Jurisdictional Error

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This article is a topic within the subject Administrative Law.


Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [12.4.8-11]; [15.4.1-16C]; [15.4.18C]; [7.2.9-14C]; [7.2.27-35C].

The following reading material is extracted in the Study Guide:

  • Extract from M Aronson, B Dyer & M Groves Judicial Review of Administrative Action 4th ed, 2009, [1.90].
  • Excerpt from SZMDS.


[1]Jurisdictional error plays a similar role in administrative to error of law, in defining reviewable error and delimiting the proper scope of judicial review. The reason it plays such a key role in defining the scope of review is due to the jurisdiction the of the High Court, conferred by the Constitution s 75 (v) to issue the constitutional remedies of prohibition, mandamus and injunction against an officer of the Commonwealth. Relief under s 75 (v) is only available if a decision involved jurisdictional error, (at least when the remedy sought is mandamus or prohibition).

Jurisdictional error is also a separate ground of review under the ADJR Act, which provides that an order of review can be sought on the ground “that the person who purported to make the decision did not have jurisdiction to make the decision” (s 5 (1) (c)).

The following concepts arise in relation to jurisdictional error:

  • A jurisdictional error arises where a decision-maker has exceeded the authority or power conferred upon him or her. A violation of power or jurisdiction may arise in different ways, including by asking the wring question, ignoring relevant material, relying on irrelevant material, breaching natural justice or fraud.
  • The grounds of review specified by the ADJR Act cast a wider net than those concerned with excess of jurisdiction. For example, breach of s 5 (1) (b) will not necessarily involve an excess of jurisdiction by the decision-maker because the statutory procedure may not be a precondition to a decision being made. Similarly with s 5 (1) (f) (error of law), the error of law may be on a point arising within jurisdiction.
  • A fact finding error can be a jurisdictional error, for example, where a tribunal hearing an asylum claim bases a conclusion in whole or in part on a misunderstanding or misconstruction of the applicant’s claim, including a factual claim.
  • The concept of jurisdictional error can vary in scope according to the context for judicial review.
    • For example, the constitutional jurisdiction of the High Court under s 75 (v) is not necessarily governed by the same principles that govern the common law jurisdiction of a court to grant prohibition. Nor will the same principles necessarily apply under the ADJR Act. A specific statutory scheme can also affect whether an error is jurisdictional.

Jurisdictional error and invalidity

[2]“Jurisdiction is the authority to decide”,[3] an error in this process is described as a jurisdictional error. Unfortunately, a conceptual difficulty arises because not all errors committed by a body will be jurisdictional. The courts have also declined to define the concept exhaustively, remarking that “it is neither necessary, nor possible” to do so.[4]

Courts have a jurisdiction to make errors (called error within jurisdiction), which can be contrasted to a jurisdictional error:

“...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. (This is sometimes described as an authority to go wrong, that is, to decide matters within the jurisdiction incorrectly). The former kind of error concerns departures from limits upon the exercise of power. The latter does not.”[5]

Various consequences flow from classification of an error by a court as either a jurisdictional error or an error within jurisdiction:

  • An error within a jurisdiction does not cause a decision or proceeding to be void or a nullity.
  • Instead, the decision is liable to be set aside by appeal, if a statute has created a right to appeal against the decision; or by certiorari for error of law on the face of the record, if there is another court with jurisdiction to issue that writ.
  • A jurisdictional error causes the proceeding or order that is tainted by the error to be invalid.
  • The error can be correctly by statutory appeal, or more importantly, in proceedings for judicial review (for example prohibition to prevent an excess of jurisdiction, mandamus to compel a fresh exercise of jurisdiction, certiorari to quash the proceedings or a declaration that the order or proceeding is a nullity.
  • A privative clause will not generally be effective to preclude judicial review of a jurisdictional error.
  • According to the court in Bhardwaj “a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all”; the result in law is that “the duty to make the decision remains unperformed.”
  • The function can be re-performed without the existing decision being first set aside in judicial review proceedings.
  • A decision involving jurisdictional error can be ignored or undermined in a collateral decision.
  • To counter this and avoid disregard of court orders, there is a presumption that the jurisdiction of a court extends to the determination of all questions arising before it, including questions on which its own jurisdiction depends. Therefore, issues arising before a court are normally classified as issues within jurisdiction and not as matters that go to jurisdiction.

Much of the law in Australia on jurisdictional error has been developed in the High Court in cases brought under the Constitution 75(v). Because this jurisdiction cannot be taken away by statute, relief can be obtain under s 75(v) in circumstances where there is no other avenue available to question a decision made by an officer of the Commonwealth. A common description of this jurisdiction is that it is a jurisdiction to correct a jurisdictional error by an officer of the Commonwealth, manifested either as a want or an excess jurisdiction or a failure to exercise it.

  • The s 75(v) jurisdiction has frequently been exercised in recent times to review the validity of migration decisions, in circumstances where there was no right to initiate similar proceedings in the Federal Court or the ground on which the decision was being challenged was not available in the Federal Court.
  • Another area has been industrial litigation due to appeal rights being restricted for the policy reason of preventing the prolongation of industrial disputes and litigation.

Traditionally, a narrow view has been taken by the High Court of what constitutes jurisdictional error, and matters have instead been treated as giving rise to an error within jurisdiction. Matters which have not given rise to jurisdictional error include:

- A ruling by a court as to whether documents had been served.
- Whether proceedings were commenced within a statutory time limit.
- Whether a party had standing to commence proceedings.
- Whether proceedings should be adjourned indefinitely.
- Whether a solicitor was guilty of contempt of court.
- Whether there was a power to limit additional evidence.
- A District Court’s ruling on whether it was properly constituted to hear a matter.
- Decisions by a court or commissions on the meaning of legislation it is applying have sometimes been treated as issues arising within jurisdiction and sometimes as matters going to jurisdiction.

Courts are more likely to hold that a legal error by a tribunal is a jurisdictional error, for example, the following issues have been classified as jurisdictional errors:

- The failure of a medical panel to deal with a party’s request to make oral submissions.
- The Refugee Review Tribunal’s refusal to seek a full transcript of an applicant’s airport interview with the department where there was reason to suspect it was deficient.

Craig v South Australia[6]

Facts: Mr Craig was charged in the District Court of SA with three offences involving a motor vehicle. Applying Dietrich v R (1992) 177 CLR 292, the trial judge ordered that the trial be stayed until legal representation was made available to him. The State applied to the Supreme Court for an order in the nature of certiorari to quash the order of the District Court. On appeal, the High Court held that an error (if any) by the District Court could not be quashed by certiorari, because any such error was neither a jurisdictional error nor an error on the face of the record of the District Court.
Issue: The nature of jurisdictional error. Narrow application of the concept to courts.
Held: In considering what constitutes “jurisdictional error”, it is necessary to distinguish Between on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ.
  • An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.
  • Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its function or powers.
  • If it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has been satisfied (jurisdictional fact), there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event or fact has not occurred.
  • Similarly, it will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition to its authority to make a decision.
  • If it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case, jurisdictional error will have occurred
  • Where a tribunal of limited jurisdiction falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidates any order or decision of the tribunal which reflects it.
  • In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has the jurisdiction to determine. Demonstrable mistake in the identification of issues or formulation of question will commonly involve error of law, which may be corrected by an appellate court but will not ordinarily constitute jurisdictional error.

Kirk v Industrial Court of NSW[7]


Facts: Kirk was the director of a company which owned a farm in NSW and employed Mr Palmer to manage the farm. Mr Palmer was given an all-terrain vehicle to use on the property, which he crashed when travelling off-road down a steep slope and was killed. Mr Kirk and the company were convicted of offences under the Occupational Health and Safety Act 1983 (NSW) and unsuccessfully challenged the convictions. The NSW Court of Appeal held that the lower court decisions did not disclose jurisdictional error and dismissed the application for certiorari. The High Court granted special leave to appeal and reversed the decision of the NSW Court of Appeal.
Issue: Was there jurisdictional error? What are the characteristics of jurisdictional error?
Held: The Industrial Court misapprehended the limits of its functions and powers, which led to making orders convicting Mr Kirk and the Kirk company when it had no power to do so because an offence against the OH&S Act had not been proved.
The court noted that it is important to “recognise the use to which the principles expressed in terms of ‘jurisdictional error’ and its related concept of ‘jurisdictional fact’ are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a ‘tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction.’”
  • Classifying some errors as jurisdictional “is almost entirely functional it is used to validate review, when review is felt to be necessary.” It simply expresses the gravity of the error.
  • The basis of the distinction drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal “either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. By contrast... the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine.”
  • Finality or privative clauses are important in considering whether the decisions of particular inferior courts or tribunals are intended to be final. They demonstrate a legislative purpose favouring finality, questions arise about the extent to which the provision can be given an operation that immunises the decisions of an inferior court or tribunal from judicial review, yet remain consistent with the constitutional framework.

‘Categories’ of jurisdictional error

According to M Aronson, B Dyer and M Groves,[9] jurisdictional error in Australia includes at least:

1. A mistaken assertion or denial of the very existence of jurisdiction.
2. A misapprehension or disregard of the nature or limits of the decision-maker’s functions or powers.
3. Acting wholly or partly outside the general area of the decision-maker’s jurisdiction, by entertaining issues or making the types of decisions or order which are forbidden under any circumstances. An example would be a civil court trying a criminal charge.
4. Mistakes as to the existence of a jurisdictional fact or other requirement when the relevant Act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision.
5. Disregarding relevant considerations or paying regard to irrelevant considerations, if the proper construction of the relevant Act is that such errors result in invalidity.
6. Errors of law, although where the decision-maker is an inferior court or other legally qualified adjudicative body, the error will probably have to be such that it amounts to a misconception of the nature of the function being performed or of the body’s powers.
7. Acting in bad faith.
8. Breaching the hearing or bias rules of natural justice.

This is not a closed list. All of these grounds will automatically lead to invalidity and therefore jurisdictional error.

Formulating grounds for judicial review

[10]The ADJR Act s 5 lists 18 separate grounds on which a person may apply for an order of review from the Federal Court. Each of these grounds has a common law progenitor, however, there are some important contrasts between the ADJR Act grounds and the common law grounds:

  • The ADJR Act consciously departs from common law principles at only a couple of points, notably in s 5(1((f) (‘error of law’) and s 5(1)(h), (3) (‘no evidence’).
  • At other points it is probable that the ADJR Act crystallised the existence or scope of uncertain common law dimension, notably s 5(2)(h) (‘uncertainty’).
  • In recognition of the evolving nature of common law principles, the ADJR Act itself deliberately contains criteria of an undefined nature, notably s 5(1)(j) (‘otherwise contrary to law’) and s 5(2)(j) (‘abuse of power’).
  • In applying the common law to the ADJR Act, some account must also be taken of trends in definition. A foremost example is that many judges nowadays prefer the term ‘procedural fairness’ to ‘natural justice’, and there has been a tendency to use that alternative term even in ADJR Act cases.

Other approaches to defining the grounds of review include the following:

  • Lord Diplock suggests that the grounds can be reduced to three or four broad concepts – ‘illegality,’ ‘irrationality’, ‘procedural impropriety’ and possible ‘proportionality’.[11]
  • A different approach is to apply generic criteria such as ‘asking the wrong question’ or ‘applying the wrong test’.
  • The concept of jurisdictional error is tied to some of the prerogative writs, and has become a governing concept in the jurisdiction of the High Court conferred by the Constitution s 75(v).
  • Error of law is used in some areas as a criterion defining the scope of judicial review and statutory appeals.

Council of Civil Service Unions v Minister for Civil Service[12] and Ex parte Hebburn Ltd; Re Kearsley Shire Council[13] demonstrate that the grounds of review in the ADJR Act replicate those at common law.

Yusuf[14] lists grounds of jurisdictional error for an administrative tribunal and makes the point that jurisdictional error can “be seen to embrace a number of different kinds of error” which “may well overlap. The circumstances of a particular case may permit more than one characterisation.”

Review for jurisdictional fact

[15]Parliament may stipulate that the power to make a decision is conditional upon the existence of fact/event/circumstance e.g. applications filed by a specified date. These preconditions are usually referred to as “jurisdictional facts.”

  • Who decides whether a jurisdictional fact has been satisfied?
  • The decision-maker makes the initial assessment and a court may then undertake judicial review.
  • The court is not restricted to the evidence that was before the decision-maker and can substitute a new decision.
  • When should a statutory requirement be classified as a jurisdictional fact?
  • On one view, every statutory limitation can fulfil this description. On another, every such matter is consigned to the decision-maker and a court undertaking judicial review should only examine whether the decision-maker breached a ground of review but not substitute a new decision.
  • There must be a requirement in the statute that the fact exists objectively before the decision-maker has the power to do something.

Timbarra Protection Coalition Inc v Ross Mining NL[16]

Facts: The local council approved an application for the development of a gold mine in the State Forest under the Environmental Planning and Assessment Act 1979 (NSW), which provided that if an application was likely to significantly affect threatened species it be accompanied by a species impact statement. Not such statement was submitted, nor did the council require one. The Timbarra Protection Coalition challenged the validity of the development consent in the NSW Land and Environment Court, alleging that the development would impact upon frogs, mammals, bats and owls.
Issue: What is a jurisdictional fact? How is it recognised? What is its effect?
Held: The Court of Appeal held that whether a species impact statement was required was a jurisdictional fact which the Land and Environment Court had to determine for itself on the basis of evidence adduced by the parties. The statement plays such a significant role in the legislative scheme that it is appropriate to describe it as an ‘essential condition’.
  • “The issue of jurisdictional fact turns, and turns only. On the proper construction of the statute... the parliament can make any fact a jurisdictional fact, in the relevant sense; that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute.”
  • Objectivity and essentiality are two inter-related elements in the determination of whether a fact is a jurisdictional fact.
  • All the normal rules of statutory construction apply. Statutes are construed on the basis that parliament did not intend to cause inconvenience, although it can do so.
  • Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact.
  • Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker e.g. ‘opinion’, ‘satisfaction’, ‘belief’ – the construction often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact.
  • ‘A fact to be adjudicated upon in the course of the inquiry’ is distinct from an ‘essential preliminary to the decision-making process’, the later is a jurisdictional fact.

The High Court in Corporation of the City of Einfield v Development Assessment Commission,[17] echoed Timbarra and noted that “The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.”

  • In Enfield and Plaintiff M70 (below), the court paid attention to whether a statutory criterion was framed as an objective condition or in subjective language.
  • A jurisdictional fact is frequently signalled with expression such as “where/when/if x exists” then a person is empowered or obliged to act or refrain from action.
  • In some instances, the fact or circumstance may be subjectively expressed, examples include “where/when/if the Minister is of the opinion/satisfied that x exists” then the Minister is to exercise a power.
  • If the contingency is something which the administrative decision-maker is required to investigate, it is more likely that the jurisdictional fact is the state of satisfaction of the officer.

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship[18]

Facts: Plaintiff M70 (an adult) and M106 (a minor) were detainees on Christmas Island. They claimed a well-founded fear of persecution in Afghanistan and sought asylum in Australia. The Minister determined that they should be transferred to Malaysia pursuant to s 198 of the Migration Act. Section 198A provided the Minister may declare in writing that a specified country:
i. Provides access, for persons seeking asylum, to effective procedures of assessing their need for protection; and
ii. Provides protection for persons seeking asylum, pending determination of their refugee status; and
iii. Provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
iv. Meets relevant human rights standards in providing that protection...

The plaintiffs sought an injunction and an order in the nature of prohibition to restrain the minister from transferring them to Malaysia. They contended that the criteria in s 198A were jurisdictional facts which must be established before the minister’s power to make a decision could arise.

Issue: Contrasting approaches to construction.
Held: The majority found that the criteria in s 198A were jurisdictional facts that on the objective evidence could not be met by Malaysia.
  • French CJ disagreed with the classification of the criteria as jurisdictional facts but said that the “existence of the state of mind itself will constitute a jurisdictional fact.” “When a criterion conditioning the exercise of statutory power involves assessment and value judgements on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact...”
  • The majority rejected the minister’s submission that “it is the existence of the Minister’s declaration itself, not the truth of the content of that declaration, that engages the operation of s 198A.”
  • Even if it was the Minister’s opinion that counted he was held to have seriously misconstrued the criteria.
  • The court held that the access and protection referred to by the criteria had to be legally assured as they clearly referred to “provision of protections of all the kinds which parties to the Refugees Convention and the Refugees Protocol are bound to provide to such persons.”

Minister for Immigration & Citizenship v SZMDS[19]

Facts: Sections 36 and 65 of the Migration Act 1958 (Cth) required the Minister to grant a protection visa if "satisfied" that, among other things, the applicant was a non-citizen to whom Australia owed protection obligations.
A Pakistani citizen applied for a protection visa on the ground that he feared persecution because of his homosexuality if forced to return to Pakistan. A delegate of the Minister refused the application. The Refugee Review Tribunal affirmed the delegate's decision. In its reasons, the Tribunal considered that the applicant's conduct in returning to Pakistan for three weeks before coming to Australia and in failing to seek asylum during an earlier visit to the United Kingdom was inconsistent with his claims that he was homosexual and feared persecution in Pakistan for that reason. His application to the Federal Magistrates Court for review of the Tribunal's decision was dismissed. The Federal Court allowed an appeal from that decision on the ground that the Tribunal had fallen into jurisdictional error in reaching its conclusion that the first respondent was not a homosexual by an illogical or irrational process of reasoning.
A question to be determined was whether in the context of a protection visa application, a decision under s 65 is a jurisdictional fact, the review of which may amount to a jurisdictional error. The High Court held that a decision under s 65 is a jurisdictional fact.
Issue: Was the “satisfaction” of the Minister a jurisdictional fact?
Held: The section is framed in a "subjective" form – if the Secretary of State "is satisfied".
  • “The term "satisfy" has various shades of meaning ... One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition.”
  • The statutory conditions thus laid down may be factual, legal or discretionary in nature.
  • The principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms "arbitrary, capricious, irrational" as well as "not bona fide" to stigmatise the formation of an opinion upon which a statutory power was enlivened. …
  • A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.


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Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 764-6.
  2. Textbook, pp 888-94.
  3. Gleeson CJ and McHugh J in Abebe v Commonwealth (1999) 197 CLR 510 at 524.
  4. The High Court in Kirk.
  5. Hayne J in Aala.
  6. (1995) 184 CLR 163.
  7. (2010) 239 CLR 531.
  8. Textbook, pp 901-6.
  9. Judicial Review of Administrative Action 4th ed, 2009, [1.90].
  10. Textbook, pp 338-42.
  11. Cited in the textbook, at 7.2.12C.
  12. [1985] AC 374.
  13. (1947) 47 SR (NSW) 416.
  14. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
  15. Textbook, pp 347-57.
  16. (1999) 46 NSLR 55.
  17. (2000) 199 CLR 135.
  18. (2011) 280 ALR 18.
  19. (2010) 240 CLR 611.
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