22 - Privative clauses and the limits of the law

Summary

Judicial review and privative clauses

The idea that courts or other legal bodies should play a role in overseeing administrative action is central to modern notions of democratic governance. However, it seems to be in the common law countries – United Kingdom, United States, Canada and the nations of the British Commonwealth – that the most complex oversight regimes have been created. This may be because of the sometimes nebulous distinction drawn in those countries between administrative review (review of the merits of administrative action) and judicial review (review of the legality of such action). The distinction is manifest on the one hand in the creation of both specialist and multi-jurisdictional tribunals or agencies charged with the review and/or re-making of administrative decisions. On the other hand are courts of law vested with constitutional or statutory authority to check that administrative decisions (including decisions made by those tribunals or agencies) have been made in accordance with the law.

It is a system built on a sequencing of functions between administrators, tribunals and courts, which are arranged in a natural hierarchy. This can militate against ‘efficiency’ in both administration and governance, in that a system involving decision-making by representatives of two branches of government creates a necessarily complex matrix of avenues for review. Thus in a sense, the Anglo-Australian system of judicial review is less efficient than, say, the French droit administratif.