The Centrality of Jurisdictional Error: Rationale and Consequences Lisa Burton Crawford and Janina Boughey*

Jurisdictional error has emerged as a central concept of Australian administrative law. Yet, it is not without its critics. As recent case law has revealed, there are also aspects of judicial review doctrine that do not cohere with the distinction between jurisdictional and non-jurisdictional errors of law, and the constitutional principles that underpin it. This article reiterates the core case for the distinction between jurisdictional and non-jurisdictional errors of law, and addresses the doctrinal implications of this theory for the ambit of judicial review remedies and the scope of the entrenched minimum provision of judicial review in light of recent case law.

I. INTRODUCTION In administrative law, there are “mistakes and mistakes”.1 More specifically, in Australian administrative law there is a distinction drawn between jurisdictional and non-jurisdictional errors of law. This distinction plays a pivotal role in judicial review jurisprudence. It will determine whether a court has jurisdiction to review an administrative decision, which forms of relief a court may grant, and whether review can be precluded by Parliament.2 Yet, the concept of jurisdictional error is an unpopular one. Some claim that the distinction between jurisdictional and non-jurisdictional errors is a chimaera: an esoteric feature of Australian law that ought to be abandoned, as it appears to have been elsewhere.3 Others take issue with the particular way in which it is drawn by the courts, which is by construing the statute from which the power in question derives, arguing that this approach is unprincipled and confusing.4 These criticisms seem to have had little effect on the High Court. Recent case law reveals no appetite for abandoning the concept of jurisdictional error; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (Probuild),5 Maxcon Constructions Pty Ltd v Vadasz6 and Hossain v Minister for Immigration and Border Protection (Hossain)7 reaffirm its centrality. However, that case law also reveals that there are aspects of judicial review doctrine that must be reassessed, and potentially revised, in order to cohere with the distinction between jurisdictional and non-jurisdictional errors of law and the constitutional principles that underpin it.

* Lisa Burton Crawford: Senior Lecturer, University of New South Wales Faculty of Law. Janina Boughey: Senior Lecturer, University of New South Wales Faculty of Law. The authors thank Mark Aronson and the anonymous reviewer for their very helpful comments. 1 Maxcon Constructions Pty Ltd v Vadasz (2018) 92 ALJR 277, 283 [35] (Gageler J); [2018] HCA 5, quoting R v Toohey; Ex p Northern Land Council (1981) 151 CLR 170, 268, quoting Hebburn Ltd, Ex p; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420. 2 Subject to the discussion in Part IV. 3 See, eg, Margaret Allars, “The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale” in Debra Mortimer (ed), Administrative Justice and Its Availability (Federation Press, 2015) 74; Matthew Groves, “Judicial Review of Administrative Action in the High Court of Australia” (2008) 33 Queen’s Law Journal 327, 372; Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146, 184 [129] (Kirby J); [2008] HCA 32. 4 See, eg, Hon Justice John Basten, “Jurisdictional Error after Kirk: Has It a Future?” (2012) 23 PLR 94; Aaron Moss, “Tiptoeing Through the Tripwires: Recent Developments in Jurisdictional Error” (2016) 44 Federal Law Review 467. 5 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; [2018] HCA 4. 6 Maxcon Constructions Pty Ltd v Vadasz (2018) 92 ALJR 277; [2018] HCA 5. 7 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34.

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Please note that this article is being provided For information concerning permission to for research purposes and is not to be repro- republish material from this journal, either in duced in any way. If you refer to the part or in its entirety, in any medium, please article, please ensure you acknowledge both refer to http://sites.thomsonreuters.com.au/ © 2019 Thomson Reuters (Professional) Australia Limited the publication and publisher appropriately. journals/permissions. for further information visit www.thomsonreuters.com.au The citation for the journal is available in the For general permission queries, contact or send an email to [email protected] footline of each page. [email protected] The Centrality of Jurisdictional Error: Rationale and Consequences This article sets out the core case for the distinction between jurisdictional and non-jurisdictional errors of law. It argues that the distinction is necessitated by the constitutional distribution of powers between Parliament and the courts. It also suggests that the current approach to identifying jurisdictional error – that is, by interpreting the empowering statute – is not as incoherent or unprincipled as some suggest. It may be the only method for distinguishing between jurisdictional and non-jurisdictional errors of law that cleaves to the constitutional purpose of the distinction; and at the least, it is no worse than the alternative methods for triaging errors of law that have evolved in those jurisdictions which ostensibly abandoned the concept of jurisdictional error. The article then turns to focus on those aspects of the jurisprudence that do not neatly fit with the jurisdictional/non-jurisdictional error distinction, and its underlying purpose. First, it examines the proposition that certain judicial review remedies – in particular, certiorari and injunction – are not confined to cases of jurisdictional error, a well-known anomaly recently revisited in the case ofProbuild . It argues that certiorari for non-jurisdictional error of law on the face of the record ought to finally be interred, while a more nuanced understanding of the ambit of injunction is required. Second, it examines the ambit of the entrenched minimum provision of judicial review, and the uncertainty created by the decisions in Plaintiff S157/2002 v Commonwealth (Plaintiff S157)8 and Kirk v Industrial Court (NSW) (Kirk)9 and highlighted in the more recent case of Kaldas v Barbour (Kaldas):10 that is, does the Australian Constitution provide a guarantee of judicial review for jurisdictional error, or the right to seek certain forms of relief? The recent case law reveals that it cannot do both. While the immediate focus of this discussion is what some might describe as technicalities of judicial review jurisprudence, it provides an insight into the broader arc of administrative law, and the competing challenges of legitimacy and dynamism that any such body of law must meet – a task potentially made more difficult in Australia by the presence of our written, rigid Constitution. Judicial review has evolved from a disparate set of remedial orders into a distinct body of law;11 from a body of law whose primary function was to supervise the decisions of inferior courts into a far more ambitious mechanism for supervising the exercise of a vast array of judicial and administrative powers. This evolution has produced a degree of doctrinal untidiness, as courts have struggled to adapt old legal principles so as to fit their contemporary purpose. The text and structure of the Australian Constitution provides an anchor for, and lends a degree of legitimacy to, the institution of judicial review – yet continues to raise questions about the extent to which this body of law must remain tethered to the past.

II. THE CORE OF THE CASE FOR JURISDICTIONAL ERROR The High Court has said: There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction.12 In the past, the courts developed lists or categories of error that would or would not amount to acting without power.13 While these are still sometimes alluded to, it is said that there is no “rigid taxonomy” of jurisdictional error.14 What is now clear is that a jurisdictional error is one which will invalidate the

8 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2. 9 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1. 10 Kaldas v Barbour (2017) 326 FLR 122; [2017] NSWCA 275. 11 Will Bateman and Leighton McDonald, “The Normative Structure of Australian Administrative Law” (2017) 45 Federal Law Review 153. 12 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 571 [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1, quoting Re Refugee Review Tribunal; Ex p Aala (2000) 204 CLR 82, 141 [163] (Hayne J); [2000] HCA 57. 13 See, eg, Craig v South Australia (1995) 184 CLR 163, 179. 14 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 574 [73]; [2010] HCA 1.

(2019) 30 PLR 18 19 Crawford and Boughey exercise of power;15 the question is whether, as a matter of statutory interpretation, Parliament can be taken to have intended the error in question to lead to invalidity.16 To be clear, each kind of error is a legal error. It is important not to confuse the distinction between jurisdictional and non-jurisdictional errors with the distinction between errors of law and errors of fact, or other errors that pertain to the merits of a decision.17 Nor is it quite right, as Edelman J explained in Probuild, to describe the distinction between jurisdictional and non-jurisdictional errors as one between those errors of law Parliament has authorised the decision-maker to make, and those Parliament has not so authorised.18 The distinction is rather between two kinds of legal errors, which have different legal consequences.19 Thus there is no particular magic to the label of “jurisdictional error”. It is, as Aronson argued, a conclusory one.20 What is important is the concept which that label denotes. It would be equally apt, it seems, to describe a jurisdictional error as an invalidating error, and a non-jurisdictional error as a non-invalidating one.21 Hence, the distinction between jurisdictional and non-jurisdictional errors of law is a device for distinguishing between those errors of law which, the empowering statute stipulates, lead to invalidity, and those which, the statute stipulates, do not.22 This distinction is required because Australian Parliaments are supreme, and because Australian constitutions give legislatures significant leeway to define the scope of executive power as they think fit – including so as to impose legal limits on the power, breach of which does not lead to invalidity. Of course, Australian Parliaments do not enjoy unlimited legislative power. State and federal legislative power is constrained by State and federal constitutions. However, neither State constitutions, nor the Australian Constitution, impose significant constraints on the scope of executive power that Parliaments may confer, nor do they forbid the imposition of legal limits on executive power, breach of which does not lead to invalidity.23 As Gaudron and Gummow JJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj: “[T]he Parliament may give an administrative decision whatever force it wishes.”24 In short, then, the distinction between jurisdictional and non-jurisdictional errors is required because of the constitutional distribution of powers between Parliament and the courts vis-à-vis executive power. The Parliament’s role is to define the statutory authority of the Executive,

15 Craig v South Australia (1995) 184 CLR 163, 179; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 506 [76]; [2003] HCA 2; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614–615 [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646–647 [152] (Hayne J); [2002] HCA 11. 16 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 375 (Brennan CJ), 388–389 (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, 320 [73] (McHugh J), 353–354 [205] (Hayne J); [2005] HCA 24. See also Minister for Immigration and Border Protection v Hossain (2017) 252 FCR 31, 46 [57] (Mortimer J); [2017] FCAFC 82. 17 For this reason, it is wrong to suggest that judicial review on the ground of non-jurisdictional error would transgress the separation of powers, as in Re Minister for Immigration and Multicultural Affairs; Ex p Hieu Trung Lam (2003) 241 CLR 1, 24–25 (McHugh and Gummow JJ); [2010] HCA 19; Re Minister for Immigration and Multicultural Affairs; Ex p S20/2002 (2003) 77 ALJR 1165, 1176 [59] (McHugh and Gummow JJ); [2003] HCA 30. 18 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248, 275 [107] (Edelman J); [2018] HCA 4. 19 See also Peter Cane, Leighton McDonald and Kristen Rundle, Principles of Administrative Law (OUP, 3rd ed, 2018) 94. 20 Mark Aronson, “Jurisdictional Error Without the Tears” in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (CUP, 2007) 330, 344; Basten, n 4, 105; John Basten, “The Supervisory Jurisdiction of the Supreme Courts” (2011) 85 ALJ 273, 287. 21 If one were sceptical of the claim that jurisdictional error necessarily leads to invalidity, it could more cautiously be described as one that leads to certain remedial consequences. The primary point – that the distinction is between errors of law with different legal consequences – remains. 22 As alluded to above, statutes rarely make this stipulation expressly; typically, it must be inferred from the text, context and purpose of the statute, read in light of interpretive canons. 23 The ways in which the Constitution does constrain the permissible scope of statutory executive power are discussed in Lisa Burton Crawford, “The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’” (2017) 45 Federal Law Review 569. By contrast, Australian Constitutions impose relatively thick constraints on Parliament’s ability to oust judicial review. 24 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 613 [47]; [2002] HCA 11. Note, this was said to be subject to the Constitution, but the authors express this caveat above.

20 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences including specifying when breaches will take a decision-maker beyond their authority; and the courts’ role is to determine whether this authority has been breached and issue appropriate remedies. The premise of this approach is that a decision or act can be legally valid, even though it is legally flawed. Hence, the courts may find that an administrative actor has breached the law, yet also conclude that they had legal authority to act as they did. At first blush, these propositions seem troubling. One might ask how an administrative decision made in breach of the law could still be valid and effective. But there are myriad reasons why we may accept that certain limitations on executive power are not conditions of validity. The nature of that limitation; the identity of the decision-maker, the nature of the decision, the consequences of invalidating a decision in a particular case, the express words of the empowering statute, or any combination thereof may lead us to conclude that a failure to comply with a particular rule does not invalidate the exercise of power. The ability of a reviewing court to remedy a non-jurisdictional error of law is limited. If the only error of law that an applicant can point to is a non-jurisdictional one, then they will not be entitled to certain forms of relief. Subject to the discussion in Part IV, judicial review on non-jurisdictional grounds may also be ousted altogether. The fact that the courts’ ability to remedy non-jurisdictional errors is limited does not necessarily pose a fundamental challenge to the rule of law. No one seriously supposes that the rule of law demands unfettered access to judicial review, or that the courts should be able to remedy each and every legal error that an executive actor may make. That would be practically impossible. It may well prove undesirable. The Australian Constitution does impose significant constraints on Parliaments’ ability to oust judicial review, which has been described as a “guarantee of protection under the rule of law”.25 Yet, according to the weight of authority, the scope of that guarantee is determined by the text and structure of the Constitution, not the requirements of the rule of law considered in abstract.26 In other words, the Constitution provides protections that tend to promote the rule of law, but the rule of law does not tell us what the Constitution provides. Further, the propositions that legislatures are empowered to define the scope and force of executive action, and that the Executive may make certain legal errors that courts cannot remedy, are almost universally accepted in Australian law.27 Indeed, these propositions are generally accepted elsewhere too, even in those jurisdictions that have ostensibly done away with the labels of jurisdictional and non- jurisdictional errors of law. As Baroness Hale explained in R (Cart) v Upper Tribunal, “a certain level of error is acceptable in a legal system which has so many demands upon its limited resources”.28 In other jurisdictions, including the United Kingdom and Canada, courts simply employ a different methodology to determine which legal errors Parliament intended to take a decision-maker beyond the scope of their authority, and start from a different presumption.29 The difficult question is how and where to draw the line – between those errors that do attract relief, and those that do not. One might agree that not all errors should lead to invalidity, but might object to giving Parliament the final say on this issue. But surely the answer to that question (of how the line between errors that lead to invalidity and those that do not should be drawn) must depend upon the surrounding legal and constitutional framework. In a legal system such as Australia’s, the fundamental principles of which include both the rule of law and parliamentary supremacy, jurisdictional error seems a sound

25 Chief Justice Wayne Martin, “National Lecture on Administrative Law 2014: Peripheral Vision? Judicial Review in Australia” (Lecture delivered at the Australian Institute of Administrative Law National Conference, University of Western Australia, 24 July 2014) 19. 26 This is not to say this area of the law is entirely clear; this is revisited in Part IV. 27 The only judge to seriously challenge the distinction between jurisdictional and non-jurisdictional errors appears to be Kirby J. See, eg, Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146, 184 [129]; [2008] HCA 32. In any event, it is not clear his Honour would have supported replacing this distinction with unfettered judicial review. 28 R (Cart) v Upper Tribunal [2012] 1 AC 663, 684 [41]; [2011] UKSC 28. 29 See further Janina Boughey and Lisa Burton Crawford, “Reconsidering R (on the application of Cart) v Upper Tribunal and the Rationale for Jurisdictional Error” [2017] Public Law 592.

(2019) 30 PLR 18 21 Crawford and Boughey device for distinguishing between those errors of law that a court can remedy, and those that a court cannot; indeed, it may be the only device that coheres with the constitutional distribution of powers between Parliament and the courts. The Australian case law is consistent with this understanding. The fact that the distinction rests on what Parliament has expressly or impliedly authorised means that the question of which category a particular error falls into must be answered on a case-by-case basis. It will depend on the particular statute, the nature of the decision, the nature of the limit that has been breached, and a range of other factors particular to each case. In other words, it is not possible to compile a list of categories of error that would or would not amount to acting without power, or provide a “rigid taxonomy” of jurisdictional error. The distinction has been criticised as being unprincipled due to the seemingly “ad hoc” way in which it is applied, which is said to make the distinction so malleable as to act as a smokescreen for judicial choice.30 In fact, the principled explanation for the distinction means that it is necessarily ad hoc. However, this means that the more explicit bases on which the High Court has sometimes explained the constitutional rationale for the distinction between jurisdictional and non-jurisdictional error are wrong. For example, members of the Court have suggested that the selection of remedies in s 75(v) of the Constitution, the implied separation of the judicial power, and the essential and defining characteristics of “State Supreme Courts” (as referred to in the Australian Constitution) all in some way require a distinction between jurisdictional and non-jurisdictional errors of law. Yet, none of these features of the Australian constitutional framework provide a convincing justification for retaining that distinction, or at least not at both the State and federal level, for reasons explained at length elsewhere.31 The only compelling explanation for the distinction is that it reflects the scope of legislative power to define the limits of executive power and its legal effect. This means that the courts are not free to replace the distinction with some other device for delineating errors that lead to invalidity and those that do not. For example, it has been suggested that Australian courts could replace it with a more “functional” method of rationing judicial resources, such as a leave requirement,32 or a more values-based approach.33 Under the approach Australian courts currently take – which focuses on ascertaining Parliament’s “intention” through statutory interpretation – functional or principled concerns can be relevant. For example, the practical effects of invalidity may lead a court to conclude that Parliament has authorised that decision to be made; this is perfectly permissible under the current statutory approach.34 What would appear to be constitutionally impermissible is an entirely functional approach, whereby courts ignore the content of the empowering statute and decide for themselves, on the basis of free-floating principle, whether an error of law ought to lead to invalidity, or not. It may be more just or more economical for courts to restrict judicial review to errors that raise important legal points, or to decisions that have particularly grave consequences for an aggrieved individual. But there is no clear, accepted constitutional principle that would support such an approach. Thus, while the authors do not take issue with the suggestion that a leave requirement could simplify and improve some aspects of judicial review, it is contended that a device would still be required to determine which errors Parliament intended to lead to invalidity, and which it did not. This device need not be labelled “jurisdictional error”, but the idea that that label presently connotes in Australia is necessary.

30 See, eg, Michael Taggart, “‘Australian Exceptionalism’ in Judicial Review” (2008) 36 Federal Law Review 1, 8–10; Groves, n 3, 372. 31 Janina Boughey and Lisa Burton Crawford, “Jurisdictional Error: Do We Really Need It?” in Mark Elliott, Jason NE Varuhas and Shona Wilson Stark (eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, 2018) 395, 406–413. 32 Basten, n 4. 33 Moss, n 4. 34 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 391–392 [94]–[98] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28. The decision in Hossain can potentially be explained on this basis; there, the Court concluded that Parliament should not be taken to intend that an immaterial error will invalidate the exercise of power. This decision is discussed in Part III.

22 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences

III. IMPLICATIONS FOR REMEDIES It is clear that jurisdictional error has emerged as the central concept in Australian administrative law, and that it is here to stay. The preceding part explained why a distinction between jurisdictional and non- jurisdictional errors is indeed required in Australian law. Yet, there are clearly aspects of administrative law doctrine that do not cohere with that distinction, or the constitutional principles which underpin it. The present untidiness reflects the fact that, for many decades, the constitutional foundation of the distinction has been somewhat obscured. It also reflects the fact that the concept of jurisdiction has itself evolved over centuries, as judicial review developed from a mechanism by which superior courts supervised the decisions of inferior courts, to a far broader mechanism for supervising the exercise of judicial and executive power. The legal principles that determine the ambit of judicial review remedies were often established before the constitutional purpose of jurisdictional error – or judicial review, more broadly – were settled in the terms described above. The following discussion explores three aspects of judicial review doctrine that appear in need of revision, in light of the distinction between jurisdictional and non-jurisdictional errors of law. As explained above, the categorisation of an error of law – as jurisdictional or otherwise – will determine which remedies a reviewing court can issue. The established position is that prohibition and mandamus only lie to remedy jurisdictional errors of law. More specifically, prohibition forbids the invalid exercise of power, and mandamus compels the performance of a legal duty, where either there has been no performance in law as a result of jurisdictional error, or no performance in fact (which is itself a failure of jurisdiction).35 But there are two anomalous remedies, which are apparently not so constrained. First, since at least 1951 it has been said that certiorari may be issued to quash an administrative decision vitiated by jurisdictional error (if that is needed), but also an administrative decision vitiated by non- jurisdictional error, if the non-jurisdictional error appears on the face of the record of the decision.36 The latter is referred to hereafter as the “extended ambit” of certiorari. Secondly, in recent decades the High Court stated that injunctive relief is not limited to cases of jurisdictional error.37 This Part examines whether this approach is sound.

A. The Extended Ambit of Certiorari The extended ambit of certiorari has long been viewed as an oddity: difficult to square with the more fundamental distinction between jurisdictional and non-jurisdictional errors of law, but accepted on the basis of precedent, and in light of specific concerns pertaining to the relationship between superior and inferior courts, explained below.38 This problem was revisited in the recent case of Probuild. This case concerned the Building and Construction Industry Security of Payment Act 1999 (NSW), which established a scheme by which contractors could recover progress payments for their work by lodging claims to be determined by an appointed adjudicator.39 Shade Systems applied for adjudication of its claim against Probuild, which the adjudicator upheld; Probuild then sought certiorari in the Supreme Court of New South Wales to quash the adjudicator’s decision. Ultimately, the only error of law that the adjudicator could be shown to have made was a non-jurisdictional one:40 the record of the decision

35 As the High Court explained, as obiter, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex p Palme, this means that mandamus may be issued to compel performance of a statutory duty, even if the failure to perform that duty would not invalidate the underlying exercise of power: (2003) 216 CLR 212, 224 [41], 226 [48] (Gleeson CJ, Gummow and Heydon JJ), 228 [57] (McHugh J); [2003] HCA 56. 36 For a time, it was thought that certiorari was only available to remedy jurisdictional errors of law. The extended ambit of certiorari was resurrected by the decision in R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1951] 1 KB 711. 37 One might deduce that the remedy of declaration is similarly not limited to jurisdictional errors, but that issue is not pursued here. 38 See, eg, JM Fitzgerald and ID Elliott, “Certiorari: Errors of Law on the Face of the Record” (1964) 4 University of Melbourne Law Review 552. 39 The case of Maxcon Constructions Pty Ltd v Vadasz (2018) 92 ALJR 277; [2018] HCA 5, handed down the same day, involved almost identical South Australian legislation. Similar legislation exists in other States and Territories. 40 An earlier argument as to denial of procedural fairness failed.

(2019) 30 PLR 18 23 Crawford and Boughey revealed an error in the calculation of damages. The question which made its way to the High Court was: could the decision of an adjudicator be reviewed on this basis, or was judicial review precluded by the Security of Payment Act? The High Court held that judicial review had, in these circumstances, been ousted – even though the Act did not include an express privative clause. Given the error of law in question was non-jurisdictional in nature, the entrenched minimum provision of judicial review was not directly engaged. The primary focus of the case was how to interpret the Security of Payment Act, and in particular, whether the legislation should be read narrowly so as to preserve judicial review. This has long been a point of conflict between courts and Parliaments, as Edelman J observed at the start of his judgment.41 While there is a constitutionally entrenched minimum provision of judicial review in Australian law, this guarantee has come to be buttressed by interpretive presumptions. In particular, access to the courts is often described as a “fundamental right”, of the kind protected by the interpretive presumption known as the principle of legality.42 It is also regarded as an essential element of the rule of law.43 Thus Australian courts will typically read statutes which purport to interfere with judicial review narrowly, so as to preserve the supervisory jurisdiction of the courts to the greatest extent possible, within the realms of constructional choice. Against this backdrop, the decision in Probuild is striking – for the High Court effectively read in an ouster clause. This was the result of a more nuanced approach to the principle of legality. Indeed, Gageler J concluded that the principle of legality was not engaged at all. His Honour concluded: [P]reservation of a discrete jurisdiction on the part of a superior court to issue certiorari to quash for non-jurisdictional error of law has been fairly been referred as “anomalous”. The continuing concurrent existence of such a jurisdiction to quash for non-jurisdictional error of law on the face of the record the decision of a person or body that is not a court of record might be described … as an “accident of legal history”. Perhaps more accurately, it might be described as the aftermath of a failed mid-twentieth century experiment of the common law. If it is not yet to be buried, it is certainly not now to be exalted.44 In other words, the right to seek this form of relief should not be protected by the interpretive presumption known as the principle of legality. This passage alludes to the historical origins of certiorari, and its uneasy extension into the administrative law realm. Historically, certiorari was only available to remedy unlawful decisions of courts, bodies comprised of the same personnel as courts (eg justices of the peace), or bodies that behaved like courts some of the time.45 It was, in essence, a device by which superior courts could supervise their inferiors.46 Inferior courts derived their jurisdiction from both statutory and non-statutory sources. Where a court’s jurisdiction was non-statutory – for example, in the case of an ecclesiastical court – there was no danger of a reviewing court trenching upon the legislative powers of Parliament if it were to remedy a decision vitiated by non-jurisdictional error. However, concerns of intra-curial respect and comity meant that

41 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248, 269 [84]; [2018] HCA 4. 42 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [30] (Gleeson CJ); [2003] HCA 2. 43 Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70 (Brennan J). 44 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248, 267–268 [77]; [2018] HCA 4. 45 R v Local Government Board (1882) 10 QBD 309, 321; John Shortt, Informations (Criminal and Quo Warranto) Mandamus and Prohibition (William Clowes, 1887) 439; John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 782–783; SA De Smith, “The Prerogative Writs” (1951) 11 Cambridge Law Journal 40, 48–49; Harry Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 8th ed, 2018) 861–865. 46 Bradley Selway, “The Principle Behind Common Law Judicial Review of Administrative Action – The Search Continues” (2002) 30 Federal Law Review 217, 236. Burton states that at the time of Federation, certiorari “remained conceptually tied to the concept of judicial power – perhaps even more so than prohibition. This understanding lingered long after Federation. Analogies are still drawn between certiorari and appeal”. She argues that the selection of remedies in s 75(v) – and the decision to include injunction and not certiorari – suggests that it was primarily envisaged as a means of supervising the exercise of non-judicial, statutory power, and preventing or compelling actions that had not been taken, and not because it might issue to remedy non- jurisdictional errors of law: Lisa Burton, “Why These Three? The Significance of the Selection of Remedies in Section 75(v) of the Australian Constitution” (2014) 42 Federal Law Review 253, especially 272.

24 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences superior courts would rarely intervene to review steps taken or decisions made in the course of deciding a matter which, broadly speaking, an inferior court had authority to hear.47 The exception was where the error of law appeared on the face of the record of the inferior court’s decision. The Court of King’s Bench insisted that inferior courts produce a record setting out details of the document or information initiating proceedings that gave the court jurisdiction over the matter, as well as setting out its adjudication. The Court would issue certiorari if an error appeared on that record: thus certiorari was, in essence, a device for remedying patent errors; no distinction was initially drawn between jurisdictional and non-jurisdictional errors of law.48 One might suppose that a superior court was more comfortable taking this broader approach because it did not require the superior court to inquire into the internal proceedings of the court below. It must be kept in mind that at that time, and in that context, the concept of jurisdiction was far more limited than it is today.49 Thus the writ of certiorari expanded the supervisory jurisdiction of the King’s Bench beyond the quite narrow set of jurisdictional defects that would attract other forms of relief. It is now assumed that certiorari lies against non-courts, and non-court-like bodies: in other words, the whole gamut of administrative decision-makers who are otherwise amenable to judicial review.50 However, the extended ambit of certiorari does not fit neatly into this new jurisprudence. First, it is not immediately apparent what the “record” of an administrative decision is: while there are formal rules that govern the recording of most judicial decisions, administrative decisions may not (and need not necessarily) be formally recorded in such a way.51 More fundamental questions also arise. Certiorari quashes. As Aronson, Groves and Weeks explain, certiorari “is an order … expunging the impugned decision, and the record thereof. In other words, certiorari is used to wipe the slate clean, to get rid of something”.52 More specifically, “certiorari quashes some or all of the adverse legal consequences of a relevantly flawed event”.53 The question, then, is why a court would be permitted to quash a decision vitiated only by a non-jurisdictional error of law – that is, a decision that was authorised by statute. Why can a reviewing court deprive a decision of its legal effect, when the decision is one that Parliament has validly empowered to be made? Indeed, why can a reviewing court deprive a decision of an inferior court of its legal effect, where the inferior court was exercising statutory power and the decision was within its scope? At first blush, either scenario seems inconsistent with the constitutional distribution of powers between Parliament and the courts. The matter is not assisted by the distinction that some seek to draw between “void” and “voidable” decisions.54 It might be said that a decision vitiated by non-jurisdictional error of law is, in a sense, not void: it is authorised by law. However, if a reviewing court later discovers that that decision is sullied by a patent error of law, it may quash it via certiorari; in this sense, it might be described as voidable. While it has received some support from members of the High Court,55 the distinction appears to be premised on

47 Boughey and Crawford, n 31, 397. 48 R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] KB 338, 352 (Lord Denning). See also Philip Murray, “Escaping the Wilderness: R v Bolton and Judicial Review for Error of Law” (2016) 75 Cambridge Law Journal 333, 337. As Murray also explains, a distinction between jurisdictional and non-jurisdictional errors of law only came to be drawn in this context due to concerns that the record might not reveal – or indeed, might conceal – that the decision had been made beyond power, and hence the reviewing court began accepting evidence external to the record: 337–338. 49 See generally Woolf et al, n 45, 209–210. 50 Re McBain; Ex p Australian Catholic Bishops Conference (2002) 209 CLR 372, 417 [98] (McHugh J); [2002] HCA 16; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 522 [123] (Callinan J); [2003] HCA 2. 51 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248, 256–266 [69] (Gageler J); [2018] HCA 4. 52 Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) 842. 53 Aronson, Groves and Weeks, n 52, 844. 54 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 613 [46] (Gaudron and Gummow JJ, with whom McHugh J agreed); [2002] HCA 11. 55 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 631–632 [102]–[105] (Kirby J), 643 [144] (Hayne J); [2002] HCA 11.

(2019) 30 PLR 18 25 Crawford and Boughey an unrealistic understanding of validity which cannot be reconciled with the reality of judicial practice. A decision vitiated by jurisdictional error lacks legal authority, but in reality it must be treated as valid unless and until a court decides otherwise.56 In this respect, Cane, McDonald and Rundle suggest that where it is issued to remedy a non-jurisdictional error of law, the effect of certiorari is prospective only.57 Aronson, Groves and Weeks disagree, and seem to have the predominance of case law on their side.58 Whatever the correct view, it would not seem to meet our more fundamental objection, that if a reviewing court were to retrospectively or prospectively quash a decision vitiated only by a non-jurisdictional error of law, it would be invalidating that which Parliament had authorised – and this is something the Constitution appears to forbid. The only way in which the concept of a voidable decision would apparently support the extended ambit of certiorari is if we were willing to accept that Parliaments sometimes impose legal limits of executive power that occupy something of a “halfway house”:59 these limits are not necessarily conditions of validity, but if their breach manifests itself on the face of the record of the decision, then they are. It is not clear what would justify the courts in recognising such “halfway house” limitations. That would depend upon the view one takes of statutory interpretation, and its boundaries. For example, is the claim that Parliament actually formed the specific intention that certain errors of law would invalidate the exercise of power if, but only if, they appear on the face of the record? That would strike many as implausible. It would also sit uneasily with the many passages of High Court case law that insist Parliament is incapable of forming actual intentions.60 In the alternative, can a reviewing court legitimately impute such an intention to Parliament and, if so, on what basis? For example, is the claim that Parliament has in some sense delegated to the reviewing court the authority to decide which particular breaches of a statutory rule ought to lead to invalidity in a given case? That claim would seem contentious. Yet, it is apparently supported by the recent decision in Hossain.61 There, the High Court emphasised that jurisdictional error inheres a criterion of materiality, as Parliament should not be taken to intend immaterial errors to invalidate the exercise of executive power.62 As Edelman J explained it: A close examination of legislation will usually have the effect that not every express or implied condition must be construed in a binary way. A legislative condition need not be construed as (i) always depriving a decision maker of power, or (ii) never doing so, not matter how it is breached. The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power?63 This approach was said to reflect Parliament’s intention. Specifically, the Court claimed that Parliament should not be presumed to intend that immaterial errors would invalidate the exercise of power.64 But for

56 HWR Wade, “Unlawful Administrative Action: Void or Voidable?” (1967) 83 Law Quarterly Review 499 (Part I) and (1968) 84 Law Quarterly Review 95 (Part 2); Amnon Rubinstein, Jurisdiction and Illegality (OUP, 1965) 5; Hans Kelsen, General Theory of Law and State (Lawbook Co, 1945) 161. 57 Peter Cane, Leighton McDonald and Kristen Rundle, Principles of Administrative Law (OUP, 3rd ed, 2018) 86–87. 58 Aronson, Groves and Weeks, n 52, 844, and cases cited therein. 59 Justice Nye Perram, “Project Blue Sky: Invalidity and the Evolution of Consequences for Unlawful Administrative Action” (2014) 21 AJ Admin L 62, 70. 60 Zheng v Cai (2009) 239 CLR 446, 445–446 [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ); [2009] HCA 52; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378, [25]; 87 ALJR 131, 138; [2012] HCA 56 ; Momcilovic v The Queen (2011) 245 CLR 1, 44–45 [38] (French CJ), 85 [146] (Gummow J); [2011] HCA 34; Lacey v A-G (Qld) (2011) 242 CLR 573, 592 [43]–[44]; [2011] HCA 10. 61 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34. 62 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, [28]–[29] (Kiefel CJ, Gageler and Keane JJ), [67] (Edelman J); [2018] HCA 34. See also Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, 32 [23] (Gageler and Keane JJ); [2015] HCA 51. 63 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, [67] (Edelman J); [2018] HCA 34. 64 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, [29] (Kiefel CJ, Gageler and Keane JJ), [65], [67] (Edelman J); [2018] HCA 34 .

26 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences the plurality at least, the “intention” referred to here was clearly a constructed one. Indeed, their Honours came close to admitting that the interpretation of statutory conferrals of executive power simply reflects the courts’ own view as to where its limits ought to lie, which the legislature is deemed to accept: The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary.65 This statement will have implications beyond the realm of judicial review. The implications of Hossain itself will require further study. For present purposes, it does appear to support the proposition that the consequences of a legal error depend, not merely on the construction of the statute, but on the particular way in which the statute was breached in a given case. It is not clear if it is desirable, or cogent, to introduce this further layer of complexity in the jurisprudence. As noted above, some have criticised the statutory approach to jurisdictional error as it makes it difficult to ascertain the limits of jurisdiction, which cannot be known in advance. The authors suggest that this degree of uncertainty may be unavoidable, given the constitutional reason courts distinguish between jurisdictional and non-jurisdictional errors: if the question is whether Parliament intended an error to lead to invalidity, the answer must depend upon what the statute says, and hence necessarily be somewhat ad hoc. But the uncertainty created by the extended ambit of certiorari is more pronounced. If courts can quash decisions vitiated by errors that the statute indicates are not jurisdictional in nature, when and if they so happen to appear on the face of the record of the decision, then the limits of jurisdiction can never be fully known in advance; they depend in part upon the actions of the executive officer in a given case. Of course, it is no small thing to argue that the weight of authority concerning the ambit of certiorari is mistaken. The notion that it lies to remedy non-jurisdictional errors of law on the face of the record has been accepted since 1951 and, notwithstanding a period of interruption,66 was accepted for centuries beforehand. Yet, this argument is not entirely unexpected: the extended ambit of certiorari has long been regarded as problematic.67 As our understanding of the constitutional foundation and purpose of judicial review and the distinction between jurisdictional and non-jurisdictional errors of law is refined, it is not entirely surprising that aspects of administrative law doctrine such as this should be revised and reassessed – and ultimately, as argued here, rejected. There is no reason to suspect the extended ambit of certiorari is for some reason entrenched, such that it would be impermissible for the courts to now alter the scope of this remedy. There is no reference to certiorari in the text of the Constitution, though in Kirk (discussed below) the High Court held that aspects of judicial review doctrine that stood at the time of Federation can effectively crystallise into constitutional rules. But the extended ambit of certiorari had fallen into disuse at the time of Federation, and hence it is implausible to suggest that the power to issue certiorari for patent non-jurisdictional error is a “defining characteristic” of State Supreme Courts;68 further, it is not clear that these principles extend to the High Court.69 Thus, the High Court is able to bring the scope of this writ into line with the modern understanding of the constitutional foundation of the purpose and scope of review, and the distinction between jurisdictional and non-jurisdictional error.

65 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, [28] (Kiefel CJ, Gageler and Keane JJ); [2018] HCA 34. 66 R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338. 67 See, eg, Fitzgerald and Elliott, n 38 (though Fitzgerald and Elliott ultimately argue that certiorari should apply to “substantial” errors, a conclusion with which the authors of this article disagree). 68 Burton, n 46, 261. 69 The High Court is a creature of the Australian Constitution, which did not exist before Federation. Its jurisdiction is defined, with detail, in Ch III of the Constitution. It would seem illogical to then argue that the High Court has additional, let alone additional essential, jurisdiction that inheres in the words “High Court of Australia”. On this the authors disagree with Luke Beck, “What Is a ‘Supreme Court of a State’?” (2012) 34 Sydney Law Review 295, 302–303.

(2019) 30 PLR 18 27 Crawford and Boughey B. Injunction Injunction is also said to lie to remedy non-jurisdictional errors of law, whether apparent on the face of the record or not. That is, injunction is said to be available to restrain an executive officer “from acting inconsistently with any applicable legal constraint even when acting within the scope of the authority conferred on that officer by [law]”.70 This proposition is usually traced to the decision in Project Blue Sky Inc v Australian Broadcasting Authority (Project Blue Sky). There, the plurality concluded that the Australian Broadcasting Authority (ABA) had erred in law by making a broadcasting standard that was inconsistent with Australia’s fair-trade agreement with New Zealand. However, the Court concluded that, as a matter of statutory construction, that error did not invalidate the standard. It was, in other words, a non-jurisdictional error. Nonetheless, McHugh, Gummow, Kirby and Hayne JJ stated: “[A] person with sufficient interest is entitled … in an appropriate case, [to] obtain an injunction restraining [the ABA] from taking any further action based on its unlawful action.”71 The proposition is typically justified by the fact that, like declaration, injunction originated in equity. Given it has a very different pedigree from the old prerogative writs, it might seem logical that injunction is not attended by the same constraints. Indeed, as Gaudron, Gummow and Kirby JJ put it in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd: In this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.72 Accordingly, few doubts have been raised about the cogency of issuing injunction for a non-jurisdictional errors of law than the extended ambit of certiorari.73 But of course, whatever its origin, the ambit of injunction must cohere with the constitutional distribution of powers. As a general proposition, the authors agree that injunctions are not limited to cases of jurisdictional error. However, this does not mean that injunctive relief is always available to remedy a non-jurisdictional error of law. A more nuanced account is needed in light of the constitutional principles that underpin the distinction between jurisdictional and non-jurisdictional errors of law. In the authors’ view, that account is as follows: a court can issue an injunction to ensure that the law is not breached, including so as to compel compliance with the law, even if the breach in question would not amount to a jurisdictional error once it occurred. However, a court cannot issue an injunction if the result of that would be to deprive a valid exercise of statutory power of its legal force. In other words, a decision that is a valid exercise of statutory power cannot be undone by a court. To do so would upset the constitutional distribution of powers between Parliament and the judiciary. By way of example, consider the following hypothetical statutory scheme. A statute may empower a minister to rezone land for industrial use, provided the minister gives public notice of their intention to do so 28 days in advance. The statute may then empower the minister to permit development of an

70 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 95 [126] (Gageler J); [2016] HCA 1; Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146, 162 [47] (Gummow, Hayne, Heydon and Crennan JJ); [2008] HCA 32. 71 This was reflected in the order of the Court: “the respondents have liberty to apply for such further or other orders as they may be entitled to arising from the alleged failure of a clause of the Standard to comply with Australia’s obligations under the Australia New Zealand Closer Economic Relations Trade Agreement and the Trade in Services Protocol to that agreement”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 393 [101]; [1998] HCA 28. See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 508 [82] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [2003] HCA 2; Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146, 162 [47] (Gummow, Hayne, Heydon and Crennan JJ); [2008] HCA 32 (though note, their Honours went on to state that “the equitable remedies … operate to declare invalidity and to restrain the implementation of invalid exercises of power”); Mark Leeming, Authority to Decide (Federation Press, 2012) 250. 72 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 257 [25]; [1998] HCA 49. 73 A notable exception is Benjamin O’Donnell, “Jurisdictional Error, Invalidity and the Role of Injunction in s 75(v) of the Australian Constitution” (2007) 28 Australian Bar Review 291. The arguments that follow are consistent with those O’Donnell presents.

28 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences industrial nature on the rezoned land. The process of statutory construction may lead to the conclusion that the legal requirement to give public notice is not a jurisdictional requirement. Hence a failure to give notice would not be a jurisdictional error; a decision to rezone land without providing public notice would be legally flawed, but valid. Assuming that they have standing, could an applicant seek an injunction to remedy the minister’s unlawful actions? That would depend on the point at time at which the injunction is sought. If the applicant somehow became aware that the minister would not comply with the requirement to give public notice, they could obtain an injunction restraining the minister from exercising the power to rezone the land. But if the legal error goes unnoticed and the land is rezoned, the applicant’s options narrow. In this case, the applicant could not, for example, obtain an injunction to stop the minister from granting a permit to develop the rezoned land. That would effectively deprive the decision to rezone land – which is valid – of its legal effect, and this is something a court cannot do. This hypothetical is broadly analogous to the situation in Project Blue Sky74 – and hence it is clear that the authors do not agree with the plurality’s suggestion in that case, that a person with standing could have sought an injunction to stop the ABA from taking further steps in reliance on the legally flawed but valid standard it had created.75 Nonetheless, the account presented here is not radical: it is well known that the utility of judicial review remedies is time dependent, and that there are certain legal consequences that cannot be undone by a court. It is possible to imagine a statutory scheme in which the existence of a legally impeccable standard was a jurisdictional requirement of the ABA taking further action. In that case, injunction could properly lie to restrain the ABA without upsetting the constitutional distribution of powers. Yet, it may be reasonable to conclude that if the existence of a lawful standard was a jurisdictional constraint on other powers conferred by the statute, that legal errors made in the course of making that standard were also jurisdictional in nature.

C. Discretionary Refusal of Relief Jurisdictional error is a necessary ingredient for many forms of judicial relief. However, it is not necessarily sufficient. Rather, the courts are said to have a residual discretion to refuse relief, even if a jurisdictional error has been found. As Gleeson CJ explained in SAAP v Minister for Immigration and Citizenship: The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.76 Yet, these principles are also difficult to square with the concept of jurisdictional error.77 A decision vitiated by jurisdictional error lacks legal authority. Australian administrative law revolves around the notion that the scope of executive power is no more and no less than that which the statute confers – and hence it is not at all clear in principle why a court, having found jurisdictional error, may nonetheless decline to grant such remedies as are necessary to reflect and give effect to that conclusion. In essence, that would appear to amount to a court choosing to authorise that which Parliament has not authorised – and that seems inconsistent with the conceptual foundations of judicial review, if not the constitutional distribution of powers between Parliament and the courts.

74 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 75 By contrast, the conclusions reached by Gaudron J in Muin v Refugee Review Tribunal seem broadly consistent with the argument presented here: Abebe v Commonwealth (1999) 197 CLR 510, 552 [107]–[108]; [1999] HCA 14. 76 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, 322 [80]; [2005] HCA 24. 77 See also Perram, n 59.

(2019) 30 PLR 18 29 Crawford and Boughey There may be ways to resolve this conundrum. The first may lie in recognition of the fact that, while a decision vitiated by jurisdictional error is strictly speaking invalid, in every case there is a further and essential link in the chain: a decision must be found to be invalid by a court with the jurisdiction and power to do so.78 Here, the common law principles that determine the ambit of the writs may play a further role. More specifically, it could be argued that the common law principles that have long informed the ambit of the writs will inform the interpretation of executive power. Some might see some support for this idea in Hossain, discussed above; in his separate but concurring judgment, Edelman J explained this partly on the basis that certiorari would not lie to remedy immaterial breach.79 At present, the issue remains unclear. It is flagged here that this may be another aspect of judicial review’s remedies that the High Court will need to revisit, in light of the developments discussed in Part II. It is also noted that the conclusion in the case of Kaldas, discussed in Part IV – in essence, that the scope of the entrenched minimum provision of judicial review depends in part on the remedial powers of the courts – may inform the issue.

IV. CONSEQUENCES FOR THE ENTRENCHED MINIMUM PROVISION OF JUDICIAL REVIEW Though considerable ink has been spilled on the topic, much about the entrenched minimum provision of judicial review remains uncertain. This article does not focus on the vexed question of whether and to what extent the Constitution guards against arbitrary or over-broad executive power. Rather, it asks – to what extent does the entrenched minimum provision of judicial review mirror the jurisdictional/non- jurisdictional error divide? Can it be said that there is simply a constitutional guarantee of judicial review for jurisdictional error? Or, is the scope of this guarantee more specifically delineated by the scope of the judicial review remedies, and in particular the point at which they stood at Federation? As explained below, the existence of these questions reflects an ongoing difficulty in the field of administrative law, as to the extent to which the technicalities of the ancient prerogative writs continue to constrain the jurisprudence. The uncertainty is also due in large part to the opaque way in which the entrenched minimum provision of judicial review was justified in the foundation cases – first Plaintiff S157, which focused upon the position at the federal level, and then Kirk, which recognised a broadly similar guarantee of judicial review at the State level, albeit with a different basis.

A. The Position at the Federal Level: Plaintiff S157 In Plaintiff S157, the High Court emphasised s 75(v) of the Constitution, portraying it as the textual anchor of the constitutional guarantee of judicial review.80 As the plurality emphasised, two of the remedies listed there – mandamus and prohibition – are only available to remedy jurisdictional errors of law. Therefore, their Honours concluded that “the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot beremoved”. 81 Yet, according to the current case law, and subject to the discussion of the scope of injunction above, the s 75(v) jurisdiction is not delineated by the concept of jurisdictional error. The plurality stated that “it may be that injunctive relief is available on grounds that are wider than those that result in relief by way of prohibition and mandamus” – and left open the question of whether Parliament could oust applications for injunction on such wider, non-jurisdictional, grounds.82

78 Aronson, Groves and Weeks, n 52, 739. See also and further Wade, n 56; Perram, n 59, 69. This may require overturning the problematic decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 – though as Aronson, Groves and Weeks explain, this may be taken to support the broader proposition, that “nullity is relative to context”: n 52, 739. 79 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, [68]; [2018] HCA 34. 80 The authors note that the High Court has repeatedly mentioned that s 75(iii) may provide an additional source of entrenched judicial review jurisdiction. That section makes no mention of specific remedies. If the Court’s statements to this effect are correct, then the remedies-based rationale for the entrenchment of jurisdictional error is further weakened. 81 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512 [98]; [2003] HCA 2. 82 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 508 [82]; [2003] HCA 2.

30 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences Thus, it is uncertain what exactly s 75(v) guarantees: is it jurisdiction to hear matters in which it is claimed an officer of the Commonwealth has made a jurisdictional error, or is it jurisdiction to hear matters in which mandamus, prohibition or injunction is sought against an officer of the Commonwealth – which, depending on the scope of injunction, may not be confined to claims of jurisdictional error? In essence, the question is whether the text of s 75(v) and technicalities of the remedies listed therein is the controlling factor, or the underlying concept of jurisdictional error itself. Other passages in the plurality’s judgment suggest that jurisdictional error is the key. For the plurality also indicated that the entrenched minimum provision of judicial review was based, to some extent, upon the separation of powers – and here, the concept of jurisdictional error also played a central role. Their Honours stated: [T]he judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction.83 This suggests that, apart from s 75(v), a privative clause would be invalid if it purported to oust judicial review on jurisdictional grounds. It should be noted that the plurality also referred to the concept of the rule of law. This is an important passage.84 Given the point in the judgment at which it appears, and the language used by the plurality, it seems that the rule of law was primarily invoked to explain the principled significance of the decision: as a pre-emptive defence against the claim that it turned on a technical “quibble”.85 In other words, the plurality do not seem to suggest that the rule of law is itself, or a source of, justiciable legal norms; rather, the legal norms created by s 75(v) and other parts of the text and structure of the Constitution are said to promote the rule of law, qua political value or ideal.

B. The Position at the State Level: Kirk and Kaldas Given that in Plaintiff S157 the entrenched minimum provision of judicial review was so closely linked to s 75(v) of the Australian Constitution, it seemed reasonable to assume that there was no equivalent guarantee at the State level – there being no equivalent to s 75(v) expressly entrenching the jurisdiction of State courts. In Plaintiff S157, the plurality did suggest that there were other constitutional barriers to the enactment of a privative clause. Yet the implied separation of the judicial power of the Commonwealth appeared to have little relevance for the States either: the particular principle referred to by the plurality, that the judicial power of the Commonwealth cannot be vested in a non-judicial body, appears to have no equivalent at the State level. But of course, in Kirk the High Court found that judicial review was constitutionally protected at the State level – on a different basis. The constitutional basis of the conclusion in Kirk was part empirical, part textual. It was said that: The supervisory jurisdiction of the [colonial] Supreme Courts was at federation … the mechanism for the determination and the enforcement of the limits of the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.86 Indeed, the Court concluded (controversially) that it was “accepted doctrine” at the time of Federation that a State Supreme Court could not be precluded from issuing certiorari for jurisdictional error by a privative clause.87 Upon the enactment of the Australian Constitution, these colonial supreme courts became “Supreme Courts of a State” for the purposes of Ch III, and “it is beyond the legislative

83 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512 [98]; [2003] HCA 2. 84 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513–514 [103]–[104]; [2003] HCA 2. 85 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 511 [98]; [2003] HCA 2. 86 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580–581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1. 87 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580 [97]; [2010] HCA 1.

(2019) 30 PLR 18 31 Crawford and Boughey power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet [that] constitutional description”.88 In other words, the accepted doctrine effectively crystallised into constitutional law. This conclusion was also said to be justified by a structural reading of the Constitution. If State Supreme Courts could be prevented from performing jurisdictional error review, then the decisions immune from their supervisory jurisdiction would be likewise removed from the appellate jurisdiction conferred on the High Court by s 73 of the Constitution, which would undermine the integrated judicial system established by the Constitution. It would, their Honours said, “create islands of power immune from supervision and restraint”.89 This reasoning has been criticised.90 The point for present purposes is that the way in which this constitutional guarantee was explained in Kirk raises the same problem introduced above, all the more acutely: to what extent is the guarantee delineated by the concept of jurisdictional error? The judgment is ambivalent. Its premise is the historical ambit of the prerogative writs. This suggests that the scope of the constitutional guarantee will depend upon the particular, historical scope and application of the judicial review remedies. Yet, the Court also suggests that the concept of jurisdictional error plays a more fundamental role. Indeed, their Honours appear to put the point plainly: [T]he distinction between jurisdictional and non-jurisdictional error … marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.91 These uncertainties were highlighted in the more recent case of Kaldas. Kaldas arose from the NSW Ombudsman’s investigation of and report on the conduct of NSW Police and the Police Integrity Commission known as “Operation Prospect”. The Ombudsman’s report contained a range of adverse findings about the conduct of former Deputy Commissioner of the NSW Police, Naguib (Nick) Kaldas. Kaldas sought declarations that the investigation and report were affected by a range of jurisdictional errors, including that the Ombudsman was not authorised to present the report to Parliament and that Kaldas had been denied natural justice. Kaldas’ choice of remedies was constrained by the fact that, while the Ombudsman’s report clearly affected his reputation, it had no substantial effect on his legal rights; hence, he would not appear to be entitled to certiorari.92 His claim faced another significant hurdle in the form of s 35A(1) of the Ombudsman Act 1974 (NSW), which provides that: The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, manner or thing was done, or omitted to be done, in bad faith. The central questions for the NSW Court of Appeal were whether s 35A(1) barred applications for judicial review of the Ombudsman’s report and conduct during investigations and, if so, whether the clause purported to limit the constitutionally entrenched supervisory jurisdiction of the NSW Supreme Court contrary to Kirk. Kaldas argued that s 35A(1) could not validly do so for, according to Kirk, “legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power”.93

88 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580 [96]; [2010] HCA 1. 89 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580 [99]; [2010] HCA 1. 90 Oscar Roos, “Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales” (2013) 35 Sydney Law Review 781; Jeffrey Goldsworthy, “Kable, Kirk and Judicial Statesmanship” (2014) 40 Monash University Law Review 75. 91 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [100]; [2010] HCA 1. 92 Kaldas v Barbour (2017) 326 FLR 122, 164 [168] (Bathurst CJ), 185 [258]–[259] (Basten J); [2017] NSWCA 275. 93 Kaldas v Barbour (2017) 326 FLR 122, 144 [54] (Bathurst CJ); [2017] NSWCA 275.

32 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences The Court of Appeal found that, properly construed, s 35A(1) excluded the supervisory jurisdiction of the NSW Supreme Court over acts and omissions of the Ombudsman in carrying out an investigation, including claims alleging jurisdictional error.94 Their Honours then held that, so construed, s 35A(1) was valid. In doing so, they emphasised the ambit of the particular remedies the applicant sought. As Bathurst CJ explained, the relief sought was “not the issue of any of the prerogative writs or orders of that nature, but rather declarations and injunctive relief”.95 These were not “orders which at the time of Federation the Court of Queen’s Bench in England was empowered to make in the exercise of its supervisory jurisdiction over inferior tribunals”.96 Basten J explained that it is well established that the prerogative writs apply only to administrative decisions that alter a person’s legal rights, interests or liabilities.97 The decision in Kirk “identified the power of the Supreme Court by reference to the grant of relief ‘in the nature of prohibition and mandamus, and … also certiorari, directed to inferior courts and tribunals on the grounds of jurisdictional error’”.98 Thus, it “did not extend to review of conduct which had no direct effect on individual rights and did not impose liabilities”.99 The Court found that “it is at least doubtful that the power [of State Supreme Courts at Federation] extended to the making of bare declarations”,100 meaning that it would be an extension to the principle established in Kirk to find that the jurisdiction to issue injunctions and declarations for jurisdictional errors, in circumstances where the prerogative writs were not available. Bathurst CJ commented that “[i]t does not seem to me appropriate for an intermediate Court of Appeal to take this step”.101 Thus, Bathurst CJ concluded that a State Parliament can validly oust judicial review of decisions that would not be amenable to the prerogative writs – even if the decisions are vitiated by jurisdictional error. Where the writs are unavailable – for instance, because an administrative decision does not affect the legal rights of a person in the sense required for them to issue – then Parliaments may prevent State courts from remedying executive acts beyond jurisdiction. On this view, the constitutional guarantee of judicial review is primarily delineated by the ambit of the judicial review remedies, not the underlying concept of jurisdictional error. If this is the case, then it is over-broad to say that there is a constitutional guarantee of judicial review for jurisdictional error at the State level. Basten JA, with whom Macfarlan JA agreed, indicated agreement with the conclusions that declaratory relief was not part of the inherent jurisdiction of State Supreme Courts and that the prerogative writs issue only where legal rights or liabilities are affected.102 However, his Honour did not need to complete this chain of reasoning to spell out its implications for State legislative power to oust judicial review,

94 Kaldas v Barbour (2017) 326 FLR 122, 161 [146] (Bathurst CJ), 205 [345] (Basten J); [2017] NSWCA 275 (with whom Macfarlan J agreed on this point). Their Honours disagreed as to the construction of s 35B on the Ombudsman Act 1974 (NSW). Bathurst J (with whom Macfarlan J agreed on this point) found that it operated to permit certain judicial review applications in respect of the Ombudsman’s jurisdiction to conduct an investigation: 161 [147]–[149]. Basten J found that s 39B was temporally limited and permitted judicial review applications prior to an investigation being completed: 210 [366]–[367]. 95 Kaldas v Barbour (2017) 326 FLR 122, 161 [150] (Bathurst CJ); [2017] NSWCA 275. 96 Kaldas v Barbour (2017) 326 FLR 122, 162 [150]; [2017] NSWCA 275. 97 Kaldas v Barbour (2017) 326 FLR 122, 205 [347]; [2017] NSWCA 275, citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. There are some similarities here to the separate but concurring judgment of Edelman J in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; [2018] HCA 4. Edelman J explained that there was not a strong reason to read the legislation narrowly so as to preserve judicial review, not only because the error in question was non-jurisdictional in nature, but also because “the adjudicator’s determination is not, in a practical sense, concerned with a final adjudication of rights. … In [a] sense, the adjudicator’s determination can, loosely, be described as ‘interim’. Indeed, the adjudicator’s determination that was quashed by the primary judge has only an inchoate effect on interim rights”: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248, 274 [102]–[103]; [2018] HCA 4. 98 Kaldas v Barbour (2017) 326 FLR 122, 205–206 [348]–[349] (Basten J); [2017] NSWCA 275, citing Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1. 99 Kaldas v Barbour (2017) 326 FLR 122, 205 [347]; [2017] NSWCA 275. 100 Kaldas v Barbour (2017) 326 FLR 122, 169 [194]; [2017] NSWCA 275. 101 Kaldas v Barbour (2017) 326 FLR 122, 169 [196]; [2017] NSWCA 275. 102 Kaldas v Barbour (2017) 326 FLR 122, [353]–[354]; [2017] NSWCA 275.

(2019) 30 PLR 18 33 Crawford and Boughey as he reached the conclusion that s 35A(1) was valid via another route. Basten JA found that “a more nuanced approach” to the construction of s 35A(1) leads to the conclusion that it is analogous to a “no invalidity” clause of the kind at issue in Federal Commissioner of Taxation v Futuris Corp Ltd.103 In other words, its effect was to expand the jurisdiction of the Ombudsman such that anything “falling short of deliberate failures to administer the statutes conferring powers on the Ombudsman, will not constitute jurisdictional error and will therefore not attract the constitutionally protected jurisdiction of this Court”.104 Although the Kaldas judgment is clearly consistent with many of the High Court’s statements in Kirk, it may be inconsistent with the normative goal expressed by the Kirk court that there be no “islands of power immune from supervision and restraint”.105 Whether or not one views the particular power at issue in Kaldas as “immune from supervision and restraint” is a question on which views could differ. In Kaldas itself, the NSW Court of Appeal was heavily influenced by the Ombudsman’s “unique” integrity functions in the administration, which Basten J described as “fall[ing] into a different category from the administrative functions undertaken by the Executive, which are the usual subject of proceedings by way of judicial review”106 and as “a form of non-judicial review of administrative action”.107 Bathurst CJ also highlighted the fact that the Ombudsman is overseen by and reports directly to the Parliament.108 The Court was clearly of the view that the absence of judicial oversight of the Ombudsman’s activities did not result in a lack of suitable accountability mechanisms for that office’s actions. The views of a person whose reputation and employment prospects have been damaged by an Ombudsman’s report, however, are probably quite different. And it is not hard to imagine a situation where an executive body that lacks strong parliamentary oversight exercises a power that is not subject to the prerogative writs, but nevertheless has a significant and adverse impact on an individual’s interests.109 Kaldas paves the way for these types of powers to be put beyond the purview of judicial supervision. Ultimately, Kaldas highlights some loose ends left by the Kirk judgment, and the uncertainty in that judgment as to precisely what the Constitution entrenches. Is it the jurisdiction of State Supreme Courts to issue the prerogative writs in the circumstances in which they could issue, and could not be ousted, at Federation; with some or all of the technicalities that accompany the writs? Or is it the supervisory jurisdiction of State Supreme Courts to conduct jurisdictional error review? In most cases, the choice is immaterial: the result will be the same whichever route one chooses. However, in certain cases, such as Kaldas, the answer to these questions matters a great deal.

V. CONCLUSION Davis described judicial review as a doctrine beset with “treacherous procedural snares”: a set of disparate remedial orders, the ambit of which appeared to vary without reason, producing a wilderness of single instances.110 The problem was exacerbated by the fact that the administrative state was expanding, and with it judicial review. Courts struggled to retrofit the doctrine, so that it might play the more ambitious role that now seemed required of it in a modern administrative state. The Australian jurisprudence is certainly not out of the wilderness, but guiding principles have emerged with greater clarity than in the past. Chief among them are the idea that the purpose of judicial review is to ensure that administrative

103 Kaldas v Barbour (2017) 326 FLR 122, [358]–[359]; [2017] NSWCA 275. 104 Kaldas v Barbour (2017) 326 FLR 122, [359]; [2017] NSWCA 275. 105 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [99]; [2010] HCA 1. 106 Kaldas v Barbour (2017) 326 FLR 122, 186 [261]; [2017] NSWCA 275. 107 Kaldas v Barbour (2017) 326 FLR 122, 198 [312]; [2017] NSWCA 275. 108 Kaldas v Barbour (2017) 326 FLR 122, 157 [128]; [2017] NSWCA 275. 109 For example, the NSW Independent Commission against Corruption; L v South Australia (2017) 129 SASR 180; [2017] SASCFC 133. 110 Kenneth Culp Davis, Administrative Law Treatise (West Publishing, 1958) 388.

34 (2019) 30 PLR 18 The Centrality of Jurisdictional Error: Rationale and Consequences decision-makers act within the scope of their powers, and not without, and the more specific distinction between jurisdictional and non-jurisdictional errors of law. The High Court is correct to retain this distinction, though its nature and purpose has been slow to emerge. A jurisdictional error is one that Parliament intends to invalidate the exercise of power. This in turn reveals, as argued, the constitutional function of the distinction: it is an expression of the constitutional distribution of judicial and legislative power, and reflects the fact that, in Australian law, and subject to certain constitutional constraints, a Parliament may define the scope of administrative power as it thinks fit, and “may give an administrative decision whatever force it wishes”.111 Given the nature of the distinction between jurisdictional and non-jurisdictional errors of law, it seems entirely appropriate to draw it by interpreting the empowering statute; at the very least, that approach seems no worse than the alternatives adopted in other jurisdictions. However, recent case law highlights some challenges that this contemporary account of jurisdictional error presents for aspects of judicial review doctrine. The ambit of certiorari and injunction must be reconsidered in order to make this area of the law consistent with the distinction between jurisdictional and non-jurisdictional errors, and the constitutional principles that underpin it. A principled explanation is required as to why judicial review remedies are discretionary, even when a jurisdictional error has been shown. Finally, the scope of the “entrenched minimum” provision of judicial review must be more clearly articulated. What does the Australian Constitution guarantee: judicial review for jurisdictional error, or the right to seek certain forms of relief? At both the federal and State levels, the answer is unclear.

111 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 613 [47]; [2002] HCA 11.

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