PRINCIPLE: 1. Hickman Principle: If the decision on its face appears to be within jurisdiction and is a bona fide attempt to act within authority it will not be regarded as invalid. See statutory construction rules- Parliament doesn’t intend to deprive people of freedoms. 2. privative clauses: need to be reconciled with the rest of the act to ascertain their effect. A privative clause cannot give a tribunal the right to exercise judicial power i.e. the right to determine conclusively the limits of its own jurisdiction. If no juris has been established, at law there has been no decision. It reaffirms the court’s ability to review in spite of a privative clause, where there is a jurisdictional error. Because where there is a jurisdictional error there is no decision. If it is not a decision under the act the privative clause cannot attach to it because the privative clause operates with the act.

Held:
Gleeson CJ:
•    Parliament cannot abrogate or curtain the Court’s constitutional functions of protecting the subject against violation of the constitution.
•    But Parliament can determine the content of the law to be enforced by the court
•    Long line of cases that hold that a court can’t be deprived of the right to review a tribunal on the basis of jurisdictional error.
•    As part of principles of statutory construction, ‘privative clauses are construed ‘by reference to a presumption that the legislature does not intend to deprive the citizens of access to the courts, other than to the extent expressly stated or necessarily to be implied.’
•    Furthermore, ‘what is required is a consideration of the whole Act, and an attempt to achieve a reconciliation between the privative provision and the rest of the legislation.’
•    Need to interpret the legislation as a whole to see if the limits have been transgressed.
•    Hickman Principle: If the decision on its face appears to be within jurisdiction and is a bona fide attempt to act within authority it will not be regarded as invalid.
•    Following principles of statutory construction are relevant:
o    Where legislation is enacted pursuant to international obligations, ambiguities in legislation will be interpreted consistently with the obligation.
o    Courts don’t impute intention to abrogate fundamental freedoms w/o clear intention.
o    Constitution framed consistently with the rule of law
o    Presumption that Parliament doesn’t intend to deprive citizens to access to court except to the extent provided
o    Must consider the whole act (Hickman)
o    Parliament has not evinced intention that tribunal can act in breach of PF
•    People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith.  They are ordinarily entitled to expect fairness.  If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s474 does not suffice to manifest such an intention.
•    S474: It follows then, ..if the Tribunal’s decision in relation to the Plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474.  It is not, relevantly, a decision to which s474 applies.
•    s474 not only applies to decisions that have been made but also covers a refusal to make a decision, conduct preparatory to the making of a decision, and other acts or omissions which may involve something that is a purported decision, but not a decision under the Act.
Privative clauses
Gaudron, Mchugh, Gummow, Kirby, Hayne JJ
•    HCA said as far as they’re concerned where there is a privative clause (new privative clause
under s474 which said every decision made under act is a privative clause decision- don’t want courts interfering)
•    Court decided bc tribunal doesn’t have jurisdiction, not a decision under act
•    New test interpreting priv clauses- need to reconcile it w/ rest of act to decide its effect. Court found in this legis Parl couldn’t have intended tribunal to make kinds of mistakes that take it outside its jurisdiction. Reaffirming that Jurisdictional Errors are always reviewable.
•    No general rule of meaning of priv clause- effect depends on its reconciliation w/ other provisions. Look at whole act to see which other ways the tribunal’s powers were constrained.
•    A privative clause cannot give a tribunal the right to exercise judicial power i.e. the right to determine conclusively the limits of its own jurisdiction. If no juris has been established, at law there has been no decision.
•    So if there is a jurisdictional error then in law there is no decision at all. If it is not a decision under the act the privative clause cannot attach to it because the privative clause operates with the act.
•    Prohibition, mandamus and injunction apply to jurisdictional errors.
•    Remedies in s75(5) const of prohibition etc are available, certiorari is available where prohibition is appropriate.
•    Migration legis need to find juris errors bc if don’t find them cannot exercise powers of jud rev at all.

Note: If need to court can now bring all grounds of ultra vires w/in scope of juris error. UV-relevant and irrelevant considerations, procedural fairness are both definitely regarded as JEs by courts. Other categories not yet defined.

3.3 Impact of privative clauses on time limits

S157 Case - purpose of a time limit
•    s. 486A of Migration Act - no applications for review outside of 35 day time limit from date of actual notification of decision
•    High Court: s486A will not apply to a “decision” when there has been jurisdictional error (so in effect applications can be made outside of time limit). Because if there is a JE there is in effect no decision, so no time limit can attach.

Woolworths Ltd v Pallas Newco Pty Ltd (NSW Supreme Court)
Facts: ‘Validity of consent cannot be questioned’ outside 3 month time limit
Under planning legislation councils allowed to make Local Environmental Plans (LEPs). Ashfield council would map out the area it has jurisdiction over and zone the area for different uses. In addition to zoning, there are consent provisions. I.e. can put up a house in residential area with consent. Also some things are completely prohibited in zones e.g. industrial prohibited in residential zone. Council granted Woolworths the power to develop under a consent provision. Ct restrained woolworths from exercising power under the consent. If the activity is prohibited, then the council cannot give consent to it otherwise it will be changing the whole LEP. Looks at issue of public participation: If you are going to change an LEP, part 3 says this requires public participation. Council can’t consent to something that is prohibited.

Spigelman CJ:
Distinguishing time limit in s. 101 from the limit in S157 Case on 3 main grounds:
•    Public notification is a precondition of s 101 (policy considerations of certainty needed in planning and development consents). Privative clause is dealing with different policy considerations, planning and development consent is different from decisions about refugees. The whole planning scheme depends on certainty.
•    s. 101 permits any challenge within time period whereas s. 486A is a complete bar outside of time period
•    Phrase ‘validity of consent’ is distinguishable from ‘cannot be called into question’ and word validity is intended to protect decisions from jurisdictional error outside of time period. The language is different from that in S157.

Decisions after the time period can be challenged, but the test is different (not S157 test). The only thing that will challenge a decision outside the time period are the Hickman principles (3 point test). i.e. bona fide attempt to exercise power, decision relates to subject matter, and decision is reasonably capable of reference to power give to decision-maker.