Jurisdictional Error of Law in Administrative Law

Narrow Ultra Vires

• Three Propositions: Narrow Ultra Vires
  1. If legislation does not authorize a decision, it is invalid.
  2. If required procedures are not followed before a decision, the decision is invalid.
  3. The decision must be made by the person authorized in the legislation or their delegate.

Introduction

• Jurisdictional error of law overlaps with narrow ultra vires.
• Jurisdictional error extends beyond narrow ultra vires – important concept.
• Many students struggle with this; effort is justified.

Example Scenario

• Parent and Children Scenario
  • Parent leaves a 15-year-old in charge of a 10-year-old.
  • Conditions for decision-making by the 15-year-old:
    1. Younger child must ask (application).
    2. Request must be after midday.
  • If conditions not met, the 15-year-old has no decision-making power (jurisdiction).

Types of Jurisdictional Error

1. Authorization: Legislation must provide the power for the decision.
2. Procedure: Required procedures must be followed.
3. Authority: The decision-maker must be the one authorized by the legislation.
4. Jurisdictional Facts (New Concept): Non-procedural conditions must be met.

Legal Application

• Jurisdictional Error of Law occurs if:
  1. The decision is not authorized by the enactment.
  2. The decision-maker is not authorized.
  3. Required procedures are not followed.
  4. Jurisdictional facts do not exist.

Case Example

• Hussein and the Minister for Immigration Case
  • High Court's stance on jurisdictional error: error in statutory decision-making means decision lacks characteristics to be given force and effect by statute.

Significance of Jurisdictional Error

• Once technical, now significant because of the Tampa incident (2001).
  • Government's attempt to remove judicial review from refugee decisions.
  • High Court's decision in Plaintiff S-157/2002 v Commonwealth: High Court can review jurisdictional errors as it stems from the Constitution.

Key Takeaways

• Administrative decisions with jurisdictional errors can be challenged in court despite privative clauses.
• Attempting to legislate away judicial review undermines basic human rights.

Summary

• Narrow Ultra Vires: Invalid decisions if no authorization, improper delegate, or missing procedures.
• Jurisdictional Facts: Preconditions needed for decision-making power.
• Government cannot legislate away the right to challenge jurisdictional errors.
• Protection from Tyranny: Administrative law guards against abuse of power.

Next Week

• Focus on Broad Ultra Vires.
• Claimed to be the most interesting week of the course.
• Have a great weekend!