Administrative Law Jurisdictional Error

Administrative Law Jurisdictional Error

Essay Question
Consider the following statement:

“Concepts such as procedural fairness, reasonableness, rationality, and error of law were
well understood before the modern world of law by statute came to dominate. Now, the
limits of jurisdiction are usually determined in a statutory context thus requiring the focus of
inquiry to shift from somewhat amorphous (or flexible) general law principles to principles of
statutory interpretation.”

The Hon Justice John Basten, ‘Judicial Review of Executive
Action: Tiers of Scrutiny or Tears of Frustration?’
(Speech delivered at the Constitutional and Administrative Law Section, NSW Bar Association, 14 May 2013 –

copy available on Moodle).
In light of Justice Basten’s remark, find and critically analyse a case which is not discussed in the
Creyke& McMillan case book (you can look here: https://jade.barnet.com.au). Do not choose
Minister for Immigration and Citizenship v Xiujuan Li (2013) 87 ALJR 618 for this purpose.

With regard to the case you have found and Justice Basten’s remark, consider the role of
jurisdictional error in Australian administrative law. Is it truly a central concept or might it be
discarded “without tears”? What might be the consequences of such a step?

CONSTITUTIONAL AND ADMINISTRATIVE LAW SECTION
OF NSW BAR ASSOCIATION
14 May 2013
JUDICIAL REVIEW OF EXECUTIVE ACTION:
TIERS OF SCRUTINY OR TEARS OF FRUSTRATION?
The Hon Justice John Basten
Judge of the NSW Court of Appeal
Introduction
The original intention of this paper was to argue for the adoption of a functional
(therefore flexible) approach to judicial review by reference to a variable standard of
scrutiny. The Australian fixation with seemingly discrete grounds identified by labels,
stubbornly adhered to by courts and legislatures, has proved frustrating and
inadequate. Kirk1 showed a willingness to look past labels, but gave little guidance
as to how to fill the void. Now, having completed such an analysis, we have the
decision of the High Court in Minister for Immigration and Citizenship v Xiujuan Li2
delivered six days ago. On one view, it may mark no more than another step in a
continuous process of reformulating public law concepts in this country. On the
other hand, if one views the development of the law, like natural evolutionary
processes, as a system of punctuated equilibrium in which a period of stasis is
followed by a large step, this may mark the commencement of the next large step. I
incline to the latter view, for reasons which I will explain. However, if that view is
correct, it would be remiss of me to talk about judicial review without paying attention
to the most recent development.
Before coming to that case, it may be helpful to outline a number of broad
propositions as markers in the search for a satisfactory blueprint for judicial review,
together with some ideas as to how the search should proceed. The paper will then
consider how those views are affected by what the High Court is now saying.
First, judicial review of administrative action involves the exercise by the courts of a
supervisory role over the executive arm of government. Any expansion of the
judicial role tends to diminish the freedom of the Executive and thus affects the
relationship between those two arms of government. In constitutional terms, it
affects the separation of powers in a practical manner.
Secondly, to the extent that the courts find the mandate for a minimum standard of
judicial review in the Constitution, they impose a limit on the legislature and thus
affect the relationship between the judicial and legislative arms of government. If the
minimum content of judicial review is expanded, the power of the Parliament is to
that extent diminished. And by Parliament, one refers to both State and
Commonwealth legislatures.
1 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.
2 [2013] HCA 18.
Page 2
Thirdly, whatever anxiety the High Court may have about adopting a clear and
definitive statement of the grounds of review, these cases are decided on a daily
basis by busy trial judges and intermediate appellate courts, which do not have time
to consider the potential constitutional implications of their collective decisionmaking.
Fourthly, concepts such as procedural fairness, reasonableness, rationality, and
error of law were well understood before the modern world of law by statute came to
dominate. Now, the limits of jurisdiction are usually determined in a statutory context
thus requiring the focus of inquiry to shift from somewhat amorphous (or flexible)
general law principles to principles of statutory interpretation.
Fifthly, the move away from a set of labels for available grounds of review which
appears to be occurring (despite the apparent constitutionalisation of the concept of
“jurisdictional error”), is to be welcomed; courts exercising the supervisory jurisdiction
should adopt a functional and pragmatic approach, terminology to which I will return.
Labels: A brief historical excursus
Over the last 35 years the discourse of judicial review has been dominated, some
would say blighted, by the influence of the Administrative Decisions (Judicial Review)
Act 1977 (Cth) (“the ADJR Act”). It applies only to decisions under Commonwealth
enactments and then only to decisions of an administrative character. Despite its
initial educative value, the list of grounds in s 5 has beguiled both pleaders and
judges. It even proved irresistible to the Parliament, which, in enacting and then
amending a limited form of statutory judicial review of migration decisions, conferred
on the Federal Court power to review on the basis of some ADJR-style grounds, but
not on others.3 Thus, whilst permitting review for failure to comply with statutory
procedures, it sought to deny the availability of review for breach of general law rules
of natural justice. Similarly, whilst purporting to permit review on the basis that the
decision-maker “did not have jurisdiction to make the decision”, or that the decision
“was not authorised by this Act”, it purported to withdraw the power to review on the
basis that the exercise of power was “so unreasonable that no reasonable person
could have so exercised the power”.
These distinctions were writ in water. The availability of judicial review cannot
depend on semantic labels of imprecise scope. Reliance on such an approach will
produce arbitrary and capricious results. Judges who have a ‘feel’ for judicial review
may well produce consistent outcomes, not by application of labels, but by applying
an intuitive understanding of principles derived from experience. The conceptual
incoherence of the traditional labels is readily established. That is revealed by two
examples.
3 See Migration Act 1958 (Cth), s 476, as introduced by the Migration Reform
Act 1992 (Cth), up to the time of its repeal by the Migration Legislation
Amendment (Judicial Review) Act 2001 (Cth).
Page 3
First, the exercise under the Migration Act failed in its attempt to corral the grounds
and hence diminish the availability of judicial review.4
The second example is more complex but revealing. We are familiar with the
propositions from Azzopardi v Tasman UEB5, a case involving an appeal limited to
error in point of law. Glass JA stated that perversity of reasoning in determining
facts is not a form of legal error. There were statements to similar effect in the
judgment of Mason CJ in Bond,6 referring to Menzies J in Ex parte White7, that “want
of logic is not synonymous with” error of law. But how are these statements to be
reconciled with the willingness of Latham CJ in Hetton Bellbird Collieries8 to set aside
a decision where it depended on an opinion found to be “capricious” or “arbitrary”?
The answer must lie elsewhere than in the labels. Most powers nowadays find their
origins in statutes. Arguably the limits of a statutory power must be found in the
constituting statute. But if, as we are consistently exhorted by the High Court, we
pay close attention to the words of the statute, we will usually find no reference to the
phraseology of judicial review case law. Accordingly, if we need to resolve fine
questions about the boundaries of legality in a contested case, it is usually not
possible to find any express reference in the power-conferring statute.
But if that source is unavailable, the only available alternative is the general law, the
language of which is the source of the uncertainty.
An alternative explanation
The answer is to be found in a combination of three sources. The first is the source

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