Section 474 — Privative clause decisions
Text of provision
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing; Migration Act 1958 177 Part 8 Judicial review Division 1 Privative clause
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: Decisions that are not privative clause decisions Item Provision Subject matter of provision 1A section 140RB Compliance notices for failing to satisfy sponsorship obligations 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non-citizens from disposing of property 5 section 223 Valuables of detained non-citizens 6 section 224 Dealing with seized valuables 6A section 245AYP Compliance notices for work-related breaches 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels
Plain English
Section 474 declares that a "privative clause decision" (broadly, any decision made under the Migration Act or regulations) is final and conclusive, must not be challenged, and is not subject to review by any court on any ground. This is the "privative clause" — a provision that attempts to exclude judicial review.
However, the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 held that the privative clause cannot exclude judicial review for jurisdictional error. A decision affected by jurisdictional error is not a "privative clause decision" within the meaning of s 474, and is therefore reviewable.
Practical effect
In practice, s 474 does not significantly restrict judicial review. The constitutional guarantee of judicial review for jurisdictional error (under s 75(v) of the Constitution) cannot be removed by Parliament. Most successful judicial review challenges in migration law are brought on the ground of jurisdictional error.
Section 476 of the Act confers jurisdiction on the Federal Circuit and Family Court of Australia (FCFCOA) for judicial review of migration decisions (with limited exceptions), making it the primary court for migration judicial review rather than the Federal Court.