The Approach of the Courts to the construction and application of time limit privative clauses

Thomson Lawbook Company
Publication Type:
Journal article
Ellis-Jones Ian 2006, 'The Approach of the Courts to the construction and application of time limit privative clauses', Thomson Law Book Co, vol. 11, no. 3, pp. 153-159.
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A time limit privative clause differs from other types of privative clauses in that it is analogous to a statute of limitations. By its very nature, this type of privative clause does not constitute an absolute bar to judicial review. Thus, there is not the same compulsion to construe the clause as strictly as is the case with other types of privative clauses. Subject to one important qualification (compliance with the well-known Hickman principle and any other "inviolable limitations or restraints" on the power), a time limit privative clause in a statute passed by a state legislature ordinarily will prevent judicial review once the time period has expired. Despite some earlier confusion, a much clearer and more predictable and consistent approach is now being taken by superior courts in the exercise of their inherent supervisory powers of judicial review of administrative decisions. In particular, it now seems beyond doubt that a failure to observe "inviolable limitations or restraints" is a jurisdictional error and, accordingly, not a "decision" under the relevant enactment even as regards a time limit privative clause expressed to prevent the questioning of "validity" of a decision which has been held to otherwise extend to ''purported decisions" as well as "decisions".
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