(12) PRIVATIVE CLAUSES & CROWN IMMUNITY
Examples of what can/cannot be protected by privative clauses
PRIVATIVE CLAUSES
 Privative clause = legislative provision intended to exclude
judicial review, in whole or in part.
 They bring the Parliament and Courts directly into conflict:
 On one hand, Parliament should be able to exclude
courts, because:
 statute overrides common law judicial review; and
 the exclusion is a matter of political merits for
Parliament to decide (SOP).
 On the other hand, Courts should not be excluded from
review, because:
 the rule of law requires irrational/unfair/unlawful
government behaviour to be controlled by the Courts.
 In practice, courts continue to review unlawful administrative
decisions despite apparently clear privative clauses, by
reading down the clauses:
 If Parliament has conferred an expressly limited
jurisdiction/power on a decision-maker, it intends the
exercise of power only within those limits. The Courts
gives effect to Parliament’s will by enforcing those limits.
 Even if there is no express statutory limit to
jurisdiction/power, Courts impose implied limits (eg.
procedural fairness, abuse of discretion etc), saying that
they are enforcing the implicit statutory intent of
Parliament. BUT this argument is weak – the “implicit”
intent of Parliament would contradict the express
privative clause.
 There are good reasons for excluding judicial review: If every
decision made by administrative bodies can be appealed,
justice can become lengthy and costly, and there would be no
need for the admin bodies in the first place.
 Judicial review is entrenched in the Constitution (s 75). But
the High Court recently held that this entrenchment did not
prevent the Cth from validly legislating to exclude many of
the grounds for judicial review (including PF, RC/IRC,
unreasonableness) of Migration Act decisions.
 At State level, judicial review is not entrenched. So state
privative clauses are more likely to work better.
Current treatment of privative clauses
 Review of serious jurisdictional errors (eg. grossly in excess
of jurisdiction) cannot be excluded. But review of less serious
errors of law may be prevented by privative clauses.
 The expansion of “jurisdictional error” means fewer errors are
non-jurisdictional, and hence fewer errors are capable of being
excluded.
 Nevertheless – courts’ treatment of privative clauses is
inconsistent.
Principles
 R v Hickman; ex parte Fox & Clinton: Statutory provisions
conferring a limited jurisdiction must be read with the
privative clause.
 A purported exercise of power protected by a privative
clause, is valid provided it (a) is a bona fide attempt to
exercise the power, and (b) appears on its face to be
within power.
 Darling Casino v NSW Casino Control Authority: The
Hickman principle still applies at State level. But there is no
constitutional protection of judicial review at State level, so
privative clauses are not as strong.
 NAAV v Min for Immigration: Where there is a relevant
privative clause:
 Breaches of natural justice are not reviewable;
 Non-performance of important antecedent acts needed
prior to a decision being made, are reviewable.
 Wang (failure to give reasons as required by Migration Act,
was such a fundamental defect that the privative clause will
not protect it)
CROWN IMMUNITY FROM STATUTES
 The Crown is presumed (as a matter of statutory
interpretation) not to be bound by statutes of general
application. This presumption can be displaced by
express/implied words.
 S 20 Acts Interpretation Act (SA): An Act passed after June
1990 will, unless the contrary intention appears
(expressly/impliedly), bind the Crown, but not as to impose
any criminal liability on it.
 It expressly retains the Bradken principle.
 Bropho v WA: Can infer Parliament’s intention that the Crown
be bound, from the content & nature of the legislation.
 (WA Govt was bound by Aboriginal Heritage Act to
negotiate with Aboriginals, because 93% of WA was
Crown land and if the Crown was not bound, the Act
would be nugatory  Act intended Crown to negotiate
with Aboriginals)
 BHP v Bradken: If a contractor has a contractual relationship
with the Crown, and the Crown is not bound by a statute, that
contractor is also immunised (otherwise the Crown’s interests
would be prejudiced).
 *Qld Railways Commissioner (the Crown) contracted to
buy all its steel from BHP without a tender process 
restraint of trade  breach of TPA.
 Qld Crown was not prescribed by the TPA to be bound 
it could enter into contracts in restraint of trade.
 If BHP were not given immunity also, the Crown’s
capacity to enjoy such contracts would be prejudiced 
BHP also immune.
 Bridgetown/Greenbushes Friends of the Forest v CALM
 Dept of Conservation was not bound by Wildlife
Conservation Act  it could clear trees without concern
for habitat protective provisions of the Act.
 The 3 lumber companies in contract with CALM to
acquire timber and haul it away, were not bound by the
Act either.
 Atyeo v Aboriginal Lands Trust (Health Act (requirements of
clean water & human waste removal) did not apply to Crown
land)
Remedies
 Mandamus, certiorari & prohibition are traditionally
unavailable against the Crown.
 So, if the decision-maker’s the Crown, seek equitable
remedies rather than prerogative writs.
 Do not sue the Crown directly; make AG the nominal Def.
 (12) PRIVATIVE CLAUSES & CROWN IMMUNITY
CASES
R v Hickman; Ex parte Fox
 *National Security (Coal Mining Industry Employment)
Regulations (Cth):
 r 14(1)(a): Subject to Regulations, a Local Reference
Board shall have power to settle disputes {as to any local
matter likely to affect the amicable relations of employers
& employees} in the coal mining industry.
 r 4: “industrial dispute” and “local matter” are defined in
relation to the coal mining industry.
 r 17: A Local Reference Board’s decision “shall not be
challenged, appealed against, quashed or called into
question, or be subject to prohibition, mandamus or
injunction, in any court on any account whatever”.
 *The Board was asked to determination a dispute in relation
to the application of an award to lorry drivers.
 *The Board decided (under r 14) to make an order that F was
engaged in the mining industry, and were required to pay their
drivers the minimum wages and conditions prescribed in the
award.
 *F sought a writ of prohibition against the Board’s chairman,
prohibiting further proceeding upon the order.
Issue
 [“Dispute” and “coal mining industry” are jurisdictional facts]
 [There was a dispute]
 F’s lorry operations do not fall within the natural meaning of
“coal mining industry”.
 The privative clause must be taken into account in
ascertaining what the true limits of the Board’s authority are.
Principles
 Hickman principle: A privative clause is interpreted as
meaning that no decision by the body shall be invalidated,
provided that:
 (1) its decision is a bona fide attempt to exercise its
power,
 (2) it relates to the subject matter of the legislation; and
 (3) it is reasonably capable of reference to the power
given to the body.
 It is impossible for legislature to:
 give power to any authority which goes beyond the
subject matter of the legislative power conferred by the
Constitution; or
 impose limits on an authority which it sets up with the
intention that any excess of that authority means
invalidity, and yet deprive the HC of authority to restrain
the invalid act of the authority.
 Where there is a privative clause, it becomes a question of
statutory interpretation whether transgression of its limits (so
long as done bona fide and bearing an appearance of an
attempt to pursue the power), necessarily spells invalidity.
Decision
 The Board’s powers are concerned entirely with the settlement
of disputes. The Regulations are not intended to give the
Board any power to conclusively determine the ambit of “coal
mining industry”, or the extent of their own jurisdiction as
governed by that expression.
 So – the Board’s authority (under the Regulations) is limited
to the coal mining industry.
 The Board has tried to decide the lorry dispute completely
outside its authority  writ of prohibition issued.
Analysis
 Hickman principle is primarily a rule of construction &
compromise: It requires inconsistent jurisdiction and privative
clauses to be read together, and gives both clauses meaning.
 As a result of reading them together, the privative clause
expands jurisdiction of the decision-maker to include
bona fide attempts reasonably capable of reference to the
power relating to the subject matter.
 Only fairly major errors will be outside the 3 provisos &
so be unprotected by the privative clause.
 Overall effect: Since jurisdiction is expanded, less errors
of law are jurisdictional errors  less reviewable errors.
 So, privative clauses do NOT exclude review; they only
expand jurisdiction.
 Can’t exclude review, because can’t override s 75(v)
Constitution.
 In Hickman, the privative clause did not expand the tribunal’s
jurisdiction enough to cover the actual decision (the Board’s
decision didn’t fit in the 3 provisos)  invalid decision.
Darling Casino v NSW Casino Control Authority
 *Casino Control Act (NSW):
 s 18: The Authority is to determine an application.
 s 12: The Authority must not grant a casino licence unless
satisfied that the applicant, and each close associate, is a
suitable person.
 s 13: A person is a close associate, if he holds any
relevant financial interest in the applicant’s casino
business, and is (in the opinion of the Authority) to
exercise a significant influence over the casino business.
 s 155: “Except as otherwise provided in this section, a
decision of the Authority under this Act is final and is not
subject to appeal or review”. The section then provides
for appeal to the Supreme Court on a question of law.
 *Authority held a public inquiry to determine whether SHC
was a suitable person to hold a casino licence.
 *The inquiry officer concluded that close associates of SHC
were not of good repute.
 *Authority determined that these entities ceased to be close
associates of SHC  decided to grant casino licence to SHC.
 No evidence that the Authority failed to consider the question
of influence in determining that the parties found not to be of
good repute were no longer close associates of SHC  s 13
complied with  valid decision.
Privative clause
 The Hickman principle is a rule of construction. It requires an
inconsistency to be resolved by reading the provisions
together and giving effect to each.
 Privative clauses cannot protect against jurisdictional errors
(ie. refusal to exercise jurisdiction, or excess of jurisdiction) –
otherwise s 75(v) Constitution would be defeated.
 But a privative clause may protect against other errors (within
legislative power) by altering the substantive law to ensure
that the decision/conduct/failure to exercise a power is in fact
valid & lawful.
 Provided the intention is clear, a State privative clause may
preclude review for errors of any kind, so long as it satisfies
the Hickman principle.
 No constitutional s 75(v) equivalent at State level.
 However, privative clauses are construed with a
presumption that the legislature does not intend to deprive
the citizen of access to the courts, other than to the extent
expressly stated or necessarily implied.
 The operation of a State privative clause is purely a matter of
its proper meaning ascertained in its legislative context.