In defence of jurisdictional error
By Justice Jayne Jagot
Delivered at the Australian Judicial Institute of Administration
10th Appellate Judges Conference
Banco Court, Supreme Court of NSW
21-22 April 2022
1 Jurisdictional error is currently understood to be an error of law of a kind which, by reference to orthodox processes of judicial reasoning, primarily statutory interpretation, a court characterises as one the legislature intended to have the effect of invalidating the exercise of the power.
2 By a series of decisions, culminating in Kirk v Industrial Court of New South Wales  HCA 1; (2010) 239 CLR 531, the limits of the inviolable constitutional minimum sphere of judicial review are now defined by the concept of jurisdictional error. The corollaries of this are that:
(1) not all errors of law invalidate a decision, be it of the executive, a tribunal, or an inferior court – only jurisdictional errors of sufficient materiality invalidate a decision; and
(2) the capacity of parliaments to oust judicial review by privative clauses does not extend to jurisdictional errors.
3 The function of judicial review (including for jurisdictional error) is not review on the merits, it is not an appeal by way of rehearing, and it is not an appeal on a question of law. It does involve a review for legal error and, in the case of judicial review confined to jurisdictional error, a determination as to whether the error is of a kind that vitiates the decision or exercise of power.
4 Burton Crawford and Boughey identified the sole reason for jurisdictional error in Australian jurisprudence as the fact that it "reflects the scope of legislative power to define the limits of executive power and its legal effect". That is, the legislature can identify through the laws it enacts not only the power, but also the legal effect of any non-compliance by the executive with the requirements relevant to the exercise of power. What the legislature cannot do is exclude the judicial arm of government from both giving meaning to the laws which the legislature enacts – including any privative provision – and exercising supervisory powers over inferior courts, tribunals and the executive in respect of jurisdictional error.
5 Burton Crawford and Boughey are on firm ground. The High Court has repeatedly endorsed the continued distinction between jurisdictional and non-jurisdictional error of law as necessary and useful in Australian law as it gives effect to the constitutionally entrenched minimum content of the jurisdiction or power conferred on the decision-making body, be it a court or a repository of executive power.
6 The process of identifying whether an error is 'jurisdictional' or 'non-jurisdictional' has had a bad rap. It has been described as unprincipled, esoteric, 'Byzantine', somewhat akin to "judicial divination", and to involve a distinction which is merely "chimerical".
7 However, the task of identifying jurisdictional error, whether it be in the context of an administrative body or an inferior court, involves coherent and properly founded principles. The fact that the process of required reasoning may be complex, and the scope for reasonable dispute real, should not be seen as delegitimising jurisdictional error as a constitutionally entrenched minimum standard of judicial power to correct error, and as an analytical tool.
8 Identifying the constitutionally entrenched minimum content in any case will be affected first and foremost by the nature of the decision-making body. It ordinarily involves an exercise in statutory interpretation (noting that if the decision-making body is an inferior court, as Basten JA said in Stanley v Director of Public Prosecutions (NSW)  NSWCA 337 at , "fundamental aspects of the workings of a court are not to be found in statute").
9 While the process of statutory interpretation – the giving of meaning to laws – is often described as "contestable" or involving a "constructional choice" or "preference", these concepts cannot be understood in the sense of a personal judicial choice or preference for one interpretation over another. Both the contest and the outcome (the so-called constructional "choice" or "preference") are exercises undertaken in accordance with known and accepted principles. Those principles do not include the personal values, predilections or preferences of the judge deciding the case. The principles are a result of the long development processes of the common law and the capacity of Parliament to specify provisions to be applied in the task of statutory interpretation. The inability to specify hard rules leading to inevitable outcomes does not mean that the reasoning process involved is merely discretionary or illegitimate. Nor does the fact that some of the principles are value-laden call for any exercise of judicial discretion. Those value-laden principles are a manifestation of centuries of common law development forming part of the essential compact of our democracy.
10 Generally, the task of statutory interpretation involves a process of reasoning about the legislative text by reference to known principles and presumptions to identify the single correct meaning of the law. In the context of constitutional validity, the acceptance that two different meanings of a law might both be reasonably open, thereby permitting recourse to the principle that, if possible, the law should be construed so as to be valid, involves a narrow field. As Gageler J put it in North Australian Aboriginal Justice Agency Limited v Northern Territory  HCA 41; (2015) 256 CLR 569, albeit in dissent in the result:
If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open. The nature of that mandated choice must not be misunderstood. The choice, where binary, is between two constructions: both of which are reasonably open in the application of ordinary principles of statutory construction; one of which is in opposition to the Constitution, the other of which is in conformity with the Constitution. Questions as to the severance or reading down of otherwise invalid provisions aside, a court has no warrant for departing from ordinary principles of statutory construction in pursuit of constitutional validity. And a court has no warrant for preferring one construction of a statutory provision over another merely to avoid constitutional doubt.
Only if each were reasonably open in the application of ordinary principles of statutory construction could the prospect of constitutional validity or invalidity legitimately bear on the choice between competing constructions; and only then if the court were satisfied that one construction would lead to validity and the other to invalidity.
11 It is difficult to read this and not entertain the possibility of this approach being applied to privative provisions over the last 20 years or so, but we are probably too far down that track to change course in the near future. Still, I find direct confrontation of legislative attempts to oust the minimum inviolable sphere of judicial review rather than what appear to be tortured processes of reconciliation of the apparently irreconcilable, inherently attractive.
12 In any event, this reinforces the point that the notion of an ultimate constructional "choice" or "preference" in the task of statutory construction is a fiction (in that the "choice" is an outcome driven by application of the known principles). So too is the concept of the construction reflecting "Parliamentary or legislative intention". The idea of some unitary subjective intention of legislative decision-makers is nonsensical and is not what is meant by "Parliamentary or legislative intention". Rather it is a signifier which identifies that the object of statutory construction is to give meaning to laws which itself gives effect to the language the legislature has chosen to use. A more accurate description might be the "objectively inferable or ascertainable intention of the statute".
13 While lawyers understand that the law involves many fictions, which are well-understood to be such and are nevertheless useful analytical tools, our common use of language of this kind ("fiction", "contestable", "choice", "preference") risks undermining of the legitimacy of judicial decision-making processes. The fiction of judicial choice reflects only that there are multiple decisions involved and the judge may be wrong at any decision-making point in the required synthesis of multiple considerations. But the judge never chooses which meaning they prefer – at each step they decide what they conclude to be right in accordance with known principles.
14 Returning to Burton Crawford and Boughey, they say that in Hossain at  the High Court "came close to admitting that the interpretation of statutory conferrals of executive power simply reflects the courts' own view as to where its limits ought to lie, which the legislature is deemed to accept". At  in Hossain Kiefel CJ, Gageler and Keane JJ said (citations excluded):
The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that "[d]ecision-making is a function of the real world".
15 However, the reference to "qualitative judgments" does not stand in isolation. The reference is to "common law principles which…reflect long-standing qualitative judgments". The descriptors are all important. First, there are applicable common law principles. Second, the principles are known (and thus knowable by both the legislature and the drafters of legislation). Third, the principles are long-standing (meaning they reflect the process of accretive reasoning which characterises the development of the common law). Fourth, although qualitative, because they are known and reflect doctrines fundamental to our political system (the separation of powers, the rule of law, the dignity of and respect owed to each human by reason of our shared humanity, exercises of power are not to be arbitrary and capricious etc) they can legitimately be taken to be principles to which the legislature adheres. This complex fabric of deeply held common values should not be reduced to the inaccurate mantra that laws mean only what a judge thinks they mean.
16 For the same reasons I do not agree that the High Court's maintenance of the distinction between jurisdictional and non-jurisdictional error involves what has been described as the use of an "historic doctrinal façade [that] continues to mask …judicial discretion". Acceptance of this proposition would transform statutory interpretation to a form of weighing and balancing exercise ultimately dictated by the judge's own view of where the interests of justice lie. While judges do exercise discretions of that kind in numerous circumstances, statutory interpretation is not one of them.
17 The fact that there are apparent anomalies – for example, the availability of certiorari for non-jurisdictional error of law on the face of the record and declaratory or injunctive relief for non-jurisdictional error of law if relief is sought at a time when relief will have utility – and the fact that there is a residual discretion to refuse relief for jurisdictional error – also does not undermine the legitimacy of the distinction. Apart from certiorari for non-jurisdictional error of law on the face of the record to the extent at least that it applies to actions of the executive, the other apparent anomalies are not anomalies at all.
18 For example, there is no illogicality in a system that provides both that:
(1) an unlawful decision or action, before execution, may be able to be restrained by a grant of an injunction or amenable to declaration; and
(2) the same unlawful decision or action, after execution, will not be vitiated unless the illegality is of a kind that the courts infer the legislature intended to result in invalidity of the decision or action.
19 These two circumstances are different. In the former, the court may be able to act to ensure that the illegality is cured. In the latter, that prospect is gone and the court can do nothing other than invalidate the decision or action or not. The fact that different criteria apply at the two stages (in the former legal error of any kind may suffice, whereas in the latter only legal error amounting to jurisdictional error may vitiate the decision or action) does not expose any material illogicality.
20 Similarly, there is no illogicality in courts retaining a residual discretion to refuse to make an order vitiating a decision or action despite the court concluding that the error is a jurisdictional error. This is because no law can contemplate every possible circumstance in which a challenge might be brought to an action or decision purportedly authorised by it. If and when a particular challenge is made, however, the court will know the actual circumstances in which the challenge is brought.
21 Burton Crawford and Boughey say that it is difficult to reconcile the ultimate judicial discretion to refuse relief with the legal underpinning of the concept of jurisdictional error as "that would appear to amount to a court choosing to authorise that which Parliament has not authorised – and that seems inconsistent with the conceptual foundations of judicial review, if not the constitutional distribution of powers between Parliament and the courts".
22 I am more sanguine. It does not take much to infer that the suite of common presumptions or principles informing or underlying every statute include that it is for the courts ultimately to decide whether, in the particular circumstances of any case as they appear at the time of the decision of the court, any decision or action affected by jurisdictional error should be the subject of a grant of relief. This is not a court choosing for its own reasons to authorise that which Parliament has not authorised. It is the court discharging its function to administer justice according to the circumstances of the particular case which cannot be known unless and until the case is heard.
23 On this basis, the acceptance of an ultimate residual discretion in the court not to vitiate a decision or action affected by jurisdictional error reflects the existence not of judicial choice, but of another known and long-standing doctrine of the common law – that each case is decided according to its individual circumstances, albeit within the overall common law framework including the doctrine of stare decisis. In Wong v The Queen  HCA 64; (2001) 207 CLR 584 at  Gaudron, Gummow and Hayne JJ identified this fundamental principle as that of "equal justice" – the principle which requires identity of outcome in cases that are relevantly identical and a different outcome in cases that are relevantly different.
24 Writing extra-judicially, Basten JA has observed that "experience shows that some mechanism must be used to fix the limits of judicial review". This must be right. In a choice between a truly discretionary system where the availability of judicial review is dependent on, for example, a grant of leave or "exceptional circumstances" and a system where the availability of judicial review depends on the existence of jurisdictional error, I would argue that the latter ultimately better embodies the fundamental underpinnings of our political-legal system and the legitimacy of judicial review as an organising concept within that system.
25 The former – a requirement for leave – is said to have the benefits of honesty and transparency about the availability of judicial review depending on value-laden judgments; in such a system, where the application of values is acknowledged, the values being applied can be clearly acknowledged and identified. The latter is often said to involve a legal fiction of the worst kind – overlaying a pretence of principle over a mere value-laden judicial choice.
26 At an experiential level, however, judges, who are routinely involved in both statutory interpretation and exercises of discretion, recognise that the two are fundamentally different. This fundamental difference is reflected in the intensity of permissible appellate review of the two kinds of judicial reasoning. A discretionary decision requires an error of principle to justify appellate intervention, the appellate court deferring to the wide evaluative range of reasonable decisions available to the first instance court. On questions of statutory construction, appellate courts simply decide for themselves the correct construction. No deference at all is paid to the construction of the first instance court. If the latter exercise of statutory interpretation is merely an exercise of judicial discretion in disguise, it is a disguise we not only pretend is true, but which we experience as true.
27 The continued availability of certiorari for non-jurisdictional error of law apparent on the face of the record, to my mind, says nothing about the legitimacy or logical coherence of the doctrine of jurisdictional error as the mechanism to stake out the inviolable territory of judicial review. The significance of that apparent anomaly is confined to its existence. So much is apparent from the reasoning of the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  HCA 4; (2018) 264 CLR 1 in which it was held that the capacity of a Supreme Court to make an order in the nature of certiorari for non-jurisdictional error of law on the face of the record was not within the inviolable sphere of a superior court's supervisory jurisdiction and accordingly could be ousted by statute. In Probuild the ouster was not by express privative provision but by an exercise in statutory interpretation resulting in the conclusion that the Act in question evinced a clear legislative intention to exclude the jurisdiction of the Supreme Court to make an order in the nature of certiorari to quash an adjudicator's determination for non-jurisdictional error of law on the face of the record.
28 Bateman and McDonald have identified what they described as the movement from administrative law grounds of review to jurisdictional error (as a conclusion based on statutory interpretation) as a result of two goals, one short term and one longer term. The short term goal was to "persuade that judicial review does not involve the court in political judgments—that when it invalidates an administrator's decision it is simply enforcing the letter or spirit of a statutory power and thereby acting as parliament's proxy". The longer-term goal was to protect the system of judicial review of government action. The authors might have correctly identified the consequences of the focus on the statute as determining the availability of judicial review, but their attribution of purpose or intention perhaps results from an overly narrow focus. Over the last two decades, text has triumphed across the full legal spectrum, not just administrative law. To characterise its triumph in the field of administrative law as an overt strategy by courts to secure their field of action and legitimacy risks overlooking the course of the development of the law as a whole. Equally, for Bateman and McDonald to describe jurisdictional error as "the self-conscious creation of the juristic imaginations of judges and legal scholars" designed to assuage a "majoritarian" view of the legitimacy of the "counter-majoritarian nature of judicial review" is its own kind of fiction. Amongst other matters:
(1) of course the law is an exercise in a shared mentality. But to describe the law as a product of the imagination is to disregard the long-standing and hard fought-for social compact on which our democracy is based – one critical part of which is the painstaking development of the common law according to clearly identified principles;
(2) even if the claim that there is a majoritarian view that judicial review is counter-majoritarian is taken at face value, the idea that jurisdictional error was intended to assuage majoritarian fears is to confuse potential consequence with proposed intention;
(3) no doubt the rise and expansion of jurisdictional error partly responds to privative provisions seeking to oust judicial review, but provisions of that kind demand a process of statutory reconciliation. That process initially engendered the Hickman principles and latterly has resulted in the rise and expansion of jurisdictional error (consistent with which, in Federal and State administrative law, the Hickman principles are now no more than a "rule of construction allowing for the reconciliation of apparently conflicting statutory provisions");
(4) it is not clear why we should take at face value the claim that there is a majoritarian view that judicial review is counter-majoritarian – the claim must be an over-simplification. No member of the "majority" is immune from government decision-making and no-one can assume that they will never need to call on the judicial arm of government; and
(5) in any system in which the shared mentality is that the role of courts is to do justice according to law there will always be scope for dynamic tension between the different arms of government. That potential does not need to be characterised as if it formed part of an arsenal for undermining the legitimacy of any arm of the government. It should be seen as part of the genius of modern democracies.
29 Take the principle of legality as another example. Bateman and McDonald describe it as a "recognition of the inbuilt shortcomings of the statutory approach" in which the courts attempt to circumvent the intentions of parliament by pretending that parliament does not, in the absence of clear statutory words, intend to act in a way antithetical to certain liberal values which have traditionally been protected by judicial review. But in a liberal democracy, why is it illegitimate to presume that Parliament does not intend to interfere with what have long been held to be fundamental common law principles unless clear legislative language indicates to the contrary. For present purposes, the key consideration is the qualification – if clear legislative language so indicates effect must be given to the text and, if in issue, the validity of the law must be determined on that basis.
30 It follows that I find persuasive the observations of the Hon JJ Spigelman AC, writing extra-judicially, that the primacy of jurisdictional error reinforces "the institutional integrity of courts, tribunals and executive decision-makers." Further, accepting that determining jurisdictional facts (facts that must objectively exist) and jurisdictional errors (whether or not Parliament intended that an error of that character was of sufficient significance to result in the invalidity of the decision) involve statutory interpretation does not involve accepting that the task is, as Spigelman put it, a "blank cheque to the judiciary to intervene whenever a judge believes the outcome to be undesirable." Like Spigelman, I see the process as one founded on proper principle and an embodiment of a proper acceptance of the legality/merits distinction which is fundamental to the constitutional legitimacy of judicial review.
31 In Quinn v Commonwealth Director of Public Prosecutions  NSWCA 294; (2021) 396 ALR 714 Leeming JA identified that because the issue involves statutory interpretation the different nature of tribunals and administrative decision-making bodies, compared to courts, will result in different concepts of matters within and outside power. His Honour identified some examples including:
(1) the essentiality of procedural fairness in judicial processes compared to the capacity for statutory ouster or modification of the requirement in administrative processes: ; and
(2) the capacity for a court to decide a question of law wrongly within jurisdiction compared to the general incapacity of a tribunal or administrative decision-making body to do so: .
32 In Stanley, Bell P (as his Honour then was) observed that the required approach to the task of identifying the legal character of an error of law as jurisdictional or not involved:
…construing a statutory provision in the full context of the Act in which it appears, by reference to the nature of the task in which the court is engaged and with a keen eye to the full consequences and ramifications of invalidity, not only for the immediate decision in question but for the class and volume of decisions likely to be affected by the consequences of non-compliance. A full appreciation of this last matter will often supply a significant pointer to the question of legislative intent as to the consequences of non-compliance in those cases where the consequences have not been expressly addressed in the parliamentary drafting..
33 By the "full consequences and ramifications of invalidity" I understand the then President to mean not the consequences for the individual affected by the exercise of power, but the consequences for the operation of the statutory scheme as a whole. This necessarily calls up for consideration the nature of the function being performed and the body performing it – in Quinn and Stanley, for example, the function of sentencing which is inherently evaluative – as well as the role of the function in question in the statutory scheme; in Quinn and Stanley again, for example, as but one component of a required broader consideration of community safety, a consideration not itself determinative of the question whether an intensive correction order should be made.
34 McDonald, more recently, identified that it is the statutory approach which is central, jurisdictional error being a manifestation of this approach – a circumstance which McDonald described as risking "worship of a totem". By this, McDonald means that jurisdictional error points to the central organising principle of the primacy of the statute (a principle which has explanatory power), but is not itself a central organising principle. For my part, whether merely pivotal or central, a distinction McDonald draws, the doctrine of jurisdictional error is fundamental because it both defines the inviolable boundary within which judicial review operates and identifies the question to be asked of the relevant statute – did the legislature intend this error of law to invalidate the exercise of power or not?
35 However, another question which McDonald raises is likely to become crucial. The question is whether, as McDonald puts it, is "all legal norms binding on statutory decision-makers or conditions which must be fulfilled for a power to be validly exercised must derive from statute". McDonald's thesis is that recognition of two legal sources of authority for administrative law norms, statutory and judicially developed principle, are not inconsistent with parliamentary supremacy provided the judicially developed principle does not deprive the decision-maker of the capacity to exercise the conferred power. McDonald identifies the statement of Kiefel CJ, Gageler and Keane JJ in Hossain at , discussed above, with its reference to qualitative common law principles applicable to statutory construction as one possible way in which judicially developed principle will inform the application of the doctrine of jurisdictional error in future. I share this view, but think it likely that judicially developed principle will continue to focus on characterising the boundaries or limits of the power within the conceptual framework established by the doctrine of jurisdictional error, including by analogical reasoning in other contexts such as judicial review of non-statutory exercises of executive power. 
36 As the doctrine of jurisdictional error exposes, language matters. The way in which we talk about jurisdictional error and methods of judicial reasoning also matters.
 See Lisa Burton Crawford and Janina Boughey, 'The Centrality of Jurisdictional Error: Rationale and Consequences' (2019) 30 Public Law Review 18, 22.
 Kirk v Industrial Court (NSW)  HCA 1; (2010) 239 CLR 531 at 580 , 581 ; Plaintiff S157/2002 v The Commonwealth  HCA 2; (2003) 211 CLR 476 at 482–483 , 513–514 –; Hossain v Minister for Immigration and Border  HCA 34; (2018) 264 CLR 123 at 130–131–.
 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 123  (Kirby J). See further Margaret Allars, 'The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale" in Debra Mortimer (ed), Administrative Justice and Its Availability (Federation Press, 2015) 74; Lisa Burton Crawford and Janina Boughey, 'The Centrality of Jurisdictional Error: Rationale and Consequences' (2019) 30 Public Law Review 18; The Hon Justice John Basten, 'Jurisdictional Error after Kirk: Has it a Future?' (2012) 23 Public Law Review 94, Aaron Moss, 'Tiptoeing through the Tripwires: Recent Developments in Jurisdictional Error' (2016) Federal Law Review 467.
 At  and  (citations excluded).
 Lisa Burton Crawford and Janina Boughey, 'The Centrality of Jurisdictional Error: Rationale and Consequences' (2019) 30 Public Law Review 18, 27.
 Hossain v Minister for Immigration and Border  HCA 34; (2018) 264 CLR 123 at .
 Michael Taggart, 'Australian Exceptionalism" in Judicial Review' (2008) 36 Federal Law Review 1, 9.
 Lisa Burton Crawford and Janina Boughey, 'The Centrality of Jurisdictional Error: Rationale and Consequences' (2019) 30 Public Law Review 18, 29.
 The Hon Justice John Basten, 'Jurisdictional Error after Kirk: Has it a Future?' (2012) 23 Public Law Review 94, 95.
 Will Bateman and Leighton McDonald, 'The Normative Structure of Australian Administrative Law' (2017) 45 Federal Law Review 153.
 Ibid 173.
 Ibid 176.
 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
 Plaintiff S157/2002 v Commonwealth  HCA 2; (2003) 211 CLR 476 at ; and Kirk v Industrial Relations Commission (NSW)  HCA 1; (2010) 239 CLR 531.
 Will Bateman and Leighton McDonald, 'The Normative Structure of Australian Administrative Law' (2017) 45 Federal Law Review 153, 172.
 Hon Justice James Spigelman AC, 'The Centrality of Jurisdictional Error' (2010) 21 Public Law Review 77, 84.
 Ibid, 87, 84.
 Stanley v Director of Public Prosecutions (NSW)  NSWCA 337; (2021) 398 ALR 355 at .
 Leighton McDonald, 'Jurisdictional Error as Conceptual Totem' (2019) 42(3) UNSW Law Journal 1019, 1021.
 Ibid 1032.
 Ibid 1033.
 See, for example, Amanda Sapienza, 'Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom' (2018) 43(2) University of Western Australia Law Review 67, and The Honourable John Griffiths, 'Judicial and Administrative Review of Non-Statutory State Executive Power' (Keynote Address, Land and Environment Court Annual Conference, 19 May 2022) 9 (unpublished, copy on file with author).