Cases considering jurisdictional fact
26There are many authorities in the High Court and the Court of Appeal which have considered the nature and significance of jurisdictional facts. The Council's submissions identified a number of Court of Appeal cases which have considered whether a jurisdictional fact existed and been satisfied in proceedings in this Court. Many were judicial review cases in which an appeal was enabled by s 58 of the Court Act. Appeals under s 58 are not limited to a question of law. The role of a court in judicial review proceedings is wider than in an appeal limited to a question of law in relation to the grounds able to be considered and the relief granted. In Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 , Brennan J stated that the duty of the court in judicial review proceedings is to declare and enforce "the law which determines the limits and governs the exercise of the repository's power".
27The Council also relied on judicial review cases considering Commonwealth tribunal decisions in relation to jurisdictional fact-finding in which illogicality or irrationality in fact-finding was raised. Eshetu concerned the decision of the Refugee Review Tribunal to refuse to grant a visa under the Migration Act 1958 (Cth) which required a decision-maker to be satisfied of a certain matter before jurisdiction was enliv ened. The appellant argued that the decision of the Refugee Review Tribunal was "so unreasonable that no reasonable Tribunal, acting within jurisdiction and according to law, would have come to such a decision". Gleeson CJ and McHugh J (at [45]), and Gummow J at ([127]) recognised that the case was incorrectly framed as one of Wednesbury unreasonableness. In considering a more accurate expression for the application at [127] - [146], Gummow J stated at [127] that it was a case concerning jurisdictional facts and observed that "a court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists ". His Honour stated at [131] that determination of jurisdictional facts based on satisfaction of a decision-maker are reviewable under s 75(v) of the Constitution, which enables judicial review by the High Court in its original jurisdiction, citing Quin at 35 - 36. At [145] his Honour continued that in such cases review should be permitted where "the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds." He found at [147] that the Refugee Review Tribunal's fact-finding and reasoning did not err in this regard.
28Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [ 2003] HCA 30; (2003) 198 ALR 59 concerned, inter alia, an application for judicial review in the original jurisdiction conferred by s 75(v) of the Constitution on the basis that the Refugee Review Tribunal's decision displayed jurisdictional error. Relying on Gummow J's statement at [145] in Eshetu , the appellant argued that "its determination that the condition upon which depended the power (or duty) to grant him a protection visa was not met was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds." SZMDS was also a judicial review case of a determination by the Refugee Review Tribunal brought under s 75(v) of the Constitution. It was considering in that context whether a decision-maker under the Migration Act was properly satisfied of certain facts before jurisdiction was enlivened.
29Generally, in proceedings reviewing administrative action the reviewing court can conclude that the jurisdictional fact did not exist based on error in findings of fact and of law. For example in R v Blakeley ; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 , which concerned an application for mandamus under s 75(v) of the Constitution against a commissioner's decision, Fullagar J stated at 90 - 91:
Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions both of law and of fact. As Griffith CJ said in Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Pty Co Ltd : "the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." In the same case Barton J said: "Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance".
But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong, to mandamus. (footnotes omitted)
This extract of Blakeley was cited by Spigelman CJ in the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at [86].
30In Project Blue Sky Inc v Australian Broadcasting Authority [ 1998] HCA 28; (1998) 194 CLR 355, a review of administrative action under the Broadcasting Services Act 1992 (Cth) , at [ 91] - [92] McHugh, Gummow, Kirby and Hayne JJ stated:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition...
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. (footnotes omitted).
31In Enfield , which were judicial review proceedings, in determining whether a fact was jurisdictional t he High Court, Gleeson CJ, Gummow, Kirby and Hayne JJ, at [28] stated that the "term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion". At [44] the joint judgment considered the role of the court in judicial review proceedings and cited Brennan J in Quin at 36 and Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [ 1966] HCA 40; (1986) 162 CLR 24 at 40 . The Court then noted that while there is no error of law in making a wrong finding of fact, per Brennan J in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77, such limitations did not apply to the determination by the court of the jurisdictional facts defining the activities of the decision-maker.
32Spigelman CJ in the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [9] stated, "There is no bright line between jurisdictional error and error in the exercise of a jurisdiction", relying by way of example on Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163] per Hayne J. His Honour continued, "Nevertheless, the Court ... must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that Parliament has conferred."
33In Kirk , the High Court held the Industrial Court of NSW had no power to make certain orders and it misapprehended a limit on its powers; see [24], [26]. Kirk concerned, inter alia, the Court of Appeal's refusal to quash the Industrial Court of NSW's orders convicting the appellants of offences against the Occupational Health and Safety Act 1983. A privative provision in s 179 of the Industrial Relations Act 1996 provided that a decision of the Industrial Court is final and could not be appealed against. The High Court found (at [55], [74] - [77], and [108]) that the Industrial Court committed two jurisdictional errors in misapprehending the limits on its power, warranting orders in the nature of certiorari.
34Of greater moment for current purposes is the High Court's analysis of jurisdictional error in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177 - 178 (summarised with approval in Kirk at [72]) as being that an inferior court can act beyond jurisdiction by entertaining a matter outside its limits and powers, for example, (i) in the absence of a jurisdictional fact, (ii) disregarding a matter that the relevant statute requires be taken into account as a condition of jurisdiction and (iii) misconstruction of the relevant statute. Kirk was submitted by the Council to render any limit on an appeal from a commissioner in relation to jurisdictional fact unconstitutional. Kirk does not address directly the preliminary question raised concerning the scope of an appeal under s 56A.
35The Council's submissions that a court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists per Eshetu at [127] per Gummow J and Ex parte Pilkington ACI (Operations) at 125 per Mason J (with whom Stephens J at 119 and Jacobs J at 130 agreed and with whom Gibbs ACJ was in general agreement at 118) are adopted. I also refer to Project Blue Sky at [91] - [92] quoted at par 30 above.
36Judicial review of the decisions of commissioners are not provided for under s 56A so that these decisions while helpful in identifying the significance of jurisdictional fact finding to ground jurisdiction of a court or tribunal do not alone answer the question raised. Section 56A identifies the sole basis on which an appeal against a commissioner's decision can be brought.