File(s) under permanent embargo
An alternative (partial) justification for the holding in Kirk
In Kirk v Industrial Court (NSW), the High Court determined that, based on
“accepted doctrine at the time of Federation”, s 73 of the Constitution
entrenched the jurisdiction of the State Supreme Courts to review the
decisions of State decision-makers on the grounds of jurisdictional error. In an
earlier article, the author argued that this reasoning was seriously flawed. This
article propounds an alternative, partial justification for the holding in Kirk,
based on features inherent in the text and structure of Ch III of the Constitution
at Federation and the preservation of those features in the face of the
post-Federation dismantling of the imperial legal system. It argues that an
implication can be inserted into s 73 which entrenches the jurisdiction of the
State Supreme Courts to review the decisions of “Lower State Courts”, but not
“State Administrators”.
“accepted doctrine at the time of Federation”, s 73 of the Constitution
entrenched the jurisdiction of the State Supreme Courts to review the
decisions of State decision-makers on the grounds of jurisdictional error. In an
earlier article, the author argued that this reasoning was seriously flawed. This
article propounds an alternative, partial justification for the holding in Kirk,
based on features inherent in the text and structure of Ch III of the Constitution
at Federation and the preservation of those features in the face of the
post-Federation dismantling of the imperial legal system. It argues that an
implication can be inserted into s 73 which entrenches the jurisdiction of the
State Supreme Courts to review the decisions of “Lower State Courts”, but not
“State Administrators”.
