Constitutionalising supervisory review at state level: the end of Hickman?

Abstract

In Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, the High Court has made a strong statement setting out a clear Ch III basis for supervisory judicial review of inferior courts and tribunals acting under State legislation. The corollary is that privative clauses will be of limited effect,being unable to validly exclude review for jurisdictional error. This welcome simplification effectively equates the position in relation to Commonwealth and State privative clauses and casts further doubt upon the continued utility of the Hickman formula. In all Australian jurisdictions, the determinant ofreviewability will be the presence or absence of “jurisdictional” error. The decision also contains significant discussion of the twin concepts of jurisdictional error and error on the face of the record, and questions the courts’ previously narrow approach to these grounds in Craig v South Australia (1995) 184 CLR 163. Importantly, the decision breathes fresh life into Ch III jurisprudence, establishing that Chapter as a clear foundation for the constitutional role and protection of the State Supreme Courts.