Lunges, parries & the ouster clause

• ‘Ouster clauses’ prevent judicial review challenges targeting particular decisions by public bodies.
• The recent Oceana case provides proof of concept for a particular form of ouster clause, and the government is already identifying other opportunities to exclude judicial review using this ‘template’.
• There needs to be an appropriate political price for enacting ouster clauses. If they are routinised and courts are left to hold the line, it will be a clear sign of impending constitutional crisis.

Ouster clauses are provisions inserted into legislation to prevent judicial review challenges that target particular decisions by public bodies. They exclude the common law supervisory jurisdiction of the courts. The basis for them is that, under our constitution, Acts of Parliament are supreme and Parliament can curtail the jurisdiction of the courts if it so chooses.

How do the courts respond to ouster clauses?

The courts have three options when confronted