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. 18 (2019) 30 PLR 18 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 of Probuild. 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”.