The Duality of Jurisdictional Error

Public Law Review

18 Pages Posted: 18 May 2021

See all articles by Emily Hammond

Emily Hammond

The University of Sydney Law School

Date Written: May 7, 2021

Abstract

Jurisdictional error has a prominent role in entrenched review of executive action in Australia, despite near universal acknowledgment that it does not illuminate the operative norms of administrative law. A statutory approach to jurisdictional error dominates in Australia, despite widespread agreement that the concept is merely conclusory. It is widely assumed that the path to explain - or to challenge - these matters is through better understanding a legislative supremacy rationale for jurisdictional error. However, a more compelling account of jurisdictional error can be drawn from a fundamental constitutional characteristic of executive power: The lack of inherent executive power over legal rights or obligations. By drawing out this distinct constitutional foundation for review of purported executive decisions, this article shows that the prominence of jurisdictional error in entrenched review of executive powers is explicable for substantive constitutional reasons, which reasons also cast light on why the concept does not require a statutory approach to the grounds of entrenched review.

Keywords: Judicial Review, Australian Constitution, Entrenched Review, Jurisdictional Error

JEL Classification: K10, K40

Suggested Citation

Hammond, Emily, The Duality of Jurisdictional Error (May 7, 2021). Public Law Review, Available at SSRN: https://ssrn.com/abstract=3847569 or http://dx.doi.org/10.2139/ssrn.3847569

Emily Hammond (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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