Interlocutory jurisdictional error
47 The basic test for the identification of jurisdictional error by an administrative tribunal was stated in Craig v South Australia (1995) 184 CLR 163 in the following way (at 179):
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
(Emphasis added.)
48 The necessity for the exercise of power to be affected should be noted. A similar point was made in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) referred to the passage from Craig set out above and said (at [82]):
82 … What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …
(Emphasis added.)
49 In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294, McHugh J identified the issue for examination as follows (at [72]):
72 Jurisdictional error may arise where a decision-maker fails to discharge "imperative duties" or to observe "inviolable limitations or restraints" found in the Act. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.
(Emphasis added.) (Footnote omitted.)
50 Those various observations, and the test they reflect, are more easily applied to legal errors which affect the exercise of some final authority or decision-making power. They are less easily applied at any interlocutory stage.
51 The recent clarification by the High Court of the law relating to legal unreasonability in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 concerned, at one level, a final decision by the Migration Review Tribunal ("the MRT"). But at another level it concerned the reasonableness of a refusal to grant an adjournment which might have made the vital difference between success and failure for a visa applicant, and therefore fundamentally affect whether the visa applicant might be granted a right to remain in Australia. French CJ said (at [31]):
31 The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent's migration agent. It did not suggest that the first respondent's request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent's application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.
52 Hayne, Kiefel and Bell JJ concluded that the MRT did not conduct the review before it "in the manner" required and that the MRT "consequently acted beyond its jurisdiction". This appears to comfortably accommodate the possibility of interlocutory jurisdictional error.
53 Apart from questions of unreasonableness, it has long been established that denial of procedural fairness (a category of legal and jurisdictional error not referred to in the passage from Craig set out above) may justify prerogative relief at an interlocutory stage.
54 The cases to which I refer next concerned the writ of prohibition, but I see no reason in principle why the passages to which I will refer would not apply to the writ of certiorari, followed, if necessary, by a writ of mandamus (as was sought in the present proceedings) to command further attention to the case at hand.
55 In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Proprietary Limited (1953) 88 CLR 100, a writ of prohibition was sought against a delegate of the Australian Stevedoring Industry Board who was conducting an inquiry under the Stevedoring Industry Act 1949 (Cth). An allegation of apparent bias was dismissed by the High Court. Then the Court dealt with an argument that prohibition should lie in any event, and upheld it. The reasons for that conclusion are important. Dixon CJ, Williams, Webb and Fullagar JJ said (at 117-118):
… There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power conferred by s. 23 (1) or that an erroneous test of the liability of the employer to the cancellation or suspension of his registration will be applied or that some abuse of authority is likely. In any such case a writ of prohibition may lie but it must be a writ restraining the ordering of cancellation or suspension. If on the facts no basis could exist for exercising the power it would be a proper exercise of this Court's jurisdiction to award a writ of prohibition prohibiting unconditionally or peremptorily the cancellation or suspension threatened.
and (at 118-119):
… subject to certain limitations not here material, while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority.
56 It was an important element of this analysis that there was no real possibility of an outcome against the interests of the prosecutor which would be jurisdictionally sound, so that any further conduct of the challenged inquiry was inappropriate.
57 In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ (with whom Gleeson CJ agreed) said (at [41]):
41 It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.
and (at [59]):
59 However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).
58 On the present application, Mr Hyde Page submitted that a denial of procedural fairness will generally not justify intervention at an interlocutory stage. He relied on judgments in this Court by Murphy J (Frugtniet v Tax Practitioners Board (2013) 136 ALD 324 at [36]) and North J (VAI v Deputy President Forgie of the Administrative Appeals Tribunal and Federal Commissioner of Taxation (2003) 52 ATR 49 at [37]), but neither judgment or reference assists him. In each case, a denial of procedural fairness was not sufficiently established at an interlocutory stage. By contrast, in Australian Postal Commission v Hayes (1989) 23 FCR 320 ("Hayes"), Wilcox J said (at 323):
… the Court ought not to deny relief upon the merits in a case where a question of substance arises, which may be important in the disposal of the principal proceedings, particularly where the effect of refusing relief will be irreversible. …
59 The question which his Honour was addressing was whether a direction by the AAT would unreasonably interfere with cross-examination. The headnote of the report of the case records:
In proceedings before the Administrative Appeals Tribunal there was an issue between the parties as to the extent of injuries suffered by B, the second respondent. Counsel for the Commission desired to confront B in cross-examination with film of her activities which was taken in the period during which she was alleged to have been suffering from the injuries. The tribunal directed that the film be shown to B at the commencement of her evidence in chief.
Held: The direction given by the Tribunal denied to the Commission procedural fairness because it so fettered the proposed cross-examination of B that her evidence could not properly be tested.
60 The case is, so far as it concerns procedurally unfair interference with normal rights of cross-examination, an analogue in some senses with the present case, as I shall mention.
61 The cases make it clear, in my respectful view, that a court will not decline to intervene in a proven case of denial of procedural fairness at an interlocutory stage, but the requirement for a sufficiently clear case is no small obstacle.
62 I shall give closer attention to those matters when I deal with the particular complaints made by the Commissioner.
63 However, there is one further matter with which I should deal here. Mr Hyde Page submitted that any error made by the AAT in the present case was not capable of being regarded as jurisdictional error. He relied on a judgment of the Western Australian Court of Appeal in Re State Administrative Tribunal; Ex parte McCourt (2007) 34 WAR 342 ("McCourt") at [52]:
52 Where the decision-maker is a court or anomalous tribunal, misconstruing a statute, identifying the wrong issue, asking the wrong question, taking into account irrelevant considerations or failing to take into account relevant considerations do not ordinarily involve jurisdictional error: Craig (at 179-180). Insofar as relevant and irrelevant considerations are concerned, they only relate to jurisdiction if the matters to be taken into account or ignored are a precondition of the existence of any authority to make an order or decision in the circumstances of the case: Craig (at 177-180). We are not persuaded that the considerations now relied on by the applicant can be so characterised.
64 This passage proceeds from a conclusion that the State Administrative Tribunal, constituted under the State Administrative Tribunal Act 2004 (WA) was an "anomalous tribunal", adopting conclusions in Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501. The reference to the State Administrative Tribunal as an "anomalous tribunal" was intended, no doubt, to distinguish it from ordinary administrative tribunals. Anomalous courts and tribunals were expressly excluded from the discussion in Craig (see at 176-177). The AAT is not an anomalous tribunal. The reasoning in Craig, and the "critical distinction" which is introduced in Craig at 179 between inferior courts and administrative tribunals, is directly applicable. McCourt has no application.