State and federal privative clauses: not so different after all

Plaintiff S157/2002 v Commonwealth stands for the proposition that the right to seek judicial review of Commonwealth executive decisions tainted by jurisdictional error is entrenched in the Constitution. Any attempt by the Commonwealth Parliament to oust the jurisdiction of the High Court to grant relief in the case of such decisions will therefore be invalid. It is, however, generally assumed that different principles apply in respect of State privative clauses and that State Parliaments may validly preclude jurisdictional review. This article challenges this view. Drawing on the rightsbased approach to public law which has become increasingly influential in the United Kingdom, it argues that the foundation of the Constitution in the will of the people – signifying, as that does, the ideal of government by consent – makes it impossible for State Parliaments to prevent the courts from ensuring that State officials neither exceed nor neglect the jurisdiction conferred on them.