Judicial College of Victoria Journal

Volume 05 | 2017 The Age of Statutes Judicial College of Victoria Journal Volume 05 | 2017

Citation: This journal can be cited as (2017) 5 JCVJ.

Guest Editor: The Hon Chief Justice Marilyn Warren AC

ISSN: ISSN 2203-675X

Published in Melbourne by the Judicial College of Victoria.

About the Judicial College of Victoria Journal The Judicial College of Victoria Journal provides practitioners and the wider legal community with a glimpse into materials previously prepared for the Judicial College of Victoria as part of its ongoing role of providing judicial education. Papers published in this journal address issues that include substantive law, judicial skills and the interface between judges and society. This journal highlights common themes in modern judicial education, including the importance of peer learning, judicial independence and interdisciplinary approaches.

Submissions and Contributions The Judicial College of Victoria Journal welcomes contributions which are aligned to the journal’s purpose of addressing current legal issues and the contemporary role of judicial education. Manuscripts should be sent electronically to the Judicial College of Victoria in Word format.

The Judicial College of Victoria Journal uses the Australian Guide to Legal Citation: http://mulr.law.unimelb.edu.au/go/AGLC3.

Disclaimer The views expressed in this journal are those of the authors and do not necessarily reflect the views of the Judicial College of Victoria and the Editor. While all care has been taken to ensure information is accurate, no liability is assumed by the Judicial College of Victoria and the Editor for any errors or omissions, or any consquences arising from the use of information contained in this journal.

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© 2017 Judicial College of Victoria, Level 7, 223 William Street, Melbourne VIC 3000 Copyright of the material appearing in this journal remains vested in the authors unless otherwise indicated. Judicial College of Victoria Journal Volume 05 | 2017 1

Judicial College of Victoria Journal

Volume 5 | 2017

2 Editorial The Hon Chief Justice Marilyn Warren AC

4 The Principle of Legality The Hon Murray Gleeson AC QC

15 The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness The Hon Justice Chris Maxwell AC

25 Judicial Review and Jurisdictional Fact The Hon Justice Timothy Ginnane

45 Principles of Statutory Interpretation Eamonn Moran PSM QC

57 Jurisdictional Error since Craig Kristen Walker QC

Judicial College of Victoria Journal Volume 05 | 2017 2

Editorial

It has become routine to remark that we live in an age of statutes. Each year, the Victorian Parliament alone passes over 70 statutes. One must go back to 2002 to find Parliament passing fewer than 55 separate Acts. Through this process, vast areas of the common law have been codified and long-standing areas of statute are subject to frequent amendment. For this reason, the Judicial College of Victoria has, in partnership with Melbourne Law School, convened several seminars on statutory interpretation and judicial review in recent years. This edition of the JCV Journal draws from and collects together papers from those seminars over the past two years.

In accordance with conventional Constitutional principles, Parliament creates the laws, the Executive administers the laws and the Courts resolve disputes in accordance with the law. Giving meaning to the laws is therefore a fundamental concern of the Courts. As former Chief Justice Murray Gleeson AC and former Chief Parliamentary Counsel Eamonn Moran PSM QC explain in their papers, courts operate on well-established assumptions about how they carry out this task of interpretation. These assumptions are known to Courts, to Parliaments and to Parliamentary drafters and provide a common language and frame of reference which aids the process of conveying meaning and promotes stability and certainty in the operation of laws.

In the field of judicial review, a question of first importance is ‘What does the statute require?’ It is only once this question is answered that a court can assess, in any meaningful way, whether an administrative decision maker has complied with statute and acted in accordance with law. It is for that reason that questions of jurisdictional facts and jurisdictional error are so important to the principled development and operation of administrative law. The insightful papers by the Honourable Justice Timothy Ginnane and Ms Kristen Walker QC will be valuable aides for law students, practitioners and judges grappling with these complex topics.

Finally, Justice Chris Maxwell AC looks at the principle of reasonableness in decision making and review of decisions. Courts are acutely conscious of the need to distinguish between process review and merits review, and to respect the area of decisional freedom appropriate for a first-instance decision maker. As Justice Maxwell explains, a proper appreciation of the limits of decisional freedom is essential both to review of administrative decisions as well as review of the exercise of judicial discretion.

As we recently said in Minister v Certain Children [2016] VSCA 343,

[W]e wish to make clear, in the interests of informed public discussion, that this Court (like the trial judge) is not concerned with, and expresses no view about, the merits of the decision. … That is a matter of policy for Government, which is accountable to the electorate for its decisions. Quite properly, the courts play no part in such decisions. Judicial College of Victoria Journal Volume 05 | 2017 3

The role of the Court in a case such as this is quite different. The function of judicial review is to ensure that Government operates according to law, that powers conferred on Ministers and public officials by statute are exercised within the legal limits fixed by Parliament. …

It is one of the foundations of our democratic society that the courts perform this supervisory role, and do so independently of Government and immune from political pressure. This is one of the guarantees of the rule of law.

Statutory interpretation and judicial review are key components of maintaining the rule of law in Australia, and so all those with an interest in that important principle will benefit from this edition of the JCV Journal. Judicial College of Victoria Journal Volume 05 | 2017 4

The Principle of Legality* The Hon Murray Gleeson AC QC†

Canons of construction guide courts in the exposition of the meaning of a legal text. In the case of a statute, the text is the formal expression by Parliament of its exercise of legislative power. In Singh v Commonwealth1 I set out my views on the significance of commonly used concepts such as text and context, purpose, and meaning when applied in this area, and I will not repeat what I said there. The interpretation of the text, where that is necessary for the resolution of a matter, is an exercise by the court of its judicial power. The legitimacy of the exercise depends upon the court’s exposition of meaning being based upon, and faithful to, the legislative text and established statutory and common law rules and principles of interpretation. Some of those rules and principles are relatively mundane. They have much in common with the boiler-plate provisions that may appear at the beginning or end of any complex legal instrument. Some are designed to facilitate brevity, or to provide reasonable solutions to difficulties that might have escaped the attention of a drafter. Others, however, serve a purpose of a different order.

In the 1995 edition of Statutory Interpretation (‘Cross on Statutory Interpretation’)2 the author, in a chapter headed ‘Presumptions’, referred to some presumptions which

operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate here as constitutional principles which are not easily displaced by a statutory text.3

The corollary, of course, is that these presumptions can be displaced by a statutory text. That follows from the nature of the exercise, which is one of interpretation, not judicial review of legislative action. It also follows that, subject to any relevant limits on its legislative power, Parliament can amend its legislation to overcome the effect of a particular interpretation. There may be practical political constraints on the exercise of this capacity, but the legal possibility is always there, and reinforces the legitimacy of what the courts are doing. The Constitution is the ultimate source of the power exercised by both branches of government.

A standard judicial formula for stating a presumption which may come into play in a decision about the meaning of a statute is to say of a certain outcome words to the effect that it will only be achieved by the use of language which is unmistakably plain. For example, a recent United States work on legal interpretation,4 one of whose authors was a Justice of the Supreme Court

* This article is based on a presentation delivered at the ‘Administrative Law in an Age of Statutes’ program held by the Judicial College of Victoria and Melbourne Law School in May 2015. † Former Chief Justice of the High Court of Australia. 1 (2004) 222 CLR 322, 331–7 [8]-[20]. 2 Rupert Cross, Statutory Interpretation (Butterworths, 3rd ed, 1995). 3 Ibid 165–6. 4 Antonin Scalia and Bryan A Garner, Reading Law: The Interpretation of Legal Texts (Thomson West, 2012). Judicial College of Victoria Journal Volume 05 | 2017 5

of the United States, includes as one canon of construction: ‘A statute does not waive sovereign immunity ... unless that disposition is unequivocally clear’.5 Another canon is said to be: ‘A statute presumptively has no retroactive application’.6 Another is: ‘A statute presumptively has no extraterritorial application’.7

A leading Australian text on statutory interpretation8 refers, by way of example, to a presumption that Parliament did not intend to exceed its constitutional bounds, a presumption that Parliament intended its legislation to operate territorially, and a presumption that Parliament did not intend to violate the rules of international law. The references to intention are metaphorical, and objective, but are apt to acknowledge the relationship between the legislative and judicial branches of government. Courts typically explain and justify a decision on the meaning of a legislative text in terms of their conclusion as to the intention of Parliament. By that, they do not mean that they have attempted to read the minds of individual parliamentarians.

Parliament is an institution which exercises its power through the promulgation of a written instrument; a statute. The legal meaning of the statute, when disputed, is discovered in accordance with principles which, in certain defined respects, pay regard to aspects of process and context which, if applied to a single person, or a small group of people, could properly be regarded as subjective. When applied to an institution, however, they must be regarded as guides to an objective conclusion. Courts and citizens are bound by the verbal command promulgated by Parliament; not by an obligation of obedience to the will or intention of some individual. The text of the parliamentary command is often the product of negotiation and compromise. The choice of language may be the work, in whole or in part, of people who are outside Parliament. Parliamentarians themselves may have different levels of interest in, or understanding of, the text. A problem of interpretation may later arise for the very reason that, at the time legislation was enacted, nobody thought about the problem.

Lord Hoffmann pointed out inAttorney General of Belize v Belize Telecom Ltd9 that the objective meaning of a legal instrument, that is, the meaning which it would convey to a reasonable person, ‘is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body is deemed to have been the author of the instrument’. Understood in that light, the language of intent pervades this area of discourse. There is, however, a need for care. The subjectivity of the criminal law’s approach to intention where that is an element of a criminal charge brought against an individual is to be contrasted with the objectivity with which the law refers to the common intention of the parties to a contract between two corporations, or the intention of Parliament. In the latter cases, the subjective wishes or objectives of individuals who have participated in a negotiating or drafting process have merged in a formal legal text, and

5 Ibid 281. 6 Ibid 261. 7 Ibid 268. 8 D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 7th ed, 2011) ch 5. 9 [2009] UKPC 10 (18 March 2009) [16]. Judicial College of Victoria Journal Volume 05 | 2017 6

it is the meaning the text would convey to a reasonable person that has binding force. The reason for this, in the case of statutes, is plainly expressed in s 15AB of the Acts Interpretation Act (1901) (Cth), where reference is made to what is properly understood as an aspect of the rule of law, that is to say, ‘the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act’.

That legislative warning is given in the context of a provision dealing with the use of extrinsic materials as aids to interpretation. It stems from the fact that ordinary citizens reading a statute may not have access to the extrinsic materials in question. It is similar to the explanation that Lord Devlin gave for the common law’s caution in using pre-contract negotiations as an aid to contractual interpretation. Commercial contracts often have important consequences for the rights and interests of third parties, who can read the text of the contract, but may have no access to information about pre-contract negotiations.10

Common law statements of principles about contractual interpretation, or statutory interpretation, are commonly accompanied by references to intention. As Lord Hoffmann said, courts conventionally express their decisions in terms of the intention of the parties to a contract, or the intention of Parliament. That reflects the fact that the source of contractual rights and obligations is the contractual capacity of the parties, exercised in the formation of an agreement; not the will of the judge. It reflects the fact that the force of a legislative command is the constitutional authority of Parliament; not the will of the judge. However, in each case a process of formation has resulted in an authoritative text which takes effect in a wider legal context. That context includes rules and principles of interpretation, some of which were originally developed by judges and are now themselves restated or reinforced by statute.

As an introduction to some issues concerning what has come to be called the principle of legality, it is convenient to mention, by way of example of a general proposition made earlier, the canon of construction that legislation is presumed not to interfere with vested proprietary rights. In Clunies-Ross v Commonwealth11 the majority in the High Court, having pointed out that the Act to be construed in that case conferred on the executive a power of compulsory acquisition of land, said:

an executive power of acquisition of land for a public purpose is different in nature to a legislative power of a national Parliament to make laws with respect to the acquisition of land for a purpose in respect of which Parliament has power to make laws ... An executive power to deprive a citizen of his property by compulsory acquisition should be construed as being confined within the scope of what is granted by the clear meaning or necessary intendment of the words by which it is conferred.12

10 Patrick Bacon Devlin, The Enforcement of Morals (Oxford University Press, 1965) 44. 11 (1984) 155 CLR 193. 12 Ibid 201. Judicial College of Victoria Journal Volume 05 | 2017 7

To similar effect, inMabo v Queensland (No. 2) (‘Mabo’),13 Deane and Gaudron JJ referred to the common law rule of statutory interpretation requiring that ‘clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights to property without fair compensation’.

In Commonwealth v Hazeldell Ltd,14 Griffith CJ and Rich J said the necessary intent had to be ‘expressed in unequivocal terms incapable of any other meaning’. This was described as a ‘settled rule of construction’.

This principle is often expressed in terms of presumed intention. For example, in the passage from Mabo referred to above, the judgment went on to say that executive acts of the Crown under Crown lands legislation ‘will likewise be presumed not to have been intended to derogate from the native title’.15

These are normative propositions, as the passage in Cross on Statutory Interpretation states.16 The authorities cited in Clunies-Ross commence with Magna Carta.17 In 1215, there was no Parliament in England. England never had a written Constitution, but Magna Carta came to be regarded as a source of certain principles that had constitutional status in the broadest sense of that term.

The rationale of the proposition that a grant of power, to the Executive Government, to acquire private property by compulsion ‘should be construed as being confined within the scope of what is granted by the clear meaning or necessary intendment’18 of the statute is in the policy of the law, not in an estimation of the propensities of parliamentarians. The common law’s respect for private property is not necessarily matched by that of politicians of all political persuasions. However, the force of the principle does not depend upon the colour of the party currently in political ascendancy. By the standards of some people who regard themselves as progressive, it reflects a socially conservative norm. Yet it is a long-established canon, well-known to Parliament’s own legal advisers. Furthermore, it is a canon of construction, not a principle of judicial review, and within its own terms it yields to ‘clear meaning or necessary intendment’.19

A related example may be taken to illustrate the point, also relevant by way of lead-up to the principle of legality, that canons such as this can alter their content, or perhaps even disappear, over time. In other words, the policy of the law is not static. Until some time in the second half of the twentieth century some judges approached the interpretation of taxing Acts as though they were prime examples of legislation interfering with rights of private property, and so must be strictly construed. As recently as 1980, the Chief Justice of the High Court said:

13 (1992) 175 CLR 1, 111. 14 (1918) 25 CLR 552, 563. 15 (1992) 175 CLR 1, 111. 16 Cross, above n 2. 17 (1984) 155 CLR 193, 201. 18 Ibid. 19 Ibid. Judicial College of Victoria Journal Volume 05 | 2017 8

It is for the Parliament to specify, and to do so, in my opinion, as far as language will permit, with unambiguous clarity, the circumstances which will attract an obligation on the part of the citizen to pay tax.20

On the other hand, in the following year, two members of the High Court said that, in revenue statutes as in other cases, the courts must ‘ascertain the legislative intention from the terms of the instrument viewed as a whole’.21 They said taxing Acts were subject to ‘the general principles governing the interpretation of statutes’.22 That change in judicial approach to revenue statutes probably reflects a societal shift that occurred over the last century, especially after World War II, although I am old enough to remember a time, before rationalization of income tax rates, when some political activists used the slogan: ‘Taxation is theft’. Very few people now see it that way, and courts no longer treat it as being in the same conceptual category as confiscation of property. This is a clear example of a development in the policy of the law reflecting a change in values.

That brings me to what came to be called, towards the end of the twentieth century, the principle of legality. In accordance with the established technique of the common law, the highest courts in Australia and England justified it by reference to much older authority; but it is convenient to begin with a series of cases at the end of the twentieth century.

In 1994, in Coco v The Queen (‘Coco’),23 the High Court of Australia had to decide whether certain Queensland legislation authorized entry on premises for the purpose of installing listening devices in circumstances where the entry would otherwise have constituted an unlawful trespass. The legislation undoubtedly authorized certain kinds of invasion of privacy but it did not expressly deal with situations where they would amount to trespass. The Court reasoned that the right of an occupier to exclude other people from the occupied premises is a fundamental common law right; statutory authority to engage in what would be a derogation of that right must be granted in clear and unambiguous language; general words are insufficient to authorize interference with basic rights and immunities which are the foundations of our freedom; and so the question should be answered in the negative. The result would have been otherwise if, for example, it could have been shown that the substantive provisions of the Act would have been incapable of practical operation unless the Act was wide enough to permit trespass, but that was not the case.

The plurality referred to a statement in the House of Lords by Lord Browne-Wilkinson, in 1985,24 that the presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required. They went on to provide a justification of the requirement which reflects its normative character. They said:

20 Federal Commissioner of Taxation v Westraders Pty Ltd (1980) 144 CLR 55, 59 (Barwick CJ). 21 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner (1981) 147 CLR 297, 320 (Mason and Wilson JJ). 22 Ibid 323. 23 (1994) 179 CLR 427. 24 Ibid citing Wheeler v Leicester City Council [1985] AC 1054, 1065. Judicial College of Victoria Journal Volume 05 | 2017 9

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.25

The plurality also approved26 the following statement by Brennan J in a 1987 case:

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.27

They described this as a ‘presumption against the modification or abrogation of fundamental rights’,28 and said that:

curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.29

The reference to ‘curial insistence’ was an addition of a further rationale to that which had been given in 1908 in Potter v Minahan30 where, referring to a passage in the 4th edition of Maxwell on Interpretation of Statutes,31 O’Connor J said:

[it is] in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.32

Bearing in mind the objectivity of the concept of legislative intention, the reference there to improbability is not to be understood as a factual prediction but as an expression of a legal value. That was a view I expressed in Al-Kateb v Godwin,33 and which I have had no cause (and, since 2008, no opportunity) to revise. If it were otherwise, the addition of the further, ‘curial insistence’,34 rationale in Coco35 would have been incongruous.

I will return to the matter of the repeated use of the adjective ‘fundamental’, noting in passing that a presumption against legislative abrogation or curtailment of rights of any kind would exceed the expectations of even the most aggressive exponents of judicial power.36 Parliaments regularly

25 (1994) 179 CLR 427, 437. 26 Ibid. 27 Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. 28 (1994) 179 CLR 427, 437. 29 Ibid 437–8. 30 (1908) 7 CLR 277. 31 Peter Benson Maxwell, Maxwell on the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905). 32 (1908) 7 CLR 277, 304. 33 (2004) 219 CLR 562, 577 [20]. 34 (1994) 179 CLR 427, 437–8. 35 (1994) 179 CLR 427. 36 For a valuable and learned examination of this topic see Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372. Judicial College of Victoria Journal Volume 05 | 2017 10

create, modify, and abrogate all manner of rights, and courts routinely interpret their legislative output in that respect by reference to the ordinary principles of interpretation. (What was said earlier in respect of revenue laws illustrates the point).

In 1998, in the House of Lords in R v Secretary of State for the Home Department, Ex parte Pierson,37 Lord Steyn used the expression ‘the principle of legality’38 to describe the canon of construction referred to in the passage in Maxwell on Interpretation of Statutes which had been taken up in Potter v Minahan.39 He said he took the phrase from the 1996 edition of Halsbury’s Laws of England,40 where it was used in connection with the rule of law, and related it to the passage in Cross on Statutory Interpretation which is quoted at the outset of this paper. Referring also to Dicey’s Law of the Constitution,41 Lord Steyn said that legislative power is taken to be exercised ‘in a spirit of legality’.42

In 2000, in R v Secretary of State for the Home Department; Ex parte Simms,43 Lord Steyn referred to what both he and Lord Browne-Wilkinson had said on this topic in R v Secretary of State for the Home Department, Ex parte Pierson44 and added:

Literally construed there is force in the extensive construction put forward [by the Home Secretary]. But one cannot lose sight that there is at stake a fundamental or basic right, namely the right of a person to seek through oral interviews to persuade a journalist to investigate the safety of the prisoner’s conviction and to publicise his findings in an effort to gain access to justice for the prisoner. In these circumstances even in the absence of an ambiguity there comes into play a presumption of general application operating as a constitutional principle as Sir Rupert Cross explained in successive editions of his classic work … This is called ‘the principle of legality’.45

In the same case Lord Hoffmann agreed with Lord Steyn and said:

I add only a few words of my own about the importance of the principle of legality in a constitution which, like ours, acknowledges the sovereignty of Parliament. Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which arise in countries where the power of the legislature is expressly limited by a constitutional document.46

37 [1998] AC 539. 38 Ibid 587. 39 (1908) 7 CLR 277. 40 Lord Hailsham of St Marylebone, Halsbury’s Laws of England (Butterworths, 4th ed, 1996). 41 A V Dicey, Law of the Constitution (Gryphon Editions, 10th ed, 1959) 414. 42 [1998] AC 539, 587. 43 [2000] 2 AC 115. 44 [1998] AC 539, 573, 575, 587, 590. 45 [2000] 2 AC 115, 130. 46 Ibid 131. Judicial College of Victoria Journal Volume 05 | 2017 11

It is worth noting that his Lordship’s reference to parliamentary sovereignty is in the context of the United Kingdom. There never has been, within Australia, a sovereign Parliament. The colonial legislatures were all of limited law-making capacity, and colonial courts were accustomed to dealing with challenges to the validity of colonial laws. Those challenges were of a kind that could never have been made in the United Kingdom. Following Federation, the Commonwealth Constitution limits the law-making power of Federal and State Parliaments.

The similarity between the above passage from the speech of Lord Hoffmann and what had been said by the High Court of Australia in Coco47 is evident. The assumption that there is a political cost in overriding individual rights may be somewhat generous, although it is civilized. Legislation of that character is often justified on the ground that it enhances public security. A preference for public security over individual rights and freedoms is sometimes politically popular. I was once struck by an observation, attributed by the novelist Umberto Eco in The Prague Cemetery48 to a nineteenth century character, to the effect that the best antidote to liberalism is universal suffrage. In Australia we have both universal suffrage and compulsory voting, and the combination does not always guarantee a preference for individual rights over collective safety. I doubt, for example, whether the Queensland Government responsible for the legislation in Coco49 would have lost many votes by authorizing police to trespass upon the properties of people suspected of being criminals in order to plant listening devices. Legislation of various State Parliaments aimed at ‘bikie’ gangs has not always survived judicial scrutiny, but I doubt that it involved a political cost. The same may be said of anti-terrorism legislation and some legislation restricting immigration.

The problem of democratic legitimacy commonly arises when courts invoke principles of a constitutional character in apparent restraint of legislative activity. That is why it is important to stress that what is involved here is interpretation, not judicial review, and that ultimately, as in all issues of interpretation, the text controls the outcome. The discussion of the principle of legality by all the members of the High Court in Lee v New South Wales Crime Commission50 recognized and respected the need to maintain the legitimacy of the process in which a court engages in any exercise of statutory interpretation . In Al-Kateb v Godwin51 I thought the case was a proper one for the application of the principle, but not in Electrolux Home Products Pty Ltd v Australian Workers’ Union.52

The use of the word ‘fundamental’ to qualify the rights covered by the principle, although it appears in virtually all the leading judicial statements on the topic, has been called in question.53 It is useful to note the rights involved in some of the leading cases in which the principle has been

47 (1994) 179 CLR 427. 48 Umberto Eco, The Prague Cemetery (Paragon, 2012). 49 (1994) 179 CLR 427. 50 (2013) 251 CLR 196; see also X7 v Australian Crime Commission (2013) 248 CLR 92. 51 (2004) 219 CLR 562. 52 (2004) 221 CLR 309. 53 Cf Momcilovic v The Queen (2011) 245 CLR 1, 46 [43] (French CJ) with J J Spigelman, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769, 781. Judicial College of Victoria Journal Volume 05 | 2017 12

applied. Potter v Minahan54 concerned what O’Connor J described as the right of every British subject born in Australia, and whose home is in Australia, to remain in, depart from, or re-enter Australia as and when he thought fit, unless there was in Australia a positive law to the contrary. The concluding words of that description of the right contain a significant qualification. If today an Australian citizen departed from Australia in order to join in a certain kind of warlike activity he or she might well find a positive law as a barrier to free return. InCoco 55 the right in question was of the kind once characterized by the aphorism that an Englishman’s home is his castle. In the case of Simms56 the right was of access to justice by a prisoner.

In the United Kingdom, courts have had to consider the relationship between the principle of legality and s 3 of the Human Rights Act 1998 (UK). Chief Justice French referred to some of these cases in a paper published in a recent number of the Australian Law Journal.57 In some Australian jurisdictions, including Victoria, a similar question may require decision. Lord Hoffmann said:58

Just as the ‘principle of legality’ meant that statutes were construed against the background of human rights subsisting at common law … so now, section 3 requires them to be construed against the background of Convention rights.

The concept of ‘human rights subsisting at common law’ has a distinguished legal history, but part of the reason why some Parliaments have codified rights in Charters or Conventions is their fluidity. InBennion on Statutory Interpretation: A Code (‘Bennion on Statutory Interpretation’)59 the author, in formulating a code of statutory interpretation, refers to specified rights or interests that should not be interfered with by state power except under clear authority of law. They include: the physical liberty of the person; religious freedom; freedom of assembly and association; freedom of speech; property and other economic interests; status and reputation; privacy; rights of legal process.60

Reference was made earlier to changes in the judicial approach to the interpretation of taxing Acts. That is an example of the common law reflecting a change in societal values. The extent to which economic interests, including property, have the legal status of human rights subsisting at common law may be affected by the social context. The same may be true of privacy. In recent times the common law has experienced some difficulty in setting the bounds of the right of privacy, and technological and other developments have complicated the task.

One change in legal context that has occurred since 19th century expressions of the principle of interpretation with which we are concerned is the enormous increase in the range of legislation. Modern parliaments have undertaken to legislate about so many topics that were previously left

54 (1908) 7 CLR 277. 55 (1994) 179 CLR 427. 56 [2000] 2 AC 115. 57 Chief Justice Robert French, ‘The Courts and the Parliament’ (2013) 87 Australia Law Journal 820. 58 R (Wilkinson) v Inland Revenue Commissioners [2005] 1 WLR 1718, 1723 [17]. 59 Oliver Jones and Francis Alan Roscoe Bennion (ed), Bennion on Statutory Interpretation: A Code (LexisNexis, 6th ed, 2013). 60 Ibid 749–76. Judicial College of Victoria Journal Volume 05 | 2017 13

to the common law that modern courts spend most of their time applying Acts of Parliament. There is now no such thing as lawyer’s law; and a general presumption against legislative change to the common law would be incongruous. Judicial expressions of the principle of legality are not themselves a legislative text, and may reflect times that have changed. Adaptability to change is a source of strength, not weakness. The modern emphasis on human rights as compared with economic interests exemplifies this adaptability.

This capacity for change is reflected in a passage from a 1969 report of the United Kingdom Law Commission On the Interpretation of Statutes:

Particular presumptions of intention will ... be modified or even abandoned with the passage of time, and with the modification of the social values which they embody.61

The High Court most recently referred to the principle of legality on 15 April 2015 in Independent Commission Against Corruption v Cunneen.62 The dissenting judge, Gageler J, gave a warning with which no-one would disagree. He said:

Unfocussed invocation of the common law principle of construction sometimes now labeled the ‘principle of legality’ can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy.63

The preservation of the normative force of the principle of construction is accepted as a value in that passage, and predictability of application is plainly desirable. It was noted earlier that there are a number of canons of construction, widely accepted, under which courts require a certain consequence to be dictated by clear words or necessary intendment. Any such canon could be challenged on grounds of legitimacy. Why is any kind of legislation treated differently from others by reason of its subject matter? Why should the courts give a cautious interpretation to penal statutes and a liberal interpretation to welfare statutes? There is, I think, an answer to that question, but it is one that may be more likely to appeal to a lawyer than to a legislator. Nevertheless it is undoubtedly correct to point out that when courts declare that certain subjects will attract what might be described as a protective approach to interpretation they need to pay careful regard to the consideration that the concept of a liberal democracy has two sides to it, both of which are important.

I have earlier referred to the provenance of the label ‘the principle of legality’. Not all commentators are happy with it. The author of Bennion on Statutory Interpretation prefers to deal with the topic under the rubric: ‘Principle against doubtful penalisation’, which is said to be a ‘principle of legal policy’.64 To the extent that any principle of interpretation embodies legal policy declared by

61 The Law Commission and the Scottish Law Commission, On the Interpretation of Statutes, Report No 21 and 11 (1969) 19 [34], cited in Bennion, above n 59, 807. 62 (2015) 256 CLR 1. 63 Ibid 35–6 [88]. 64 Oliver Jones and Francis Alan Roscoe Bennion (ed), Bennion on Statutory Interpretation: A Code (LexisNexis, 6th ed, 2013) 749. Judicial College of Victoria Journal Volume 05 | 2017 14

judges then it is open to the objection that unelected judges are attempting to fetter legislative action. The application of the principle will need to be justified on the basis of reason and authority.

Australian experience prompts a reflection upon a particular aspect of what Lord Hoffmann put as a rationale for the principle of legality. He referred (as the High Court of Australia had also referred) to the desirability of obliging Parliament to face squarely the implications for fundamental rights and freedoms of certain kinds of legislation. In Australia, (and, I am sure, elsewhere) certain subjects sometimes attract what might be described as legislative excess.

The parliamentary process makes no provision for an institutionalised Devil’s Advocate. What parliamentarian wants to be heard in opposition to legislation aimed at, for example, terrorism? And, as noted earlier, it would be naïve to think that there is a political price to pay for interference with fundamental rights and freedoms.

Where the invocation of the principle of legality requires a Parliament to define with greater precision the objective of legislation which affects fundamental rights and freedoms then it promotes the rational and effective pursuit of that objective. Judicial College of Victoria Journal Volume 05 | 2017 15

The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness* The Hon Justice Chris Maxwell AC†

I. Introduction

Appropriately for this seminar, the topic of unreasonableness raises both an administrative law issue and a statutory interpretation issue. As many of you will know, important new light was shed on this topic by the 2013 decision of the High Court in Minister for Immigration and Citizenship v Li (‘Li’).1

In his illuminating commentary on Li, Associate Professor Leighton McDonald of the ANU has pointed out that this was the first time in many years that the High Court had invalidated an administrative decision on account of its unreasonableness.2 (The decision in question was a procedural one. The Migration Review Tribunal had refused to adjourn its hearing to enable the visa applicant to obtain further material).

Associate Professor McDonald has commented:

Li’s case thus provides administrative lawyers with a sighting of the ‘rare bird’ of unreasonableness in solo flight. More importantly, the plurality inLi did not merely apply the unreasonableness ground of review; they reformulated it.3

I will return to the question of reformulation later. The purpose of this paper is to suggest that, properly understood, the unreasonableness ground is neither as rare a bird as it has been conventionally understood to be, nor as broad as the plurality in Li might be taken to suggest.

The propositions which I will seek to make good are as follows:

1. Wednesbury4 unreasonableness is the reflex of the implied legislative intention that statutory powers be exercised reasonably.

2. This ground of review will be made out when the court concludes that the decision fell outside the area of decisional freedom which that legislative assumption authorises,

* This paper was presented at the ‘Administrative Law in an Age of Statutes’ program held by the Judicial College of Victoria and Melbourne Law School in February 2016. A later version of this paper is published in the March 2017 edition of the Public Law Review. † President of Victorian Court of Appeal. 1 (2013) 249 CLR 332. 2 Leighton McDonald, ‘Rethinking Unreasonableness Review’ (2014) 25 Public Law Review 117, 117, n 2. The last occasion was said to have been Council of the City of Parramatta v Pestell (1972) 128 CLR 305. 3 Ibid 117. 4 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) LGR 635 (‘Wednesbury’). Judicial College of Victoria Journal Volume 05 | 2017 16

that is, outside the ‘range’ within which reasonable minds may differ as to the correct or preferable decision.

3. The test of unreasonableness is whether the decision was reasonably open to the decision-maker in the circumstances of the case. To say that the decision was ‘not reasonably open’ is the same as saying that ‘no reasonable decision-maker’ could have made it.

4. Wednesbury unreasonableness is encompassed within the ‘residuary’ category of error in House v The King.5 It amounts to a conclusion that there was an error in the making of the decision, even though no specific error can be identified

5. In sentence appeals, the conclusion that a sentence is ‘manifestly excessive’ is a conclusion that the sentencing decision was both unreasonable in the Wednesbury sense and ‘unreasonable or manifestly unjust’ in the House v the King sense.

II. The Statutory Implication of Reasonableness

All three judgments in Li cite with approval the following statement by Brennan CJ in Kruger v Commonwealth:

[W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.6

As Gageler J pointed out, the first of the two authorities which Brennan CJ cited for this proposition was the Wednesbury decision itself.7 Earlier, in Attorney-General (NSW) v Quin, Brennan J explained that the ground of Wednesbury unreasonableness rested on the implication of reasonableness:

Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action.8

In Re Refugee Review Tribunal; Ex parte Aala,9 Gaudron and Gummow JJ affirmed the connection between Wednesbury unreasonableness and the statutory implication of reasonableness. The previous year, in Abebe v Commonwealth, Gaudron J had expressed the view (obiter) that

[I]f a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should … be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.10

5 (1936) 55 CLR 499. 6 (1997) 190 CLR 1, 36 (citation omitted). See also Li (2013) 249 CLR 332, 351 [29], 362 [63], 370 [88]. 7 Li (2013) 249 CLR 332, 370 [88]. The other was Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (‘Browning’). 8 (1990) 170 CLR 1, 36 (‘Quin’). 9 (2000) 204 CLR 82, 100–101 [40]. 10 (1999) 197 CLR 510, 554 [116]. This statement was cited with approval by Crennan and Bell JJ in Minister v SZMDS (2010) 240 CLR 611, 645 [123]. Judicial College of Victoria Journal Volume 05 | 2017 17

According to Gageler J in Li, it is this link with the statutory implication of reasonableness which ‘explains the nature and scope of Wednesbury unreasonableness in Australia’.11 Moreover, his Honour said, it is an explanation ‘that is well-understood by legislatures and courts alike and that has “stood the test of time”’.12

I must confess that this analysis commended itself to me, not only for its logical and analytical force but because it vindicated a view I had expressed — in a minority judgment — in Mastwyk v Director of Public Prosecutions!13

In that case, the question was whether the decision of the police officer to require the taking of a breath test was unreasonable (such that the driver’s refusal to take the test did not constitute an offence). I expressed the view that, given the implied assumption of reasonableness in the exercise of the power, it was for the person challenging the decision to show that it was unreasonable in the Wednesbury sense. My colleagues in the majority concluded that — in the particular statutory context — an affirmative requirement of reasonableness should be implied and that, as a result, the onus was on the prosecution to establish reasonableness affirmatively.14

All of the judgments in Li affirm the cardinal notion that, within the parameters defined by the statute (as to relevant and irrelevant considerations and as to the purpose for which the power is conferred), there is ‘an area of decisional freedom … [w]ithin … [which] reasonable minds may reach different conclusions about the correct or preferable decision’.15

Any decision made within that area of decisional freedom will satisfy the statutory implication of reasonableness.

The question for consideration is how the limits of that area are to be defined. First and last, the question is one of construction of the statute conferring the power. As the plurality in Li said:

The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.16

III. How is ‘Unreasonableness’ to be Defined?

In Wednesbury itself, the test of invalidity was whether the decision was ‘so unreasonable that no reasonable authority could ever have come to it’.17

11 Li (2013) 249 CLR 332, 370 [89]. 12 Ibid. 13 (2010) 27 VR 92, 97 [19]–[22]. 14 Ibid [70]–[75]. 15 Li (2013) 249 CLR 332, 351 [28] (French CJ); see also 363 [66] (Hayne, Kiefel and Bell JJ), 375 [105] (Gageler J). See, eg, Klein v Domus Pty Ltd (1963) 109 CLR 467, 473; Browning (1947) 74 CLR 492, 504–5; Quin (1990) 170 CLR 1, 35–36. 16 Li (2013) 249 CLR 332, 364 [67]. 17 Wednesbury [1948] 1 KB 223, 230. Judicial College of Victoria Journal Volume 05 | 2017 18

In Li, Gageler J said that judicial determination of Wednesbury unreasonableness was constrained by two principal considerations:

One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.18

I pause to point out that, given the use of words of emphasis (‘so unreasonable that …’), it is hardly surprising that the test has been viewed as applicable only to extreme cases. I will attempt to show the error in that view.

The approach of the plurality in Li was rather different. In their Honours’ view:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it.19

Instead, their Honours said, the judgment of Lord Greene MR in Wednesbury

may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. 20

This approach was said to be

recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided.21

Rather more radical, in my view, was the following statement in the plurality judgment:

The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that ‘all these things run into one another’.22 Further, in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (‘Peko-Wallsend’), Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

In a recent paper, the Commonwealth Solicitor-General, Justin Gleeson SC, referred to this part of the plurality judgment as meaning that:

legal unreasonableness now comprises any or all of: 1. specific errors of relevancy or purpose; 2. reasoning illogically or irrationally;

18 Li (2013) 249 CLR 332, 376 [108]. 19 Ibid 364 [68] (Hayne, Kiefel and Bell JJ). 20 Ibid. 21 Ibid (citation omitted). 22 Ibid 365 [72] (citations omitted). Judicial College of Victoria Journal Volume 05 | 2017 19

3. reaching a decision which lacks an evident and intelligible justification such that an inference of unreasonableness can be drawn, even where a particular error in reasoning cannot be identified; or 4. giving disproportionate or excessive weight — in the sense of more than was reasonably necessary — to some factors and insufficient weight to others.23

The plurality’s conclusion — that the decision under review was unreasonable — was more narrowly based, however. After noting what Mason J in Peko-Wallsend24 described as ‘the close analogy between judicial review of administrative action and appellate review of a judicial discretion’, their Honours returned to the subject of inferred unreasonableness, in these terms:

As to the inferences that may be drawn by an appellate court, it was said in House v The King25 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.26

Importantly for present purposes, the plurality here equated Wednesbury unreasonableness — as a ground of review of administrative decisions — with the ‘unreasonably or plainly unjust’ category of error (the ‘residual category’) in House v The King, which is concerned with appellate review of judicial discretion. And it was this last category of error — inferred error — which in Li led to the Tribunal’s decision being set aside.27

The position post-Li was, in my respectful view, accurately summarised by the Full Federal Court in Minister for Immigration and Border Protection v Singh.28 The Court (Allsop CJ, Robertson and Mortimer JJ) said that the judgments in Li identify ‘two different contexts’ in which the concept of unreasonableness is used:

Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process … However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ … calls ’an area of decisional freedom’: it has the character of a choice that is arbitrary, capricious or without ‘common sense’. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking ‘an evident and intelligible justification’.29

23 Justin Gleeson, ‘Taking Stock after Li’, in Debbie Mortimer (ed) Administrative Justice and its Availability (Federation Press, 2015) 36–7. 24 Li (2013) 249 CLR 332, 366 [75], quoting Peko-Wallsend (1986) 162 CLR 24, 41–2. 25 (1936) 55 CLR 499, 505. 26 Li (2013) 249 CLR 332, 367 [76] (emphasis added). 27 (2013) 249 CLR 332, 369 [85]. 28 (2014) 231 FCR 437. 29 Ibid 445 [44]. See also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, 4–5 [6]–[7] (‘Stretton’). Judicial College of Victoria Journal Volume 05 | 2017 20

It seems clear enough that the Court in Li did not intend that the categories of jurisdictional error be subsumed under an umbrella ground of unreasonableness. It must be assumed that unreasonableness in the second, outcome-focused, sense will continue to be a discrete and distinctive ground of judicial review.

IV. Restating the Test: ‘Not Reasonably Open’

The Wednesbury test (‘no reasonable decision-maker’) has been described as the ‘lunatic’ standard30 or as limited to ‘what is in effect an irrational, if not bizarre decision’.31

In my view, these epithets are based on — and have tended to perpetuate — a misapprehension of what is meant by ‘unreasonableness’ in this context of discretionary powers. My contention is that to describe a decision as being one to which no reasonable person in the position of the decision-maker could have come is no different from saying that the decision wasnot reasonably open to the decision-maker.

The point may be illustrated by the developing jurisprudence of the Victorian Court of Appeal on what is known as the ‘manifest excess’ ground of appeal against sentence. Traditionally, the label ‘manifestly excessive’ has been applied to a sentence which falls outside the permissible sentencing range for the offender and the offence.32

As the majority in R v MacNeil-Brown33 pointed out, the notion of ‘range’ is a familiar one in the area of appeals from the exercise of judicial discretion.34 It means, quite simply, the area of decisional freedom referred to earlier, within which reasonable minds may differ as to the correct or preferable conclusion.

My early experience of the ‘manifest excess’ ground of appeal was that it was being used as a pretext for rearguing the plea in mitigation. So, in order to emphasise the stringency of this ground of appeal, I said in R v Abbott:

The ‘range’ for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.35

30 Mark Aronson, ‘The Growth of Substantive Review: The Changes, their Causes and their Consequences’ in John Bell, Mark Elliott, Jason Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 9. 31 Li (2013) 249 CLR 332, 364 [68]. 32 See, eg, AB v The Queen (1999) 198 CLR 111, 160 [130]; Kentwell v The Queen (2014) 252 CLR 601, 615 [35]. 33 (2008) 20 VR 677. 34 Ibid 679–80 [7]–[8]. See, eg, Norbis v Norbis (1986) 161 CLR 513, 518, 540. 35 (2007) 170 A Crim R 306, 309 [14] (emphasis added). Judicial College of Victoria Journal Volume 05 | 2017 21

My colleague, Justice Mark Weinberg, subsequently pointed out to me that the phrase ‘no reasonable sentencing judge’ was much more pejorative than we meant it to be. So we reconsidered the formulation and concluded that the same point could be made, without in any way detracting from the stringency of the test, by expressing it as a conclusion that the sentencing decision was ‘not reasonably open in the circumstances of the case’.

That has now become the accepted criterion both for manifest excess36 and, on a Crown appeal, for manifest inadequacy.37 The position is the same in South Australia.38

At first blush, to say that a decision was ‘not reasonably open’ does not appear to be nearly as drastic a conclusion as that ‘no reasonable judge’ or ‘no reasonable decision-maker’ could have come to that decision. But analytically, in my view, they are indistinguishable.

The key lies in the notion of the area of decisional freedom. As I have said, in the field of sentence appeals it is referred to as ‘the sentencing range’, that is, the range within which reasonable minds may differ. That range encompasses every decision to which a decision-maker acting reasonably — a ‘reasonable decision-maker’ — could have come, having proper regard to the statutory framework and to the relevant features of the case under consideration.

A decision which falls outside that area can therefore be described, interchangeably, as:

• a decision to which no reasonable decision-maker could have come; or

• a decision which was not reasonably open in the circumstances.

This interchangeability of terminology is well illustrated by the Court of Appeal’s recent decision in R and M v Independent Broad-Based Anti-Corruption Commission.39

The terms are, in short, synonymous. Interestingly, the criterion of ‘reasonably open’ was used by at least one member of the High Court on the last occasion pre-Li when the unreasonableness ground succeeded.40

If this is right, of course, it means that Wednesbury unreasonableness is not — and was never intended to be — applicable only to the irrational or the capricious or the bizarre. At the same time, as the Court of Appeal has emphasised, the ‘not reasonably open’ test remains a stringent one, fully respecting the scope of the judge’s discretion.

I turn finally to the residuary category of error inHouse v The King.

36 Clarkson v The Queen (2011) 32 VR 361, 384 [89]; Boulton v The Queen (2014) 46 VR 308, 333 [102]. 37 DPP v Karazisis (2010) 31 VR 634, 662–3 [127]. See also McPhee v The Queen [2014] VSCA 156 (24 July 2014) [10]– [11]. 38 R v Peake (2002) 221 LSJS 407, 357 [28]. 39 (2015) 47 VR 148, 164 [46]-[48], 170 [73]. See also Stretton v Minister (2016) 237 FCR 1, 7 [17], 8–9 [21]. 40 Parramatta City Council v Pestell (1972) 128 CLR 305, 323 (Menzies J). Judicial College of Victoria Journal Volume 05 | 2017 22

V. The Residuary Category of Error in House v The King

In Li, both the plurality and Gageler J drew attention to what Mason J said in Peko-Wallsend about the ‘close analogy’41 between judicial review of administrative decisions and appellate review of decisions in the exercise of a judicial discretion.42 In that case, Mason J also said:

both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.43

In Li, Gageler J went on to say that, in judicial review of administrative action, there was:

a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion ‘if upon the facts it is unreasonable or plainly unjust’, or if ‘failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court’. It is therefore fair to say that ‘[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature’.44

The phrase ‘unreasonable or plainly unjust’ used here is taken from the classic statement in House v The King of the principles governing appeals from judicial discretions:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.45

The link between House v The King and Wednesbury was made explicit some five years before Li, in the Macedonian Orthodox Church case.46 The High Court was there dealing with an appeal from an exercise of the judicial discretion to give advice to a trustee. The plurality (Gummow ACJ, Kirby, Hayne and Heydon JJ) said:

The question is what the particular statute or rule of law conferring the discretion contemplates as relevant or irrelevant factors. If it mandates that particular weight be given to one factor, that mandate must be obeyed. But, in the absence of any such mandate, the question of what weight

41 Peko-Wallsend (1986) 162 CLR 24, 41–2. 42 Li (2013) 249 CLR 332, 366 [75]. 43 Peko-Wallsend (1986) 162 CLR 24, 41. 44 Li (2013) 249 CLR 332, 376–7 [110]. 45 (1936) 55 CLR 499, 505 (emphasis added). 46 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 112 [137]–[138]. Judicial College of Victoria Journal Volume 05 | 2017 23

the relevant factors should be given or what balance should be struck among them is for the person on whom the discretion is conferred, provided no error of law is made, no error of fact is made, all material considerations are taken into account and no irrelevant considerations are taken into account, subject to the possibility of appellate intervention if there is a plain injustice suggesting the existence of one of the four errors just described even though its nature may not be discoverable, or if there is present what has come to be known as ‘Wednesbury unreasonableness’.47

It is now well-established that, in sentence appeals, the ground of ‘manifest excess’ (and in a prosecution appeal, ‘manifest inadequacy’) invokes the last category in House. In Markarian v The Queen, the High Court said:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.48

In Wong v The Queen, Gaudron, Gummow and Hayne JJ noted the two different types of errors discussed in House:

First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.49

Appellate intervention is thus justified either when specific error is shown or when the case falls into ‘the residuary category of error’. The latter might be described as the ’unreasonableness’ or ‘implicit error’ category.

It is clear from Markarian v The Queen and Wong v The Queen that manifest excess in sentencing is regarded, by the present High Court, as an instance of implicit error. That is, the conclusion that a sentence is ‘manifestly excessive’ is a conclusion that:

there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.50

In other words, ‘unreasonable or plainly unjust’ in House v The Queen is equivalent to ‘not reasonably open’, that is, Wednesbury unreasonableness. The following passage from the judgment of Redlich JA in Ashdown v The Queen illustrates the convergence of the two: 51

47 Ibid 112 [138] (emphasis added). 48 (2005) 228 CLR 357, 370 [25] (emphasis added). See also DPP (Vic) v O’Neill [2015] VSCA 325 (2 December 2015) [104]. 49 (2001) 207 CLR 584, 605 [58] (emphasis added). See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 353, 360 (Dixon J). 50 Wong v The Queen (2001) 207 CLR 584, 605 [58]. 51 (2011) 37 VR 341, 402 [177] (emphasis added). Judicial College of Victoria Journal Volume 05 | 2017 24

An appeal against the exercise of the sentencing discretion is governed by established principles … Thus the requirement that the appellate court identify or infer error in the manner in which the discretion was exercised. The principles applicable are those stated in House v The King. Appellate intervention cannot be justified unless either specific error can be identified in the manner in which the discretion was exercised or a failure to properly exercise the discretion can be inferred because the decision arrived at was plainly unjust or unreasonable … In the case of an unjust or unreasonable decision, though the error is not discoverable, the exercise of the discretion may be reviewed on the ground that a substantial wrong has occurred. Where such a wrong is alleged, it is usually described as a sentence that is manifestly excessive or inadequate. To infer error in the latter case, it must be demonstrated that the sentence imposed was beyond the range of sentences that was reasonably open in a sound exercise of the sentencing discretion. Judicial College of Victoria Journal Volume 05 | 2017 25

Judicial Review and Jurisdictional Fact* The Hon Justice Timothy Ginnane†

I. The Importance of Jurisdictional Facts

To consider jurisdictional facts, you need to know how to recognise them, and that they extend to things that you may not recognise as facts. You also need to know what to do if you encounter them and how they may affect a case and the evidence that will be admissible.

Isaacs J, in an industrial law case, graphically described the impact that the jurisdictional facts can have in the following terms:

In the present intricate state of legislation, awards brought into this Court and under cover of that section subjected to the attacks of destructive criticism of all kinds, and sometimes meticulous technicalities suggested by ingenious legal minds, who as the law stands are only doing their duty to those they represent, have very much the same chance of escape as had the victims in the arena of the ancient Roman Colosseum. … It invites thousands to a peaceful journey on a Lusitania, and then provides the torpedo that destroys the vessel.1

Questions of jurisdiction, including whether facts are jurisdictional, involve fundamental issues as to the allocation of power and the review of its exercise. The greater the number of facts which are regarded as jurisdictional, the smaller the decision-maker’s discretion. The determination of whether a fact is jurisdictional affects the balance in respect of the particular decision between administrative autonomy and judicial control.2

Of course, we depend on the existence of jurisdictional facts all the time in performing our roles as judges. In hearing a bail application, there must be an accused held in custody. An applicant seeking to remove a caveat must first prove that a caveat is lodged on title. To describe the universe in which jurisdictional fact rules, it is useful to quote the passage from Professor Craig’s Administrative Law which was quoted by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS:

* This article is based on a presentation delivered at the ‘Administrative Law in an Age of Statutes’ program held by the Judicial College of Victoria and Melbourne Law School in February 2016. The style of the delivery has, in part, been preserved. I was greatly assisted in preparing this paper by Victorian Supreme Court trial division researchers Sarah Zeleznikow, Brett Harding and Holly Jager. † Justice of the Supreme Court of Victoria. 1 Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation [No 1] (1930) 42 CLR 527, 550-1, cited in Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) 254. 2 Mark Elliott (ed), Beatson, Matthews and Elliott’s Administrative Law (Oxford University Press, 4th ed, 2011) 65. Judicial College of Victoria Journal Volume 05 | 2017 26

The statutory conditions thus laid down may be factual, legal or discretionary in nature. A classical 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.3

Jurisdictional facts deserve recognition and consideration in any discussion on judicial review and the interpretation of statutes. Professor Jaffe of Harvard Law School, in an influential article that has been cited by the High Court, traced the history of the consideration of ‘jurisdictional facts’ in English cases back to the 1600s and said:

The doctrine of jurisdictional fact was the key notion out of which in the seventeenth century the common-law system of judicial review emerged and in terms of which it finally crystallized. … [T]he concept is almost entirely functional: it is used to validate review when review is felt to be necessary. Even though review of all errors of law may be more easily rationalized and be preferable, the somewhat lesser review provided by the jurisdictional-fact concept is better than nothing.4

Professor Jaffe referred to two ancient cases which concerned the right of the College of Physicians in England to supervise and punish doctors for malpractice. In Dr Bonham’s Case5 in 1610, the doctor, having been imprisoned for contempt of the College, was permitted in an action for trespass to traverse the College’s finding that he was ‘insufficient and inexpert in the art of medicine’.6 Lord Coke stated that unless so able, he would have no remedy ‘neither by writ of error or otherwise, and they [the censors of the College of Physicians] are not made judges, nor a Court given them, but have an … authority only to do it’.7

But in 1700, in the case of Groenvelt v Burwell,8 Dr Groenvelt was fined and imprisoned by the censors of the College of Physicians of London for administering noxious medicine. The doctor brought an action for false imprisonment arguing that he could challenge that finding of malpractice in court. Holt CJ took a different approach stating:

[I]t is plain, that the censors have judicial power. It is true, that some persons have power to commit, who are not Judges, as the constable may commit for an affray committed in his presence; and he is liable for an action if the fact is false. The difference is, that he does not commit for punishment, but for safe custody.9 and

3 (2010) 240 CLR 611, 619 quoting Paul Craig, Administrative Law (Sweet & Maxwell, 6th ed, 2008) 478-9. 4 Louis L Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70Harvard Law Review 953, 963. 5 (1572–1616) 8 Co Rep 113b; 77 ER 646. 6 Jaffe, above n4, 954. 7 Dr Bonham’s Case (1572-1616) 8 Co Rep 113b; 77 ER 646, 657. 8 (1792) 1 Ld Raym 454, 467; 91 ER 1202, 1211. 9 Ibid 471; 1214. Judicial College of Victoria Journal Volume 05 | 2017 27

[T]he Judges do not understand medicines sufficiently to make a judgment.10

These are abiding issues; that sentence, ‘the judges do not understand … sufficiently to make a judgement’ captures fundamental considerations that may arise in any case that concerns jurisdictional facts. Two questions that may arise are: did the Parliament or the executive leave this particular fact finding exercise to the tribunal or decision-maker for determination or can the court determine afresh findings of fact that are best made by specialists?

To take another example, in 1925 the High Court had to decide whether Henry Hutchinson could challenge the decision of the newly formed Architects Registration Board that he had not:

for a period of at least one year before the first day of January … [1923] been bona fide engaged in Victoria in the practice of the profession of an architect and had made application for registration within six months after that date.11

Mr Hutchinson had successfully challenged the decision in the Supreme Court.12 The High Court overturned that decision and reinstated the determination of the Architects Registration Board. But the High Court was evenly divided as to the right to review the Board’s decision in the courts. Knox CJ and Starke J, whose opinions prevailed, considered that the Board was entrusted with authority and jurisdiction to investigate and determine whether Mr Hutchinson’s circumstances fell within s 7(1)(c) and, as no appeal was given by the Act, the Board’s determination, given honestly and without reference to extraneous circumstances, was final.13 Isaacs J and Rich J considered however that the decision of the Board on the question of fact was open to review as jurisdictional facts.14 Isaacs J explained his conclusion in the following passage addressing the Board’s contention that the law had entrusted the determination of the matter to it:

It is the first contention that is so generally important. Its inherent fallacy is in assuming that the law has entrusted the Board with determining whether an applicant answers the description. Where matters are entrusted to the Board, as, for instance, age and character, or elsewhere where so stated, the opinion of the Board is one of the constitutive or conditional facts on which the Legislature rests its directions. But when stating a description free from such a stipulated opinion of the Board, then it is the actual fact that is important and not the Board’s opinion whether it exists or not.15

The distinction between statutory provisions that contain jurisdictional facts and those that do not may be difficult to determine, but that does not mean that the distinction is not real. It is useful to recall Gleeson CJ’s observation that the fact that the distinction between review on the merits and judicial review was not always clear-cut did not invalidate the distinction. His Honour said:

[B]ut neither is the difference between night and day. Twilight does not invalidate the distinction between night and day; and Wednesbury unreasonableness does not invalidate the distinction between full merits review and judicial review of administrative action.16

10 Ibid 471; 1214. 11 The Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404, 404 (Knox CJ, Isaacs, Rich and Starke JJ). 12 R v Architects’ Registration Board; Ex parte Hutchinson [1924] VLR 463. 13 The Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404, 407 (Knox CJ), 412 (Starke J). 14 Ibid 408–9 (Isaacs J), 410 (Rich J). 15 Ibid 409. 16 Chief Justice Murray Gleeson AC, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, 11 (citation omitted). Judicial College of Victoria Journal Volume 05 | 2017 28

II. What is a Jurisdictional Fact?

In Gedeon v Commissioner of the New South Wales Crime Commission, the High Court stated:

Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.17

French CJ in a later case summarised the different categories of jurisdictional fact in the following passage:

The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be ‘a complex of elements’. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, 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. 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.18

III. Other Names for Jurisdictional Facts

Jurisdictional facts may be described by other names including essential, preliminary and threshold facts, conditions precedent, precedent facts, jurisdictional preconditions and even constitutional jurisdictional facts.

IV. The Colonial Bank of Australasia v Robert Willan

I will next refer to a significant Privy Council decision in 1873 that has been influential in a number of areas of jurisdiction, including jurisdictional facts.

In 1871, Victoria was flush with gold and mining companies. Melbourne was on its way to becoming ‘marvellous Melbourne’ of the 1880s and to become the original capital of the new Commonwealth of Australia. It had a Court of Mines, the Chief Judge being a judge of the Supreme Court.

The Colonial Bank of Australasia, which in 1918 was acquired by the National Bank of Australia, was a significant financial institution of the colony and a frequent litigant, including in a number of cases which went to the Privy Council.

In 1866, the Bank sued the Golden Gate Gold Mining Company, registered at Wood’s Point, which at that time was a town on the Goulburn River in the Shire of Mansfield. Gold was discovered there in 1861, and by 1866 the area had become a thriving town. The Bank’s action did not proceed, but

17 (2008) 236 CLR 120, 139 [43] (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ). 18 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 179–80 [57]. Judicial College of Victoria Journal Volume 05 | 2017 29

five years later, in 1871, it served a demand on the mining company for payment of £3,223 and it also served a notice to attend at the Wood’s Point courthouse two days later to show cause why a winding up order should not be made by the judge of the Court of Mines of the district. Two days later the Bank presented the petition to the judge, setting out the company’s indebtedness for the amount mentioned. The company did not appear. The judge, sitting as the Court of Mines, made a winding up order. The Bank proceeded with the winding up and later proved its debt at a creditors’ meeting.

The respondent, Mr Robert Willan, was a shareholder of the mining company. He sought a writ of certiorari to quash the winding up order arguing that it was improperly made, and had been obtained by fraud, for, first, the notice of the application was too short and secondly, there was no petitioning creditor’s debt. He argued that facts were concealed from the judge, and if he had known them, he would not have made the order.

The Court House at Woods Point, in the mining district of Beechworth, was about 120 miles distant from Melbourne, and in the month of November, 1871, the time required to travel from Melbourne to Wood’s Point by coach, the ordinary and quickest mode of conveyance, was 24 hours.

The Full Court of the Supreme Court of Victoria upon a return to a writ of certiorari to the Court of Mines considered that it could not decide that the notice given was too short, as that was a matter for the trial judge, but said that the shortness of the notice could not be overlooked when considering the other ground of the application. That other ground was described by Stawell CJ as that ‘the judge was imposed upon by the petitioning creditors’ in that relevant facts had not been disclosed. The company had no directors and no meeting of shareholders was called to sanction the debt. Stawell CJ further stated:

The real ground on which this application is opposed is, that it is not competent for the applicants to go behind the winding-up order. It is said they are bound by the order. In one sense that is no doubt true; the facts which the judge has found must be taken as true, but to maintain that it is not competent for a person to impugn the order by showing that the judge had no jurisdiction is a proposition that cannot be sustained. This Court had held directly the contrary, and its decision has not been questioned. We have held that it is competent to go behind a conviction, or order, or adjudication, or whatever it may be, and to show by affidavit that the proceedings are irregular and that the judge has no jurisdiction. Indeed, this objection was not very strongly pressed, although it constitutes the sole objection to the application.19

The Bank appealed to the Privy Council, where the matter was argued in 1874 for four days. The appeal was successful, the Privy Council rejected the finding that the Bank had withheld information from the Mining Court principally by applying authorities, including The Royal British Bank v Turquand (Turquand’s Case),20 that it was not incumbent on the Bank, before it advanced the money, to satisfy itself that all the proceedings of the mining company and its shareholders inter se had been strictly regular. The Privy Council’s decision was given by Sir James Colvile, who, after serving as Chief Justice of Bengal had returned to England and was appointed a member of

19 The Queen v Bowman; Ex Parte Willan (1872) 3 AJR 122, 124. 20 The Royal British Bank v Turquand (1856) 6 El & Bl 327; 119 ER 886. Judicial College of Victoria Journal Volume 05 | 2017 30

the Judicial Committee of the Privy Council.

The decision is of continued significance because of two matters considered in the Privy Council’s decision. First, in respect of privative clauses, Sir James Colvile stated:

The Mining Statute, 1865, created a Chief Judge of the Court of Mines, who was to be one of the Judges of the Supreme Court; and, by its 172nd section, gave an Appeal to him in lieu of the Appeal given by the repealed Statute to the Supreme Court; providing, by its 244th section, that ‘no proceedings under that Act should be removed or removable into the Supreme Court, save and except as thereinbefore provided.’21

He also stated:

It is, however, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that, in any such case, that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it.22

Of particular relevance to jurisdictional fact is Sir James Colvile’s statement that:

In order to determine the first it is necessary to have a clear apprehension of what is meant by the term ‘want of jurisdiction.’ There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject- matter, he properly entered upon the inquiry, but miscarried in the course of it. The Superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of Appeal, and the power to re-try a question which the Judge was competent to decide.23

This decision remains a leading case cited in Commonwealth countries on the question of judicial review, particularly in respect of decisions, which are protected by a privative clause. For instance in 2010, the High Court in Kirk v Industrial Court (NSW)24 referred to it for the proposition that, at the time of federation, it was accepted doctrine that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision.

This line of authority has contributed to the present constitutional requirement of fundamental importance to state courts that the minimum scope of judicial review, that they must be able to

21 The Colonial Bank of Australasia v Robert Willan (18774) LR 5 PC 417, 423. 22 Ibid 442. 23 Ibid 442–3 (emphasis added). 24 (2010) 239 CLR 531, 580 [97]. Judicial College of Victoria Journal Volume 05 | 2017 31

undertake, while capable always of statutory expansion within constitutional limits, is review for jurisdictional error.25

V. What is the Consequence of Finding a Fact to be a Jurisdictional Fact?

When a decision under judicial review contains a jurisdictional fact, the court has to determine the case on the basis of the evidence admitted into evidence before it and it is not confined to the evidence before the decision-maker. The court can take into account facts that were in existence, but could not have been known to the decision-maker when it made its decision.

As Justice Leeming has stated,26 jurisdictional fact review amounts to review de novo because the court determines for itself, perhaps on different evidence, whether the fact exists. It is merits review.

A. A Recent Statement of Jurisdictional Fact Principles - Saville v Hallmarc Constructions Pty Ltd

The next Victorian decision to which I refer, is the recent decision of Saville v Hallmarc Construction Pty Ltd,27 which was delivered on 27 November 2015 and conveniently summarises the principles of jurisdictional fact review. The Victorian Court of Appeal accepted that a finding in a security of payment case made under the Building and Construction Industry Security of Payment Act 2002 (Vic) by an adjudicator as to the reference date under the construction contract was ‘a jurisdictional fact’. The Court stated a number of propositions concerning jurisdictional facts.

First:

If … [a matter] amounts to a jurisdictional fact it is reviewable by a superior court to determine if the decision maker was correct in finding that the precondition of its jurisdiction was satisfied and thus that its statutory power was enlivened. Moreover, it is reviewable, in effect, de novo – that is, by reference to the evidence available to the reviewing court.28

When the court accepts that a particular fact is a jurisdictional fact, it can determine whether the fact exists.29

Secondly:

An assumption of jurisdiction when the statutory conditions precedent for the exercise of that jurisdiction are not satisfied is a jurisdictional error resulting, relevantly, in the decision becoming a nullity as a ‘decision involving jurisdictional error has

25 Margaret Allars, ‘The Distinction between Jurisdictional and Non-Jurisdictional Errors: Its Significance and Rationale’ in Justice Debra Mortimer (ed), Administrative Justice and Its Availability (Federation Press, 2015) 112-15. 26 Mark Leeming SC, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012) 62. 27 (2015) 44 VR 177 (special leave to appeal to the High Court refused) cf Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288 (25 September 2015) (special leave to appeal to the High Court granted) and the note in ‘Developments’ (2016) 27(1) Public Law Review 76, 81-2 about the different approaches as to whether an adjudicator’s determination of a reference date concerned a jurisdictional fact. 28 Saville v Hallmarc Construction Pty Ltd (2015) 44 VR 177, 199 [59] (citations omitted). 29 Ibid 199 [60]. Judicial College of Victoria Journal Volume 05 | 2017 32

no legal foundation and is properly to be regarded, in law, as no decision at all’.30

Thirdly:

Errors made with respect to a jurisdictional fact are thus to be distinguished from, relevantly, errors of fact-finding made by an administrative tribunal within the course of an enquiry properly embarked upon. Errors made within jurisdiction (non-jurisdictional errors) are unreviewable in a proceeding for judicial review save where the error amounts to an error of law on the face of the record.31

Fourthly:

it would be wrong to consider that a matter is only reviewable as a jurisdictional fact if there is no element of evaluation or expertise required. A jurisdictional fact is a ‘criterion, satisfaction of which enlivens the power of the decision-maker’.32 It may consist in a complex of elements, and establishing those elements may require evaluation.33

Fifthly:

Jurisdictional facts are thus not confined to events or circumstances which can be ascertained mechanically or by means of a straightforward calculation. Depending upon the statute that confers jurisdiction, jurisdictional facts may require evaluation and assessment.34

VI. What is a ‘Fact’ Within the Jurisdictional Fact Doctrine?

Part of the task of determining whether a matter is a jurisdictional fact is to determine whether the matter concerned is a fact.

Professor Jaffe considered that a fact is something that results from a finding, but that proof of the absolute existence of the fact is not required and wrote that:

In our earlier analysis of finding of fact we have made the point that a finding is an assertion that a phenomenon has existed, does exist, or will exist. The finding stands for the fact. It is not the fact itself. Its function is to provide an acceptable basis for the exercise of power. It is based upon a reasoned inference from evidence. A court cannot any more than any other human agency break down the barrier between appearance and reality. In short, the court can be wrong. If the validity of an exercise of power is to depend on the absolute existence of a fact there can be no exercise of power. But it does not follow that a court should never ascertain for itself the existence of a fact which is crucial to the exercise of power.35

In Timbarra Protection Coalition Inc v Ross Mining NL,36 Spigelman CJ said that:

facts, even where they are described as ‘objective’, do not have an existence independent of their identification by some process of human agency.37

30 Ibid 199 [61] quoting Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 31 Ibid 199–200 [62] (citations omitted) (emphasis omitted). 32 City of Enfield v Development Assessment Commission (2000) 199 CLR 135,148 [28]. 33 Ibid 210 [87]. 34 Ibid 212 [93]. 35 Jaffe, above n 4, 966. 36 (1999) 46 NSWLR 55. 37 Ibid 71 [85]. Judicial College of Victoria Journal Volume 05 | 2017 33

The High Court decision in 2011 in the Plaintiff M70/2011 v Minister for Immigration and Citizenship (‘Malaysian Declaration Case’)38 concerned the Commonwealth’s power to take persons seeking asylum to another country for determination of their refugee status. The Court decided that the Minister’s powers involved the existence of jurisdictional facts that it could review. The Court considered the distinction between a particular state of facts and observations of, or conclusions about, facts or behaviour.

Section 198A(3) of the Migration Act 1958 (Cth)39 stated:

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

A majority of the Court, Gummow, Hayne, Crennan and Bell JJ40 decided that the jurisdictional facts contained in s 198A(3) were not established and that the Minister’s declaration that Malaysia was a specified country for the purposes of s 198A of the Act was therefore made without power. Their Honours stated:

Rather, the issue determinative of the present litigation arises from construing s 198A(3) (a) and in particular sub-paras (i)-(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? Contrary to the submissions of the Minister and the Commonwealth, the matters stated in s 198A(3)(a)(i)-(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.41

VII. The Problem with Jurisdictional Facts

Sometimes, because of the consequences of a finding of jurisdictional fact, courts may decide to respect the factual findings of the tribunal or administrative body, particularly if they have relevant expertise, and discern a legislative intention to permit that body to make conclusive factual findings.

38 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144. 39 As repealed by Migration Legislation Amendment (Regional Processing and Other Measures (Act) 2012 (Cth) s 25. 40 French CJ at 184 [68] and Kiefel J at 237 [258] also decided that the Minister had acted without power. 41 Malaysian Declaration Case (2011) 244 CLR 144, 195 [115]-[116]. Judicial College of Victoria Journal Volume 05 | 2017 34

Judges have been reluctant to find that the jurisdiction of a court can turn on the finding of jurisdictional fact. There is sometimes said to be a presumption against such a conclusion. This was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (‘Parisienne Basket Shoes Case’).42

That presumption may also apply in respect of a tribunal’s decisions. Nettle JA referred to that presumption in considering the inconvenience to disciplinary complaint proceedings against a legal practitioner if any decision by the Legal Services Commissioner was treated as a jurisdictional fact and thus susceptible to merits based judicial review. His Honour, citing the Parisienne Basket Shoes Case43 stated:

The presumption, however, is that Parliament does not intend to cause inconvenience of that kind (even though the presumption is said to be of less force in the case of a statutory tribunal or for an administrative decision maker than in the case of a court).44

Courts may also refer to a presumption of finality as a significant reason for not finding a fact to be a jurisdictional fact. To take one example, the New Zealand case of Hawkins v Minister of Justice,45 concerned a decision by the Governor-General in Council made on the recommendation of the Minister to place the companies in a collapsed group of companies under statutory management.46 The relevant legislation provided:

(4) Where it is desirable for the protection of any of the shareholders or creditors (whether secured or unsecured) of any company or companies, or for the protection of any beneficiary under any trust administered by any company, or it is otherwise in the public interest, that the provisions of this Act should apply to any company or companies, and the said shareholders or creditors or beneficiaries or the public interest cannot be adequately protected under the Companies Act 1955 or in any other lawful way, the Governor-General, on the advice of the Minister given on the recommendation of the Securities Commission, may, by Order in Council, declare that the provisions of this Act shall apply to that company or those companies. In this subsection the term ‘company’ means any company, whether incorporated in New Zealand or elsewhere; and includes any company that has been dissolved or struck off the register.47

The New Zealand Court of Appeal held that the statutory language conferred by implication a statutory discretion which could not be the subject of review. The Governor-General on the advice of the Minister had power to determine whether the statutory conditions had been fulfilled.48 Cooke P stated:

As Wylie J said, citing cases in which it has been emphasised in this Court that, where reasonably practicable, statutes should be interpreted so that they work, it is highly unlikely that Parliament would have contemplated lengthy litigation, including even a series of appeals, before it could be authoritatively determined whether the criteria for an Order in Council had been satisfied.49

42 (1938) 59 CLR 369, 391 cf Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 (S) (2 September 2016). 43 (1938) 59 CLR 369. 44 Byrne v Marles (2008) 19 VR 612, 628 [53] (Dodds-Streeton JA and Coghlan AJA agreeing). 45 [1991] 2 NZLR 530, 534. 46 Pursuant to the Companies Special Investigations Act 1958 (NZ). 47 Hawkins v Minister of Justice, [1991] 2 NZLR 530, 533. 48 Ibid 538. 49 Ibid 534. Judicial College of Victoria Journal Volume 05 | 2017 35

VIII. Is Identification of Jurisdictional Fact Merely Statutory Interpretation?

The next issue concerns the application of principles of statutory interpretation to the identification of jurisdictional facts. Is the existence of a jurisdictional fact decided by applying principles of statutory interpretation for instance as stated in Project Blue Sky Inc v Australian Broadcasting Authority?50 It is true that judicial review usually involves statutory interpretation. Therefore, it is important to keep in mind Brennan J’s description of the purpose and limits of judicial review:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.51

It is sometimes said that there is nothing special about the exercise of determining whether a matter is a jurisdictional fact and that all the normal rules of statutory construction apply.52 Spigelman CJ stated:

The academic literature which describes ‘jurisdictional fact’ as some kind of ‘doctrine’ is, in my opinion, misconceived. The appellation ‘jurisdictional fact’ is a convenient way of expressing a conclusion - the result of a process of statutory construction.53

Jordan CJ had previously warned:

It is not possible to devise a test which will supply a ready and easy solution for any and every case in which the question may be raised. The answer depends, in every case, upon the intention of the statute by which the jurisdiction is conferred, and this must be gathered by a consideration of its language, the scope of the jurisdiction it confers, the nature of the fact, and its relation to the matter to be determined.54

A relevant consideration is whether the legislature intended that the absence of a factual conditions should invalidate the attempted exercise of power.55

An instructive case concerning the application of statutory interpretation principles is the United Kingdom Supreme Court decision in 2009, Regina (A) v Croydon London Borough Council.56 The Children Act 1989 (UK) c 41 imposed a responsibility on the local council to provide accommodation for ‘any child in need within their area who appears to them to require

50 (1998) 194 CLR 355; see also Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) 440. 51 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6. 52 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, 64 [39] (Spigelman CJ). 53 Ibid. 54 Redgrave, Ex parte; Bennett, Re (1945) 46 SR (NSW) 122, 125. 55 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, 428 [166], citing Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, 390 [93]. 56 [2009] 1 WLR 2557, 2567-8; see also the discussion in Elliott, above n 2, 68-9 and H W R Wade and C F Forsyth, Administrative Law, (Oxford University Press, 11th ed, 2014) 215-6. Judicial College of Victoria Journal Volume 05 | 2017 36

accommodation’.57 The combination of the word ‘child’ with the qualifying words ‘in need’ raised interesting questions of whether the Council’s decision could be reviewed.

The Council decided that neither claimant was a child, which term was defined to mean a person under the age of 18. The claimants were refugees and there was uncertainty about their age and whether they were each a ‘child’. The Supreme Court accepted the Council’s submission that the composite phrase ‘child in need’ did not create a jurisdictional fact.

Baroness Hale, although not specifically basing her decision on jurisdictional fact, stated:

The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is ‘in need’ requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and ‘Wednesbury reasonableness’ there are no clear cut right or wrong answers. But the question whether a person is a ‘child’ is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers. … However, as already explained, the Act does draw a distinction between a ‘child’ and a ‘child in need’ and even does so in terms which suggest that they are two different kinds of question. The word ‘child’ is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.58

IX. Interpretation Principles in Jurisdictional Fact Cases

While principles of statutory interpretation are clearly to be applied, other characteristics of statutory or legislative provisions can be identified that are often associated with jurisdictional facts.

First, where a statutory prohibition prohibits a particular activity, or states that something must not be done unless certain facts exist, it is more likely to create a jurisdictional fact.

Secondly, conditions involving objective terms will often be regarded as jurisdictional. Thus objective facts, for example, someone’s age, or status are usually treated as jurisdictional facts.

57 Children Act 1989 (UK) c 41, s 20(1). 58 Regina (A) v Croydon London Borough Council [2009] 1 WLR 2557, 2567-8. Judicial College of Victoria Journal Volume 05 | 2017 37

Thirdly, the greater flexibility in the statutory formulation, the less likely it is to contain a jurisdictional fact. Where there is an element of fact and degree involved in determining whether a particular proposal fits within the statutory description, it is less likely to be a jurisdictional fact. Another way of stating the same point is to ask whether the decision involves evaluation, assessment and value judgment. In R v Hillingdon London Borough Council, ex parte Puhlhofer,59 Lord Brightman said:

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are action [sic] perversely.60

Many examples of this third point involve the judicial review of environmental or planning issues, where assessment and value judgment are involved. Deciding whether a particular development falls into one category or another can determine the procedure that is to apply.

Such a case was Corporation of the City of Enfield v Development Assessment Commission,61 the leading High Court decision on jurisdictional fact. A company operated a waste facility and had obtained a development consent for its extension over the opposition of the Enfield Council. The issue litigated for many years, was whether the extension was a special industry or a general industry. If it was a general industry, consent could be given. If it was a special industry, the planning authority, the South Australian Development Assessment Commission, could not give consent unless it had given public notice of the application and unless the Council and the Minister concurred in the grant of planning consent.

The trial judge considered expert evidence and decided that the development should have been determined to be a ‘special industry’, because it was likely to release offensive odours several times a year. Ultimately, the High Court agreed with that decision and stated:

The determination of the question whether [the applicant] proposed a ‘non-complying’ development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.62

The legislation considered in Enfield63 required the objective existence of the facts said to constitute development for ‘special industry’. The trial judge had to determine that issue on the facts before the Court, not on the facts before the planning authority.

However, if the environmental planning instrument requires the assessment of a wide range of matters of considerable complexity involving the formation of value judgments, the decision- making process is unlikely to involve jurisdictional facts.

59 [1986] AC 484. 60 Ibid 518. 61 (2000) 199 CLR 135 (‘Enfield’). 62 Enfield (2000) 199 CLR 135, 148 [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 63 Ibid. Judicial College of Victoria Journal Volume 05 | 2017 38

In Australian Heritage Commission v Mount Isa Mines Ltd,64 the High Court decided that the detailed mechanisms for public consultation and consideration by the Commission that were provided for in the Australian Heritage Commission Act 1975 (Cth) suggested that the Commission was given the power to determine conclusively whether a place should be recorded as part of the national estate and that its determination did not involve a jurisdictional fact. The High Court stated:

given the terms of s 4, particularly sub-s (1A), any consideration of whether a particular place is included in the national estate would involve matters of opinion and degree, making it difficult to show that the decision-maker has erred in such a fashion as to attract judicial review.65

Professor Elizabeth Fisher, in a recent article66 explained the role of jurisdictional fact in environmental law. She emphasised that jurisdictional fact is an aspect of legal formalism, in that it identifies a fact so essential to the power that the decision-maker can only exercise that power if that fact exists: the existence of the fact ‘enlivens’ the power of the decision-maker. Professor Fisher referred to the statement of Stone J in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources67 that:

A better way of stating the jurisdictional fact proposition is that to say that the minister’s determination of the fact is not conclusive and that [the] Court has power to review the finding on the basis of evidence as to the existence or non-existence of the fact.68

Professor Fisher stated that environmental law is often a response to ‘hot situations’ or ‘hot facts’ where there are no agreed frames of action, facts are uncertain, and where there are a range of conflicting normative values:

While other areas of administrative law build on existing common law ideas (such as entitlements and human rights), environmental law is creating new frames of action that often cut across conventional legal frames of action. Thus environmental law creates obligations for those wishing to carry out activities, creates third party rights, gives legal identity to various aspects of the natural environment, and, most significantly, creates ‘novel’ frameworks for decision-making.69

Professor Fisher also stated that:

In other words, the courts have found a number of ways to balance the tension between a fact being ‘hot’ and it being so important that it is ‘jurisdictional’. That balance is found through a careful study of the administrative scheme and reference to doctrine.70 … As Chief Justice Spigelman has noted, jurisdictional fact is not a ‘blank cheque to the judiciary to intervene whenever a judge believes the outcome to be

64 (1997) 187 CLR 297 (Dawson, Gaudron, McHugh, Gummow and Kirby JJ). 65 Ibid, 301. 66 Elizabeth Fisher, ‘“Jurisdictional” Facts and “Hot” Facts: Legal Formalism, Legal Pluralism and the Nature of Australian Administrative Law’ (2015) 38 Melbourne University Law Review 968. 67 (2007) 243 ALR 784. 68 Fisher, above n 66, 980 quoting Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 243 ALR 784, 801 [59]. 69 Fisher, above n 66, 980 (citations omitted). 70 Ibid 986. Judicial College of Victoria Journal Volume 05 | 2017 39

undesirable’. This is not to say that the flexibility in interpretation does not provide opportunities for the aspiring litigant, but that flexibility has limits.71

The fourth area where jurisdictional facts may often be found is the category of constitutional jurisdictional facts that may arise in the application of the Commonwealth Constitution, for example under s51(xxxv), which requires the existence of an interstate industrial dispute. Such a question arose in the Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (‘Caledonian Collieries Case’),72 in which Isaacs J made the statement which has been previously set out. An industrial dispute existed on the coalfields of northern New South Wales about miners’ wages. Miners in Wonthaggi, Victoria and in Queensland went on strike. The selling price of coal from the northern collieries was a factor in determining the maximum price at which the coal produced in Queensland and Wonthaggi could be sold, and a reduction of wages in New South Wales would be likely to lead to a reduction or attempted reduction of wages in the mines in Victoria and Queensland. The Court, with Isaacs J dissenting, held that an interstate industrial dispute did not exist. The majority stated that the legislature had not attempted to confer upon the Court of Conciliation and Arbitration judicial power conclusively to determine the matter 73 upon which the jurisdiction depended. The existence of an interstate industrial dispute involved a jurisdictional fact.

Finally, decisions involving important common law rights74 may more readily be interpreted as involving jurisdictional fact considerations. Thus in Cabal v Attorney-General (Cth),75 Weinberg J considered an application that property seized pursuant to a search warrant issued under the Extradition Act 1988 (Cth) be returned to the applicants or that a decision be made whether the property be sent to Mexico. The search warrant identified two alleged offences under Mexican law. Two requests for extradition of one of the applicants had been received from the Mexican Government. The application turned on the provisions of s 27 which stated that:

Where: (a) property or a thing is seized under section 13 or 14; and (b) the property or thing: (i) may be material as evidence in proving any offence referred to in subparagraph 13(1)(b)(i) or paragraph 14(1)(a), as the case requires, in relation to a person whose surrender is sought by extradition country; or (ii) has been acquired as a result of such an offence; the Attorney-General may, whether or not a surrender warrant or a temporary surrender warrant is issued in respect of the person, direct, by notice in writing, that the property or thing be sent to the extradition country.

71 Ibid 993 (citations omitted), quoting Chief Justice J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77, 87. 72 (1930) 42 CLR 527. 73 Ibid 556 (Gavan Duffy, Rich, Starke and Dixon JJ). 74 Aronson, Dyer and Groves, above n 1, 244. 75 (2001) 113 FCR 154. Judicial College of Victoria Journal Volume 05 | 2017 40

The applicants contended that those provisions created jurisdictional facts for the purposes of judicial review. Weinberg J agreed stating:

I have concluded that the conditions set out in s 27(b)(i) and (ii) of the Act are statutory requirements which should be regarded as ‘jurisdictional facts’. I have arrived at that conclusion principally because of the structure of the Act taken as a whole, and the text of the relevant provisions. I have also had regard to the importance of the interests which are protected at common law and which are affected by the operation of those provisions.76

X. Subjective Opinion Jurisdictional Fact

The final matter to consider is, what Margaret Allars has called, subjective opinion jurisdictional fact.77 This arises where an administrative power or discretion exists that can only be exercised once the decision-maker has formed a requisite opinion, belief or satisfaction.

The prevailing High Court opinion is that a decision-maker’s opinion, satisfaction or belief can be a jurisdictional fact.78 Not everyone agrees that it is appropriate to consider that these powers involve jurisdictional facts.79

The statement of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd80 provides guidance in this area. That case dealt with a regulation which empowered an industrial authority during wartime to alter rates of remuneration if ‘satisfied’ that the rates of remuneration were anomalous. Latham CJ stated:

It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.81

This passage identifies two foundational aspects of the principles relating to subjective opinion jurisdictional fact. First, that the court inquires whether the opinion, satisfaction or belief has really been formed, which means formed according to law, particularly by reference to the

76 Ibid 173 [75]. 77 Allars, above n 25, 96. 78 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 619; see also the informative article by James Hutton, ‘Satisfaction as Jurisdictional Fact – A Consideration of the Implications of SZMDS’ in Neil Williams (ed), Key Issues In Judicial Review (Federation Press, 2014) 50. 79 Aronson, Dyer and Groves, above n 1, 237. 80 (1944) 69 CLR 407. 81 Ibid 432. Judicial College of Victoria Journal Volume 05 | 2017 41

requirements of statute or legislative instrument. Secondly, the court would normally not substitute its own opinion, satisfaction or belief for that of the decision-maker concerned. Rather, it would decide whether the subjective opinion has been validly formed.

In performing these two functions, the court will often apply principles analogous to those that it applies in hearing an appeal against the exercise of a discretion.82 The various principles applicable to the proper exercise of public power will often intersect with one another.

A second oft cited judgment is that of Dixon J in Avon Downs Pty Ltd v The Federal Commissioner of Taxation,83 which dealt with the matters of which the Commissioner of Taxation had to be satisfied to permit the deduction of a company’s accumulated losses. His Honour, in a lengthy passage, considered how to determine whether a subjective opinion, or satisfaction, had been validly formed. His Honour described this process in the following terms:

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.84

A recent description of this aspect of jurisdictional fact is contained in the passage from the judgment of Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS,85 which I have previously set out.

The problematic use of the term ‘jurisdictional fact’ to describe subjective administrative opinions was addressed by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu,86 when considering provisions of the Migration Act 1958 (Cth), which required that the Minister be satisfied of various matters before granting a protection visa. His Honour stated:

The ‘jurisdictional fact’, upon the presence of which jurisdiction is conditioned, need not be a ‘fact’ in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase ‘jurisdictional fact’ is an awkward one in such circumstances it will, for convenience, be retained in what follows. …

82 House v The King (1936) 55 CLR 499. 83 (1949) 78 CLR 353. 84 Ibid 360. 85 (2010) 240 CLR 611, 619. 86 (1999) 197 CLR 611. Judicial College of Victoria Journal Volume 05 | 2017 42

A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.87

Writing extra-judicially in 2014, The Hon William Gummow put the matter this way:

A further, but distinct, question arises where jurisdiction is posited upon ‘satisfaction’ as to a state of fact. In such a case, the court may inquire as to whether the decision has been made on a proper self-direction as to those facts, lest the decision be vitiated by jurisdictional error. This does not cut across the general principle that errors of fact may be made within the exercise of jurisdiction, and that judicial review is not available merely because of such errors.88

His Honour also stated:

But of course, where a power is expressly conditioned on the formation of an opinion, the existence of that opinion itself may be a jurisdictional fact. What is the requisite character or quality or opinion required by that criterion? The answer must be a matter of interpretation of the statute in question. But considerations of ‘reasonableness’ intrude here, with respect to the exercise of statutory powers.89

Justice Leeming has written that:

Commonly, a jurisdictional fact that is an opinion or a state of satisfaction will require not merely a bona fide attempt to be satisfied, but actual satisfaction, which will mean that if, say, matters which the statute requires to be taken into account are excluded, the requisite state of satisfaction will not be reached.90

There is a range of statutory phrases that signpost the presence of subjective opinion jurisdictional fact, for example, any provisions that include words such as: satisfaction; considers; is of the opinion that; appears to the decision-maker that and has reasonable grounds for a state of mind. These phrases increasingly appear in legislation.

For instance in George v Rockett, the High Court stated that:

When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.91

The most famous of all these statutory phrases concerning subjective opinion jurisdictional fact is the phrase ‘reasonable cause to believe’, which led to the famous disagreement in Liversidge v Anderson.92

The Emergency Powers (Defence) Act 1939 2 & 3 Geo 6, c 62 empowered His Majesty by order in council to make regulations for a number of wartime purposes, including regulations ‘for the detention of persons whose detention appears to the Secretary of State to be expedient in the

87 Ibid 651 [130]-[131]. 88 William Gummow, ‘Rationality and Reasonableness as Grounds of Review’ in Justice Debra Mortimer (ed) Administrative Justice and its Availability (Federation Press, 2015) 21 (emphasis omitted). 89 Ibid, 22-3. 90 Leeming, above n 22, 64. 91 (1990) 170 CLR 104, 112. 92 [1942] AC 206. Judicial College of Victoria Journal Volume 05 | 2017 43

interests of public safety or the defence of the realm’.93 Acting under this power, His Majesty by order in council made the Defence (General) Regulations 1939 of which regulation 18B provided:

If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.94

Acting under this power, the Home Secretary made an order against the plaintiff directing that he be detained. From Brixton Prison, the plaintiff brought an action against the Home Secretary claiming damages for false imprisonment and a declaration that his imprisonment was unlawful. The case was eventually appealed to the House of Lords.

Lord Macmillan, in dismissing the appeal, said:

In a matter at once so vital and so urgent in the interests of national safety, I am unable to accept a reading of the regulation which would prescribe that the Secretary of State may not act in accordance with what commends itself to him as a reasonable cause of belief without incurring the risk that a court of law would disagree with him, and also without the further liability that, should the court do so or if he cannot consistently with his duty disclose to the court the grounds of his belief, he will be mulcted in damages for false imprisonment as having acted outwith his powers.95

Lord Atkin, in his ‘famous, and now orthodox, dissent’96 stated:

It is surely incapable of dispute that the words ‘if A has X’ constitute a condition the essence of which is the existence of X and the having of it by A. If it is a condition to a right (including a power) granted to A, whenever the right comes into dispute the tribunal whatever it may be that is charged with determining the dispute must ascertain whether the condition is fulfilled. In some cases the issue is one of fact, in others of both fact and law, but in all cases the words indicate an existing something the having of which can be ascertained. And the words do not mean and cannot mean ‘if A thinks that he has.’ ‘If A has a broken ankle’ does not mean and cannot mean ‘if A thinks that he has a broken ankle.’ ‘If A has a right of way’ does not mean and cannot mean ‘if A thinks that he has a right of way’. ‘Reasonable cause’ for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right. If its meaning is the subject of dispute as to legal rights, then ordinarily the reasonableness of the cause, and even the existence of any cause is in our law to be determined by the judge and not by the tribunal of fact if the functions deciding law and fact are divided. Thus having established, as I hope, that the plain and natural meaning of the words ‘has reasonable cause’ imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed, I proceed to show that this meaning of the words has been accepted in innumerable legal decisions for many generations, that ‘reasonable cause’ for a belief when the subject of legal dispute has been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal. I will go further and show that until June or July of this year in connection with this reg. 18B, there never has been any other construction even submitted to the courts in whatever context the words are found.97

93 Emergency Powers (Defence) Act 1939 2 & 3 Geo 6, c 62, s 1(2)(a). 94 Liversidge v Anderson [1942] AC 206, 213. 95 Ibid 257. 96 George v Rockett (1990) 170 CLR 104, 112. 97 Liversidge v Anderson [1942] AC 206, 227–8. Judicial College of Victoria Journal Volume 05 | 2017 44

In October 2015, in a speech entitled ‘Reflections on the ICLR Top Fifteen Cases’, Lord Neuberger spoke about Liversidge v Anderson98 and Wednesbury99 which had been nominated as among the top 15 cases. Five of the cases in the list were public law cases. His Lordship said of Liversidge v Anderson:

Lord Atkin’s view has, of course, triumphed in the end. The decision of the majority was described as ‘very peculiar’ by Lord Reid in 1964, and in 1979, Lord Diplock said in terms that ‘the time ha[d] come’ for the Law Lords to acknowledge that the majority ‘were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right’. Although it was wrongly decided and therefore not even an authority, let alone an important authority, Liversidge is rightly included in the list. Lord Atkin’s speech is up there with Lord Camden’s judgment in Entick v Carrington to remind us all of the importance of the rule of law. And the wrongness of four eminent jurists, Viscount Maugham, and Lords Macmillan, Wright and Romer, reminds judges not to forget the rule of law in times of emergency. I leave the last word on Liversidge to Lord Atkin: In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.100

The ringing words of Lord Atkin indicate the importance of the availability of judicial review in the case of subjective opinion jurisdictional fact.

In summary, jurisdictional facts are found more frequently in statutes and regulations than you may expect and they affect the scope of the judicial review that must be provided and the evidence relevant to the performance of the judicial review.

98 [1942] AC 206. 99 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 100 Lord Neuberger, ‘Reflections on the ICLR Top Fifteen Cases: A Talk to Commemorate the ICLR’s 150th Anniversary’ (Speech delivered at ICLR Anniversary Dinner, Lincoln’s Inn, 6 October 2015) [59]-[60] (citations omitted). Judicial College of Victoria Journal Volume 05 | 2017 45

Principles of Statutory Interpretation* Eamonn Moran PSM QC†

I attended last month a conference of the Commonwealth Association of Legislative Counsel in Edinburgh, a conference attended by parliamentary counsel from all over the Commonwealth and beyond.

One of the handouts at the conference was a reprint of a work by Henry Thring (later Lord Thring). He was the very first UK Parliamentary Counsel, holding the post from 1869 to 1886. The work was called Practical Legislation,1 not surprisingly it was all about the composition and language of statutes. It was written as a practical guide to those involved in the drafting of legislation.

While drafting techniques have greatly changed in the intervening years, much of it still remains relevant. For example, he states:

Clearness is the main object to be aimed at in drawing Acts of Parliament. Clearness depends, first, on the proper selection of words; secondly, on the arrangement and the construction of sentences.2

One thing that has changed a bit is the process by which Bills are developed. He recounts having a series of conferences with Mr Gladstone, then Prime Minister, on the Irish Land Act of 1870.3 It’s fascinating looking back at the attention which a Prime Minister gave to instructing on the details of a Bill and the time that he was prepared to devote to that purpose.

In her critically acclaimed 2012 novel Bring up the Bodies Hilary Mantel wrote ‘A statute is written to entrap meaning, a poem to escape it’.4 I think that describes well what drafters of statutes aim to do.

But how do you entrap meaning in a statute? I have been drafting legislation for many years, in different capacities and for different jurisdictions. When I draft a provision, whether of a Bill or of an item of subordinate legislation, I think I know what it means. But of course what I think it means is what I intended it to mean. Whether it ultimately will be found to bear that meaning is another question entirely.

Of course, the more familiar the drafter is with the approaches taken in interpreting legislation, the more likely it is that a court or tribunal will give a provision the meaning that the drafter intended. I say ‘more likely’ because that outcome cannot be taken for granted.

* This article is based on a presentation delivered at the ‘Administrative Law in an Age of Statutes’ program held by the Judicial College of Victoria and Melbourne Law School in May 2015. † Barrister at the Victorian Bar. 1 Henry Thring, Practical Legislation: The Composition and Language of Acts of Parliament and Business Documents (Cengage Learning, first published 1877, 1902 ed). 2 Ibid, 60. 3 Ibid, 5-6. 4 Hilary Mantel, Bring up the Bodies (Paragon, 2012). Judicial College of Victoria Journal Volume 05 | 2017 46

In Project Blue Sky Inc v Australian Broadcasting Authority, in their joint judgment McHugh, Gummow, Kirby and Hayne JJ stated:

the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.5

Writing in The Loophole, the journal of the Commonwealth Association of Legislative Counsel, in 2008 the Rt. Hon Lady Justice Mary Arden wrote:

Since the principles of interpretation are governed by the common law, it might be thought that statutes mean what judges say they mean, rather than what Parliament may have intended. But that is not theoretically so: in general, the court’s function is to ascertain the intention of Parliament and this is done from the language that Parliament has used. Thus we can say that the basic model for statutory interpretation is an ‘Agency Model’. The essential feature of this model is that the judge sets out to interpret what is written in front of him. … In doing this he is fulfilling as faithfully as he can the will of the democratically elected Parliament.6

Leaving aside the issue of the ‘Agency Model’ what is clear from Lady Justice Arden’s statement is the importance of the text. It is the text in front of the judge that the judge is interpreting. But as Chief Justice Wilmott said in 1767, ‘words are only pictures of ideas upon paper’7 or, as Frankfurter described them ‘symbols of meaning’.8 As in all forms of writing, words need context to fix their precise meaning.

In Lacey v Attorney-General (Qld)9 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ referred in their joint judgment to that passage from Project Blue Sky and continued:

The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.

So the intention of Parliament is to be discovered, not by delving into the minds of parliamentarians or of legislative drafters, but by applying to the legislative text various common law and statutory rules of construction. And, it is assumed that drafters are familiar with those rules.

There is therefore, in a sense, a dialogue going on between drafters and the courts. Drafters are generally aware of the buttons that they must push in an effort to achieve that what they write will be read in the way that they intend. In Ealing London Borough Council v Race Relations Board Lord Simon referred to the rules of construction as being ‘part of that common code of juristic communication by which the draftsman signals legislative intention’.10 Of course, if there

5 (1998) 194 CLR 355, 384 [78] (citation omitted). 6 Mary Arden, ‘The Impact of Judicial Interpretation on Legislative Drafting’ [2008] 1 Loophole 4, 5. 7 Dodson v Grew (1767) Wilm 272, 278. 8 ‘Some Reflections on the Reading of Statutes’ (1947) 47Columbia Law Review 527, 528. 9 242 CLR 573, 592 [43]–[44] (citations omitted). 10 [1972] AC 342, 361. Judicial College of Victoria Journal Volume 05 | 2017 47

is a complex signal system in operation, the ordinary statute user is left in the dark and that has implications for the rule of law, something that I will touch on a little later.

Drafters, of course, are not the ones ultimately in control. While a Bill is still with executive government, the Minister and Cabinet are ultimately in control. Drafters can only advise how an outcome can best be achieved. And, of course, while a Bill is with the Parliament a whole new dynamic is at play and adherence to canons of construction may not be to the forefront of the minds of those players.

Drafters are not, of course, always successful in entrapping meaning in a statute, sometimes through their fault and sometimes because they could not reasonably have anticipated the approach that a court would eventually take.

Let me give you an example of the latter. The meaning of ‘may’ and ‘shall’ has always been fraught with difficulty. Against that background Victoria provided in s 45 of theInterpretation of Legislation Act 1984 (Vic) not only that ‘may’ imports a discretion and ‘shall’ an obligation but also that this has effect ‘notwithstanding any rule of construction to the contrary and any such rule is hereby abrogated with respect to this Act and any Act passed or subordinate instrument made on or after the commencement of this Act’.11

From its enactment drafters relied on that section to use ‘may’ or ’shall’ (or nowadays ‘must’) when inserting, by way of an amending Act, new provisions in old Acts confident in the knowledge that section 45(1) fixed the meaning. However, along cameShields v Chief Commissioner of Police,12 a case that related to the meaning of a ‘may’ in section 68(1) of the Police Regulation Act 1958 (Vic), a section inserted in 1999, many years after the enactment of section 45 of the Interpretation of Legislation Act 1984 (Vic). The court relied on a common law principle, the co-interpretation principle, that an amending Act is to be read with the principal Act it amends ‘as one connected and combined statement of the will of Parliament, unless the contrary intention appears on the amending Act’13 and stated:

Parliament is presumed to know about important principles of interpretation, such as the co-interpretation principle. Where legislation does not abrogate such a principle, expressly or by necessary intendment, and it would be otherwise applicable, the court can infer that the legislation was not intended to interfere with its operation, the silent expectation being that it would be applied in the usual way. … It is clear, I think, that neither by express provision nor necessary intendment does the Interpretation of Legislation Act abrogate the co-interpretation principle.14

The upshot was that the court interpreted a ‘may’ inserted in 1999 as conferring a duty.

11 Interpretation of Legislation Act 1984 (Vic) s 45(3). 12 (2008) 19 VR 33. 13 (2008) 19 VR 33, 55 [102] quoting Sweeney v Fitzhardinge (1906) 4 CLR 716, 735 (Isaacs J). 14 Ibid 55 [104]–[105]. Judicial College of Victoria Journal Volume 05 | 2017 48

While I understand perfectly the reasoning by which that decision was reached, noting that the abrogation statement in s 45 was limited to future Acts, the reality is that drafters had interpreted the provision as also applying to future amending Acts, not just future principal Acts.

Outcomes like that have made me realise that drafters need to better communicate the approaches that they take in drafting legislation. It spurred me on, in my role in Hong Kong, when we reviewed and changed our drafting techniques, to explain publicly, including to the legislature and the judiciary, why we draft as we do.15 Perhaps it’s something we could give more attention to in Victoria.

I think that there would be value in drafters explaining not only why they draft as they do but also the system in which drafting is carried out.

Draft drafting instructions for a Bill are sent to Parliamentary Counsel for settling before the policy underlying the Bill is approved for drafting by Cabinet. Those instructions are carefully gone through with a view to ensuring that they are adequate for the drafting of the Bill. After approval to start drafting is given by Cabinet, there is, time permitting, an exhaustive process in which drafts are exchanged between drafting counsel and the department. As a general rule it is fair to say that words are not inserted lightly but are carefully chosen to fit the legislative aim. While the system is not perfect, and is all too frequently compounded by shifts in policy in the course of drafting, and by the time available being inadequate, or despite the best efforts of the drafter the inadequacies of the policy being all too clear for anyone to see, I think it is fair to start with the assumption that the words actually were intended to mean what they appear to mean on a literal reading.

Text is clearly important. But, as mentioned earlier, so is context.

In 1997 in CIC Insurance Ltd v Bankstown Football Club Ltd,16 in a passage reiterated by Gageler J in Baini v R,17 the High Court stated:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy …

More than a decade later in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (‘Alcan’)18 Hayne, Heydon, Crennan and Kiefel JJ stated:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.

15 See, eg, Law Drafting Division, Department of Justice (Hong Kong) Drafting Legislation in Hong Kong: A Guide to Styles & Practices (January 2012). 16 (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 17 (2012) 246 CLR 469, 484 [42]. 18 (2009) 239 CLR 27, 46–7 [47] (citations omitted). Judicial College of Victoria Journal Volume 05 | 2017 49

The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

In 2012, in a joint judgment in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd19 French CJ, Hayne, Crennan, Bell and Gageler JJ quoted the opening sentence in that last passage from Alcan about the task of statutory construction beginning with a consideration of the text and then they continued by saying:

So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

In Director of Public Prosecutions v Leys the Victorian Court of Appeal stated:

The process of construction must always begin by examining the context of the provision with the object of adopting an interpretation that is consistent with the ordinary and natural meaning of the words derived from the context in which they appear and having regard to the legislative purpose of all the provisions of the statute.20

There is therefore clear acceptance that what the words in a statute mean is affected by the context in which those words appear. And context is a broad concept, encompassing not only the Act as a whole and how it is constructed but the policy backdrop to it, thereby also bringing in a purposive element.

As stated in Director of Public Prosecutions v Leys:

departing from the literal meaning of a statutory provision may be permissible where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute as a whole, including the policy which may be discerned from those provisions.21

In Slaveski v Smith Warren CJ, Nettle and Redlich JJA stated:

Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment.22

They went on to add:

it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.23

I think a very important point is made in The Treasurer of Victoria v Tabcorp Holdings Limited where Maxwell P, Beach JA and McMillan AJA said:

there are powerful reasons of principle for giving primacy to the statutory text. First, the separation of powers requires nothing less. Axiomatically, it is for the Parliament to legislate and for the courts to interpret. Close adherence to the text, and to the natural and ordinary meaning of the words used, avoids the twin dangers of a court ‘constructing

19 250 CLR 503, 519 [39]. 20 (2012) 44 VR 1, 16 [46] (Redlich and Tate JJA and T Forrest AJA). 21 (2012) 44 VR 1, 18 [52] (Redlich and Tate JJA and T Forrest AJA). 22 (2012) 34 VR 206, 215 [24]. 23 Ibid. Judicial College of Victoria Journal Volume 05 | 2017 50

its idea of a desirable policy’,24 or making ‘some a priori assumption about its purpose’.25 … Secondly, giving the text its natural and ordinary meaning maximises the comprehensibility and accessibility of statute law, and the accountability of the legislature.26

They went on to quote what French CJ said in International Finance Trust Co Limited v New South Wales Crime Commission:27

[T]hose who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished.28

Tom Bingham, the former Law Lord, in his wonderful short text The Rule of Law does describe as one of the core elements of the rule of law that the law must be accessible and so far as possible intelligible, clear and predictable.29 The avoidance of a ‘counterintuitive judicial gloss’ is clearly a desirable thing.

I. The Common Law and Statutory Rules of Construction

So what are the various rules of construction, both common law and statutory, that are likely to be applied to the statutory text in determining its legal meaning and which all involved in the legislative process are assumed to know?

An important common law rule of construction, now known as the principle of legality, is that, in the absence of a clear statement to the contrary, the legislature in enacting a law must be presumed not to intend to detract from fundamental rights and liberties.

In R v Secretary of State for the Home Department; Ex parte Simms Lord Hoffmann made the point that the principle of legality ‘means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words’.30

I think it is fair to say that Ministers don’t always want to accept the political cost of what they are doing and that is why it is an important duty of parliamentary counsel to point out to Ministers that if they want to successfully implement a particular policy that is impacting on a fundamental right, they need to allow parliamentary counsel to be upfront about that and use appropriate words to reveal that intent.

24 Australian Education Union v Department of Education and Children’s Services (SA) (2012) 248 CLR 1, 14 [28]. 25 Certain Lloyds Underwriters v Cross (2012) 248 CLR 378, 390 [26]. 26 [2014] VSCA 143 (1 July 2014) [101]-[102]. 27 (2009) 240 CLR 319, 349 [42]. 28 [2014] VSCA 143 (1 July 2014) [102]. 29 Tom Bingham, The Rule of Law (Penguin, 2011). 30 [2000] 2 AC 115, 131. Judicial College of Victoria Journal Volume 05 | 2017 51

This principle of legality will be dealt with in the next session so I will not dwell further on it as this point.31

The principle of legality is a common law construct. In Victoria we also have the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’). Again this will be dealt with in the next session so, with some relief, I can pass over the Charter pausing merely to comment that the four little words added to s 32(1) of Victoria’s Charter ‘consistently with their purpose’, but missing from s 3(1) of the Human Rights Act 1998 (UK) c 42 (‘Human Rights Act’) in the United Kingdom, would appear to have saved Victorian legislation from the kind of judicial rewriting that occurs in the United Kingdom under their Human Rights Act.

Nor does s 32 of the Charter mandate an approach to statutory interpretation that departs from established principles. That much is clear from the decision of the Court of Appeal in Slaveski v Smith,32 to which I referred earlier, a Charter case in which Warren CJ, Nettle and Redlich JJA stated:

if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.33

Moving on from the Charter, drafters are well aware of the various common law maxims of interpretation: noscitur a sociis,34 ejusdem generis,35 expressio unius est exclusio alterius,36 generalia specialibus non derogant,37 reddendo singular sigulis.38 In an article in the Statute Law Review, Graham makes the point that the maxims provide ‘interpretive clues left behind by the drafter … The maxims point us toward logical inferences that can be drawn from the drafters’ choice to use a particular pattern of language’.39

More than 60 years ago Karl Llewellyn expressed the view that courts used such interpretative rules to prop up conclusions arrived at by other means.40 I wouldn’t be so bold as to make that statement before this audience.

31 Murray Gleeson, ‘The Principle of Legality’ (2017) 5 Judicial College of Victoria Journal 4. 32 (2012) 34 VR 206 33 (2012) 34 VR 206, 215 [24]. 34 Meaning is derived from context. 35 General words read down in light of specific references. 36 Express reference to a matter excludes other matters. 37 Specific provisions prevail in the event of a conflict with a general provision. 38 Qualifications attach to subjects in the order in which they appear. 39 R N Graham, ‘In Defence of Maxims’ (2001) 22 Statute Law Review 45, 67. 40 Karl N Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed’ (1950) 3 Vanderbilt Law Review 395. Judicial College of Victoria Journal Volume 05 | 2017 52

In Registrar of Titles (WA) v Franzon Mason J observed that:

It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise.41

Drafters do strive hard for consistency in their use of words. Oscar Wilde once observed that ‘consistency is the last refuge of the unimaginative’.42 I beg to differ, at least in the context of legislation. Consistency in the use of words is critical. It is greatly aided these days by being able electronically to search through the text to pick up all instances of where a particular word is used and the context in which it is used.

There are other presumptions that drafters are well aware of including the presumption against retrospectivity and extra-territoriality.

Apart from common law rules of construction there are, of course, statutory rules apart from those provided by the Charter.

Individual Acts may contain statements of legislative intention as to the scope of a provision or contain other interpretative provisions as well as detailed definitions of terms used in the Act. The relationship between provisions may be clarified by the use of ‘subject to section X’ or ‘despite section X’. Most importantly on top of particular statutory provisions there are the overarching general principles tucked away in the applicable Interpretation Act, whether the Victorian Interpretation of Legislation Act 1984 (Vic) or the Commonwealth Acts Interpretation Act 1901 (Cth).

The Interpretation of Legislation Act 1984 (Vic) contains principles and rules for the interpretation of legislation as well as a dictionary of commonly-used words. There are rules about the effect of a repeal or amendment, when legislation commences and expires, when powers may be exercised, the effect of examples, how time or distance is measured and many others. Importantly it also contains a general statement about how legislation is to be interpreted, that is, a construction that would promote the underlying purpose or object is to be preferred to a construction that would not.43

A thorough knowledge of it is essential to a complete understanding of a legislative text. Drafters operate on the assumption that readers have that understanding. Lord Thring, in the text I referred to earlier, stated that drafters should know the Interpretation Act off by heart.

41 (1975) 132 CLR 611, 618. 42 Oscar Wilde, ‘The Relation of Dress to Art’, Pall Mall Gazette (London) 28 February 1885. 43 Interpretation of Legislation Act 1984 (Vic) s 35(a). Judicial College of Victoria Journal Volume 05 | 2017 53

II. What Can a Court/Tribunal Do When Faced with An Obvious Drafting Mistake?

At this point I just wanted to touch briefly on the topic of reading words into a statute. This issue will be dealt with in greater detail in the next session. As a person of Irish background I always feel that courts should be reticent to exercise this power as it is commonly said that the reading in of a comma into the unpunctuated text of the Statute of Treasons 1351, 25 Edw 3, stat 5 led to the belief that Sir Roger Casement was ‘hanged on a comma’.44

Given the importance of text in statutory interpretation, the stakes are high for all who work on its production and sometimes, despite their best endeavours, the wording is less than ideal.

That said, sometimes those who draft legislation feel that courts read in words where none were ever intended. Some 25 years later I still am sensitive to the fact that Crockett J in a case that went on to the High Court,45 construed s 49(1)(f) of the Road Safety Act 1986 (Vic)46 as if the words ‘which has been involved in an accident’ were inserted after the words ‘motor vehicle’.47 The decision was overturned on appeal to the Full Court48 and an appeal from that decision was dismissed by the High Court on a 3-2 decision with Mason CJ and Toohey J stating that the legislation was not ‘relevantly ambiguous or uncertain’49 and that the provision ’was not intended to be confined to the situation where there had been an accident’.50

Thankfully, we have moved on from the approach taken by the House of Lords in the 1940s, exemplified inInland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd,51 where Lord Simonds said:

It is at least clear what is the gap that is intended to be filled and hardly less clear how it is intended to fill that gap. Yet I can come to no other conclusion than that the language of the section fails to achieve its apparent purpose and I must decline to insert words or phrases which might succeed where the draftsman failed.

44 The words in question could be paraphrased as ‘It shall be treason if a man do levy war against our Lord the King in his realm or be adherent to the King’s enemies in his realm giving to them aid and comfort in the realm or elsewhere’. The issue was do the words ‘or elsewhere’ govern only the words ‘aid and comfort in the realm’ or do they apply to the words ‘be adherent to the King’s enemies’? (Casement’s activities had been carried out in Germany). The court decided that the words ‘or elsewhere’ governed both limbs of the sentence thereby making it an offence to adhere outside the realm to the King’s enemies. Casement was, accordingly, convicted and hanged on 3 August 1916, less than 4 months after his arrest. 45 Mills v Meeking (1990) 169 CLR 214. 46 The paragraph made a person guilty of an offence if ‘within 3 hours after driving or being in charge of a motor vehicle [the person] furnishes a sample of breath for analysis by a breath analysing instrument … and the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood’. 47 Meeking v Crisp (1988) 8 MVR 170. 48 Meeking v Crisp [1989] VR 740. 49 Mills v Meeking (1990) 169 CLR 214, 223. 50 Ibid 225. 51 [1946] 1 All ER 637, 641. Judicial College of Victoria Journal Volume 05 | 2017 54

Lord Diplock in Wentworth Securities Ltd. v Jones [1980] AC 74 stated three conditions that must be satisfied before a court could read words in. He said:

First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.52

With respect to that third condition Lord Diplock added:

Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.53

Thankfully Lord Diplock’s approach has won the day in Australia.

In Director of Public Prosecutions v Leys,54 in which the Court of Appeal read words into an obviously faulty transitional provision to make it effective, in doing so the Court considered that:

the three conditions set out by Lord Diplock … are satisfied. This is a case where the intention of Parliament is plain, the mistake by the draftsperson obvious and the additional words can be stated with exactitude.55

Interestingly, in the United Kingdom there would seem to be evidence of a break away from the constraints of that third condition. Thus in Pollen Estate Trustee Co Ltd v Revenue and Customs Commissioners [2013] 1 WLR 3785 you have Lewison LJ, delivering a judgment in the Court of Appeal, with which the two other members agreed, stating that ‘We are not Parliamentary draftsmen; and it is sufficient that we can be confident of the gist56 or substance of the alteration, rather than its precise language.’57 This approach has been adopted by Blair J in R (Allensway Recycling Ltd) v Environment Agency 58 and by Sales J in Bogdanic v The Secretary of State for the Home Department.59

In Taylor v The Owners – Strata Plan No 1156460 French CJ and Crennan and Bell JJ commented that:

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical,

52 [1980] AC 74, 105. 53 [1980] AC 74, 105–6. 54 (2012) 44 VR 1 (Redlich and Tate JJA and T Forrest AJA). 55 Ibid 39 [112]. 56 Somewhat reminiscent of Denis Denuto in The Castle ‘It’s just the vibe of the thing.’ 57 [2013] 1 WLR 3785, 3799 [49] (citation added). 58 [2014] 1 WLR 3753, 3768 [65]. 59 [2014] EWHC 2872 (QB) (29 August 2014) [39]. 60 (2014) 253 CLR 531, 548 [38] (citations omitted). Judicial College of Victoria Journal Volume 05 | 2017 55

drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.

While rare, clearly mistakes do sometimes creep into legislation. It is perhaps inevitable given the pressures under which drafters work: they deal with complex subject-matters under huge pressures of time. That pressure is not lessened by the awareness that you are not writing a contract that will be seen by just a few people, you are writing a law that will be exposed to the whole community, indeed the whole world. And drafters know that they are always in the firing line for criticism.

Let me show you a UK slide that may help explain why legislative drafting is so demanding and why, despite the best efforts of parliamentary counsel, fully understanding a statute can be so difficult. In the UK the Office of Parliamentary Counsel has launched a ’good law initiative’ with a view to producing law that is effective, clear, coherent and accessible. A recent publication by that OfficeWhen Laws Become too Complex had an illustration of the legal effects related to one Act, the Companies (Audit, Investigations and Community Enterprise) Act 2004 (UK) c 27.61 It represents the proportion of the statute book to be taken into consideration when looking at the current state of just one Act.

It might be interesting to do a similar study on some of our more complex pieces of legislation in Victoria.

61 Office of the Parliamentary Counsel (UK),When Laws Become too Complex — A Review into the Causes of Complex Legislation (Cabinet Office, 2013) 16. Judicial College of Victoria Journal Volume 05 | 2017 56

In conclusion, I would like to say that there is certainly more that drafters could do to explain publicly the context in which they work and the approaches to the task that they take. However, they would benefit too from direct input, given extra-curially, from the judiciary on common issues they come across, and difficulties they encounter, in interpreting legislation that seem to be derived from how the legislation is written.

In Project Blue Sky it was said that ordinarily the legal meaning will correspond with the grammatical meaning.62 Clearly the more that is the case the better the outcome for the rule of law and the accessibility of law. It might be said that those instances where that is not the result are instances of failure on behalf of the drafters. Failure is not something that drafters aim for and the blame cannot be laid at the door of the drafters for each instance of a failure in the signal system. As mentioned earlier, other players have a role to play in the composition of law.

I will conclude with a quotation from the Hon Keith Mason writing in the Australian Bar Review in 2006:

The exigencies of the drafting task and the constancy of human imperfection guarantees that hard questions of statutory interpretation will always be with us. Parliamentary counsel will never have to adopt the work practices of the rug weavers of Qum who deliberately insert a mistake into their handiwork because only Allah is perfect.63

62 (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ). 63 Justice Keith Mason, ‘The Intent of Legislators: How Judges Discern it and what they Do to Find it’ (2006) 27 Australian Bar Review 253, 256. Judicial College of Victoria Journal Volume 05 | 2017 57

Jurisdictional Error since Craig* Kristen Walker QC†

I. Introduction: What is the Significance ofCraig ?

I have been asked to address the topic ‘jurisdictional error since Craig’. That is a daunting task — it is a very, very large topic, Craig v South Australia (‘Craig’)1 having been decided in 1995. Much has happened in the field since then. It could be the subject of a PhD — or a single sentence. I think if I had to pick a sentence it would be ‘it’s all about the statute’.

Craig is often the starting point in discussions of jurisdictional error. But it is not and cannot be the end point. If we are considering ‘jurisdictional error since Craig’ then of course we need to understand what happened in Craig. Why is Craig our starting point? What did Craig say about jurisdictional error and why is it so significant?

Craig concerned a decision of the District Court of South Australia (an inferior court) to stay criminal proceedings based on the principle in Dietrich v The Queen (‘Dietrich’).2 It thus seems an unlikely foundation or starting point for understanding jurisdictional error more generally in the context of administrative decisions.

The Crown sought certiorari in relation to the stay and the South Australian Supreme Court concluded that the judge had made a jurisdictional error. The matter went on appeal to the High Court, which concluded that the trial judge had made no jurisdictional error or error of law on the face of the record.

In reaching that conclusion the Court, unanimously, made various observations about the nature of jurisdictional error in the context of administrative bodies in contrast to inferior courts. It is those remarks that have proved influential in the development of jurisdictional error.

Craig also marks the point at which Australian administrative law diverged so fundamentally from UK administrative law, in deciding not to apply Anisminic Ltd v Foreign Compensation Commission (‘Anisminic’)3 to an inferior court, or to accept that the distinction between jurisdictional error and non-jurisdictional error should be abolished.

* This paper was presented at the ‘Administrative Law in an Age of Statutes’ program held by the Judicial College of Victoria and Melbourne Law School in February 2016. This paper has also been published in (2016) 86 AIAL Forum 35. There may be slight variations in the two versions to account for editorial changes. † Barrister at the Victorian bar. 1 (1995) 184 CLR 163. 2 (1992) 177 CLR 292. 3 [1969] 2 AC 147 (HL). Judicial College of Victoria Journal Volume 05 | 2017 58

The key remarks about jurisdictional error in Craig were as follows (and are worth quoting in full):

In considering what constitutes ‘jurisdictional error’, it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. … At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. … [C]onstitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. 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. In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.4

From these passages I argue that Craig has two particularly important aspects:

1. First, it reminds us that the nature of jurisdictional error may be different as between inferior courts on the one hand, and tribunals on the other.

2. Second, it tells us something about the scope of what constitutes a jurisdictional error for each type of body.

In particular, the articulation in Craig of the kinds of errors that are jurisdictional in nature when committed by an administrative body, rather than a court, has come to be seen as the starting point for identifying those errors said to be jurisdictional in nature. But as later decisions have made clear, the list in Craig is not exhaustive and the categories of jurisdictional error are not closed.

4 Craig (1995) 184 CLR 163, 176, 179–80 (emphasis added). Judicial College of Victoria Journal Volume 05 | 2017 59

What I will do in this paper is discuss four developments since Craig:

1. the constitutionalisation of review for jurisdictional error;

2. the nature of jurisdictional error;

3. the consequences of jurisdictional error; and

4. the differences in this area of law betweenadministrative bodies and courts.

II. Constitutionalisation of Judicial Review

Judicial review for jurisdictional error is now constitutionally entrenched in Australia. At the federal level this occurs as a consequence of s 75(v) of the Constitution. The constitutional entrenchment of review of federal administrative decisions on the basis of jurisdictional error was recognised in Plaintiff S157/2002 v Commonwealth, where the High Court held that a privative clause was ineffective to prevent review by the High Court for jurisdictional error.5 This is now well-established and I will not discuss this development in detail.

At state level it was long thought that state privative clauses were able to exclude juridical review more effectively than federal privative clauses, given the lack of a strict separation of powers (although state privative clauses remained liable to be read down by the courts).6 However in 2010, the High Court decided Kirk v Industrial Court (NSW) (‘Kirk’).7 Kirk is one of the most significant post-Craig developments in relation to jurisdictional error.

Kirk concerned the conduct and outcome of a trial in the Industrial Relations Commission (‘IRC’) of New South Wales. Mr Kirk was convicted of certain offences after a trial at which he was called by the Crown to give evidence. The relevant legislation designated the IRC a ‘superior court of record’ and contained a privative clause purporting to protect its decisions from review. The High Court held, nonetheless, that the IRC had committed a jurisdictional error and set aside its decision. Of particular relevance was the approach the Court adopted to the privative clause. In summary, it held as follows.8

1. The Supreme Courts of the States are expressly referred to in ch III of the Constitution. It is beyond the legislative power of a State to alter the character of its Supreme Court such that it ceases to meet the constitutional description. As a consequence, certain defining characteristics of Supreme Courts cannot be removed by the States.

5 (2003) 211 CLR 476. 6 See, eg, Darling Casino Ltd v Casino Control Authority (NSW) (1997) 191 CLR 602, where Gummow and Gaudron JJ stated that ‘provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle’. 7 (2010) 239 CLR 531. 8 Kirk (2010) 239 CLR 531, 56 [55]. Judicial College of Victoria Journal Volume 05 | 2017 60

2. A defining characteristic of State Supreme Courts (ascertained by reference to the powers of those courts prior to federation) is the power to confine inferior courts and tribunals within the limits of their authority by granting prohibition, mandamus and certiorari, on grounds of jurisdictional error.

3. A State privative clause that purports to remove the Supreme Court’s authority to grant relief on the ground of jurisdictional error is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.

4. If a court has limited powers and authority to decide issues of an identified kind, a privative clause does not negate those limits on that court’s authority. This is so even in relation to review of a statutory court styled a ‘superior court of record’. Thus all State courts are subject to Supreme Court supervision and the legislature cannot avoid that supervision by providing that a court is a superior court.

5. Although Kirk concerned a court, its principles were expressed to apply also to Supreme Court supervision of executive decision-making.

In light of these conclusions, the joint judgment pointed to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context.9 Thus jurisdictional error is now fundamental to the judicial review powers of the supreme courts, in the same way it has been fundamental to the High Court and other federal courts. Thus it becomes important to understand what a jurisdictional error is, how we can identify one in the wild, and what the consequences of finding a jurisdictional error are.

III. Development of Grounds that Constitute Jurisdictional Error

One can see in the quotation from Craig that certain kinds of error have been identified as jurisdictional in nature for administrative bodies:

(a) identifying a wrong issue;

(b) asking the wrong question;

(c) ignoring relevant material;

(d) relying on irrelevant material; and

(e) in some cases, making an erroneous finding, or reaching a mistaken conclusion.

(i) Making an erroneous finding could encompass mistakes as to jurisdictional facts;

(ii) and also perhaps a no-evidence ground of review, either generally or perhaps in relation to ‘critical facts’ — the authorities are mixed (and there is some suggestion

9 Kirk (2010) 239 CLR 531, 581 [100]. Judicial College of Victoria Journal Volume 05 | 2017 61

in obiter remarks in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB10 that this would be so only in relation to jurisdictional facts).

(iii) Reaching a mistaken conclusion could encompass legal unreasonableness — a concept developed recently in Minister for Immigration and Citizenship v Li (‘Li’).11

In Craig itself, although not in the quoted passages, the Court also identified two other forms of error that can form the basis for issuing a writ of certiorari and which would now be understood to involve (or lead to) jurisdictional error:

(a) failure to observe some applicable requirement of procedural fairness;12 and

(b) fraud.

To these categories one might now add, for administrative bodies:

(a) irrationality or illogicality, to the extent that they are regarded as different from unreasonableness and noting the debate on that question;

(b) mistaken denial of jurisdiction;

(c) failure to deal with an integer of a claim;

(d) bad faith;

(e) improper purpose; and

(f) acting under dictation / inflexible application of policy.

Some of these are perhaps refinements of ‘asking the wrong question’ or ‘identifying a wrong issue’ — but they are now often considered as stand-alone grounds of review.

It may also be noted that anterior decision or error, even by a person other than the decision- maker, can lead to a jurisdictional error on the part of the decision-maker. This was most recently seen in a decision of the High Court in Wei v Minister for Immigration and Border Protection.13 In that case a university had failed to upload data about a student to a departmental computer system, in breach of a statutory obligation to do so. The Minister’s delegate cancelled the plaintiff’s student visa because he was not satisfied that the plaintiff was enrolled in a course. A majority of the High Court held that the university’s breach of its statutory duty caused the delegate to make a jurisdictional error.

10 (2004) 207 ALR 12. 11 (2013) 249 CLR 332. 12 R v Gray; Ex parte Marsh (1985) 157 CLR 351, 374 (Mason J); see also the discussion in Kirk (2010) 239 CLR 531, 575 [76], 583 [106]-[107]. 13 (2015) 148 ALD 226. Judicial College of Victoria Journal Volume 05 | 2017 62

But there must remain, of course, some errors that are not jurisdictional in nature. Two examples of legal errors that may be non-jurisdictional:

(a) A real example is a failure to comply with a statutory provision requiring the decision maker to give reasons. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme,14 concerning a decision to cancel a visa and a statutory obligation to give reasons for such a decision, the High Court held that a breach of the requirement to give reasons was not a jurisdictional error in relation to the cancellation decision. Mandamus would lie to enforce the duty to give reasons — but certiorari did not lie in relation to the cancellation decision.

(b) A hypothetical example is one I have drawn from an article by Jeremy Kirk:15 a statute provides that a body can make a decision if it advertises its proposed decision in a newspaper for at least 14 days prior to the decision being confirmed. The body misunderstands the meaning of 14 days, so as to include the day the decision is made, as opposed to 14 clear days. This is a legal error. But it may not be a jurisdictional error (depending upon the particular statute and context).

And, of course, there are errors of fact. Generally errors of fact are not jurisdictional in nature and decision makers are ‘authorised to go wrong’ — at least in relation to non-jurisdictional facts and subject to the no-evidence ground.

If an error is jurisdictional then it can be said that the body has failed to exercise the jurisdiction conferred on it — either by actually declining to make a decision, or constructively, where in a factual sense a decision is made, but an error means that the body failed to exercise the jurisdiction conferred on it. Many of the jurisdictional errors from Craig’s list and later cases reflect the concept of ‘constructive failure to exercise jurisdiction’ — ‘when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form’.16

But the High Court has made it clear that any list — whether it be Craig’s list or a longer one developed incrementally through judicial decision-making — is not exhaustive.17 As the joint judgment observed in Kirk, ‘It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. … [T]he reasoning in Craig … is not to be seen as providing a rigid taxonomy of jurisdictional error’.18

14 (2003) 216 CLR 212. 15 Jeremy Kirk, ‘The Concept of Jurisdictional Error’ in Neil Williams (ed), Key Issues in Judicial Review (The Federation Press, 2014) 11, 13. 16 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 339 [41] (Gaudron J) (‘Yusuf’). 17 Yusuf (2001) 206 CLR 323, 351 [82]. 18 Kirk (2010) 239 CLR 531, 573 [71], 574 [73]. Judicial College of Victoria Journal Volume 05 | 2017 63

It is apparent in the cases decided since Craig that all the ‘grounds’ of administrative review are directed to ascertaining whether the decision-maker has exercised the jurisdiction conferred by the statute. That is, the better way to understand jurisdictional error as it has developed since Craig, at least in the context of a decision authorised by statute, is as a label or conclusion in relation to an error that involves a breach of some statutory requirement, where Parliament intended that breach would give rise to invalidity. (I note, but put to one side, the conundrum of non-statutory decisions and what kinds of error might be jurisdictional error for such decisions — non-statutory decisions are rare and are not the focus of my paper).

This concept is neatly encapsulated in the following statement by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf :

What is important, however, is that 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.19

This understanding of jurisdictional error puts the statutory context front and center — one can only determine whether a decision maker has made an error, and whether any error is jurisdictional, by construing the statute that conferred the power so as to understand the limits of that power. Thus statutory construction is the key to most administrative law and to identifying jurisdictional error.

This was already recognised in relation to some of the traditional Craig grounds — eg relevant and irrelevant considerations.

(a) What is relevant or irrelevant is determined by reference to the statute, not simply logic or the views of the judge.20

(b) Whether procedural fairness is required, and if so what it requires, is understood to be a matter of statutory construction, albeit with a starting point that decisions that affect rights and interests require procedural fairness and clear words are required to exclude procedural fairness for such decisions.

(c) The issues to be identified and the question to be asked and answered will be determined by the statutory provisions understood in context.

(d) Whether facts are jurisdictional will be determined by a process of statutory construction.

(e) Improper purpose will be determined by reference to the statute, including its objects and purposes.

19 (2001) 206 CLR 323, 351 [82]. 20 Minister for Aboriginal Affairs Peko-Wallsend Ltd (1986) 162 CLR 24. Judicial College of Victoria Journal Volume 05 | 2017 64

(f) Parliament is presumed to intend powers to be exercised reasonably — so the ground of unreasonableness is tethered to the statute and what is unreasonable is determined by reference to the statute. As the joint judgment put it in Li:

The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.21

And so on, for each of the traditional, Craig and post-Craig errors.

But that is not to say that the traditional grounds should be abandoned. I consider them to be useful analytical tools. In this regard, I agree with Justice Perry of the Federal Court, who has said (extra- judicially) that the traditional grounds can also affect the process of statutory construction.22 That is, they provide guidance as to the kinds of issues to be addressed in construction. For example:

(a) If the statute is being construed to determine whether procedural fairness is required, then clear words of necessary intendment would be required to exclude it.

(b) If the statute is being construed to determine what matters the statute requires the decision maker to consider then attention will be focused on whether any such matters are express; and whether any such matters might be implied from the text, context and purpose of the legislation.

But the traditional grounds are not to be regarded as free-standing requirements that must always be complied with by all decision-makers.

Ultimately, a finding of jurisdictional error is a conclusion that the decision-maker has failed to comply with an essential precondition to or limit on the valid exercise of power.23 An error that leads to invalidity. That is determined be reference to the statute. Of course, this leaves room — one might say considerable room — for the courts to determine what preconditions or limits are essential and lead to invalidity, and which are not.

I note in passing that discussions of this kind often refer to Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’),24 decided in 1998 (not long after Craig). That case is certainly of assistance in the task of statutory construction with which we are concerned, but interestingly the judgments did not use the phrase ’jurisdictional error’.

IV. The Consequences of Jurisdictional Error

If a purported decision is affected by jurisdictional error, it is regarded as no decision at all. It is a nullity. The principal current authority for this statement is Minister for Immigration and

21 (2013) 249 CLR 332, 364 [67] (Hayne, Kiefel and Bell JJ). 22 Justice M A Perry, ‘The Riddle of Jurisdictional Error: Comment on Article by O’Donnell’ (2007) 28 Australian Bar Review 336, 340. 23 Justice Mark Leeming, ‘The Riddle of Jurisdictional Error’ (2014) 38 Australian Bar Review 139, 152. 24 (1998) 194 CLR 355. Judicial College of Victoria Journal Volume 05 | 2017 65

Multicultural Affairs v Bhardwaj (‘Bhardwaj’),25 although there are other authorities to that effect.26

In Bhardwaj the Immigration Review Tribunal purported to make a decision in relation to Mr Bhardwaj in September, when he failed to attend a hearing. The Tribunal had been notified that he was unable to attend, but this notice had not reached the particular member constituting the Tribunal. After it realized what had occurred the Tribunal held a hearing and in October it made a different decision in relation to Mr Bhardwaj.27 The High Court held that the September decision was affected by jurisdictional error; thus the Tribunal was notfunctus officio when it made the October decision.28 As a consequence, in law the October decision was the Tribunal’s only decision.

In Bhardwaj, Gaudron and Gummow JJ (McHugh J generally agreeing) said this:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.29

There is some debate as to whether this reflects a majority approach to the consequence of jurisdictional error — in my view it does, but it must be read in light of what preceded it and what followed it. In particular, attention must be given to the following passages from the reasons of Gaudron and Gummow JJ:

[O]nly if the general law so requires or the Act impliedly so directs, are decisions involving jurisdictional error to be treated as effective unless and until set aside. … There being no provision of the Act which, in terms, purports to give any legal effect to decisions of the Tribunal which involve jurisdictional error … it is necessary to consider whether, nevertheless, the Act should be construed as impliedly having that effect.30

Similar remarks were made by Gleeson CJ and by Hayne J.31

That is, notwithstanding the general proposition that a decision affected by jurisdictional error is no decision at all, a majority of the judgments in Bhardwaj contemplated a situation in which a purported decision which is affected by jurisdictional error may be treated as having some legal effect until it is set aside.

25 (2002) 209 CLR 597. 26 See R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 242-3 (Rich, Dixon and McTiernan JJ); Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461, 483 (Dixon J); Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 483 (Gibbs J); Re Coldham; Ex parte Brideson (1989) 166 CLR 338, 349-50 (Wilson, Deane and Gaudron JJ); Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614-15 [51] (Gaudron and Gummow JJ). See also Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420 (Jordan CJ). 27 Bhardwaj (2002) 209 CLR 597, 602 [2] (Gleeson CJ). 28 Ibid 605-6 [14]-[15] (Gleeson CJ). 29 Ibid 614-615 [51] (emphasis added) (citations omitted), 618 [63] (McHugh J). 30 Ibid 614 [50], 615 [54]. 31 Ibid 604-605 [12]-[13] (Gleeson CJ); 647 [153] (Hayne J); see also 614-15 [51] (Gaudron and Gummow JJ). Judicial College of Victoria Journal Volume 05 | 2017 66

This is because a statutory regime may impose legal consequences on the fact that a (purported) decision was made, as opposed to the making of a valid decision. As Justice Perry has put it, ‘the bare fact that a purported decision has been made may provide the factum’ upon which another decision may be made (or consequences may flow) which does have a legal effect on rights and liabilities.32

This understanding of Bhardwaj was reflected in the Full Federal Court decision inJadwan Pty Ltd v Secretary, Department of Health and Aged Care where Gray and Downes JJ said this:

Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.33

This approach avoids some of the problems associated with an absolute theory of invalidity, which would appear to leave people free to ignore a decision affected by jurisdictional error, even before such error has been determined by a court.

This approach — that is, a second exercise in statutory construction after jurisdictional error has been found, to see if nonetheless the infected decision has some legal consequences — has, however, been said to undermine the conclusion that an error is jurisdictional in nature.34 It has been suggested that a conclusion that a purported decision has some effect really means the error in question was not jurisdictional.

I do not think that this criticism is correct. That is, the existence of jurisdictional error permits a court to set aside a decision — but at least until the decision is set aside, it is open to Parliament to give the fact of the making of the decision some legal consequences. Of course, however, a purported decision could only have some legal effect if the relevant Act provided for it to do so.

If a purported decision is affected by jurisdictional error, it will therefore be necessary to determine whether, despite the jurisdictional error, the Act under which it was made requires that it be given (some) legal effect until set aside.

This line of reasoning also raises questions about the application of the doctrine of functus officio in relation to decisions infected by jurisdictional error — and the power of a tribunal that would otherwise be functus to remake its decision in the absence of any court order quashing its first (infected) decision. That is, if an administrative body thinks it made a jurisdictional error, can it treat its own decision as a nullity and proceed to decide again?

In that regard, the statement of Gleeson CJ in Bhardwaj is of assistance, again directing us to consider whether the statute provides for a decision to be re-made or not:

32 Justice M A Perry, ‘The Riddle of Jurisdictional Error: Comment on Article by O’Donnell’ (2007) 28 Australian Bar Review 236, 341. 33 (2003) 145 FCR 1, 16 [42] (emphasis added). 34 See, eg, Steven Forrest, ‘The Physics of Jurisdictional Error’ (2014) 25 Public Law Review 21, 29. Judicial College of Victoria Journal Volume 05 | 2017 67

The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. … The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers…?35

A useful illustration is the registration of a person as a medical practitioner under the law regulating health practitioners.36

(a) If a person is not registered it is a criminal offence for them to hold themselves out as a medical practitioner.

(b) If a person was registered, but the Medical Board had made a jurisdictional error in doing so, then the decision is, on the Bhardwaj approach, legally a nullity and could arguably be ignored or re-made or be quashed on judicial review.

(c) But I would argue that while the person was purportedly registered they committed no offence by holding themselves out as a medical practitioner (assuming no fraud on their part).

(d) And, I would suggest, if the registration decision was quashed for jurisdictional error, that would not mean that the person had previously committed a criminal offence — that is the registration decision can have legal consequences even though it has been quashed.

(e) This conclusion is reached through a process of statutory construction and of course turns on particular features of the statutory scheme for registration of medical practitioners.

V. Differences between Administrative Bodies, Inferior Courts and Superior Courts

A. Differences in the Tests

The second paragraph in the passages quoted above from Craig suggests that inferior courts, although they are subject to review for jurisdictional error, nonetheless have jurisdiction to go wrong — so that the kinds of errors that are jurisdictional for administrative bodies are not jurisdictional for inferior courts. For example, taking into account irrelevant considerations or failing to consider relevant considerations may not constitute a jurisdictional error.

35 (2002) 209 CLR 597, 603-4 [8]. 36 This kind of statutory context (though not this particular fact scenario) was dealt with by Nettle JA in Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2006) — although in that case there was no jurisdictional error. His Honour’s reasoning is, as would be expected, instructive. Judicial College of Victoria Journal Volume 05 | 2017 68

However, some parts of the joint judgment in Kirk suggested that the distinction between courts and administrative bodies was unhelpful.37

(a) First, such a distinction may be unhelpful at State level because it can be difficult, in some cases, to distinguish between an administrative tribunal and a court. In the absence of a strict separation of powers, administrative and judicial functions may be mixed together in the one body at state level and a body may be called a tribunal and yet be a court.

(b) Second, because inferior courts are amenable to certiorari, it is difficult to say that they can ‘authoritatively’ decide questions of law — and questions of their own jurisdiction — in the way that a superior court can.

Nonetheless, Craig clearly articulated a difference in the notion of jurisdictional error as between inferior courts and tribunals, and other parts of the joint judgment in Kirk referred to and relied upon the distinction as articulated in Craig — and the differences in the kinds of error that are jurisdictional. That is, the High Court did not clearly depart from that the distinction drawn in Craig; indeed it appeared to apply it, although it may be that the differences are fewer than was previously thought.

B. The Consequences of Jurisdictional Error for Courts

The question of the consequences of a jurisdictional error is an area where there may be thought to be some difference in the outcome as between superior courts, inferior courts and administrative bodies.

In Kirk the joint judgment acknowledged the tension between two important principles — finality, on the one hand, and the need to compel inferior tribunals to observe the law, on the other. These pull in different directions. And, in the context of criminal trials, and judicial proceedings more generally, the doctrine of functus officiois well-established — once a judgment is entered it cannot, generally, be recalled and re-visited. (Although there are, of course, some statutory exceptions to this).

In Director of Public Prosecutions (Vic) v Edwards (‘Edwards’)38 the Victorian Court of Appeal split on the question of the consequences of a jurisdictional error committed by an inferior court. In Edwards the County Court made a sentencing order that, on any view, it had no power to make. It had misunderstood the scope of its power. But it had sentenced the offender and the sentence had passed into the record. The Court then purported to set aside the first sentence and impose a fresh sentence. Could it do so, or was it functus officio?

37 (2010) 239 CLR 531, 573 [69]-[70]. See also discussion in Leeming, above n 23, 141-2. 38 (2012) 44 VR 114. Judicial College of Victoria Journal Volume 05 | 2017 69

Chief Justice Warren held that the County Court was not functus officio and could correct its error. Her Honour addressed three key questions:

First: was the County Court’s error jurisdictional in nature? She held that it was. The Court had ‘misconceived the extent of its powers’,39 to use the language of Craig.

Second: if it was, at common law does an order of an inferior court affected by jurisdictional error nonetheless have sufficient legal effect to trigger thefunctus doctrine? She held that it did not, relying on the reasoning of Gaudron, Gummow, McHugh and Hayne JJ in Bhardwaj, but with reference to the particular circumstances of inferior courts.

This was because inferior court orders made in excess of jurisdiction generally lack legal effect — in contrast to orders of a superior court, which have legal effect unless and until set aside. This distinction between the effect of the orders of inferior and superior courts is reflected in numerous High Court cases.

One example was Pelechowski v The Registrar, Court of Appeal (NSW),40 where a majority of the High Court held that an injunction purportedly granted by the NSW District Court was a nullity and it was not a contempt to breach it. The majority quoted from Attorney-General (NSW) v Mayas Pty Ltd, a decision of the NSW Court of Appeal:

If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.41

I note, too, that this contrast between orders of an inferior court and orders of a superior court was reiterated by Gageler J in New South Wales v Kable, decided after Edwards:

There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally … In contrast: ‘It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside.’42

Third: if at common law the Court was not functus, had the Parliament altered the position so as to give the purported order sufficient legal effect to attract the operation of thefunctus doctrine? Her Honour concluded that there had been no statutory alteration of the common law position that would give some legal effect to a County Court order vitiated by jurisdictional error.

39 (2012) 44 VR 114, 129 [57]. 40 (1999) 198 CLR 435. 41 (1988) 36 A Crim R 345, 359 (McHugh JA). 42 (2013) 252 CLR 118, 140-1 [56], quoting Cameron v Cole (1944) 68 CLR 571, 590 (citations omitted). Judicial College of Victoria Journal Volume 05 | 2017 70

Thus Warren CJ held that the original sentence was a nullity and it was open to the County Court to re-sentence the offender.

In contrast, Weinberg JA and Williams AJA held that the County Court could not impose a fresh sentence — it was functus officio and the fact it had made a jurisdictional error in the first sentence did not affect the operation of thefunctus doctrine.43 In this regard they overruled the 1972 decision of the Court of Appeal in Bratolli.44

Somewhat curiously, Weinberg JA and Williams AJA relied upon the judgments of Gleeson CJ and Kirby J in Bhardwaj in preference to the joint judgment of Gaudron and Gummow JJ (and McHugh J agreeing).45 Gleeson CJ and Kirby J do not constitute a majority; in fact Kirby J was in dissent.

Although there are differences in the reasoning between the majority and the minority, and their approach to the doctrine articulated in Bhardwaj, to some extent the difference in outcome stems from the different views taken about the question of statutory construction. That is, a different view was taken about whether the statutory regimes applicable evinced a legislative intention that a sentence of the County Court should have legal effect until set aside, even if infected by jurisdictional error. This is, of course, a question on which reasonable minds might differ.

Further, there are persuasive policy arguments on both sides of this case. On the one hand, there is obvious force in the proposition that, once made, a judicial order, whether of a superior or inferior court should not be treated as a nullity, for that would allow a person subject to such an order simply to ignore it. Could a person sentenced to a term of imprisonment simply leave the prison, and not be guilty of escaping custody?46 This approach also leads to uncertainty for those subject to orders or charged with carrying them out.

On the other hand, to recognise a power of self-correction where a court realizes it has made a jurisdictional error has practical benefits in removing the need for a formal appeal or judicial review. It is a power that would be exercised by judges, judicially, and there is some merit in permitting that course. This has been recognised in other states that have clear statutory provisions dealing with the correction of error by inferior courts. Indeed, the Sentencing Act 1991 (Vic) has now been amended to give the courts of Victoria the same power.47

VI. Conclusion

Although jurisdictional error is at the heart of Australian administrative law, there are some aspects of administrative law where jurisdictional error is not required, and it is worth bearing these in mind. The first is statutory review for non-jurisdictional error, such as review under

43 Edwards (2012) 44 VR 114, 162 [231]–[235]. 44 R v Brattoli [1971] VR 446. 45 Edwards (2012) 44 VR 114, 162 [232]. 46 An example given in Edwards (2012) 44 VR 114, 161 [225]. 47 Sentencing Act 1991 (Vic) s 104B. Judicial College of Victoria Journal Volume 05 | 2017 71

the Administrative Decisions Judicial Review Act 1977 (Cth). The second is the availability of injunctive and declaratory relief in the absence of jurisdictional error.

In this regard there is, in my view, an under-explored and under-utilised proposition in Project Blue Sky that although the programming standard in issue in that case was not invalid, nonetheless declaratory or injunctive relief may be available to preclude the decision-maker acting unlawfully in the future:

Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. … [A] person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.48

And in fact the Court made a declaration that the Australian Content Standard was unlawfully made.

Other examples include Ainsworth v Criminal Justice Commission49 and Plaintiff M61/2010E v Commonwealth,50 two cases where the High Court held that certiorari was not available, but granted declaratory relief.

I want to finish with a passage fromKirk , quoting Professor Jaffe:

denominating some questions as ‘jurisdictional’ is almost entirely functional: it is used to validate review when review is felt to be necessary ... If it is understood that the word ‘jurisdiction’ is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified.51

Returning to the idea of jurisdictional error summed up in one sentence, perhaps the one sentence isn’t ‘It’s all about the statute’, but rather ‘How bad was the error?’’

48 (1998) 194 CLR 355, 393 [100]. 49 (1992) 175 CLR 564. 50 (2010) 243 CLR 319. 51 (2010) 239 CLR 531, 570-1 [64] quoting Louis L Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70 Harvard Law Review 953, 963.