Henry VIII clauses

ADCO Constructions v Goudappel [2014] HCA 18

Provisions delegating legislative power to administrators are often called ‘Henry VIII clauses’, due to their autocratic vibe10.  Their constitutionality is seldom in doubt11, but they attract greater scrutiny and are read strictly to their statutory purpose12.  A recent example allows the Tax Commissioner, by legislative instrument, to modify the operation of new purchaser withholding provisions13

Courts now have less angst about Henry VIII clauses.  In ADCO (at [61]), Gageler J said that parliamentary oversight and later judicial review diminish their ‘pejorative labelling’, and show a ‘legislative balance between flexibility and accountability’.

This case is from Episode 35 of interpretationNOW!


10 PSA [2012] HCA 58 (at [18]), Lees [1985] AC 930.

11 PSA [2014] NSWCA 116 (at [102]), cf Diakou [2017] SASC 72 (at [34]).

12 Cvetanovski [2015] VSCA 65 (at [53]), Spath Holme [2001] 2 AC 349 (at 382).

13 s 14-250(3) of Schedule 1 to TAA53.