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Published online by Cambridge University Press: 01 January 2025
This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275 on the class of administrative actions that are amenable to entrenched judicial review of State powers. The article shows that the application of this understanding to entrenched review of Commonwealth powers has significant explanatory value. It casts new light on two puzzling features of entrenched review of Commonwealth powers: The discrimen between executive and judicial power that underpins a separation of powers rationale for entrenched review of Commonwealth executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Commonwealth officers. Viewing entrenched review as a guarantee of legal accountability for jurisdictions prompts new insights into its constitutional rationale and its specific contribution to government under law.
1 Kaldas v Barbour (2017) 350 ALR 292 [2017] NSWCA 275 (‘Kaldas’). See also Keane, ‘Judicial Review: The Courts and the Academy’ (2008) ALJ 623.
2 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (‘Plaintiff S157/2002’) 513-514 [103] - [104] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ). See also Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651 (‘Bodruddaza’) 668-9 [45] - [46] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ); Graham v Minister for Immigration (2017) 263 CLR 1 ('Graham') 27 [48] - [49] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
3 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 (‘Kirk’) 580-1 [96] - [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398, 421-423 [60] - [63] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Probuild Constructions v Shade Systems (2018) 264 CLR 1, 13 [29] - [30] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
4 Plaintiff S157/2002 (n 2) 505 - 506 [75], 511- 512 [98], 513 - 514 [103] - [104] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).
5 Plaintiff S157/2002 (n 2) 505 [73], 505 [75], 511- 512 (Gaudron, McHugh, Gummow, Kirby, Hayne JJ). See also Graham (n 2) 24 [39] - [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
6 Kirk (n 3) 580 - 581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
7 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’) 133 [24] (Kiefel CJ, Gaegeler and Keane JJ). The quote refers to ‘the statute’ pursuant to which an administrative decision is made, but the concept would presumably also work in the same way for non-statutory executive powers.
8 See, for example, Kirk (n 3) 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited (2008) 237 CLR 146 (‘Futuris’) 152 [4] - [5] (Gummow, Hayne, Heydon and Crennan JJ).
9 Mark Leeming, Authority to Decide - The Law of Jurisdiction in Australia (Federation Press, 2nd ed., 2020), 1 explains that ‘authority to decide’ is the primary meaning of ‘jurisdiction’, distinguishing metonymous uses of the term to mean the subject matter or geographical area within which a repository exercises authority. My use fits within the primary meaning of jurisdiction as ‘authority to decide’ but adds a tilt towards the way the term has been developed and applied to conferred statutory powers in judicial review.
10 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ). See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (‘Ainsworth’), 580-1 (Mason CJ, Dawson, Toohey and Gaudron JJ), 595 (Brennan J); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25], [31] (French CJ, Crennan, Bell, Gageler and Keane JJ); Probuild (n 3) 13 [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
11 Griffith University v Tang (2005) 221 CLR 99 (‘Griffith University’). The case concerned a jurisdictional criterion for review under Judicial Review Act (Qld) that was based on the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3.
12 Ibid 128 [79]-[80] (Gummow, Callinan and Heydon JJ).
13 Ibid 130 - 131 [89] (Gummow, Callinan and Heydon JJ).
14 In the comprehensive sense, see Griffith University (n 11) 130 - 131 [89] (Gummow, Callinan and Heydon JJ).
15 As in Ainsworth (n 10); Kaldas (n 1). See also Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; L v State of South Australia [2017] SASCFC 133.
16 See, for example, the University’s decision to exclude a student from a higher degree program in Griffith University (n 11).
17 Keane (n 1) 632.
18 See, for example, Ainsworth (n 10) 595 (Brennan J).
19 Hossain (n 7) 132 [23] (Kiefel CJ, Gaegeler and Keane JJ). The quote is from Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’) 613 [46] (Gaudron and Gummow JJ).
20 There were other steps in the reasoning to support the orders rejecting the application for relief. However, all members of the Court noted that the entrenched review described in Kirk is review of powers with legal effect and that to recognise otherwise would require a further step in development of the law: Kaldas (n 1) [156], [195] - [196] (Bathurst CJ) [346] - [357] (Basten JA, Macfarlan J agreeing).
21 Kaldas (n 1) [352] (Basten JA).
22 Kaldas (n 1) [349] (Basten JA), footnotes omitted.
23 Compare Keane (n 1).
24 Aronson would seem to broadly accept that certiorari at least is restricted to decisions that affect legal rights, obligations or status: Mark Aronson, ‘Retreating to the History of Judicial Review?’ (2019) 47(2) FLR 179, 186. See also Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017), 866 - 871.
25 See Ainsworth (n 10) 581 (Mason CJ, Dawson, Toohey and Gaudron JJ), 595 - 596 (Brennan J); Kaldas (n 1) [170] - [175] (Bathurst CJ).
26 The frequently cited observations in Ainsworth were obiter. With two exceptions, the authorities cited in the joint reasons related to statutory powers (with legal effects). The exceptions were Re Royal Commission on Thomas Case [1980]1 NZLR 602 (‘Thomas’); and Annetts v McCann (1990) 170 CLR 596 (‘Annetts’), as to which see notes 29 and 28 below.
27 On the unbundling of remedies, principles and grounds see, for example, Aronson, Groves and Weeks (n 24) 156 - 161.
28 Compare Brennan J's observation on ‘the essence’ of the remedy issued in Annetts (n 26): Ainsworth (n 10) 595 - 596.
29 See Thomas (n 26) 616.
30 Compare the two distinct bases for certiorari, see Kirk (n 3) 567 [56] - [57], 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
31 Compare the cautious approach to the threshold for identifying whether a report has sufficient effect in a statutory process to be amenable to certiorari in M61/2010E v The Commonwealth (2010) 243 CLR 319, 359 [100].
32 See the discussion in Peters v Davison [1999] 2 NZLR 164.
33 Compare the significance of the costs order as the basis for review in Mahon v Air New Zealand [1984] 1 AC 808, 818.
34 Section 73 entrenches appeals in ‘any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council’. The scope of this phrase is discussed in Oscar I Roos, ‘An alternative (partial) justification for the holding in Kirk’ (2015) 26 PLR 111, 123.
35 Contrast State non-judicial powers, Momcilovic v The Queen (2011) 245 CLR 1, 70 [101] (French CJ), citing Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, 38 [63] (Gaudron, Gummow and Hayne JJ).
36 Entrenched review covers functions conferred on judges in their personal capacity, see Wainohu v New South Wales (2011) 243 CLR 181, 224 [89] (Gummow, Hayne, Crennan and Bell JJ). There is also a constitutional safeguard for the institutional integrity of State Supreme Courts as vessels for federal jurisdiction and as part of the national integrated court system, derived from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
37 But see Keane (n 1) 633 - 635.
38 Plaintiff S157/2002 (n 2) 513-514 [104] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ). The terms ‘power’ or ‘decision-making power’ are used in Bank of NSW v The Commonwealth (1948) 76 CLR 1, 363 (Dixon J); Bodruddaza (n 2) 668-9 [45] - [46] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ); Graham (n 2) 26 - 27 [45], [46], [48] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
39 That is on the basis that State judges exercising federal jurisdiction are not amenable to the jurisdiction conferred by s 75(v): R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437 (Isaacs, Higgins, Gavan Duffy, Rich JJ).
40 See n 5 above.
41 Plaintiff S157/2002 (n 2) 484 [9] (Gleeson CJ), citing R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415, 419 (Mason ACJ and Brennan J). See to same effect 505 [73], 512 [98] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).
42 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–38 (Brennan J).
43 Janina Boughey and Lisa Burton Crawford, ‘Jurisdictional Error: Do We Really Need It?’ in Mark Elliott, Jason Varuhas and Shona Wilson Stark (eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, 2018) 395, 410.
44 Compare the use of ‘operational’ in the opening sentences of the passage from Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400, 413 (Finkelstein J) quoted in Bhardwaj (n 19) 604 [12] (Gleeson CJ).
45 Compare the passage from Wade, ‘Unlawful Administrative Action: Void or Voidable?’ (1967) 83 LQR 499, 512 quoted in New South Wales v Kable (2013) 252 CLR 118 (‘Kable 2’) 130 [22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), Bhardwaj (n 19) 643 [144] (Hayne J).
46 See also Re Macks; Ex parte Saint (2000) 204 CLR 158 (‘Re Macks’).
47 The High Court’s orders allowing the appeal turned critically on that Court’s characterisation of the detention order as an exercise of judicial power, see Kable 2 (n 48) 131 - 132 [22] - [27] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), 145 - 147 [69] - [78] (Gageler J).
48 Kable 2 (n 48) 133 [33].
49 Kable 2 (n 48) 134 [34].
50 Kable 2 (n 48) 140 [55] - [56] (Gageler J). The distinction is implicit in the structure and terms used throughout the joint reasons.
51 For this reason, the distinction between judicial and non-judicial power is complicated but not denied by the status of judicial orders of bodies other than superior courts. The essential point is that the provisional authority conferred on superior court orders cannot be conferred other than as an incident of judicial power. Contrast Will Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 39 FLR 463, 498 - 499.
52 Kable 2 (n 48) 144 [68], citing Love v Attorney-General (NSW) (1990) 169 CLR 307; Ousley v The Queen (1997) 192 CLR 69.
53 Kable 2 (n 48) 139 [53] (Gageler J), illustrating the point with reference to the independent legal force of a conviction imposed under a statutory provision later repealed with retrospective effect: Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, 106 (Dixon J).
54 I here use the term ‘statute’ to include ordinary legislation and the express conferrals of power on the Commonwealth executive in the Constitution.
55 A v Hayden (1984) 156 CLR 532, 580 (Brennan J); Plaintiff M68/2015 v Commonwealth (2016) 257 CLR 42 ('M68/2015') 98 - 99 [135] - [136] (Gageler J), 158 - 159 [373] (Gordon J, dissenting). While Gageler J’s reasons emphasised a distinct inherent incapacity to detain (at 105 [159]) this was necessary because the detention challenged in the case occurred outside Australian territory (see 103 [153]) and his Honour’s comments should not be taken to cast doubt on the inherent incapacity to dispense with the general system of law.
56 This is a statement about the nature of executive power (in its contrast with judicial and legislative power). It is unaffected by federal demarcations of Commonwealth and State subject matters; or whether it is permissible under the constitution of a specific polity for one governmental body to combine executive and judicial powers. It does not deny that it is permissible under State constitutions for executive officials to exercise State judicial power. The absence of a separation of State judicial power provides the basis for understanding that officials in State Executive branches may be given authority to take actions that are accorded legal effect even if they are made in excess of jurisdiction: The correct way to understand this is that the official is, in such a case, exercising State judicial power.
57 See, for example, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 378 (Kitto J); Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 (‘Alinta’) 561-2 [43] (Kirby J), 578-9 [96] (Hayne J; Gummow J agreeing), 594 [158-9] (Crennan and Kiefel JJ).
58 See, in the wake of Burns v Corbett (2018) 265 CLR 304, judgments on whether a State tribunal’s adjudication on a dispute relating to a subject matter within federal jurisdiction is a purported exercise of State judicial power: eg Attorney-General (NSW) v Gatsby [2018] NSWCA 254; Attorney-General (SA) v Raschke (2019) 133 SASR 215.
59 Compare Kable 2 (n 48) 145 [70] (Gageler J).
60 See Alinta (n 60) 594 [159] (Crennan and Kiefel JJ).
61 Bhardwaj (n 19) 613 [46] (Gaudron and Gummow JJ).
62 Bhardwaj (n 19) 613 [46] (Gaudron and Gummow JJ); Hossain (n 7) 133 [24] (Kiefel CJ, Gaegeler and Keane JJ).
63 Bhardwaj (n 19) 614 [50] (Gaudron and Gummow JJ).
64 Migration Act 1958 (Cth), s 69(1).
65 Compare Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 (‘Palme’) [36] 223 and [56] 228 (Gleeson CJ, Gummow and Heydon JJ); Futuris (n 8) 156 - 157 [23] (Gummow, Hayne, Heydon and Crennan JJ), where similar provisions are read as expressions of legislative intention as to which errors are non-jurisdictional (and do not result in invalidity) and which are jurisdictional (and do result in invalidity), see 'Leighton McDonald, 'The Entrenched Minimum Provision of Judicial Review and the Rule of Law' (2010) 21 PLR 14.
66 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 88 [104] (Gaudron J), and see 98 [144] (McHugh J, agreeing). See also Palme (n 68) 249 [125] (Kirby J), adopting Guadron J’s statement in Miah as ‘clearly correct’.
67 These two examples are not exhaustive; see also, for example, the closing sentence of the judicial observations by Finkelstein J quoted with apparent approval by Gleeson CJ in Bhardwaj, n 47 above.
68 O’Donnell, ‘Jurisdictional error, invalidity and the role of injunction in s 75(v) of the Australian Constitution’ (2007) 28 ABR 291.
69 O’Donnell (n 71) 323-6; Aronson, Groves and Weeks (n 24) 749 - 750.
70 Melissa Perry, ‘The Riddle of Jurisdictional Error: Comment on Article by O’Donnell’ (2007) 28 Australian Bar Review 236, 341; Kristen Walker QC, ‘Jurisdictional Error Since Craig’ (2016) 86 AIAL Forum 35, 41.
71 Bhardwaj (n 19) 614 [49] (Gaudron and Gummow JJ), and see quotes at n 66 and 69 above.
72 Bhardwaj (n 19) 645-6 [151] (Hayne J), footnotes omitted.
73 For example, Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217. See Aronson, Groves and Weeks (n 24) 743 - 745.
74 Bhardwaj (n 19).
75 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 389 (Dixon J). See esp Kable 2 (n 48) 135 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), 140 [56] (Gageler J).
76 Arguably some weight may be placed on the fact that the Kable 2 joint reasons did not rule out future argument that the quality applies to all exercises of judicial power, see Aronson, Groves and Weeks (n 24) 734.
77 Contrast the more subtle position, that ‘whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete’: Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 451 (Barton J), applied Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 268 (Deane, Dawson, Gaudron, McHugh JJ).
78 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, 639 [13] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
79 Re Macks (n 49) 186 [56] (Gaudron J).
80 Plaintiff S157/2002 (n 2) 513 [103] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).
81 Plaintiff S157/2002 (n 2) 482 [5] (Gleeson CJ).
82 Plaintiff S157/2002 (n 2) 513 [103] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).
83 Plaintiff S157/2002 (n 2) 513 [103] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).
84 See, for example, Graham (n 2) 48 - 50 [105] - [107] (Edelman J).
85 Ibid.
86 James Stellios, ‘Exploring the Purposes of s 75(v) of the Constitution’ (2011) 34 UNSWLJ 70.
87 Ibid, at 80 - 81.
88 Ibid at 73 - 80.
89 Ibid, at 81 - 82. To this we might add, to protect State judicial officers from Commonwealth jurisdiction: see Roos (n 34).
90 Stephen Gageler, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?’ (2000) 28 Federal Law Review 303, 310, citing Quick and Garran, Commentaries on the Constitution (1901) 778-9; William Gummow, ‘The Scope of s 75(v) of the Constitution: Why Injunction but no certiorari?’ (2014) 42 FLR 241, 242-3. See also Lisa Burton Crawford, 'Why These three? The significance of the selection of remedies in section 75(v) of the Australian Constitution' (2014) 42 FLR 253, text at fn 92, 101.
91 This is not to suggest there is a rigid exclusivity between s 73 and 75(v), or that s 73 exhaustively provides accountability for judicial powers. That would be inconsistent with the extension of s 75(v) to federal judges in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1.
92 For scholarly comment on the selection of remedies in s 75(v) see, for example, Gummow (n 100), Burton Crawford (n 100); O’Donnell (n 71); Daniel Reynolds, ‘The Injunction in s 75(v) of the Constitution’ (2019) 30 PLR 211; Leeming (n 9) 245 - 249.
93 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1885 (Edmond Barton).
94 Ibid.
95 Gummow (n 100), 243-6.
96 Compare Gummow (n 100), 247-8. See also Reynolds (n 100) 220 - 221.
97 See n 100 above.
98 See, for example, Johns v Australian Securities Commission (1993) 178 CLR 408 and Katsuno v The Queen (1999) 199 CLR 40; and the alternative basis for the injunction sought in Smethurst v Commissioner of Police [2020] HCA 14 (‘Smethurst’). Five members of the Court held that this alternative basis for an injunction did not arise in Smethurst, see [60] - [66] (Kiefel CJ, Bell and Keane JJ), [116] (Gageler J), [151] - [152] (Nettle J). Nothing said by Kiefel CJ, Bell and Keane JJ denies that an injunction on this basis (to restrain excess of statutory authority) may be obtained by any person adversely affected by unauthorised activities, and it is not necessary to establish any invasion of legal rights to obtain an injunction on this basis, as to which see [111] - [113] (Gageler J), [153] (Nettle J), [248] (Edelman J). Although Nettle J flagged a question about who would have sufficient interest to enforce the implied prohibition, his Honour cited authorities discussing the ‘special interest’ test of standing, which is taken to extend beyond persons who can show damage to a legal right, including Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 263 [39], 264 [42] -[43], 267 [49] (Guadron, Gummow and Kirby JJ).
99 Reynolds (n 100) builds on the extensive scholarly treatment of the topic, since the question was famously left open in the Plaintiff S157/2002 joint reasons.
100 That is, I acknowledge that there is much to be revealed about the application of the limits on legislative power in relation to s 75(v) matters, including as it concerns forms of legislation such as no invalidity clauses, plenary provisions and the like, compare comments at n 159 above.
101 As proposed by Reynolds (n 100).
102 The demarcation proposed here could be integrated into variations on each of the four perspectives on the s 75(v) injunction identified in Reynolds (n 100).
103 See, for example, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 204 - 206 (Deane and Gaudron JJ).
104 Three possible confining readings are considered in Reynolds (n 100). See also ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, [45] noted in this context by Leeming (n 9) 248.
105 See, for example, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 204 (Deane and Gaudron JJ): ‘Implicit in each of s 75(v) and s 75(iii) is a conferral of a right to invoke the jurisdiction of the Court upon any person with an interest which is sufficient to provide standing to seek judicial relief in a matter of a kind specified in the relevant sub-section. Together, the two sub-sections constitute an important component of the Constitution’s guarantee of judicial process in that their effect is to ensure that there is available, to a relevantly affected citizen, a Ch III court with jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority ...’.
106 See Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 204 - 206 (Deane and Gaudron JJ); Smethurst (n 110) [112] (Gageler J). See also Reynolds (n 100) 224 - 226.
107 Smethurst (n 110) [45] (Kiefel CJ, Bell and Keane JJ).
108 Smethurst (n 110) [61] - [66] (Kiefel CJ, Bell and Keane JJ).
109 Smethurst (n 110) [93] (Kiefel CJ, Bell and Keane JJ).
110 Smethurst (n 110) [94] (Kiefel CJ, Bell and Keane JJ).
111 In contrast, Nettle J (in separate majority reasons) considered the source of jurisdiction had no bearing on the resolution of issues relating to the court’s powers to grant a restorative injunction, see Smethurst (n 110) [144], [146] (Nettle J). Edelman J also held that s 75(v)’s guarantee of power ‘does not change the nature of the power being exercised’, or ‘confer a separate, unique and substantive power to order an injunction’ ([230], [231]), but His Honour also made more detailed observations on the scope of s 75(v) jurisdiction, at [233] - [239].
112 Smethurst (n 110) [170] - [183].
113 Smethurst (n 110) [183].
114 Smethurst (n 110) [174], [178], [183].
115 Smethurst (n 110) [174] quoting Edmund Barton’s observation recorded at Official Record of the Debates of the Australasian Federal Convention (Melbourne), 4 March 1898 at 1884.
116 See Smethurst (n 110) [93] - [94] (Kiefel CJ, Bell and Keane JJ).
117 Smethurst (n 110) [97] (Kiefel CJ, Bell and Keane JJ).
118 Smethurst (n 110) [96] (Kiefel CJ, Bell and Keane JJ).
119 Smethurst (n 110) [96] - [97].
120 Smethurst (n 110) [231].
121 Ibid.
122 Smethurst (n 110) [234].
123 Smethurst (n 110) [237].
124 Smethurst (n 110) [230].
125 Smethurst (n 110) [112] (Gageler J).
126 See in particular Gageler J’s comments on the breadth of the jurisdiction; and his Honour’s articulation of the basis for the relief with reference to the tortious conduct of the AFP in circumstances in which money along cannot restore her to that position: Smethurst (n 110) [110] - [112], [130].
127 Smethurst (n 110) [127], referencing the principles of constitutional liberty and security carried forward from Entick v Carrington as part of our common law inheritance, at [125] - [126].
128 That is, the injunction as a foundation for a matter within s 75(v). It is well-established that the grant of jurisdiction in s 75(v) does not exhaust the Court’s power to issue the remedies mentioned in s 75(v), compare, for example, the operation of Judiciary Act 1903 (Cth), s 33.
129 Plaintiff M68/2015 (n 58) 94 - 95 [124] - [125] (Gageler J).
130 Ibid.
131 Subject to any statutory exclusion of common law liability: Ibid.
132 On the width of a ‘matter’, see generally Re Wakim (1999) 198 CLR 511, 585 - 6 [139] - [142] (Gummow and Hayne JJ).
133 As, for example, injunctive relief against tortious injury constituted by police entry, search and seizure pursuant to an invalid warrant. The unauthorised entry, search and seizure gives rise to inter-related claims for injunctive relief against the invalid, purported exercise of statutory power; and the invasion of property rights.
134 See also Bodruddaza (n 2).
135 The point is developed elsewhere, see, for example, Mark Aronson, ‘Between Form and Substance: Minimising Judicial Scrutiny of Executive Action’ (2017) 45 FLR 519, 519; Lisa Burton Crawford, ‘Expanding The Entrenched Minimum Provision of Judicial Review? Graham v Minister for Immigration and Border Protection’ (2017) 28 PLR 277; Leighton McDonald, ‘Graham and the Constitutionalisation of Australian Administrative Law’ (2018) 91 Australian Institute of Administrative Law Forum 47.
136 Graham (n 2) 26 [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
137 Ibid, 27 - 32 [50] - [65] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
138 Graham (n 2) 26 [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
139 Ibid.
140 Graham (n 2) 25 - 26 [44] - [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). See also Plaintiff S157/2002 (n 2) 483 [5] (Gleeson CJ), 506 [77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Futuris (n 8) 167 [67] (Gummow, Hayne, Heydon and Crennan JJ).
141 There is a substantial literature on the distinction to be made between legislative power to define the scope of a conferred authority (which is not limited by s 75(v)) and legislative power to affect the exercise of jurisdiction to review the purported exercise of authority (which is limited by s 75(v)), with a specific focus on forms of legislation such as ‘no invalidity clauses’: see, for example, Bateman (n 54); Aronson (n 153) Burton Crawford (n 153).
142 Graham (n 2) 32 [64] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
143 See discussion of three 'later day Acts of Indemnity' in Aronson (n 153) 530 - 534.
144 See Commonwealth v Mewett (1997) 191 CLR 471, 492 (Brennan CJ), 531 (Gaudron J).
145 Aronson (n 24) 194.
146 Ibid, at 195 (‘the prerogative writs in 1901 were tied to the protection of existing legal rights, but they have developed since then to adjust to the emergence of the administrative state’). Compare Aronson’s comment that de Smith’s classification exercise, for identifying powers that attract judicial review's principles and remedies, is ‘preserved ... in aspic, for the history buffs’: Aronson (n 24) 183.
147 See Kioa v West (1985) 159 CLR 550, 616 - 617, 619, 621 (Brennan J).
148 Compare the core content of constitutional expressions: Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 PLR 77, 78 - 80.
149 Compare text at n 12 above.
150 For instance, adopting jurisdiction as the structuring principle for entrenched review does not ignore the doctrinal developments reflected in the extension of ‘jurisdictional error’ to non-judicial powers that attract judicial review’s remedies, see Aronson, Groves and Weeks (n 24) 17 - 19. See Kaldas (n 1) [350] - [351] (Basten JA); Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 ('Chase Oyster') 398 - 400 [7] - [19] (Spigelman CJ).
151 Compare Griffith University (n 11) 131 [90] (Gummow, Callinan, Heydon JJ).
152 That is, the argument runs that any questions of law raised on an application for judicial remedies that assume legal effects are ‘abstract’ or ‘hypothetical’ in nature if the application relates to a purported exercise of authority that lacks legal effects. Thus, there is no justiciable controversy where: (i) the application to the court seeks a remedy that addresses the legal effects of purported actions; and (ii) the action lacks any legal effects.
153 As in Ainsworth (n 10). The efficacy of a purported exercise of a statutory jurisdiction may also be determined in an application for an injunction to restrain breach of the law, see, for example, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 143 - 145 [17] - [21] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
154 See, for example, Smethurst (n 110) [111] - [112] (Gageler J). While the Court split on the availability of a mandatory restorative injunction for past trespass where there is no ongoing serious damage to legal rights, all members of the Court recognised that injunctive relief is otherwise available in relation to official action constituting an unauthorised invasion of rights, see esp [68], [71], [76], [85] (Kiefel CJ, Bell and Keane JJ), [149] - [150], [156] - [158] (Nettle J).
155 See Leighton McDonald, ‘Jurisdictional Error as Conceptual Totem’ (2019) UNSWLJ 1019, 1025-6. See also, on a related point, text at n 165 above.
156 As was held in Abebe v The Commonwealth (1999) 197 CLR 510.
157 This is not to recommend statutory jurisdictions to judicially review for some but not all forms of jurisdictional error, compare the complexity, and volume of cases in the original jurisdiction of the High Court, generated by the attempt in the old Part 8 of the Migration Act 1958 (Cth).
158 Relevantly, there is no longer any superadded requirement of a ‘duty to act judicially’: see Kaldas (n 1) [350] - [351] (Basten JA); Chase Oyster (n 170) 398 - 400 [7] - [19] (Spigelman CJ).
159 Such as the questions about the availability of prohibition while a reporting function is on foot (text at n 25 above) and certiorari to quash a report that is a permitted (not mandated) consideration: M61/2010E (n 31).
160 Consider, for example, the application of judicial review’s principles and remedies to departmental decisions to ‘filter out’ requests for the exercise of ministerial powers, consideration of which is non-compellable: see, for example, Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791, [4] (O'Callaghan J).
161 Compare the scholarly criticism of the ‘rights affectation’ test in, for example, Taggart, ‘Australian Exceptionalism in Judicial Review’ (2008) 36(1) FLR 1 and others cited in Keane (n 1).