The demise of state privative clauses: Kirk v Industrial Court of New South Wales

by James Stellios

12 Apr 2010

State Parliaments cannot prevent State Supreme Courts from issuing prerogative relief for jurisdictional error. State privative clauses should be read so as not to apply to decisions affected by jurisdictional error.

Ever since the High Court dismembered privative clauses at the Federal level in Plaintiff S157/2002 v Commonwealth of Australia (2001) 211 CLR 476, there has been speculation that it might do the same for State privative clauses in their application to State Supreme Courts. It did so in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1.


The appeals before the High Court arose from certain convictions in the Industrial Court of New South Wales for offences against the Occupational Health and Safety Act 1983 (NSW). The convicted appellants (a corporation and its director) had applied to the New South Wales Court of Appeal for relief in the nature of certiorari to quash the convictions on the basis that the Industrial Court had fallen into jurisdictional error.

There is, within the State legislative scheme, a privative clause providing that a decision of the Industrial Court is "final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal". The Court of Appeal held that there was no jurisdictional error affecting the Industrial Court's decision and, thus, questions concerning the operation of the privative clause did not arise.

Ultimately, the questions for the High Court were:

  • whether the Industrial Court's decision was affected by jurisdictional error; and, if so,
  • whether the privative clause operated to prevent the Court of Appeal from issuing relief by way of certiorari.

In the course of determining those questions, the Court covered a range of interesting points.

What are the grounds of review for certiorari?

The High Court made some very useful observations on the grounds that can be relied upon when seeking certiorari. If it was not clear before this decision, it is now clear that the "two principal grounds" for certiorari are "error of law on the face of the record" and "jurisdictional error". The High Court recognised that there is some uncertainty in relation to these concepts, particularly what constitutes "a record" and what is meant by "jurisdictional error". The uncertainty, it was said, can be explained by competing tensions underlying the development of the law in this area: on the one hand, inferior courts are to be kept in check, but, on the other hand, at least in some areas, inferior decisions are to have some degree of finality for policy reasons.

Was there jurisdictional error?

As for "jurisdictional error", the Court seemed to accept that the expression simply served to identify those errors which, for the purposes of controlling government action, warranted judicial intervention. In other words, there is no magical answer in the expression itself or in the distinction between jurisdictional errors and errors made in the exercise of jurisdiction. The concept, however, was important in Australia, and the Court maintained its rejection of the English position that any error of law will render a decision ultra vires. Furthermore, the High Court in Craig v South Australia (1995) 184 CLR 163 had applied the distinction between jurisdictional and non-jurisdictional errors differently as between an administrative tribunal and an inferior court. However, as the Court recognised, there is no clear distinction between tribunals and courts at the State level and, thus, the question is further complicated.

As to what errors constitute "jurisdictional error", the Court said that it was neither necessary nor possible to engage in an exercise of defining the category. It was only necessary to determine whether the errors in this case were jurisdictional errors. Their Honours referred, with apparent approval, to statements in Craig identifying the following errors by inferior courts as giving rise to jurisdictional error:

  • where the court mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or power; and
  • where the court purports to act outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision which lies outside its functions and powers.

Three examples of this second kind of jurisdictional error were given:

  • the absence of a jurisdictional fact;
  • disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction; and
  • misconstruction of the relevant statute thereby misconceiving the nature of the function being performed or the extent of powers.

Two jurisdictional errors were identified by the High Court on the facts. The first was that the Industrial Court had heard the charges and convicted the appellants despite a failure at any point during the proceedings to identify the particular act or omission alleged to have constituted a contravention of the Act. This, it was said by the Court, resulted from a misconstruction of the relevant offence provision and led to a misapprehension of the limits of the Industrial Court's functions and powers - an error of the kind identified in the third example above.

The second error fell into the same category: the Industrial Court had allowed, in contravention of the Evidence Act 1995 (NSW), the prosecution to call the appellant to give evidence. Again, in the Court's view, this was a misapprehension of the limits of that court's powers to try charges of a criminal offence. Subject to the privative clause, these were jurisdictional errors that attracted certiorari.

Was this also error of law on the face of the record?

The Court explained that there has been a great deal of uncertainty as to what constitutes "the face of the record" for the purposes of certiorari. Although it includes the initiating process (including the pleadings) and the certified order, whether the reasons given for a decision form part of the record has been "controversial".

Although it might be possible for reasons to be incorporated into the record by a tribunal, the Court noted that Craig had rejected the general inclusion of both the reasons and the complete transcript of proceedings in the record of an inferior court. For the Court in Craig, a broader approach to the record would transform certiorari into a discretionary general appeal for error of law. This was a step to be left for the legislature.

The Court in Kirk seemed to express some disquiet with this position, considering that a narrow approach to the scope of the record assumed that general review for error of law was not available and gave primacy to finality of decision-making over holding inferior tribunals to account. In legislative schemes where there is the option of review or appeal for error of law, there would be less justification for favouring finality over accountability.

Ultimately, the Court did not have to take these issues further. In the legislative context in this case, the Supreme Court Act 1970 (NSW) empowers the NSW Supreme Court to grant certiorari to quash error of law on the face of the record and the "face of the record" is legislatively expanded to include "the reasons expressed by the court or tribunal for its ultimate determination". The errors of the Industrial Court in its reasons were, thus, errors of law on the face of the record and, consequently, certiorari could be granted on that basis as well as for jurisdictional error.

The State privative clause

As indicated, the State legislation contains a provision that says that a "decision" of the Industrial Court is "final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal". The provision extends to proceedings for an order in the nature of prohibition, certiorari, mandamus, injunctions and declarations.

In Plaintiff S157, the High Court held that a similar provision in Commonwealth legislation could not be applied to prevent the High Court from determining whether a Commonwealth officer's decision was affected by jurisdictional error and issuing relief under section 75(v) of the Constitution. In Kirk, the Court extended that outcome to State privative clauses in their application to State Supreme Courts. State Parliaments cannot, the Court said, alter the constitution or character of their Supreme Courts so that they cease to meet the constitutional description of a "Supreme Court of a State". The power "to confine inferior courts and tribunals within the limits of their authority to decide" by granting prohibition, mandamus and certiorari on the grounds of jurisdictional error is a "defining characteristic of State Supreme Courts" which cannot be removed by State Parliaments. Construed against that constitutional background, the State privative clause could not exclude the jurisdiction of the NSW Supreme Court to grant certiorari for jurisdictional error. A "decision" affected by jurisdictional error is not one to which the privative clause applies.

Thus, in conclusion, the Court allowed the appeal and ordered that the Industrial Court's orders be quashed.

Continued distinction between certiorari for error of law on the face of the record and certiorari for jurisdictional error

In the course of its decision, the Court addressed the question of whether there was any utility in maintaining the distinction between certiorari for error of law on the face of the record and certiorari for jurisdictional error. It concluded that "constitutional considerations" explained why the distinction should be maintained. While State Parliaments could not prevent State Supreme Courts from granting relief because of jurisdictional error, Parliament could deny relief for non-jurisdictional error appearing on the face of the record.

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