THE "DOCTRINE" OF REVIEW FOR "JURISDICTIONAL FACT"
49 The standard grounds of judicial review disclaim review on the merits, or review simply for factual error. The principles which govern the correction by superior courts of errors of fact made by administrative bodies have always been contentious. All branches of government routinely go about the task of ascertaining facts. Generally speaking, judicial review is not available to correct factual error save in those rare cases where findings are made which are so irrational as to warrant the conclusion that the impugned decision-maker has misunderstood the nature of the task to be performed.
50 The so-called doctrine of "jurisdictional fact" (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. "Jurisdictional fact" enables such review whenever the Court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person's determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist. This "doctrine" which is sometimes described as "jurisdictional fact" is regarded by some as one which ought to be kept within strict boundaries. It is thought to involve an unwarranted intrusion on the part of the judiciary into matters which are properly the province of the executive. Others, however, take the view that "jurisdictional fact" provides an important corrective, in favour of the rights of the individual, to arbitrary and capricious decision-making.
51 In Aronson & Dyer, Judicial Review of Administrative Action 2nd ed (2000) the learned authors say (at 194):
"The most overtly intense scrutiny for factual error in judicial review operates under the heading of review for jurisdictional fact.
A jurisdictional fact is said to be a fact which must "in truth" exist before the decision-maker or official can validly act. That is, its existence is to be determined finally by the superior court, which decides whether it thinks the fact existed at the relevant time. The court's decision necessarily prevails in the event of a difference between the court's opinion and that of the impugned decision-maker. The Federal Court in particular sometimes distinguishes between a subjective fact (being one which exists in the impugned decision-maker's opinion) and an objective fact (being one which the superior court finds to exist). The High Court also regards it as significant if the Act talks of an administrator's opinion, satisfaction or finding as to a certain fact, but it prefers to avoid the shorthand of objective and subjective facts. Rather, the issue is whether the administrator must be right as to the fact in question." (footnotes omitted)
52 Professor Aronson is a critic of some aspects of the manner in which the "doctrine" has expanded in recent years: The Resurgence of Jurisdictional Facts (2001) 12 Public Law Review 17.
53 The authorities which deal with "jurisdictional fact" are not always easy to reconcile. Some of them reflect a belief that the "doctrine" is a myth, and that the issue to be determined in any case in which it is invoked is purely one of statutory interpretation. Others reflect a broader view in which "jurisdictional fact" plays an important role in adjusting the rights of the parties, whether by reason of the effects it has upon the onus of proof, or substantively.
54 In recent years, the High Court has twice considered the operation of this "doctrine". In Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the Court held that a decision by the Australian Heritage Commission to record a place in the Register of the National Estate was not open to judicial review for want of "jurisdictional fact". It reversed the decision of the Full Court of this Court in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 in which the Full Court had held, by majority, that the decision in question was open to judicial review.
55 As the High Court, in effect, endorsed the reasoning of Black CJ who dissented in the Full Court, it is instructive to set out some of the passages dealing with the principles governing "jurisdictional fact" from his Honour's judgment at 465-6:
"Subject to constitutional limitations (and none were suggested in the present case) an Act may commit to an administrative body the power to investigate and conclusively to determine the existence of certain facts upon which the exercise of the power to proceed further, such as the power to enter a place in the Register of the National Estate, may depend. In such circumstances, the capacity of a court to review a decision by an administrative body that the facts do exist will be limited, in accordance with the ordinary principles of judicial review, and there will be no question of the court making its own decision as to the true facts. On the other hand, the legislature may make the power to do such an act contingent upon the actual existence of a state of facts: see, for example, the discussion by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. Where the legislature has made the existence of power contingent upon the actual existence of a state of facts the existence or non-existence of those facts may be determined by a court having jurisdiction to review the decision. Although in some cases it may be very difficult to decide upon which side of the line a particular provision falls, the question is one of construction …
In considering the present question it is appropriate to examine first the nature of the task committed to the Commission under the Act. Reference to the definition of the national estate in s 4 of the Act reveals that the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters. Questions of science, history and aesthetics may well need to be considered. Many branches of science, from biology to geology, may be involved. A wide range of historical and cultural issues might need to be considered …
In such circumstances the very nature of the task of identifying places that are part of the national estate is suggestive of an intention that the body established by the Parliament with the function of identification is to have the power to make a conclusive determination of that matter. What the respondent argues is "a jurisdictional fact", namely the identity of a place as part of the national estate, is a conclusion of fact and one that must often rest on a range of potentially difficult and complicated facts, assessments and value judgments. If the conclusion that a place is part of the national estate were to be seen as a jurisdictional fact, one of the Commission's most important functions, and a key function in the overall scheme of the Act, would be performed only provisionally …
The inconvenience of such a result, an inconvenience that would be of a large dimension having regard to the subject matter of the "jurisdictional fact", is a powerful indication that it was not the intention of the Parliament that the finding should, in effect, be only provisional. Rather it suggests that it was the Parliament's intention that the power of the Commission to enter a place in the Register of the National Estate was to be contingent upon the Commission's own view of the matter. Inconvenience is a matter to be considered in ascertaining the intention of the Parliament in this area: Parisienne Basket Shoes Pty Ltd v Whyte at 393 per Dixon J …"
56 Black CJ went on to contrast the position in relation to the Australian Heritage Commissionwith the approach taken in other cases in which the "doctrine" of "jurisdictional fact" had been held applicable. He referred to Minister for Immigration and Ethnic Affairs v Naumovska (1989) 88 ALR 589 where Lockhart J had held (at 601-602) that it was for the courts, and not the executive, to determine whether it had been established as an objective fact that a passenger card produced to an immigration officer had contained false or misleading information. Lockhart J observed that there were strong policy considerations in favour of that conclusion, based upon the importance of ensuring that fair and humane treatment was accorded to those who sought entry into this country. These policy considerations added weight to a construction which his Honour was in any event disposed to accept.
57 Black CJ commented in relation to Naumovska at 467:
"An inquiry as to the truth of a fact stated on a passenger card is of quite a different character and arises in quite a different context from the inquiry that would often need to precede a decision about whether a place is part of the national estate."
58 In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 the High Court took what might be thought to be a significantly broader view of the scope of the doctrine of "jurisdictional fact" than it had in Australian Heritage Commission. The issue was whether a certain land use permit process was triggered by a "jurisdictional fact", namely whether what was proposed was a "non-complying" development. At stake was whether the local council could veto a waste dump. This in turn depended upon whether what was proposed would fit within a statutory definition of "special industry". It was held that this question raised an issue of "jurisdictional fact", and was not for the Development Assessment Commission ("DAC") itself to finally determine.
59 Gleeson CJ, Gummow, Kirby and Hayne JJ, in a joint judgment explained why, as a matter of construction, the doctrine of "jurisdictional fact" was applicable to the legislation there under consideration. They held that the criterion of "special industry" was a matter of fact which did not depend upon the satisfaction or opinion of the DAC. They observed that if there was any doubt about a particular factual matter it would have been open to the court to resolve that matter by giving weight to the views of the DAC in relation to it but, in the final analysis, the question whether the fact existed was for the court to determine. Their Honours referred, in this context, to the doctrine of "judicial deference" as that doctrine had developed in the United States. They distinguished the position in this country, noting that where the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case.
60 Gaudron J, in a helpful passage, said at 158:
"Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of "judicial deference" with respect to findings by an administrative body of jurisdictional facts. Of course, other considerations apply with respect to non-jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision-maker to form the opinion in question.
Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility…" (footnotes omitted)
61 The New South Wales Court of Appeal has recently considered the principles relating to "jurisdictional fact" in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. The issue in that case was whether a particular decision (as to whether a species impact statement was required in accordance with Div 2 Pt 6 of the Threatened Species Conservation Act 1995 (NSW) pursuant to s 77(3)(d1) of the Environmental Planning and Assessment Act 1979 (NSW)) was to be construed as a "jurisdictional fact" which the Land and Environment Court must determine for itself, in circumstances where the validity of a development application was challenged for the lack of such a statement.
62 Spigelman CJ, with whom Mason P and Meagher JA agreed, concluded that a species impact statement, when required, played a critical role in the quality of the decision-making process. That made it likely that the legislature intended that the circumstances leading to the requirement to prepare such a statement were to be objectively ascertained. Importantly, his Honour observed that a "jurisdictional fact" may involve the exercise of judgment, in the determination of whether a development "is likely to significantly affect" a species.
63 Spigelman CJ said (at 64):
"Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue of whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction.
Where the process of statutory construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law require a court with a juridical review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
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.
Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact … Where such words do not appear, the construction is more difficult."
64 Not all commentators would accept as correct the approach taken in Timbarra to the issue of "jurisdictional fact". Some would regard the "doctrine" as little more than an insidious intrusion into effective decision-making.
65 Aronson and Dyer, in Judicial Review of Administrative Action (supra), note that a distinction appears to be drawn in the cases between "procedural questions" (which they say do not usually reflect "transcendent" values, and are usually treated as non-jurisdictional) and facts whose presence is constitutionally required before power can be exercised. Constitutional facts are said to be "special", and are generally characterised as "jurisdictional facts". Outside the ambit of constitutional facts the position is less clear. The learned authors say (at 199):
"The government's powers to detain, exclude and deport migrants, and some associated powers, have also been said on occasions to be conditioned on the existence of jurisdictional facts. Whether, for example, a migrant was indeed an illegal entrant, or had indeed lied, entered a sham marriage, or otherwise engaged in deception or made misleading statements when gaining entry or a permit, used to be treated as a question involving jurisdictional facts, until the [Migration] Act was amended. This was said to be consistent with the principle of maximising judicial control over executive interference with personal liberty. It has been said that at least in cases involving personal liberty one of the consequences of deploying the jurisdictional fact doctrine is to place the legal burden of proof upon the government, whereas the normal rule is that that person challenging the validity of executive action bears the legal burden on all issues." (footnotes omitted)
66 It is fair to say that there are some cases in which the "jurisdictional fact" principle appears to have been invoked in unexpected ways. These cases cannot be said to involve "transcendent" values, but do raise issues which are important, affecting as they do the rights of individuals. Aronson & Dyer draw attention to Buck v Comcare (1996) 137 ALR 335 where the issue was whether a worker had refused to submit to a government medical examination "without reasonable cause". If she had, the relevant legislation automatically required her workers' compensation payments to be suspended. This led Finn J to conclude that whether or not "reasonable cause" existed was a "jurisdictional fact". His Honour observed that although workers' compensation was a statutory entitlement, and not a fundamental common law right, it was an entitlement which was sufficiently important to warrant the extra protection to the individual which would flow from characterising "the reasonable cause issue" as jurisdictional. Finn J also observed that the courts were particularly well suited to determine issues of that type.
67 There are, on the other hand, several recent cases in this Court where judges at first instance have declined to interpret particular statutory requirements as creating "jurisdictional facts". In Karalis v Australian Community Pharmacy Authority (1998) 90 FCR 473 Goldberg J concluded that a decision made by the Australian Community Pharmacy Authority to approve particular premises as a pharmacy was not contingent on the objective fact of the distance between two premises. Rather it was contingent on the Australian Community Pharmacy Authority having formed the opinion that the relevant distance specified in the legislation had not been exceeded.
68 In arriving at this conclusion Goldberg J expressly followed the reasoning of Black CJ in Australian Heritage Commission v Mount Isa Mines Limited (supra). His Honour referred also to Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 where Branson J noted that the provisions there under consideration drew a distinction between matters of fact, and matters in respect of which the Authority had to be "satisfied". Her Honour said (at 476):
"In my view, this distinction does not reflect an intention that the Authority's power is contingent upon the actual existence of those matters of fact. Rather, the distinction between matters of fact and matters in respect of which the Authority is required to be satisfied reflects a distinction between matters capable of objective determination and those which involve an exercise of judgment …"
69 Goldberg J considered in Karalis that the appropriate course for him to take was to follow the decision of Branson J unless he thought that decision was clearly wrong. His Honour said that he was not of that opinion. He declined therefore to hold that the doctrine of "jurisdictional fact" was applicable in the particular circumstances of the case before him.
70 It may fairly be said that the authorities which deal with "jurisdictional facts" are difficult to reconcile, and that some reflect a broader and more generous view of that "doctrine" than others. Professor Aronson perceives a "resurgence" in the "doctrine" and expresses reservations about the trend of recent authority. The decisions of the High Court in Corporation of the City of Enfield and of the New South Wales Court of Appeal in Timbarra certainly qualify as manifesting that resurgence, albeit under the ambit of ordinary principles of statutory construction.