of natural justice, and the code of procedure set
out in subdivision AB of Division 3 of Part 2 do not apply to a decision under
subsection (1) or (3),

 

while subsection 36(B)((5) of the Native Title Act 1993
provides that:

If the relevant Minister complies with subsection (1) there
is no requirement for any person to be given any further hearing before the
relevant Minister makes the determination.

 

4.
Clauses prescribing time limits
beyond which there can be no judicial review[3]

 

For
instance, subsection 11(3) of the AD(JR) Act imposes a 28 day time limit on
lodgement of applications for review with the Federal Court or the Federal
Magistrates Court.

 

Section
486A of the Migration Act provides that:

 

(1)    an application
to the High Court for a writ of mandamus, prohibition or certiorari, or an
injunction or a declaration in respect of a privative clause decision must be
made to the High Court within 35 days of the actual (as opposed to deemed) notification
of the decision.

 

(2)    The High Court
must not make an order allowing or which has the effect of allowing, an
applicant to make an application mentioned in subsection (1) outside that 35
day period.

Other ways in which judicial review may be limited

 

Other ways in which judicial review may be limited by way of
legislative provision include:

5.      Clauses
giving a decision-making body very wide jurisdiction

 

For
instance, it can be required as a pre-condition to the valid exercise of
decision-making power, that a decision-maker formulate a view as to the
existence or otherwise of a certain state of facts. The more subjective the
power, the less likely it is that its limits will be breached.[4]
Grounds such as unreasonableness, no evidence and relevant and irrelevant
considerations remain available only in theory in such circumstances while
grounds such as fraud and improper purposes, while subsisting, are very
difficult to prove.

 

An example of such a provision is sub-section 14
Financial Sector (Shareholdings) Act 1998 which provides that:

If the applicant
satisfies the Treasurer that it is in the national interest to approve the
applicant holding a stake in the company of more than 15%, the Treasurer may
grant the application.

Although
judicial review of such decisions is not precluded, it is severely limited by
both the subjectivity of the determination of what constitutes ‘national
interest’ and by possible concern as to the appropriateness of courts embarking
upon a consideration of such a policy-laden and subjective issue.

 

Another example of such a provision is sub-section 23(1) of
the Australian Heritage Commission Act 1975:

Subject to this section, where the Commission considers
that a place that is not in the Register should be recorded as part of the
national estate it shall enter the place in the Register.

 

Relevantly
also, this Act places decision-making power essentially in the hands of an
expert body, sub-section 12(4) of the Act providing that

 

The Commissioners, other than the representative Commissioners,
shall be persons having qualifications relevant to, or special experience
or interest in, a field related to the functions of the Commission. 

 

6.
Clauses providing protection for
a body’s decisions or purported decisions, or providing that anything that the
body does shall have effect as if enacted by parliament

 

An
example of the former is provided by section 175 of the Income Tax Assessment Act 1936 which states that:

The validity of any assessment shall not be affected by
reason that any of the provisions of this Act have not been complied with.

Similar
provision is made by section 87 of the Reserve Bank Act 1959:

 

The validity of an act or transaction of the Bank shall not
be called in question in any legal proceedings on the ground that any provision
of this Act has not been complied with.

 

Couched in
slightly different terminology, sub-section 89(2) of the Export Finance and
Insurance Corporation Act 1991 provides that:

The effect of a transaction entered into by EFIC [the
Export Finance and Insurance Corporation] may not be called into question
merely because:

(a) a provision of this Act has been contravened in
relation to the transaction; or

(b) the transaction is not within the limits of EFIC’s
powers.

Other examples
of such provisions include section 16 of the National Crime Authority Act
1984 and section 66 of the Fisheries Act 1991.

 

There are also
many clauses of this kind in relation to appointments: for instance, section 10
of the Defence Force Retirement and Death Benefits Act 1973[5]
provides that:

The validity of the appointment…shall not be called into
question by reason only of a defect or irregularity in connection with the
nomination of the member or deputy member.

An example of a
clause providing that anything that the body does shall have effect as if
enacted by Parliament is section 7 of the Papua New Guinea Loans
Guarantee Act 1974 which provides, that:

A provision of a guarantee or of an agreement to which a
guarantee relates…has effect as if enacted by this Act and operates
notwithstanding anything in any law of Australia or of a State or Territory
whether passed or made before the commencement of this Act.

7.
By including evidentiary clauses
deeming all things done and that a certain result has been achieved on production
of a certificate, or other formal proof of proper form

 

Sub-section
177(1) of the Income Tax Assessment Act is illustrative, providing that:

The production of a notice of assessment, or of a document
under the hand of the Commissioner, a Second Commissioner, or a Deputy
Commissioner, purporting to be a copy of a notice of assessment, shall be
conclusive evidence of the due making of the assessment and, except in
proceedings under Part IVC of the Taxation Administration Act 1953 on a review
or appeal relating to the assessment, that the amount and all the particulars
of the assessment are correct.

 

A further
example is provided by section 22 of the Product Grants and Benefits
Administration Act 2000:

 

The production of a notice of assessment under this Part is
conclusive evidence:

(a)
that the assessment was properly made; and

(b)
except in proceedings under Part IV of the Taxation Administration Act 1953
on a review or appeal relating to the assessment – that the amounts and
particulars in the assessment are correct.

 

Similarly,
subsection 33A(2) of the Freedom of
Information Act 1982
provides that:

(2) Where a Minister is satisfied that a document:

(a)
is an exempt document for a reason referred to in subsection (1)[6];
and

(b) is not a document containing matter the
disclosure of which under this Act would be, on balance, in the public
interest;

the Minister may sign a certificate to that effect,
specifying that reason.

while subsection 36(3)
provides that:

Where a Minister is satisfied, in relation to a document to
which paragraph (1)(a) applies, that the disclosure of the document would be
contrary to the public interest, he or she may sign a certificate to that
effect (specifying the ground of public interest in relation to which the
certificate is given) and, subject to the operation of Part VI, such a
certificate, so long as it remains in force, establishes conclusively that the
disclosure of that document would be contrary to the public interest.

 

There
are many other examples of such clauses in Commonwealth legislation.

 

8.
By way of a self-executing
decision, that is, a decision where the ‘decision’ follows automatically

 

Such
devices are most commonly used in relation to the continuation or suspension of
fiscal entitlements.[7]

 

Subsection
57(2) of the Safety, Rehabilitation
and Compensation Act 1988 is illustrative:

 

Where an employee refuses or fails,
without reasonable excuse, to undergo an examination…the employer’s rights to
compensation under this Act…are suspended until the examination takes place.

 

Another example of a
self-executing or automatic decision is subsection 1282(6) of the Corporations
Act 2001 which provides that where:

·
the ASC granted an application by
a person for registration as a liquidator; and

·
the person complied with relevant
legislative requirements,

 

then the ASIC must issue the person with a certificate of
registration.[8]

See also sections 189 and 190 of the Migration Act 1985.
Section 189 provides that:

(1) If an officer knows or reasonably suspects that a
person in the migration zone (other than an excised offshore place) is an
unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia
but outside the migration zone:

(a)
is seeking to enter the migration zone (other than an excised offshore place);
and

(b)
would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person.

(3) If an officer knows or reasonably suspects that a
person in an excised offshore place is an unlawful non-citizen, the officer may
detain the person.

(4) If an officer reasonably suspects that a person in Australia
but outside the migration zone:

(a)
is seeking to enter an excised offshore place; and

(b)
would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

Section 190 provides an objective a range of objective tests
for section 189:

For the purposes of section 189, an officer suspects on
reasonable grounds that a person in Australia is an unlawful non-citizen if,
but not only if, the officer knows, or suspects on reasonable grounds, that the
person:

(a)
was required to comply with section 166; and

(b)
did one or more of the following:

(i)
bypassed, attempted to bypass, or appeared to attempt to bypass, immigration
clearance;

(ii)
went to a clearance officer but was not able to show, or otherwise did not
show, evidence required by section 166 to be shown;

(iii)
if a non-citizen, went to a clearance officer but was not able to give, or
otherwise did not give, information required by section 166 to be given.

 

There are many other examples of such clauses.[9]

 

9.      By
amending the range and scope of judicial review

By virtue of the Migration Legislation Amendment
(Procedural Fairness) Act 2002, a number of provisions of which the
following is an example, were included in the Migration Act:

51A Exhaustive statement of natural justice hearing rule

(1)

This Subdivision is taken to be an exhaustive
statement of the requirements of the natural justice hearing rule in relation
to the matters it deals with.

(2)

Sections 494A to 494D,
in so far as they relate to this Subdivision, are taken to be an exhaustive
statement of the requirements of the natural justice hear5ing rule in relation
to the matters they deal with.