The underlying constitutional framework
The uncertain effect of privative clauses
General principles relating to the legislative removal of rights
Removal of rights and judicial review
The need for clarity and specificity
The need for clarity
The need for specificity
7.1 Much of this discussion paper has been devoted to examining the circumstances, if any, in which limitations might appropriately be imposed on the scope of judicial review.
7.2 The purpose of this final Part is to consider the way in which any limitations on judicial review might appropriately be imposed: the focus has shifted from ‘when’ to ‘how’.
7.3 The constitutional doctrines of the rule of law and the separation of powers to which reference has been made in Part III find particular expression in section 75(v) of the Constitution. That section confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
7.4 Those doctrines and section 75(v) in particular place a significant constraint on the capacity of parliament to limit the scope of judicial review. As Dixon J pointed out in R v Hickman; Ex parte Fox and Clinton:
It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the
legislative power conferred by the Constitution. … It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of authority means invalidity, and yet, at the same time, to deprive [the High Court} of authority to restrain the invalid action of the court or body by prohibition.
7.5 The point was reiterated in Plaintiff S157/2002 v Commonwealth of Australia where five members of the High Court stated:
The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action.
7.6 Nevertheless, subject to the overriding requirement that the subject matter of the law lie within Commonwealth legislative power, it appears to remain open to parliament so to define the powers of a decision-maker as to exclude at least most of the traditional grounds of judicial review.
7.7 The principal means by which parliament has in the past sought to limit judicial review has been through the use of privative clauses.
7.8 As traditionally construed in Australia, such clauses have been read not as purporting to limit the role of the courts but as expanding the powers of a decision-maker. This approach to construction, based on the Hickman principle, makes it difficult to identify or predict their meaning with any real certainty.
7.9 As a general principle, there is considerable authority, both within Australia and elsewhere, in support of the view that where rights are taken away by legislation, this should be done transparently and unambiguously.
7.10 This view accords with principles of drafting legislation in plain English so that a person’s rights and obligations are clear on the face of the legislation. Such an approach also accords with the settled statutory rule of construction that if parliament is to enact a law that takes away common law rights or principles then it must clearly say so. As noted by Deane J in the High Court case of Baker v Campbell:
…it is a settled rule of construction that general principles of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment...It is to be presumed that if the Parliament intended to authorise the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express and unambiguous terms. [emphasis added]
7.11 A further enunciation of this principle is to be found in another decision of the High Court, Coco v The Queen. In that case, which involved consideration of Queensland legislation providing for authorisation of entry onto premises to install listening devices in circumstances where the entry would otherwise have constituted unlawful trespass, Mason CJ, Brennan, Gaudron and McHugh JJ said as follows:
Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct.
7.12 Their Honours also observed that courts 'should not impute to the legislature an intention to interfere with fundamental rights' and that any such intention must be 'clearly manifested by unmistakable and unambiguous language' and that for this purpose:
General words will rarely suffice for that purpose if they do not specifically deal with the question because in the context in which they appear, they will often be ambiguous on an aspect of the interference with fundamental rights.
…the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provision from becoming inoperative or meaningless.
7.14 A similar approach is reflected in a recent decision of the House of Lords, in Reg v Special Commissioner; Ex parte Morgan Grenfell, a case relating to legal professional privilege, where it has been said that:
…the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication.
7.15 In NAAV v Minister for Immigration and Multicultural Affairs, a case involving the validity of a privative clause in the Migration Act 1958, French J (in the minority) observed that:
Clear language is expected as an indication of parliamentary intention to abridge or extinguish fundamental rights or liberties.
7.16 The desirability of legislative transparency and accountability in the context of common law freedoms has been noted in Coco v The Queen:
…curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.
7.17 In the United Kingdom, this principle is an element of what is known as the 'principle of legality'. The principle involves a presumption that broad discretionary powers will be interpreted by the courts to be subject to fundamental common law rights unless the parliament clearly states otherwise. In this context, Lord Hoffman in R v Secretary of State for the Home Department; ex parte Simms has observed that:
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. …The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language of necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
7.18 In the context of suggesting that the Australian legislature should clearly state whether it intends to abrogate the fundamental principle of legal professional privilege, Dawson J has noted that:
…it does not seem to me that the law should ease the way for the legislature to expand the practice nor should it disguise the fact that a principle which the law regards as fundamental is involved.
7.19 On one view, traditional principles of judicial review are fundamental principles that are akin to ‘fundamental common law rights’, and as such, the same rules of statutory construction should apply when interpreting judicial review principles. That is, they are to be treated as applicable to an exercise of statutory power in the absence of clear legislative language that they are to be removed.
7.20 In Plaintiff S157/2002 v Commonwealth of Australia, a case involving the Constitutional validity of a privative clause in the Migration Act 1958, Gleeson CJ referred with approval to the excerpt from the judgment of Lord Hoffman referred to above, noting that:
Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.
7.21 This case related to an issue of procedural fairness. Other cases also support the view that this right is fundamental to good administration. The importance of the doctrine is evidenced by the willingness of courts to require that decision-making be in accordance with natural justice despite there being no positive statutory provisions requiring this:
…a long course of decisions…establish that, although, there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
7.22 The importance of natural justice is also evidenced in the strong presumption that a privative clause will not be effective to exclude judicial review, especially where there has been a breach of natural justice.
7.23 Similarly, simply seeking to establish a comprehensive code of procedure which ousts natural justice is not sufficient. A majority of the High Court in Minister for Immigration and Multicultural Affairs v Miah held that to exclude the common law natural justice rules a clear legislative intention is required. In the circumstances of that case, it was held that there was no such clear intention.
7.24 In Annetts v McCann, it was said that:
It can now be taken as settled, that when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
7.25 The expectation that the legislature intends that administrative decisions made under legislation must be exercised in a reasonable manner and that there will be a reasonable assessment of the jurisdictional facts of the case are also principles that are central to good administration.
7.26 Arguably, these traditional principles of administrative law should be regarded as being of the same nature as fundamental common law rights in that parliament ought to be required to use express words to exclude them.
7.27 In Miah, Kirby J observed that:
[O]rdinary presumptions which run so deep in the common law may be given effect. In the absence of the clearest possible indication to the contrary, courts will normally assume that an Australian parliament does not intend to work serious procedural injustice upon persons whose interests are adversely affected by legislation. This is not a presumption that challenges the authority of such parliaments. It is one respectful of the assumption that, in Australia, parliaments act justly and expect the repositories of power under legislation to do likewise.
7.28 As a general principle of administrative justice, it is suggested that provisions which take away the right to review of administrative decisions should be clearly stated, their effects apparent on their face and focus on the ambit of the power conferred rather than on the extent to which a court is precluded from examining an exercise of power. In NAAV v Minister for Immigration and Multicultural Affairs, French J (in the minority) noted that:
In a representative democracy those who are subject to the law, those who invoke it and those who apply it are entitled to expect that it means what it says. That proposition informs the approach of courts to the interpretation of laws in taking as their starting point the ordinary and grammatical sense of the words:
“that rule is dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.”
7.29 Such an approach ensures that a person’s rights and obligations are apparent on the face of the legislation which is desirable from a policy perspective. This is consistent with principles of drafting legislation in plain English, and principles of transparency and governmental accountability. This approach avoids the need for the judiciary to reconcile the apparent inconsistency between statutory limitations on decision-making powers and the exclusion of judicial review of those powers by way of privative clause.
7.30 It is also consistent with the presumption against interference with common law rights and principles (see above).
7.31 As an important companion to this view is it is suggested that in so far as it may seek to limit judicial review, parliament should do so with reference to particular decision-making powers.
7.32 In view of the range and nature of decisions that may be made by administrators, sometimes within the boundaries of a single piece of legislation, it is important for limitations on judicial review to be directed at specific decision-making processes.
7.33 Couching limitations in clear language but not seeking to anchor them to specific areas of decision-making is to encourage uncertainty and, necessarily, to invite the intervention of the courts in the interpretative process.
7.34 As suggested throughout the discussion paper, judicial review is an important tool in the protection of individual rights in the face of the vast range of government administrative decision-making. It is suggested that to diminish or remove this right, it should be incumbent on parliament to do so with both transparency of purpose and with certainty of effect.
Discussion point 28
Do you agree/not agree with these views?
Are there any other relevant considerations?
 (1945) 70 CLR 598, 616.
  HCA 2, .
 Ibid, .
 An example of this is the High Court’s decision in Plaintiff S157/2002 v The Commonwealth of Australia  HCA 2 where the Court unanimously held that the privative clause and time limit clause in the Migration Act 1958 were Constitutionally valid but construed them so narrowly so as to significantly reduce their effect. The privative clause was not considered clear enough to prevent judicial review of an administrative decision involving jurisdictional error and, specifically, involving contravention of the rules of natural justice.
 (1983) 153 CLR 52, 116-7 per Deane J. This case was concerned with whether section 10 of the Crimes Act 1914 displaced legal professional privilege; see also Sorby v Commonwealth 152 CLR 281, 309-310; Goldberg v Ng (1995) 185 CLR 83, 93-94 per Deane, Dawson and Gaudron JJ; 121, per Gummow.
 (1994) 179 CLR 427.
 Ibid, 436.
 Ibid, 437.
  UKHL 21,  per Lord Hoffmann. See also judgment of Lord Hobhouse .
 (2002) ALD 1, .
 (1994) 179 CLR 427, [436-437] per Mason CJ, Brennan, Gaudron and McHugh JJ.
 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 69 ALD 1,  per French J referring to Dyzenhaus, Hunt and Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5.
  2 AC 115, 131
 Baker v Campbell (1983) 153 CLR 52, 131. See also The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission  HCA 49 where Gleeson CJ, Gaudron, Gummow and Hayne JJ suggest that legal professional privilege is a common law right or immunity and that statutory provisions should not be construed as abrogating it in the absence of clear words or necessary implication to that effect .
  HCA 2.
 Ibid, at paragraph 30 referring to Coco v The Queen (1994) 179 CLR 427, 437 per Mason CJ, Brennan, Gaudron and McHugh; R v Home Secretary; Ex parte Simms  2 AC 115, 131 and Annetts v McCann (1990) 170 CLR 596, 598 per Mason CJ, Deane and McHugh JJ.
 Cooper v The Board of Works for the Wandsworth District (1863) 3 ER 414, 418 per Byles J.
 Anisminic Ltd v Foreign Compensation Commission  2 AC 147.
 Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 55.
 Annetts v McCann (1990) 170 CLR 596, 598 per Mason CJ, Deane and McHugh JJ.
 Kruger v The Commonwealth (1997) 190 CLR 1, 36, per Brennan and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650 per Gummow; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430, 432, per Latham CJ.
 Stephen Gageler ‘The Underpinnings of Judicial Review of Administrative Action: Common law or Constitution?’ (2000) 28(2) Federal Law Review 303, 313.
 Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 55, . R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 133 CLR 177, 189 per Kitto quoted in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507,  per Gleeson CJ and Gummow J.
 (2002) 69 ALD 1 at  citing Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 340 per Gaudron J..