Commonwealth Consolidated Acts Commonwealth Consolidated Acts(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;
(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 |
11 | Division 14 of Part 2 | Recovery of costs |
12 | section 269 | Taking of securities |
13 | section 272 | Migrant centres |
14 | section 273 | Detention centres |
15 | Part 3 | Migration agents registration scheme |
16 | Part 4 | Court orders about reparation |
31 | regulation 5.35 | Medical treatment of persons in detention |
(4A) For the purposes of subsection (2), a decision under subsection 185(1) of the ART Act to refer a question of law arising in a proceeding for review of a reviewable migration decision or a reviewable protection decision to the Federal Court for decision is not a privative clause decision.
(5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, or under the ART Act, is not a privative clause decision.
(6) A decision mentioned in subsection (4) or (4A), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection (5), is a non - privative clause decision .
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection (2):
(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE or 351 or subsection 503A(3);
(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Note: Section 91Q was repealed by the Migration Amendment (Giving Documents and Other Measures) Act 2023 .
(1) Part 7 of the ART Act does not apply to an application in relation to, or a proceeding for the review of, any of the following:
(a) a privative clause decision;
(b) a purported privative clause decision;
(c) an ART Act migration decision.
(2) Despite subsection (1):
(a) section 185 (referring questions of law) of the ART Act applies to an application in relation to, or a proceeding for the review of, a reviewable migration decision or a reviewable protection decision; but
(b) the ART does not have a duty to consider a request to refer a question of law at the request of a party to a proceeding.
(2A) To avoid doubt, if the ART refers a question of law under section 185 of the ART Act, Division 6 of Part 7 of that Act applies in relation to the proceeding before the Federal Court in relation to the reference.
(3) Subdivision A of Division 2 of Part 7 of the ART Act (appeals on questions of law) does not apply to a decision of the ART under section 185 of that Act (referring questions of law) in relation to proceedings for review of a reviewable migration decision or a reviewable protection decision.