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Martin Hardie

on 29 April 2015

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Jurisdictional facts
Jurisdictional tasks
Plaintiff M70/2011 v Minister for Immigration ... (2011) 280 ALR 18
The Minister's Decision

French CJ

11. On 25 July 2011 a declaration with respect to Malaysia was made by the Minister purportedly acting under s 198A(3) of the Migration Act. That subsection, which is at the centre of these proceedings, provides:

"The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a)."

Of particular significance is s 198A(4) which provides that:

"An offshore entry person who is being dealt with under this section is taken not to be in immigration detention".
French CJ:

The declaration criteria – jurisdictional facts or jurisdictional tasks?

[Arguments of the Parties]

56.The Solicitor-General for the Commonwealth - the Minister is required to form, in good faith, an evaluative judgment that what he declares is true.

[evaluative judgment]

He would not have exercised the power if he had misunderstood the matters set out in sub-pars (i)-(iv) and thereby asked the wrong question in forming his judgment.

The plaintiffs' contended that the matters which are the subject of the declaration under s 198A(3) are jurisdictional facts. If any of the facts did not exist when the Minister made his declaration, the declaration would have been beyond power. ….

[objective facts]
57.The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion ...

[the] satisfaction of [the factual criterion] is necessary to enliven the power of a decision-maker to exercise a discretion.

The criterion may be "a complex of elements" If the criterion involves an assessment and value judgments

it is difficult to characterise the criterion as a jurisdictional fact
the existence or non-existence of which may be reviewed by a court.

The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself.

[CJ distinguishing between a [statutory task] criteria and jurisdictional facts]
[BUT] Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact.

If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

[BUT] The primary submission on the part of the plaintiffs, however, looked to the existence of the matters set out in s 198A(3)(a) as conditioning the Minister's power to make a declaration.

[French pointing to Plaintiffs submission which was that the existence of the factors (as facts and not opinion) was the question and not the Minister’s opinion.

French appears to be trying to dodge the ‘merits’ of the jurisdictional fact assessment … hence ….]
58.The question is one of statutory construction .

…[The consideration of the Minister] will necessarily be an evaluative task. The words "provide", "access", "effective procedures" and "meets relevant human rights standards" all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts.

[deference to Executive and Parliament]
[an evaluative judgment properly construed]

59.On the other hand, the mere fact that it is the Minister who makes the declaration is not enough to secure its validity. The Solicitor-General was correct when he submitted that the Minister is required to form, in good faith, an evaluative judgment based upon the matters set out in s 198A(3)(a), properly construed. That the Minister properly construe them is a necessary condition of the validity of his declaration. Properly construed, they define the content of the declaration which the Parliament has authorised.
59 ... If the Minister were to proceed to make a declaration on the basis of a misconstrued criterion, he would be making a declaration not authorised by the Parliament.

The misconstruction of the criterion would be a jurisdictional error. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf:

"identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."

A declaration under s 198A(3) affected by jurisdictional error is invalid.
… 59 [but then:]Another way of approaching the scope of the ministerial power under s 198A(3) is to treat it as being, by necessary implication, conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true.

The requisite opinion or belief is a jurisdictional fact. If based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened.

The construction of s 198A(3)(a)106.Section 198A(3) provides that the Minister "may:

(a) declare ... that a specified country" has the four characteristics identified in sub-pars (i) to (iv) of that paragraph.

Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister's forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration.

Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics.

On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics.
109.It may readily be accepted that requirements to exercise the power in good faith and within the scope and for the purposes of the Act constrain the exercise of the Minister's power.

But the submissions on behalf of the Minister and the Commonwealth that sub-pars (i) to (iv) of s 198A(3)(a) are not jurisdictional facts should not be accepted.

To read s 198A(3)(a) in that way would read it as validly engaged whenever the Minister bona fide thought or believed that the relevant criteria were met.

So to read the provision would pay insufficient regard to its text, context and evident purpose.

Text, context and purpose point to the need to identify the relevant criteria with particularity.

It may be noted that s 198A(3)(b) says only that the Minister may "in writing, revoke a declaration made under paragraph (a)". But it is unsurprising that the power given by s 198A(3)(b) to revoke a declaration is not bounded by particular criteria. That is not surprising given the evident purpose of s 198A and the great breadth of circumstances, legal and factual, that might reasonably be thought to warrant revocation of a declaration.
110.There remains for consideration, however, the identification of the content of the criteria stated in sub-pars (i) to (iv) of s 198A(3)(a). That is another question that requires attention to the proper construction of s 198A.

111.Each of the criteria stated in sub-pars (i) to (iv) of s 198A(3)(a) is a "complex of elements"[110].

Of most immediate concern in these matters is whether all of those elements are wholly factual, as the Commonwealth parties submitted, or, as the plaintiffs submitted, they include any element of legal obligation.

112.It may be accepted, for the purposes of argument, that each of the relevant criteria contains a factual element that requires a judgment to be made about what happens in the relevant country.

That may be most clearly seen in connection with the fourth criterion: that the country in question "meets relevant human rights standards in providing that protection" (emphasis added).

That criterion could be understood as directing attention to matters that include what has happened, is happening or may be expected to happen in that country.
115.Rather, the issue determinative of the present litigation arises from construing s 198A(3)(a) and in particular sub-pars (i) to (iii).

What is meant in those sub-paragraphs by the phrases "provides access" and "provides protection"? Do those phrases refer only to a particular state of facts, or to observations of or conclusions about facts or behaviour (as the Minister and the Commonwealth submitted), or must the access and protection be legally assured in some way?

116.Contrary to the submissions of the Minister and the Commonwealth, the matters stated in s 198A(3)(a)(i) to (iii) are not established by examination only of what has happened, is happening or may be expected to happen in the relevant country. The access and protections to which those sub-paragraphs refer must be provided as a matter of legal obligation.

117.When s 198A(3)(a) speaks of a country that provides access and protections it uses language that directs attention to the kinds of obligation that Australia and other signatories have undertaken under the Refugees Convention and the Refugees Protocol.
118.The references in s 198A(3)(a)(i) to (iii) to a country that provides access to certain procedures and provides protections of certain kinds must be understood as referring to access and protections of the kinds that Australia undertook to provide by signing the Refugees Convention and the Refugees Protocol.

In that sense the criteria stated in s 198A(3)(a)(i) to (iii) are to be understood as a reflex of Australia's obligations.
135.As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so.

Where, as in the present case, it is agreed that Malaysia:

first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees;

second, is not party to the Refugees Convention or the Refugees Protocol; and,

third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments;

it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii).

The Minister's conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration.

The jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.

136.The Minister's declaration was made beyond power. It follows that s 198A(1) cannot be engaged to take either plaintiff from Australia to Malaysia. And as earlier demonstrated, s 198 does not supply any power to remove either plaintiff from Australia to Malaysia.
A Privative Clause?
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
48 Section 474 was inserted into the Act by Sched 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the Amending Act") which came into operation on 2 October 2001.

That section relevantly provides:

"(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). ........
Plaintiff S157/2002 v Commonwealth
(2003) 211 CLR 476
50 Section 486A of the Act was amended by the Migration Legislation Amendment Act (No 1) 2001 (Cth) which came into operation on 27 September 2001 and by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into operation on 2 October 2001. It now reads as follows:

"(1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.

(2) The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 35 day period.

(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this
The Construction of Privative Clauses
71 There are two basic rules of construction which apply to the interpretation of privative clauses.

The first, which applies in the case of privative clauses in legislation enacted by the Parliament of the Commonwealth, is that:

"if there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open.

[The Rule of Constitutional Construction]
72 The second basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies.

Accordingly, privative clauses are strictly construed.

[presumption against cutting down jurisdiction of the courts]
Constitutional Considerations in construing a provision such as s 474 of the Act.

Para 73: Privative Clause cannot oust:

- s 75(v) manadamus, prohibition and injunction against a Cwth officer;

- 75 (iii) in matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party";

- cannot confer on non judicial body the judicial power of the Commonwealth;

- cannot confer on a non-judicial body the power to determine conclusively the limits of its own jurisdiction.
74 … s 474(1)(c) cannot be read in isolation from the definition of "privative clause decision" in s 474(2).

That definition relevantly confines "privative clause decision[s]" to decisions "made, proposed to be made, or required to be made ... under this Act". 75

When regard is had to the phrase "under this Act" in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, ….to decisions of the kind that might be made under the Act.

Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid.

Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.
76 Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle.

This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all".

Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.
60. It follows from Hickman, and it is made clear by subsequent cases, that the so-called "Hickman principle" is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions.

Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses.

Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.

Privative clauses and the process of reconciling legislative provisions
61 It was said in R v Coldham; Ex parte Australian Workers' Union that, where there is an inconsistency between a privative clause and other statutory provisions:

"The inconsistency is resolved by reading the two provisions together and giving effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies."[59]

As a general statement, so much may be accepted. However, it provides little guidance as to the manner in which a privative clause is taken into account or the light it sheds on the restriction or restraint in question.

62. On behalf of the Commonwealth, it was contended that s 474 should first be construed as meaning and intended to mean that decisions are protected so long as there has been a bona fide attempt to exercise the power in question, that they relate to the subject-matter of the legislation and are reasonably capable of reference to the power. Then it is said that, being a later provision than those by which particular powers are conferred, s 474 should be construed as impliedly repealing all limitations on those powers leaving only constitutional limitations and those which derive from s 474. In terms, the argument was that s 474 "enlarges the powers of decision-makers so that their decisions are valid so long as they comply with the three Hickman provisos".

63. It might be thought that the first step of the argument for the Commonwealth finds some support in what was said by Dixon J in R v Murray; Ex parte Proctor[60]. In that case, his Honour said as to the reconciliation of apparently inconsistent legislative provisions:

"The first step in such a process of interpretation is to apply to a [privative clause] provision ... the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province"[61].

64 A proper reading of what Dixon J said in Murray is not that a privative clause is construed as meaning that decisions are protected so long as they conform to "the three Hickman provisos".

Rather, the position is that the "protection" which the privative clause "purports to afford" will be inapplicable unless those provisos are satisfied.

And to ascertain what protection a privative clause purports to afford, it is necessary to have regard to the terms of the particular clause in question.
91 .... But the three Hickman provisos qualify the "protection it [the privative clause] purports to afford", not the powers of those who make privative clause decisions. ....

General principles

98 It is important to emphasise that the difference in understanding what has been decided about privative clauses is real and substantive; it is not some verbal or logical quibble. It is real and substantive because it reflects two fundamental constitutional propositions, both of which the Commonwealth accepts.

First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed.

Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction.

99 To understand the three Hickman provisos as qualifying the powers of those who make privative clause decisions, rather than qualifying the protection which the privative clause affords, either assumes that the Act on its true construction provides no other jurisdictional limitation on the relevant decision making or other power or it assumes that the repository of the power can decide the limits of its own jurisdiction. For the reasons given earlier, the first assumption is wrong. The alternative assumption would contravene Ch III.
Kirk v Industrial Relations Commission
(2010) 239 CLR 531

Kirk concerns an inferior State Court or TribunalRaises questions concerning the application of separation of powers doctrines to the states ….

Based broadly upon the Kable doctrine.

High Court identify two errors in Industrial Courts reasoning:
-errors of construction of s 15 of Act;

-a failure to comply with the rules of evidence.
Entitlement to relief

54.The errors of construction of s 15 of the OH&S Act and the failure to comply with the rules of evidence (by permitting a person accused of crime to give evidence on behalf of the prosecution) warranted, and in this case required, the grant of relief in the nature of certiorari to quash the conviction and sentence of each appellant. This conclusion directs attention to several points, of which some will require separate examination. It is desirable, however, to begin by setting them out in summary form.

55.The points are:

(a) Both errors of law appear in the reasons of Walton J.

(b) Both errors therefore appear "on the face of the record" as that expression must be understood in the light of s 69(3) and (4) of the Supreme Court Act 1970 (NSW).

(c) Both errors are jurisdictional errors.

(d) Chapter III of the Constitution[65] requires that there be a body fitting the description "the Supreme Court of a State".

(e) It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.

(f) A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, as explained further in these reasons, also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error.

(g) If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court's authority.

(h) A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.

(i) Construed against this constitutional background, s 179 of the IR Act[68] does not (and could not validly) exclude the jurisdiction of the Supreme Court of New South Wales to grant relief in the nature of prohibition, certiorari or mandamus directed to the Industrial Court for the purposes of enforcing the limits on that Court's statutory authority. In particular, the privative provisions of s 179 do not, on their proper construction, exclude certiorari for jurisdictional error.

(j) In determining whether the errors of law that were made by Walton J permitted the grant of relief in the nature of certiorari, statutory identification of the Industrial Court as a "superior court of record" is irrelevant.
Kirk and Jurisdictional Error

In part what the court are doing in Kirk is rejecting Craig as any rigid taxonomy of JE & inferior courts.

They spend a lot of time discussing the two premises of Craig and pointing out the considerations don’t apply in Kirk.

But by way of reference to Craig the Court discusses the continued relevance of the distinction between errors of law on the face of the record and jurisdictional error.

The UK Anisminic solution
Craig v SA

In part the relevance of the distinction resides in the fact that

-judicial review by way of certiorari for errors of law on the face of the record may be restricted by Parliaments; but
-that certiorari or other Constitutional writs for jurisdictional error may not be.

Hence the distinction between the two types of error has Constitutional ramifications.
Jurisdictional Error.

Policy, Functionality, Gravity and Validity – pure logic or a policy and function?

In terms of the content of jurisdictional error the Court enunciates a functional approach.

This functional approach is aimed at ensuring that jurisdictional error is tied to the constitutional principle that an administrative body or an inferior court or tribunal cannot conclusively determine the limits of its own power.

The question of conclusively determining the limits of power raises questions as to who ultimately decides questions of law – administrative bodies or the Chapter III Courts.

So at its heart the functional approach is justified and rationalised by the courts role in finally deciding questions of law– and that is whether administrative decision makers have acted beyond their powers.
In enunciating the functional approach to jurisdictional error the Court states that it was not stating, nor did Craig state, a rigid taxonomy or definitive statement as to what constituted jurisdictional error:

"71 It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. …."

What matters is a connection between gravity and invalidity.
Functionality uses the principles of statutory construction which identify the connection between gravity and invalidity:

-a construction of the Text, Context and Purpose of the Act and any finding of invalidity based upon that construction;

-the exercise of power will be invalid if there is non compliance with something that conditions the exercise of the power; and

-Parliament intended that the non compliance with that condition would invalidate the exercise of the power.

(note Blue Sky - did parliament intend non compliance would result in invalidity?)
The rules of statutory construction and some of the principles of fairness, natural justice, rationality etc are things that we might say generally subject to clear words condition the exercise of an administrative power – the full breadth of the concept that a decision maker must act judicially.

Gravity in this sense reflects the manner in which noncompliance with a condition on the power has affected the fairness of the process.

If an unfairness for example meets the test in Stead, Aala, Lu, that it gave rise to a risk of unfairness then there would be sufficient gravity at stake for the exercise of the power to be invalid.

Note Finn suggests (2010) 21 PLR 93 - functionality focuses upon errors that:

"are sufficiently serious to warrant intervention". ...

"The focus, in both cases [inferior court or administrative decision maker], may well shift to the seriousness of the purported error".
A Point Form Rationale?

I am starting to try and rationalise the distinction between error within jurisdiction or on the face of the record with that of jurisdictional error in the following way:

- The difficulty is that how do we know if something is a jurisdictional error or is an error within jurisdiction.

- Traditionally we have talked about jurisdictional error and error within jurisdiction.

- Both jurisdictional errors and errors of law within jurisdiction that appear on the face of the record that decision are amenable to certiorari.

- NB what is the record depends upon the statute.

- If it is an error of law within jurisdiction it may be otherwise appealable (e.g. statutory appeal for error of law or merits review).

- In the past the mandatory/directory dichotomy provided some guidance as to whether compliance resulted in invalidity or not.

- But Blue Sky, Jadwan and Palme all say that what is important is whether the Act intended that some noncompliance with a procedural step in the exercise of power would invalidate that exercise.

-Noncompliance with a procedural step in the exercise of power, that would invalidate that exercise of that power, is a decision infected with a jurisdictional error.

-The noncompliance is of such gravity that it invalidates the relevant exercise of power (the whole of the particular process).
Not Invalid but unlawfully made within jurisdiction?

- An error which is not invalidated may still be unlawful and hence susceptible to restraint in a particular case (Blue Sky) e.g. injunction, declaration (collateral attack?)

- Such an error may be an error within jurisdiction and/or an error of law on the face of the record.

- Parliament may restrict right of judicial review for error of law on the face of the record, but not for jurisdictional error.

- Thus Parliament may not remove from a Court invested with Chapter III powers the right to review and grant certiorari for jurisdictional error.
Paras 56-59:

Court considers history of certiorari and its relationship to jurisdictional error and error of law on the face of the record.

Notes that after 1840s legislation meant that

"[t]he face of the record 'spoke' no longer: it
was the inscrutable face of a sphinx".

Hence growth of jurisdictional error ....
Jurisdictional Error – this case

Para 71 not the “metes and bounds” of jurisdictional error

Para 72 Describes three examples of jurisdictional error:
Para 72 Describes three examples of jurisdictional error:

These examples based upon the Court’s decision in Craig

1.JE =

a.Mistakenly asserts or denies the existence of jurisdiction; or

b.Misapprehends or disregards the nature or limits of its functions or power in a case where it correctly recognizes that jurisdiction does exist.
2.JE =

Most obvious where the Inferior Court purports to act wholly or partly outside the general area of its jurisdiction:

ii.In the sense of entertaining a matter or making a decision or order outside of the limits of its (theoretical*) functions and powers

iii.Functions and powers are identified by the relevant statute.
JE 3.

Entertaining a matter outside the limits of the inferior court’s functions and powers.

For example:

a.Absence of jurisdictional fact;

b.Disregard of a relevant matter required by the statute, or regard of a matter required to be ignored;

c.Misconstruction of the relevant statute thereby:

i. Misconceiving the nature of the function being performed; or

ii.Misconceiving the extent of its powers
Para 73 This is not a rigid taxonomy.

Are only three examples.

They do not mark out the boundaries of the relevant field.

Recall the functionality and the policy purpose of a finding of jurisdictional error/invalidity: above and [Kirk paras 60-65].
Para 74 -76 Considers Errors by Industrial Court in Kirk’s trial

1.Misapprehending the limits of its functions and powers – the court had no power to convict because no particular act or omission had been identified (in the charge) as constituting the defense (Error 3 (c)(i) above);

2.Misapprehended the limits on its powers by trying a criminal charge not accordance with

3.the rules of evidence (Error 3 (c)(ii) above).

Para 77 Certiorari available for jurisdictional error, subject to the privative clause.
Error of Law on the Face of the Record

In relation to certiorari there are constitutional reasons for maintaining distinction between error of law on the face of the record and jurisdictional error.

The relationship between the two types of error was not of form but that of having a motive to maintain a boundary.

A Constitutional boundary – ( ie the policy that informs JE)
The Premises of Craig

Why was certiorari confined in cases of inferior courts …

A functional approach means that if the seriousness or gravity of the error is the issue the Craig taxonomy with respect to inferior courts is not set in stone.

The First Craig Premise Para 87

-Certiorari is confined so as not to provide a general discretionary appeal on error of law;-The confinement of certiorari is related to he availability of other appeal or review mechanisms;

But Kirk says:

-If appeal available no need to confine certiorari as it would not alter the landscape:

Para 87: “ To the extent to which appeal or review for error of law is available, the first of the premises for the conclusion in Craig is denied.”

-The statutory context also mean that the Craig definition of the record did not apply:

The errors in Kirk where errors of law on the face of the record.
The Second Craig Premise Para 93

Relationship between Privative Clauses and Craig’s premise regarding a legislative purpose favouring finality:

“The finality of a decision is a virtue”

The use of the privative clause to favour finality raises Constitutional considerations.
Two Constitutional Considerations

Paras 95 :

1. S.75(v) grant of relief cannot be removed by Parliament;2.Judicial power must be exercised in accordance with Chapter III.

- Privative clauses are not just a matters of reconciliation and statutory construction;

- they raise constitutional questions.
Para 96:Chapter III means that it is beyond the power of a State to alter the constitutional character of its Supreme Court such that it ceases to meet its constitutional description.

Para 97: Court examines the historical jurisdiction of State Supreme Courts

Para 98: At federation Supreme Courts had power in the face of privative clauses to grant relief by way of certiorari for jurisdictional error.

HCA supervises Supreme Courts according to the Constitution.

Para 99: HCA seeks to avoid islands of power immune from supervision and restraint.
Para 100: States and Privative Clauses

The distinction between jurisdictional error and non-jurisdictional error marks the relevant limit of State legislative power;

- States cannot use a privative clause to remove review on the basis of jurisdictional error;

- States can use a privative clause in cases of non-jurisdictional error appearing on the face of the record.
Kirk interpreted the meaning of decision in the way it did in Plaintiff S157:

The Decision was not a privative clause decision because it was made beyond power.
SZMDS (2010) 240 CLR 611
SZMDS highlights the difficulty that arises in deciding whether something is

- of sufficient seriousness or of sufficient gravity to be characterised as a jurisdcitional error;

- or an error within jurisdiction upon which minds might differ.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Gummow ACJ/Kiefel J:

There is Jurisdictional Error:

1. If a condition precedent (jurisdictional fact) to the exercise of the power is not satisfied; and

2. The satisfaction is irrational or illogical (not in the sense of Wednesbury unreasonableness) in the sense that:

3. it is not based upon probative evidence or inferences drawn from probative evidence (cf the assumptions of the RRT not based upon evidence).
Crennann/Bell JJ:

There is Jurisdictional Error (which does not go to jurisdiction!):

1. Where satisfaction as to a condition precedent (jurisdictional fact) to the exercise of the power is irrational or illogical; and

2. it is not based upon findings or inferences which are supported by logical grounds, in the sense that/ and that:

3. No logical or reasonable decision maker could have reached the decision reached (i.e. the decision was as if it was one within jurisdiction).

Clearly Gummow ACJ and Kiefel are consistent with the law as previously stated and as stated above.

Crennan and Bell’s decision collapses the distinction between jurisdictional error and errors within jurisdiction. Their comments on this point were dicta only.
Smith article (2011) 19 AJ Admin L 33

at 42:

"As Gummow and McHugh JJ emphasised in Applicant S20/2002 ,

a challenge on Wednesbury unreasonableness grounds involves the purported vitiation of an outcome (on the basis that a discretion was unreasonably exercised);

an illogicality challenge, on the other hand, is based on an assertion that the power to make a decision had not arisen because the conditions for its exercise did not exist in law (ie, the decision-maker fell into error in determining that the necessary factual condition precedent did not exist).

The approach of Gummow and McHugh JJ means that a challenge on Wednesbury unreasonableness grounds can only attach itself to the discretionary aspects of administrative decision-making. ..."
Smith at 42 - 43:

The practical consequences can be demonstrated through the following examples.

Under the Migration Act , a decision-maker must grant a protection visa to a visa-applicant if it is satisfied that the visa-applicant possesses a well-founded fear of persecution on the basis of a ground prescribed in the Refugees Convention.

Contrast the Migration Act with the Financial Sector (Shareholdings) Act 1998 (Cth), s 14(1) of which provides: "If the applicant satisfies the Treasurer that it is in the national interest to approve the applicant holding a stake in the company of more than 15%, the Treasurer may grant the application."

In the context of Wednesbury unreasonableness and the illogically grounds of review (and based on Gummow and McHugh JJ's approach in Applicant S20/2002 ) an aggrieved applicant whose application was not granted would have to structure a challenge in the following manner:

(a) the Treasurer fell into jurisdictional error given that his or her determination that it was not in the national interest to approve the application (ie, the determination that the condition that enlivened the Treasurer's power to make a decision was not met) was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds"; or

(b) assuming that the Treasurer was satisfied that it was in the national interest to approve the application, but nevertheless decided not to grant the application, the Treasurer's decision not to grant the application was so unreasonable that no reasonable person would have made it, and hence the Treasurer fell into jurisdictional error.
16 Of the distinction between jurisdictional and non-jurisdictional error in the setting of the Australian Constitution, Justice Selway, writing extrajudicially, said[14]:

"Notwithstanding the difficulty, indeed often apparent artificiality, of the distinction, it is a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Such a distinction is inherent in any analysis based upon separation of powers principles."

20.In his work Administrative Law, Professor Paul Craig describes jurisdictional facts as those relating to the existence of the power of a public body over the relevant area and continues:

"The statutory conditions thus laid down may be factual, legal or discretionary in nature. A classic factual precondition is that a person should be of a particular age to qualify for a benefit; a simple legal stipulation is provided by the meaning of the term employee; a discretionary precondition is where the statute provides that if a minister has reasonable grounds to believe that a person is a terrorist then he may be detained.

Claims of factual error can arise in all three types of case.

It might be argued that the agency simply got the applicant's age wrong because it confused the applicant with a different person.

It might be claimed that the agency misapplied the legal meaning of the term employee to the facts of the applicant's case.

It might be contended that the minister did not on the facts have sufficient material to sustain a reasonable ground for believing that the applicant was a terrorist."

The criterion for attraction of the jurisdiction of the decision maker in deciding an application under the Act for a protection visa is not expressed in terms of "fact" as simply understood. Rather, as explained earlier in these reasons, the Act fixes upon a criterion of "satisfaction" as to the existence of a certain state of affairs respecting the status of the applicant.
21 [cites Lord Wilberforce ... before the tectonic shifts in English public law]

"The section is framed in a 'subjective' form – if the Secretary of State 'is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review.

Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that.

If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone,

the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, [and]

whether the judgment has not been made upon other facts which ought not to have been taken into account."
22.The essence of the case [of the] first respondent succeeded … was that in attaining the satisfaction required by the Act, the RRT did not make its judgment upon a proper self direction as to the inferences to be drawn from its rejection of the factual account given by the first respondent.

23.In Australia, as Basten JA recently observed, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd of the terms:

"arbitrary, capricious, irrational" as well as "not bona fide" to stigmatise the formation of an opinion upon which a statutory power was enlivened.

Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open.

24.A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.
37 The ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be "satisfied" that there is "satisfied" the criterion that the applicant is one to whom the decision maker is satisfied under s 36(2)(a) that Australia owes protection obligations.

38 In dealing with that question two distinctions must be made. …

The first is that the first respondent does not assert any general ground of jurisdictional error of the kind disfavoured by Mason CJ [in Bond] where there were alleged deficiencies in what might be called "intra-mural" fact finding by the decision maker in the course of the exercise of the jurisdiction to make a decision.

The apprehensions respecting "merits review" assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed.

There the imperatives are the separation of powers considerations to which Justice Selway referred.
39 The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation.

The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts.

Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.

… the apprehended fear of "merits review" … should be rejected.

It gives insufficient weight to the importance of s 75(v) of the Constitution in ensuring that the legislative expression of jurisdictional facts in terms of satisfaction or opinion of a decision maker does not rise higher than its source.
53 To decide by reasoning from the circumstances of the visits to the United Kingdom and Pakistan that the first respondent was not to be believed in his account of the life he had led while residing in the UAE was to make a critical finding by inference not supported on logical grounds.

The finding was critical because from it the RRT concluded that the first respondent was not a member of the social group in question and could not have the necessary well-founded fear of persecution.
Framing an irrationality ground:

E.G. The Doping case:

1. The ADVRP/CEO failed to ask itself the question as to how the delay in advising the applicant of the A sample test results affected the ability of the applicant to obtain evidence relevant to the questions of:

a. the allegation of the Use of a prohibited Substance; and

b. any reduction of penalty available under the relevant anti-doping rules.

2. The failure to ask the question deprived the applicant of the possibility of a favourable outcome on the questions of both use and penalty.

3. The failure constitutes:

- a failure to take into account a relevant consideration;

- a breach of the rules of natural justice;

- irrationality in the SZMDS sense.

4. The failure was of such a serious nature and of sufficient gravity that Parliament intended that non compliance with th condition (to afford natural justice/to act rationally) would invalidate the decision;

5. The decision is thus infected with jurisdcitional error.
No Invalidity Provisions.
Ex Parte Palme:

Visa Cancellation and the Character Test:

9 Section 501G(1), so far as relevant, provides that if a decision, such as the present, is made under s 501(2) to cancel a visa:

"the Minister must give the person a written notice that:

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information) for the decision.

"No attention was given in submissions to the extent to which the requirement of par (e) may be expanded by s 25D of the Acts Interpretation Act 1901 (Cth). This states:

"Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based,"
but, given the course of argument, it may be put to one side for this case.

10 However, s 501G(4) is an important provision for this case. It states:

"A failure to comply with this section in relation to a decision does not affect the validity of the decision."
42 … the prosecutor fixes upon those cases concerned with breach of an essential preliminary to the exercise of a statutory power (here, that of visa cancellation under s 501(2)).

Those cases, as it was put in Project Blue Sky Inc v Australian Broadcasting Authority "are regarded as going to the jurisdiction of the person or body exercising the power or authority".

43 It was decided by Lee J in W157/00A v Minister for Immigration and Multicultural Affairs that the failure by the respondent to give a written notice setting out the reasons for the decision as required by s 501G(1)(e) attracted review by the Federal Court under what was then s 476 of the Act. This was because there had been a failure to observe "procedures that were required by [the] Act ... to be observed in connection with the making of the decision"…

That may be conceded, but it does not address the submission that such a failure also taints that decision with jurisdictional error so as to attract s 75(v) of the Constitution.
44 Here, the question is whether the step under s 501G which logically and temporally succeeds the making of a decision in exercise of a power is a condition precedent to that exercise.

The possibility that this is so may be conceded.

But, as Project Blue Sky emphasised, the answer depends upon the construction of the Act to determine whether it was a purpose of the Act that an act done or not done, in breach of the provision, should be invalid.

This gives rise to several immediate difficulties for the prosecutor.
45 First, "the act" upon which the prosecutor fixes for relief by way of certiorari and prohibition is not the failure to give the written notice required by s 501G, but the exercise of the power of visa cancellation conferred by s 501(2).

Secondly, the Act deals expressly in s 501G(4) with the interrelation between cancellation and notification.

The stipulation it makes is that a failure in notification does not of itself affect the validity of the cancellation.

46 The cancellation decision may still be reviewed under s 75(v) of the Constitution for jurisdictional error otherwise arising.

The prosecutor's attack, albeit unsuccessful, for denial of natural justice is an immediate example.

But failure in the notification required by s 501G does not impeach the cancellation decision for jurisdictional error.
First Rule of Problem Solving:

Have the necessary texts and statutes:

In any problem:

1. Find the neccesary Act, Regulations and Legislative Instruments.


2. Identify relevant decisions for purposes of :


ii Common law;

iii Constitutional Writs.

3. Identify Possible Grounds of Review

1. ADJR Act

2. Constitutional Writs
Palme Conclusions

- the failure to notify was not so serious, of such gravity to invalidate the primary decision to cancel the visa.

- but the invalidity clause could not take away the right to seek review of the cancellation for jurisdictional error.
Recall the provision in Miah:

" (1)Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

(2)If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it."
MIAH: Gaudron J:

100. It was submitted on behalf of the Minister that if, as has proved to be the case, there was a failure on the part of the delegate to accord Mr Miah procedural fairness, that failure is excused by s 69 of the Act. That section provides:

" (1)Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

(2)If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it."

101. It is convenient to deal first with s 69(2). So far as concerns subdiv AB, s 69(2) is not merely concerned with the mandatory requirements found in ss 54(1), 57(2) and 58 of the Act. It is concerned with the subdivision as a whole. It is therefore concerned with the proper exercise of the powers to invite submissions and further information to ensure procedural fairness. In the present case, there was either a decision not to exercise those powers or a failure to consider their exercise. In either event, there was a failure to comply with the requirements of subdiv AB.

102. So far as concerns s 69(1) of the Act, there is nothing in that provision to indicate an intention to preclude this Court from exercising its jurisdiction under s 75(v) of the Constitution. It is now clear that breach of the rules of natural justice will ground relief under s 75(v)[43]. That being so, if legislation does not exclude those rules, it cannot validly exclude the jurisdiction to grant relief for their breach that is conferred on this Court by s 75(v)[44]. That is not to say that the Parliament may not legislate in such a way that relief will be refused if an erroneous decision is made, provided that the decision does not exceed the authority conferred by the legislation in question and it constitutes a bona fide attempt to exercise the powers in issue and relates to the subject-matter of the legislation[45]. However, that is not what s 69(1) of the Act purports to do.

103. Section 69(1) of the Act simply purports to give validity to a decision notwithstanding non-compliance with, amongst other provisions, those of subdiv AB. The concluding words of the sub-section do not give it any wider operation. To say that non-compliance "only means that the decision might have been the wrong one and might be set aside if reviewed" is not to limit the avenues of review. Certainly, those words are apt to include judicial review pursuant to s 75(v) of the Constitution.

104. The purpose of s 69 of the Act is to ensure that an applicant's rights are to be ascertained by reference to the Minister's decision unless and until set aside. It says nothing as to an applicant's statutory or constitutional rights to have a decision reviewed. Still less does it purport to excuse non-compliance with the Act or the rules of natural justice.
What do you do with these?

UCI Regulation 213:213. The analysis of the B Sample shall take place in a period of 7 (seven) working days starting the first working day following notification by the laboratory of the A Sample Adverse Analytical Finding to the UCI.

There shall be no right to an adjournment of the date.

The B Sample analysis shall be valid, even if the notification under article 206 did not reach the Rider in time or the Rider was unable to attend or to be represented.

If the B analysis is not performed within this time frame this shall not be considered as a deviation from the International Standard for Laboratories susceptible to invalidate the analytical procedure and analytical results.

and ....,

ISL: “B” Sample Confirmation The “B” Sample analysis should occur as soon as possible and shall take place no later than seven (7) working days starting the first working day following notification of an “A” Sample Adverse Analytical Finding by the Laboratory.

If the Laboratory is unable to perform the “B” analysis within this time frame for technical or logistical reason(s), this shall not be considered as a deviation from the ISL susceptible to invalidate the analytical procedure and analytical results.

The Laboratory shall proceed as described above unless informed within the seven (7) working day time frame that the Athlete has waived his/her right to the “B” confirmation analysis and accepts the findings of the “A” confirmation analysis.

and ....

UCI Regulation 25:

25. Departures from any other International Standard, these Anti-Doping Rules, the Procedural Guidelines set by the Anti-Doping Commission or any other applicable anti-doping rule or policy or technical document which did not cause an Adverse Analytical Finding or the factual basis for any other anti-doping rule violation shall not invalidate such findings or results.

If the License-Holder establishes that any such departure which could reasonably have caused the Adverse Analytical Finding or factual basis for any other anti-doping rule violation occurred, then the UCI or its National Federation shall have the burden to establish that such a departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation.


3.2.2 Departures from any other International Standard or other anti-doping rule or policy which did not cause an Adverse Analytical Finding or other anti-doping rule violation shallnot invalidate such results. If the Athlete or other Person establishes that a departure from another International Standard or other anti doping rule or policy which could reasonably have caused the Adverse Analytical Finding or other anti-doping rule violation occurred, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation.

3.2.3 The facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal shall be irrebuttable evidence against the Athlete or other Person to whom the decision pertained of those facts unless the Athlete or other Person establishes that the decision violated principles of natural justice.

Jurisdiction Error
Privative Clauses
Full transcript