Between form and Substance: Minimising Judicial Scrutiny of Executive Action

Abstract

<jats:p> The privative clause is dead, but there are other ways of reducing meaningful judicial scrutiny of government illegality. Pushed to the extreme, these threaten to hollow out judicial review's much-vaunted promise of protecting the rule of law, even on such a basic issue as the interpretation of an Act of Parliament. Other mechanisms for judicial supervision have also become more fragile. These include collateral challenge, and the potential for holding public officers to account through tort liability and criminal responsibility. ASIO officers, for example, have prospective immunities from tort law and criminal responsibility. Courts can act upon government evidence kept entirely secret from the opposing party. This article asks whether there is any stopping point for Acts that effectively remove government officers from legal controls. </jats:p>

Retreating to the History of Judicial Review?

“…Clauses that oust specific grounds of review have met with mixed success. Provisions stipulating that 'no invalidity' results from breach of specified statutory requirements have fared better, as have provisions making it more difficult to get at the evidence needed to establish a review ground, 3 and provisions requiring litigants to pursue their claims in the High Court's original jurisdiction. 4 The drafting for each of these methods needs to be very clear, however, because until recently, judicial resistance has been palpable.…”