(5) CONSEQUENCES - Jurisdictional Error

Question 1

jurisdictional error simply means

Answer 1

lack of ‘authority to decide’ (ie decision has been made outside jurisdiction)

Question 2

A finding of jurisdictional error involves a conclusion that

Answer 2

the DM has departed from limits upon the exercise of power and/or has failed to exercise the power, such as to render the decision a nullity as being unsupported by the relevant law

Question 3

Does ADJR include a concept of jurisdictional error?

Answer 3

No - !], if you’re proceeding under the ADJR Act and establish one of the grounds under ss 5 or 6, you can seek a remedy under s 16 without having to also argue that this was a jurisdictional error.

Question 4

When is it necessary to establish that the administrator’s error is a jurisdictional error?

Answer 4

(1) remedies require a “jurisdictional error” (as the link btw an identified legal error and the remedy)

or

(2) The statute includes a privative clause

AND MATERIALITY

Question 5

When can something constitute a jurisdictional error?

Answer 5

where there is materiality (Hossain)

Question 6

A breach is material to a decision only if

Answer 6

compliance could realistically have resulted in a different decision” SZMTA (2019)

Question 7

4 examples of jurisdictional error

Answer 7

(1) denial of PF
(2) Breach of consideration grounds
(3) unreasonableness
(4) No evidence
(5) asking wrong Qs
(6) bad faith/improper purpose/unauthorised delegation/acting under dictation

Question 8

How do we identify if a material error is a jurisdictional error per Hossain? Must have regard to

Answer 8

the construction of the statute to determine whether an error is of sufficient gravity or magnitude to take the DM outside the authority granted by Parliament (Hossain)

Question 9

How do we identify if a material error is a jurisdictional error per Project Blue Sky?

Answer 9

whether there can be discerned a legislative purpose that any material error of this nature will invalidate the decision (ie process of statutory construction)

Question 10

If there has been a breach of statutory requirements, what do you ask?

Answer 10

Does this error go to the jurisdiction of the DM?

Whether breach of statutory requirements is a jurisdictional error depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition (Project Blue Sky)

Question 11

Breach of Statutory Requirements under ADJR

Answer 11

Sections 5(1)(b) and 5(1)(f) of the ADJR Act provide a ground of review where a DM has failed to observe relevant statutory procedures, or has misconstrued the proper exercise of the power in question.

Question 12

When does breach of a statutory requirement amount to jurisdictional error?

Answer 12

would it advance statutory purpose to hold the entire DM process invalid? If yes, and breached = jurisdictional error (Project Blue Sky)

Question 13

Although a failure to comply with statutory procedures is unlawful, the critical issue is:

Answer 13

what consequence to attach to a failure to comply with the statutory procedures? (Project Blue Sky)

Question 14

What is a no-invalidity clause?

Answer 14

a drafting device Parliaments use to effectively answer the PBS question (consequences of non-compliance is non-jurisdictional error, ie, it doesn’t invalidate the decision)

Question 15

‘No invalidity clause’ does not preclude review of jurisdictional error otherwise

Answer 15

arising and non-compliance with the section itself does not impeach the decision for jurisdictional error (Palme)

Question 16

‘No invalidity clauses’ have effect, but not

Answer 16

absolute effect (Futuris)

Question 17

Palme and Project Blue Sky suggest that where a no-invalidity clause is narrowly confined to a particular statutory requirement or norm, courts will generally

Answer 17

give effect so such a provision.

Question 18

Futuris suggests that where a no-invalidity clause is framed too broadly, so as to evade the High Court’s entrenched minimum provision of review under s 75(v), it may be

Answer 18

invalidated on constitutional grounds.

Question 19

Facts in MZAPC (leading case on explanation of JE and explanation of materiality)

Answer 19

• case regarded a decision by the Refugee Review Tribunal determining that the applicant shouldn’t be granted a protection visa.
• Materiality was relevant due to the Refugee Review Tribunal not disclosing to the applicant that it held documents containing adverse info about him.
• Both parties accepted this involved a breach of PF, but there was an issue as to the materiality of the breach of PF for the Tribunal’s decision

Question 20

Outcome in MZAPC (leading case on explanation of JE and explanation of materiality)

Answer 20

final decision could’ve been different if it had considered offence of dishonesty in report covered by the undisclosed notification

• The determinative question is whether the Tribunal in fact so took the offence into account. The answer is that there is simply no basis in the evidence to find on the balance of probabilities that it did.

Question 21

Per MZAPC, the onus is

Answer 21

on the applicant to prove that the legal error is material.

Question 22

Per MZAPC, there are conditions routinely implied into conferrals of statutory DM authority by common law principles of interpretation which of their nature incorporate

Answer 22

an element of materiality, non-compliance with which will result in a decision exceeding the limits of DM authority w/o any additional threshold needing to be met (standard condition that a DM be free from actual/apprehended bias is an eg)

Question 23

In Aala, was denial of PF by officer of Cth where the duty to observe it has not been validly limited or extinguished by statute - did this amount to jurisdictional error?

Answer 23

Yes - decision made in excess of jurisdiction and thus attract the issue of prohibition under s 75(v) of the Constitution.

• When it made its decision, the Tribunla did not have some information that had previously been provided by Aala but he had been led to believe during the hearing that the Tribunla had “all of those files.” –> was a JE

Question 24

Facts in Project Blue Sky (1998) - breach of statutory requirements and JE

Answer 24

NZ TV industry challenge to Australian content standards for commercial TV broadcasting licensees.

• The enabling legislation included a direction that the Authority perform its functions ‘in a manner consistent with Australia’s obliagtions’ under international agreements

Question 25

Outcome in Project Blue Sky (1998) - breach of statutory requirements and JE –>Does the ABA’s breach of the statutory direction (to be consistent with international law obligations) invalidate the Australian Content Standards?

Answer 25

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect

Question 26

In Project Blue Sky (1998) - why didn’t the court just invalidate the conduct?

Answer 26

o Purpose of the act wouldn’t be served by invalidating
o Public inconvenience – these standards are written into the entire industry – if they were to invalidate it, 3rd parties who are not to blame will be greatly inconvenienced because they rely on these standards

Question 27

Forrest & Forrest Pty Ltd v Wilson (2017) HCA facts

Answer 27

• An application for a mining lease did not comply with statutory requirements that an application must include a mineralisation report at the time it is lodged
• Forrest, holder of pastoral leases on the land argued that the statutory requirements to include the mineralisation report with the application was strict and so there was no valid application before the Warden

Question 28

Forrest & Forrest Pty Ltd v Wilson (2017) HCA outcome

Answer 28

• Strict compliance with the statutory requirement for a mineralisation report was essential for a valid application - there as never a valid application (expect strict compliance if giving away resources of state for private profit)

Question 29

Facts in Palme

Answer 29

• Challenge to visa cancellation decision, where the Minister had failed to comply with a specific statutory duty to provide reasons – minister just circled

Question 30

Facts in Futuris (2008)

Answer 30

• Futuris starts two processes to challenge a tax assessment:
  o (i) merits review;
  o (ii) judicial review under Judiciary Act s 39B(1) –>- In the judicial review, the Commissioner relies on a broad no invalidity clause

Question 31

Outcome in Futuris (2008)

Answer 31

broad invalidity clause was allowed! on basis that there was an extensive appeals procedure

Question 32

Consequences of jurisdictional error?

Answer 32

invalidity –> means that the decision lacks some if not all of the legal status that a valid decision has

Question 33

An invalid decision may retain some vitality or status in law; it is not necessarily an ‘absolute nullity’ – depends on

Answer 33

the statutory context

Question 34

[is decision valid or unlawful] facts in Bhardwaj

Answer 34

• Immigration Review Tribunal misplaced a fax advising that the applicant could not attend the hearing due to illness - in absence of presence cancelled visa
• The minister sought judicial review of this second decision on the basis that the tribunal, having already exercised its statutory functions lacked the power to make its second decision (after tribunal had realised error and made a new hearing that reversed original decision)

Question 35

[is decision valid or unlawful] outcome in Bhardwaj The issue was whether a merits review tribunal could re-open a decision in fact made w/o intervening court order) upon realising it had made a jurisdictional error.

Answer 35

YES – the joint reasons in Bhardwaj use ‘logic and legal principle’ to tilt the statutory interpretation exercise towards a finding that the decision can be reopened.