The Constitution’s Guarantee of Legal Accountability for Jurisdictions

DOI10.1177/0067205X211039887
Published date01 December 2021
Date01 December 2021
subjectMatterArticles
Article
Federal Law Review
2021, Vol. 49(4) 528553
© The Author(s) 2021
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DOI: 10.1177/0067205X211039887
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The ConstitutionsGuarantee of
Legal Accountability for Jurisdictions
Emily Hammond*
Abstract
This article argues that the Constitutions entrenched provision for judicial review may be un-
derstood as a guarantee of legal accountability for a specif‌ic class of governmental powers, namely,
powers whose exercise has a legal effect on rights and obligations (jurisdictions). The papers
argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA
275 on the class of administrative actions that are amenable to entrenched judicial review of State
powers. The article shows that the application of this understanding to entrenched review of
Commonwealth powers has signif‌icant explanatory value. It casts new light on two puzzling features
of entrenched review of Commonwealth powers: The discrimen between executive and judicial
power that underpins a separation of powers rationale for entrenched review of Commonwealt h
executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Com-
monwealth off‌icers. Viewing entrenched review as a guarantee of legal accountability for juris-
dictions prompts new insights into its constitutional rationale and its specif‌ic contribution to
government under law.
Received 13 August 2020
I Introduction
It is well-established that the Constitution guarantees judicial review of Commonwealth and State
public powers for jurisdictional error. The term jurisdictional errorhas strong doctrinal conno-
tations for Australian lawyers. It sets us down the path of thinking about an implied distinction
between two distinct types of error that can occur in a purported exercise of public authority those
that invalidate and those that do not. However, before proceeding down that path we may do well to
notice the underlying structuring concept, namely,that of a jurisdiction. The term has a generic meaning
(authority) but also has a more specif‌ic meaning in judicial review (authority to determine legal rights
and obligations). Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275 (Kaldas)
1
cast a light
*Associate Lecturer, The University of Sydney Law School, Sydney, NSW, Australia. My thanks to the journals referees for
their helpful comments. The author may be contacted at emily.hammond@sydney.edu.au
1Kaldas v Barbour (2017) 350 ALR 292 [2017] NSWCA 275 (Kaldas). See also Keane, Judicial Review: The Courts and
the Academy(2008) ALJ 623.
on the potential signif‌icance of this more specif‌ic meaning for entrenched review of State powers.
Judicial observations in Kaldas suggest that entrenched review of State powers is, in essence, a gua rantee
of legal accountability for the exercise of government powers whose exercise affects legal rights or
obligations.
The thesis of this article is that it is productive to view the Constitutionsentrenched provision for
judicial review as a guarantee of legal accountability for jurisdictions (so def‌ined). The article will
show that this perspective is consistent with the two sources of entrenchment for judicial review of
Commonwealth powers the separation of Commonwealth judicial power; and the grant of original
jurisdiction to the High Court in section 75. More importantly, the paper will show that this
understanding of entrenched review casts new light on two contested aspects of the Constitutions
provision for review. Adopting a focus on jurisdictions (powers with legal effects) prompts rec-
ognition of the quality that may be present in judicial jurisdictions but is denied to executive
jurisdictions, and thus casts light on why the separation of judicial power entrenches judicial review
of executive action. It also provides a compelling account of the scope of the authority to issue
injunctive relief against Commonwealth off‌icers conferred by s 75(v). These explanatory benef‌its
further recommend the Kaldas perspective on entrenched review.
I make the argument as follows: In Part I, I outline a Kaldas inspired perspective on entrenched
review as a guarantee of legal accountability for jurisdictions.InParts II and III, I turn to the
coherence of this view with two bases for entrenched judicial review of Commonwealth powers
the separation of Commonwealth judicial and executive powers; and s 75. In Part IV, I brief‌ly
address some anticipated concerns about the implications of a Kaldas perspective for judicial review
doctrine.
II Part I: Back to Basics? A Guarantee of Legal Accountability
For Jurisdictions
The Constitution entrenches a minimum provision for judicial review of Commonwealth
2
and
State
3
public powers that cannot be denied or foreclosed by parliament. The Court has identif‌ied two
sources of constitutional entrenchment for review of Commonwealth powers section 75(v)
4
; and
the separation of Commonwealth judicial power.
5
In the States, section 73 of the Constitution
entrenches the essential characteristics of State Supreme Courts, including their supervisory ju-
risdiction, exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus),
to determine and enforce limits on the exercise of State executive and judicial power by persons and
2Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002) 513-514 [103] - [104] (Gaudron,
McHugh, Gummow, Kirby, Hayne JJ). See also Bodruddaza v Minister for Immigration & Multicultural Affairs (2007)
228 CLR 651 (Bodruddaza) 668-9 [45] - [46] (Gleeson CJ, Gummow,Kirby, Hayne, Heydon and Crennan JJ); Graham v
Minister for Immigration (2017) 263 CLR 1 (Graham) 27 [48] - [49] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon
JJ).
3Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 (Kirk) 580-1 [96] - [100] (French CJ, Gummow,
Hayne, Crennan, Kiefel and Bell JJ). See also Public Service Association of South Australia Inc v Industrial Relations
Commission (SA) (2012) 249 CLR 398, 421-423 [60] - [63] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Probuild
Constructions v Shade Systems (2018) 264 CLR 1, 13 [29] - [30] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
4Plaintiff S157/2002 (n 2) 505 - 506 [75], 511- 512 [98], 513 - 514 [103] - [104] (Gaudron, McHugh, Gummow, Kirby,
Hayne JJ).
5Plaintiff S157/2002 (n 2) 505 [73], 505 [75], 511- 512 (Gaudron, McHugh, Gummow,Kirby, Hayne JJ). See also Graham
(n 2) 24 [39] - [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Hammond 529

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