¹ This point was long acknowledged in different ways. Sometimes it was an acceptance that the overall structure or particular provisions of a State constitution did not provide a basis to hold or imply a principle of separation of powers. See, eg, Clyne v East (1967) 68 SR (NSW) 385, 400 (discussing the Constitution Act 1902 (NSW)). In other instances the point was acknowledged as a general principle that State legislatures could blur judicial and other functions in a manner not permissible at the federal level. See, eg, Kotsis v Kotsis (1970) 122 CLR 69, 76 (Barwick CJ). See also City of Collingwood v Victoria (No 2) [1994] 1 VR 652, 662-4. In that case the Full Court of the Supreme Court of Victoria accepted that ss 18 and 85 of the Constitution Act 1975 (Vic) entrenched the Supreme Court of Victoria by protecting it against legislative impairment unless this was done with an absolute majority of both houses of parliament. But the Full Court also rejected any suggestion that the Constitution Act 1975 (Vic) adopted the separation of powers doctrine, expressly or by necessary implication. See also John, Basten, ‘The Supervisory Jurisdiction of the Supreme Courts’ (2011) 85 Australian Law Journal 273Google Scholar, 278 where it is stated that ‘conventionally, the doctrine of separation of powers has been held not to operate in relation to State Constitutions, or at least not with the same rigour as under the federal Constitution.'

² An obvious exception is the incompatibility principle of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 which was relied upon in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 and South Australia v Totani (2010) 242 CLR 1. The principle is explained in James, Stellios, The Federal Judicature (LexisNexis, 2010) 408-49Google Scholar.

³ (2010) 239 CLR 531 ('Kirk’).

⁴ The crucial passages acknowledging this jurisdiction are at (2010) 239 CLR 531, 580–1.

⁵ Basten, above n 1, 273. Many commentators have examined Kirk and its consequences in great detail but have not explicitly endorsed or rejected, though appear to impliedly welcome the greater alignment the case has achieved between State and Commonwealth courts. See, eg, JJ, Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77Google Scholar; Chris, Finn, ‘Constitutionalising Supervisory Review at the State Level: The End of Hickman?’ (2010) 21 Public Law Review 92Google Scholar. Finn discusses Kirk and its consequences in detail but refrains from explicitly endorsing or rejecting the case.

⁶ (1990) 170 CLR 1 ('Quin’).

⁷ Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268.

⁸ Quin (1990) 170 CLR 1, 23–4 (Mason CJ), 41 (Brennan J), 60 (Dawson J). Their Honours were influenced in this conclusion by the fettering principle: 17 (Mason CJ), 33 (Brennan J), 60 (Dawson J).

⁹ Ibid 35.

¹⁰ 5 US (1 Cranch) 137, 177 (1803).

¹¹ Quin (1990) 170 CLR 1, 35-6. The extended reasoning from which this passage is taken was approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

¹² Ibid 36. Basten has usefully noted that this and other references to the separation of powers are ‘entirely consistent with some aspects of control being kept from the courts': above n 1, 278.

¹³ Quin (1990) 170 CLR 1, 37.

¹⁴ Ibid 35–9. There is a single reference to a constitutional case at 35.

¹⁵ SirAnthony, Mason, ‘Procedural Fairness: Its Development and Continuing Role of the Legitimate Expectation’ (2005) 12 Australian Journal of Administrative Law 103, 109Google Scholar. A similar view is adopted by Gageler, who argues that the political structures established by the Constitution provide a good reason for courts to adopt a more deferential or restrained approach when strong avenues of political accountability operate: Stephen, Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ (2009) 32 Australian Bar Review 138, 152Google Scholar.

¹⁶ Mason, above n 15, 109.

¹⁷ Stephen, Gageler, ‘Some Themes in Judicial Review’ in Robin, Creyke and Patrick, Keyser (eds), The Brennan Legacy – Blowing in the Winds of Legal Orthodoxy (Federation Press, 2002) 67Google Scholar.

¹⁸ (1995) 184 CLR 163.

¹⁹ Ibid 179.

²⁰ Ibid 178–80.

²¹ (2003) 211 CLR 476 ('Plaintiff S157/2002’).

²² Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.

²³ Allars has argued that the apparent rejection of Chevron by the High Court is not as complete or straightforward as first appears: Margaret, Allars, ‘Chevron in Australia: A Duplicitous Rejection?’ (2002) 54 Administrative Law Review 569Google Scholar.

²⁴ From Chevron USA Inc v Natural Resources Defense Council Inc, 467 US 837 (1984).

²⁵ Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 152–4 [43]–[44] (Gleeson CJ, Gummow, Kirby and Hayne JJ), citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J).

²⁶ There is a vast literature on Chevron, some of which acknowledges that the case provides a useful exception to Marbury v Madison to grease to the wheels of government. See, eg, Cass, Sunstein, ‘Beyond Marbury: The Executive's Power to Say What the Law Is’ (2006) 115 Yale Law Journal 2850Google Scholar.

²⁷ (2003) 211 CLR 476.

²⁸ Ibid 513 [103] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ, Callinan J agreeing on this point).

²⁹ Ibid 506 [76]–[77], 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), 512 [98] (Callinan J).

³⁰ See, eg, Caron, Beaton Wells, ‘Restoring the Rule of Law: Plaintiff S157/2002 v Commonwealth of Australia’ (2003) 10 Australian Journal of Administrative Law 125Google Scholar; Duncan, Kerr and George, Williams, ‘Review of Executive Action and the Rule of Law Under the Australian Constitution’ (2003) 14 Public Law Review 219Google Scholar.

³¹ David, Dyzenhaus, The Constitution of Law – Legality in a Time of Emergency (Cambridge University Press, 2006) 112–4Google Scholar. Before the privative clause was ruled upon by the High Court Dyzenhaus described it as ‘a fascinating legislative derogation from the rule of law': ‘The Justice of the Common Law: Judges, Democracy and the Limits of the Rule of Law’ in Cheryl, Saunders and Kathleen, Le Roy (eds), The Rule of Law (Federation Press, 2003) 21, 44Google Scholar.

³² Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 634 (Gaudron and Gummow JJ).

³³ See, eg, the various judicial statements prior to Kirk suggesting that State legislation removing or limiting supervisory review should either be expressed in very clear terms or would be interpreted narrowly. See, eg, BHP Ltd v Dagi [1996] 2 VR 117, 193 (Hayne JA); Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180, 194 [33] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ). Such statements implicitly accept the existence of a power of State parliaments to enact such legislation.

³⁴ A phrase used by Spigelman CJ in Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558, 589 [129].

³⁵ Enid, Campbell and Matthew, Groves, ‘Privative Clauses and the Australian Constitution’ (2004) 4 Oxford University Commonwealth Law Journal 51, 73–5Google Scholar; Duncan, Kerr, ‘Privative Clauses and the Courts: Why and How Australian Courts have resisted Attempts to Remove Citizen's Rights of Judicial Review of Executive Action’ (2005) 5 Queensland University of Technology Law and Justice Journal 195, 212–5Google Scholar.

³⁶ Campbell and Groves, above n 35, 75. Spigelman CJ adopted a similar view in Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212, 238 [124] when he suggested that ‘a statutory court of limited jurisdiction, which is exempt from review for jurisdictional error, may not be consistent with the rule of law.'

³⁷ Kirk v Industrial Relations Commission of NSW (2008) 173 IR 465. An appeal against the conviction and sentence was dismissed in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 66 NSWLR 151.

³⁸ The key finding on these issues were that the Industrial Relations Commission had received from Mr Kirk as a witness for the prosecution, which was not possible in the circumstances: Kirk (2010) 239 CLR 531, 565–6 [51]–[53], 574–5 [74]–[76].

³⁹ Industrial Relations Act 1996 (NSW) s 179.

⁴⁰ Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; Batterham v QSR Ltd (2006) 225 CLR 237; and Old UGC Inc v Industrial Relations Commission of NSW (2006) 225 CLR 274.

⁴¹ The reasons are explained in Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180, 196 [44].

⁴² The reasons why the critical provision did not operate to exclude supervisory review for jurisdictional error are explained in detail in Basten, above n 1, 275; Nicholas Gouliaditis, ‘Privative Clauses: Epic Fail’ (2010) 34 Melbourne University Law Review 870, 875–7.

⁴³ Kirk (2010) 239 CLR 531, 571–4 [66]–[73].

⁴⁴ Ibid 580 [96].

⁴⁵ Ibid 581 [99].

⁴⁶ It is appropriate to say s 75(v) ‘largely’ secures the judicial review jurisdiction of the High Court at the federal level because s 75(iii) is also relevant: Plaintiff S157/2002 (2003) 211 CLR 476, 505 [73] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 139 [156] where Hayne J suggested that jurisdiction to grant the writs mentioned in s 75(v) could have been drawn from the position of primacy granted to the High Court in s 71.

⁴⁷ Kirk (2010) 239 CLR 531, 580 [96], citing Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [63].

⁴⁸ Kirk (2010) 239 CLR 531, 581 [100].

⁴⁹ Ibid 581 [99], citing Louis, L Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70 Harvard Law Review 953, 963Google Scholar.

⁵⁰ Kirk (2010) 239 CLR 531, 581 [100].

⁵¹ Ibid 573 [69].

⁵² The implications of this point are beyond the scope of this article. For present purposes it is useful to note that some State tribunals are invested with powers that cannot be granted to federal tribunals. For example, the decisions of the general tribunals of Victoria and Western Australia may be registered in courts and enforced without further judicial order. See Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 122; State Administrative Tribunal Act 2004 (WA), s 86. Such provisions are plainly unconstitutional at the federal level: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. Kirk seems to permit the continuation of such differences.

⁵³ Gageler, above n 15, 140, 156.

⁵⁴ (2003) 211 CLR 476, 514 [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

⁵⁵ (1874) LR 5 PC 417, 442, cited in Kirk (2010) 230 CLR 531, 582 [97].

⁵⁶ Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 442.

⁵⁷ Part of the problem is because Willan largely fell into obscurity after R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. My disagreement with the interpretation given to the Willan case in Kirk does not mean I accept the view of Willan argued for by Gouliaditis, above n 42, 877–8. Gouliaditis concludes that Willan supports the proposition that, prior to federation, legislation could validly preclude supervisory review by a State court ‘on the grounds of jurisdictional error, subject only to limits equivalent to the Hickman provisos.’ Willan does not clearly support such a far-reaching principle.

⁵⁸ This argument was made in Louis, L Jaffe, ‘The Right to Judicial Review I’ (1958) 71 Harvard Law Review 401Google Scholar and ‘The Right to Judicial Review II’ (1958) 71 Harvard Law Review 769.

⁵⁹ He suggested that the constitutional basis of review in the United States was probably stronger at the State level: Louis, L Jaffe, ‘The Right to Judicial Review II’ (1958) 71 Harvard Law Review 769, 795Google Scholar.

⁶⁰ Kirk (2010) 239 CLR 531, 581 [99], citing Louis, L Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70 Harvard Law Review 953, 963Google Scholar.

⁶¹ Jaffe, ibid.

⁶² Kirk (2010) 239 CLR 531, 570 [64].

⁶³ Ibid 581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

⁶⁴ Ibid 581 [99] (emphasis added).

⁶⁵ Finn, above n 5, 107.

⁶⁶ This is the assessment of Leslie, Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 271Google Scholar, citing Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; Baker v The Queen (2004) 223 CLR 513.

⁶⁷ Finn, above n 5, 107. A more subtle approach is adopted by Basten. He has suggested that heightened judicial scrutiny may be appropriate in cases involving an exercise of power that might affect a fundamental right or freedom. Basten concludes ‘[s]uch an approach would reflect the reluctance to adopt an interpretation of a statute which would diminish fundamental human rights, if an alternative reading is open': Basten, above n 1, 297. This reasoning achieves much of the result Finn appears to advocate, but does not require that the protection of rights is a defining feature of the courts in a constitutional sense.

⁶⁸ Finn, above n 5, 107.

⁶⁹ See, eg, Church of Scientology v Woodward (1982) 154 CLR 25, 70 where Brennan J stated that ‘judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected'.accordingly'.

⁷⁰ This conclusion conforms to the federal position, in which the High Court has not adopted a general theory to imply restraints upon Commonwealth legislative powers by reference to the common law: WMC, Gummow, ‘The Constitution: Ultimate Foundation of Australian Law?’ (2005) 79 Australian Law Journal 167, 177Google Scholar.

⁷¹ Basten, above n 1, 280.

⁷² The first crucial case was Crevier v Attorney-General of Quebec [1981] 2 SCR 220. Crevier held that a privative clause could not preclude supervisory review on the question of the appropriate standard of review (a vital issue in Canadian administrative law). The case has long been accepted as precluding legislation which purports to exclude supervisory review on this and other constitutional issues.

⁷³ U.E.S., Local 298 v Bibeault [1998] 2 SCR 1048, [126].

⁷⁴ Audrey, Macklin, ‘Standard or Review: The Pragmatic and Functional Test’ in Colleen, Flood and Lorne, Sossin, Administrative Law in Context (2008) 208Google Scholar.

⁷⁵ A different view is taken by Basten, above n 1, 284. Basten concludes that there is some support for the jurisdiction recognised in Kirk in the common law prior to federation and that this was fortified by the Constitution.

⁷⁶ Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

⁷⁷ Zines has suggested that Kirk is a logical and desirable extension of the integration of State courts into a unified Australian judicature that commenced with Kable: Leslie Zines, ‘Recent Developments in Ch III: Kirk v IRC & South Australia v Totani’ (paper presented to the AGM of the Australian Association of Constitutional Lawyers, Australian National University, Canberra, 26 November 2010).

⁷⁸ Spigelman has described this facet of constitutional doctrine as ‘a two-way street': JJ, Spigelman, ‘Public Law and the Executive’ (2010) 34 Australian Bar Review 10, 18Google Scholar. A similar view seems implicit in Basten, above n 1, 294.

⁷⁹ The unitary nature of the common law was confirmed in Kirk (2010) 239 CLR 531, 581 [99] citing Lipohar v The Queen (1999) 200 CLR 485, 505 [43] (Gaudron, Gummow and Hayne JJ). On close inspection the more decisive passage in Lipohar seems to be at 505–6 [45]–[46].

⁸⁰ The latter issue seemed to weigh upon the High Court in Lipohar v The Queen (1999) 200 CLR 485, 505–10 [43]–[57] (Gaudron, Gummow and Hayne JJ).

⁸¹ (2007) 230 CLR 89 ('Farah’).

⁸² Ibid 155 [148].

⁸³ Ibid 151 [134].

⁸⁴ Keith, Mason, ‘President Mason's Farewell Speech’ (2008) 82 Australian Law Journal 768, 769Google Scholar. Mason P did not mention the Farah case but it was clearly the target of his remarks.

⁸⁵ Ibid.

⁸⁶ The effect of Farah more generally is also yet to be fully explored. Differing views on the issue were expressed in Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, when question arose about the so-called ‘objective theory of contract'. Allsop P appeared to adopt a fairly literal approach of the effect of Farah upon the ability of intermediate courts to undertake any significant revision of settled law: 613 [3]–[4]. By contrast, Campbell JA, suggested that Farah could be interpreted several ways. He suggested that one reading of Farah ‘is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from “seriously considered dicta” of a majority of the High Court (simpliciter). Another is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from seriously considered dicta of a majority of the High Court concerning a topic on which there is a long-established line of authority. Another is that the clear finding that this Court had been wrong to depart from views about the first limb of Barnes v Addy (1874) … is based on particular facts of the case': 679–80 [311]. The view of Allsop P appears more aligned with that of the High Court. See, eg, Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45, [3] (Gummow, Heydon and Bell JJ).

⁸⁷ See, eg, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 323 where the High Court overturned a wider approach to actual bias taken by the Full Court of the Federal Court in two separate decisions.

⁸⁸ See, eg, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, where the High Court appeared fairly tolerant towards decisions of the Refugee Review Tribunal containing serious deficiencies or omissions in their reasoning. That approach suggested that the detail of the migration legislation would not provide a basis for tentative steps towards either implying a jurisdictional error in the form of failing to make findings on material questions of fact or adoption of the equivalent and more general English ground of that nature. The High Court appeared to back track in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394 [24] when it held that the failure to ‘respond to a substantial, clearly articulated argument relying on established facts’ could constitute jurisdictional error. The precise reason for this apparently different approach to findings of fact and arguments based upon established facts is unclear.

⁸⁹ A striking recent example was Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, 435 where a majority of the High Court noted, but found it unnecessary to decide upon, the expansive approach to unreasonableness adopted in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 where Wilcox J accepted unreasonableness could encompass the breach of a limited duty to inquire. The High Court suggested that any such duty would arise as a species of jurisdictional error. This possibility also remains unsettled: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 603 [23] (French CJ and Kiefel J), 620 [78] (Gummow J). Heydon and Crennan JJ each agreed with both judgments: 623 [91]–[92].

⁹⁰ See, eg, Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, 424 [57] where Hollingworth J declined to decide whether proportionality was a ground of review in Victoria or Australia. Her Honour suggested the issue should be decided by a higher court such as an intermediate one.

⁹¹ ('ADJR Act’)

⁹² These grounds are ss 5(1)(j), 6(1)(j) (otherwise contrary to law) and ss 5(2)(j), 6(2)(j) (abuse of power) in the ADJR Act. Similar grounds are included in the ADJR Act: Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5(1)(i), 6(1)(i) (otherwise contrary to law), ss 5(1)(e), 5(2)(i), 6(2)(e), 6(2)(i) (abuse of power); Judicial Review Act 1991 (Qld) ss 20(2)(j) 21(2)(j) (otherwise contrary to law), ss 29(2)(e), 21(2)(e), 23(i) (abuse of power); Judicial Review Act 2000 (Tas) ss 17(2)(i), 18(2)(i) (otherwise contrary to law), ss 17(2)(e), 18(2)(e), 20(i) (abuse of power). Those grounds have been described as ‘dead letters': Matthew, Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2008) 32 Melbourne University Law Review 470, 518Google Scholar.

⁹³ Examples are collected and criticised in Thomas Poole, ‘Between the Devil and The Deep Blue Sea: Administrative Law in an Age of Rights’ 39–40 and Matthew Groves, ‘The Surrogacy Principle and Mother Statements in Administrative Law’ 77–82. Both papers are in Linda, Pearson, Carol, Harlow and Michael, Taggart (eds), Administrative Law in a Changing State (Hart Publishing, 2008)Google Scholar.

⁹⁴ The decisive English case was R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213, 242 [55]–[59].

⁹⁵ Ibid 242 [59]. The Court of Appeal is equally adventurous when considering statutory appeals of administrative decisions. See, eg, E v Secretary of State for the Home Department [2004] QB 1044, 1077 [66] where it held that a mistake of law giving rise to unfairness could constitute a ground of appeal on a point of law. This vastly expanded the scope of rights of appeal on a question of law.

⁹⁶ Kirk (2010) 239 CLR 531, 581 [99] (emphasis added).

⁹⁷ A point made clear by the High Court's emphasis on the role of the State Supreme Courts to grant certiorari for jurisdictional error: ibid 580 [97] and the inability of the States to legislate to restrict this power: 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

⁹⁸ Ibid 573–4 [71]–[73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). On this issue it is useful to note the citation with apparent approval by the High Court of the catalogue Mark Aronson has drawn of eight forms of error so far accepted as jurisdictional: ibid 573 [71], citing Mark, Aronson, ‘Jurisdictional Error Without the Tears’ in Matthew, Groves and HP, Lee (eds), Australian Administrative Law; Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 330Google Scholar, 335–6.

⁹⁹ Plaintiff S157/2002 (2003) 211 CLR 476, 506 [76]–[77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹⁰⁰ Craig v South Australia (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

¹⁰¹ See, eg, SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43, 49 [27] (Hill, Branson, and Stone JJ). The ‘somewhat circular’ nature of jurisdictional error was also acknowledged in: WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655, 672 [70] (French J). A contrary view is taken by Basten who acknowledged that the description of an error as jurisdictional ‘is to identify its consequence as invalidity', though he also suggests that the ‘criterion of “jurisdictional error” is inherently neither exotic nor esoteric': Basten, above n 1, 287.

¹⁰² Kirk (2010) 239 CLR 531, 570–1 [64], citing Louis, L Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70 Harvard Law Review 953, 963Google Scholar.

¹⁰³ See, eg, Plaintiff S157/2002 (2003) 211 CLR 476, 485 [13] (Gleeson CJ).

¹⁰⁴ The problem is not unique to jurisdictional error. Similar criticisms have been made of the invocation of fundamental values in common law constitutionalism. See, eg, Thomas, Poole, ‘Constitutional Exceptionalism and the Common Law’ (2009) 7 International Journal of Constitutional Law 247Google Scholar, 264–6.

¹⁰⁵ Spigelman, above n 5, 85.

¹⁰⁶ Stephen, Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92, 104–5Google Scholar.

¹⁰⁷ This suggestion echoes an empirical study of the Chevron case, which found that decisions to strike down or uphold agency interpretations of statutes and rules were underpinned by unspoken judicial ideology: Thomas, Miles and Cass, Sunstein, ‘Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron’ (2006) 73 University of Chicago Law Review 823Google Scholar.

¹⁰⁸ (2003) 211 CLR 476, 491–3 [27]–[32].

¹⁰⁹ A phrase taken from Michael, Taggart, ‘“Australian Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1, 16Google Scholar.

¹¹⁰ See the speech reproduced at (1952) 85 CLR xiv.

¹¹¹ Leslie, Zines, ‘Sir Owen Dixon's Theory of Federalism’ (1965) 1 Federal Law Review 221Google Scholar. Zines made a cogent argument that Dixon held a clear theory of federalism, despite the implicit contrary claim in Dixon's adherence to the purported neutrality of legalism.

¹¹² Anthony, Mason, ‘The Centenary of the High Court of Australia’ (2003) 5 Constitutional Law and Policy Review 41, 45Google Scholar. The doctrine has its admirers. See, eg, Kenneth, Hayne, ‘Concerning Judicial Method – Fifty Years On’ (2006) 32 Melbourne University Law Review 223Google Scholar; Dyson, Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110Google Scholar. A useful overview of more recent directions is given in Leslie, Zines, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’ (2002) 5 Constitutional Law and Policy Review 21Google Scholar.

¹¹³ Taggart, above n 109, 7.

¹¹⁴ Spigelman, above n 78, 17.

¹¹⁵ Spigelman, above n 78, 18.

¹¹⁶ Basten, above n 1, 295.

¹¹⁷ Though discarding jurisdictional error would not necessarily solve all the ills of judicial review. Subsuming jurisdictional error within a notion of error of law might simply relabel some of the problems of jurisdictional error. Discarding jurisdictional error might also leave serious factual errors in uncertain terrain. Jurisdictional principle does not draw the sharp distinction between errors of law and fact as the error of law concept does: Jack, Beatson, The Scope of Judicial Review for Error of Law’ (1984) 4 Oxford Journal of Legal Studies 22, 25Google Scholar.

¹¹⁸ This approach has obvious parallels to that of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 122–3 [211]–[212]; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 439–440 [173]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1185 [122].

¹¹⁹ John, Laws, ‘An Extract from: Illegality: The Problem of Jurisdiction’ in Christopher, Forsyth (ed), Judicial Review and the Constitution (Hart Publishing, 2000) 81Google Scholar. These remarks were directed to ultra vires and the function Laws perceived it served to secure judicial review in England. The same logic can apply to Australia's use of jurisdictional error.

¹²⁰ Kirk noted that England's rejection jurisdictional error had not been followed in Australia: (2010) 239 CLR 531, 571 [65].

¹²¹ Ibid 581 [100].

¹²² (2003) 211 CLR 476, 501 [60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹²³ Ibid 505 [73], 512 [98] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹²⁴ Aronson has questioned whether such provisions necessarily create a tension within a statute. He argues that many of the apparent contradictions identified between legislative provisions are not necessarily contradictions within the statute in question but may instead reveal a wider contradiction between a provision and assumptions arising for the rule of law: Mark, Aronson, ‘Commentary on “The entrenched minimum provision of judicial review and the rule of law’ (2010) 21 Public Law Review 35, 37Google Scholar. The implication is that the task of interpretive reconciliation proceeds on the fictitious assumption that the difficulty which requires reconciliation arises within the terms of a statute, when it is actually a broader conflict between the aim of one of more provisions affecting the availability of judicial review and contrary assumptions of principle which exist outside the statute.

¹²⁵ (2003) 211 CLR 476, 501 [60], 503 [65] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹²⁶ Ibid 504 [71] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹²⁷ Ibid 505 [72] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹²⁸ A description adopted by David, Dyzenhaus, The Constitution of Law: Legality in a time of emergency (Cambridge University Press, 2006) 113Google Scholar. He suggests (at 106–7) this approach can be traced at least back to Anisminic v Foreign Compensation Commission [1969] 2 AC 147.

¹²⁹ Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 671 [54] Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ held that the validity of such clauses was to be determined by their ‘substance or practical effect’ rather than their form but their Honours gave little general guidance on that distinction.

¹³⁰ Ibid 671–2 [55] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). The focus of the majority upon this issue made it unnecessary to consider the length of the specified limit in detail.

¹³¹ Ibid 672 [58] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

¹³² While time limits without the possibility of extensions for exceptional circumstances are rare in judicial review, they do exist. See, eg, Administrative Law Act 1978 (Vic) s 4 (1). That provision has been interpreted as not allowing any extension: Keller v Bayside City Council [1996] 1 VR 357, 362, 375 (Batt J); Quality Packaging Service Pty Ltd v City of Brunswick [1996] VR 829. It is unclear whether the existence of a more flexible time limit for judicial review at common law may save the inflexible statutory one from constitutional failure.

¹³³ In Plaintiff S157/2002 (2003) 211 CLR 476, 538 [176] Callinan J suggested that procedural restrictions ‘must be truly regulatory in nature’ to pass constitutional muster.

¹³⁴ (2010) 272 ALR 750.

¹³⁵ Ibid [59] (Spigelman CJ), [107] (Basten JA, McDougall J agreeing on this issue).

¹³⁶ Corrective Services Act 2006 (Qld) ss 17(1), 66(6), 68(6), 71(4) and 273(3).

¹³⁷ Judicial Review Act 1991 (Qld) ss 41, 42. The privative clauses mentioned in the previous note, as with many such clauses in Queensland legislation, preclude application of the Judicial Review Act except for these two provisions.

¹³⁸ But neither the correctional nor judicial review legislation excludes the Supreme Court's jurisdiction to issue declarations. There is no apparent reason why this obvious remedy was omitted in an otherwise wide ranging attempt to oust review.

¹³⁹ Corrective Services Act 2006 (Qld) ss 17(2), 66(7), 68(7), and 71(5).

¹⁴⁰ They directly conflict with the statement at: Kirk (2010) 239 CLR 531, 581 [100]. As do several other Queensland provisions purporting to apply to decisions or actions affected by jurisdictional error. See, eg, Mineral Resources Act 1989 (Qld) s 231K(2) Energy and Water Ombudsman Act 2006 (Qld) s 41(6); Telecommunications Interception Act 2009 (Qld) s 38(3). The Security Providers Act 1993 (Qld) s 14B(7) which states that restrictions on appeal of certain decisions ‘includes a decisions affected by jurisdictional error’ would encounter no such problems because it could be read literally to restrict appeal and not supervisory review.

¹⁴¹ This approach would be textually justified by the existence of other provisions which expressly seek to exclude review for jurisdictional error. Those latter provisions make clear that other clauses ousting review are not intended to extend to jurisdictional error.

¹⁴² See, eg, De Neefe Signs Pty Ltd v Build1 (Qld) Pty Ltd [2010] QSC 279, [13] (Fryberg J).

¹⁴³ [2011] QCA 22.

¹⁴⁴ The Justice and Other Legislation Amendment Act 2007 (Qld) s 91 placed adjudication and other decisions made under the Building and Construction Industry Payments Act 2004 (Qld) on the Judicial Review Act 1991 (Qld). Section 18 of the Judicial Review Act provides that decisions or statutes on schedule 1 are not subject to its substantive provisions.

¹⁴⁵ The Court of Appeal acknowledged that the issue had not been fully argued. Murdo P indicated her remarks on the issue were ‘preliminary': Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2011] QCA 22, [9]. Chesterman JA similarly stated that his remarks were ‘tentative': [23].

¹⁴⁶ Ibid [34]–[35]. His Honour accepted that, if it were otherwise, the legislative exclusion of statutory review could be interpreted to ‘prohibit the exercise by the Supreme Court of its jurisdiction to grant prerogative relief’ which would make the section ‘unconstitutional and of no effect': [33].

¹⁴⁷ Her Honour suggested that relief was available under the Constitution of Queensland 2001 (Qld) s 58, Supreme Court of Queensland Act 1991 s 128 and Judicial Review Act 1991 (Qld) pt 5 but did not clearly explain the combined effect of these provisions: Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2011] QCA 22, [9].

¹⁴⁸ Ibid [27]. White JA noted that the old rules and procedures governing prerogative writs were clearly abolished as part of the changes made by the Judicial Review Act 1991 (Qld) but that proceedings not otherwise covered by existing procedural rules could be regulated by the express power granted to the Supreme Court for such unusual cases in s 118E of the Supreme Court of Queensland Act 1991 (Qld): ibid [76].

¹⁴⁹ Ibid [29].

¹⁵⁰ Ibid [28].

¹⁵¹ Chesterman JA made reference to his own previous discussion of the circumstances in which a court may supplement the words of the legislature in Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333, [25]–[47] where he considered the extremely limited circumstances in which a court might supplement the words of parliament as suggested by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74, 105. That approach was approved by McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113, 116; and Mills v Meeking (1990) 160 CLR 214, 243–4.

¹⁵² On the operation of the provision, see Carol, Foley, ‘Section 85 of the Victorian Constitution Act 1975: Constitutionally Entrenched Right…or Wrong?’ (1994) 20 Monash University Law Review 110Google Scholar.

¹⁵³ See, eg, EastLink Project Act 2004 (Vic) s 257 which adopts this wording to cover several sections of that Act, one of which (s 193(4)) purports to exclude statutory judicial review and the issue of all of the equitable and prerogative writs except habeas corpus. A similar exclusion of judicial review is contained in the Major Transport Projects Facilitation Act 2009 (Vic) ss 263(4), 265.

¹⁵⁴ In the wake of Kirk the Victorian legislature made clear that two wide ranging exclusions of appeal rights did not include appeal on the basis of jurisdictional error: Personal Safety Intervention Orders Act 2010 (Vic) ss 95(2), 97(2); Family Violence Protection Act 2008 (Vic) ss 118(2), 120(2). The relevant provisions of the latter Act were included as consequential amendments made by the former. Such additions to restrictions on appeal rights, which are traditionally interpreted as not to include supervisory review, are arguably unnecessary because they apply in an Act which grants no rights of appeal.

¹⁵⁵ A path anticipated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 374–5 [41] (Brennan CJ), 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ).

¹⁵⁶ Peter, Cane and Leighton, McDonald, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2008) 208Google Scholar. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, 250–1 [129] (Kirby J). The wider issues are examined in careful detail in Leighton, McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21 Public Law Review 14Google Scholar.

¹⁵⁷ Federal Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146.

¹⁵⁸ Income Taxation Assessment Act 1936 (Cth) s 175.

¹⁵⁹ Federal Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146, 183 [124] citing Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513–514 [103]–[104]; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 668–69 [44]–[46]. It is unclear whether the doubts of Kirby J were due to the width of clause or its very nature.

¹⁶⁰ Ibid 164–5 [55].

¹⁶¹ Income Taxation Assessment Act 1936 (Cth) s 177(1).

¹⁶² Basten, above n 1, 286.

¹⁶³ Each of these characterisations of statutory provisions was seemingly endorsed in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

¹⁶⁴ Aronson, above n 124, 37.

¹⁶⁵ Kirk (2010) 239 CLR 531, 580 [98].

¹⁶⁶ Commonwealth Constitution s 75(v).

¹⁶⁷ (1916) 22 CLR 437.

¹⁶⁸ Ibid 452.

¹⁶⁹ R v Commonwealth Court of Conciliation and Arbitration and the President thereof; Ex parte Whybrow (1910) 11 CLR 1 (federal judges); Pancontinental Mining Ltd v Burns (1994) 124 ALR 471 (federal tribunal members); Lovell v Zempilas (1990) 21 ALD 728 (federal DPP).

¹⁷⁰ See, eg, Waterhouse v Australian Broadcasting Commission Corporation (unreported, Federal Court, Wilcox J, 21 October 1987) (staff of the Australian Broadcasting Commission); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, 500 (staff of Telstra Corporation, in its earlier configuration as a corporation fully owned by the Commonwealth); Post Office Agents Association Ltd v Australian Postal Commission (1988) 82 ALR 563, 575 (staff of Australia Post, when that body was fully owned by the Commonwealth).

¹⁷¹ The challenges of mixed administration to public law are examined in Mark, Aronson, ‘A Public Lawyer's Response to Privatization and Outsourcing’ in Michael, Taggart (ed), The Province of Administrative Law (Hart Publishing, 1997) 40Google Scholar.

¹⁷² (2010) 85 ALJR 133.

¹⁷³ Ibid 143 [51] (per curiam).

¹⁷⁴ Ibid.

¹⁷⁵ Ibid 146 [66]–[67], 150 [87]–[90].

¹⁷⁶ The distinction is examined in Mark, Aronson, Bruce, Dyer and Matthew, Groves, Judicial Review of Administrative Action (4th ed, 2009) 408–14Google Scholar.

¹⁷⁷ [2001] QB 213. The case and its consequences are examined in detail in Paul, Craig, Administrative Law (Sweet & Maxwell, 6th ed, 2008) ch 20Google Scholar. An Australian assessment of the issues is given in Matthew, Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2003) 32 Melbourne University Law Review 470Google Scholar; Greg, Weeks, ‘Estoppel and Public Authorities: Examining the Case for an Equitable Remedy’ (2010) 4 Journal of Equity 247, 259–73Google Scholar.

¹⁷⁸ Coughlan [2001] QB 213, 242 [57] (emphasis in original). The Court of Appeal also reiterated two fairly orthodox instances of promises, expectations and the like. The first, gauged by Wednesbury unreasonableness, were cases where officials would have to be mindful of its previous policy and give it appropriate weight: [2001] QB 213, 241–2 [57]. The second was a more precise instance of the first, in which officials had to observe any expectation of a procedure, such as consultation before a change of policy: ibid 242 [57]. This category essentially involved application of principles of procedural fairness, the detail of which depend on the expectation in question.

¹⁷⁹ Ibid 242 [58].

¹⁸⁰ Ibid 243 [60].

¹⁸¹ A point acknowledged at Coughlan [2001] QB 213, 246 [71].

¹⁸² The Court of Appeal simply stated that the court retained the function of determining whether ‘the consequent frustration of an individual's expectation was so unfair as to be a misuse … of power': Coughlan [2001] QB 213, 251 [82]. It gave no guidance on what might be a ‘misuse’ of power.

¹⁸³ Many cases are usefully reviewed in Mark, Elliott, ‘Legitimate Expectation, Consistency and Abuse of Power’ [2005] Judicial Review 281Google Scholar and Paul, Reynolds, ‘Legitimate Expectations and the Protection of Trust in Public Officials’ [2011] Public Law 330Google Scholar.

¹⁸⁴ Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.

¹⁸⁵ A curious feature of Lam was that counsel for Lam did not rely on Coughlan and it was not strictly necessary for the High Court to consider the case because the claimed benefit was entirely procedural and could have been disposed as such.

¹⁸⁶ (2003) 214 CLR 1, 10 [28].

¹⁸⁷ Callinan J agreed with McHugh and Gummow JJ that the legitimate expectation could ‘on no view…give rise to substantive rights rather than procedural rights': ibid 48 [148].

¹⁸⁸ Ibid 23 [72].

¹⁸⁹ Ibid 24–5 [76]. See also 34 [102].

¹⁹⁰ R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 [68]–[69] (Laws LJ) and R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 AC 453, [181]–[182] (Lord Mance). It has been suggested that a better explanation of this line of reasoning is the need to protect the trust reposed in public officials: Reynolds, above n 183.

¹⁹¹ R v Inland Revenue Commissioners, Ex p Unilever plc [1996] STC 681, 695 (Simon Brown LJ).

¹⁹² These first steps in England are clearly a response to European influences. The European Court of Human Rights made clear that the traditional Wednesbury standard of review did not provide sufficient protection to the rights protected by European laws to which England was a party: Lustig-Prean v Ministry of Defence (No 1) (2000) 29 EHRR 548. The House of Lords then showed some sympathy to the doctrine in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. Proportionality was not fully adopted in that or other cases and seems largely to apply in cases concerning fundamental rights where the Human Rights Act 1998 (Eng) does not apply. See Mark Elliott and Robert Thomas, Public Law (2011) 521–8.

¹⁹³ This is the definition offered in Taggart, above n 109, 24. I cannot improve it and so adopt it gratefully. It should be noted that some authors argue that the requirement a measure must impair rights no more than necessary should be discarded: Tom, Hickman, ‘The Substance and Structure of Proportionality’ [2008] Public Law 694, 714Google Scholar.

¹⁹⁴ Aronson, Dyer and Groves, above n 176, 380

¹⁹⁵ Problems explained in Hickman, above n 193, 701–14.

¹⁹⁶ Michael, Taggart, ‘Proportionality, Deference, Wednesbury’ [2008] New Zealand Law Review 423Google Scholar.

¹⁹⁷ A possibility examined in Julian, Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law Journal 174Google Scholar.

¹⁹⁸ Opposing views on the issue are put in Paul, Craig, ‘Proportionality, Rationality and Review’ [2010] New Zealand Law Review 265Google Scholar and Tom, Hickman, ‘Problems for Proportionality’ [2010] New Zealand Law Review 303Google Scholar.

¹⁹⁹ Hickman, above n 193, 714–5; Aronson, Dyer and Groves, above n 176, 380–1.

²⁰⁰ Harry, Woolf, Jeffrey, Jowell and Andrew, Le Sueur, De Smith's Judicial Review (6th ed, 2007) 584Google Scholar.

²⁰¹ The denials began at the very birth of the doctrine: R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 548. They continue to be issued. See, eg, R (SB) v Governor of Denbigh High School [2007] 1 AC 650, 673; Tweed v Parade Commission (Northern Ireland) [2007] 2 AC 532, 548.

²⁰² These include Bruce v Cole (1998) 45 NSWLR 163, 185 (where Spigelman CJ noted that proportionality lay ‘at the boundaries of accepted administrative law’ but shed little light on which side of those boundaries his Honour thought it should lie); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 23 (where McHugh and Gummow JJ referred to the operation of proportionality in other jurisdictions but did not reveal their thoughts the issue).

²⁰³ Aronson, Dyer and Groves, above n 176, 382–3.

²⁰⁴ (2008) 20 VR 414.

²⁰⁵ Ibid 424 [57].

²⁰⁶ Re Minister for Immigration and Citizenship; Ex parte S20 (2003) 198 ALR 59.

²⁰⁷ (1990) 170 CLR 1.

²⁰⁸ Ibid 36.

²⁰⁹ Ex parte Unilever [1996] STC 681, 695. This same terminology was applied in Secretary of State for the Home Department v R (Rashid) [2005] EWCA Civ 744.

²¹⁰ IR (R, H and AH) v Secretary of State [2006] EWHC (Admin) [34] (Collins LJ).

²¹¹ R (on the application of Nadarajah & Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363, [68] (Laws LJ, Thomas LJ and Nelson J agreeing).

²¹² Similar criticisms have been made of some English cases in which the courts have essentially decided that a decision can be impeached on the ground of proportionality and then sought to articulate the reason why the ground applies. See, eg, Hickman, above n 193, 714–6.

²¹³ Bhatt Murphy (a firm), R (on the application of) v The Independent Assessor [2008] EWCA Civ 755 [28]. The wider examination of such issues by Laws LJ was arguably not required given that Court of Appeal had rejected an attempt by the applicants to essentially require government ministers to adhere to a compensation scheme that had been replaced.

²¹⁴ Re Minister for Immigration and Multicultural Affairs; Ex parte S20 (2003) 198 ALR 59.

²¹⁵ Ibid [153].

²¹⁶ Ibid [160].

²¹⁷ Ibid [161].

²¹⁸ Ibid.

²¹⁹ Ibid [169]. At this point Kirby J cited the caution of Brennan J in Quin (1990) 170 CLR 1, 36.

²²⁰ Ibid [161].

²²¹ Kirk (2010) 239 CLR 531, 580–1 [98]–[99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).