High Court asserts State Supreme Court power

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High Court asserts State Supreme Court power

A seven-member High Court bench has ruled that State Supreme Courts cannot be denied (by legislation) their power to rule on jurisdictional matters in lower state courts and tribunals.

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A seven-member High Court bench has ruled that State Supreme Courts cannot be denied (by legislation) their power to rule on jurisdictional matters in lower state courts and tribunals.

[Full text of this case: Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25 (11 July 2012)]

Background
 
This case was an appeal by the SA Public Service Association (PSA) over long service leave entitlements — with the High Court ruling the SA Supreme Court was wrong to refuse to hear an appeal by the PSA against a decision of the SA IRC that it could not deal with a dispute associated with the 2010–11 State Budget legislation. The union had challenged moves to reduce long service leave entitlements and remove annual leave loading.

The case was remitted to the Full Supreme Court to decide whether the Commission was wrong in deciding there was no industrial dispute under the SA Fair Work Act.

High Court says supervisory power exists
 
A six-member joint judgment (with Chief Justice French agreeing) relied on a 2010 case authority in reaching its conclusion:
‘The applicant’s submissions on Kirk’s case.
 
The applicant’s submissions rested on two incontrovertibly correct propositions.

One was that wrongly to deny the existence of jurisdiction is to make a jurisdictional error.

The other was that mandamus is a remedy granted to deal with denial of jurisdiction.

The applicant submitted that it was beyond the power of the South Australian legislature to prevent the Supreme Court of South Australia from engaging in review of jurisdictional error.

Kirk’s case dealt with a privative clause which purported to exclude all relief by way of the prerogative writs. It purported not only to exclude orders of certiorari (quashing decisions based on jurisdictional error) and prohibition (preventing decisions based on jurisdictional error from being made), but also orders of mandamus (requiring the performance of a duty to exercise jurisdiction which the decision-maker had actually or constructively failed to exercise).

The decision in Kirk' case did not distinguish between categories of jurisdictional error. It did not suggest that jurisdictional error arising when a decision-maker purports to exercise jurisdiction that that decision-maker lacks should be treated differently from jurisdictional error arising when a decision-maker wrongly fails or refuses to exercise jurisdiction which that decision-maker possesses.

Further, the reasoning in Kirk’s case was not limited to privative clauses preventing judicial review of courts for jurisdictional error; it extended to privative clauses preventing judicial review of tribunals for jurisdictional error.

For the reasons just given, it is beyond the power of the South Australian legislature to prevent the Supreme Court of South Australia from reviewing a failure by the Commission to exercise jurisdiction.’
Second question
 
The second question was then addressed by the High Court:
‘Does s 206 purportedly prevent review of decisions which allegedly rest on a wrongful refusal to exercise jurisdiction? If it does not, it is valid. If it does, it is invalid.’
The legislation reads:
‘FAIR WORK ACT 1994 — SECT 206 provides:
 
206 — Finality of decisions

(1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act.

(2) However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction.’
The High Court found sec 206 to be invalid:
‘… a failure to exercise jurisdiction cannot be described as ‘an excess or want of jurisdiction’, however widely the latter words are construed. Hence s 206 is invalid, at least to the extent that it excludes the Supreme Court’s jurisdiction in circumstances of the present kind. South Australia made no submission that s 206 should be read down pursuant to s 22A(2) of the Acts Interpretation Act 1915 (SA). The dicta in Public Service Association (SA) v Federated Clerks’ Union of Australia assumed that the precursor to s 206 was valid, but the reasoning stated in Kirk's case was not advanced to the Court on that occasion. It is therefore right to depart from that assumption in the light of Kirk’s case …’
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