Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power
Melbourne University Law Review, Vol. 36, No. 1, pp. 175-215, 2012
University of Queensland TC Beirne School of Law Research Paper No. 11-20
41 Pages Posted: 3 Sep 2012
Date Written: September 3, 2012
Abstract
This article reviews the High Court of Australia’s emerging jurisprudence on the institutional integrity of state courts. It begins by surveying the Court’s recent decisions in this area. The authors argue that these decisions can usefully be placed into four interrelated categories, concerning the constitution of state courts, impermissible grants of jurisdiction, impermissible withdrawal of jurisdiction and procedural guarantees. After summarizing the central principles arising from the rulings, the authors consider four possible broader implications, focusing particularly on Kirk v Industrial Court of New South Wales. It is argued that Kirk has potentially wide ranging implications for the powers of state legislatures to restrict judicial review and modify the requirements of natural justice.
Keywords: Constitutional law, institutional integrity, state courts, jurisdictional error, natural justice
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