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Week 8 Jurisdictional Error and Invalidity


Creyke & McMillan Ch 15
Aronson, Dyer & Groves Ch 3
Introduction to the Topic
Judicially reviewable errors committed by administrative decision-makers (including
Ministers and public servants) are traditionally categorised as "ultra vires". Judicially
reviewable errors committed by lower courts and tribunals are usually referred to as
"jurisdictional errors".
Jurisdictional errors may be either jurisdictional errors of law or errors in finding a
fact whose existence is a condition precedent to jurisdiction. These latter types of
factual errors are usually referred to as the "jurisdictional fact" doctrine.
In addition, non-jurisdictional errors of law may be judicially reviewable in
exceptional circumstances, where the error appears on the face of the record of the
court or tribunal. Such errors are usually referred to as "errors of law on the face of
the record". After many efforts by various judges to expand the scope of error of law
on the face of the record (mostly by expanding the definition of "the record"), the
High Court has now drastically curtailed the scope for review of non-jurisdictional
errors of law.
We will also examine the "jurisdictional fact" doctrine and "errors of law on the face
of the record". We will also look at the (often confusing and unclear) distinction
between questions of law and questions of fact. Since the fact/law distinction delimits
the boundaries of judicial review (as opposed to merits review), we necessarily have
to be able to distinguish questions of fact from questions of law. We will now focus on
jurisdictional error.
Traditional Doctrine
*Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
R v Gray; Ex parte Marsh (1985) 157 CLR 351
Dickinson v Perrignon [1973] 1 NSWLR 72
*Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Non-jurisdictional Errors of Law
The Anisminic Doctrine

The practical effect of the decision of the House of Lords in Anisminic was to abolish
the distinction between jurisdictional error and error of law for administrative
tribunals in England.
*Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C.147
*Ridge v Baldwin [1963] 2 WLR 935
Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222
Pearlman v Keepers and Governors of Harrow School [1979] QB 56
Re Racal Communications Ltd [1981] AC 374
O'Reilly v Mackman [1982] 3 WLR 1096
R v Hull University Visitor; Ex parte Page [1993] AC 682
Boddington v British Transport Police [1998] 2 All ER 203
The Australian Approach to Anisminic
R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc
(1984) 31 NTR 13
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty
Ltd (1953) 88 CLR 100
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
*Craig v South Australia (1995) 184 CLR 163
R v Gray; Ex parte Marsh (1985) 157 CLR 351
*Abebe v Commonwealth (1999) 162 ALR 1
*Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
*Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Error of Law under the ADJR Act
The debate and confusion surrounding jurisdictional and non-jurisdictional errors of
law, errors of law on the face of the record etc., has no application at all to judicial
review under the Administrative Decision (Judicial Review) Act 1977 (Cth). Section
5(1)(f) provides for review on the ground "that the decision involved an error of law,

whether or not the error appears on the record of the decision". Section 6(1)(f)
provides an effectively identical review ground where administrative conduct (rather
than the decision itself) is being challenged.
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR
*Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Selected Readings
Airo-Farulla G, Rationality and Judicial Review of Administrative Action - [2000]
Bath, V 'The judicial libertine - jurisdictional and non-jurisdictional error of law in
Australia', (1982-83) 13 Federal Law Review 13 807
Beaton-Wells C, 'Judicial Review of Migration Decisions: Life after S157', (2005) 33
Federal Law Review 141
Crock, M, Judicial Review and Part 8 of the Migration Act: Necessary Reform or
Overkill? (1996) 18 Syd LR 267
Crock, M, "Abebe v Commonwealth; Minister for Immigration and Multicultural
Affairs v Eshetu" - [2000] MULR 6
Gageler, S, "The Legitimate Scope of Judicial Review" - Australian Bar Review (3)
November 2001 : 279-291
Leigh, L H 'Time limit clauses and jurisdictional error', [1980] Public Law 34 808
Markson, H E 'Jurisdictional error', (1980) 130 New Law Journal 1137
Mason Sir Anthony, The High Court as Gatekeeper - [2000] MULR 31