Gone but not Forgotten: In Defence of Hickman

Abstract

Judicial review of executive action is the stage upon which all three arms of government engage in stark interplay. The High Court, by virtue of s 75(v) of the Constitution, is vested with supervisory jurisdiction to undertake judicial review of executive action and to grant the constitutional writs of mandamus, prohibition and injunction. However, for centuries, legislatures have enacted privative clauses designed to limit the ability of courts to perform this function, thereby unshackling the executive from judicial restraint. In 1945, the authoritative approach in Australia to construing such clauses was established in the case of Hickman. This approach was substantially overturned by the High Court in 2003 in the case of Plaintiff S157. In this much lauded case, the High Court recognised that s 75(v) amounts to an ‘entrenched minimum provision of judicial review’ and constitutes ‘textual reinforcement’ of the rule of law. Notwithstanding this strong stance, by 2008 the High Court had given effect to a so-called no-invalidity clause which, although conceptually different from the privative clause, enabled Parliament to evade the reach of the High Court's constitutional jurisdiction. This paper seeks to defend Hickman on its own terms, arguing that it is consistent with the modern jurisprudence on statutory interpretation. It then proceeds to criticise the soundness of Plaintiff S157. Finally, it claims that a return to Hickman represents the best way in which to construe no-invalidity clauses.