Week 8 – Jurisdictional Error and Invalidity

Week 8 – Jurisdictional Error and Invalidity

JURISDICTIONAL ERROR and INVALIDITY Texts: Creyke & McMillan Ch 15 Aronson, Dyer & Groves Ch 3 Introduction to the Topic Judicially reviewable errors committed by administrative decision-makers (including Ministers and public servants) are traditionally categorised as "ultra vires". Judicially reviewable errors committed by lower courts and tribunals are usually referred to as "jurisdictional errors". Jurisdictional errors may be either jurisdictional errors of law or errors in finding a fact whose existence is a condition precedent to jurisdiction. These latter types of factual errors are usually referred to as the "jurisdictional fact" doctrine. In addition, non-jurisdictional errors of law may be judicially reviewable in exceptional circumstances, where the error appears on the face of the record of the court or tribunal. Such errors are usually referred to as "errors of law on the face of the record". After many efforts by various judges to expand the scope of error of law on the face of the record (mostly by expanding the definition of "the record"), the High Court has now drastically curtailed the scope for review of non-jurisdictional errors of law. We will also examine the "jurisdictional fact" doctrine and "errors of law on the face of the record". We will also look at the (often confusing and unclear) distinction between questions of law and questions of fact. Since the fact/law distinction delimits the boundaries of judicial review (as opposed to merits review), we necessarily have to be able to distinguish questions of fact from questions of law. We will now focus on jurisdictional error. Traditional Doctrine *Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47 R v Gray; Ex parte Marsh (1985) 157 CLR 351 Dickinson v Perrignon [1973] 1 NSWLR 72 *Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Non-jurisdictional Errors of Law The Anisminic Doctrine

The practical effect of the decision of the House of Lords in Anisminic was to abolish the distinction between jurisdictional error and error of law for administrative tribunals in England. *Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C.147 *Ridge v Baldwin [1963] 2 WLR 935 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 Pearlman v Keepers and Governors of Harrow School [1979] QB 56 Re Racal Communications Ltd [1981] AC 374 O'Reilly v Mackman [1982] 3 WLR 1096 R v Hull University Visitor; Ex parte Page [1993] AC 682 Boddington v British Transport Police [1998] 2 All ER 203

The Australian Approach to Anisminic R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (1984) 31 NTR 13 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 *Craig v South Australia (1995) 184 CLR 163 R v Gray; Ex parte Marsh (1985) 157 CLR 351 *Abebe v Commonwealth (1999) 162 ALR 1 *Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 *Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Error of Law under the ADJR Act

The debate and confusion surrounding jurisdictional and non-jurisdictional errors of law, errors of law on the face of the record etc., has no application at all to judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth). Section 5(1)(f) provides for review on the ground "that the decision involved an error of law,

whether or not the error appears on the record of the decision". Section 6(1)(f) provides an effectively identical review ground where administrative conduct (rather than the decision itself) is being challenged. Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, *Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Selected Readings Airo-Farulla G, Rationality and Judicial Review of Administrative Action - [2000] MULR 23 Bath, V 'The judicial libertine - jurisdictional and non-jurisdictional error of law in Australia', (1982-83) 13 Federal Law Review 13 807 Beaton-Wells C, 'Judicial Review of Migration Decisions: Life after S157', (2005) 33 Federal Law Review 141 Crock, M, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18 Syd LR 267 Crock, M, "Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu" - [2000] MULR 6 Gageler, S, "The Legitimate Scope of Judicial Review" - Australian Bar Review (3) November 2001 : 279-291 Leigh, L H 'Time limit clauses and jurisdictional error', [1980] Public Law 34 808 Markson, H E 'Jurisdictional error', (1980) 130 New Law Journal 1137 Mason Sir Anthony, The High Court as Gatekeeper - [2000] MULR 31