Why These Three? the Significance of the Selection of Remedies in Section 75(V) of the Australian Constitution
| Published date | 01 June 2014 |
| DOI | 10.22145/flr.42.2.2 |
| Date | 01 June 2014 |
| Author | Lisa Burton |
| Subject Matter | Article |
WHY THESE THREE? THE SIGNIFICANCE OF THE
SELECTION OF REMEDIES IN SECTION 75(V) OF THE
AUSTRALIAN CONSTITUTION
Lisa Burton*
ABSTRACT
Section 75(v) of the Australian Constitution gives the High Court original jurisdiction to
hear ‘all matters … in which a writ of Mandamus or prohibition or an injunction is
sought against an officer of the Commonwealth.’ This is said to guarantee the Court’s
ability to ensure that officers of the Commonwealth act within the law. Yet the s 75(v)
jurisdiction is clearly limited. The Court is not authorised to hear all matters in which it
is alleged that an officer of the Commonwealth has acted unlawfully; it is only given
jurisdiction to hear matters in which a (somewhat surprising) selection of remedies are
sought. This is confusing in itself, and it has caused broader confusion about the
purpose and scope of this important constitutional provision. This article examines the
historical ambit of the judicial review remedies and evidence from the Constitutional
Convention Debates in order to determine why s 75(v) only gives the High Court
jurisdiction to hear matters in which mandamus, prohibition and injunction are
sought, and the significance of this for judicial review under the Australian Constitution.
I INTRODUCTION
In an oft-quoted passage, Justice Dixon said that s 75(v) was included in the Australian
Constitution ‘to make it constitutionally certain that there would be a jurisdiction
capable of restraining officers of the Commonwealth from exceeding Federal power.’1
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*
BA/LLB UWA; BCL Oxon; PhD Candidate, Monash University. I wish to thank Professor
Jeffrey Goldsworthy, Dr Colin Campbell, Ms Janina Boughey, Mr Julian Sempill and the
anonymous reviewers for their valuable assistance. All errors remain my own.
1 Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 363 (Dixon J); cited or quoted in
(for example) A-G (Cth) v T&G Mutual Life Society Ltd (1978) 144 CLR 161, 189 (Aickin J);
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 178–9 (Mason
CJ); Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 138 [155] (Hayne J) (‘Ex parte
Aala’); Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 668
[45] (‘Bodruddaza’); Plaintif S157/2002 v Commonwealth (2003) 211 CLR 467, 513–4 (Gaudron,
McHugh, Gummow, Kirby and Hayne JJ) (‘Plaintiff S157’); Leslie Zines, Cowen and Zines’s
Federal Jurisdiction in Australia (Federation Press, 3rd ed, 2002), 35; Sir Anthony Mason, ‘The
Analytical Foundations, Scope and Comparative Analysis of the Judicial Review of
Administrative Action’ in Geoffrey Lindell (ed), The Mason Papers (Federation Press, 2007)
180, 181; James Stellios, ‘Exploring the Purpose of Section 75(v) of the Constitution’ (2011) 34
University of New South Wales Law Journal 70, 71; Charles Noonan, ‘Section 75(v), No-
254
Federal Law Review
Volume 42
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More recently, the High Court said that s 75(v) ‘is a means of assuring to all people
affected that officers of the Commonwealth obey the law and neither exceed nor
neglect any jurisdiction which the law confers on them’.2
But statements like this do not really say much about the nuts and bolts of the High
Court’s judicial review jurisdiction. In particular, they fail to explain the selection of
remedies in s 75(v). If the purpose of s 75(v) is to enable the High Court to ensure that
all Commonwealth officers obey the law, then why does it only give the High Court
jurisdiction to hear matters in which three particular remedies are sought?
Aronson and Groves have described the selection of remedies in s 75(v) as
‘peculiar’.3 They note that s 75(v) ‘fails to mention declaratory relief, habeas corpus,
quo warranto or certiorari, which are all remedies often or typically associated with
judicial review litigation’.4 Similarly, Mark Leeming described it as ‘strange’ that s
75(v) fails to mention remedies ‘which tend to be of equal if not greater utility than
those included’.5 In short, the selection of remedies in s 75(v) limits the scope of that
jurisdiction. This seems at least partially inconsistent with the ‘centrality, and
protective purpose’6 of s 75(v).
The most ‘glaring omission’ from s 75(v) is certiorari.7 It seems ‘odd’ that this
remedy was not included,8 given it played a major part in the development of judicial
review since the 16th century.9 Why would such an important remedy have been left
out of s 75(v)? In Plaintiff S157, Justice Callinan suggested it may be because certiorari,
unlike mandamus and prohibition, can quash a decision if a non-jurisdictional error of
law appears on the face of its record.10 If that is the case, then the omission of certiorari
seems to make sense, and give some indication of the intended limits of s 75(v) as a
whole. It could be described as a manifestation of the constitutional significance of
jurisdictional error. However, this explanation remains to be tested.
invalidity Clauses and the Rule of Law’ (2013) 36 University of New South Wales Law Journal
437, 437.
2 Plaintiff S157 (2003) 211 CLR 467, 513–14 (Gaudron, McHugh, Gummow, Kirby and Hayne
JJ); cited with approval in Bodruddaza (2007) 228 CLR 651, 669 (Gleeson CJ, Gummow,
Kirby, Hayne, Heydon and Crennan JJ).
3 Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co,
2013) 50.
4
Ibid.
5 Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press,
2012) 249–50.
6 Plaintiff S157 (2003) 211 CLR 467, 514 [104] (Gaudron, McHugh, Gummow, Kirby and
Hayne JJ).
7
Zines, above n 1, 51. See also Noonan, above n 1, 442.
8
L J W Aitken, ‘The High Court’s Power to Grant Certiorari — the Unresolved Question’
(1986) 16 Federal Law Review 370, 371.
9 Kevin Costello, ‘The Writ of Certiorari and Review of Summary Criminal Convictions,
1660–1848’ (2012) 128 Law Quarterly Review 443, 443.
10 Plaintiff S157 (2003) 211 CLR 467, 521 [121]. See somewhat similarly Re Minister for
Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1176
(McHugh and Gummow JJ); William Gummow, ‘The Scope of Section 75(v) of the
Constitution: Why Injunction But No Certiorari?’ (Paper Presented at the Public Law
Weekend, Australian National University Canberra, 15 November 2013).
2014
Significance of the Selection of Remedies in s 75(v) of the Constitution
255
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Commentators have also questioned why injunction was included in s 75(v). In their
annotated commentary on the Constitution, Quick and Garran stated that ‘the necessity
for the mention of injunctions … is not quite apparent’.11 There are three reasons why
this remedy does not seem to fit. First, injunction is often perceived as a private law
remedy, of little use in public law.12 Quick and Garran described injunction as ‘on a
different footing altogether from mandamus and prohibition; it is an ordinary remedy
in private suits between party and party.’ 13 Secondly, unlike mandamus and
prohibition, injunction does not belong to that group of remedies previously known as
‘prerogative writs’.14 Thirdly, it is now said that an injunction can be used to remedy
non-jurisdictional errors of law, whereas mandamus and prohibition cannot.15 If this is
correct, then there is a significant disparity in the breadth of the three s 75(v) remedies.
This sits uneasily with the story that s 75(v) was included to make it constitutionally
certain that the High Court would have jurisdiction to restrain Commonwealth officers
from exceeding federal power.16 It also casts significant doubt on the suggestion that
certiorari was left out because it can remedy patent non-jurisdictional errors of law.
Finally, commentators often state that s 75(v) was included ‘to avoid the result in
Marbury v Madison’,17 the case in which the US Supreme Court was famously found to
lack the jurisdiction to issue a writ of mandamus against the US Secretary of State. But
the decision in Marbury v Madison is rarely explained in detail, and it does not
necessarily explain the inclusion of prohibition or injunction in s 75(v). 18 This
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11 John Quick and Robert Garran, Commentaries on the Constitution of the Commonwealth of
Australia (Angus and Robertson, 1901) 783.
12 See, eg, F W Maitland, Equity: A Course of Lectures (Cambridge University Press, 1936) 19.
Aronson and Groves make the lesser claim that, while prohibition and mandamus are
always associated with judicial review, injunction ‘can be’: above n 3, 50.
13 Quick and Garran, above n 11, 783.
14 Leeming, above n 5, 249–50. I say ‘previously known as’ to indicate both that, when issued
by the High Court, mandamus and prohibition are now known as ‘constitutional writs’,
and because they are no longer ‘writs’ in the historical sense of that term. See Re Refugee
Tribunal; Ex parte Aala (2000) 204 CLR 82, 93 [21] (Gaudron and Gummow JJ); Lord Harry
Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 7th ed, 2013), 857–8; S A De Smith,
‘The Prerogative Writs’ (1951) 11 Cambridge...
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