Published on 7/06/2007

Judicial Review: Excess of Power

1.   STATUTORY INTERPRETATION
INTRODUCTION

Categorisation of the Grounds of Review
•   Judges and administrative law scholars cannot agree on how to categorise the grounds of review.
•   a troublesome aspect of categorising the grounds of review is how to accommodate two seemingly different doctrines – the ultra vires doctrine and the doctrine of jurisdictional error – each with its own terminology.
•   the jurisdictional error doctrine has developed so that today it is equal to the ultra vires doctrine in supervising the exercise of discretion. Today ultra vires and jurisdictional error can be used interchangeably.
•   jurisdictional error prominent in the court’s reasoning is the need to distinguish between jurisdictional errors, which are reviewable, and non-jurisdictional errors, which are not. This is not as explicit in cases using the ultra vires terminology.
•   However deference, in the sense of allowing administrators a margin of unreviewable error, is also part of the ultra vires doctrine (see, for example, Mason J’s judgment in Minister for Aboriginal Affairs v Peko-Wallsend (Week 4) where his Honour distinguishes between an administrator’s mandatory, discretionary and prohibited agenda of relevant and irrelevant considerations). It is also apparent in the cases where error of law per se is reviewable (see for example ABT v Bond (Week 4)).
•   In short, we have two doctrines which do the same work. Error of law on the face of the record has become correspondingly irrelevant – at least for administrators and administrative tribunals. The High Court in Craig’s case (Week 4) signalled that this ground of review is only useful when reviewing decisions of courts of law.

1.1   Principles Of Statutory Interpretation

Minister for Immigration and Ethnic Affairs v Teoh (1995)

Facts: Teoh married late brother’s wife. Children from both marriages. Wife heroin addict- he was threatened with deportation bc was criminal activity. Question what would happen to the children- would they become wards of the state. Relevance of convention on the rights of a child. Procedural fairness case- if decision was to go against him, he should have been given a hearing bc under the rights of child convention, rights of children should have been a primary consideration for the decision maker. HC saying a domestic piece of legis but also have an international treaty. There was no act of Parl incorporating rights of child into domestic law.

Held:
Mason CJ and Deane J- “Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.” In short, ratification of a Convention by the Government is a positive statement that, “is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the Convention.” They then held that, ‘if the decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.’
•   What HC says about interpreting statute where there’s an ambiguity.
•   International treaties only enforceable when incorporated by domestic legislation
•   Treaty may be referred to, even if not incorporated by domestic law, where statute ambiguous- Parliament intends to act in conformity with international law.
•   Useful for interpretation where Parliament uses words in statute that refer to identical provisions in treaty.
•   Signing of treaties is statement by executive to Australian public they will be followed.
•   How HCA incorporates fundamental human rights into admin decision making bc we don’t have a bill of rights.

Al-Kateb v Godwin [2004] HCA 37 (6 Aug 2004) (See Handout for more detail)
Issues:
•   Does the Migration Act authorise the indefinite detention of an unlawful non-citizen –in this case, a stateless person – in circumstances where there is no real prospect of removing the non-citizen?
•   If so, is this constitutionally valid?

Held (4:3): Lawful – the non-citizen could be kept in indefinite detention

Majority (Appeal Dismissed)

McHugh J
•   The words of the Act are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights
•   The Act requires mandatory detention until removal is “reasonably practicable” or the person is given a visa.
•   The Act does not infringe Chapter III of the Constitution as detention is not punitive and the courts are not prevented from determining the conditions precedent authorising detention
•   It is “heretical” to use international law that has come into existence since 1900 to interpret the Constitution

Hayne J (with whom Heydon J agreed)
•   The legislature has authorised detention until the first point at which removal is reasonably practicable
•   The time for removal is fixed by the legislation by reference to reasonable practicability
•   It is not possible to transform from “as soon as reasonably practicable” to “soon” or “for so long as it appears likely to be possible of proximate performance”
•   The time limit in the Act cannot be transformed by resort to presumptions of legislative relating to human rights. The words are intractable.
•   The law does not contravene Ch III because it is not punitive

Callinan J
•   The statutory language is clear and unambiguous – it requires the detention of aliens until such time as they are granted a visa or removed from Australia
•   “It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained” and “the obligation of the courts to ensure that any detention for a permitted purpose is neither obstructed nor frustrated”
•   Permitted purposes may include deterrence

Minority

Gleeson J
•   The Act does not in terms provide for permanent or indefinite administrative detention.
•   Presumption that Parliament does not intend to abrogate or curtail human rights or freedoms should be used to resolve the choice between treating the detention as suspended or as indefinite
•   The possibility that a person, regardless of personal circumstances, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication

Gummow J (with whom Kirby J agreed)
•   The Act places temporal limits on detention which are linked to the purposive nature of mandatory detention
•   If the stage has been reached that a person cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed, the purpose of detention is spent
•   This interpretation brings the Act within the Constitution
•   The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive
•   The finding of the Federal Court that there was no real likelihood or prospect of removal in the reasonably foreseeable future indicate that his Honour should have gone on to hold that ss 198 and 196 no longer mandate the continuing detention of the appellant.
Kirby J
•   Agreed with Gummow J – further supported by considerations of international law and the common law presumption in favour of personal liberty
•   See also his discussion of using the judgments of courts in the UK, USA, Hong Kong and other jurisdictions
•   using international law to interpret the Constitution
•   interpreting legislation consistently with Australia’s constitutional arrangements – to which indefinite administrative detention is alien

1.2   Human Rights Acts
Towards a Human Rights Act?

Report to Australian Capital Territory Government, May 2003, concluded:
•   Even if it were possible to argue that combination of international, constitutional, statute and common law provided adequate coverage for human rights in Australia, the fragmented nature of the coverage would remain a serious barrier to the development of a human rights-conscious culture

Human Rights Act 2004 (ACT)
•   Modelled on the UK Human Rights Act
•   an “interpretation” or “dialogue” model of human rights protection
•   seeks to enhance judicial protection of human rights without undermining parliamentary sovereignty
•   sets up a dialogue between the legislature, courts and executive about the best way to protect human rights

*ACT Act s 30: In interpreting Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred
•   applies to courts, tribunals and administrators
•   ‘law’ means an Act or statutory instrument

*The Supreme Court, if satisfied that the Territory law is not consistent with a human right, may make a declaration of incompatibility
•   The declaration does not affect the validity, operation or enforcement of the law, or the rights or obligations of anyone
•   The AG must present a written response to the Legislative Assembly

*The rights covered are civil and political rights derived from the ICCPR
•   The Act does not exhaust the rights an individual may have under domestic or international law
•   Only individuals have human rights
*    International law, and the judgments of foreign and international courts and tribunals, may be considered in interpreting the human right

*    Limitations on human rights
•   Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society

*    Each bill presented to the Legislative Assembly must be accompanied by a compatibility statement
*    Scrutiny of bills by a standing committee of the Assembly
*    Establishment of a Human Rights Commissioner
*    Annual reports of government agencies must state measures taken to respect, protect and promote human rights

*    UK Human Rights Act goes further
•   It is unlawful for a public authority to act in a way which is incompatible with a Convention right – unless the primary legislation makes it impossible to do so
•   The court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate, including compensation

Implications of human rights statutes for judicial review
•   Participation in the international jurisprudence of human rights
•   New and required techniques of statutory interpretation
•   A more intensive standard of review
•   Development of a doctrine of judicial deference?

Statutory Interpretation
*    Where legislation is ambiguous, it must be interpreted in a manner compatible with human rights
*    Even if the legislation is not ambiguous, a rights compatible interpretation must be adopted if this can be achieved by “reading down” the legislation
•   broad provisions are interpreted narrowly
*    Even if the legislation is not ambiguous, words may be “read in” to the statutory text to amplify a statutory provision that is narrower than a human right
*    The limit of interpretation is reached
•   where courts are required to contort (rather than strain) the wording of a statute
•   where a rights-compatible interpretation is contrary to the express will of Parliament

A more intensive standard
*    Any qualification/limit on a human right must be
•   reasonable and
•   demonstrably justified in a free and democratic society
*    Courts must therefore evaluate justification and whether there is a less rights-restrictive option
*    UK courts now use proportionality review where human rights are at stake
*    Proportionality review (regarded as “dangerous” by the Australian High Court: see Cunliffe)
•   assess the balance struck by the decision-maker (rather than ask merely whether it was within the range of reasonable decisions)
•   weigh the relevant interests
•   consider whether the interference with the applicant’s rights
(a)   is really necessary in a democratic society and
(b)   is not an excessive burden on the individual

Judicial Deference?
Arguably
•   In respect of rights that have to be balanced, but not where rights are absolutely protected (e.g. torture)
•   Where the subject-matter is peculiarly within the constitutional responsibility of democratic government (e.g. defence) and less when it lies within the constitutional responsibility of the court (e.g. criminal justice)
•   Where the subject matter lies more readily within the actual or potential expertise of the democratic powers (e.g. macro-economic policy)

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1.3   “Necessary or convenient” clauses

Shanahan v Scott (1957)

Facts: Shanahan breached the regulations of the Egg and Egg Pulp Marketing Board made under the Marketing of Primary Products Act. Can make regs ‘necessary and convenient’ for the expedience of the act. Makes regs which say need consent of board to put eggs in cold storage or preservative. Argued that reg 44 (which controlled who could store and chill eggs for distribution) was ultra vires (in excess) of the regulation making power conferred by the Act.

Principle: powers to make regulations that are “necessary and convenient” does not permit the authority to extend the scope and general operation of the act (this would be ultra vires)- can only have requirements that are strictly ancillary to achieving the legislation’s purpose.

Held:
•   Regulations can be a means of effecting what is enacted in the Statute itself and things incidental to its carrying out. It cannot widen the purposes of the act, add new and different means of carrying them out or depart from the plan of the legislature.
•   Can only do what is strictly ancillary to (not an extension of the power they’ve been given) achieving the purposes of the legislation.
•   Here it was an attempt not to complement, but to supplement the plan of the legislation or it’s not confined to the same field of operation as the provisions of the act. Regulation is outside the purpose of the act (purpose is marketing eggs, not controlling their distribution) and is thus ultra vires.

*Utah Construction and Engineering P/L v Pataky [1966] (Privy Council)
Facts: The Scaffolding and Lifts Act 1912 – 1960 s22 provided: (1) The Governor may make regulations … which are necessary or convenient to be prescribed for carrying out or giving effect to this Act [relating to]…(iv) the manner of carrying out building work, excavation work or compressed air work; (v) safeguards and measures to be taken for securing the safety and health of persons engaged in building work, excavation work…”. The Governor made a Regulation that “Every drive and tunnel shall be securely protected and made safe for persons employed therein”. The Plaintiff was injured when a rock fell on him in a newly blasted tunnel. The employer argued that the Regulation was ultra vires.

Held:
LORD GUEST:
•   The primary legislation gives power to make regulations concerning “the manner of doing the work” it does not give power to make regulations “imposing an absolute duty of protecting the drive and tunnel or an absolute duty of ensuring the safety of persons employed in the drive or tunnel”.
•   The primary legislation “did not authorise a regulation prescribing that a tunnel must be safe but authorised only regulation stating specific means which persons bound by the regulation were required to adopt”.
•   The Privy Council found that the primary legislation was couched in such terms so as only to allow the delegated legislator power to make regulations on definite measures or steps.
•   The regulation is ultra vires and invalid.

Note: There are different statutory interpretation approaches used in the Shanahan case and the Utah Construction cases. In Shanahan the HCA was more willing to look at the general purpose of the primary legislation whilst in Utah the Privy Council took a narrower approach concentrating on specific provisions in the primary legislation.

1.4   Powers to “regulate” or “prohibit”

Swan Hill Corporation v Bradbury (1937)
Facts: Concerned with by-laws made under the Local Govt Act (which permitted by laws to be made “regulating and restraining” construction works) regarding approval to be sought from the council prior to any renovations/building being commenced. By-law held invalid by the Full court of SC of Vic. Council appealed to HC.

Principle: The power to regulate and restrain goes further than regulation, but falls short of prohibition, unless the power to be restrained is one that is inherently evil (not building)

Held: (per Dixon J)
•   The by-law was invalid. Look at the meaning of “restrain”- Council cannot reject building applications for any reason it feels or for no reason at all.
•   By-laws that are restricting undesirable practices may be given greater scope in terms of prohibiting conduct. But here, the building on ones own land is not a tendency that needs to be repressed.
•   The by laws made under this kind of power “may prescribe time, place, manner and circumstance and….. impose conditions, but ….they must fall short of preventing or suppressing the thing or course of conduct to be regulated”.
•   Restrain connotes something less than prohibition.
•   Together, “regulate and restrain” goes further than regulation. It cannot be said though that building is prohibited in general, and the council can decide whether it can be undertaken. It is more that there are restrictive conditions on building, not that building is prohibited.
•   Subject matter of the by-law is as important as the words in the statute. Court reconciling stat provn with the subject matter of the regulation. Qn- do we want to prohibit ppl from building? Property rights etc- if prohibit go beyond Parliament intent.
•   See p468 exception to balancing subject matter and stat provision. If activity is an evil or undesirable activity then the power to regulate/restrain, may extend to a power to prohibit something inherently evil.

Foley v Padley (1984)
Facts: Rundle Street Mall Act 1975 (SA) gave the council the right to make by-laws “regulating, controlling or prohibiting any activity in the mall”. Made a by-law prohibiting the distribution/giving out of anything in the mall w/o the council’s permission. A Hare Krishna was charged bc he gave a book to a passer-by. He contends the by-law is unlawful bc it goes beyond the power in the legislation.

Principle: Where an Act gives a Council the power to make a by-law to regulate, control or prohibit something, then a by-law can be passed prohibiting that ‘thing’ absolutely or subject to conditions. If it is subject to a condition like you have to get the Council’s consent, the Council does not have to define what factors go into giving or refusing that consent.
Gibbs CJ:
•   “When a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition.” Look to whether the council has misconstrued the statute or its opinion is not reasonable.
•   Law stated by Latham CJ in R v Connell: “where the existence of particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist”
•   Look at the power given to the council and its purpose. Purpose is to ensure the enjoyment of the mall. Define the terms of the by-law and look at what its intention is. Here, the by-law intended to prevent the distribution of things to ppl who were unconnected with the person distributing the item. It is not to prevent a person giving something to another in the ordinary course of a pre-existing relationship.
•   By law imposed a conditional prohibition on the activity as council approval had to be sought.
•   Generally, a statutory provision wont be construed as interfering with individual liberty unless there is a clear intention to do so.
•   The power given by statute “to regulate, control, or prohibit” was phrased in general terms that were wide enough to include conditional prohibition. Nothing in the Act stated that the council could not hold a meeting to decide on the individual cases.
•   If says prohibit- means they have the power to prohibit absolutely. Only where word prohibit is used will they be able to prohibit absolutely.

Brennan J (dissent)
•   “An attempt to create by by-law a wider discretionary power than the legislature has authorised, or to exercise a by-law discretion for a purpose that the legislature did not contemplate can be reviewed and set aside by the court”.
•   Believes that where a by-law is based on an opinion, that opinion must be reasonably formed.
•   The by-law prohibits normal acts of human intercourse and shouldn’t.

State of South Australia v Tanner (1988)
Facts: statute- can make regulations “regulating, controlling or prohibiting the use of land… to reduce/prevent pollution”, Regulations prohibited keeping animals (for public display) in an area classified as a watershed. Tanner sought approval from the council to develop a complex of shops, offices, and aviary (within the definition of zoo) and car parks. This was rejected by the SA planning commission. On appeal, the issue of whether the regulation was valid arose. SC held the regulation invalid. SA appealed.

Principle: the test of validity of delegated legislation with a purposive power is whether the “regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose”. This will be a “matter of impression”

Held:
•   Object of the act is to prevent pollution of the waters. Choice of measures to achieve this object will often depend on a number of factors (administrative practicalities and expert advice). This means a broad approach is required w.r.t the “nexus b/w the exercise of power and the achievement of the purpose for which it is conferred”.
•   Test applied is whether the regulation is reasonably proportionate to the pursuit of the enabling purpose. Whether it is out of proportion is “a matter of impression”
•   It must be so lacking in reasonable proportionality so as to not be a proper exercise of the power out of jurisdiction.
•   Court needs to take care not to exercise untutored judgment.
•   Qualifies Foley- if says prohibit (with alternative options), can prohibit, but the prohibition must be proportionate to the object of the act.

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1.5   Procedural error

Critical question in these cases is what consequence to attach to a failure to observe procedures prescribed by the enabling legislation.
•   The enabling Act may spell out the consequence, but often does not.
•   If the consequence must be implied by the Court, the question must be asked is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid?
•   HC warned in Project Blue Sky that classification of procedures according to whether they are    ‘mandatory’, ‘directory’ or require ‘substantial compliance’ does not produce the correct answer.
1.   Power to be exercised according to certain procedures
2.   Mandatory / directory distinction
a)   if mandatory then non-compliance = ultra vires and invalid
b)   if directory may be ignored / substantial compliance
But sometimes trivial non-compliance with mandatory not ultra vires AND non-compliance with directory is ultra vires.

ADJR Act ss5(1)(b) and 6(1)(b)
S5(1)(b) – Federal court is given power to review on the ground that the procedures that are required by law to be observed have not been observed.....
S6(1)(b) - or are not likely to be observed
Issue relating to these provisions
•   was the act intended to make all procedural requirements mandatory?
•   will the court limit the word 'requirement' in s5 and 6 to mandatory requirements?
•   if the court believes the procedural requirement is merely directory it ought not in principle have any discretion to hold an administrative decision made in breach of that requirement invalid
In procedural issues there's 2 steps in analysis:
•   Look at what's been done and what the provision means; and
•   If failure to comply what are the consequences ie is it directory/mandatory
Scurr v Brisbane City Council

Principle: A directory interpretation of a statutory requirement necessitates, as a condition of validity, that there should be substantial compliance with the requirement. Stephen J held that a directory construction can be given preserving validity notwithstanding total non compliance.

Held: The court found the sign that had been put up was defective as it was misleading in two ways1) misled the general public; and 2) misled knowledgeable professionals.
2 step analysis
1.   The provision said "shall set out particulars" – the court interpreted this and gave it meaning consistent with the importance of the right
2.   mandatory or directory? This did not matter because the court held it was not even substantively complied with.

Hunter Resources Ltd v Melville
•   Some statutory requirements with which there cannot be substantial compliance – either complied with or not.

Norvill v Chapman (1995) 133 ALR 226 (Hindmarsh Island Case)
Facts: Hindmarsh island- a group of women applied to the minister to protect their cultural heritage. It was ‘secret women’s business’,  he appointed a senior woman to deal with it, and the details were not published as stipulated in the act.

Principle: there must be strict compliance with procedural requirements in the act (mandatory)

Held: Minister failed to exercise his powers bc he delegated power- not allowed in legis. Reporter acted in breach of the procedural requirements in act (Must publish a map and reasons in newspaper). If minister is making this kind of declaration everyone should have all the info. Aboriginal ppl must participate in accordance with the law- need to protect other ppls interest equally.

*Project Blue Sky Inc v Australian Broadcasting Authority (1998)

Facts: Question whether a program standard made by the ABA is invalid. Conflict in the Act which states that functions of the ABA must be consistent with international treaties (s160), but that there is a minimum amount of broadcasting which must be of Australian tv programmes. A NZ company objects, saying this conflicts with our obligations under the Australia/NZ free trade agreement (equal access to markets).

Issue: Does the provision of the Australian Content Standard breach the protocol with NZ? If so, is it invalid?

Principle: A better test than the mandatory/directory one is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid, by having regard to the ‘language of the relevant provisions and the scope and object of the statute’. Here, the issues (of policy and treaties) would be too vague to be an absolute requirement. A provision can be found to be unlawful, but not invalid.

Held: Construe a provision with reference to its context, purpose and policy. Here consistency and fairness may be demonstrative of its meaning. Where there’s a conflict, there needs to be attempt to reconcile the sections by adjusting the meaning of the competing sections to give the best overall result. Need to look here at the hierarchy of the provisions.
•   Need to look at the grammatical and legal meanings- it is a verbal formula. If here, only the grammatical meaning was used, would be in defiance of treaty obligations. The 2 sections (requiring Aust content and compliance with international treaty) must be read together to get their legal meaning. , the ABA obliged to ensure the standard didn’t conflict with the treaty.
•   Standard is in plain breach of Australia’s treaty obligations.
•   Effect of this: could make a regulation which looked at making NZ and Aust programs have equal access- would still be consistent with the objects of the act.
•   Directory (breach doesn’t invalidate act) vs. mandatory (breach invalidates act) requirements: aren’t very helpful as a guide to what is upheld.
•   Better guide: “ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. Here it was not, bc s160 regulates functions already conferred on the ABA rather than being an essential preliminary factor. This is esp the case where it is a directory on policy- would be too vague if it was an absolute requirement. This is the same for international treaties- language therein is usually vague/ambiguous.
•   Best interpretation is that, while s160 imposes a legal duty on ABA, acts done in its breach are not invalid- but they still can be found to be unlawful, as they are here. Can’t be invalid as so many parties are relying on the act.

1.6   Uncertainty

•   As a general rule, administrative decisions are not invalid merely because they are linguistically ambiguous.
•   The issue is whether the administrative decision (including delegated legislation) is so uncertain that it cannot operate with certainty. The court must first endeavour to give the decision a sensible, ascertainable meaning.

ADJR Act ss5(2)(h) and 6(2)(h)

*King Gee Clothing Co Pty Ltd v Commonwealth (1945)

Facts: objection to price fixing made under the regulations of an act by clothing manufacturer.

Principle: there is no general rule that delegated legislation will be held to be invalid if it is uncertain. The rule will be valid so long as its meaning can be ascertained.

Held:
•   Unreasonableness is not a separate ground for invalidity. In determining whether the regulation is ultra vires, the court must look to the “meaning and operation” of the regulation.
•   Need to be able to understand the law. The meaning here must have been such that the prices could be calculated (not only estimated or given on the basis of discretion). The maximum prices must be clearly ascertainable due to the severe penalties for exceeding the maximum price. There is a degree of subjectivity in calculating the prices it would not be possible to make a specific calculation (includes estimating indirect labour times etc).
•   The law must be sufficiently certain that ppl know how to comply with it. Order is  held invalid.

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2. ERRORS OF LAW AND FACT

•   If an administrator makes a jurisdictional error, whether of law or fact, the decision (or failure to make a decision) is invalid.
•   jurisdictional errors of law are errors of law involved in interpreting and applying legislation. Abuses of discretion, and failures to exercise discretion for the reasons discussed in Part F, are also errors of law and may constitute jurisdictional error.
•   Note recent High Court cases that extended the jurisdictional error doctrine to cover abuses of discretion. The High Court has also recently made it clear that procedural unfairness constitutes a jurisdictional error of law (see Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)).
•   With the expansion of jurisdictional errors of law, the ground of error of law on the face of the record has become correspondingly irrelevant – at least for administrators and administrative tribunals. The High Court in Craig’s case, below, indicated that this ground of review is only useful when reviewing decisions of courts of law. In any event, the High Court robbed it of its utility by taking a very narrow view of ‘the record’.
•   The distinction b/w errors of law and fact is extremely malleable.
•   note that in Hope v Bathurst CC it was important to make the distinction because statute provided for an appeal on a question of law only. In ABT v Bond, the High Court was concerned with the ADJR Act which makes all errors of law reviewable.
•   Leaving aside the ADJR Act, the HCA has not followed the English House of Lords in abandoning the concept of non-jurisdictional error of law. However, the courts have not given us any clear guidance as to how jurisdictional and non-jurisdictional errors are distinguished. Judges themselves have observed that often courts reason backwards from the outcome they desire.
•   Since Craig v South Australia (1995) 184 CLR 163, we can say that errors of law committed by administrators or administrative tribunals are more likely to be found to be jurisdictional than if the error was committed by an inferior court of law.
•   If J error of law- decision will be invalid/void. Court looks at statute, does person have power, have they understood their jurisdiction correctly?
•   Non jurisdictional error of law; once satisfied that have jurisdiction wont really look at errors made in assessing the merits.
•   Give inferior courts and tribunals quite a wide discretion.
•   Wont open the decision making process to find non jurisdictional errors unless they appear on face of record
•   Non jurisdictional errors include
o   Abuse of power (improper purpose & bad faith, relevant/irrel considerations, unreasonableness)
o   Failure to consider (sub delegation, policies and dictation)
o   Note the distinction is rapidly eroding…

2.1 The fact/law distinction

*Hope v Bathurst City Council (1980)

Facts: Under the Local Govt Act 1919 (NSW) rural land attracted lower rates than non rural land. Hope contested a decision of the Land and Valuation court which held that his land was not rural land within the definition of carrying on business or grazing etc. (although 80% of the land was used for the agistment (taking in other ppls livestock for money) of other ppl’s horses and cattle). NSW court of appeal upheld this.

Principle: Question of whether the facta probandia (facts adduced to prove the ultimate fact)  fact established the factum probandum (ultimate fact)  law is generally a question of law. Where all the material facts are fully found and the only question is whether they are within the provisions of a statutory enactment properly construed, it is a question of law

Held: per Mason J:
•   The question of “whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law”. Ie. Whether facts found fall under a statutory definition of provision is a question of law.
•   Ultimate fact in issue  question of law
•   Facts adduced to prove the ultimate fact in issue  fact
•   Can have mixed questions of law and facts:
-   Determination of what is the common usage of words  question of fact
-   If can be different conclusions of whether the activities fall within the ordinary meaning  question of law-

THIS IS THE IMPORTANT BIT
-   If different conclusions possible and it is necessary to decide which is correct  question of fact
•   Mason J finds that “carry on business” should be given its common meaning.
•   “On the facts as found, I conclude that the appellant’s activities amounted to a business and that no other conclusion was reasonably open”. Thus this was an error of law.
•   Also the original judgment erred in arriving at the common meaning of the word “business”. This is an error of law because “it was associated with an omission to relate the word to the expression with which it was associated, this being an error in construction and accordingly of law”. There was an error in construction and thus an error of law.
•   Where a finding is so removed from actuality of facts it is an error of law.

*Australian Broadcasting Tribunal v Bond (1990)

Facts: The ABT found that Mr Alan Bond was not a fit and proper person to hold a commercial broadcasting licence under the act. The ABT then found that by reason of Mr Bond’s control of the comps they too were not fit and proper to hold the licences. The decision was set aside by the Fed Ct – the ABT appealed to the HC.

Principle: traditional judicial review functions don’t extend to findings of fact

Held:
•   Cts are not there to adjudicate on findings of fact because finding of fact (including an inference drawn from primary facts) are no more than a step along the way to ultimate determination – however the determination which may be made based on the finding of fact vitiated by error of law ss5(1)(f)and ss6(1)(h) or made without evidence ss5(1)(h) and ss6(1)(h) may be reviewable.
•   NB Defn of conduct: looks to the way in which proceedings have been conducted rather than to decisions made along the way with a view to final determination. It is primarily a procedural issue rather than a substantive issue.
•   Defn of decision: should not be taken narrowly or limited to a final decision disposing of a controversy. It could be taken as meaning any ultimate or operative determination that is not a mere expression opinion or a statement not having an effect on a person.

Mason CJ:
Ambit of judicial rule under the ADJR Act- meaning of a decision
•   Decision within the meaning of the act is one that is final or definitive.
•   In general findings of fact aren’t reviewable independently of the ultimate decision.
•   Can only examine conduct on procedural grounds.
•   “the traditional [judicial] review functions of the superior courts …ordinarily do not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the stops in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government”

Grounds of review
•   The making of findings and drawing inferences in the absence of evidence is an error of law (i.e. findings are unreasonable). There is no error of law in simply making an incorrect/illogical finding of fact.
•   Error of law under the ADJR act is intended to bear the same meaning as at common law. I.e. cannot review findings of fact, except where there has been an error of law.
•   “ a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing.”
•   No errors of law were made in the course of findings of facts.

Deane J:
•   procedural fairness requirements mean decision makers mustn’t make arbitrary decisions; findings of fact must be supported by probative or logical evidence
•   the requirements of procedural fairness can vary depending on the statute supporting them.
•   In general, procedural fairness requires decision makers act rationally, reasonably, not arbitrarily, material/relevant considerations be included and immaterial considerations be ignored, decisions of fact must be supported by probative material. If this is not observed, will be an error of law.

Toohey and Gaudron JJ:
•   Grounds of review arise where there is a decision, conduct engaged in for the purposes of making a decision, or a failure to make a decision. The grounds vary depending on which circumstance is being examined.
•   The exercise or refusal to exercise a substantive power can be classified as a decision

S20 Case
Ct says it is not clear what is fact and law. But upon application of the facts to the law in a statute, it becomes clearer.

2.2 Review on the Grounds of Error of Law
2.2.1 Common Law: Jurisdictional Error of Law

Ex parte Wurth; Re Tully (1954) 55 SR (NSW)

Facts: Tully appointed on a probationary period within s32 Public Service Act whereby during the probationary period, the governor had the power to annul the appointment. Tully brought an action under s10(1) Crown Employees Appeal Board Act 1944 (CEAB Act) which permitted appeal by officer adversely affected by the promotion or appointment ….”. A clause in the CEAB Act stated (in a privative clause) that decisions were final and could not be appealed against or reviewed by courts, nor could there be any writ of certiorari or prohibition. Board decided it had jurisdiction to hear the appeal. Public service board appealed and obtained a writ of prohibition on grounds the CEAB had no jurisdiction to hear the appeal.

Held: Is authorised by the public service act to dismiss an officer.

Principle: a review of a decision must not be conducted by a body under statute unless they have jurisdiction to hear the appeal. A privative clause will not be enforced where there is either a manifest defect in jurisdiction (occurred here) or manifest fraud. A jurisdictional error of law will occur when words in legislation are incorrectly interpreted.

•   If the words in legislation are misinterpreted there has been an error of law bc the decision maker incorrectly believes they either have or don’t have jurisdiction.
•   A jurisdictional error of law occurred since the CEAB was not competent to hear the appeal (i.e. refusing to appoint someone after a probationary period does not equate a dismissal; CEAB only has power to look at dismissal). Privative clause is  n/a here.
•   To find this; looks to the structure of the section which suggests it was intended to enable officers to attain redress against grievances. Looking at the act of the whole and intent of legislature, can see that they did not intend an annulment of the probationary period to amount to a ‘dismissal’ within the meaning of the act.
 “It would be an extraordinary interpretation to put upon the section that the board was to have unfettered and unchallengeable power to define the extent of its own jurisdiction, and to give any decision or embark upon any proceeding without any liability to correction.”

*Craig v State of South Australia (1995)

Facts: An accused person applied for a stay of proceedings in the District Court due to lack of legal representation. This order was appealed to Federal Court and a certiorari was granted quashing the stray order. The accused appealed to the High Court.

Held: BRENNAN, DEANE, TOOHEY, GAUDRON and McHUGH JJ:
•   Whether the district court was an inferior court was “unnecessary to decide” but the High Court stated “it is convenient to assume that the District Court is, for relevant proposes, an inferior court”.
•   Nature of certiorari: “it merely enables the quashing of the impugned order or decision”.
•   Jurisdictional error:
•   The High Court distinguishes between tribunals and inferior courts because courts have “formal legal qualifications or practical legal training” and the tribunals “are commonly constituted…by persons without formal legal qualifications”.
•   Inferior courts can only be reviewed for jurisdictional not non-jurisdictional errors. Ie the Anisminic rule applies only to tribunals NOT inferior courts.
•   “In Anisminic, the respondent…was an administrative tribunal. Read in context, the above comments should, in our view, be understood as not intended to refer to a court of law”.
•   A jurisdictional error by a court occurs when “An inferior court…mistakenly asserts or denies the existence of jurisdiction or it misapprehends or disregards the nature of or limits to its jurisdiction or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal of failure to act” Ie. If the court makes an “order or decision” (certiorari only has power to quash) that “is based upon a mistaken assumption or denial of jurisdiction or a misconception disregard of the nature or limits of jurisdiction”. Examples given include entertaining or making a decision or order that lies beyond the limits of the court’s power eg. Hearing a criminal case in civil jurisdiction; if “an essential condition of the existence of jurisdiction…has not been satisfied” or “if it misconstrues that statute”.
•   For Tribunals: “If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.

Taken to mean any of the ground of review not just those mentioned.
•   Application: Jurisdictional Error? No. The test for the accused was ‘absence of fault’ in not obtaining representation but an error on the part of the judge here would not be a jurisdictional error. It lay within the primary authority of the trial judge. Error on the Face of the record? The error found by the first appellate court was not an error on the face of the record.
•   Held that the order of certiorari made by the first appellate court was not justified and that decision was set aside.

•   This case brings common law in line with ADJR Act s5(1)(f). Note that inferior courts cannot be reviewed under this Act (administrative decisions only).

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2.2.2 Error of Law on the Face of the Record

Jurisdictional and non jurisdictional errors- which is which??
Historically, courts only reviewed the decisions of lower courts and tribunals. They did this based on their jurisdictional errors, as distinct from the ‘non-jurisdictional errors’ made ‘ on the face of the record’. This ground of review provides an exception to the rule (in Craig) that non jurisdictional errors of inferior courts are not reviewable.
•   Non jurisdictional errors are: errors of abuse of power and failure to consider
•   Old ground of distinguishing b/w juris and non juris errors only applies to inferior courts in a CL jurisdiction e.g. NSW bc under ADJR Act the distinction b/w juris and non juris errors has never existed.
•   In Craig’s case, the HC finally decided their position w.r.t UK. Tribunals are more like decision makers than courts. It was held that courts will review all errors of tribunals and decision makers and call them jurisdictional errors.
•   But note after this e.g. S157 court has tried to define jurisdictional error for a tribunal- ask wrong q, wrong test, relevant/irrelevant consideration- these are jurisdictional errors and the list isn’t exhaustive. This means everything could be jurisdictional- haven’t specified all grounds of review.

What is the record?
•   ‘all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings’ (Craig)
•   documents attached to reference to the Board, including all medical certificates are included in the record (Hockey v Yelland)

*Hockey v Yelland (1984) 157 CLR 124

Facts: Worker who slipped claimed compensation for a cerebral haemorrhage under Workers Compensation Act whereby specialised medical boards could determine questions arising under a claim. The Workers Comp board here referred it to the neurology board who found that the worker wasn’t injured within the meaning of the act. Clause in the WC Act said there was not right to appeal to a court. Claimant sought certiorari in SC QLD for error of law. Granted but then discharged by the Full Court. Claimant appealed.

Principle: the record is “no more than the documentation which initiates the proceedings (appeal and response to the appeal) and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication (decision)”. It excludes “evidence or any reasons given for the decision unless the determination itself incorporates them by reference”. Privative clause doesn’t exclude ordering certiorari for excess of jurisdiction or error of law on the face of the record.

Held:
Gibbs CJ:
•   A provision that a decision is to be final doesn’t prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record.
•   Here “hearing and determination” related to the findings of fact- they didn’t exclude the court’s power to ascertain whether the decision was made in accordance with the law.
•   What is a record? The reference and attached documents- they initiate and are the basis of the determination.
Wilson J:
•   Writ of certiorari is here limited- appellant must show an error of law on the face of the record of the proceedings.
•   Determination, reference to tribunal and documents attached to the reference (medical records) constitute the record.
•   : the record excludes medical reports tendered by the claimant and notes of his oral examination by the board.
•   Reasons not incorporated in record unless specifically incorporated by the record.
•   HELD there was no error of law.

*Craig v State of South Australia (1995) 131 ALR 595

Facts: Accused person was granted a stay of proceedings until legal counsel was available to them on the basis that A could not be given a fair trial without legal representation.

Issues:
•   Dispute as to whether the District Court of SA is, when exercising its criminal jurisdiction, an ‘inferior’ court;
•   Whether the trial judge’s decision to grant the stay was affected by an error which would warrant the issue of the prerogative writ of certiorari.

Principle► Courts will only review jurisdictional errors of inferior courts and non jurisdictional errors that appear on the face of the record. They will continue to review all errors of decision makers and tribunals as these bodies are essentially doing the same thing. Jurisdictional errors will be defined more narrowly for inferior courts than administrative decision makers.
Outcome: errors of law committed by administrators or administrative tribunals are more likely to be found to be jurisdictional than if the error was committed by an inferior court of law
Scope of certiorari
•   Quash an order on the basis of jurisdictional error, failure to adhere to procedural fairness, fraud (broad- includes ‘bad faith’) and error of law on the face of the record.
•   Where jurisdictional error, procedural fairness or fraud are the grounds of the writ, court can look at any relevant material presented. Where it’s error of law on the face of the record- court restricted to the record of the inferior court.
Problems:
What constitutes jurisdictional error?
•   If an inferior court mistakenly asserts or denies the existence of jurisdiction, or
•   If it misapprehends or disregards the nature or limits of its functions or powers in a case where it recognises that jurisdiction exists.
•   Applies either to a positive act, or a failure to act.
•   Maybe acting outside jurisdiction if it does something it lacks authority to do. E.g. will be error if it acts in a situation where a requirement or event is needed to occur prior to its acting, and it does so, even when it would normally have jurisdiction in the area.
•   Or where ignores a statutory requirement that a matter must be taken into account/ignored.
•   Or where it misconstrues the statute so it misunderstands the nature of its functions/ extent of power. In this case it will be hardest to distinguish b/w JE and mere error in the exercise of jurisdiction. This is from the distinction b/w administrative tribunals and courts of law.
•   Unless statute deems otherwise, it is presumed that administrative tribunals don’t have authority to determine questions of law, or make decisions other than in accordance with the law. (stronger here bc of constitution- sep powers)
•   Admin tribunal- error of law causes it to identify a wrong issue, ask the wrong questions, ignore relevant material, rely on irrelevant material or make an erroneous finding or reach a mistaken conclusion and the tribunal’s exercise of power is thereby affected. Here it is jurisdictional error as it exceeds its authority or powers.
•   Inferior court- generally identifying relevant issues, questions and determining what is relevant evidence is part of the discharge of ordinary jurisdiction. IF there is visible mistake in this, may be overturned on appeal as an error of law. It will not, however, be jurisdictional error.
The face of the record- what is the error
•   Record should be read narrowly
•   Historically, the record has been confined for the purposes of certiorari to, documents initiating and defining the matter in the inferior court and the impugned order or determination.
•   Has been recent support for an expansive approach which also includes the reasons for decision and a complete transcript of proceedings (‘modern record’).
•   Rejected for policy reasons- financial burden would increase for minor litigation- something that should be left to statute.
•   it also has no basis in precedent or statute, and would create a basis for general appeal where the transcript and reasons would be scrutinised for any error. Doesn’t include transcript, reasons and evidence.
•   Despite the transcript and reasons not being included in ‘the record’, they can still be included by reference (i.e. are included if the tribunal chooses to include them- but not if the reference is merely introductory or incidental). If say we make decision “for these reasons”- reasons not included. Unless specifically included in the record. Note: why would the courts add reasons to the record where it is going to open their decision to review??
•   Where the inferior court/tribunal has prepared the record, can be amended to discard material which shouldn’t have been included.
•   Where the record hasn’t been prepared or is incomplete, the court can if possible, construct/complete the record.
Was there jurisdictional error in the present case?
•   Comes down to resolving the issue of how the reasoning in Dietrich should be applied. Jurisdiction involved dealing with a mixed question of law and fact- largely of fact, requiring discretion. If there was an error in the judge asserting the Dietrich reasoning, the error was within jurisdiction.
Was there an error on the face of the record?
•   The record doesn’t comprise the transcript of proceedings, nor the reasons for judgement. Thus there was no error on the face of the record for the purposes of certiorari.
Further cases: Commissioner for Motor Transport v Kirkpatrick (No 2)
* Kirby: that to omit the transcript of proceedings and reasons for the decision from the modern concept of the record would be to succumb to ‘formalism triumphant’.

2.2.3 ADJR Act

ADJR Act ss5(1)(c), (1)(f) and 6(1)(c), (1)(f)

S5 a party can apply for judicial review of a decision on the following grounds:
(1)(c)the person who purported to make the decision did not have jurisdiction to make the decision.
(1)(f) the decision involved an error of law, whether or not the error appears on the record of the decision.
S6- application for review of conduct relating to a decision
(1)(c) person engaged in the decision making doesn’t have jurisdiction to make the decision;
(1)(f) an error of law has been, is being or is likely to be made.

Cts are not there to adjudicate on findings of fact – however the determination which may be made based on the finding of fact vitiated by error of law ss5(1)(f)and ss6(1)(h) or made without evidence ss5(1)(h) and ss6(1)(h) may be reviewable. ABT v Bond

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2.3 Jurisdictional Fact

•   Jurisdictional facts are pre-existing conditions written into the legislation which much exist before a person can exercise their jurisdiction. i.e. they are a condition precedent to the jurisdiction.
o   Ground developed at common law
o   To review decisions of ordinary decision makers
•   For review on the basis of JF, there must be absence, not insufficiency, of evidence.
•   Juris facts can be written into law as subjective (option of decision maker) or objective (decision maker’s opinion doesn’t matter). If want to expand powers should phrase it subjectively. BUT courts will still review subjective ones to see whether reasonable.
•   Problem: jurisdictional facts aren’t easily distinguished from non jurisdictional questions of fact and law. Finding that the tribunal has asked itself the wrong question is close to the finding of relevant and irrelevant considerations.
•   Reviewing JF, the court engages in ‘de novo’ review. This makes their reluctance to deliberate on the merits of a decision dubious. Legality/merits distinction.
•   Having identified a jurisdictional fact, the court then decides for itself whether the fact existed at the relevant time, and to this end receives fresh evidence which, subject to the rules of evidence, may be more or different from the material considered by the administrator.
•   This is a much more intrusive standard of review than asking more deferentially whether the administrator acted reasonably having regard to the material actually or constructively before the administrator. The latter standard was used by the Land and Environment Court in Timbarra’s case (see below) but the Court of Appeal reversed the Land and Environment Court by identifying the question (whether a species impact statement was required) as one of jurisdictional fact.

*Corporation of the City of Enfield v Development Assessment Commission (“The commission”) (2000) 199 CLR 135

Facts: Collex applied pursuant to the Development act to add to an existing waste treatment plant on its land. Pursuant to the regs, the Commission has to assess proposed development, by firstly determining the nature of the development, and assessing it on that basis. Applications for “special industry” (including waste) were seen as ‘non-complying’ and by this, the Commission was not to grant a provisional development plan unless there is either s35(3)(a)consent from the Minister and the council (where the authority is the commission), or s35(3)(b) in any other case, the commission concurs in granting consent. Enfield contended it was a case of (a) as it fell w/in a “general industry zone” and thus had requirements of public notice and consultation specified in s38 of the act. If this applies, there is a right of parties to appeal to the environment court. If otherwise, there was no right to appeal. The commission held that it was not a ‘non-complying’ devt (this is the jurisdictional fact), and  did not require the council’s consent, nor public notice.
Enfield’s complaint: the provisional devt plan consent was invalid as the commission had erred in determining the ‘jurisdictional facts’ upon which the power to grant the consent rested (i.e. that it didn’t classify the devt as “special industry”). An injunction was granted by the supreme court on the grounds that it should have been classified as a ‘special industry’ within the definitions in the regs (would have produced offensive odours).
If was special industry- Enfield council had to concur in decision to go ahead with the special industry application. Concur (council must say yes) vs. consult (get the council’s views and take into account). Here council lost right to concur. Rights of the community to engage in notice and comment.
Appeal from the single judge decision, heard by the full court who dismissed Enfield’s claim.

•   Issue: was the commission’s decision without jurisdiction (ultra vires)? Was there an error as to jurisdictional facts?
•   This is not an instance of judicial review, but in any case, judicial review and applications of declaration and injunction should be treated the same way.

Principle: Courts have the power to determine independently whether the requisite jurisdictional facts existed before the decision maker. If they did not exist, the decision will be without jurisdiction. the finding of a JF is an objective test- need to have been found reasonably. If the evidence remains substantially the same, the decision of the tribunal was one requiring specialist knowledge and has been confirmed by the federal court, then the court can decide what weight to give to the facts, having regard to these considerations. If the evidence is different, the court can determine the facts for itself.

Held:
Jurisdictional facts:
•   Jurisdictional fact “that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion”. Here it is the criterion, satisfaction of which mandates a particular outcome.
•   Finding of juris fact is an objective test- even where decision maker given discretion- still need to find it reasonably
•   Commission got it wrong on juris fact- an objective juris fact.
•   Where court finds there are juris fact- if wrong, automatically results in invalidity.
•   Discusses the Chevron (or deference) Doctrine- from the US- which states that where there are competing interpretations of a statutory provision with each capable of demonstrating a reasonable representation of legislative intent, they will be each acceptable findings. Problem that the decision maker may mould the facts to support the desired end. Makes questions of law a policy choice.
•   Question here- if courts don’t like getting involved in facts- we should adopt US doctrine of deference. Where legis is ambiguous and admin agency interprets legis- courts ought to defer to that interpretation.
•   Court rejected the doctrine of deference; especially where it’s a jurisdictional matter. Not whether legis is ambiguous, the question is does the commission have jurisdiction. Courts realise they are finding facts, can result in invalidity, but insist they have the right to determine whether the facts are present.
•   This is different to the US case which is not directed at competing interpretations of statute, but to jurisdictional fact finding at administrative and judicial levels.
•   The opinion of the tribunal should be given differing weight depending on the circs (incl the field in which the tribunal operates, criteria for appointment of members, materials upon which it acts and the extent to which its decision are supported by a process of reasoning.
•   Court must determine whether the tribunal acted within jurisdiction: “if the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the commission’s knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of those factors is absent”. Remains “the same” means substantially thee same.
NB: unreasonableness- even when facts subjectively phrased want to find the decision maker reasonably made the decision.

Timbarra Protection Coalition Inc v Ross Mining NL (1999)

Facts: Council accepted an application w/o an environmental impact statement.

Held: Courts don’t undertake to find things are juris facts lightly.

Principle: whether there is a JF will be ascertained by reference to legislative intent, the overall scheme of the legislation, whether its an essential preliminary to the exercise of power, the impact on 3rd parties and the inconvenience of declaring the decision invalid due to the non satisfaction of the JF.

Mark Aronson, “The Resurgance of Jurisdictional Fact” (2001) 12 PubLR 17 (SR p555)
•   Aronson sees the court’s increasing tendency to review administrative decisions based on jurisdictional facts (facts required by statutes) and whether they were missing as dangerous.
•   A pure question of fact cannot constitute a jurisdictional fact, and is not reviewable.
•   Review of jurisdictional fact occurs where a court looks at a fact that necessary for a decision to be made and determines its correctness.

Constitutional Issues
•   All constitutional facts are determinable by the HC.
Considering the statutory context
•   Administrative and judicial decision making and fact finding processes are different. I.e. they received different evidence, are bound by different requirements as to evidence, have different procedures for making decisions, time period taken also has an effect. They are likely to come to differing conclusions.
•   Jurisdictional fact generally not seen as part of the merits of the case. This distinction is, however, becoming blurred. E.g. Enfield suggests can rehear evidence.
•   Judicial review needs to respect legislative choices; in general cant review facts because it is not their role- to assume this as a function would result in an administrative nightmare. If there is ambiguity, judicial review should lean towards the interpretation that would result in the least adverse regulatory consequences.

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Looking for signs of legislative intent
•   Look to legislative intent.
•   It’s rare, however, for the act to expressly stipulate whether its factual requirements are essential to a decision’s validity.
•   3 ways of looking at pre-existing conditions that must exist before power is exercised:
o   ‘Directory’ i.e. invalidity does not necessarily result from breach of the law and need to discover Parliament’s intent.
o   ‘Subjective’ bc existence of fact relies upon authority’s opinion or satisfaction that fact exists i.e. seems to give authority final word but courts still challenge reasonableness of authority’s finding that the fact exists- not its correctness.
o   ‘Objective’ gives the courts final word on whether the fact exists.
•   JF is the only ground of illegality based on authority being wrong ‘in fact’
•   Must look at the style of drafting in the Act, nature and qualifications of the decision maker, extent to which there is an evaluative component to the fact, interests at stake.
Timbarra reasoning; to make a fact jurisdictional the act must:
1.   condition the power on the fact’s existence; and
2.   condition the validity of the decision maker’s act or conduct upon that existence.
•   NB: without 2. the factual requirement is merely directory. Courts have said need to look at intent. Project Blue Sky- condition the ABA must look at int treaties- directory. Juris fact must be a mandatory one- if it is consequence is automatic invalidity. If directory- unlawful but not invalid.
•   Timbarra- the Act must require ‘objectivity’ (the fact must exist in fact) and ‘essentiality’ (Parliament intends its absence to invalidate action under the Act). This is a question of construction.
•   BUT in reality- fact finding involves the court substituting its opinion for that of the original decision maker.
•   Permitting review where a fact is to merely exist gives courts great powers of determination.
•   Aronson doesn’t like the subjective/objective distinction in drafting being a basis for deciding which decisions are reviewable. Easier to classify a fact as jurisdictional where it is preliminary
•   Where there is a strong value judgement (or political issue) involved in determining a fact, it should generally be less inclined to attract the jurisdictional label. That being said, the recent cases of Enfield and Timbarra go against this, allowing review of highly subjective facts.
•   Public consultation is becoming a more important role.
•   Determining jurisdictional facts is close to determining the merits
•   Where finding of fact relies on ‘satisfaction’ or ‘opinion’ its quite clear that whether the fact exists is for the authority’s not the court’s determination
•   Its often hard to tell whether the language is subjective or objective
•   If finding of the fact is pivotal e.g. Enfield then it will be a jurisdictional fact, especially if the act is framed objectively (participation rights are also important)
•   Perhaps if the issues are about human rights, the courts will treat them as jurisdictional
•   Courts still distinguish b/w whether they are reviewing court or tribunal or a decision maker give the court more latitude
•   So it seems as if courts are looking for overall importance of the fact to the overall design of the statutory scheme.
Dispensing with nullity
•   If there is a lack of jurisdiction then the decision is a nullity.
•   But ADJR and Migration Acts don’t really replicate the CL concept of a jurisdictional fact.
•   ADJR act- allows review of federal decisions by fed ct- not on the basis of jurisdictional fact.
•   Does allow review on the basis the decision maker had no jurisdiction to make the decision, was not authorised to make it, or involved an error of law.
•   Maybe in s5(1)(h)- no evidence provision, but it appears there is no equivalent ground in the act.
•   Also not included in migration act
•   Also see injunctive relief under s75(v) constitution as in Project Blue Sky where no invalidity.
•   There may be moving away from the use of JF as a basis of review
Conclusion
•   Although JF reviews are not strictly on the merits; they practically involve some consideration of the case’s merits.
•   Consequences of JFs are so inconvenient and counterproductive that they are rarely an attractive interpretive option.
•   Redetermination of a fact should never be undertaken lightly, especially where fill merits review goes to a tribunal.

2.3.2 “SUBJECTIVE” Jurisdictional Facts

* R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

Facts: S23 of the Stevedoring Industry Act allowed cancellation of registration of an employer if, after an inquiry it was satisfied that the employer was unfit to continue to be registered as an employer or had acted in a manner whereby the proper performance of stevedoring operations had been interfered with. To the notice of the board came two incidents of minor infringements of employees (drunkenness and AWOL). A delegate of the board commenced an inquiry as to whether the comp was unfit to continue to be registered as an employer and whether it had acted in a manner whereby the proper performance of stevedoring operations had been interfered with. In fact the ships being worked on were discharged on time and the Stevedoring ops were not impaired. The Comp sought an order to prevent the inquiry from going ahead.

Principle: Ascribing an incorrect legal meaning to a word or applying the wrong test in the course of making a decision is an error of law.

Held:
•   ‘where after such enquiry the board was satisfied’
•   the board must understand correctly the test provided
•   purpose of the tribunal must not be misconstrued.
•   board had made findings of fact that were of no relevance to decision. Trying to tie discipline of workers to the comp. The board had misconceived the scope s23 and the meaning of ‘unfit.’ The ct held that unfitness was a quality denoting deficiencies of an organisation or its equipment, lack of skill, knowledge or experience of management, employment practices and the like. These are entirely different from various faults or omissions which foreman may make from time to time. A writ of prohibition was entered.
•   distinction b/w a mere sufficiency of evidence to support a fact and the absence of the facts required to exercise the power.
•   Hinges on the meaning of ‘unfit’. Legal meaning of the word. Court needs to determine the legal meaning. If get it wrong it’s an error of law. Question; what kind of error is it?
•   Test: tribunal is applying the wrong test or isn’t really satisfied of requisite matters. Its misdirected itself in law. It’s interpreting the legis incorrectly just by applying the wrong test.
•   Applying wrong test/asking wrong question may also be a jurisdictional error. Bc in doing that misinterpret legislation.
MIMA; ex parte S20 Case ???
Facts: Sri Lankan national claiming refugee status. He was arrested, invited friends over, didn’t realise they were Tamil tigers. So he was arrested with them. He was tortured. Dentist testified his wounds were result of beatings and evidence of internal hernias and evid of person who saw him. He was not believed by decision-maker, therefore decision maker did not even consider the corroborating evidence. This was jurisdictional error of fact. Migration Act says if minister feels the asylum seeker meets the prescribed requirements, he must grant them a protection visa.

Note: the “if X exists” precondition is a jurisdicitional fact. However, here the question of whether X exists has been committed to the satisfaction or opinion of the minister (Subjective). Thus the usual grounds for reviewing the exercise of discretion apply, inlcluding extreme irrationality. If on the other hand, a statute requires the existence of the precondition to be objectively determined, an exceptional ground of review is available.

Held: Reasoning process of minister was so illogical. Although she wasn’t satisfied, she should have taken into account corroborating evidence.

Ct said where there is a subjective JF, it is required that the fact finding process is reasonable. An allegation that someone is acting illogically does not mean they are unreasonable and therefore decision-maker didn’t fail the JF test. There is a difference between irrationality and unreasonableness. Need to show Ct something more than illogicality to show that a JF is satisfied. Cant apply a ground of review process that belongs under “abuse of power” section to the issue of jurisdiction i.e. cant apply Wednesbury unreasonableness to jurisdiction.

Para 89: The dentist found fractures on front 6 teeth. Swollen hands and lips. Tribunal member rejected this evidence and didn’t believe the refugee applicant.

2.3.3 ADJR Act
ADJR Act ss5(1)(c), (h) 5(3) and 6(1)(c), (h), 6(3)
S5 a party can apply for judicial review of a decision on the following grounds:
S6 application for review of conduct relating to a decision can succeed if:
(1)   (c)the person who purported to make the decision did not have jurisdiction to make the decision;
(h) there was no evidence or other material to justify the making of the decision;
(3) grounds specified in (h) aren’t made out unless
(a)   decision maker is required by law to reach the decision only if a particular matter was established, and there was no evidence or other material to establish this; i.e. jurisdictional fact not there or
(b)   the person made the decision on the basis of existence of a particular fact and that fact does not exist.