The Constitution's Guarantee of Legal Accountability for Jurisdictions

Federal Law Review, forthcoming 2021

22 Pages Posted: 18 May 2021

See all articles by Emily Hammond

Emily Hammond

The University of Sydney Law School

Date Written: February 25, 2021

Abstract

This article argues that the Constitution's entrenched provision for judicial review may be understood as a guarantee of legal accountability for a class of governmental powers, namely powers whose exercise has a legal effect on rights and obligations ('jurisdictions'). The 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.

Keywords: Judicial Review, Australian Constitution, entrenched review, jurisdictional error

JEL Classification: K10, K40

Suggested Citation

Hammond, Emily, The Constitution's Guarantee of Legal Accountability for Jurisdictions (February 25, 2021). Federal Law Review, forthcoming 2021, Available at SSRN: https://ssrn.com/abstract=3847532 or http://dx.doi.org/10.2139/ssrn.3847532

Emily Hammond (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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