Jurisdictional error: the elevator summary

What is it?

You may have heard your legal advisors mention or explain jurisdictional error. I have heard it explained in many ways. For example, an error is jurisdictional if it is infected with ‘an error of law such that it is unlawful’ or is ‘an error of law or procedure which takes the exercise outside jurisdiction’, or ‘exercising a power in such a way that it is now outside power’. 

In the context of powers granted by statutes (Acts of Parliament and other legislative instruments such as rules and regulations), the High Court has said that jurisdictional error is a matter of interpreting the statute to determine the limits and scope of the authority given to the decision-maker, and whether it is intended that going outside that scope will result in an invalid decision.  

Fundamentally, this means that whether an error is jurisdictional will depends on the nature and context of the statutory power you as a decision-maker are exercising. This might explain why jurisdictional error is not easy to define, and often depends on the seriousness of the result of the error rather than a simple definition of its characteristics.

Some types of error are frequently found to be jurisdictional errors. One of these is a breach of procedural fairness. This can arise when there has been a failure to give an affected person a proper hearing or where your  decision is infected by bias (e.g. having already made up your mind before embarking on the decision-making process). Jurisdictional error has also been found because a decision-maker either ignored relevant material or considered irrelevant material. That is especially true where a particular statute either required or forbade the consideration of certain matters. In some cases, reaching a faulty conclusion can also be a jurisdictional error. 

There is a longer list of errors of law which have been found to be jurisdictional. It is not possible, or appropriate, in this context to set them all out.

This seems daunting—so many errors can be jurisdictional, and it is so hard to define them with certainty. However, recent case law developments have potentially clarified and reduced the number of errors which are jurisdictional. 

A significant recent development is the requirement that to be a jurisdictional error, the error must be ‘material’. This is the idea that an error is not jurisdictional if it did not make a difference to the outcome of the decision. This area of law is still under development, but would mean that some errors which previously may have been considered jurisdictional (e.g. a breach of procedural fairness), may no longer be jurisdictional in some cases. 

What does this mean for you as a decision-maker?—This could place more emphasis on the reasoning processes set out in the documents you consider—such as briefs or recommendations which decision-makers take into account. If an error of law exists in those documents, but the evidence shows that it did not, or could not have, have made a difference to your decision, then your decision may be less likely to be set aside by a court on the grounds of jurisdictional error as it was not material to your decision. 

However, you should exercise some caution as this area of law is still developing.  Courts may find that the requirement of materiality may not apply to all forms of judicial review.

Why does it matter?

Jurisdictional error essentially means invalidity. If a decision is invalid, there may be significant impacts on anything done in reliance on that decision in the time until a court determined that there was jurisdictional error. It may cause delays to other decision-making processes and projects and problems for the person affected by the decision. Invalid decisions generally impede the business of Government and its agencies.

One principal avenue of judicial review for affected persons, the Administrative Decisions (Judicial Review) Act 1967 (ADJR Act), often presents a simple method of seeking judicial review. The ADJR Act does not always require jurisdictional error to be established (although the ADJR Act can also operate where there is jurisdictional error). Together with a wider range of remedies (including those that operate only prospectively), this can make the ADJR Act a more attractive option for those challenging decisions made under statutes. 

Jurisdictional error continues to be important because of its central role where Parliament has limited the availability of judicial review under the ADJR Act. For example, the ADJR Act is not available for migration or taxation decisions. In these cases, establishing there is an error that is jurisdictional is still key. 

What can you do about it?
Tips for decision-makers

The best way to avoid any type of error in your decision, and particularly jurisdictional error, is to devote sufficient time and effort to a decision. That means ensuring you provide a fair and unbiased process, address appropriate considerations, and meet other legal requirements. In some cases, assistance from legal advisors may be needed.  Advisors can tell you at the outset what is the correct decision-making process and ‘sanity check’ your proposed decision.

The reality is that it is not feasible for decision-makers (and those who support them) personally to undertake comprehensive enquiries and seek legal advice on every occasion. Nor would this be a sensible use of resources. In some cases, timeframes imposed by statute may mean seeking legal review would be at the expense of a more careful consideration of the decision, and vice versa. 

Given these limitations, it is important to have robust decision-making processes, good templates, and guidance material, and to make training available for decision-makers and those who support them. While these measures will not prevent all errors, they can provide multiple layers of defence against risk and may raise the flags to trigger the seeking of legal advice in appropriate cases.