Materiality and a non-binary approach to invalidity

For better or worse, jurisdictional error is a concept that strikes at the heart of Australia’s constitutional system. Its meaning shapes the breadth of the courts’ jurisdiction to engage in judicial review. Though the High Court has recognised the difficulties inherent in distinguishing between jurisdictional and non-jurisdictional errors, the distinction has long been preserved.

Whether an error is ‘jurisdictional’ is contingent upon whether there can be discerned a legislative intention to invalidate acts infected by the relevant error. This being the case, Courts must make ‘qualitative judgments’ about what the legislature should be taken to intend in conferring powers on the executive.  But what should inform these qualitative judgments? In absence of any affirmative indication of parliamentary intention, how should courts determine questions of validity where there has been non-compliance with a condition to the exercise of power?

The focus of this article is materiality and the rise of a non-binary approach to discerning jurisdictional error. The threshold of materiality was introduced as a general common law principle of statutory interpretation relevant to the definition of jurisdictional error by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.   The principle has been underpinned by a determination by the High Court to the effect that, ordinarily, immaterial errors will not operate to invalidate statutory decisions.

This article will analyse the threshold of materiality and outline controversies associated with the concept. Also explored will be the relationship between materiality the and the test for invalidity adopted by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.  As will be seen, the High Court’s adoption of a ‘non-binary’ approach to discerning jurisdictional error remains controversial.

The article is available in PDF at this link.

Douglas Freeburn

Barrister, Higgins Chambers

29 October 2024