LAWS50032 · Administrative Law
Privative Clauses and Delegated Legislation
A privative or ouster clause tries to bar the courts' supervisory jurisdiction — but it cannot protect jurisdictional error. At Commonwealth level, s 75(v) of the Constitution is entrenched, so a clause is read down: a decision affected by jurisdictional error is not a 'decision ... made under the Act' and falls outside the clause (Plaintiff S157/2002). At State level, Kirk entrenches the Supreme Court's power to review for jurisdictional error (via s 73 of the Constitution), so a State ouster clause cannot remove it either. The same logic answers the modern variants — time limits and non-disclosure clauses (Graham). This is the classic Part-A 'Question 2' add-on (about 6 marks): 'how does your answer change if a privative clause were inserted?' — and the answer is almost always the same: the clause is read down, it does not protect a decision affected by jurisdictional error, so run the ordinary JE analysis. The chapter also covers judicial review of delegated legislation: subordinate law is reviewed for validity (within the enabling power, proper purpose) under s 39B of the Judiciary Act, not the ADJR Act (Vanstone v Clark; Toohey).
What this chapter covers
- 01Privative / ouster clauses and limitation devices
- 02Plaintiff S157/2002: read down — no JE is protected; s 75(v) entrenched
- 03Kirk: State entrenchment of JE review (via s 73)
- 04Time limits and non-disclosure clauses (Graham)
- 05The Part-A 'Question 2' add-on (≈6 marks)
- 06Judicial review of delegated legislation: validity under s 39B, not ADJR (Vanstone; Toohey)
Worked example: the privative-clause add-on
- +1Identify the clause: a 'final and conclusive / not subject to review' clause is a privative (ouster) clause attempting to bar the court's supervisory jurisdiction.
- +1Read it down: the clause cannot oust review for jurisdictional error — a JE-affected decision is not a 'decision ... made under the Act', so it falls outside the clause (S157 for Cth; Kirk for State).
- +1Why it cannot work: s 75(v) is constitutionally entrenched at Commonwealth level, and the State Supreme Court's JE review is entrenched by Kirk via s 73 — Parliament cannot remove either.
- +1Conclude: the clause does not change the result — run the ordinary jurisdictional-error analysis; the decision remains reviewable and liable to be quashed.
Key terms
- Privative (ouster) clause
- A statutory clause — 'final and conclusive', 'not subject to review', no-certiorari, and similar — that purports to remove or limit the courts' supervisory jurisdiction. It is read down and cannot protect a decision affected by jurisdictional error.
- Plaintiff S157/2002 v Commonwealth
- The leading Commonwealth authority: a privative clause cannot oust review for jurisdictional error, because a JE-affected decision is not a 'decision made under the Act' and so falls outside the clause; s 75(v) is the entrenched minimum provision of judicial review.
- Kirk v Industrial Relations Commission (NSW)
- Extends S157 to the States: a State privative clause cannot remove the Supreme Court's power to review for jurisdictional error — the 'Kirk minimum', entrenched via s 73 of the Constitution.
- Limitation devices
- Modern alternatives to a bare ouster clause — short time limits, non-disclosure clauses and the like — which are construed against ousting JE review (Graham). They narrow, but cannot eliminate, supervisory jurisdiction.
- Delegated legislation review
- Judicial review of subordinate legislation for validity — whether it is within the enabling power and made for a proper purpose — brought under s 39B of the Judiciary Act, not the ADJR Act (Vanstone v Clark; Toohey).
Privative Clauses and Delegated Legislation FAQ
Can a privative clause stop judicial review?
Not for jurisdictional error. The clause is read down: a JE-affected decision is not a 'decision made under the Act', so it falls outside the clause (S157 at Commonwealth level; Kirk for the States). Because s 75(v) and the State Supreme Courts' JE review are entrenched, Parliament cannot remove review for jurisdictional error.
What is the 'Question 2' privative-clause add-on?
A classic Part-A twist worth about 6 marks: after you have run the grounds, the examiner asks how your answer changes if a privative clause were inserted. The disciplined answer is short and almost always the same — the clause is read down (S157/Kirk), it does not protect jurisdictional error, so run the ordinary JE analysis.
How is delegated legislation reviewed?
For validity, not under the ADJR Act but under s 39B of the Judiciary Act: is the subordinate instrument within the enabling power, and was it made for a proper purpose (Vanstone v Clark; Toohey)? An instrument outside the enabling power or made for an improper purpose is ultra vires and invalid.
Exam move
Memorise the privative-clause answer as a near-template, because it recurs as the Part-A 'Question 2' add-on. The move is: identify the ouster clause → read it down (it cannot protect jurisdictional error) → name the entrenchment (s 75(v)/S157 for Cth; Kirk/s 73 for State) → return to the ordinary JE analysis. Keep Graham for limitation-device variants. Separately, know the delegated-legislation point: subordinate law is reviewed for validity under s 39B (not ADJR) for ultra vires and improper purpose (Vanstone; Toohey). Do not let the clause pull you off the grounds — it rarely changes the result.
