- Hickman was involved in hauling coal for the mining industry.
- The relevant Act empowered a “Local Reference Board” (LRB) to make all decisions about the coal mining industry. The act also contained a so-called privative clause, which acts to restrict ability to appeal the decision. Specifically the Act stated that a decision of the LRB “shall not be subject to prohibition in any court on any account whatever. This regulation also forbids such other remedies as appeal, mandamus or injunction”
- Hickman appealed a decision to the HCA.
- Could the statute ouster the ability to appeal the decision of the LRB?
- The Court had to consider the privative clause and determine whether it was lawful to restrict appeals in this way.
- The Court stressed that no privative clause could ouster the jurisdiction of the HCA under s 75 of the Constitution, as this would be unconstitutional. But this did not apply in this case.
- In agreeing that there were some circumstances where a privative clause would be lawful, Dixon J formulated the following three-limbed test:
- That the decision was a bona fide attempt to exercise its power;
- That the decision relates to the subject matter of the legislation; and
- It is reasonably capable of reference to the power given by the body.
- This has become known as the Hickman test, and outlines when a privative clause will be lawful.
- In this case, the decision maker actually failed the Hickman test, as the Court held that the truck drivers were not actually operating in the coal mining industry.
- This case is very significant and developed the Hickman test. It states that a privative clause can be lawful provided that it was a bona fide decision was about the subject of the legislation, and it was made within the powers of the decision maker.
“Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.” (Dixon J at  – emphasis added)
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