The Nature and Function of the Constitutional Injunction

Abstract

The inclusion of the injunction in s 75(v) of the Constitution has been the source of confusion since Federation. What is its purpose, historical basis, and continuing function? What has been its process of development? This article explores these questions by reference to United States authority. It argues that the constitutional injunction is sui generis, and was so conceived in the United States before Australian Federation. To characterise the injunction in s 75(v) as "ordinary", as was done in Smethurst, overlooks the remarkable practice in America at the time of Federation of recasting the equitable remedy into a device simply to interrogate the legality of official conduct, as well as the imperative, long recognised in America, to make old remedial limitations in Chancery yield to constitutional exigencies.