The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review

Abstract

The High Court has held that the Constitution entrenches a 'minimum provision of judicial review'. In the context of privative clauses, the contours of that minimum provision are settled - the supervisory jurisdiction of the High Court and the State Supreme Courts to review for jurisdictional error cannot be excluded. In respect of privative clauses contained in Commonwealth legislation, conflict with s 75(v) of the Constitution provides the constitutional anchor for the minimum provision, while in State jurisdiction the textual anchor is found in the constitutional definition of a 'court', as that term is used in Ch III. In respect of other elements of judicial review, particularly the substantive principles of review, the position is radically unclear. One commentator has observed that, if the Constitution does contain principles prohibiting the exclusion of the substantive principles of judicial review, 'it is not obvious where they lie or what the justification for them might be.'