Last updated 29 July 2016

Privative clauses are legislative provisions intended to protect specific decisions (or classes of decisions) from judicial review.

Such clauses often take the form of a provision that the specified decision(s) must not be challenged, appealed against, reviewed, quashed or called in question in any court. Although at face value, privative clauses would seem to remove the possibility of judicial review of a decision, the courts have developed and applied a concept of jurisdictional error to limit the effect of some privative clauses.

In general terms, jurisdictional error occurs either where a decision maker makes a decision in excess of their jurisdiction (narrow jurisdictional error) or where there is a substantial flaw in the decision-making process, such that it cannot be said that a decision has been properly made (broad jurisdictional error). Where either form of jurisdictional error is found to have occurred, there is in practice no decision that the privative clause can protect.