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Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales

Roos, Oscar 2013, Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales, Sydney Law Review, vol. 35, pp. 781-807.

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Title Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales
Author(s) Roos, Oscar
Journal name Sydney Law Review
Volume number 35
Start page 781
End page 807
Total pages 27
Publisher University of Sydney
Place of publication Sydney, New South Wales
Publication date 2013
ISSN 0082-0512
Summary This article critiques one aspect of the High Court’s reasoning in its landmark 2010 decision of Kirk v Industrial Court of New South Wales, namely its reliance on ‘accepted doctrine at the time of federation’ to determine the ‘defining characteristics’ of the state Supreme Courts. I argue that the relevant passages in Kirk are ambiguous and capable of two alternative readings, which I term the ‘pre-Federation entrenchment theory’ and the ‘on-Federation entrenchment theory’. With extensive reference to primary and secondary materials from the Federation era, I argue that both theories are flawed and, indeed, contrary to accepted doctrine at the time of Federation. Consequently, if the holding in Kirk is to be defended, other justifications for the entrenchment of judicial review in the state jurisdictions, which were only touched upon in Kirk, need to be developed and articulated with greater thoroughness and rigour.
Language eng
Field of Research 180108 Constitutional Law
180103 Administrative Law
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2013, University of Sydney
Persistent URL http://hdl.handle.net/10536/DRO/DU:30060438

Document type: Journal Article
Collections: Faculty of Business and Law
School of Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.