Privative clause
Encyclopedia
In administrative law
, a privative clause is a provision in a statute
that tries to remove a court’s ability to review
decisions of a tribunal (or other administrative agency). In the UK they are known as "ouster clauses".
The word ‘privative’ is derived from the Latin privare, meaning ‘to deprive’.
Historically, courts have shown resistance to such privative clauses. In Canada
and Australia
, courts have held that there are certain constitutional restrictions on the ability of legislatures to insulate administrative tribunal from judicial review by means of privative clauses. In Canada
. if there is a privative clause, there will be more deference given to the administrative tribunal than otherwise.
Privative clauses demonstrate the tension between the power of the legislature and the courts. They are subject to much controversy because on the one hand, Parliament has the elected right to make laws for the electorate, but also the courts have a constitutionally enshrined right to review and account for decisions. Justice William Orville Douglas of the US Supreme Court noted that privative clauses grant "tyrannical power" to administrative decision makers.
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
, a privative clause is a provision in a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
that tries to remove a court’s ability to review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
decisions of a tribunal (or other administrative agency). In the UK they are known as "ouster clauses".
The word ‘privative’ is derived from the Latin privare, meaning ‘to deprive’.
Historically, courts have shown resistance to such privative clauses. In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, courts have held that there are certain constitutional restrictions on the ability of legislatures to insulate administrative tribunal from judicial review by means of privative clauses. In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. if there is a privative clause, there will be more deference given to the administrative tribunal than otherwise.
Privative clauses demonstrate the tension between the power of the legislature and the courts. They are subject to much controversy because on the one hand, Parliament has the elected right to make laws for the electorate, but also the courts have a constitutionally enshrined right to review and account for decisions. Justice William Orville Douglas of the US Supreme Court noted that privative clauses grant "tyrannical power" to administrative decision makers.
External links
- "Expert Evidence Before Administrative Trbunals"
- "Statutory Restriction of Judicial Review", S.A. de Smith, The Modern Law Review, Vol. 18, No. 6 (November 1955), pp. 575–594
- "Privative Clauses! The Last Hurrah?", Paul Gerber