#7223 - Jurisdictional Error - Administrative Law

Jurisdictional error is uncertain since it is a ‘conclusion’

• If a proven ground of review can result in an act/omission being a nullity – it is a jurisdictional error

What counts as jurisdictional error isn’t certain but it at least includes:

Section 5(1) specifies the grounds on which a person may apply to the FC or FMC for review of a decision

• s5(2) clarifies s5(1)(e)’s reference to an improper exercise of power and s5(3) clarifies s5(1)(h) – no evidence

section 6(1) specifies the grounds on which a person can apply to the FC/FMC for review of conduct (s6(2),(3) have the same purpose as in s5

Section 7 concerns failure to make decisions. Under 7(1) if someone has a duty to make a decision, there is no law prescribing a period in which it is to be made and the failed to do so then a review by the FMC/FC can be initiated

S7(2) provides the same for when a period is prescribed and they fail to make the decision

‘Jurisdiction’ is commonly used to describe the function of a court. But a distinction is made between:

• A Jurisdictional Error – Family Court hearing a case arising under the ADJR Act, it exceeds jurisdiction

• An error within jurisdiction – Family Court misinterprets a provision of the Family Law Act; this time the error arises in the course of exercising a valid jurisdiction

  • These errors are not nullities – they can be set aside by appeal if a statutory right exists or by certiorari for an error of law if another court has jurisdiction to issue that writ

Craig – no right to appeal against DCJ adjourning criminal trial and can’t be challenged by judicial review since the error wasn’t a jurisdictional matter or an issue on the face of the record

Posner – Failure to serve court order for payment of family maintenance not jurisdictional matter; can’t be collaterally challenged in another court to enforce the maintenance order, can only be corrected in the jurisdiction it was made in

A jurisdictional error causes the proceeding/order to be invalid and can be corrected by statutory appeal if available or by prohibition (prevent the excess of jurisdiction), mandamus (compel a fresh exercise of jurisdiction), certiorari (quash the proceedings) or declaration that it is a nullity

Generally privative clauses don’t preclude judicial review of jurisdictional error but potentially can

Bhardwaj – ‘a decision involving jurisdictional error has no legal foundation and is properly to be regarded in law as no decision at all’; hence the relevant duty to be performed remains unperformed

• The problem with this is that decisions involving such errors can be ignored/undermined in collateral challenges but to counter this there is a strong presumption that jurisdiction extends to all questions arising before a court

• In Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA Dixon J noted the importance of the distinction between want of jurisdiction and the manner of its exercise

  • The legislature can make jurisdiction dependent on the existence of any fact or circumstance and if they do then the validity of the proceedings should still remain an outstanding question until another court decides that the requisite state of facts actually existed and then it that the proceedings were valid

Much of the law of jurisdictional error is developed under s75(v) in the HCA which confers jurisdiction on the HCA to grant prohibition, injunction and mandamus – this is a backup provision where no other ground of review is available

• This has been widely exercised in relation to migration decisions where no right exists to do so in the FCA

• And also in industrial litigation to challenge decisions by industrial courts/commissions where no other avenue exists – but there is an ever-existing tension between the HCA facilitating alternate relief and it hearing cases in its original rather than appellate jurisdiction R v Gray:

  • The Conciliation and Arbitration Act conferred jurisdiction to the FC to determine whether there wasn’t a ’irregularity’ in union elections that could affect the decision but there was no right to appeal to the full bench so proceedings were initiated for prohibition in the HCA who were split evenly:

    • Gibbs CJ – The restricted nature of the jurisdiction conferred suggests that it wasn’t intended that the Australian Industrial Court or Federal Court should have power to determine conclusively the question on which jurisdiction depends.

      • The present case illustrates the inconvenience that arises if the court was free to decide the limits of its jurisdiction and erroneously embark on inquiry beyond the limits of the Act. Pt IX defines and limits the power of the FC and the construction and effect of it is appropriate to be considered for prohibition

    • Mason J – The grant of jurisdiction to superior court carries the power to determine conclusively, subject to appeal, the facts on which jurisdiction depends. In Parisienne Dixon J said that clear intention is required to produce a result that jurisdiction depends on a fact/circumstance. Here the exclusion of a right of appeal clearly demonstrates an intention that the primary judge’s determination as to be conclusive

Generally the HCA has taken a narrow view as to what constitutes jurisdictional error by a court, e.g.:

• Ruling by a court whether documents have been served (Posner)

• Whether proceedings commenced in statutory time limit (Parisienne)

• Whether party has standing (R v FCA)

• The decisions in Craig, NABE and Yusuf illustrate that a broader view is generally taken as to what constitutes jurisdictional error by an administrative tribunal (e.g. failure of medical appeal panel to deal with party’s request to make oral submissions – Ah-Dar v STA of NSW)

Jurisdictional error is also a separate ground of review in the ADJR Act and in such instances it is overshadowed by these grounds; but where these grounds have been excluded (Migration Act) a broader construction has been given to jurisdictional error in that context

Jurisdictional error can be applied to decisions made under statute

• Abebe v Cth [1999] – Jurisdiction is the ‘authority to decide’ and hence judicial review of...