Privative clause
Statutory definition
Section 474 of the Migration Act 1958 (Cth) provides that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed, or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court on any account.
Explanation
The privative clause in s 474 was intended to limit judicial review of migration decisions to the Federal Court under the Act's specific review provisions. However, in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, the High Court held that s 474 cannot protect decisions affected by jurisdictional error from review under s 75(v) of the Constitution.
The practical effect is that s 474 protects decisions that are within jurisdiction from non-statutory review, but jurisdictional error — including failure to comply with a mandatory procedural requirement, error of law going to jurisdiction, denial of natural justice, and misconstruction of a jurisdictional fact — remains reviewable in the Federal Court and High Court under their constitutional jurisdiction.
How this term is used
Applications for judicial review of migration decisions are made to the Federal Court (and Federal Circuit and Family Court) under the Migration Act's specific review jurisdiction or the court's constitutional jurisdiction. The ART's migration decisions are similarly subject to constitutional judicial review despite statutory privative protections.