Kirk v Industrial Court (NSW): State Privative Clauses and Jurisdictional Error in Inferior Courts

Abstract

Kirk v Industrial Court (NSW) (2010) 239 CLR 531 is a very important decision for the Constitutional Law of the Australian States, and for Administrative Law insofar as it is applied to courts of limited jurisdiction in Australia. An indication of its influence may be that, since the High Court’s judgment was handed down in February 2010, it has been cited by Australian courts in no fewer than 200 judgments.The decision in Kirk seems generally to have been welcomed by most commentators. In one sense, that is not surprising. The assimilation of the constitutional position of the Australian States to that of the Commonwealth would be regarded by most as an instinctively satisfying development. And the thought that State courts, and particularly inferior State courts, might make errors of law incapable of correction by higher courts, and ultimately the High Court, is, at first blush, a generally unattractive proposition.In this paper I offer a critique of some aspects of the reasoning in Kirk, and consider some of the possible implications of the decision.