An Elegant Convergence? The Constitutional Entrenchment of ‘Jurisdictional Error’ Review in Australia

Abstract

In 2010 the Australian High Court overturned a state health and safety prosecution by means of a constitutional law advance not seen since the free speech cases and the Kable decision of the mid 1990s. Pursuant to this decision, Kirk v Industrial Court (NSW), the core supervisory jurisdiction of the Australian state Supreme Courts (over jurisdictional error) is now constitutionally protected against legislative ouster. In the ensuing rush of interest in this constitutional extension, the role and readiness of the other partner to the emerging public law collaboration—administrative law and its notoriously unsteady notion of 'jurisdictional error' has been somewhat neglected. This article attempts to draw together the threads of the constitutional development behind Kirk, and then proceeds to reassess the increasingly pivotal notion of jurisdictional error. It examines the High Court's recent forays into this administrative law conundrum, attempts to re-phrase the problem as a tension between 'internal' and 'external' approaches, and seeks to construct a solution.