Conclusion

15.64  In light of the High Court’s approach to privative clauses in Plaintiff S157, it appears that such clauses have little to no effect in limiting access to the courts. The ARC, in its 2012 consideration of the scope of judicial review, stated that privative clauses which attempt to ‘restrict or exclude judicial review entirely will not be successful’.^[102]

15.65  The Australian Government should consider a review of privative clauses in Commonwealth laws. Where the underlying policy rationale is considered warranted, consideration should be given to whether alternative solutions which do not restrict access to the courts, and are more targeted and effective in addressing the underlying policy issue, may be implemented.