The Aftermath of Kirk v Industrial Court of New South Wales: A Constitutional

The Aftermath of Kirk v Industrial Court of New South Wales

A Constitutional Right to Judicial Review for Jurisdictional Errors?

Dane Luo*

* Bachelor of Commerce (Honours) and Bachelor of Laws (Honours), The University of Sydney; Winner of the Sir Anthony Mason Constitutional Law Essay Prize, 2021. This piece was written in the author’s personal capacity and does not necessarily re ect the views of any past or present employers. The author thanks the two peer reviewers for their assistance with this piece.

I Introduction

In Kirk v Industrial Court of New South Wales (‘Kirk’),1 the High Court held that the Constitution entrenches the supervisory jurisdiction of a state Supreme Court to review state executive and court decisions infected by jurisdictional error. When combined with the express constitutional protection of judicial review over decisions of the Commonwealth executive and federal courts (other than the High Court),2 post-Kirk academic commentary has described the Constitution as entrenching a ‘minimum provision’ of judicial review.3

Protections of judicial power, independence and processes derived from Ch III have generally been applauded on the basis that they incidentally protect individual rights.4 Indeed, Justice Virginia Bell described the Constitution’s constraints on Parliaments’ ability to oust judicial review as a ‘guarantee of protection under the rule of law’.5

This article critically evaluates the impact and limitations of the entrenchment of state judicial review following Kirk. In the context of the current academic debate about whether the ‘entrenched minimum provision’ of judicial review is merely jurisdictional or incorporates more substantive legal principles,6 this article argues that the former view should be preferred. It argues that, whilst Kirk may defeat privative clauses in some circumstances, there remains severe limitations to accessing judicial review remedies. The article casts doubt on whether it can truly be said that there is a ‘constitutional guarantee’ or ‘right’ to judicial review in Australia.7

II Kirk v Industrial Court of New South Wales

The Kirk Group owned a farm near Picton. One of its directors was Mr Kirk but he had no farming experience. So, he left the day-to-day management to Mr Palmer, the farm manager. Mr Palmer recommended that the Kirk Group buy an All-Terrain Vehicle (‘ATV’). Tragically, Mr Palmer was killed when the ATV overturned. The Industrial Relations Commission in Court Session (later known as the Industrial Court) convicted and sentenced Kirk and his company of two offences under the Occupational Health and Safety Act 1983 (NSW) (‘OHS Act’).

Eventually, the matter reached the High Court, which found that the Industrial Court had made jurisdictional errors in both its construction of the OHS Act and conduct of the trial with respect to rules of evidence. It would ordinarily follow that orders infected by jurisdictional error can be quashed by an order in the nature of certiorari.8 However, s 179 of the Industrial Relations Act 1996 (NSW) contained a privative clause, which stated:

(1) A decision of the Commission (however constituted) is nal and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. … (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

The High Court held that, because s 73(iii) of the Constitution provides that there shall be appeals from ‘the Supreme Court of a State’ to the High Court, there must be a body tting that description.9 The majority’s historical analysis explained that it was well-accepted that state Supreme Courts had been inherited from the Courts of the Queen’s Bench in England supervisory jurisdiction to grant writs of prohibition, certiorari and mandamus for jurisdictional error (and habeas corpus).10 Relevantly, an early Privy Council authority established that privative clauses did not oust this jurisdiction.11 These historical reasons12 meant that the supervisory role to grant prerogative relief to state executive and inferior judicial bodies was at Federation, and remains, a ‘de ning characteristic’ of state Supreme Courts.13 Accordingly, ‘[l]egislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power’.14

The High Court held that the Industrial Court is subject to the supervisory jurisdiction of the Supreme Court, notwithstanding that both courts were of equivalent status under state law.15 This could be facilitated if the expression ‘[a] decision of the [Industrial Court]’ was read as only referring to a decision made within the limits of the Court’s power. It would not include a decision attended by jurisdictional error (commonly coined as a ‘purported decision’) because they are ‘“no decision at all”’ in law.16 Therefore, s 179 did not prevent the Court of Appeal of the Supreme Court of New South Wales quashing the convictions and sentences imposed by the Industrial Court.

III Analysis: A Constitutional Right to Judicial Review?

The signi cance of Kirk’s holding must be understood in its broader constitutional and administrative law framework. Section 75(v) of the Constitution expressly conferred a power in the original jurisdiction of the High Court to grant a ‘writ of Mandamus or prohibition or an injunction … against an of cer of the Commonwealth’. This ensured that decisions of Commonwealth Ministers,17 statutory bodies18 and judges19 could be subject to review by the High Court. It had been settled that the power to grant relief under s 75(v) ‘cannot be removed by or under a law made by the [Commonwealth] Parliament’.20 Thus, Kirk had the effect of extending the entrenchment of judicial review to state executive and judicial bodies other than the Supreme Court21 where the decision involves jurisdictional error.22

One question to consider is whether it can now be said that there is a ‘right’ for an individual to seek judicial review of jurisdictional errors in decisions made by the executive or inferior courts. This part argues that there are three limitations that make the constitutional protection identi ed in Kirk very thin indeed in the face of a determined legislature.

A Kirk’s Limitation Only Extends to Jurisdictional Errors The rst issue is that the constitutional protection identi ed in Kirk is limited to legislation that infringes on a state Supreme Court’s power to grant relief on account of jurisdictional error.23 A decision is infected by ‘jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’.24 In contrast, a non-jurisdictional error is when a power has been exercised within its proper limits but another legal error is alleged. Although this distinction has been criticised for yearning in vain ‘for bright lines and a clear legal rule’,25 the High Court has repeatedly emphasised the need for, and utility of, maintaining this distinction.

Certiorari lies not just for jurisdictional errors but also for non-jurisdictional errors of law on the face of the record.26 However, Kirk made clear that legislation which denies the availability of relief for the latter is not beyond state legislative power.27 The consequence is that privative clauses can close a ground of review that would otherwise be available by certiorari. This is particularly

signi cant because some errors of law by inferior courts, as well as some tribunals,28 have been treated as non-jurisdictional.29

Take for example, an aggrieved party seeks redress for non-jurisdictional errors of law by the Industrial Relations Commission. As discussed above, s 179 would preclude judicial review for this kind of error. Apart from limited exceptions,30 there is no statutory right of appeal from the Commission to a court. This demonstrates that, notwithstanding Kirk, there may be circumstances where an inferior tribunal’s authority over non-jurisdictional errors of law is unreviewable by any court.31 Therefore, the ‘guarantee of protection’ over executive decision-makers and inferior courts is still heavily dependent on balancing by Parliament of nality in decision-making and the rule of law.32

B Parliament May Undermine Judicial Review by Legislative Devices It follows from this fact that Kirk, at most, protects judicial review of jurisdictional errors and is thus vulnerable to legislative devices such as a no invalidity clause. These provisions ultimately remove a substantive ground of review and validate acts. Such provisions can signi cantly affect the availability of judicial review because whether a decision-maker has exceeded their jurisdiction is ultimately an exercise of statutory construction.33

The effect of a ‘no invalidity’ clause can be seen in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme. 34 This case involved a statute that provided a breach of the duty to give reasons does not affect the validity of the decision. The Court held that the decision could not be attacked on that ground, but the decision could be attacked if the reasons disclosed reviewable errors. It is thus clear that a ‘no invalidity’ clause can transform an otherwise jurisdictional error into a non-jurisdictional one.35

Similarly, Parliament may oust traditional judicial review grounds that would usually be jurisdictional errors. For example, the rules of natural justice, whether considered to be common law rules36 or represent an implied legislative intention,37 can be excluded by clear legislative drafting.38 The effect is to reduce the available grounds upon which the decision may be attacked on judicial review.39

Further, a provision that deems a previously invalid act, decision or omission to be valid retrospectively may stymie judicial review for jurisdictional error. Such a clause was held in Duncan v Independent Commission against Corruption to not infringe on the principle in Kirk because state legislatures are competent to alter the substantive law.40 Retrospective validating acts can cure previously invalid decisions provided that the legislature transforms the decision into a valid decision.41 Such provisions are valid provided that the legislature is not requiring a state Supreme Court to treat acts that remain invalid as valid and does not withdraw entrenched jurisdiction from the Supreme Court. This has the practical effect of withdrawing the power of the Court to declare an act, decision or omission as invalid notwithstanding that it was in fact invalid at the time it occurred.

A state parliament may also be able to undermine the availability of judicial review. In some jurisdictions, there is legislation that sets an absolute deadline for accessing judicial review.42 Although the High Court has held that a statutory deadline in Commonwealth legislation would be invalid if it operated in practical terms to defeat a person’s chances of accessing the Court’s constitutional writ jurisdiction,43 it has been stated in obiter dicta that the same conclusion may not necessarily be reached in relation to state legislation.44 It appears that considerations, such as the nature of the decision under review, context, public interest and reasonableness of the limitation, are relevant factors in determining their validity.45 It is thus conceivable that a state parliament can, subject to some presently unclear limits, practically prevent judicial review remedies by legislating absolute time limits.

Thus, it is clear that a state parliament can undermine the constitutional protections from Kirk by minimising the potential grounds on which a decision may be reviewed in a state Supreme Court’s entrenched jurisdiction or by practically preventing such review.46

C Kirk Is Limited to Prerogative Relief Another weakness of Kirk is that it appears to have only entrenched the power of a state Supreme Court to grant prerogative relief47 and does not extend to equitable remedies. This is signi cant because declarations and injunctions are commonly sought

in judicial review proceedings as a result of the ‘inadequacy’ and ‘technicalities hedging the prerogative remedies’.48 A declaration is a exible and noncoercive remedy that is commonly used to a declare a decision to be invalid or a ground of review to have been established.49 An injunction, however, is a coercive remedy. But, like a declaration, it too is a exible remedy that may be granted to prevent a decision-maker from proceeding in a way that would be unlawful.50 An important function served by equitable remedies is that they may be available to vindicate a public law right where prerogative remedies are not.51 For example, although prerogative relief is not available against the Governor-General or Governor,52 it is well-accepted that declarations may attach to actions or decisions by the Vice-Regal Of cer in Council.53

This weakness of Kirk was exposed in Kaldas v Barbour. 54 Here, the plaintiff sought judicial review over ndings made in an Ombudsman’s report. However, certiorari did not lie to quash an Ombudsman’s report because the report did not, and was not part of a process that would, affect an individual’s rights.55 Thus, the plaintiff had to rely on equitable relief. But this kind of relief appeared to be foreclosed by a privative clause in the Ombudsman Act 1974 (NSW) that precluded a claim for judicial review of the Ombudsman’s acts unless done in bad faith.56 As such, the issue was whether the power to grant a declaration in aid of a state Supreme Court’s supervisory jurisdiction was constitutionally entrenched.

The New South Wales Court of Appeal held that the power to grant declaratory relief was not a de ning, irreducible characteristic of the Supreme Court.57 This is because, although courts of equity historically could grant declarations against the Crown in proceedings brought against the Attorney-General, those courts had no jurisdiction to review decisions of inferior courts or tribunals in the same way as the Court of King’s Bench.58 At Federation, there was no jurisdiction to make bare declarations of right59 and it was not until 1911 that Dyson v Attorney General60 heralded a ‘new willingness to grant bare declarations’.61

This is a rather curious result especially given that s 75(v) of the Constitution expressly confers the power on the High Court to grant injunctions against of cers of the Commonwealth. In this respect, it may be observed that the entrenched minimum provision of judicial review for state decisions is of a narrower breadth than that for Commonwealth decisions. Moreover, the consequence is that a state parliament can validly oust judicial review of decisions that would not be amenable to the prerogative writs — even if the decisions are vitiated by jurisdictional error. Lisa Burton Crawford and Janina Boughey explain that the constitutional guarantee of judicial review is ‘primarily delineated by the ambit of the judicial review remedies, not the underlying concept of jurisdictional error’.62 Thus, it would be ‘over-broad’ to say that Kirk established a guarantee of judicial review for jurisdictional error at the state level.63

IV Conclusion

Kirk has been heralded as a major decision that furthers the rule of law in Australia. This article has considered three legal issues that casts doubt on the argument that the entrenched minimum provision of judicial review incorporates substantive protections. Kirk does not protect judicial review of non-jurisdictional errors. Parliament can, through carefully drafted legislative devices, determine whether errors are jurisdictional or not. Even if jurisdictional error is established, there may be no remedy if the strict rules for issuing prerogative writs render them unavailable. Thus, Kirk does not even ensure that all jurisdictional errors are within the purview of judicial supervision.

It is dif cult to reconcile these substantive issues with the warning in Kirk against the creation of ‘islands of power immune from supervision and restraint’.64 And it is more dif cult to say that the Constitution confers a positive ‘right’ or ‘guarantee’ to judicial review in Australia. Thus, the scope of the protections enunciated in Kirk is determined by the text and structure of the Constitution, not the requirements of the rule of law considered in abstract.

1 (2010) 239 CLR 531 (‘Kirk’). 2 Australian Constitution s 75(v). 3 See Will Bateman, ‘The Constitution and the Substantive Principles of Judicial

Review: The Full Scope of the Entrenched Minimum Provision of Judicial

Review’ (2011) 39(3) Federal Law Review 463. 4 See, eg, George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional

Law: Essays in Honour of Professor Leslie Zines (Federation Press, 1994) 185;

Fiona Wheeler, ‘The Rise and Rise of Judicial Power under Chapter III of the

Constitution: A Decade in Overview’ (2001) 20(3) Australian Bar Review 282. 5 Chief Justice Wayne Martin, ‘Peripheral Vision? Judicial Review in Australia’ (Lecture, Australian Institute of Administrative Law National Conference,

University of Western Australia, 24 July 2014) 11. 6 See Leighton McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21(1) Public Law Review 14; Bateman (n 3); Lisa

Burton Crawford, ‘The Entrenched Minimum Provision of Judicial Review and the Limits of “Law”’ (2017) 45(4) Federal Law Review 569. 7 Lisa Burton Crawford and Janina Boughey, ‘The Centrality of Jurisdictional

Error: Rationale and Consequences’ (2019) 30(1) Public Law Review 18, 19, 30. 8 Leighton McDonald, ‘Jurisdictional Error as Conceptual Totem’ (2019) 42(3)

University of New South Wales Law Journal 1019, 1023. 9 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [63] (Gummow, Hayne and Crennan JJ). 10 See Australian Courts Act 1828 (Imp) 9 Geo 4, c 83 s 3. See Kirk (n 1) 581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 11 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 442 (Colville, Peacock,

Smith, Collier and Peel JJ). 12 Mark Aronson, Matthew Groves and Greg Weeks describe the High Court’s historical analysis as ‘unconvincing’ but notes that ‘no-one will complain too much about Kirk’s legal history, because it is a good result’: Mark Aronson,

Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and

Government Liability (Lawbook, 6th ed, 2017) 1055–6 [18.30]. 13 Kirk (n 1) 581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 14 Ibid 581 [100]. Whether the supervisory jurisdiction to review action by executive of cers of a territory for jurisdictional error is entrenched by Ch III has never been determinatively settled by the High Court. The issue was mentioned but left open by Gageler J in North Australian Aboriginal Justice Agency Limited v Northern

Territory (2015) 256 CLR 569, 616 [113]. To so hold would be to accept that there is a rationale other than the inherent supervisory jurisdiction of the state Supreme

Courts at Federation for entrenching the jurisdiction. Lower courts have held that Kirk’s entrenchment applies to the territory Supreme Courts: DPP (ACT) v

Martin (2014) 9 ACTLR 1, 28 [104] (Murrell CJ, Katzmann and Wigney JJ); Faull v Commissioner for Social Housing (ACT) and Residential Residencies Tribunal (2013) 277 FLR 61, 81 [109] (Refshauge J). The author suggests that a potential rationale may be that the jurisdiction of territory of cers is sourced from, and limited by, laws of the Commonwealth Parliament and there is a need to address jurisdictional errors in the integrated court system for which Ch III provides. 15 Industrial Relations Act 1996 (NSW) s 152(2), as at 3 February 2010; Constitution

Act 1902 (NSW) s 52(2)(d). It is noted that the Industrial Court referred to in s 52(2) (a) of the Constitution Act 1902 (NSW) was a reference to the Industrial Court that existed before its abolition by the Industrial Relations Act 1996 (NSW). An effect of this Act was to create the Industrial Relations Commission in Court Session, which, by virtue of s 152, was established as a ‘superior court of record’ and is a ‘court of equivalent status to the Supreme Court and the Land and Environment Court’. A legislative amendment in 2005 added s 151A to the Industrial Relations Act 1996 (NSW), which named the Commission in Court Session as the ‘Industrial Court of

New South Wales’: Industrial Relations Amendment Act 2005 (NSW) sch 1 cl 4. 16 See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 133 [24] (Kiefel CJ, Gageler and Keane JJ), quoting Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 615 [51] (Gaudron and

Gummow JJ). 17 See, eg, Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 95 [127] (Gageler J). 18 See, eg, Church of Scientology Inc v Woodward (1982) 154 CLR 25, 65 (Murphy

J). But see Australasian College of Cosmetic Surgery v Australian Medical

Council Ltd (2015) 232 FCR 225, 233–4 [42] (Katzmann J); Janina Boughey and

Greg Weeks, ‘“Of cers of the Commonwealth” in the Private Sector: Can the

High Court Review Outsourced Exercises of Power?’ (2013) 36(1) University of

New South Wales Law Journal 316. 19 See, eg, R v Judges of the Federal Court of Australia; Ex parte Western

Australian National Football League (Inc) (1979) 143 CLR 190, 201 (Barwick

CJ), 241 (Aickin J). But not Justices of the High Court: Re Carmody; Ex parte

Glennan (2003) 77 ALJR 1202, 1203 [6] (Gummow, Hayne and Callinan JJ). 20 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512 [98], 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Graham v Minister for

Immigration and Border Protection (2017) 263 CLR 1, 25–26 [42]–[44], 27 [48] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). See also Jeremy Kirk,

‘The Entrenched Minimum Provision of Judicial Review’ (2004) 12(1) Australian

Journal of Administrative Law 64. 21 Kirk does not result in state Supreme Courts having an entrenched supervisory jurisdiction over Commonwealth judicial and administrative power: Nguyen v

Commissioner of the Australian Federal Police (2014) 292 FLR 10, 18–19 [26] (Fraser JA, Holmes JA agreeing at 11 [1], Muir JA agreeing at 11 [2]). 22 Kirk (n 1) 580–1 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 23 Ibid 581 [100]. 24 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 141 [163] (Hayne J). 25 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant

S20/2002 (2003) 198 ALR 59, 86 [121] (Kirby J). See also Re Minister for

Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 123 [212] (Kirby J) (‘Ex parte Miah’); Crawford and Boughey (n 7) 29; Margaret

Allars, ‘The Distinction between Jurisdictional and Non-Jurisdictional Errors: Its

Signi cance and Rationale’ in Debra Mortimer (ed), Administrative Justice and

Its Availability (Federation Press, 2015) 74; Justice John Basten, ‘Jurisdictional

Error after Kirk: Has It a Future?’ (2012) 23 Public Law Review 94. 26 Craig v South Australia (1995) 184 CLR 163, 181 (Brennan, Deane, Toohey,

Gaudron and McHugh J) (‘Craig’); Bros Bins Systems Pty Ltd v Industrial Relations

Commission of New South Wales (2008) 74 NSWLR 257, 264 [31] (Spigelman

CJ, Giles JA agreeing at 274 [87], Handley AJA agreeing at 274 [88]). See Amnon

Rubinstein, Jurisdiction and Illegality: A Study in Public Law (Oxford University

Press, 1965) 72. The record does not include the stated reasons for decision unless they are deliberately incorporated into the decision itself: Craig (n 26) 183 (Brennan, Deane, Toohey, Gaudron and McHugh J). However, statutory reform has deemed reasons of tribunals and courts to form part of ‘the record’: see, eg,

Supreme Court Act 1970 (NSW) s 69, Administrative Law Act 1978 (Vic) s 10. 27 Kirk (n 1) 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 28 Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501, 525 [118] (Martin CJ), 536–7 [181] (McLure JA); Absolon v NSW Technical and Further

Education Commission [1999] NSWCA 311, [146] (Fitzgerald JA). See also Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537, 549–51 [51]–[59] (Buchanan

J, Allsop CJ agreeing at 540 [1], Siopis J agreeing at 540 [2]). 29 Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381, 416–7 [139]–[140] (Rein J);

Returned & Services League of Australia (Victorian Sub-Branch) Inc v Liquor

Licensing Commission [1999] 2 VR 203, 214–5 [28] (Phillips JA); Re Robins; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511. 30 See, eg, Industrial Relations Act 1996 (NSW) s 197B. 31 Lisa Burton Crawford and Janina Boughey reject the view that the idea of non-remediable legal error is either incoherent or incompatible with the rule of law: Crawford and Boughey (n 7) 21–2. They suggest that every system will likely tolerate a certain level of legal error and therefore will need to devise doctrine or ltering mechanisms for that purpose. 32 See generally Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 522–3 [125] (Callinan J). 33 See generally Project Blue Sky v Australian Broadcasting Authority (1998) 194

CLR 355. 34 (2003) 216 CLR 212. 35 Harvey v Commissioner of State Revenue (Qld) [2015] QCA 258, [77]–[79] (McMurdo P, Philippides JA agreeing at [86], Burns J agreeing at [87]). See also

Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146. 36 Kioa v West (1985) 159 CLR 550, 584 (Mason J). 37 Ibid 612, 615 (Brennan J). 38 Ibid 584 (Mason J), 615 (Brennan J); Ex parte Miah (n 25) 70 (Gleeson CJ and

Hayne J), 83 (Gaudron J), 93 (McHugh J), 112 (Kirby J). 39 See generally Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. 40 Duncan v Independent Commission against Corruption (2015) 256 CLR 83. 41 Ibid; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117. 42 See, eg, Environmental Planning and Assessment Act 1979 (NSW) s 101, as at 19 November 2004. However, this provision was held to only apply to the Land and Environment Court of New South Wales (not the Supreme Court) and, in any case, has a very limited scope: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61

NSWLR 707, 722 [75] (Spigelman CJ, Mason P agreeing at 734 [136]); Vanmeld Pty

Ltd v Fairfield City Council (1999) 46 NSWLR 78, 106 [131]–[132] (Spigelman CJ). 43 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 672 [58] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). 44 Trives v Hornsby Shire Council (2015) 89 NSWLR 268, 280–1 [48]–[49] (Basten

JA, Macfarlan JA agreeing at 283 [63], Meagher JA agreeing at 283 [64]). 45 Ibid; Hoxton Park Residents Action Group Inc v Liverpool City Council [2010]

NSWLEC 242, [53] (Biscoe J). 46 Other legislative devices may also be available. For example, a statute may empower a decision-maker to exercise a power for a purpose or taking account of consideration beyond the subject-matter, scope and purpose of the Act: see

Bateman (n 3) 467, 480–1. 47 It is noted that, in most states, legislative provisions have provided for the

Supreme Court to issue orders in the nature of the prerogative writs, as opposed to the writs themselves: see, eg, Supreme Court Act 1970 (NSW) s 69(1). It is generally accepted that this is a mere procedural change and does not alter the grounds or discretion for determining whether to grant relief. In this article, references to prerogative relief or remedies should include orders in the nature of such relief or remedies. 48 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund

Pty Ltd (1998) 194 CLR 247, 257–8 [24]–[27] (Gaudron, Gummow and Kirby JJ). 49 See, eg, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. A recent example was in Huynh v A-G (NSW) (2021) 107 NSWLR 75 where the Court of Appeal made a declaration ‘that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) … (b) is not available with respect to a

conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court’: at 112 [127] (Basten JA, Bathurst

CJ agreeing at 80 [1], Gleeson JA agreeing at 112 [128], Payne JA agreeing at 140 [251]). This highlights the exibility of a declaration and the utility for appellate courts to lay down rules and principles for lower courts, executive of cers or, as in this case, a judicial of cer exercising an administrative power as a persona designata. The High Court has granted special leave to appeal the

Court of Appeal’s decision: A-G (Cth) v Huynh [2022] HCATrans 91. 50 See, eg, Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146, 162 [47] (Gummow, Hayne, Heydon and Crennan JJ). The exibility of an injunction, unlike prohibition or mandamus, makes it an attractive remedy. For example, a mandatory injunction can restore an applicant to the position she was in prior to unlawful conduct: see Smethurst v Commissioner of Police (Cth) (2020) 280 A

Crim R 356, 382 [69] (Kiefel CJ, Bell and Keane JJ). 51 Enfield City Corporation v Development Assessment Commission (2000) 199

CLR 135, 157–8 [58] (Gaudron J). 52 R v Governor (SA) (1907) 4 CLR 1497, 1512 (Barton J for the Court); Banks v

Transport Regulation Board (Vic) (1968) 119 CLR 222, 241 (Barwick CJ). But see

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 220 (Mason J). 53 See, eg, FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 351 (Gibbs J), 372 (Mason J), 404 (Wilson J), 419–20 (Brennan J); Mark Leeming, ‘Judicial Review of Vice-Regal Decisions: South Australia v O’Shea, Its Precursors and Its

Progeny’ (2015) 36(1) Adelaide Law Review 1, 11. 54 (2017) 326 FLR 122. 55 Ibid 163–4 [160]–[168] (Bathurst CJ). See also Ainsworth v Criminal Justice

Commission (1992) 175 CLR 564, 580–1 (Mason CJ, Dawson, Toohey and

Gaudron JJ); Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159–62, 164 (Brennan CJ, Gaudron and Gummow JJ); Greiner v Independent Commission against Corruption (1992) 28 NSWLR 125, 148 (Gleeson CJ), 193 (Priestley JA).

But see City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1. 56 Ombudsman Act 1974 (NSW) s 35A(1). 57 Kaldas v Barbour (n 54) 166 [177] (Bathurst CJ), 209 [360] (Basten JA, Macfarlan

JA agreeing at 213 [380]). 58 Ibid 166–7 [178]–[184] (Bathurst CJ), 207–8 [354]–[357] (Basten JA, Macfarlan

JA agreeing at 213 [380]). 59 Ibid 168 [187] (Bathurst CJ), 206 [349], 208 [355] (Basten JA, Macfarlan JA agreeing at 213 [380]). 60 [1911] 1 KB 410. 61 Kaldas v Barbour (n 54) 208 [355] (Basten JA, Macfarlan JA agreeing at 213 [380]). 62 Crawford and Boughey (n 7) 33. 63 Ibid. 64 Kirk (n 1) 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).