The entrenched minimal provision of judicial review and the rule of law
Date
2010
Authors
McDonald, Leighton
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Publisher
The Law Book Company
Abstract
In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, the High Court
held that s 75(v) of the Constitution entrenches a “minimum provision of
judicial review” which limits the effectiveness of statutory attempts to impair
the judicial review of Commonwealth administrative action and constitutes a
“textual reinforcement” of the “rule of law”. This article identifies two possible
ways in which the rule of law might give content to the idea of the minimum
provision of judicial review. The article proceeds primarily through an analysis
of the High Court’s reasons in Commissioner of Taxation v Futuris Corp Ltd
(2008) 237 CLR 146 and argues that neither of the suggested approaches to
thinking about the rule of law is likely to generate a clearly demarcated
minimum provision of judicial review applicable to all statutory contexts. The
article analyses two distinct statutory techniques aimed at restricting judicial
review – privative clauses and no-invalidity clauses – and identifies and
discusses the particular challenge posed by no-invalidity clauses to the
rule-of-law purpose the High Court has attributed to s 75(v).
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Public Law Review
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Journal article
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Restricted until
2037-12-31
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