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
The thesis of this article is that it is productive to view the Constitution’sentrenched 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 Constitution’s
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
II Part I: Back to Basics? A Guarantee of Legal Accountability
The Constitution entrenches a minimum provision for judicial review of Commonwealth
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)
the separation of Commonwealth judicial power.
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  -  (Gaudron,
McHugh, Gummow, Kirby, Hayne JJ). See also Bodruddaza v Minister for Immigration & Multicultural Affairs (2007)
228 CLR 651
(‘Bodruddaza’) 668-9  -  (Gleeson CJ, Gummow,Kirby, Hayne, Heydon and Crennan JJ); Graham v
Minister for Immigration (2017) 263 CLR 1 (’Graham’) 27  -  (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon
3Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 (‘Kirk’) 580-1  -  (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  -  (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Probuild
Constructions v Shade Systems (2018) 264 CLR 1, 13  -  (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
4Plaintiff S157/2002 (n 2) 505 - 506 , 511- 512 , 513 - 514  -  (Gaudron, McHugh, Gummow, Kirby,
5Plaintiff S157/2002 (n 2) 505 , 505 , 511- 512 (Gaudron, McHugh, Gummow,Kirby, Hayne JJ). See also Graham
(n 2) 24  -  (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).