Judicial Review’s Exclusion by Privative Clauses: Dead or Just Resting?

6 Pages Posted: 25 Feb 2020 Last revised: 15 Nov 2022

Date Written: February 18, 2020

Abstract

The privative clause is dead – or so we are told. Nonetheless, it remains a topic of conversation and judicial attention in both Australia and England, albeit for somewhat different reasons. The Australian approach to privative clauses is substantially coloured by the relevance attached to the concept of jurisdictional error and is therefore distinctly constitutional in its outlook. The English courts have long ago dismissed the role of jurisdictional error and, although they continue to rely on the precedent of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 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.

Keywords: administrative law, constitution, anisminic, S157, legislation

JEL Classification: K19, K30, K41

Suggested Citation

Weeks, Greg, Judicial Review’s Exclusion by Privative Clauses: Dead or Just Resting? (February 18, 2020). ANU College of Law Research Paper [2020] 158 Precedent 16, Available at SSRN: https://ssrn.com/abstract=3539901 or http://dx.doi.org/10.2139/ssrn.3539901

Greg Weeks (Contact Author)

ANU Law School ( email )

ANU College of Law
5 Fellows Road
Canberra, Australian Capital Territory 2600
Australia
6125 5420 (Phone)

HOME PAGE: http://law.anu.edu.au/people/greg-weeks

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