JURISDICTIONAL ERROR IN AUSTRALIAN LAW

Jurisdictional Error in Australian Law

Jurisdictional Error in Australian Law

Introduction

Jurisdictional error is a term used in various contexts. It might be helpful first to identify these, because one of the reasons why some people despair at ever giving it real meaning is their view that the term might carry a different meaning for each context. Jurisdictional error in its modern form can be traced from the 17th century when it came to be used to control the activities of inferior courts and quasi-judicial statutory tribunals. It is very similar to the doctrine of ultra vires which became a means of ensuring that the executive and administrative authorities (including local government authorities) acted within their powers. One doctrine speaks in terms of jurisdiction, the other in terms of power.

In the recent years, the doctrines of jurisdictional error and ultra vires have become very closely associated and in England the distinction between them has, for all practical purposes, been obliterated as a result of the House of Lords' decision in Anisminic Ltd vs. Foreign Compensation Commission (1969). In Australia, for the most part, the distinction between the two doctrines remains; reflecting different approaches by the courts to the question of whether or not intervene by way of judicial review.

Many debates surround the impact on administrative law of the often competing demands of legal requirements, administrative functions, political and policy constraints, and economic and social considerations. The weight of these factors varies, depending on the type of administrative processes involved and the status of the parties affected. This paper discusses the importance of jurisdictional errors in the Australian administrative law.

Discussion

Jurisdictional Errors

For a number of purposes, the courts have historically drawn a distinction between jurisdictional and non-jurisdictional errors. The former are traditionally said to be fatal, that is, they totally invalidate the decision made because they involve tribunals, courts or officials assuming powers that are not allotted to them. It is as if such errors do not constitute administrative decisions at all. They are complete nullities, from birth. Therefore, they cannot be protected by ouster clauses. Errors classified as non-jurisdictional are, on the contrary, not fatal. That is, they stand with full legal force until overturned. They are not void, but merely voidable (Lieberman, 1989).

Overall, the past four decades have produced a definite trend towards broadening the scope of jurisdictional error. In particular, courts tend to classify errors as jurisdictional when it enables them to overcome exclusion or privative causes purporting to protect the decision of a tribunal or board from legal challenge. By ruling that a jurisdictional error was made, a court can declare that the resulting decision was a nullity and therefore, not immune from judicial review (Scalia, 1989).

In England, the distinction between the two categories of judicial error has for all intents and purposes, been abolished by the doctrine adopted in Anisminic Ltd vs. Foreign Compensation Commission (1969) 2 AC 147. In a case arising from compensation tribunal's refusal to compensate a British company nationalized by the ...