Gone but not Forgotten: In Defence of Hickman
| DOI | 10.1177/0067205X1804600204 |
| Author | Jacob Waller |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| Subject Matter | Article |
Jacob Waller*
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.
I INTRODUCTION
Judicial review of executive action is the mechanism by which the judiciary ensures that
the executive is complying with the laws enacted by Parliament. At times, Parliament
has an interest in limiting or altogether precluding judicial interference with executive
action. In a system of government such as Australia’s, where the executive is frequently
drawn from the parliamentary majority, this is hardly surprising. In pursuit of this end,
laws are enacted, which can take many forms1 that seek to limit the judiciary’s reach.
How the High Court is to approach such laws is the subject of ongoing academic and
*
BA, LLB (Hons) (Monash). A previous version of this article was submitted for assessment in
the Honours program at Monash University. I thank Dr Lisa Burton Crawford and Associate
Professor Patrick Emerton for their guidance. I also thank Emeritus Professor Jeffrey
Goldsworthy, Emeritus Professor Mark Aronson and the anonymous referees for their
constructive comments.
1 See Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action
and Government Liability (Thomson Reuters, 6th ed, 2017) 1058–9.
260
Federal Law Review
Volume 46
_____________________________________________________________________________________
judicial debate. This article is predominantly concerned with privative clauses which
provide, inter alia, that a decision made by a member of the executive is final and not
subject to the writs ordinarily at the disposal of a court exercising judicial review. The
first issue under consideration is the proper interpretation of such clauses within the
Australian constitutional and administrative law context. For many decades, the answer
was simply Hickman.2 In that case, Dixon J granted a privative clause its desired effect
subject to certain provisos. This approach was substantially overturned by the High
Court in Plaintiff S157.3 It has been observed that ‘Plaintiff S157 is generally taken to have
sounded the death knell for privative clauses in Commonwealth legislation.’4 That being
said, the High Court has recently signalled, albeit faintly, that Hickman may still provide
a legitimate approach to privative clauses. 5 Part II analyses these two divergent
interpretive approaches to privative clauses. It asserts that Dixon J’s non-literal
construction attributes to privative clauses the legal effect of what are now referred to
as no-invalidity clauses.6 Part III seeks to defend Hickman on its own terms, arguing that
it is consistent with the contemporary approach to statutory interpretation. The Part then
proceeds to criticise the soundness of the approach in Plaintiff S157, arguing that the
plurality judgment’s constructional choices are unsustainable and ought to have led to
the striking down of vast portions of the Migration Act 1958 (Cth) (‘Migration Act’).
Privative clauses are, however, no longer Parliament’s preferred method of evading
judicial interference. Nevertheless, the issues under consideration remain relevant. First,
the appraisal of Hickman and Plaintiff S157 provides an opportunity to revisit Project Blue
Sky 7 and consider its interaction with the High Court’s approach to textualism,
severance and legislative intentions. Secondly, as will be demonstrated, Hickman
provides a robust and versatile approach to the interpretation of all manner of clauses
which seek to blunt the effects of the judiciary’s review jurisdiction. This interpretive
approach provides an effective alternative to extending the scope of the
constitutionalisation of institutional arrangements. Thus, Part IV takes these conclusions
and argues that a return to the principles underlying Hickman is not merely of academic
concern but represents the best way to construe literal no-invalidity clauses. As similar
clauses inevitably mutate and re-emerge, the Hickman approach will continue most
effectively to equip the courts to deal with their proper interpretation.
II DIFFERING APPROACHES
A Hickman
Hickman concerned a privative clause in the National Security (Coal Mining Industry
Employment) Regulations 1941 (Cth) which provided that ‘a decision of a Local Reference
2 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (‘Hickman’).
3 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (‘Plaintiff S157’).
4 Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017)
111.
5 Graham v Minister for Immigration and Border Protection [2017] HCA 33 (6 September 2017) [45]
(Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ), [118]–[120] (Edelman J) (‘Graham’).
The plurality judgment does not explicitly reference Hickman but cites Deputy Commissioner
of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 194 (‘Richard Walter’) at which Brennan
J deals exclusively with the Hickman approach in general terms.
6 As to the terminology ‘no-invalidity clause’ see below n 21.
7 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’).
2018
Gone but Not Forgotten: In Defence of Hickman
261
_____________________________________________________________________________________
Board … shall not be challenged, appealed against, quashed or called in question, or be
subject to prohibition, mandamus or injunction, in any Court on any account whatever’.8
Dixon J’s judgment concerning the operation of the privative clause was to become the
entrenched authority on such clauses for more than half a century. His Honour stated
that ‘it is clear that [a privative clause] cannot, under the Constitution, affect the
jurisdiction of this Court to grant a writ of prohibition against officers of the
Commonwealth when the legal situation requires that remedy.’9 That the High Court’s
jurisdiction cannot be ousted follows from the fact that ordinary legislation cannot undo
constitutional provisions—specifically s 75(v) of the Constitution which grants the High
Court original jurisdiction ‘in all matters … in which a writ of Mandamus or prohibition
or injunction is sought against an officer of the Commonwealth’.10
Dixon J maintained that ‘if there is an opposition between the Constitution and any
such provision, it should be resolved by adopting [an] interpretation [consistent with
the Constitution if] that is fairly open’.11 As such, it becomes necessary to determine the
constitutionally conforming interpretation of privative clauses. This interpretation
clearly cannot mirror the literal meaning of the clause, as Dixon J explicitly noted in
Murray decided shortly thereafter:12
In form reg. 17 may appear to be an attempt to say that even where [the proper remedy is
prohibition,] there shall be no prohibition. But even in jurisdictions where there is no
constitutional limitation upon legislative power similar enactments have not received so
drastic an interpretation.13
It ought to be noted that in the above passage, Dixon J adverted to an existing practice,
founded in English common law and applied by the High Court in its early years, of
interpreting privative clauses in a non-literal way for reasons other than the limitations
imposed by s 75(v).14 There are various reasons why privative clauses might be read
down irrespective of considerations pertaining to s 75 of the Constitution.15 Indeed, it is
evident in Dixon J’s reasoning that he considered that the ‘prima facie inconsistency’16
within the legislative instrument itself gave rise to an elementary question of statutory
8 National Security (Coal Mining Industry Employment) Regulations 1941 (Cth) reg 17.
9 Hickman (1945) 70 CLR 598, 614.
10 Commonwealth Constitution. Subsection (v) is in some respects coextensive with s 75(iii).
11 Hickman (1945) 70 CLR 598, 616.
12 R v Murray; Ex parte...
To continue reading
Request your trial