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An alternative (partial) justification for the holding in Kirk

journal contribution
posted on 2015-06-01, 00:00 authored by Oscar RoosOscar Roos
In Kirk v Industrial Court (NSW), the High Court determined that, based on “accepted doctrine at the time of Federation”, s 73 of the Constitution entrenched the jurisdiction of the State Supreme Courts to review the decisions of State decision-makers on the grounds of jurisdictional error. In an earlier article, the author argued that this reasoning was seriously flawed. This article propounds an alternative, partial justification for the holding in Kirk, based on features inherent in the text and structure of Ch III of the Constitution at Federation and the preservation of those features in the face of the post-Federation dismantling of the imperial legal system. It argues that an implication can be inserted into s 73 which entrenches the jurisdiction of the State Supreme Courts to review the decisions of “Lower State Courts”, but not “State Administrators”.

History

Journal

Public law review

Volume

26

Pagination

111-125

Location

Pyrmont, N.S.W.

ISSN

1034-3024

Language

eng

Publication classification

C Journal article, C1 Refereed article in a scholarly journal

Copyright notice

2015, Thomson Reuters

Issue

2

Publisher

Thomson Reuters

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