Who Decides the Validity of Executive Action? No-Invalidity Clauses and the Separation of Powers

There is a constitutional guarantee of judicial review of executive action at the State and federal level – at least on the ground of jurisdictional error of law. Attention has now shifted to the range of devices by which parliaments could evade this guarantee, by altering the scope of executive power. One such device is the no-invalidity clause. This article confirms that such clauses are not inconsistent with s 75 of the Constitution. However, their efficacy is constrained by the separation of the judicial power. This article then explains how no-invalidity clauses should be interpreted by the courts.