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Jurisdictional Error Notes

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This is an extract of our Jurisdictional Error document, which we sell as part of our Administrative Law Notes collection written by the top tier of University Of New South Wales students.

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Jurisdictional Error, Ultra Vires and Privative Clauses


Jurisdictional error is uncertain since it is a 'conclusion' o


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:

* Mistaken assertion/denial of the existence of jurisdiction

* Disregarding relevant/regarding irrelevant considerations

* Misapprehension/disregard for the nature/limits of the

* Mistakes as to the existence of a fact which must objectively exist before the jurisdiction is exercised

decision-makers functions/powers

* Acting outside the area of the jurisdiction by entertaining issues/making decisions forbidden under any circumstances

* Errors of law - but this may have to be such that it amounts to a misconception of the nature of the power conferred

* Acting in bad faith

* Breaching the hearing or bias rules of natural justice

Kirk v Industrial Relations Commission [2010] HCA 1 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ:


The principles of 'jurisdictional error' and 'jurisdictional fact' are used in connection with the control of tribunals of limited jurisdiction on the basis that they "should not be the final judge of its exercise of powers...[but] subject to the control of the courts of more general jurisdiction - if not they would "strain ...those limits" and develop distorted positions


These distorted positions must be avoided - in Jaffe's opinion denominating issues as "jurisdictional" is merely functional and is used to validate review when necessary o

If jurisdictional error is not a metaphysical absolute but an expression of the gravity of the error then this is a concept for which a word should exist and the use of that word should be justified


After summarizing the test in Craig their honours justified the difference between English and Australian law - the constitutional context making it impermissible to follow the English principle in light of constitutional considerations


They then considered the distinction between inferior courts and tribunals (where errors of law invalidate decisions in one but not the other) the basis of this being in the lack of the authority of the tribunal (or absence of intent in the statute establishing it) to authoritatively determine questions of law whereas a court can determine both questions of law and fact o

But cautioned that his assumes a distinction can be readily made between courts/administrative tribunals - in States this may not be so easy since the same separation of powers required by Ch III isn't present



Furthermore the unexpressed premises as to what is meant by "authoritative" is looming (they said tribunals cannot "authoritatively" determine questions of law)When someone seeks certiorari there is often an issue about whether the decision is open to review. If "authoritative" is used to describe finality then decisions can only be "authoritative if certiorari won't lie to correct an error in that decision"Authoritative" hence doesn't mean the inability of review by a superior court; the question of whether or not it is open to review is undecided. "Authoritative" decisions of inferior courts are just those not attended by jurisdictional error and hence in determining what 'jurisdiction' or 'jurisdictional' means, the observation that inferior courts have authority to decide questions of law "authoritatively" is unhelpful

They then refer to the 8 categories that Aronson identifies, pointing out that it is impossible to mark the bounds of jurisdictional error

The ADJR Act


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

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

Jurisdictional Error and Invalidity


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

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 o

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 o

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.

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