Democracy Under Threat: The Use of Privative Clauses to Circumvent Judicial Review in Australia

Abstract

Australia’s current migration legislation has a number of privative or ‘ouster’ clauses that either limit or bypass the judicial review processes. The partial suspension or withdrawal of the juridical order has been characterised by juridical exceptionalism with the insertion of these special clauses into legislation that confer wide discretionary powers on public offices and limit particular types of judicial inquiry. Such clauses attempt to restrict the obligations of ministerial review and they impose strict time limits on appellants seeking to challenge decisions made by ministers and their delegates. The application of privative clauses in federal legislation, particularly in migration legislation, has been a controversial aspect of recent policy making because this process challenges the separation of powers principle inherent in democratic systems of government. As a result, the contestation between the powers of the law makers and the oversight function of the judiciary has far reaching consequences for Australian democracy, and it opposes long established common law principles that legislative action should not be immune from judicial oversight. This paper argues that the insertion of privative clauses into Australia’s migration legislation has significantly reduced the degree of separation between the legislature and the judiciary to such an extent that government migration policy is ethically deficient and, as the High Court has recently determined, legally flawed.