An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia

Young, Simon and Murray, Sarah (2011) An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia. Oxford University Commonwealth Law Journal, 11 (2). pp. 117-142. ISSN 1472-9342

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Abstract

In 2010 the Australian High Court overturned a state health and safety prosecution by means of a constitutional law advance not seen since the free speech cases and the Kable decision of the mid 1990s. Pursuant to this decision, Kirk v Industrial Court (NSW), the core supervisory jurisdiction of the Australian state Supreme Courts (over jurisdictional error) is now constitutionally protected against legislative ouster. In the ensuing rush of interest in this constitutional extension, the role and readiness of the other partner to the emerging public law collaboration—administrative law and its notoriously unsteady notion of 'jurisdictional error' has been somewhat neglected. This article attempts to draw together the threads of the constitutional development behind Kirk, and then proceeds to reassess the increasingly pivotal notion of jurisdictional error. It examines the High Court's recent forays into this administrative law conundrum, attempts to re-phrase the problem as a tension between 'internal' and 'external' approaches, and seeks to construct a solution.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: © Hart Publishing, Oxford and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 24 Jul 2014 07:41
Last Modified: 30 Jan 2017 06:27
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
18 Law and Legal Studies > 1801 Law > 180120 Legal Institutions (incl. Courts and Justice Systems)
18 Law and Legal Studies > 1801 Law > 180103 Administrative Law
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940499 Justice and the Law not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/25607

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