Retreating to the History of Judicial Review?

Abstract

<jats:p> Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the Constitution confers on the High Court. The New South Wales Court of Appeal reads this narrowly, holding that only three specific remedies are protected, together with the rules and limitations that existed at federation. If correct, we might see the emergence of two bodies of doctrine, the old law of remedies and the new law of ‘judicial review’ (a concept that emerged only after federation). In an unrelated case, six High Court judges implied a limited privative clause ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his view, that branch of certiorari conflicts with judicial review fundamentals, is historically misconceived, and should apply only where the reviewing court can try the matter afresh. This article reviews these developments, discusses their rationales and questions both the history and its importance. </jats:p>