Was the provision of "acceptable employment" a jurisdictional fact?
39 In FBIS International, which concerned an application of the same kind as the present, the question in the Commission, both at first instance and before the Full Bench, was whether the applicant employer had obtained other acceptable employment for employees it had retrenched. The Full Court stated at [21]:
In the way that s 120 is drafted, the matters set out in subs (1) are, as the Full Bench in the present case recognised, jurisdictional facts for the exercise of the discretion arising under subs (2). As such, whether the applicant obtained acceptable alternative employment is now directly justiciable in this court in an application of the present kind.
40 For this reason ACC's contention to the same effect was not challenged.
41 The Full Court's statement in FBIS International was not supported by detailed reasons and there is nothing in the judgment to indicate that the question was the subject of any argument. As Basten JA recently observed, the jurisdictional fact label is potentially confusing: Trives v Hornsby Shire Council [2015] NSWCA 158 at [52]. With the greatest respect we doubt that the question of whether an employer obtains acceptable employment for an employee is a jurisdictional fact, properly so-called.
42 The matters set out in subs (1) are certainly pre-conditions or criteria for the exercise of the statutory power or discretion in subs (2). But that does not necessarily mean that they are jurisdictional facts. Whether or not that is so depends on whether, as a matter of statutory construction, it was intended that satisfaction of those criteria or pre-conditions be left to the administrative decision-maker or needs to be established as an objective fact. Put differently, it depends on whether, as a matter of statutory construction, it was intended that the question be left for determination in the final instance to a court on judicial review. This latter approach was favoured by Professor Aronson, who in an article entitled "The Resurgence of Jurisdictional Facts" (2001) 12 PLR 17 at 31 said that, constitutional facts aside:
the critical task is to ascertain the meaning of the relevant Act. Is it best interpreted as allowing de novo redetermination of the relevant fact in the judicial review court?
43 To properly construe the statute, it is necessary to examine both the language in which the relevant provision is cast and "the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional": Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [6] (Spigelman CJ). In an earlier judgment dealing with this question - Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [41] - his Honour pointed out:
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.
44 His Honour also observed (at [89]) that where the criterion is a matter upon which reasonable minds may differ it is less likely that Parliament intended the criterion to be an objective fact. Similarly, in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] French CJ said that "[w]hen a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court".
45 The alleged error in FBIS International related to the finding that the employer had not obtained (acceptable) employment. In our view, while the question of whether the employer obtains employment may not call for assessment and value judgments on the part of the decision-maker, the question of whether the employment is acceptable plainly does. As it happened, the Full Bench in FBIS International was not concerned with that question. It was apparently uncontentious in that case that the employment the employer was said to have obtained was acceptable (see [22]).
46 In our opinion, when regard is had to the FW Act, the choice of the word "acceptable" to qualify the employment and the total context of the legislative scheme, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional, it is unlikely that the intention was to allow a "de novo redetermination" on judicial review of whether the employment was acceptable.
47 Be that as it may, in oral argument the proposition that the question of whether the employer had obtained acceptable employment was a question as to a jurisdictional fact was abandoned. ACC submitted that the first error the majority made was to fail to apply an objective test. By the end of the oral argument the submission was refined into the proposition that the majority impermissibly took into account Ms Powell's personal preferences and so failed to apply themselves to the question the Act prescribed or misunderstood the nature of the opinion they had to form. If this reformulated proposition is correct, the process of reasoning would undoubtedly disclose jurisdictional error: see Coal and Allied at [31].