Chapter III and legislative competence to stipulate that a material legal error is non-jurisdictional
Access status:
Open Access
Type
ArticleAuthor/s
Hammond, EmilyAbstract
It has been widely assumed that Australian Parliaments enjoy plenary power to provide that legal errors are non-jurisdictional. The recently articulated materiality threshold for jurisdictional error raises an intriguing possibility: Might the Court now recognise a general rule ...
See moreIt has been widely assumed that Australian Parliaments enjoy plenary power to provide that legal errors are non-jurisdictional. The recently articulated materiality threshold for jurisdictional error raises an intriguing possibility: Might the Court now recognise a general rule that material legal errors are jurisdictional? This article argues that the Constitution supports this step for executive powers, and State judicial powers outside Supreme Courts. There is a discernible scheme within Ch III of the Constitution to ensure legal accountability for governmental powers over legal status; and it is incongruous with the scheme that non-jurisdictional error should operate to deny accountability for material legal error, as it does if applied to such errors in executive powers and State judicial powers outside Supreme Courts. Thus, the integrity of the Ch III accountability scheme requires a general rule that material legal errors in these two categories of powers are jurisdictional errors.
See less
See moreIt has been widely assumed that Australian Parliaments enjoy plenary power to provide that legal errors are non-jurisdictional. The recently articulated materiality threshold for jurisdictional error raises an intriguing possibility: Might the Court now recognise a general rule that material legal errors are jurisdictional? This article argues that the Constitution supports this step for executive powers, and State judicial powers outside Supreme Courts. There is a discernible scheme within Ch III of the Constitution to ensure legal accountability for governmental powers over legal status; and it is incongruous with the scheme that non-jurisdictional error should operate to deny accountability for material legal error, as it does if applied to such errors in executive powers and State judicial powers outside Supreme Courts. Thus, the integrity of the Ch III accountability scheme requires a general rule that material legal errors in these two categories of powers are jurisdictional errors.
See less
Date
2021Source title
Australian Journal of Administrative LawVolume
28Issue
3Publisher
Thomson ReutersLicence
Copyright All Rights ReservedRights statement
This article was published by Thomson Reuters and should be cited as Hammond, E. (2021). Chapter III and legislative competence to stipulate that a material legal error Is nonjurisdictional. Australian Journal of Administrative Law, 28(3), 177–198. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.auFaculty/School
The University of Sydney Law SchoolShare