June 19, 2020


under the Judiciary Act (Cth) and the fourth under the Administrative Decision. (Judicial Review) Act (Cth) (the ADJR Act). 3. Each has its benefits and. The decision concerns the Administrative Decisions (Judicial Review) Act ( ACT) (ADJR Act), but has wider implications. As the ADJR Act. It’s well established that privative clauses restricting judicial review do not apply where there is jurisdictional error (due to s75(v) of the.

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Administrative Decisions (Judicial Review) Act 1977

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s75(v) and the ADJR Act : auslaw

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It’s well established that privative clauses restricting judicial review do not apply where there is jurisdictional error due to s75 v of the Constitution. But what if a privative clause specifically said that decisions could not be challenged under the ADJR Act? Would the court still have to determine the clause’s validity, or is it perfectly fine for a parliament to specifically restrict JR under the ADJR Act? Have a gander at the definition of ‘decision to which this act applies’ in s 3 and the classes of decisions listed in Sch 1.

Parliament has used precisely the mechanism you identified to exclude those classes of decision from the ADJR Act regime. There’s nothing problematic ajr this. The ADJR Act confers a statutory jurisdiction on certain federal courts to review decisions to which xdjr applies.


It is entirely within parliament’s power to withdraw this statutory jurisdiction or, indeed, to abolish any of the federal courts entirely leaving aside the High Court. The only Adr entrenched original jurisdiction in the federal judicature is the High Court’s jurisdiction over the matters outlined in s 75 of the Constitution – anything else is up to the Commonwealth parliament.

I should also add that although judicial review jurisdiction in lower federal courts is not entrenched, it can benefit from the entrenchment of the High Court’s s 75 v jurisdiction.

For example, if a privative clause purports to exclude or, as was held recently in Grahamimpede the effective exercise of the High Court’s s 75 v jurisdiction, it may be held invalid or inoperable in its entirety, including with respect to statutory jurisdiction under s 39B of the judiciary act or the ADJR Act. A clear example of this was the decision in Grahamwhich was expressed as rendering inoperable the relevant secrecy provision in both s 75 v and s 39B jurisdiction. I should have said ‘the only Constitutionally entrenched original jurisdiction’ of which judicial review jurisdiction is a species in the federal judicature is with respect to the matters in s 75 – of course, the High Court also has appellate jurisdiction conferred by s Someone once explained this concept as “parliament gave you rights under the ADJR Act, parliament can take away rights away.


The constitution gives you rights, only amending the constitution can take away those rights. It’s very first principle-y but I think it’s a good starting point if you’re trying to understand how privative clauses fit into the framework. Add ‘the common law’ to your first proposition and I think it’s a pretty good starting point for understanding much of constitutional law.

The only exceptions I can think of are avjr kinds of principles that have constitutional significance, yet evolve by the passage of ordinary legislation such that at some point the evolution cannot be ac simply by removing the legislation. Adjd concept of the ‘franchise’ in the voting rights cases RoachRowemore recently Murphyetc is one example, but I think these are fringe areas. Brendan Lim wrote a great article reviewing Jack Balkin’s Living Originalism which identifies a few of these areas.

Thanks for your detailed explanation!

But practically, would such a acy need to actually be in the ADJR schedule, or could a statute independently preclude its decisions from ADJR challenges? Are there an examples of this happening in real life? I say “could”, not “would”, because it depends on how clearly the clause is worded. Courts are hesitant to interpret legislation as repealing earlier legislation where express words are not used. The same kinds of interpretative techniques as were used in cases like Anisminic and Plaintiff S could potentially be used to construe a privative clause that looks like it ousts ADJR Act jurisdiction in a way that means it does not oust ADJR Act jurisdiction.


I can’t see how it would make any difference where the legislative provision were located, provided it operated in the same way. The grouping together of similar provisions is more an issue of convenience and proper legislative drafting than one with legal effect. The only ‘real life’ example I can think of off the top of my head of a provision of some other act expressly excluding or limiting ADJR Act jurisdiction is s A 1 of the Migration Act. If this post has been upvoted or your post has been downvotedyour post may include a request for legal advice.

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