No-invalidity clauses in modern Australian jurisprudence: Avoiding islands of power immune from supervision and restraint

Ethan Anthony Heywood

Section 75(v) of the Constitution gives the High Court original jurisdiction in all matters in which a ‘writ of mandamus, prohibition and injunction is sought against an officer of the Commonwealth.’ In Plaintiff S157/2002 v The Commonwealth, the High Court held that s 75(v) of the Constitution entrenched a minimum provision of judicial review. The preservation of a minimum provision of judicial review means that legislative restrictions on the High Court’s s 75(v) jurisdiction are severely limited. The Court has made it clear that intrusion upon this minimum provision of judicial review is a question of substance and therefore degree. The privative clause, the historically preferred weapon of choice to limit judicial oversight, has been rendered largely ineffective by ‘creative’ approaches to interpretation. A consequence of the ineffectiveness of privative clauses has been the rise in the use of no-invalidity clauses. A no-invalidity clause is a provision in legislation that preserves the validity of a decision despite failure to adhere to the requirements in the legislation. By making a claim as to the validity of a decision, despite non-compliance with legislative requirements, the no-invalidity clause attempts to bring errors made by an administrative decision maker within jurisdiction. Classifying legal errors as non-jurisdictional arguably circumvents the exercise of the High Court’s s 75(v) jurisdiction to conduct judicial review, which is only available to correct jurisdictional errors of law. This would, at least superficially, appear to impede the jurisdiction of the High Court to conduct judicial review under its s 75(v) jurisdiction, at least in substance. In the 2008 High Court decision of Federal Commissioner of Taxation v Futuris Corporation Ltd, the High Court gave effect to a broad no-invalidity clause in s 175 of the Income Tax Assessments Act 1939 (Cth). Section 175 purported to make an income tax assessment valid notwithstanding any failure to adhere to the requirements laid out in the legislation. This conclusion is difficult to reconcile with the High Court’s broader jurisprudence on s 75(v), notably, the intention of the Court to look to substance and not form. However, an exploration of the High Court’s jurisprudence on the entrenched minimum provision of judicial review reveals that these concerns may be misguided. This thesis will explore key case law surrounding privative and no-invalidity clauses with the hope of rationalising the underlying approach that lends meaning to the minimum provision of judicial review. Once this is achieved, a more complete picture of the High Court’s decision in Federal Commissioner of Taxation v Futuris Corporation Ltd, and the approach to no-invalidity clauses generally, can be better understood.

No-invalidity clauses in modern Australian jurisprudence: Avoiding islands of power immune from supervision and restraint

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