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Published online by Cambridge University Press: 01 January 2025
Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the Constitution confers on the High Court. The New South Wales Court of Appeal reads this narrowly, holding that only three specific remedies are protected, together with the rules and limitations that existed at federation. If correct, we might see the emergence of two bodies of doctrine, the old law of remedies and the new law of ‘judicial review’ (a concept that emerged only after federation). In an unrelated case, six High Court judges implied a limited privative clause ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his view, that branch of certiorari conflicts with judicial review fundamentals, is historically misconceived, and should apply only where the reviewing court can try the matter afresh. This article reviews these developments, discusses their rationales and questions both the history and its importance.
I am indebted to Janina Boughey, Lisa Burton, and this journal’s anonymous reviewers for their helpful comments.
1. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (‘S157’).
2. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 351 ALR 225 (‘Probuild’).
3. See Mark Aronson, ‘Between Form and Substance: Minimising Judicial Scrutiny of Executive Action’ (2017) 45 Federal Law Review 519.
4. See DBE17 v Commonwealth [2018] FCA 1307 for an extensive discussion by Mortimer J of this legislative technique. Her Honour noted some of the difficulties in constitutionalising a broad-based claim to a ‘right of access’ to the courts.
5. Kaldas v Barbour (2017) 326 FLR 122 (‘Kaldas’).
6. (2018) 351 ALR 225.
7. (2017) 326 FLR 122.
8. Jason N E Varuhas, ‘Taxonomy and Public Law’ in Mark Elliott, Jason N E Varuhas and Shona Wilson Stark (eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart Publishing, 2018) 39.
9. Ibid 41–5. I put to one side the constitutional and institutional constraints upon ‘government’ other than those enforceable by judicial review.
10. Probuild (2018) 351 ALR 225, 247 [84] (Edelman J).
11. H W R Wade and C F Forsyth, Administrative Law (Oxford University Press, 11th ed, 2014) 4–7.
12. Harry Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 8th ed, 2018) 14–15.
13. Jerry L Mashaw, ‘Federal Administration and Administrative Law in the Gilded Age’ (2010) 119 Yale Law Journal 1362, 1378.
14. (2000) 204 CLR 82 (‘Aala’).
15. Ibid 93 [24].
16. Ibid 97 [34].
17. Ibid 141 [164], 143 [169].
18. Ibid 133 [137].
19. Ibid 132 [136]. Gaudron and Gummow JJ returned fire, defending their use of the old cases as being preferable to ‘intuition or divination’: Ibid 93 [24].
20. (2017) 326 FLR 122.
21. (2010) 239 CLR 531 (‘Kirk’).
22. Ibid 581 [98].
23. In the course of a two-day long parliamentary debate on the British government’s foreign policy towards Russia and its allies, each side accused the other of moral and strategic failure between the wars. Churchill acknowledged those failures, but added that it would be more productive not to dwell on them: ‘For my part, I consider that it will be found much better by all [political] parties to leave the past to history, especially as I propose to write that history myself.’ United Kingdom, Parliamentary Debates, House of Commons, 23 January 1948, vol 446, col 557 (Winston Churchill).
24. See, eg, Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012) 246–52; J T Gleeson and R A Yezerski, ‘The Separation of Powers and the Unity of the Common Law’ in J T Gleeson, J A Watson and R C A Higgins (eds), Historical Foundations of Australian Law; Volume 1: Institutions, Concepts and Personalities (Federation Press, 2013) 297; William Gummow, ‘The Scope of Section 75(v) of the Constitution: Why Injunction but No Certiorari?’ (2014) 42 Federal Law Review 241; Lisa Burton, ‘Why These Three: The Significance of the Selection of Remedies in Section 75(v) of the Australian Constitution’ (2014) 42 Federal Law Review 253.
25. S A de Smith, Judicial Review of Administrative Action (Stevens, 1959).
26. Edith G Henderson, Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century (Harvard University Press, 1963).
27. Amnon Rubinstein, Jurisdiction and Illegality: Study in Public Law (Oxford University Press, 1965).
28. Paul D Halliday, Habeas Corpus: From England to Empire (Harvard University Press, 2010).
29. Janet McLean, Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (Cambridge University Press, 2012) ch 6.
30. The modern origins of mandamus are generally traced back to Bagg’s Case (1615) 11 Co 93b, 77 ER 1271; 1 Rolle 224, 81 ER 448. The advantage of using Coke’s account as reprinted in the English Reports is that it is in English with mostly modernised spellings. Historians might be dubious, however. Some of Coke’s contemporaries accused him of gilding the lily. A footnote at Bagg’s Case 81 ER 448, 1278 records Lord Ellesmere’s scathing response to Coke’s claim that King’s Bench had resolved that it had power to correct ‘any manner of misgovernment’. Ellesmere said that this would give issues of government to the court. Henderson said that only Coke could have succeeded in inventing such a wide-ranging remedy out of whole cloth: Henderson, above n 26, 68.
31. Rubinstein, above n 27, 70.
32. Ibid ch 4.
33. de Smith, above n 25, 27–51 (ie, 25 pages).
34. Ibid 51–80 (ie, 30 pages); S A de Smith, Judicial Review of Administrative Action (Stevens, 3rd ed, 1973) 57–77 (ie, 21 pages); J M Evans, de Smith’s Judicial Review of Administrative Action (Stevens, 4th ed, 1980) 68–89 (ie, 32 pages).
35. R v Toohey; Ex parte Northern Territory Land Council (1981) 151 CLR 170, 225.
36. Harry Woolf and Jeffery Jowell, de Smith’s Judicial Review of Administrative Action (Stevens, 5th ed, 1995) 1002.
37. Ibid 1001–20 (ie, 20 pages). The new authors explained in their Preface (at ix) that the judges had created the whole topic of Classification of Functions, which they were now replacing, not just because it was as an impediment to justice, but also because ‘its terminological and conceptual problems may appear to be overwhelming’.
38. Harry Woolf, Jeffrey L Jowell and A P Le Sueur, De Smith’s Judicial Review (Sweet & Maxwell 6th ed, 2007) 975–93; Harry Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 7th ed, 2013) 1047–64; Woolf et al, above n 12, 1075–90.
39. R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, 204–5.
40. [1964] AC 40.
41. Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222.
42. It is easier with hindsight to see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 (‘Anisminic’) as the principal marker for this development. The High Court’s decision in Craig v South Australia (1995) 184 CLR 163, 179–80 repeated Anisminic’s list of judicial review grounds, but said that prima facie, the same mistakes were non-jurisdictional if committed by inferior courts. That qualification was probably intended only for courts in the strict sense of that term. Even so, it was a variable quantity, becoming even more context-dependent since Kirk (2010) 239 CLR 531, 572–4. See also Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2016) 231–4.
43. That was critical to the reasoning in Anisminic [1969] 2 AC 147. The High Court officially rejected the narrow conception of ‘jurisdiction’ (whereby a decision-maker in an inquiry that had commenced properly could not thereafter ‘lose’ jurisdiction) in Kirk (2010) 239 CLR 531, 569–70. In fact, however, with only a handful of exceptions, the vast bulk of appellate decisions in Australia and England had failed to conform to that narrow conception since the 1930s.
44. See, eg, A W B Simpson, ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’ (1981) 48 University of Chicago Law Review 632; Stephen Waddams, ‘Nineteenth-Century Treatises on English Contract Law’ in Angela Fernandez and Markus D Dubber (eds), Law Books in Action: Essays on the Anglo-American Legal Treatise (Hart Publishing, 2012); G Edward White, Tort Law in America: An Intellectual History (Oxford University Press, 1980) ch 1; D W Leebron, ‘The Right to Privacy’s Place in the Intellectual History of Tort Law’ (1991) 41 Case Western Law Review 769.
45. ADJR s 16.
46. Rubinstein, above n 27, ch 4 and 9.
47. England accepts that a detention that is invalid for judicial review purposes is also invalid for tort purposes, but awards only nominal damages at common law to claimants who ‘lost nothing’ because the government would have secured their detention lawfully if it had known of (and avoided) the flaw in the original detention process: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245; R (Kaiyam) v Secretary of State for Justice [2015] AC 1344; R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717. The Full Court of the Federal Court took that approach in Fernando v Commonwealth (2014) 231 FCR 251 (‘Fernando’), but views were divided in the High Court in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 610–11 [324]–[325], 655–6 (Kiefel and Keane JJ, respectively, indicating approval of Lumba), 569 [155] (Hayne and Bell JJ indicating disapproval). For cases since Fernando taking essentially the same line, see: Okwume v Commonwealth [2016] FCA 1252; Guo v Commonwealth (2017) 258 FCR 31; Lewis v Australian Capital Territory (2018) 329 FLR 267. Tulloh v Chief Executive Officer, Department of Corrective Services [2018] WASC 105 avoided even nominal damages, by reasoning that legality of the plaintiff’s re-imprisonment turned on the fact of the cancellation of his parole, rather than on the legality of that cancellation.
48. See Rubinstein, above n 27, ch 4, distinguishing between tort actions (governed by the rule in the Case of the Marshalsea (1612) 10 Co Rep 68b) and certiorari. By mid-way through the 17th century, certiorari resembled the writ of error in that it went for any error of law apparent on the face of the record. Certiorari originally issued only against courts of record, but that was extended to include any inferior courts.
49. Writs of privilege issuing out of King’s Bench were formerly used to assert that court’s pre-eminence over the process and powers of other courts, but those writs appear to have been tied to the protection of King’s Bench officers, its process or its exclusive jurisdiction: Henderson, above n 26, 51–8.
50. Harry W Arthurs, ‘Without the Law’: Administrative Justice and Legal Pluralism in Nineteenth-Century England (University of Toronto Press, 1985).
51. Halliday, above n 28, 178.
52. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580–1, 595.
53. The personal applicant in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 was in this position. The joint judgment said (581) that had he got in early enough, the applicant could have obtained prohibition. Brennan J added (594–5) that such an applicant could also have obtained an injunction.
54. Public Service Board (NSW) v Osmond (1986) 159 CLR 656. In contrast, the common law obliges judges to give reasons: Wainohu v New South Wales (2011) 243 CLR 181.
55. Craig v South Australia (1995) 184 CLR 163.
56. Administrative Law Act 1978 (Vic) s 10; Supreme Court Act 1970 (NSW) ss 69(3),(4).
57. ADJR s 5(1)(f) allows an application for an order of review on the ground ‘that the decision involved an error of law, whether or not the error appears on the record of the decision’. Section 16(1)(a) provides that an order of review under the Act may take the form of quashing or a decision or setting it aside, in whole or in part and from the date of the order or such earlier time as the court stipulates.
58. (2018) 351 ALR 225.
59. R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, 205 (Atkin LJ).
60. [1964] AC 40.
61. Probuild (2018) 351 ALR 225, 242 [66]–[67].
62. The same view is advanced by Burton, above n 24, 253, 260–3.
63. Probuild (2018) 351 ALR 225, 242 [66].
64. Ibid 241 [63].
65. [1952] 1 KB 338 (‘Northumberland’).
66. Probuild (2018) 351 ALR 225, 242–3 [68].
67. R v Hull University Visitor; Ex parte Page [1993] AC 682.
68. Craig v South Australia (1995) 184 CLR 163, 178–80. However, Kirk (2010) 239 CLR 531, 573 [70] thought it ‘at least unhelpful’ in this context to distinguish between ‘inferior’ and ‘superior’ courts.
69. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’).
70. Probuild (2018) 351 ALR 225, 245, quoting Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 470 [276] (Hayne J).
71. Probuild (2018) 351 ALR 225, 245 [76].
72. Ibid 250–3 [91]–[97].
73. Something that greatly disturbed a prominent Canadian critic. See D M Gordon, ‘The Relation of Facts to Jurisdiction’ (1929) 45 Law Quarterly Review 459; D M Gordon, ‘Tithe Redemption Commission v Gwynne’ (1944) 60 Law Quarterly Review 250; D M Gordon, ‘Conditional or Contingent Jurisdiction of Tribunals’ (1960) 1 University of British Columbia Law Review 185; D M Gordon, ‘Book Review of S A de Smith, Judicial Review of Administrative Action (Stevens, 1959)’ (1960) 76 Law Quarterly Review 306; D M Gordon, ‘Book Review of A Rubinstein, Jurisdiction and Illegality (Oxford University Press, 1965)’ (1966) 82 Law Quarterly Review 263; D M Gordon, ‘Jurisdictional Fact: an Answer’ (1966) 82 Law Quarterly Review 515.
74. See Anisminic [1969] 2 AC 147, 171, 199, 200. That case discussed dozens of precedents, but overturned only one, namely Davies v Price [1958] 1 WLR 434, which had applied the view that jurisdiction cannot be ‘lost’ by errors committed in the course of a matter properly commenced.
75. See Kirk (2010) 239 CLR 531, 569–70.
76. Probuild (2018) 351 ALR 225, 256 [107]. His Honour repeated this viewpoint in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, 622 [94].
77. Henderson, above n 26, ch 4.
78. Rubinstein, above n 27, 72–3.
79. Henderson thought that whatever the courts may have said, their decisions failed to conform to any settled concept of ‘jurisdiction’ until R v Bolton (1841) 113 ER 1054, 1057. Essentially the same position is taken in Philip Murray, ‘Process, Substance and the History of Error of Law Review’ in John Bell et al (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016), 95–101.
80. Henderson, above n 26, 89–90.
81. Ibid 98–106, discussing R v Justices of Marlborough (Unreported, King’s Bench, 1635) and Comyns v Masham (Unreported, King’s Bench, 1642).
82. Ibid 91–3.
83. See above n 49.
84. Ibid 107.
85. These were Platz v Osborne (1943) 68 CLR 133, 148 (‘Platz’); and Overseers of the Poor of Walsall v London and North Western Railway Co (1878) 4 App Cas 30, 44 (‘Walsall’). The statutory form of appeal in Platz allowed fresh evidence, and the only issue was whether a principle against double jeopardy prevented remittal for retrial. The passage to which his Honour referred related to the options open after resolution of a case stated. Walsall usefully documents the use of certiorari as an equivalent of case stated in the days before there was a general right of appeal in criminal matters; it said that quarter sessions could not resume hearing a matter if their order was quashed. It did not say that the matter could not be re-commenced; indeed, that is the general tenor of the Walsall judgments.
86. His Honour cited Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289, 301–2 (‘Mullen’). With respect, this is unconvincing; the entire debate in Mullen (and on its appeal to the High Court in Mullen v Hood (1935) 54 CLR 35) concerned jurisdictional error. His Honour also cited Mullen at 295–6, where Jordan CJ had indeed said by way of obiter that non-jurisdictional certiorari would issue only if the matter could be tried in the issuing court. Jordan CJ cited two respected secondary sources whose view, it is submitted, was equally unconvincing.
87. A more recent decision of the High Court bears out this proposition: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1.
88. See, eg, A-G (Cth) v Alinta Ltd (2008) 233 CLR 542, 552 [10], 560 [37].
89. (2010) 239 CLR 531, 576 [80].
90. (1803) 5 US 87, 111 (‘Marbury’).
91. A-G (NSW) v Quin (1990) 170 CLR 1, 35 (Brennan J) (‘Quin’). For an analysis of Marbury’s American history, and its reception into Australian constitutional law, see Gleeson and Yezerski, above n 24, 305–27.
92. Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, 435 [127] (Edelman J).
93. Ibid 422 [54], where Gageler J said in substance that judges have the last word as to the limits of an administrative decision-maker’s power, but not on all questions of law.
94. Statutory delegations of rule-making powers are said (with some justification) to lack the constitutionally requisite ‘intelligible principles’, a requirement prescribed by JW Hampton Jr & Co v United States, 276 US 394, 409 (1928) as America’s functional equivalent of Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.
95. Executive Order 13777 82 FR 12285 (24 February 2017) directs agencies to search for Rules that are too costly in a number of ways, so that they may be marked for repeal or reform. It introduces a revised and more focused reporting hierarchy.
96. Executive Order 13771 82 FR 9339 (30 January 2017), s 2 requires the repeal of at least two Rules for every new Rule proposed or promulgated.
97. Auer v Robbins, 519 US 452 (1997).
98. Chevron USA Inc v Natural Resources Defense Council Inc, 467 US 837 (1984).
99. Perhaps the most prominent Bills are the Regulatory Accountability Act, HR 5, 115th Congress (2017) and the Separation of Powers Restoration Act, S 1577, 115th Congress (2017).
100. Some of the reviews of Philip Hamburger, Is Administrative Law Unlawful? (University of Chicago Press, 2014) are beyond ‘heated’. See: Adrian Vermeule, ‘No’ (2015) 93 Texas Law Review 1547; Cass R Sunstein and Adrian Vermeule, ‘The Unbearable Rightness of Auer’ (2017) 84 University of Chicago Law Review 297; Philip Hamburger, ‘Response’ (2016) 94 Texas Law Review 205. For something more civil (and generally supportive), see Gary Lawson, ‘The Return of the King: the Unsavory Origins of Administrative Law’ (2015) 93 Texas Law Review 1521. For more measured defences of the administrative state, see: Gillian E Metzger, ‘Foreword: 1930s Redux: the Administrative State Under Siege’ (2017) 131 Harvard Law Review 1; Cass R Sunstein and Adrian Vermeule, ‘The Morality of Administrative Law’ (2018) 131 Harvard Law Review 1924.
101. One response has been to paint a history of America’s administrative state stretching back into the 19th century, to give it a stronger claim to historical legitimacy; see, eg, Mashaw, above n 13, 1362].
102. See, eg, State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, 609–10 [72]–[74]; Eastman v R (2000) 203 CLR 1, 11 [14], 85–9 [257]–[267]; Lacey v A-G (Qld) (2011) 242 CLR 573, 596 [56]; Perara-Cathcart v R (2017) 260 CLR 595, 613 [40].
103. South Australian Land Mortgage and Agency Co Ltd v R (1922) 30 CLR 523, 552.
104. Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765–69) vol 3, ch 25. Some of the common law’s appeal mechanisms were modified by statute, but their common law foundations remained.
105. Rosemary Pattenden, English Criminal Appeals 1844–1994 (Clarendon Press, 1996), ch 1.
106. Administrative Law Act 1978 (Vic), s 10; Supreme Court Act 1970 (NSW), ss 69(3)–(4).
107. (1986) 159 CLR 656, 668–9.
108. Quin (1990) 170 CLR 1, 36 (Brennan J).
109. In the federal sphere, judicial review of non-statutory administrative action must derive from s 61 of the Constitution. See Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017) 132.
110. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (‘Hickman’) provided the dominant approach for many years. That was replaced by S157 (2003) 211 CLR 476. The joint judgment in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 167 [68] (‘Futuris’) referred to ‘the tortuous path of statutory construction and reconciliation with which Dixon J [in Hickman] was concerned’.
111. John Murray, Review of Security of Payment Laws: Building Trust and Harmony (Department of Jobs and Small Business, 2017).
112. Probuild (2018) 351 ALR 225, 247–8 [84].
113. Ibid 256 [108].
114. (2010) 239 CLR 531.
115. Ibid 566 [55], 581 [98]–[99].
116. The majority side-stepped the issue in Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350, and Edelman J said, in effect, that ‘no invalidity’ clauses could remove any of the traditional grounds of judicial review of administrative action.
117. See, Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp [1979] 2 SCR 227, 237; Dunsmuir v New Brunswick [2008] 1 SCR 190, 214–15 [35], 223 [52], 224 [55], 249 [123], 258–9 [143], 265–6 [160]–[163].
118. (2003) 211 CLR 476.
119. Project Blue Sky (1998) 194 CLR 355, 390 [93] said that the labels ‘mandatory’ and ‘directory’ were conclusory and had ‘outlived their usefulness’. They are used here for the sake of convenience, acknowledging their conclusory nature.
120. S157 (2003) 211 CLR 476, 493–4 [33]–[36], 503–4 [65]–[68].
121. Probuild (2018) 351 ALR 225, 256 [108].
122. (2008) 237 CLR 146.
123. See also Chhua v Commissioner of Taxation [2018] FCAFC 86.
124. See Aronson, above n 42, 1073–4 [18.220].
125. See, however, Barr v DPP (NSW) (2018) 357 ALR 118, which suggested that a full appeal right to the Supreme Court might save a privative clause from invalidity. Using Kirk’s language, this would be because there would be no ‘islands of power’ beyond judicial scrutiny.
126. (2017) 326 FLR 122.
127. Ibid 161 [148]–[149] (Bathurst CJ), 213 [380] (Macfarlan JA).
128. Ibid 210 [367] (Basten JA).
129. Ibid 208–9 [358]–[360].
130. Ibid 160–1 [145].
131. Ibid 209 [360].
132. Ibid.
133. Ibid 168 [187], [193] (Bathurst CJ); 207–8 [354]–[357] (Basten JA).
134. Ibid 169 [195] (Bathurst CJ); 206 [349], 209 [361] (Basten JA).
135. Ibid 205 [347] (Basten JA).
136. (1992) 175 CLR 564.
137. Kaldas (2017) 326 FLR 122, 164 [168].
138. Ibid 164–5 [169]–[175].
139. Basten JA’s word at (2017) 326 FLR 122, 209 [360], in the context of analogising from Futuris.
140. This article will not examine the English turn to a highly intrusive substantive review of Ombudsmen reports and of Ministers’ attempts to disagree with the Ombudsman’s findings and recommendations. See Jason Varuhas, ‘Judicial Capture of Political Accountability’ (2016), online at <https://policyexchange.org.uk/>.
141. Kaldas (2017) 326 FLR 122, 169 [196].
142. Ibid 209 [361].
143. Independent Commission Against Corruption Act 1988 (NSW), s 114A.
144. Ibid s 109(1).
145. S157 (2003) 211 CLR 476, 494 [37] (Gleeson CJ). His Honour was speaking of the effect of a privative clause on an immigration decision alleged to have been taken against the plaintiff in breach of procedural fairness.