Federal Constitutional Influences on State Judicial Review

AuthorMatthew Groves
Published date01 September 2011
Date01 September 2011
Subject MatterArticle
Matthew Groves*
Since the late 1990s it has become increasingly clear that the Commonwealth Consti tution
is the dominant influence upon judicial review of administrative action in Australia.
The Constitution provides for a minimum entrenched provision of judicial review by
recognising and protecting the supervisory jurisdiction of the High Court. This
protection comes at a price because the separation of powers doctrine and the division
and allocation of functions it fosters impose many limits upon the reach and content of
judicial review of administrative action. This protective and restrictive effect of the
separation of powers upon judicial revie w of administrative action arguably reflects a
wider tension in t he separation of powers, in which the powers and limits of each arm
of government are balanced in a wider sense.
The extent to which these competing principles apply to judicial review at the State
level has long been unclear. There seemed good reason why judicial review at the State
level should not be subject to the restrictions that have arisen at the federal level. After
all, the various State constitutions did not adopt an entrenched separation of powers
like that of the Commonwealth Constitution .
The lack of any entrenched separation of
* Law Faculty, Monash University. This article is a revised version of a paper presented to
the New South Wales chapter of the Australian Association of Constitutional Law in 2010.
Thanks are due to Mark Aronson and reviewers for helpful comments.
This point was long acknowledged in different ways. Sometimes it was an acceptance that
the overall structure or particular provisions of a State constitution did not provide a basis
to hold or imply a principle of separation of powers. See, eg, Clyne v East (1967) 68 SR
(NSW) 385, 400 (discussing the Constitution Act 1902 (NSW)). In other instances the point
was acknowledged as a general principle that State legislatures could blur judicial and
other functions in a manner not permissible at the federal level. See, eg, Kotsis v Kotsis
(1970) 122 CLR 69, 76 (Barwick CJ). See also City of Collingwood v Victoria (No 2) [1994] 1 VR
652, 662-4. In that case the Full Court of the Supreme Court of Victoria accepted that ss 18
and 85 of the Constitution Act 1975 (Vic) entrenched the Supreme Court of Victoria by
protecting it against legislative impairment unless this was done with an a bsolute majority
of both houses of parliament. But the Full Court also rejected a ny suggestion that the
Constitution Act 1975 (Vic) adopted the separation of powers doctrine, expressly or by
necessary implication. See also John Basten, 'The Supervisory Jurisdiction of the Supreme
Courts' (2011) 85 Australian Law Journal 273, 278 where it is stated that 'conventionally, the
400 Federal Law Review Volume 39
powers was co nsistent with wider constitutional doctrine. It was also widely accepted
that Ch III of the Constitution did not e ntrench the position or function of State
Supreme Courts in the same way that it did for the High Court and other federal
At the same time, ther e was no marked distinction between Australian judicial
review doctrine at the Commonwealth or State level. Judicial review at the State level
did not witness a blurring of the merits/legality divide, or develop novel principles of
review that might have been impermissible at the fede ral level. This seemed a paradox.
State Supreme Courts were neither protected nor constrained by the separation of
powers doctrine in a rigid sense, yet they did not seem to step outside the broad
doctrinal limits established at the federal level. It seemed that State judicial review
adopted many of the doctrinal limits developed at the federal level but none of its
That has certainly changed with the confirmation in Kirk v Industrial Relations
Commission of NSW
of the existence of a constitutionally entrenched minimum level of
review at the State level. Kirk made clear that State legislature s cannot enact legislation
to remove the supervisory jurisdiction of State Supreme Court s over the actions of
State officials for jurisdictional error.
Kirk has received a warm reception for the
protection it provides judicial review at the State leve l.
At the same time, however, the
obvious be nefits that arise from the constitutiona l entrenchment of judicial review at
the Sta te level should not distract attention from the restrictions that inevitably arise
from the Constitution.
At the f ederal level the Constitution not only protects a minimum level of judicial
review, it also limits judicial review in several important ways. Just as the Constitution
simultaneously defines and confines judicial review at the federal level, it now surely
does so at the State level. Those institutional features i n turn i mpose limits on specific
grounds of judicial review such as substantive unfairness or proportionality which, in
light of Kirk, surely face the same constitutional restrictions at the State level. This
article examines the natur e of those limits and how Kirk reinforces constitutional
limitations upon State legislatures and courts. First, however, it is useful to briefly
examine the recent evolution of the constitutionall y entrenched jurisdiction of the High
Court against which the jurisdiction recognised in Kirk must be understood.
doctrine of separation of powers has been held not to operate in relation to State
Constitutions, or at least not with the same rigour as under the federal Constitution.'
An obvious exception is the incompatibility principle of Kable v Director of Pub lic
Prosecutions (NSW) (1996) 189 CLR 51 which was relied upon in International Finance Trust
Co Ltd v NSW Crime Commission (2009) 240 CLR 319 and South Australia v Totani (2010) 242
CLR 1. The principle is explained in James Stellios, The Federal Jud icature (LexisNexis, 2010)
(2010) 239 CLR 531 ('Kirk').
The crucial passages acknowledging this jurisdiction are at (2010) 239 CLR 531, 5801.
Basten, above n 1, 273. Many commentators have examined Kirk and its consequences in
great detail but have not explicitly endorsed or rejected, though appear to impliedly
welcome the greater alignment the case has achieved between State and Commonwealth
courts. See, eg, JJ Spigelman, 'The Centrality of Jurisdictional Error' (2010) 21 Public Law
Review 77; Chris Finn, 'Constitutionalising Supervisory Review at the State Level: The End
of Hickman?' (2010) 21 Public Law Review 92. Finn discusses Kirk and its consequences in
detail but refrains from explicitly endorsing or rejecting the case.
2011 Federal Constitutional Influences on State Judicial Review 401
Kirk may have secured judicial review at the State level but its foundations were laid in
earlier State cases which in turn shaped federal constitutional doctrine. Much of the
analysis of Kirk has overlooked the point that the re cent starting point for the now
orthodox and cen tral principles of federal constitutional doctrine governing judicial
review, which Kirk transmitted to the State level, beg an life at the State level. A brief
history of these cases demonstrates that the co nstitutional principles confirmed in Kirk
were not strictly federal in character but were instead ones which pr oceeded on the
assumption that the core principles governing judicial review did not differ between
the Commonwealth and the States. Kirk therefore marked a later step in a process that
had begun much earlier.
Attorney-General (NSW) v Quin
was an unlikely vehicle for the development of
these principles because it seemed a purely State case involving questions at the very
heart of the State judicial system. Mr Quin was one of several long serving judges
whose position was rescinded by statute as part of the replacement of the court of
which he was a member. The Attorney-General of the day undertook to consider
applicants f or positions on the new court from a pool of judicial officers drawn only
from t he old court. Quin and several other former judicial off icers were not selected
and succe ssfully claimed a denial of natural justice.
The Attorney then changed the
selection policy so that future appointments would be considered on a competitive
basis and drawn from an open field. A majority of the High Court rejected Quin's
claim to a legitimate expectation that his application would be treated according to the
advantageous earlier policy.
The case could have rested there but for the wider
remarks Brennan J made on the purpose and scope of judicial review.
Brennan J drew an explicit connection betwee n judicial review and the Constitution
which made no a pparent distinction between the Commonwealth and the States.
Brennan J began with the proposition that the 'essential warrant' of the judicial arm of
government was to declare and enforce the law which he noted included judicial
supervision of executive action that might exceed the Constitution. His Honour
reasoned a similar duty extended to judicial review of administrative action that might
exceed the authority by which officials acted.
Brennan J drew support for this
proposition from the emphatic declaration of Marshall CJ in Marbury v Madison that it
was 'the province and duty of the judicial department to say what the law is.'
In his
fusion of this principle delineating the constitutional role of the co urts to judicial
review of administrative action, Brennan J reasoned that the constitutional basis of this
function both defined and confined the character of judicial review. Acc ording to this
(1990) 170 CLR 1 ('Quin').
Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268.
Quin (1990) 170 CLR 1, 234 (Mason CJ), 41 (Brennan J), 60 (Dawson J). Their Honours were
influenced in this conclusion by the fettering principle: 17 (Mason CJ), 33 (Brennan J), 60
(Dawson J).
Ibid 35.
5 US (1 Cranch) 137, 177 (1803).

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