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 makerīƒ  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.