The Scope of Section 75(V) of the Constitution: Why Injunction but no Certiorari?
| Date | 01 June 2014 |
| DOI | 10.22145/flr.42.2.1 |
| Published date | 01 June 2014 |
| Subject Matter | Article |
THE SCOPE OF SECTION 75(V) OF THE CONSTITUTION:
WHY INJUNCTION BUT NO CERTIORARI?
The Hon William Gummow AC*
ABSTRACT
The course of judicial decisions given pre-federation in the United States a nd England
where the remedy of certiorari or of injunction was granted or refused against public
officers assists an understanding of t he apparent oddity in the omission of certiorari and
the inclusion of injunction in the r emedies specified in s 75(v) of the Constitution. Further,
the significance of the inclu sion of the injunction has yet to be fully examined in the case
law dealing with s 75(v).
INTRODUCTION
Alone of the nine heads of federal jurisdictio n in ss 75 and 76 of the Constitution, s 75(v)
is concerned specifically with remedies. However, s 75(v), in using the terms ‘a writ of
Mandamus or prohibition or a n injunction’, cannot be rea d as if written upon a blank
slate. Like certiorari, these were particular remedies which before Federation had been
developed in the courts of common law and of equity. However, their inclusion in s 75(v)
and the omission of certiorar i ensured that in Australia many questions of
administrative law remedy pose issues of co nstitutional law.
From time to time it is suggested t hat s 75(v) was included in Ch III for more
abundant caution, to ensure that the High Court not lack that origina l jurisdiction,
whose absence in the Supreme Court of the United States had determined the actual
result in Marbury v Madison. 1 It also is suggested that s 75(v) is surplus to requirements,
because officers of the Commonwealth would alway s be persons being sued on behalf
of the Commonwealth and t hus any application under s 75 (v) would fall within the
general terms of s 75(iii).
One may accept the first point but it does not illuminate the subject of this paper, the
choice of particular remedies in drawing s 75(v). The second, with its focus upon t he
apparent amplitude of s 75(iii), requires fuller attention.
It is a general principle of tex tual construction that the conferral of an explicit but
limited power or authority by one provision excludes the operation of a generally
* This paper was first presented at the Public Law Weekend organised by the Centre for
International and Public Law, ANU College of Law on 15 November 2013. The writer is
indebted to the Commonwealth Solicitor-General, Mr Justin Gleeson SC, for his commentary
on this paper in its original form.
1 5 US (1 Cranch) 137 (1803).
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