The entrenchment of judicial review in the Australian states: towards an originalist assessment

In Kirk the High Court unanimously held that, based on s 73 of the Australian Constitution, the capacity of the state Supreme Courts to engage in judicial review is constitutionally entrenched where an inferior court or state executive decision-maker makes a decision arguably involving jurisdictional error. The thesis identifies and analyses a range of primary and secondary legal materials from the 19th and early 20th centuries and uses that material to critique the High Court’s originalist reasoning in Kirk and to develop its own originalist assessment of its holding. The thesis sets out a comprehensive originalist methodology of constitutional interpretation which can be used both to identify the original meaning of the text of the Australian Constitution and to interpret its provisions in a manner which departs from that original meaning, through the insertion of ‘judicial implications’ into the text, consistently with the purposes and assumptions of its framers. The thesis then applies that methodology to s 73 and concludes that (i) the original meaning of s 73 does not support the holding in Kirk; (ii) a judicial implication can be inserted into s 73 in order to entrench the jurisdiction of the state Supreme Courts to review of the decisions of inferior state courts exercising state judicial power as a result of the abolition of Privy Council appeals after Federation; and (iii) a judicial implication cannot be inserted into s 73 in order to entrench the jurisdiction of the state Supreme Courts to review the decisions of state administrators.