Jurisdictional error - the failure to consider a submission
59 On the facts of the present cases, the Authority concluded that it had failed to take into account the submissions which had been made and that the earlier decisions should be "vacated."
60 But for the argument advanced on behalf of Applicant AHT17 (and adopted by Respondent CLV16) as to the absence of power by reason of s 473EA(3) "to vary or revoke a decision", the initial decisions reached by the Authority without considering the submissions that had been made would normally be regarded as no decision at all.
61 As a matter of general principle, it was common ground that a decision ostensibly made pursuant to statutory authority but which is made either in excess of the authority conferred or as not constituting an exercise of that authority may be regarded in law as a decision vitiated by jurisdictional error and as "no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 ("Bhardwaj").
62 In Bhardwaj, a review which had been sought by Mr Bhardwaj miscarried because the Immigration Review Tribunal had proceeded to reach a decision in ignorance of a letter advising the Tribunal of his inability to attend the scheduled hearing date and requesting a later hearing date. In reaching the conclusion that the Tribunal could there make a second decision, Gleeson CJ reasoned (at 603 to 604):
[5] There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [[1964] AC 40 at 79], Lord Reid said:
"I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid."
[6] That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made. …
[8] The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?
The Chief Justice concluded, by reference to the legislative scheme, that the Tribunal could revisit its decision "afresh". Justices Gaudron and Gummow pursued a slightly different approach and considered whether a decision beyond jurisdiction constituted "no decision at all" and whether the Migration Act "purports to give any legal effect to decisions of the Tribunal which involve jurisdictional error": [2003] HCA 2 at [51] to [54], (2003) 211 CLR at 614 to 616. That approach led to the same conclusion. In doing so, their Honours set forth "the general law" as follows (at 614 to 615):
Decisions involving jurisdictional error: the general law
[51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.
(Footnote omitted).
Their Honours continued (at 616):
[53] … As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the [Acts Interpretation Act 1901 (Cth)].
Justice Hayne likewise concluded that "[n]othing in the Act requires (or permits) the conclusion that despite the jurisdictional error, some relevant legal consequence should be attributed to the" first decision of the Tribunal: [2002] HCA 11 at [153], (2002) 209 CLR at 647. Justice Callinan also concluded that "the Tribunal had not exercised its jurisdiction … and that therefore it was open for it to do so" on the later occasion: [2002] HCA 11 at [165], (2002) 209 CLR at 649 to 650. Justice Kirby dissented. A conclusion that a decision vitiated by jurisdictional error is "no decision at all" was also expressed in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 at [76], (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. See also: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [29], (2004) 78 ALJR 992 at 997 per Gummow and Hayne JJ.
63 A failure to consider a submission, in accordance with these generally expressed principles, may constitute jurisdictional error: e.g., Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [82], (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ.
64 But, as the decision in Bhardwaj itself makes clear, that decision does not stand for the universal proposition that jurisdictional error on the part of a decision-maker will inevitably lead to the decision having no consequences at all. The legal and factual consequences of such a decision will ultimately depend upon the particular statutory provisions pursuant to which the decision has been made: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, (2003) 145 FCR 1 at 16. Justices Gray and Downes there concluded:
[42] In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389:
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.
Justice Kenny expressed the same conclusion in slightly different terms as follows (at 22):
[64] For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj … is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision. I reject the appellant's submissions in so far as they are to the contrary effect.
These observations have since been repeatedly cited with approval: e.g., Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27] per Lander J (Mansfield and Siopis JJ agreeing); Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 at [44], (2012) 200 FCR 30 at 44 to 45 per Flick and Foster JJ (Katzmann J agreeing generally). In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [151], Bromberg J expressed the application of Bhardwaj more broadly in expressing agreement with the conclusions of Muir JA (with whom Holmes JA and Ann Lyons J agreed) in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2013] QCA 394 at [66], [2015] 1 Qd R 228 at 260 that "'absent statutory provisions necessitating a contrary conclusion', the general principle identified in Bhardwaj applies".
65 That which divided the parties in the present proceedings was whether Pt 7AA, and s 473EA in particular, effected such a departure from the general principle such that a "decision" otherwise vitiated by jurisdictional error was nevertheless a "decision" for the purposes of s 473EA(3) and thus the Authority had "no power to vary or revoke" it.