The Constitutional Injunction and Jurisdictional Error

Abstract

This Article argues that the injunction in s 75(v) of the Constitution available to restrain government action that is unlawful but does not amount to jurisdictional error through the application of the approaches to the interpretation of the constitutional injunction in the recent High Court decision, Smethurst v Commissioner of Police. Using cases from the United Kingdom and the United States prior to Federation, I will demonstrate that the injunction has historically been issued in the courts’ equitable jurisdiction to prevent any and all breaches of the law by public officials. Further, the wide scope of the injunction also gives effect to Constitutional principles such as the rule of law and the long common law tradition of using private law principles to hold officials to account. Finally, I will discuss several consequences that derive from this conclusion, such as the relevance of discretionary factors, materiality, and any potential effects on the centrality of jurisdictional error to administrative law.

Keywords: injunction, jurisdictional error, Australian constitutional law, equity