March 06

Lisa Burton Crawford: Jurisdictional Error and the Principle of Legality

There is little love for the distinction between jurisdictional and non-jurisdictional errors of law. I gather than many people think it is an esoteric quirk of Australian administrative law, which has no firm conceptual foundation and serves no useful purpose. The Australian High Court is unique in this regard — as, perhaps, am I and my colleague Dr Janina Boughey. As is well-known, the Australian High Court insists that the distinction between jurisdictional and non-jurisdictional error must be maintained, despite the fact it has been abandoned (in substance or in form) in other common law jurisdictions. In a chapter in this forthcoming collection, Dr Boughey and I argue that the Australian position is correct, though not for the reasons that the High Court has articulated thus far. (We also doubt that the distinction can be entirely abandoned in the UK, or Canada.) Against this backdrop, it seems fitting that on this Valentine’s Day 2018, the High Court handed down its judgments in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd and Maxcon Construction v Vadasz, which signal the Court’s enduring commitment to the jurisdictional error/non-jurisdictional error distinction.

Both Probuild and Maxcon concerned broadly similar statutory schemes in place in the states of New South Wales and South Australia, which I will call the Security of Payment Acts. These statutes each created a scheme by which contractors could recover progress payments for work undertaken in the construction industry, by lodging claims to be determined by an appointed adjudicator. The question was whether the decision of an adjudicator could be reviewed by the relevant State Supreme Court, on the basis that a non-jurisdictional error of law appeared on the record of the adjudicator’s decision. On appeal, the High Court unanimously decided that it could not: in each case, judicial review for non-jurisdictional error had been ousted by the relevant Security of Payment Act. Edelman J and Gageler J wrote separate but concurring judgments.

While they were not disputed in these cases, the decisions endorse two important principles of law. First, there is a distinction between jurisdictional and non-jurisdictional errors of law. Secondly, judicial review for jurisdictional error is constitutionally entrenched, whereas judicial review for non-jurisdictional error is not — and hence the latter can be ousted by ordinary legislation (at [29]-[30] (Kiefel CJ, Bell, Keane, and Nettle JJ), [50] (Gageler J), [86] (Edelman J)). This is consistent with the earlier decision in Kirk v Industrial Relations Court of New South Wales, which held that jurisdictional error review is an essential and defining characteristic of a ‘State Supreme Court’ and hence entrenched by the Australian Constitution. However, it may not be consistent with, or fully resolve the complexities revealed by, the recent decision of the NSW Court of Appeal in Kaldas v Barbour. A similar guarantee of judicial review exists at the federal level, though it has a different constitutional basis.

The primary focus of the cases was how to interpret the Security of Payment Acts — and in particular, whether the legislation should be read narrowly so as to preserve judicial review.  This has long been a point of conflict between courts and Parliaments, as Justice Edelman observed at the start of his judgment ([84]). As noted above, there is a constitutionally entrenched minimum provision of judicial review in Australian law. This constitutional guarantee has come to be buttressed by interpretive presumptions. In particular, access to the courts is often described as a “fundamental right”, of the kind protected by the interpretive presumption known as the principle of legality. It is also regarded as an essential element of the rule of law. The result is that Australian courts will typically read statutes which purport to interfere with judicial review narrowly, so as to preserve the supervisory jurisdiction of the courts to the greatest extent possible, within the realms of constructional choice.

Why, then, did the Court conclude that judicial review was ousted in these cases? This question is particularly pertinent, given neither of the Security of Payments Acts contained an express privative clause; each was held to oust judicial review on non-jurisdictional grounds by implication. The following discussion focuses on the judgments in Probuild and the NSW Act.

The plurality’s reasoning is stated fairly briefly. Their Honours stated that:

An intention to alter the settled and familiar role of the superior courts must be clearly expressed. But the question is a matter of statutory construction statutory construction; and in the resolution of such a question, context is, as always, important ([34]).

The plurality concluded that allowing judicial review of an adjudicator’s decision on non-jurisdictional grounds would frustrate the objective of the Act, which the plurality described as providing a ‘coherent, expeditious and self-contained’ forum for resolving payment disputes in the construction industry [36]. It is striking that the plurality based their assessment of statutory purpose primarily on extrinsic materials, for reasons I will explain below. The plurality also noted that the decision of an adjudicator was not final and conclusive, a point I will also return to below.

Justice Edelman reasoned along similar lines. His Honour placed particular emphasis on the reason why statutory attempts to oust judicial review are read narrowly. The rationale for this presumption is the need to protect individuals’ freedom of access to the courts, but not just for its own sake: rather, to ensure that individuals can correct legal errors which affect their rights, and to ensure that Parliament does not create “islands of power immune from supervision and restraint” ([86]-[87]).

This rationale did not apply in this case — or at least, not very strongly — and hence neither did the principle of legality ([102]). The first reason for this was the error in question was non-jurisdictional in nature. The second reason was that the Security of Payment Acts ensured that a party affected by an adjudicator’s decision could mount a civil action down the track. In other words, the adjudicator’s decision could be loosely described as interim in nature, and there were other avenues for challenging it in place. Those familiar with the Australian case law may notice some parallels here to the decision in Futuris, and the above-mentioned case of Kaldas, and UK readers may sense some similarities to the approach taken by the UK Supreme Court in R (Cart) v Upper Tribunal (which Dr Boughey and I discuss here). In the result, Justice Edelman concluded, clear words were not necessary to oust judicial review on non-jurisdictional grounds in this case.

Justice Gageler reached the same conclusion, but on the basis that the principle of legality was not engaged at all. His Honour stated (at [58]):

The common law principles of interpretation applicable to determining whether legislation manifests an intention that a decision or category of decisions not be quashed or otherwise reviewed are not static. As with other common law principles or so-called “canons” of statutory construction, they have contemporary interpretative utility to the extent that they are reflective and protective of stable and enduring structural principles or systemic values which can be taken to be respected by all arms of government. And as with other common law principles of statutory construction, they are not immune from curial reassessment and revision.

This appears to endorse a values-driven or “functional” approach to statutory interpretation. It is striking just how closely Justice Gageler appears to cleave his values to the specificities of the legal and constitutional framework, and how the distinction between jurisdictional and non-jurisdictional errors of law informs his Honour’s reasoning. His Honour certainly did not invoke broad-brush notions of “the rule of law” or “access to the courts”. Like Justice Edelman his Honour emphasised the particular nature of relief sought, namely, certiorari for non-jurisdictional error of law on the face of the record of the adjudicator’s decision. Justice Gageler described this form of relief as an anomaly ([77]), which cannot be easily reconciled with the constitutional purpose and scope of judicial review — if at all.

This is consistent with the arguments Dr Boughey and I have made about the constitutional function of the jurisdictional/non-jurisdictional error divide, and broader arguments I have made about the purpose and scope of judicial review in Australian law. In the Australian legal system, there are — as Justice Gageler put it in Maxcon — ‘mistakes and mistakes’ ([35]). This might sound glib, but it is a distinction which is deeply embedded in our constitutional order. Given Parliament is supreme, and the Australian Constitution places relatively few constraints on the scope of executive power that Parliament can confer, Parliament enjoys significant latitude to confer statutory executive power in such terms as it thinks fit. Parliament may also impose legal limits on the power, breach of which does not invalidate its exercise. Errors of this kind are non-jurisdictional in nature.

As Justice Gageler emphasises in Probuild, the primary constitutional function of judicial review is to ensure that executive decision makers do not act without or beyond power — an idea captured by a maxim, that “the stream cannot rise above its source”.  Non-jurisdictional error does not offend this maxim, because a non-jurisdictional error is, by definition, one that does not take a decision-maker beyond the boundaries of legal authority. Indeed, the notion that a court could quash a decision which Parliament has validly authorised by way of certiorari is difficult to reconcile with parliamentary supremacy. I take Gageler J to be suggesting that certiorari for non-jurisdictional error should be interred altogether for these reasons ([77]). At the very least, his Honour concluded, the right to seek this form of relief should not be ‘exalted’ by treating it as a fundamental one, protected by the principle of legality ([77]).

I do not think that this result is inconsistent with the fundamental premise, that judicial review is a vital component of the Australian legal system. Judicial review plays an important role in protecting individual rights and interests, and upholding the rule of law. However, neither the rule of law, nor the need to protect individual rights, necessitate unfettered access to judicial review. This is not a uniquely Australian perspective. Even in those jurisdictions where the jurisdictional/non-jurisdictional error distinction has ostensibly been abandoned, courts continue to acknowledge that not every error of law should be amenable to judicial review. The more difficult question, of course, is where to draw the dividing line: how to “triage” the various errors of law that a decision-maker may make and decide which ones are reviewable, and which are not. In the Australian legal system, the jurisdictional error/non-jurisdictional error device seems a cogent way of doing so; indeed, it may be the only one constitutionally open to our courts. It is far from clear that the alternative devices that have been adopted in other jurisdictions are any better, in practice or in principle.

The significance of the decisions in Probuild and Maxcon is, I think, three-fold. First, they confirm that the jurisdictional error/non-jurisdictional error distinction is not going anywhere. Justice Gageler’s judgment offers one of the most sustained and satisfying descriptions of the constitutional basis of that distinction that we have seen in recent years. Though it is not possible to delve into the case of Kaldas here, I have flagged that there remain uncertainties about whether the scope of the entrenched minimum provision of judicial review neatly mirrors the jurisdictional/non-jurisdictional error divide. Secondly, Justice Gageler’s judgment sends a clear signal that well-established principles concerning the ambit of judicial review remedies may need to be revised, in order to maintain the integrity of the jurisdictional/non-jurisdictional error distinction.

Finally, the approach to statutory interpretation taken by the various judges is striking, and suggests that much in this area of the law is in a state of flux. In particular, the judgments strike a somewhat different tone from well-known judgments of the French Court, which insisted that parliamentary intention is a ‘fiction’, downplayed the utility of extrinsic material, and embraced a robust and fairly rigid principle of legality — especially in the context of legislative attempts to curtail judicial review. Justice Edelman’s statement that the principle of legality has ‘variable impact’ ([102]) will provide much food for further thought, as will Justice Gageler’s statement that the principles of statutory interpretation “reflect and protect structural principles or systemic values”.


Lisa Burton Crawford is a Senior Lecturer at the University of New South Wales, a member of the Gilbert + Tobin Centre of Public Law, and Coordinator of the AUSPUBLAW blog ( Her research focuses on the intersection of constitutional law, administrative law and legal theory.