← The hardest concepts in Australian law
In one breath
A decision-maker who stays within the limits of the power given to them may still make mistakes, but a decision-maker who steps outside those limits commits a jurisdictional error and the decision is treated as invalid. Parliament cannot remove the courts’ power to review for jurisdictional error, so a clause saying that decisions are final is read as protecting only decisions made within the limits of the power.
The picture
The paddock and its fence
A drover is given the run of a paddock. Inside the fence the drover may choose which gate to use and where to rest the sheep, and may sometimes get things wrong without ever leaving the paddock. Those are errors, but they are errors within the drover’s authority. The trouble starts when the drover steps over the fence and herds the sheep onto the neighbour’s land. That is not a mistake in doing the job but doing something the drover was never given power to do.
Parliament draws the fence by statute, and the courts keep the surveyor’s record of where it runs. A notice on the gate saying that no one may inspect the paddock (a privative clause) can keep inspectors out of the interior. It cannot stop the courts from checking the fence line itself, because the Constitution guarantees that a court can confirm that officers of the Commonwealth stay within their legal limits, and the State supreme courts keep the same supervisory role over State decision-makers. A notice at the gate is read as protecting what lies inside the fence, never the fence.
Where the picture stops working
A fence is a physical line, but the boundary of jurisdiction is a legal question, and the courts have never given a complete list of the errors that cross it. Examples include asking the wrong question, ignoring something the statute requires the decision-maker to consider, and denying procedural fairness. Some statutes also add their own routes of review.
How it really works
- 1Place the rule. It works at both levels. For Commonwealth officers, section 75(v) of the Constitution guarantees the High Court’s jurisdiction to grant mandamus, prohibition and an injunction. State decision-makers are reviewable in the State supreme courts, whose supervisory role is also protected.
- 2Find the limits of the power. Read the statute and work out what must exist before the power can be used, and what it may be used for.
- 3Ask whether the error crosses a limit: a misunderstanding of the law that limits the power, an unmet mandatory condition, a failure to consider what must be considered, or a denial of procedural fairness. Those are jurisdictional. A mistake within the power is not, and review for it is much narrower.
- 4If there is a privative clause, read it as the High Court has: it can widen what counts as within power, but it cannot prevent review for jurisdictional error.
- 5State the remedy. A jurisdictional error generally makes the decision invalid, so the court quashes it and the decision may have to be made again lawfully.
Why people get it wrong
- Thinking a wrong decision is the same as a decision beyond power. On judicial review the court does not ask whether it would have decided the same way.
- Treating a privative clause as a complete bar to the courts.
- Assuming every error of law is jurisdictional. It is when the error concerns the limits of the power.
- Mixing up merits review, where a body makes a fresh decision, with judicial review, which asks only about legality.
- Treating the problem as Commonwealth-only. The same idea protects review of State decisions.
A worked example
The facts are invented
A statute lets the Licensing Commissioner cancel a taxi licence if satisfied that the holder is not a fit person to hold it. The Commissioner cancels Ibrahim’s licence because his car is painted a colour the Commissioner dislikes, which has nothing to do with fitness. The Commissioner has misunderstood the question the statute asks, which is a jurisdictional error, and a court can quash the decision.
Change the facts: the Commissioner asks the right question, but gives a minor late payment more weight than a court would. That is an error within jurisdiction, not reviewable on that ground. Change them again: the Act says the Commissioner’s decisions are final and may not be challenged in any court. The clause does not stop a court from reviewing the colour decision, because the Commissioner has stepped outside the power.
Try it
A statute says the Commissioner’s decisions are final and may not be questioned in any court. The Commissioner cancels a licence by asking a question the statute does not authorise. What is the position?
Landmark authorities
Read the sources themselves; this list is a starting point.
- R v Hickman; Ex parte Fox and Clinton, (1945) 70 CLR 598
- Craig v South Australia, (1995) 184 CLR 163
- Plaintiff S157/2002 v Commonwealth, (2003) 211 CLR 476
- Kirk v Industrial Court of New South Wales, (2010) 239 CLR 531
Where to go next
More hard concepts in Australia law
- Procedural fairness (Administrative law)
- State and federal courts: Wakim and Kable (Constitutional law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.