(a) the expression "jurisdictional fact" generally "is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker": Gedeon at [43], Enfield at [28];
(b) parliament can make any fact a jurisdictional fact by an intention that it must exist in fact (objectivity) and that its absence or presence will invalidate action under the statute (essentiality): Timbarra at [37], Dowe at [30];
(c) the normal rules of statutory construction apply when determining whether a factual reference is a jurisdictional fact: Timbarra at [39];
(d) 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 a court cannot itself determine the existence or non-existence of the fact, although (if it is in issue) the court will inquire, for example, as to whether the decision was manifestly unreasonable in the Wednesbury sense: Timbarra at [41];
(e) there is a distinction between a fact that is an essential preliminary (ie legally antecedent) to the decision-making process and a fact to be adjudicated upon in the course of the decision-making process: Colonial Bank at 442-443, Timbarra at [52], Woolworths at [46]. If the factual reference is preliminary to the exercise of statutory power, it is more likely to be a jurisdictional fact: Timbarra at [44], Woolworths at [48];
(f) the existence of a jurisdictional fact is often signalled by expressions such as "where X exists" or "when X exists" or "if X exists", then a person is empowered or obliged to act or refrain from action: Anvil Hill at [21];
(g) a jurisdictional fact includes the mental state of a decision-maker as to the existence of X where the statute mandates that that mental state enlivens the exercise of the statutory power. In such a case, judicial review by a court is limited to (i) determining whether that mental state existed and does not extend to determining whether X existed, and (ii) determining whether that mental state was reasonably open on the facts in the Wednesbury sense ie manifestly unreasonable: Timbarra at [41] - [42], Barrick at [35] - [36], [38], Australian Heritage Commission at 306-308;
(h) where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - for example, "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that the mental state is a particular kind of jurisdictional fact. Where such words do not appear, the construction is more difficult: Timbarra at [42], Enfield at [28] and [34], Sutherland Shire Council at 666, Woolworths at [13] and [25], Anvil Hill at [21], Barrick at [30] - [39].
(i) the fact that questions of degree arise and that there will be room for differences of opinion does not mean that the matter would more appropriately be decided administratively rather than by judicial decision: Sutherland Shire Council at 666. However, the fact that a judgment is required on a matter of potentially significant disputation suggests, but it is not always the case, that it is less likely to be intended to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ: Timbarra at [89], Woolworths at [60];
(j) the scope and purpose of the legislative scheme may be an indicator of whether or not a factual reference is a jurisdictional fact: Woolworths at [30];
(k) a jurisdictional fact may be suggested by a prohibition of conduct unless a specified fact exists: Enfield at [34], Woolworths at [44];
(l) the location of a factual reference in a statutory formulation concerned with the requirements of an application is a significant factor suggesting that the factual reference is jurisdictional: Timbarra at [51];
(m) inconvenience arising from a jurisdictional fact conclusion is relevant to determining the legislative intention: Timbarra at [91], Woolworths at [63].
40 The present case is unusual in that it concerns the question of which of two administrative bodies (the council or a regional panel) had a particular statutory function. The parties were unable to refer me to an equivalent case.
41 The respondents submit that the question whether the capital investment value of the development was more than $10 million is not a jurisdictional fact for the following reasons:
(a) first, cl 13F(1) of the Major Development SEPP delimits the council's jurisdiction and does not stipulate a criterion the satisfaction of which enlivens a regional panel's powers: Gedeon ;
(b) secondly, the determination of capital investment value is part of the council's function of assessing the development application under cl 13F(2)(d) and therefore the determination is in the exercise of a power rather than something preliminary to it;
(c) thirdly, the concept of capital investment value is complex, requiring an exercise of judgment;
(d) fourthly, having regard to the great inconvenience of a revolving door jurisdiction where conditions may increase or decrease the capital investment value of a development between receipt and determination of a development application, cl 13B(1)(a) should be construed as though the expression "development that has a capital investment value of more than $10 million" means "development that in the opinion of the council has a capital investment value of more than $10 million". The council's opinion then cannot be challenged except on the ground of Wednesbury unreasonableness.
42 I do not accept the respondents' submission.
43 In my view, the respondents' first point is incorrect. It is based on the distinction drawn in Gedeon between a criterion the satisfaction of which enlivens the exercise of a statutory power, which is a jurisdictional fact, and a delimitation on a statutory power, which is not a jurisdictional fact but a prohibition. Gedeon was a successful appeal from the NSW Court of Appeal's decisions in Dowe and Gedeon. The Court of Appeal had to consider whether authorities to conduct a controlled operation granted under s 6(1) of the Law Enforcement (Controlled Operations) Act 1997 were invalid. The Act provided:
"6(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5(3), the chief executive officer:
(a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation …