A proposed statutory remedial power for the Commissioner of Taxation: A Henry VIII Clause to benefit taxpayers?

Recently the Tax and Superannuation Laws Amendment (2016 Measures No 2) Bill 2016 was introduced into Parliament proposing to incorporate a statutory remedial power into Commonwealth revenue legislation. Under the proposal, a statutory remedial power will vest in the Commissioner of Taxation a quasi-legislative power to modify revenue and superannuation laws to remedy "unforeseen or unintended outcomes" where it is beneficial to the taxpayer. The stated goal of enacting such a measure is to provide a timelier resolution of these issues.

An effectively drafted and administered measure could provide significant benefits for taxpayers; however, this measure presents challenges to the rule of law and it could be argued takes the form of a Henry VIII Clause.

This article will provide the background and context to the proposed statutory remedial power. It will further consider whether a statutory remedial power could be categorised as a Henry VIII Clause and why such clauses are considered undesirable. The article will conclude by postulating if the benefits arising from a properly administered statutory remedial power are sufficient to justify this delegation of power to the Commissioner of Taxation.