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.
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.
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
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 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. 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 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); 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.
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.
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. 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
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.
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.
 Other examples of such clauses are to be found, for example, in section 41 of the Defence (Re-Establishment) Act 1965; section 7 of the Independent Schools (Loan Guarantee) Act 1967 and section 48 of the Commonwealth Electoral Act 1918.
 In Report No 32, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, 1989, the Council recommended the extension of the Act to the Governor-General, recommendation 2.
 Provided they are reasonable, such limits have been ruled valid by the courts. See for instance Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695 and Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468.
 It has been held that, in the exercise of such discretion inclusion of qualifying words such as ‘reasonable’ effectively limit the scope of the discretion and provide an opening for judicial review. See Liversidge v Anderson  AC 206.
 Other examples of this type of exclusion appear, for example, in section 14 of the National Museum of Australia Act 1980; section 11 of the Australian War Memorial Act 1980; section 19 of the Constitutional Convention (Election) Act 1997 and section 120 Disability Discrimination Act 1992.
 That is, it:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
 The effect of such clauses can be to exclude judicial review by circumventing the need for a decision of an administrative character. In the case of Buck v Comcare (1996) 137 ALR 335 in considering this provision, Justice Finn of the Federal Court held that it did not authorise or require a decision of an administrative character to be taken. Suspension arose when the circumstances set out in the subsection occurred and by force of the subsection. Consequently, the court did not have jurisdiction under the AD(JR) Act. However, case-law in this area is not consistent. The finding in Buck’s case was doubted by Tamberlin J in Sash Trajkovski v Telstra Corporation (1998) 153 ALR 248, 257 where it was concluded that ‘it was essential that the Administrative Appeals Tribunal come to a conclusion as to the existence and limits of its jurisdiction’.
 Sub-section 1280(5) makes similar provision with respect to auditors.
 Other examples include section 95H (automatic grant of free time to certain parties) and 95L (grant of free time on applications in relation to the Senate) of the Broadcasting Act 1942, and sections 65 and 75 of the Development Allowance Authority Act 1992, relating to the granting of pre-qualifying certificates upon the application for transfer of benefits of a certificate and section 30D of the Veterans’ Entitlements Act 1986.