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High Court judgments

Every Issue

Cite as: September 2012 86 (09) LIJ, p.60

Constitutional law

Judicial power – state courts – power of state legislature to curtail judicial review by state Supreme Courts
Administrative law – error – whether review for excess or want of jurisdiction excludes review for erroneous decision not to exercise jurisdiction

In Public Service Association (SA) v Industrial Relations Commission SA [2012] HCA 25 (11 July 2012) s206 of the Fair Work Act 1994 (SA) provided a determination of the Industrial Relations Commission of SA was final and could only be challenged in the Supreme Court on the ground of “excess or want of jurisdiction”. The Supreme Court of SA concluded this prevented review of a decision of the Commission that no industrial dispute existed and consequently it would take no action. The Court concluded it had no power to consider a refusal to exercise jurisdiction. The application by the unsuccessful union for special leave was referred to the Full Court of the High Court. All members of the High Court concluded that the provision did give the Supreme Court jurisdiction to decisions of the Commission that involved jurisdictional error: per French CJ that the Supreme Court had jurisdiction to review decisions on jurisdictional facts; per Gummow, Hayne, Crennan, Kiefel and Bell JJ jointly on the ground that the provision gave the Supreme Court jurisdiction over jurisdictional errors but not others; and by Heydon J on the ground s206 was invalid to the extent that it prevented review for jurisdictional error of a failure to exercise jurisdiction. Decision in Public Service Association v PSA [1991] HCA 33 not followed. Consideration of the limitation on the jurisdiction of state legislatures to limit the jurisdiction of the state Supreme Courts recognised in Kirk v Industrial Court (NSW) [2010] HCA 1. Application for special leave granted; appeal allowed; decision of Supreme Court of South Australia set aside; matter remitted to that court.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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