Ultra Vires

Procedural Fairness

1

Jurisdiction –Dos the person have the power to make the decision? If so, have I interpreted the legislation incorrectly so that I’ve made a mistake about the extent of the power?

Any Breach?

2

Any Abuse of Power?

 

3

Any Failure to Consider

 

-    Courts, tribunals and primary decision makers must have jurisdiction (before making the decision) If no, then person should not have made the decision at all. This would be a jurisdictional error of law.
-    In the course of making a decision, a decision-maker may have abused their power, failed to consider or breached procedural fairness. These are called non-jurisdiction errors of law.
-    Now Tribunals and Courts reviewed differently from Primary decision-makers. A court differs in that it is made up of highly trained people who are in the habit of making decisions every day. Courts assume they will not make any errors of law because they are skilled and legally trained. This is one policy considerations. Tribunals likewise are bodies of experts therefore should be treated the same way as courts. Simply give them power and let them make the decisions. With Primary-Decision Makers, they are given the power and their decisions are constantly reviewed

Anismanic Case
The HOL considered the jurisdiction of a tribunal to make decisions about compensation. Why have we always put tribunals in a special category where they are assumed not to make errors of law. HOL abolished the distinction. There is nothing special about tribunals, they can make errors of law like an individual. The also abolished the distinction for courts

In Australia, the leading case Craig v SA
Person unrep before dist Ct. HCA had to decide 30 yrs after Anisminic, whether it wanted to maintain the distinction. In the UK the courts felt the distinction was arbitrary. HCA agreed to change their minds, but only go so far. Tribunals were held to be ordinary decision makers, we will review their decision making process also to decide whether they made errors. But Courts are different from T’s. Because they are so fundamentally different from Tribunals, the original doctrine will be maintained for courts. There is still a protection for courts.

Issue is whether terminology of jurisdictional and non-jurisdictional is relevant because of privitive clauses which are input into legislation preventing review of decisions, unless it is a jurisdictional error. Parliament will never get rid of Courts right to review jurisdictional errors. But Courts are not allowed to review non-jurisdictional errors. To subvert this, HCA changed the definition of jurisdictional/non-jurisdictional. HCA has now decided that all errors are jurisdictional. HCA is deciding what is jurisdictional and now HCA has the capacity to review all jurisdictional errors.