The 'kirk' structural constitutional implication

• Published in: Melbourne University law review Vol. 44; no. 1; pp. 345 - 379
• Main Author: Roos, Oscar I
• Format: Journal Article
• Language: English
• Published: Melbourne Melbourne University Law Review 01.11.2020; Melbourne University Law Review Association Inc
• Subjects: Constitutional law; Courts; Evaluation; Judicial power; Judicial review of administrative acts; Judicial reviews; Jurisdiction; Jurisprudence; Laws, regulations and rules; Remedies; Separation of powers; State court decisions; AUSTRALIA; United Kingdom > UK; Australia
• ISSN: 0025-8938; 1839-3810

In the landmark case of 'Kirk v Industrial Court' (NSW) (2010) 239 CLR 531 ('Kirk'), the High Court held that under the Constitution, the state Parliaments could not remove the state Supreme Courts' power to grant relief for jurisdictional error when lower state courts and state executive decision-makers exceed their jurisdiction. Although many commentators have lauded the decision, residual uncertainty about the legitimacy of the Kirk doctrine persists. This article is an attempt to place that doctrine on a surer legal footing. It takes a strand of the High Court's reasoning in Kirk and seeks to braid it to the Court's existing jurisprudence concerning 'securely based' structural constitutional implications, to construct a stronger legal justification for the doctrine. It argues, first, that the Kirk implication can be inserted into the Constitution on the basis that it is practically necessary to preserve the integrity of the High Court's federal appellate jurisdiction under section 73; and second, that the implication is confined to jurisdictional error in order to comply with an abiding constitutional norm that was first stipulated in the 'Colonial Laws Validity Act' 1865 (Imp) 28 and 29 Vict, c 63 and which is now found in relation to state legislation in s 3(2) of the Australia Act 1986 (Cth) and Australia Act 1986 (UK).