For better or worse, jurisdictional error is a concept that strikes at the heart of Australia’s constitutional system. Its meaning shapes the breadth of the courts’ jurisdiction to engage in judicial review. Though the High Court has recognised the difficulties inherent in distinguishing between jurisdictional and non-jurisdictional errors, the distinction has long been preserved. Whether...Read More

This article analyses High Court’s decision in Minister for Home Affairs v Benbrika [2021] HCA 4; 388 ALR 1; 95 ALJR 166, particularly the extent to which protective detention mechanisms are responsive to the federal judicial power. Specific focus is paid to the implications of the decision on the principle originally propounded by Brennan, Deane...Read More