(2) LIMITING OF COURT’S REVIEW JURISDICTION – legislature must not have invalidly excluded/diminished court’s review jurisdiction

Question 1

What are ouster clauses (privative clauses used for?)

Answer 1

Ouster clauses that apply to ‘decisions’ can be construed as applying to ‘valid decisions’ thus preserving judicial review for jurisdictional error (as such decisions are regarded in law as ‘no decision at all’)

Question 2

Legal effect of privative clause in a Cth provision?

Answer 2

may validly exclude federal court jurisdiction for judicial under the ADJR Act. However, following Plaintiff S157, a privative clause contained in a Cth Act cannot restrict the ‘entrenched minimum provision of judicial review’ contained in s 75(v) Constitution.

Question 3

Cth –> Parliament cannot confer on a non-judicial body the power to

Answer 3

conclusively determine the limits of its own jurisdiction

Question 4

State –> principle:

Answer 4

• The privative clause cannot oust judicial review for jurisdictional errors (Kirk)

but the privative clause can oust review for non-jurisdictional errors.

Question 5

Legal effect of privative clause in a State provision?

Answer 5

o Kirk holds that an entrenched minimum provision of judicial review exists at the state level, in the same basic way as the constitutional review jurisdiction

Question 6

Cth - Facts in Plaintiff S157 (2003)

Answer 6

• Challenges to decision of RRT refusing protection visa
• Applicant claimed breach fo the rules of PF
• Privative clause and time limit clause purportedly precluded proceedings
• Applicant sought declarations that both clauses were invalid

Question 7

Cth - outcome in Plaintiff S157 (2003)

Answer 7

• Privative clause was valid but didn’t protect from judicial review decisions involving jurisdictional errors
• It is presumed that Parliament does not intend to cut down jurisdiction of the Courts save to the extent that the legislation expressly so states or necessarily implies

Question 8

State - Kirk v Industrial Relations Commission (2010) facts

Answer 8

• Someone died on quad bike – employer wanted to challenge – privative clause
• IRC had made 2 legal errors in convicting a company and its directors of OH&S offences: the lower court made these 2 errors:
  o (1) misconstruing the offence-creating provisions
  o (2) breaching rules of evidence by allowing prosecution to callt he director as a witness.

Question 9

State - Kirk v Industrial Relations Commission (2010) issue was whether the errors of law made by IRC were jurisdictional errors?

Answer 9

• Yes, an error of law is jurisdictional if it causes an inferior court or administrative tribunal to identify a wrong issue, ask itself the wrong question, misconceive the nature of the function
• There is const entrenched review for prohibition, mandamus and Certiorari for JE
• Constitution s 73 as the basis for entrenched review jurisdiction of State Supreme Courts

Question 10

What is the effect of a no-invalidity clause?

Answer 10

o A functioning no-invalidity clause may operate to convert otherwise ‘jurisdictional’ errors into ‘prospectively unlawful’ errors made within jurisidiction, expanding the DM’s powers to make legally valid decisions

Question 11

No-invalidity clauses: what do Palme and Project Blue Sky suggest?

Answer 11

where a no-invalidity clause is narrowly confined to a particular statutory requirement or norm, court’s will generally give effect to such a provision.

Question 12

If a no-invalidity clause is framed too broadly, so as to evade the HCA’s entrenched minimum provision of review under s 75(v), what can happen?

Answer 12

it may be invalidated on constitutional grounds (Futuris).

Question 13

Example of a no-invalidity clause

Answer 13

‘a failure to comply with this section does not affect the validity of a decision’ –> valid (Palme)

Question 14

Was no-invalidity clause in Futuris that “any breach of any procedure under the tax act doesn’t result in invalidity” valid?

Answer 14

Generally would’ve been invalid –> but when read with the provision of an extensive appeals procedure was acceptable

Question 15

time limit clauses will be valid if

Answer 15

does not so curtail or restrict the right to seek relief under s 75(v) as to be inconsistent with the Constitution (ie, can’t oust the entrenched judicial review).

Question 16

time limit clauses can’t be so strict that they

Answer 16

don’t provide for any flexibility and discretion for vitiating circumstances (for both State and Cth)

Question 17

Cth time limit clause - per Plaintiff S157 unfair if

Answer 17

Unreasonably short time limit

Question 18

Why was time limit clause in Bodruddaza invalid?

Answer 18

didn’t allow court to take into account vitiating circumstances that may affect decision making

Question 19

When will secrecy clauses be invalid?

Answer 19

if it impacts Court’s ability to discern whether jurisdictional constraints have been observed or the ability to enforce the legislated limits on an officer’s power

Question 20

Bodruddaza v Minister for Immigration (2007) key facts [time limit clauess]

Answer 20

Key issue was whether time limit with no discretion on courts to extend valid

was invalid as operated from the of decision not from notification to the other person etc

Question 21

Graham v Minister for Immigration [secrecy provisions] what was held

Answer 21

• The HCA held that a provision which denied the power of ‘a court’ to compel production of certain information was invalid in its application to the constitutionally entrenched jurisdiction.

Question 22

The takeaway from Graham (secrecy provisions) and Bodruddaza (no invalidity clauses):

Answer 22

if there are legislative provisions that ‘strike to the heart’ of the Court’s ability to exercise entrenched judicial review, they will be of no effect.