The Constitution’s Guarantee of Legal Accountability for Jurisdictions

Abstract

This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275 on the class of administrative actions that are amenable to entrenched judicial review of State powers. The article shows that the application of this understanding to entrenched review of Commonwealth powers has significant explanatory value. It casts new light on two puzzling features of entrenched review of Commonwealth powers: The discrimen between executive and judicial power that underpins a separation of powers rationale for entrenched review of Commonwealth executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Commonwealth officers. Viewing entrenched review as a guarantee of legal accountability for jurisdictions prompts new insights into its constitutional rationale and its specific contribution to government under law.