THE KIRK STRUCTURAL CONSTITUTIONAL IMPLICATION.

• Date: 01 August 2020
• Author: Roos, Oscar I.
• Published date: 01 August 2020
• Author: Roos, Oscar I.

Contents I Introduction A Six Assumptions II The Basic Structural Argument A Text B Structure C Necessity D Two Anticipated Objections to the Basic Structural Argument 1 Mere Jurisdiction Objection 2 Practical Necessity Objection III Supporting High Court Authorities A Kable 1 Justice Gummow 2 Justice McHugh B Wakim C Justice Gummow and McHugh J in APLA D Burns IV Why Jurisdictional Error Only? A Problem B Proposed Solution 1 The CLVA Norm (a) The CLVA (b) The Australia Acts and the Statute of Westminster 2 The Boughey-Crawford Account 3 Why, on the Boughey-Crawford Account, the Kirk Implication Is Confined to Jurisdictional Error 4 An Anticipated Objection to the Proposed Solution: Implied Repeal V Conclusion I INTRODUCTION

Until the High Court's decision in 2010 in Kirk v Industrial Court (NSW) ('Kirk') (1) it was almost universally accepted that state Parliaments could validly enact a 'strong' privative clause which ousted the jurisdiction of the state Supreme Courts to review a decision of an inferior state court or state executive decision-maker on the grounds that the decision-maker lacked jurisdiction. (2) The High Court had supported that view, (3) and it seemed to flow naturally from the recognition that there was no formal separation of powers in the Australian states. (4) However, in Kirk, the orthodoxy was upended when the High Court unanimously held that under the Constitution, the state Parliaments could not remove the state Supreme Courts' power to grant relief for jurisdictional error when state courts other than the state Supreme Courts ('Lower State Courts') and state executive decision-makers exceed their jurisdiction. (5) By contrast, '[legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power'. (6)

The doctrine thus established in Kirk has been greeted with a degree of scepticism by commentators who are inclined, or committed, to a historicist approach to constitutional interpretation. (7) This scepticism has probably been heightened by the High Court's attempt in Kirk to justify the doctrine by empirical, 'originalist' reasoning (8)--notably its reference to 'accepted doctrine at the time of federation' (9)--to fix the 'defining characteristics' of state Supreme Courts. (10) Many commentators have lauded the doctrine on the policy grounds articulated by the Court in Kirk--the need to prevent the emergence of 'islands of power immune from supervision and restraint, (11) and 'distorted positions' (12) isolated from the mainstream of Australian law--and for the symmetry it brings to Australian administrative law after Plaintiff S157/2002 v Commonwealth. (13) There is now an 'entrenched minimum provision of judicial review' (14) across federal and state jurisdictions with jurisdictional error as its touchstone. However, judicial authority depends on judicial restraint and, in accordance with the principles of constitutional interpretation accepted in Australian law, 'the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest'; (15) nor, to adopt the words of Hayne J in APLA Ltd v Legal Services Commissioner (NSW'APLA'), can the doctrine be justified merely because it is 'reasonable ... judged against some ... a priori assumption of what would be a desirable state of affairs'. (16) Although it is probably safe to assume that Kirk is unlikely to be reversed, (17) considerable dissatisfaction with its 'perfunctory' (18) legal reasoning, and residual uncertainty about the legitimacy, integrity and ramifications of the Kirk doctrine persists. (19)

Several commentators have suggested that the entrenchment of the High Court's appellate jurisdiction under s 73 of the Constitution (as opposed to the implied content of the 'sparse phrase' (20) of 'Supreme Court of any State' in the text of the section) provides a stronger foundation for the Kirk doctrine as a structural implication. (21) Hitherto, however, that suggestion has remained undeveloped, (22) and the link between the Kirk doctrine as a specific example of a structural implication, and the Court's established jurisprudence on such implications generally, has neither been fully explicated nor demonstrated in the 'dense, grinding judicial style' (23) that is characteristic of Australian public law judgments. This article is an attempt to perform that task and place the Kirk doctrine on a surer legal footing, at least insofar as it relates to the decisions of state executive decision-makers and Lower State Courts regulated by state statute, which constitute the overwhelming majority of decisions which are judicially reviewed. This article does not consider the application of the doctrine to decisions which are made purely as an exercise of state prerogative power. In Part II, 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' (24) structural constitutional implications, which the Court developed in relation to the implied freedom of political communication, to develop an argument for the entrenchment of the state Supreme Courts' judicial review jurisdiction. Part III then identifies several High Court judgments which support the argument developed in Part II. Part IV turns its attention to the limitation of the Kirk doctrine to jurisdictional error only, and argues that the doctrine can be so limited by reference to the great imperial constitutional settlement of the 19th century effected by the Colonial Laws Validity Act 1865 (Imp) 28 and 29 Vic, c 63 ('CLVA '), which is reproduced in s 3(2) of the Australia Act 1986 (Cth) and Australia Act 1986 (UK) (collectively, 'Australia Acts').

A Six Assumptions

This article makes six assumptions which should be identified at the outset in order to assist the reader in evaluating its arguments.

The first assumption is that the Kirk doctrine is derived from a constitutional implication ('Kirk implication').

The second assumption is that the Kirk implication cannot be justified as a 'genuine' constitutional implication which inhered in the meaning of the words 'Supreme Court of a State' and 'court' in s 73(ii) at the time the Constitution was enacted in 1900. (25) In other words, it cannot plausibly be argued that the implication was so obvious to the framers and relevant contemporaneous audience of the Constitution, that it did not need to be stated expressly in the Constitution. Accordingly, it is assumed the High Court's chief proffered justification for the Kirk doctrine in Kirk itself (viz 'accepted doctrine at the time of federation' (26)) is unpersuasive. (27)

The third assumption is that, consistently with High Court jurisprudence, it is legitimate for the Court to insert 'structural' (28) implications into the Constitution (in contrast to 'textual' implications which are manifested in its text (29)) by judicial interpretation if the implication is 'logically or practically necessary for the preservation of the integrity of [the Constitutions] structure', (30) provided that the implication 'extend[s] only so far as is necessary ... to give effect only to what is inherent in the text and structure of the Constitution. (31)

The fourth (controversial) assumption is that the Constitution does not necessitate a uniform common law throughout Australia. The High Court can validly declare that 'there is a common law of Australia as opposed to a common law of individual States'; (32) and the Constitution enables and facilitates the laying down of a uniform national common law by making Australia's ultimate court of appeal the High Court in relation to matters originating in both federal and state jurisdiction. (33) However, consistently with the fourth assumption, there is no 'constitutional duty' to do so: (34) it would not be incompatible with any requirement of the Constitution (as opposed to undesirable) for there to be several subsets of state common law, such that the High Court could recognise, consistently with the Constitution, a common law of New South Wales ('NSW') that is different from the common law of Victoria. (35)

This fourth assumption is likely to be resisted because it runs counter to recent High Court authority, (36) and because in Kirk itself the Court referred to the maintenance of a uniform national common law to justify its holding. (37) Yet it stretches credulity to assert that a national uniform common law was 'envisaged' by the Constitution, let alone required by it. As Leeming has persuasively argued, 'a conception of the Australian legal system, grounded in the Constitution and especially s 73 and s 75(v), as a coherent and unified legal system ... is a very modern notion'. (38) Indeed, if the fourth assumption holds (and the author's view is that it does, although it is beyond the scope of this article fully to explore or defend it) then a justification for the Kirk implication which appeals to the 'settled doctrine' (39) of national common law uniformity amounts to constitutional bootstrapping. That is, because the Court has, only recently, declared that there is a uniform Australian common law, therefore the Kirk implication is necessary to ensure that the Court can maintain it. (40) Yet the Court exercises its power under the Constitution, and if the Constitution itself does not necessitate common law uniformity throughout Australia, then it cannot be invoked as a justification for a constitutional implication, however much the Court might find such uniformity desirable. Moreover (and importantly for the reader who resists the fourth assumption), even if the assumption is wrong and the uniformity of the common law is a constitutional requirement, the justification for the Kirk implication presented in this article is augmented and strengthened, not undermined nor weakened. Hence the assumption is made here to...