Developing a Constitutionally Appropriate Method of Circumventing Statutory Ouster Clauses

Abstract

The Court's approach towards circumventing ouster clauses has varied dramatically over time. The original focus of the Court was on whether the body in question had 'jurisdiction' to make a decision. If they were found to be acting outside of their jurisdiction, this would justify circumventing the statutory ouster clause on the grounds that the body was acting ‘ultra vires’, and as such against the will of Parliament. This thesis has found ‘ultra vires’ to be an inappropriate theoretical foundation for judicial review, in its inability to properly delineate the boundaries of administrative power. Furthermore, the focus on ‘jurisdiction’ as central to the standard of judicial review has been criticised for its narrow and inflexible nature, and its failure to respect the unique contexts of each individual case.

In the later cases of Cart and Privacy International, the courts rejected the narrow focus on ‘jurisdiction’ and ‘ultra vires’, favouring a more holistic approach to delineating the boundaries of judicial review. This approach embodies the modified ultra vires theory, which will be shown to provide the most appropriate basis for judicial review. It works to balance the intention of Parliament as evident in statute with the implied intention of Parliament to confer power within the boundaries of the Rule of Law, justifying the recent controversial decision in Privacy International.