Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales

This article critiques one aspect of the High Court’s reasoning in its landmark 2010 decision of Kirk v Industrial Court of New South Wales, namely its reliance on ‘accepted doctrine at the time of federation’ to determine the ‘defining characteristics’ of the state Supreme Courts. I argue that the relevant passages in Kirk are ambiguous and capable of two alternative readings, which I term the ‘pre-Federation entrenchment theory’ and the ‘on-Federation entrenchment theory’. With extensive reference to primary and secondary materials from the Federation era, I argue that both theories are flawed and, indeed, contrary to accepted doctrine at the time of Federation. Consequently, if the holding in Kirk is to be defended, other justifications for the entrenchment of judicial review in the state jurisdictions, which were only touched upon in Kirk, need to be developed and articulated with greater thoroughness and rigour.