Tiptoeing through the Tripwires: Recent Developments in Jurisdictional Error

Publication Date01 September 2016
AuthorAaron Moss
Aaron Moss*
Australian administrative law’s continuing empha sis on the concept of jur isdictional
error is increasingly unique amongst common law jurisdictions. This paper argues that
recent developments in Australian jurisprudence have provided little guidance for
administrative decision-makers, who are left ‘tiptoeing through the tripwires’ of judicial
review. Combining a detailed analysis of primary dec isions, academic publications and
historical scholarship, this paper suggests that this lack of guidance i s the result of a
widespread judicial reluctance to engage with either the guidance or educative roles of
judicial review. As this paper demonstrates, failure to do so encourages uncertainty,
unpredictability and a general lack of cla rity which inhibits judicial review’s ab ility to
guide decision-makers and contr ibute to the maintena nce of effective governa nce,
administrative justice, and the rule of law in Australia . Particular attention is given to
the decisions of Ministe r for Immigration and Cit izenship v Li, Plaintiff M61/2010 E v
Commonwealth, and NBMZ v Minister for Imm igration and Border Prot ection, which
together encapsulate many of the most problematic aspects of recent jurisprudence. To
avoid these consequences, this paper calls on senior judges and commentato rs to
articulate a clearer framework which will be applied to guide the future development of
the doctrine of jurisdictional error.
Modern Australian judicial review is complex, technical, and replete with hazards for
the uninitiated. Chief amongst these legal ‘trip wires’ is the amorphous concept of
‘jurisdictional error’. Much ink has been, and will continue to be, sp illed in debating
whether jurisdictional error should remain part of Australian law. This paper does not
intend to enter that discussion. Instead, this paper aims to continue where Stephen
* Associate to The Hon Justice J M Jagot, Federal Court of Australia; Adjunct Researcher
Faculty of Law, University of Tasmania. This is a revised version (as at 4 June 2013) of a paper
written in satisfaction of the author’s Honours requirement at the University of Tasmania
and reflects only the author’s views. The author thanks Associate Professor Rick Snell for his
mentoring, Dr Joyce Chia and the anonymous reviewer for their advice, and Michael Olds,
James Walker and many others for their personal support.
468 Federal Law Review Volume 44
Gageler,1 Justice John Basten, 2 and Chief Justice Spigel man3 (as they then were) left off,
and suggests that the judiciary’s ge neral reluctance to elucidate the fou ndation and
content of jurisdictional e rror has meant that recent d evelopments in the concep t have
provided little guidance for administr ators, often leaving them frustrated by ju dicial
The first section of this paper consider s both the curial and academic understandings
of jurisdictional error pr ior to 2010, concluding with an assessment of Kirk v Industrial
Court (NSW).4 The paper then considers three sig nificant decisions which epitomise the
heightened uncertainty and lack of guidance characteristic of the pos t-Kirk era: Minister
for Immigration and Citizenship v Li,5 Plaintiff M61/2010E v Commonwealth,6 a nd NBMZ v
Minister for Immigration and Border Protection.7 Finally, this paper outlines the
problematic consequence s of this jurisprudence for administrator s, before calling on the
judiciary to provide clear leadership in ind icating how these concepts may develop.
Jurisdictional error’s evolution is significa nt for administrators, as the concept is central
to efficient and effective policy implementati on. This is so as decisions infected by
jurisdictional error lack ‘legal foundation’ and are therefore ‘properly regarded, in law,
as no decision at all’. 8 Accordingly, once a judicial ‘tri pwire’ is breached, nullity and
remedial orders follow.9
Changes in the Court’s jurispru dence thus play both a directory and educative role,
simultaneously demarcating the boundaries of acceptable administration, and
educating administrators regarding the ir future actions. Justice Dennis Davis o f the
High Court of South Africa identified the countervailing int erests underpinning this
process, acknowledging the
[c]ontinuous tension between the aim of empowering officials and affording them the
necessary freedom to perform their executive and administrative tasks while, at the same
time, controlling the arbitrary exercise of power, thereby limiting this freedom in order to
protect the citizenry. 10
Despite its ancient common law roots, 11 much of jurisdictional error’s early hist ory
was preoccupied with consider ation of the range of bodies who may demo nstrate such
1 Stephen Gageler, ‘Impact of Migration Law on the Development of Australian
Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92.
2 Justice John Basten, ‘Jurisdictional Error After Kirk: Has it a Future?’ (2012) 23(2) Public Law
Review 94.
3 Chief Justice J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21(2) Public Law
Review 77.
4 (2010) 239 CLR 531 (‘Kirk’).
5 (2013) 249 CLR 332 (‘Li’).
6 (2010) 243 CLR 319 (‘M61’).
7 (2014) 220 FCR 1 (‘NBMZ’).
8 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 615. Cf Jadwan
Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, 16.
9 Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82, 140–2 (‘Aala’).
10 Justice Dennis Davis, ‘Administrative Law: The Challenges of the 21st Century’ in Debra
Mortimer (ed), Administrative Justice and its Availability (Federation Press, 2015) 33, 34.
11 D G Benjafield and H Whitmore, Principles of Australian Administrative Law (Lawbook, 4th ed,
1971) 186.
2016 Tiptoeing through the Tripwires: Recent Developments in Jurisdictional Error 469
errors. 12 In its modern for m, Australian administrative law’s focus o n the concept
emerged approximately 30 years ago.13 This paper does not attempt to provide a
detailed legal history of the doctr ine’s evolution. 14 However, an appreciation of
jurisdictional error’s major developme nts usefully contextualises the following analysis.
A Shifting Paradigms
1 Old Paradigms
Given it reignited interest in the substantive content of jurisdictional error in Australian
law, Craig v South Australia15 i s the orthodox commencement po int for this analysis.
Acknowledging that judicial bodies possess dif ferent degrees of permission to
‘authoritatively’ resolve questions of law, as a result of their disti nctive positions in the
judicial system, Craig distinguished between the errors of law which may be committed
by tribunals and by inferior courts. 16 The Court then listed various types of errors which
would constitute ‘jurisdictional errors’ (e.g. an error of law infecting a body’s jurisdiction
to act as it did) by either body. For example, Craig asserted that
[a]n 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.17
The Court in Craig therefore conceptualised jurisdictional error as a broad genus
comprising various ‘species’ of error, each affecting the core of the decision-maker’s
power. This understanding was confirmed in Minister for Immigration a nd Multicultural
Affairs v Yusuf, where McHugh, Gu mmow and Hayne JJ affirmed that ‘“[j]urisdictional
error” can thus be seen to embrace a number of different kinds of error, the list of which,
in the passage cited from Craig, is not exhaustive’. 18
Resultantly, until the mid-2000s, A ustralian administrative law was characterised by
an incremental, precedent-focused model of jurisdictional error domi nated by Craig’s
grounds.19 Administrators could therefore cling to judicial de cision-making to gain a
workable understanding of the limits of their jurisdiction, with cases providing guidance
12 See, eg, R v Commonwealth Rent Controller; ex parte National Mutual Life Association of
Australasia Ltd (1947) 75 CLR 361. See further K J Seggie, ‘Jurisdictional Error in
Administrative Law’ (1965) 5(1) Sydney Law Review 89.
13 Re Grey; ex parte Marsh (1985) 157 CLR 351, 371.
14 See, eg, Mark Aronson, ‘Jurisdictional Error Without The Tears’ in Matthew Groves and H P
Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrin es (Cambridge
University Press, 2007) 330 (‘Tears’); Mark Aronson, ‘Jurisdictional Error and Beyond’ in
Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context
(Cambridge University Press, 2014) 248.
15 (1995) 184 CLR 163 (‘Craig’).
16 Ibid 179.
17 Ibid 177.
19 See generally Simon Young and Sarah Murray, ‘An Elegant Convergence? The Constitutional
Entrenchment of “Jurisdictional Error” Review in Australia’ (2011) 11(2) Oxford University
Commonwealth Law Journal 117, 134; Matthew Groves, ‘Judicial Review of Administrative
Action in the High Court of Australia’ (2008) 33(2) Queen’s Law Journal 327, 337 (‘Judicial

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