Abstract:
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 ofthe 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.
