Privative clause

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In administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal (or other administrative agency).

The word ‘privative’ is derived from the Latin privare, meaning ‘to deprive’.

For example, suppose the legislature enacts labour relations legislation, including the creation of a labour relations board, a tribunal to determine disputes between corporations and trade unions. The legislature may be concerned that the board will not command sufficient respect if its decisions are frequently reversed by the courts. The legislature may also believe that many judges hold a point of view on labour relations that is too traditional, not in accordance with what the legislature seeks to achieve with this legislation. Finally, the legislature may be concerned that if the board’s decisions are routinely taken to judicial review, then the system will become bogged down in delay. Therefore, the legislature could include a privative clause in the legislation. The clause may say something like, “Decisions of the labour relations board are final and binding and shall not be questioned in any court.” The intention would be to give the labour relations board the final word on interpreting the substantive provisions of the legislation so that even if the court disagrees with how the labour relations board has interpreted the law, the court would have to let the board’s decision stand.

Historically, courts have shown resistance to such privative clauses. In Canada and Australia, courts have held that there are certain constitutional restrictions on the ability of legislatures to insulate administrative tribunal from judicial review by means of privative clauses.