Jurisdictional Error As Conceptual Totem

(2019) 42 University of New South Wales Law Journal 1019

ANU College of Law Research Paper No. 19.25

21 Pages Posted: 18 Oct 2019

Date Written: September 2019

Abstract

Jurisdictional error is pivotal but not, in any substantive sense, ‘central’. It is pivotal because it marks important boundaries (drawn by reference to other ideas) in the law of judicial review of executive action. This pivotal but not central role has enabled jurisdictional error to function as a ‘conceptual totem’, emblematic of a determinedly ‘statutory approach’ to the articulation and elaboration of administrative law norms. After elaborating these claims, the article goes on to doubt the constitutional case for the retention of the statutory approach that, in recent years, has come to characterise the Australian approach to jurisdictional error. Recognition of the totemic function of jurisdictional error, it is concluded, is a helpful first step in better understanding and analysing administrative law norms which bear no obvious relation to statute.

Keywords: Administrative Law, Judicial Review, Australia, Jurisdictional Error

Suggested Citation

McDonald, Leighton, Jurisdictional Error As Conceptual Totem (September 2019). (2019) 42 University of New South Wales Law Journal 1019, ANU College of Law Research Paper No. 19.25 , Available at SSRN: https://ssrn.com/abstract=3470941

Leighton McDonald (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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