This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws, a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Jurisdictional Error


Jurisdiction is the “authority to decide”. A jurisdictional error arises when a decision-maker exceeds the authority or power conferred upon them. It means the decision-maker has failed to comply with an essential condition to or limit on the valid exercise of power, and this renders their decision invalid. Judicial review for jurisdictional error is entrenched in the Constitution.

Determining jurisdictional error

There is no exhaustive list of jurisdictional errors, but case law has identified such an error exists when a decision-maker has:

  • identified a wrong issue;
  • asked a wrong question;
  • ignored relevant material;
  • relied on irrelevant material;
  • failed to observe a requirement of procedural fairness;
  • made a decision involving fraud;
  • made a decision in bad faith;
  • made a decision without evidence;
  • applied a policy inflexibly.

The grounds for judicial review of a decision, which are listed in Section 5 of the Administrative Decisions (Judicial Review) Act 1977, overlap substantially with the formulation of judicial error at common law. Section 5(1)(c) of the Act specifies jurisdictional error as a general ground for review, stating an order of review can be sought when “the person who purported to make the decision did not have jurisdiction to make the decision”.

Non-jurisdictional errors are commonly known as “errors of fact”. They do not involve a question of law and usually do not affect a decision-maker’s power or authority to make a decision. They include failing to comply with a statutory provision requiring a decision-maker to provide reasons.

However, the distinction between jurisdictional and non-jurisdictional errors is not clear. In 2008, High Court judge Michael Kirby explained:

“The classification is conclusory. It is very difficult to define and to apply. In recent years it has been substantially discarded by English legal doctrine. Jurisdictional error is nearly impossible to explain to lay people even though the Constitution (including the central provisions in s 75(v)) belongs to them. Most non-lawyers would regard it as a lawyer’s fancy.”

Craig, Kirk and the current test

Two High Court cases are commonly examined in a bid to show how jurisdictional error in Australia has developed into a complex concept and the difficulty in forming a conclusive definition.

In the 1995 case of Craig v South Australia, the High Court directly used the term “jurisdictional error” to describe when a decision-maker “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”. It provided examples of where the court could consider a jurisdictional error had been made, including failure to apply a correct legal principle, the making of a decision based on no evidence, and the making of a decision that was unreasonable because it was irrational or illogical.

Then in the 2010 case of Kirk v Industrial Relations Commission, the High Court explained, “It is neither necessary nor possible, to attempt to mark the metes and bounds of jurisdictional error… The reasoning in Craig…is not to be seen as providing a rigid taxonomy of jurisdictional error”.

Since the Craig case, courts have narrowed their focus to assessing whether a decision involving jurisdictional error has deprived a person of a fair outcome. Courts now adopt a test of “materiality”: an error will constitute a jurisdictional error if it is material to the outcome of the decision under review. The onus is on the applicant to prove that the error would have affected the outcome. The court will ask whether an alternative decision would have been reached if not for the error. If the decision would have been the same without the error, it is unlikely the decision will be set aside.

Consequences of jurisdictional error

A decision shown to have been materially affected by a jurisdictional error will be invalid. The court in Minister for Immigration and Multicultural Affairs v Bhardwaj stated: “a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all”, which means the “the duty to make the decision remains unperformed”.

The finding of a jurisdictional error means the traditional principle of “functus officio” (a decision-maker has discharged their duty and their authority is at an end) may not apply. Whether the decision will be remade depends on whether the legislation under which the original decision was made displays an intention to allow or prohibit reconsideration.

For advice or representation in any legal matter, please contact Armstrong Legal.

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