[Music] g'day again and welcome to the third video in week six of our admin law course so far this week we've been looking at the concept of narrow ultra virus which boils down to three propositions if you can't show where the legislation authorizes a decision the decision will be invalid if the legislation requires procedures to be followed before a decision can be made then a failure to follow those procedures will invalidate the decision and finally a decision can only be made by the person nominated in the legislation or by their proper delegate in this video i want to take half a step to the side we're going to be talking about a concept called jurisdictional error of law jurisdictional error of law is very similar conceptually to the narrow ultravirus stuff we've been talking about this week it overlaps a lot so some of what i'm going to say in this video will sound really familiar at the same time jurisdictional error of law goes just a little further than narrow ultra vires and it's a really important concept for reasons that i'll explain later on the explanations would make no sense right now so you just have to trust me for a few minutes before we get into it i want to tell you up front that many students struggle to wrap their brains around jurisdictional error so if this takes you some effort that's a okay it took me some effort too when i was an undergraduate i promise you though this really is important enough to justify the time i want to start with one of my really simple silly family-based pretend scenarios i want you to imagine a parent who has two children a fifteen-year-old and a ten-year-old the parent has to go out for a couple of hours leaving the two children at home alone now at law a fifteen-year-old is perfectly able to supervise a ten-year-old the parent puts the older child in charge and says if your little brother wants to turn the tv on after midday then you can let him as long as the show he wants to watch is suitable now that's a decision making power isn't it the older child will have to decide whether the show the younger child wants to watch is suitable but the older child can't just make that decision two conditions have to be in place first first the younger child has to ask this is the household equivalent of someone making an application if the younger child decides that they're having too much fun kicking a ball around in the backyard then the older child's views about the suitability of tv shows is irrelevant until there is an application a request by the younger child the older child has no jurisdiction to decide anything second it has to be after midday if the younger brother asks for the tv at 11 30 the older child has no power to say yes doesn't matter if the show is suitable or not the decision making power of the older child doesn't exist yet again the older child doesn't have jurisdiction a jurisdictional error of law happens whenever someone tries to make a decision and they don't have the power to make it in general there are four types of jurisdictional error three of them are our narrow ultra v res grounds first does an enactment provide the power to make the decision in this case mum was the legislature the power to decide the suitability of the tv show existed because she made up the rule that's the equivalent in household terms of enactment isn't it second if the enactment sets out a procedure to enliven the decision-making power the procedure must be followed so if the younger kid doesn't ask to watch tv the procedure does not get followed so the power to decide the suitability of the tv show doesn't arise third who does the enactment give the power to mum gave the power to the older kid if the older kid delegated that power and told the younger kid to watch whatever he liked the younger kids decision would have no validity and fourth this is the new one there may be another precondition not a procedure but some other condition that needs to be present to enliven the decision-making power we call these jurisdictional facts in this case the precondition the jurisdictional fact was the time until midday even if there was an application by the younger kid and even if the show was suitable there was no power for the older kid to make the decision let's bring it back to the law jurisdictional error of law occurs if one the decision is not authorised by the enactment at all two the decision maker was not authorised to make the decision three if a procedure had to be followed before the decision could be made and the procedure was not followed and four if some other non-procedural condition some jurisdictional fact had to exist before the decision could be made and that jurisdictional fact did not exist in any of those cases the decision maker never has the power to make a decision they never have jurisdiction and so if they try to make a decision they're making a jurisdictional error in a recent landmark case called hussein and the minister for immigration in the high court chief justice keefel and justices gagler and kean said jurisdictional error in the most generic sense in which it's been come to be used to describe an error in statutory decision-making process correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it to describe a decision as involving jurisdictional error is to describe that decision as having been made outside jurisdiction now that's a long dense quote go and have another look at it once or twice but it really does completely capture the heart of what i'm talking about when i talk about jurisdictional error the next question of course is why any of this matters for the longest time this was just a technical distinction nobody genuinely cared about the difference between jurisdictional and non-jurisdictional error unless maybe they were an administrative law lecturer but then in 2001 the tampa incident happened we've already talked about that one that was the case where the container ship saved the refugees from drowning but the australian government refused to allow them to dock in australia shortly afterwards in october 2001 the howard government falsely accused a different group of asylum seekers of throwing their children overboard in order to oblige the navy to the navy to rescue them the entire 2001 federal election was based on racist hysteria with the howard government promising to make it more difficult for muslim asylum seekers to reach australia as part of that process the government passed privative clauses to try to prevent asylum seekers from being able to challenge immigration decisions regardless of your views about refugees and immigration this was tragically unjust the accountability mechanism of judicial review was removed from refugee decisions simply because the government wanted to make the process harder the high court came to the rescue in a case called plaintiff s-157 in the commonwealth the high court determined that its power to review jurisdictional errors of law comes directly from the constitution and as a result the parliament cannot prevent the court from reviewing administrative decisions where there is an allegation of jurisdictional error of law so while an aggrieved person might be prevented from complaining that a decision was made incorrectly they cannot be prevented from challenging the decision if their allegation is that the decision maker lacked the power to make the decision at all as a result there are still bucket loads of migration review decisions every year the government failed in its attempt to put migration law beyond the jurisdiction of the court that's the take home message administrative decisions which suffer from jurisdictional error can be challenged in court even if there is a privitive clause to the contrary and thank goodness for that because any government which tries to legislate away your right to challenge administrative decisions is trying to legislate away your basic human rights so that brings us to the end of week six this week we've looked at narrow ultravires and we've looked at the idea of jurisdictional errors of law we've learned that an administrative decision is invalid if there is no enactment to provide the decision-making powers the decision is invalid if the decision maker is not authorised to make the decision either by the enactment itself or by a valid delegation we've learned that the decision is invalid if the legislation requires certain procedures to be followed before the decision-making power comes into existence and those procedures are not followed those three are our narrow ultravires finally we've learned that decisions are also invalid if the legislation requires some precondition some jurisdictional fact to be in place for a decision to be made and if the precondition or jurisdictional fact is not in place the decision can't be made those foregrounds for review are all jurisdictional errors of law and the government can't just legislate them away yet again administrative law is our protection from tyranny next week we're going to hook into the rest of the grounds for review what they refer to as broad ultra beerus for my money next week is the most interesting week of the whole course have a great weekend and i'll see you next week