State Privative Clauses, Certiorari and Kirk

I posted about Kirk yesterday. In the interests of brevity I couldn’t go into the important issue of state privative clauses as much as I would like but I thought I would reproduce the following paragraph of the majority's reasons as it summarises the Court’s decision in relation to the administrative law questions quite well. In summary, certiori was ordered because (at [55]):

(a) Both errors of law appear in the reasons of Walton J.

(b) Both errors therefore appear "on the face of the record" as that expression must be understood in the light of s 69(3) and (4) of the Supreme Court Act 1970 (NSW).

(c) Both errors are jurisdictional errors.

(d) Chapter III of the Constitution requires that there be a body fitting the description "the Supreme Court of a State".

(e) It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.

(f) A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, as explained further in these reasons, also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error.

(g) If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court's authority.

(h) A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.

(i) Construed against this constitutional background, s 179 of the IR Act does not (and could not validly) exclude the jurisdiction of the Supreme Court of New South Wales to grant relief in the nature of prohibition, certiorari or mandamus directed to the Industrial Court for the purposes of enforcing the limits on that Court's statutory authority. In particular, the privative provisions of s 179 do not, on their proper construction, exclude certiorari for jurisdictional error.

(j) In determining whether the errors of law that were made by Walton J permitted the grant of relief in the nature of certiorari, statutory identification of the Industrial Court as a "superior court of record" is irrelevant.