Jurisdictional Error admin PDF

Preview

Summary

administrative law law notes 2021 Judicial review...

Description

Jurisdictional Error Overview of Jurisdictional Error

 Common Law doctrine  Historical background: jurisdictional v non-jurisdictional errors of law  Relationship with Privative Clauses  A central organising concept with a constitutional foundation

 Anisminic v Foreign  Compensation  Commission [1969] 2 AC 147  

British government set up a compensation fund to compensate companies who’d had their land seized by foreign governments. Applications to the fund were made to the Foreign Compensation Commission. Anisminic owned property in Egypt which was seized by the Egyptian government after the Suez Canal crisis. Anisminic applied for compensation, the FCC rejected Anisminic sought judicial review.

the application,

Statute contained a privative clause excluding review.

House of Lords:  Jurisdictional error can be narrow or broad.  Both can be errors of law.  List is not exhaustive.  Privative clause can only protect decisions that do not involve errors of law ie valid decisions. Craig v South

NB: Australia has taken a different approach.  Craig was being criminally prosecuted in the South Australian District Court for

Australia (1995) 184 CLR 163

larceny, receiving and arson of a motor vehicle. 

Trial judge ordered a stay of proceedings because Craig did not have legal representation through no fault of his own.



SA government sought to quash decision of trial judge for misconstruing law jurisdictional error.



SA Supreme Court quashed the decision.



On appeal, the High Court reversed the decision of the SA Supreme Court holding that



the error here was not a jurisdictional error. The High Court:  Endorsed Anisminic approach in relation to tribunals; and 

Kirk v Industrial Relations Commission of

Distinguished inferior courts from tribunals.

See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 106 CLR 323 o Extended the entrenchment of judicial review for jurisdictional error to State Supreme Courts. o

Section 73 of the Constitution creates a unified appellate judicial system, with the High Court at the top.

NSW (2010) 239 CLR 531

Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780

Kirby J on Jurisdictional Error:

o

‘Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.’ (@ [100])

o

‘It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error.’ (@ [71])

High Court:  Jurisdictional error is concerned with the gravity of the error.  A jurisdictional error has a ‘threshold of materiality’. A breach of an implied or express condition of decision-making power will not be material ‘unless compliance with the condition could have resulted in the making of a different decision.’ Kiefel CJ, Gageler and Keane JJ @ [29] (see also Edelman J @ [72]; Nettle J @ [40]) See also Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (Bell, Gageler and Keane JJ; cf Nettle and Gordon JJ) But see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (Nettle and Gordon  ‘I have previously criticised the so-called “jurisdictional error” category despite the support it derives from the current doctrine of this Court. The classification is conclusory. It is very difficult to define and to apply. In recent years it has been substantially discarded by English legal doctrine. Jurisdictional error is nearly impossible to explain to lay people even though the Constitution (including the central provisions in s 75(v)) belongs to them. Most non-lawyers would regard it as a lawyer’s fancy.’ Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146 @ 184...