The impact of uncertain constitutional norms on government policy: tribunal design after Kirk

Abstract

The High Court's Ch III jurisprudence is technical, complex and uncertain. In this article, we consider the extent to which the nature of recent High Court Ch III jurisprudence has affected State responses in the area of tribunal design, and particularly the role of courts in supervising tribunals. Uncertainty around this issue has been caused by the intersection of the general principle set down in Mellifont v Attorney-General (Qld) and the High Court's landmark decision in Kirk v Industrial Court (NSW). In short, while Kirk says that "islands of power immune from supervision and restraint" are to be avoided, the general principle in Mellifont provides that exercises of non-judicial power by a State appellate court are not subject to appeal to the High Court. More recent High Court statements in Momcilovic and Kable (No 2) confirm that the possible effect of the general principle in Mellifont is to create the islands warned of in Kirk. Through a recent South Australian case study, we explore whether this uncertainty is circumscribing State experimentation with institutional design.