An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia
Article
Article Title | An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia |
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ERA Journal ID | 35507 |
Article Category | Article |
Authors | Young, Simon (Author) and Murray, Sarah (Author) |
Journal Title | Oxford University Commonwealth Law Journal |
Journal Citation | 11 (2), pp. 117-142 |
Number of Pages | 26 |
Year | 2011 |
Place of Publication | Oxford, United Kingdom |
ISSN | 1472-9342 |
Web Address (URL) | http://www.law.ox.ac.uk/publications/ouclj.php |
Abstract | In 2010 the Australian High Court overturned a state health and safety prosecution by means of a constitutional law advance not seen since the free speech cases and the Kable decision of the mid 1990s. Pursuant to this decision, Kirk v Industrial Court (NSW), the core supervisory jurisdiction of the Australian state Supreme Courts (over jurisdictional error) is now constitutionally protected against legislative ouster. In the ensuing rush of interest in this constitutional extension, the role and readiness of the other partner to the emerging public law collaboration—administrative law and its notoriously unsteady notion of 'jurisdictional error' has been somewhat neglected. This article attempts to draw together the threads of the constitutional development behind Kirk, and then proceeds to reassess the increasingly pivotal notion of jurisdictional error. It examines the High Court's recent forays into this administrative law conundrum, attempts to re-phrase the problem as a tension between 'internal' and 'external' approaches, and seeks to construct a solution. |
ANZSRC Field of Research 2020 | 480702. Constitutional law |
480504. Legal institutions (incl. courts and justice systems) | |
480701. Administrative law | |
Public Notes | © Hart Publishing, Oxford and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. |
Byline Affiliations | University of Western Australia |
Institution of Origin | University of Southern Queensland |
https://research.usq.edu.au/item/q2826/an-elegant-convergence-the-constitutional-entrenchment-of-jurisdictional-error-review-in-australia
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