Democracy Under Threat: The Use of Privative Clauses to Circumvent Judicial Review in Australia

By John Janzekovic.

Published by The Global Studies Journal

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Article: Print $US10.00
Article: Electronic $US5.00

Australia’s current migration legislation has a number of privative or ‘ouster’ clauses that either limit or bypass the judicial review processes. The partial suspension or withdrawal of the juridical order has been characterised by juridical exceptionalism with the insertion of these special clauses into legislation that confer wide discretionary powers on public offices and limit particular types of judicial inquiry. Such clauses attempt to restrict the obligations of ministerial review and they impose strict time limits on appellants seeking to challenge decisions made by ministers and their delegates. The application of privative clauses in federal legislation, particularly in migration legislation, has been a controversial aspect of recent policy making because this process challenges the separation of powers principle inherent in democratic systems of government. As a result, the contestation between the powers of the law makers and the oversight function of the judiciary has far reaching consequences for Australian democracy, and it opposes long established common law principles that legislative action should not be immune from judicial oversight. This paper argues that the insertion of privative clauses into Australia’s migration legislation has significantly reduced the degree of separation between the legislature and the judiciary to such an extent that government migration policy is ethically deficient and, as the High Court has recently determined, legally flawed.

Keywords: Australia, Legislation, Privative, Exceptionalism, Doctrine

Global Studies Journal, Volume 5, Issue 1, pp.47-58. Article: Print (Spiral Bound). Article: Electronic (PDF File; 265.690KB).

Dr. John Janzekovic

Lecturer in Politics and International Relations, Faculty of Arts and Social Sciences, University of the Sunshine Coast, Maroochydore, Queensland, Australia

John lectures in Politics and International Relations, Politics of the USA, and International Justice and Human Rights. He is an invited international lecturer at Linnaeus University in Sweden and Millersville University in Pennsylvania, USA, conducting courses and seminars in Australian and Asia Pacific Politics, and Humanitarian Interventionist Politics. His research interests include international and humanitarian law, interventionist politics, peace and conflict studies, fundamentalism, extremism, and military ethics. John’s publications include books and articles on humanitarian intervention, international humanitarian law, the ethics and politics of intervention, and case studies of the conflict in Bosnia Herzegovina and Kosovo. He is an invited speaker at a number of international politics conferences, and he has contributed peer reviewed, academic papers at various international forums including the Pacific Islands Political Studies Association (PIPSA), the Australasian Political Studies Association (APSA), Vaxjo University Press, Samlingsaffisch-Föreläsningsserie ht06 ‘The EU and the World’ Seminar at Vaxjo University in Sweden, and the Global Conference: Evil, Law and the State in Salzburg, Austria.

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