The Riddle of Jurisdictional Error

Abstract

The concept of ‘jurisdictional error’ recurs throughout the Australian legal system, and therefore in legal reasoning, in a variety of important and well-known ways. However, legal reasoning involving ‘jurisdictional error’ may in truth only seem to be simple, for the term can conceal the underlying complexity, and indeed can distract from the correct approach. Like a riddle, ‘jurisdictional error’ often conceals the underlying necessary analysis. This article seeks to illustrate those propositions across various areas of administrative law, and suggests that in novel cases, the safer approach is not to use the term ‘jurisdictional error’ at all.

Keywords: Australian constitutional law, implied limitation on legislative power, constitutional entrenched supervisory jurisdiction, jurisdictional error as conclusion, Traynor

JEL Classification: K10, K30