1.4.3 JR Grounds--Jurisdictional Error

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JSB171
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All Professors
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Spring

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Jurisdictional Error Decision: s5(1)(c) ADJR | s20(2)(c) JR Conduct: s6(1)(c) ADJR | s21(2)(c) JR A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (c) that the person who purported to make the decision did not have jurisdiction to make the decision; Common law origins • jurisdictional error ↔ ultra vires o Jurisdictional error—inferior courts when outside their jurisdiction o Ultra vires—administrative bodies • For common law action, HCA, FCA and QSC have original jurisdiction to hear judicial review applications for jurisdictional error: o High Court – original jurisdiction – s75(v) of the Constitution o Federal Court – original jurisdiction – Judiciary Act 1903 (Cth) s39B o Queensland Supreme Court – originally was given in s179 Supreme Court Act 1995 (Qld), but now derived from part 5 of the Judicial Review Act 1991 (Qld), specifically Judiciary Act 1903 (Cth) s43(1) • The High Court’s original jurisdiction, as given to it by the Constitution, can’t be restricted or removed: R v Hickman (1945) 70 CLR 598; s75(v) Constitution Advantages of JE over other statutory grounds • Can be applied to inferior courts as well as to administrative tribunals • Has a common law basis, cannot be repealed like the rest of statutory JR • Legislative privative clauses not effective to cure mistakes so fundamental that they result in JE Types of jurisdictional error • Narrow JE (body acting in an area they could not) o complete absence of jurisdiction o failure to exercise jurisdiction o error in finding jurisdictional facts • Broad (Anisminic) JE (had ability to decide in that area, but fundamental error along the way) o errors of law done while within jurisdiction (ie during process of making decision) o different for administrative tribunals and inferior courts Narrow Jurisdictional Error Absence of jurisdiction Jurisdictional error where a decision-maker makes a decision upon which it had been given no authority to proceed: R v Hickman (1945) • Mistake upon the construction of the statute upon which the powers are based, that will be jurisdictional error: o Statute allowing decision but only in a certain way: Coco v The Queen (1994) (statute allowing listening devices—didn’t allow to be placed on private property  judge issuing warrant to put on private property = JE) Andrew Trotter LWB335 Administrative Law  express and unambiguous words required in legislation to abrogate common law rights (eg to private property): Coco v The Queen o Statute allowing decision but only on certain matters: Ex parte Wurth; re Tully (1954) (board could hear appeals re promotions, demotions & dismissals—appeal re refusal to make probative staff permanent  JE—not analogous to dismissal as lacking punitive character) • Errors in investigation do not render investigation outside jurisdiction: Eckersley v Medical Board of Queensland (1998) (medical board investigating medical practitioner for disciplinary proceedings) • Matter of statutory construction: Potter v Melbourne & Metropolitan Tramways Board (1957) (decision to change bus operator to conductor = reduction in pay—board had jurisdiction to review punishments  ‘punishment’ confined under act → change in position not punishment so no jurisdiction) Failure to exercise jurisdiction JE may also be tribunal’s erroneous conclusion that no jurisdiction: Dickinson v Perrignon (1973) (dismissal of public employee by board); Carlson v Queensland Building Tribunal [1999] (tribunal with decision to resolve ‘domestic building disputes’—tribunal declined to hear complaint about costs—but statute did not limit jurisdiction to that  therefore within jurisdiction) • Deciding in breach of procedural fairness can amount to failure to (properly) exercise jurisdiction → first decision invalid, may re-decide: MIMA v Bhardwaj (2002) (RRT rejecting student visa because didn’t attend hearing date—then reversed decision when discovered student was sick—Minister appealed saying can’t re-decide  procedural fairness requirement in Migration Act—first hearing was a nullity as a failure to exercise jurisdiction as didn’t act with procedural fairness) • Misinterpretation based on misunderstanding can be failure to exercise jurisdiction: Dranichnikov v MIMA (2003) (RRT said merely being a “Russian businessman” not enough to make refugee—but misunderstood: actually “businessman critical of police force” = social group for the convention—& well-founded fear of persecution  failed to properly address first question as to whether a ‘social group’—failure to exercise jurisdiction → JE) Error in finding jurisdictional facts Jurisdictional fact = must exist as a pre-condition to a court or tribunal having jurisdiction → if the court/tribunal wrongly decides that the fact exists, they proceed without jurisdiction and fall into jurisdictional error: City of Enfield v Development Assessment Commission (2000) (building approval process—‘special industry’ or ‘general industry’—if special then council approval also required— classed as general, allowing board to make decision  jurisdictional fact) • Characterisation— o “If A, then DM may…” → Jurisdictional Fact o “If in the DM opinion A, then DM may…” [→also Irrationality]  Eshetu (1999) (RRT decision) per Gummow J  Re MIMIA; Ex parte Applicant S20/2002 (2003) • Whether fact a statutory precondition to jurisdiction a question of statutory interpretation— whether distinct objective preliminary fact ↔ part of decision-making process: Timbarra Protection Coalition Inc v Ross Mining NL (1999) (application to extend gold mine—Act requires species impact statement if ‘critical habitat’—no statement issued) • To prove JE—must show that the jurisdictional facts cannot be made out on the findings of fact, or inferences supported by logical grounds: Minister for Immigration v Eshetu (1999) 197 CLR 611 at 657 per Gummow J Andrew Trotter LWB335 Administrative Law o Inadequacy of information not determinative, but may be a major step along the way to determining that they have not satisfied jurisdictional fact: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ; supported by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte s20/2002 Broad Jurisdictional Error UK Position: Anisminic Even where a decision-maker had jurisdiction initially, it might, nevertheless, subsequently exceed that jurisdiction by making serious errors of law in the process of coming to a decision: Anisminic Ltd v Foreign Compensation Commission [1969] (foreign compensation after Suez Canal incident in Egypt & nationalisation of companies—contained privative clause ousting jurisdiction of court—improperly took Egyptian nationality into account  clause needed to be more specific—void decision could not be protected by clause → outside jurisdiction) • JE where body makes decision which takes them outside their jurisdiction—for example o Bad faith o Breached the requirements of natural justice o Refused to take relevant consideration into account; o No power to make o Misconstrued the instrument giving it power; o Taking something into account which was irrelevant • Includes administrative tribunals and also inferior courts also: Pearlman v Harrow School [1979] QB 56 at 69 Position in Australia: Craig v South Australia (1995); Kirk (2010) • Anisminic has not been wholly adopted in Australia: Craig v South Australia (1995); Kirk (2010) • In Australia a clear distinction remains between inferior courts and administrative tribunals: Craig v South Australia (1995) (criminal case—accused unable to get representation—stayed proceedings per Dietrich order—State sought JR  within jurisdiction ← even if given erroneously, still within jurisdiction—can be ironed out on appeal || cf if administrative body); Kirk (2010) (IRC determined that K liable for death of employee on farm on truck—in the process interpreted duty under s15 broadly—breached rules of evidence by allowing K to testify for prosecution  JE | Privative clause not effective to exclude JR for JE) • Basis for distinction— o Tribunals were said to be more likely to be without formal legal qualifications or training o Where courts are part of a hierarchical system of justice, where problems may be ironed out on appeal • → More difficult to prove jurisdictional error for inferior courts Inferior Courts (& Administrative Tribunals) Inferior courts commit jurisdictional error only where— (Craig v SA; reinforced by Futuris Corporation (2008) per Kirby J (Kirbz in grey)) • Asserts or denies its jurisdiction mistakenly; (eg: exclusively civil court hears a criminal case) [→ Narrow JE (1)&(2)] o A mistaken assertion or denial of the very existence of jurisdiction • Mistakenly defines the extent of its jurisdiction, where it does exist [→Narrow JE (1)&(2)] o A misapprehension or disregard of the nature or limits of the decision maker's functions or powers. o Misconstruing the decision maker's Act in such a way as to misconceive the nature of the function being performed or the extent of the decision maker's powers. Andrew Trotter LWB335 Administrative Law • While acting wholly within its jurisdiction, doing something which it lacks power to do (ie make an order with no power) o Acting wholly or partly outside the general area of the decision maker's jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances. • Wrongly find the existence of a jurisdictional fact [→ Narrow JE (3)] o Acting on the mistaken assumption or opinion as to the existence of a certain event, occurrence or [jurisdictional] fact ... or other requirement, when the Act makes the validity of the decision maker's acts contingent on the actual or objective existence of those things, rather than on the decision maker's subjective opinion. • Relevant & Irrelevant considerations— o disregards a matter which the legislation requires it to consider  Disregarding a relevant consideration which the Act required to be considered o takes regard of a matter which the legislation says not consider  paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision maker's act or decision. ← If ct makes a legal error in the identification of issues or formation of questions, then can be corrected on appeal Administrative Tribunals (only) In addition to the above, administrative tribunals commit jurisdictional error where they make an error of law causing them to— (Craig v SA at 179) • Identify a wrong issue • Ask itself the wrong question • Ignore relevant material • Rely on irrelevant material • At least in some circumstances—to make an erroneous finding or reach a mistaken conclusion Other Matters Included in JE List not exhaustive—JE is an overarching concept which may embrace other areas where made out in circumstances where it result in a serious legal error, having regard to establishing statute & all the circumstances: MIMA v Yusuf (2001) • Breach of Natural Justice: Body of immigration cases (MIMA v Yusuf (2001); Aala (2000), etc); reinforced by Futuris Corporation (2008) per Kirby J o Although depends on particular statute • Failure to abide by procedures required by law: Project Blue Sky Inc v ABA (1998) o even where the RRT had practically remedied the defect in procedure: SAAP v MIMIA (2005) • Acting in bad faith: Futuris Corporation (2008) per Kirby J Privative clauses (excluding JR) Commonwealth (HCA s75(v) Jurisdiction): Plaintiff S157/2002 v Cth (2003) A privative clause will only exclude judicial review where— (Plaintiff S157) 1. Hickman test satisfied a. bona fide attempt to exercise power;  ie not in bad faith b. On its face, the decision does not exceed the power conferred;  Decision not outside the power conferred c. The decision is reasonably capable of reference to the power Andrew Trotter LWB335 Administrative Law  Decision in line with the power R v Hickman (1945) (settling coal mining industrial disputes—reg 17 provided no decision of local reference to be challenged in any way whatsoever—Board included coal transport company in industry, applying award to them—company sought writ of prohibition  cannot exclude HCA— board’s powers do not extend to defining own industry—very phrase which restricts their jurisdiction) 2. Upon reading the statute as a whole there are no other indispensable condition to the valid exercise of the power • Important to construe legislation to determine ‘indispensible conditions’ • Privative clauses incapable of depriving HC of jurisdiction to hear applications for mandamus, prohibition or injunction under s75(v) Constitution o Although particular clause did not do that o ↔ state powers—no express grant of judicial review in any constitution that is binding on parliaments • “Protect decisions made under the Act” o RRT decision not a decision ‘made under the Act’ if  Made in JE  in violation of some indispensible condition—in this case NJ Also • Effective privative clause will protect a decision from review where there is a “mere defect or irregularity which does not deprive the tribunal of the power to make the award or owner”: Deputy Commissioner of Taxation v Richard Walker Pty Ltd (1995) • Privative clauses are not effective where no decision has been made: Dickinson v Perrignon [1973] Queensland (State Jurisdiction of QSC) Kirk v Industrial Relations Commission of NSW [2010] HCA (prosecution for failure to provide safe workplace—employee drove tractor across a field rather than using the road provided—convicted— NSW legislation sought to protect NSWIC decisions via privative clauses  NSWIC = JE—privative clause not effective) • ChIII Constitution requires State SC— o must comply with Ch III requirements as sometimes exercise federal jurisdiction o has power to confine inferior courts within limits of their authority • Therefore → privative clause in state legislation tries to take away this defining characteristic → invalid ← Adds to Plaintiff S157 by adding matter re States • Decisions which are made in jurisdictional error are not decisions made ‘under the Act’ and are therefore not protected by the privative clause: Kirk; Darling Casino Ltd v NSW Casino Control Authority (1997) (two tenders for casino—Act allowed authority to grant licence—rival of bad character selected—privative clause: no decision could be challenged  no grounds for JE || generally excluding review will not exclude JE, but can if more specific) o (Analysis of the High Court of Australia in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 may not be entirely applicable, because of its basis upon Constitutional principles) o Application different in States because— (Darling Casino Ltd v NSW Casino Control Authority (1997)) Andrew Trotter LWB335 Administrative Law  lack of separation of powers  constitutionally entrenched original jurisdiction of the Supreme Court: • Must construe the privative clause in the Act as a whole o Prefer construction such that provisions don’t remove rights for citizens, unless it express or by necessary implication: Public Service Association (SA) v Federated Clerks Union (1991) o The Hickman principle is a rule of construction, which must be applied to state Acts: Darling Casino Ltd v NSW Casino Control Authority (1997) o The major point is to construe the provision in line with the rest of the Act: Darling Casino Ltd v NSW Casino Control Authority (1997) Andrew Trotter LWB335 Administrative Law Cases Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476: • In 2001, s474 of the Migration Act 1958 (Cth) states that a ‘privative clause decision’ shall not be reviewed or called into question • With parliament expecting that the Hickman test would be applied to it, thus allowing the decisions falling outside that area would be allowed o While submissions were given in the HCA, FCA handed down decision in NAAV v MIMIA (2002) 123 FCR 298 which stated that privative clause was sufficient to prevent courts JR-ing decisions which committed jurisdictional error (including failure to extend natural justice) • The parliament also enacted s486A, which limited appeals to the High Court to 35 days after the actual decision was made. • The Plaintiff sought to appeal against a decision by the Refugee Review Tribunal, that he was not a refugee as defined in the Migration Act (and informed by the principles of the UN Convention) • The Plaintiff sought to argue that the provisions in the Migration Act (s474 and s486A) were invalid, as per the Commonwealth Constitution, s75(v) • The Commonwealth sought to argue that the Hickman principle would exclude all decisions from review made within the parameters of the Hickman test. Held: • Sections 474 and 468A were validly enacted, and did not offend against s75(v) of the Commonwealth Constitution because of the limited interpretation the court gave to privative clauses • Held that jurisdictional error means that a decision won’t be a ‘decision’ for the purposes of the privative clause, and therefore is not protected from attack by the privative clause • This construction exists both in the federal and state jurisdictions, and in the unitary system of the UK • Couldn’t exclude it because of the interpretation given to privative clauses in any event • That the Hickman test isn’t exhaustive, it is simply a way of statutory interpretation, rather than a hard-and-fast rule • As a form of statutory construction, the privative clause must be construed in line with the other provisions of the statute • In the Commonwealth Constitution, bodies constituted of executive power aren’t able to determine their own jurisdiction, as that would be a judicial power • Jurisdictional error (broad approach) includes a breach of natural justice • Here, natural justice should bring a limit of jurisdictional error because of the seriousness of the Tribunal’s work • Per Gleeson CJ: o That where administrative tribunals were able “to exceed their jurisdiction, the rule of law would be at an end”: R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 at 566 per Denning LJ o In the Commonwealth federal system, the Constitution doesn’t allow executive tribunals to decide their own jurisdiction, which is a judicial function (at 484) o Statutory construction: o Major issue is a construction of the statute itself, not strong rules (such as what was assumed by the parliament after R v Hickman) o The major problem with privative clauses is that the provisions are inconsistent with each other o 5 main principles of statutory construction: 1. Construing an enactment pursuant to international obligations Andrew Trotter LWB335 Administrative Law 2. No imposition of a curtailing of citizen’s rights, unless parliament does so in unmistakable and unambiguous language 3. Australian Constitution founded upon the rule of law – JR is the vehicle to enforce executive accountability 4. Specific application of 2 and 3 – that privative clauses themselves are construed not to limit rights unless expressly doing so 5. Need to construe a reconciliation between the Act and the rest of the legislation o Because there are usually provisions state the Tribunal’s jurisdiction, it would be inconsistent to allow those tribunals to escape judicial review when they are outside those bounds • Per Gaudron, McHugh, Gummow, Kirby and Hayne JJ: o 2 main ideas are relevant to the majority’s decision: 1. The jurisdiction of the HCA can’t be removed by statute, per s75(v) Constitution 2. Executive bodies are unable to determine their own jurisdiction, as that would be a judicial power <> would be breach of the separation of powers Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602: • In a case for two tenders for a casino in Sydney, the relevant Casino Control Act 1992 (NSW) empowered the Casino control authority to determine an application for the only license under that Act • The principle factor in this case, between the Darling Island Casino Ltd its main rival, is that a person must be of good repute • With some evidence to suggest that one of the associates of the company was not of good character, but the rival with bad character was selected anyway • Section 155 of the relevant Act stated that no decision could be challenged unless by some procedure – Q – was this effective to exclude JR for JE? Held: • Per Gummow and Gaudron JJ (with whom Brennan, Dawson and Toohey JJ agreed): • That there were no grounds to find that there was jurisdictional error • On interpreting the privative clause: o Construing a privative clause in state legislatures remains a question of statutory construction more than any other factor o Where the clause states that a decision may not be called into question in a court of law, that will not exclude jurisdictional error <> but may exclude jurisdictional error by being more precise in privative clause Andrew Trotter LWB335 Administrative Law Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 Joint Judgement by French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ Facts • Kirk Group Holdings Pty Ltd owned a farm in NSW; Kirk was a dir
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