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Precedent (Australian Lawyers Alliance) |
By Associate Professor Greg Weeks
The privative clause is dead – or so we are told. Nonetheless, it remains a topic of conversation and attracts judicial attention in both Australia and England, albeit for somewhat different reasons. The Australian approach to privative clauses – legislative provisions designed to exclude the jurisdiction of courts to engage in judicial review – is substantially coloured by the relevance attached to the concept of jurisdictional error and is therefore distinctly constitutional in its outlook.
The English courts dismissed the role of jurisdictional error long ago and, although they continue to rely on the precedent of Anisminic Ltd v Foreign Compensation Commission (Anisminic),[1] they do so while rejecting the reasoning which informs the use of that case in Australia. This article considers the approaches taken in both jurisdictions and attempts to set out the continuing relevance of the privative clause in Australia.
We have been told with some insistence that, like Monty Python’s expired parrot, privative clauses are ‘dead’[2] or otherwise ‘demised’.[3] Even if such accounts are hyperbolic, there is widespread acceptance that privative clauses are now limited in their effectiveness. More can be achieved by broad grants of legislative discretion ‘on the basis that they signal to courts that deference is called for rather than telling the same courts that they lack the authority to become involved in a matter’.[4] In other words, parliament gets more done by asking that courts ‘keep out’ than by insisting on that outcome. Notwithstanding this fact, privative clauses still attract plenty of attention – they remain notably prominent considering that legislative provisions of this sort have seemingly been buried on so many previous occasions. What follows is a guide to what we still need to know about them.
It has become normal over the last two decades for Australian lawyers to think of privative clauses as an issue with a ‘capital-C’ Constitutional solution. Plaintiff S157/2002 v Commonwealth[5] (S157) held that Commonwealth legislation could not operate directly to exclude the operation of s75(v) of the Constitution. Later cases (like Bodruddaza v Minister for Immigration and Multicultural Affairs[6] and Graham v Minister for Immigration and Border Protection[7] (Graham)) extended that point to cover legislation which sought to exclude the s75(v) jurisdiction by implication. The High Court relied directly on another provision of the Constitution in Kirk v Industrial Court (NSW)[8] (Kirk) to prevent state legislation from excluding the ‘supervisory jurisdiction’ of state Supreme Courts.
The High Court’s reasoning has at times been ‘unconvincing’[9] or ineffective, to the extent that the result of a case which has not given effect to a privative clause has sometimes barely impeded the government from doing as it pleased (for example, the Minister for Immigration cancelled the visa of the successful appellant in Graham within an hour of the High Court handing down its decision). The outcome of S157 was similar, in that the government won the case but largely forgot that result in the aftermath of the High Court successfully denying the relevant privative clause of any effect, a technique that has been seen as demonstrating a preference of interpretive avoidance over invalidation. The modern jurisprudence on privative clauses has replaced the previous orthodoxy, as set out by Dixon J in R v Hickman; ex parte Fox and Clinton[10] (Hickman). The legal merit of Hickman was uncontested, but it was generally seen either to be deeply confusing or at least ‘a riddle’,[11] as Kirby J extra-judicially described Dixon J’s judgment. Now (and to the contrary), although the decision in Kirk has been criticised for playing fast and loose with history, it has generally been the case that ‘no one will complain too much’ about the outcome reached by the High Court in that case ‘because it is a good result’, or is at least widely considered to be so.[12] In other words, we have become prepared to endure a certain amount of questionable law in order to limit the application of privative clauses in terms more easily understood and applied in judicial review matters.
Notwithstanding the significant role that the Constitution has played, the modern Australian approach to privative clauses has also remained closely tethered to the classic English case of Anisminic. In turn, Anisminic applied ‘very similar’ principles of statutory interpretation to those applied in Hickman.[13] The reasoning of the plurality judgment in S157 applied the same reasoning (without direct acknowledgement of the fact) as was applied by a bare majority in Anisminic, namely that a decision made ‘under an Act’ is not the same as a decision purportedly made under an Act,[14] the consequence being that a statutory privative clause cannot exclude judicial review on the basis of jurisdictional error.
The English courts have since eliminated the importance of this distinction, having treated all errors of law as jurisdictional since R v Lord President of the Privy Council; ex parte Page.[15] By contrast, the distinction between jurisdictional and non-jurisdictional errors of law remains canonical in Australia. Review for jurisdictional error is entrenched because it is the basis of the High Court’s original jurisdiction under s75(v) of the Constitution. Little judicial attention is paid to the English view, repeated in multiple cases, that ‘the distinction between jurisdictional and other error [is] “artificial and technical”’.[16] The treatment of a ‘nullity’ in Australia as being ‘no decision at all’[17] for constitutional reasons therefore has a legal basis that is more secure than the ‘word games’ which critics have often identified as underpinning Anisminic.
More recently, those ‘word games’ have been examined by the UK Supreme Court in R (Privacy International) v Investigatory Powers Tribunal (Privacy International).[18] In that case, a bare majority extended the reasoning that all errors of law are jurisdictional to hold that decisions of the Investigatory Powers Tribunal (IPT) are subject to judicial review. This finding was made notwithstanding the existence of a broad privative clause which purported to prevent a court from questioning the IPT’s decisions and had earlier been upheld by the Court of Appeal. Lord Carnwath said that the standard methodology for avoiding the effects of a privative clause amounted to judicial disobedience of parliament.[19] This amounts to a constitutional limit upon legislative competence, although the majority of the Supreme Court would not say so.
Lord Carnwath considered the reasoning applied in Anisminic and found it wanting in a fundamental respect:
‘[I]t is highly artificial, and somewhat insulting, to describe the closely reasoned judgment of this eminent tribunal as a “nullity”, merely because there is disagreement with one aspect of its legal assessment.’[20]
With respect, his Lordship is right if for no other reason than that a decision, whether made by a court, a tribunal or an executive decision-maker of another character, does not become a nullity merely because it is wrong. It ceases to have effect only when a court finds that it is wrong. It cannot simply be ignored by a party who is sure that they are in the right.[21] His Lordship’s reasoning is also consistent with the earlier decision of the UK Supreme Court in R (Cart) v Upper Tribunal[22] (Cart) to the effect that an unappealable decision of the Upper Tribunal was held still to be judicially reviewable.
The majority reasons in Privacy International apply the premise that a privative clause should be read subject to the ‘fundamental’ common law presumption that adjudicative bodies should be subject to the supervisory jurisdiction of the High Court. This stands in contrast to the Australian High Court’s constitutional reasoning in Kirk. Lord Carnwath linked his conclusion explicitly to the ‘principle of legality’.[23] One of the key aspects of this principle is that parliament can pass laws which infringe upon fundamental common law rights, but to be effective such laws must be expressed with close to absolute clarity. It was classically explained that parliament ‘must squarely confront what it is doing and accept the political cost’.[24] Lord Wilson, in dissent, rejected an approach based on broad rule of law principles and denied that there was any constitutional basis for asserting that every decision should be reviewable as of right. However, such a view was at odds with the majority approach that decisions should be reviewable on the basis that a more experienced or senior judge might be able to mend errors in the reasoning of a fallible junior colleague.
POTENTIAL CONFLICT BETWEEN LEGISLATURE AND JUDICIARY?
England’s highest court has progressed beyond Anisminic to reach a point where the capacity of courts to review any legal error, despite legislative provisions to the contrary, is a live issue. The potential for conflict between legislature and judiciary is self-evident. Unlike Australia, where there has been a constitutional element to cases in which privative clauses have been read down (rather than invalidated wholesale), the English debate is not anchored in the same way to a fixed legal or jurisprudential basis. The consequences of this point go beyond the majority and dissenting views in Privacy International and beg the question whether legislative provisions enacted by a democratically elected parliament can be so easily excluded by courts in the absence of a written constitutional provision.
Australian courts and parliaments at least have a clearer understanding of their respective positions in regard to attempts to exclude judicial review completely. This is not due entirely to the constitutional influence in modern cases involving privative clauses; we are told that it is a point of virtually constitutional status in Australia that ‘the duty of superior courts of general jurisdiction [is] to ensure that public power is exercised according to law’.[25] That duty is balanced against the reluctance of those courts to stray beyond their remit and into the role performed by the legislature. The oft-cited dictum of Brennan J in Attorney-General (NSW) v Quin[26] on this point has almost achieved quasi-constitutional status in setting out the limits of the powers of courts exercising judicial review. Australian courts are loath to exceed their jurisdiction or to intrude upon that of another branch of government. This point is most frequently observed in the historical reluctance of courts to apply the Wednesbury unreasonableness ground of review, which is premised on a finding that the challenged decision was so unreasonable that it amounts to a jurisdictional error.[27] The constitutional justification for Australian courts’ deferential approach more broadly stands in contrast to the reliance of English courts on using common law doctrine to deal themselves in to making determinations of the validity of privative clauses.
It is for this reason that the protection of Australian legislation from judicial review is now conducted on a different basis. Where legislation once addressed courts simply in terms of ‘thou shalt not’, it now instead specifies that legislative power is to be exercised by specified people (frequently as few as one, usually being the minister) and that the discretion is to be exercised either consequent on the decision-maker’s ‘satisfaction’ as to a certain point and/or in ‘the national interest’. Federal legislation is full of provisions expressed in this way; for example, dozens drafted in such terms can be found in the Migration Act 1958 (Cth) alone. The High Court has signalled that the state of ‘satisfaction’ to which they refer is a special kind of jurisdictional fact which is able to be challenged only on the ground of unreasonableness,[28] which remains a forbidding standard notwithstanding the plurality reasons in Minister for Immigration and Citizenship v Li.[29] There is less specific law about the meaning of ‘the national interest’, but it seems apparent that such a concept is being treated as an example par excellence of something that is to be decided by an elected politician rather than a judge. Courts are reluctant to impose their views as to what the legislatively expressed concept of the national interest might comprise – at least where a contrary view has been expressed by a political operative – and this interpretive approach by Australian courts has established enormous power in such provisions as alternatives to privative clauses. They indicate a level of restraint that, for good or ill, English courts show no preference to emulate.
We have been told that the privative clause is dead, regardless of whether that conclusion is confirmed by a post mortem. However, there can be no doubt that the last 20 years of Australian jurisprudence has shown that the allegedly ‘dead man’ is at least a ‘straw man’. Privative clauses at Commonwealth level are rendered useless where they purport to exclude judicial review of jurisdictional errors (but might remain nominally ‘effective’ otherwise). State privative clauses cannot exclude the supervisory jurisdiction – centred on review for jurisdictional error – of state Supreme Courts. Cases in which the legislation under examination has been suspected of including a privative (or similar) clause have sometimes held that it does not have that character at all. For example, the High Court in Commissioner of Taxation v Futuris Corporation Ltd[30] held that the relevant tax legislation was acceptable since it offered many opportunities outside of judicial review for taxpayers to challenge the decisions affecting them. In Seiffert v The Prisoners Review Board,[31] the WA Court of Appeal held that the provision in question was not a privative clause but a provision which merely created or defined the scope of the duties or powers conferred on the respondent Board when exercising its legislative powers. More than ever, attempts to exclude judicial review must be dealt with as problems of statutory interpretation; they are responding less and less to the broad labels of yesteryear.
However, cases as recent as Graham have indicated that the High Court has its own sense of when an attempt to exclude judicial review steps over the line which indicates what is reasonable for courts and legislatures to do. Graham was in many ways less than convincingly decided on its legal merits, based as they were on the possibility that a person in the position of the plaintiffs might be denied the chance to make an adequate case (specifically on the unreasonableness ground of review) if certain documentary material were withheld from them and the legislation prevented the court from drawing inferences adverse to the minister.[32] Justice Edelman seemed to suggest in his dissenting judgment that this was a narrow basis upon which to have interpreted the legislation.[33] The majority judgment, on the other hand, expressed the fundamental basis of its concern by noting that the objectionable nature of the legislation was solely that it intended to exclude the High Court’s jurisdiction.[34] In other words, the reality or otherwise of the exclusion of the plaintiff’s capacity to argue that the minister’s decision was Wednesbury unreasonable was, as an issue for the plaintiffs, neither here nor there compared to the High Court’s ongoing capacity to perform review for breach of any ground of judicial review resulting in jurisdictional error. Since S157, the High Court has intervened rarely where the presence of a privative clause has been alleged, but it has clearly drawn a line in the sand and knows when to prevent the executive from crossing it under the purported protection of the legislature.
Whether the privative clause lives or dies (or has already done so), legislative attempts to exclude certain decisions from the scrutiny of courts exercising judicial review are an issue about which there is much left to say. The limits set by courts on this front continue to be challenged by thoughtful and incisive legislative drafting. We can be sure that, as an issue, such challenges are very much alive.
Greg Weeks is an Associate Professor and Deputy Head of the ANU College of Law. EMAIL greg.weeks@anu.edu.au.
My thanks to Mark Aronson for his comments on this article in draft.
[1] [1968] UKHL 6; [1969] 2 AC 147.
[2] M Aronson, ‘Between form and substance: Minimising judicial scrutiny of executive action', Federal Law Review, Vol. 45, 2017, 519.
[3] L Burton Crawford, The rule of law and the Australian Constitution, Federation Press, 2017, 107 (see the section called ‘The demise of the privative clause’).
[4] D Dalla-Pozza and G Weeks, ‘A statutory shield for the executive: To what extent does legislation help administrative action evade judicial scrutiny?' in J Boughey and L Burton Crawford (eds), Interpreting executive power, Federation Press, 2019, 184 and 188.
[5] [2003] HCA 2; (2003) 211 CLR 476 (S157).
[6] [2007] HCA 14; (2007) 228 CLR 651.
[7] [2017] HCA 33; (2017) 263 CLR 1 (Graham).
[8] (2010) 239 CLR 531.
[9] M Aronson, M Groves and G Weeks, Judicial review of administrative action and government liability, 6th ed, Thomson Reuters, 2017, [18.30].
[10] [1945] HCA 53; (1945) 70 CLR 598.
[11] M Kirby, ‘Professor Mark Aronson: Doyen of Australian administrative law’, AIAL Forum, Vol. 50, 2006, 4 at 5.
[12] Aronson, Groves and Weeks, above note 9, [18.30]
[13] Burton Crawford, above note 3, 108.
[14] S157, above note 5, 505–6 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[15] [1992] UKHL 12; [1993] AC 682.
[16] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2019] 2 WLR 1219, 1251 [84] per Lord Carnwath (Privacy International); see also R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663, 703 [111] per Lord Dyson.
[17] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 614–5 [51] per Gaudron and Gummow JJ.
[18] Privacy International, above note 16.
[19] Ibid, 1258 [109] per Lord Carnwath; 1274–5 [165] per Lord Lloyd-Jones, cf 1302–4 [219]–[229] per Lord Wilson.
[20] Ibid, 1250–1 [82].
[21] Compare Dunlop v Woollahra Municipal Council [1982] AC 158, 172 per Lord Diplock.
[22] [2011] UKSC 28; [2012] 1 AC 663.
[23] Privacy International, above note 16, 1256 [99]–[101].
[24] R v Secretary of State for the Home Department, Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 131 per Lord Hoffmann.
[25] Aronson, Groves and Weeks, above note 9, [18.10].
[26] (1990) 170 CLR 1, 35–6.
[27] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
[28] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
[29] [2012] HCA 61; (2013) 249 CLR 332.
[32] Graham, above note 7, 29.
[33] Ibid, 37ff.
[34] Ibid, 25.
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