Privative clause

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In administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal (or other administrative agency). In the UK they are known as "ouster clauses".

The word ‘privative’ is derived from the Latin privare, meaning ‘to deprive’.

Historically, courts have shown resistance to such privative clauses. In Canada and Australia,[1] courts have held that there are certain constitutional restrictions[2] on the ability of legislatures to insulate administrative tribunal from judicial review by means of privative clauses.[3] In Canada if there is a privative clause, there will be more deference given to the administrative tribunal than otherwise. In Australia, jurisdictional error[4] or malfesance[5] are the main way of overturning a privitive clause.

Privative clauses demonstrate the tension between the power of the legislature and the courts.[6] They are subject to much controversy because on the one hand, Parliament has the elected right to make laws for the electorate, but also the courts have a constitutionally enshrined right to review and account for decisions. Justice William Orville Douglas of the US Supreme Court noted that privative clauses grant "tyrannical power" to administrative decision makers.

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  1. ^ See Re Refugee Review Tribunal, Ex parte Aala 204 CLR 82.
  2. ^ Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 per Brennan J.
  3. ^ Australian Constitution s75.
  4. ^ Craig v South Australia (1995) 184 CLR 163.
  5. ^ Richard Walter Pty Ltd (1995) 183 CLR 168 [10]. per Mason CJ).
  6. ^ see Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.