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Interpreting Privative Clauses: Implications for Taxation Law?


A hallmark of the democratic system of government has been the ability of citizens to seek judicial review of administrative decisions. In Australia this function was filled for many years by common law, with legislative enhancement by means of the administrative law reform of the 1970s. However the legislature can still attempt to preclude judicial review by the use of privative or ouster clauses in statutory regimes.

This paper reviews the evolving approach to statutory interpretation of privative clauses, with an examination of the application of such provisions in relation to the making of an assessment for the purposes of the taxation law provisions. Recent developments in the statutory interpretation and application of privative clauses are then outlined in the area of migration law where the High Court has recently sat in adjudication of privative clauses under which the government has sought to severely limit judicial review of migration decisions. Based on an analysis of the decision on migration privative clauses, particularly in relation to the role played by the 'Hickman principle', the paper then examines whether there has been a shift in the construct of privative clauses, and whether there are ramifications flowing from any such change for the application of privative clauses in tax administration.

Author profile:

Assoc Prof Rodney Fisher
Rodney is Associate Professor in the Faculty of Law, University of Technology Sydney. He is also a member of Adjunct Faculty at Atax, UNSW, lecturing in postgraduate CBD classes. Rodney has published widely in both academic and professional journals on a range of tax issues, and has presented both in Australia and overseas, addressing a range of both current tax technical issues and legal/policy matters. Current at 14 December 2012 Click here to expand/collapse more articles by Rodney FISHER.
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