Class 5Statutory Interpretation

Interpretive principles: H & M pp82-112The law/Fact distinction: C & M [12.5.1]-[12.5.16]; [12.5.18C], [12.5.20C]-[12.5.29]Introducing the jurisdictional fact: C & M [7.2.18]-[7.2.30], [7.2.35C]-[7.2.37]Why did Dixon J say in Parisienne Basket Shoes v Whyte (1938) 59 CLR 369 that the courts should strive to interpret legislation so as not to treat facts as jurisdictional?

Statutory Interpretation (LAWS1160) [edit]Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012,

[8.3.1]–[8.3.26]; [12.5.1]-[12.5.16], [12.5.18C], [12.5.20C]-[12.5.29] [7.2.18]-[7.2.30], [7.2.35C]-[7.2.37].

H&M pp 82-112.

[edit]Statutory interpretation recap

[1] “The cardinal rule of statutory interpretation...requires the words of a statute to be read in their

context”: K &S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd[2]. The legislative history can also be

relevant: Newcastle City Council & GIO General Ltd[3].

Bennion: “What the court does (or should do) is take an overall view, weigh all the relevant interpretative

factors, and then arrive at a balanced conclusion.” He also sets out 4 distinct interpretative criteria

1. Common law and statutory rules

2. Principles derived from legal policy

3. Presumptions based on the nature of legislation

4. General linguistic canons applicable to any piece of prose.[edit]Language of the statute

The words in the statute are the starting point in the interpretative process. The guiding principle is the

' literal/plain meaning ' approach to interpretation - the words are given their ordinary and natural

meaning.

This was confirmed by Gibbs CJ in Cooper Brookes (Wollongong v Federal Commissioner of

Taxation:[4] “If the lang…clear & unambiguous…it must be given its ordinary & grammatical

meaning, even if it leads to a result that may seem inconvenient or unjust”.

The rationale/advantage of this approach is that judicial activism is commonly identified as a danger of

moving away from the words of the statute. The associated disadvantages include that it may be

impossible in certain cases of ambiguity and that the intention of Parliament should be the focus, as

justice in a representative democracy would not be achieved where the purpose of Parliament was

obstructed.

The second approach is the ' purposive ' approach, which is aptly captured in s 15AA of the Acts

interpretation Act 1901 (Cth): “15AA(1) In the interpretation of a provision of an Act, a construction that

would promote the purpose or object underlying the Act (whether that purpose or object is expressly

stated in the Act or not) shall be preferred to a construction that would nt promote that purpose or

object”

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[edit]Introduction

[5] Statutory interpretation is the method used by courts to determine the meaning to be given to words

contained in legislation. The primary focus is upon the actual words and the purpose underlying the

legislation. Common law and the Acts Interpretation Act s 2 provide that the same process of statutory

interpretation applies to both statutes and delegated legislation.

Courts originally preferred a strict or literal approach to statutory interpretation where courts

applied the literal meaning of words even where this caused an unjust result or one that did not

accord with the purpose underlying the legislation

Over time, the golden rule was developed to modify the literal rule by allowing the literal

meaning to be overlooked in favour of upholding the purpose of legislation, where the literal

meaning produced an absurd or inconsistent result. The main purpose was to correct errors in

legislation

The purposive approach allowed courts to give primary importance to the purpose or object

underlying the legislation. Today courts are statutorily required to consider both the meaning of

the words used and the purpose behind the legislation and this has led to a more balanced and

effective approach to resolving ambiguity

It was enshrined in s 15AA of the Acts Interpretation Act.

The purposive approach requires an Act to be “read as a whole” and in the context of other laws

in Australia.

Today the purposive approach to statutory interpretation is a principle underlying all statutory

interpretation today.

The two basic steps in statutory interpretation are:

1. Identifying ambiguity

2. Resolving ambiguity

[edit]Identifying ambiguity

[6] The meaning of words will generally not be clear if:

- The words are capable of more than one meaning

- The words are located next to other words or in a context that makes there meaning unclear

(Murphy v Farmer)

- The literal meaning of the words produces an unreasonable or unjust result

- Consideration of the purpose behind the legislation throws doubt upon the intended meaning of

the words[edit]Resolving ambiguity

[7]The court will resolve ambiguity by considering the words in the context of the legislation as a whole

and its light of the purpose. Indications of the legislative purpose will be sought in the terms of the

legislation and, where appropriate, in other relevant documents such as:

- Dictionaries and interpretations of similar words in related legislation

- The Interpretation Acts: outline the extent to which external evidence of purpose can be looked

at

While the court is limited to applying the actual words used in legislation, it is still open to a court to

adopt a broad approach in deciding upon the possible meanings that can be given to those words.

If the grammatical meaning of a provision does not give effect to the purpose of the legislation, the

grammatical meaning cannot prevail. Today, a court is required to prefer an interpretation of legislation

that promotes the object over one that does not.

When courts ascertain the intention of Parliament, this does not mean the intention of subjectively held

intention when the statute was enacted. Courts have in the interpretation of statutory materials, always

sought to determine and give effect to the policy of the legislation before them. It is the objective

intention of parliament in passing legislation that concerns the court. Such a consideration may indicate

what the legislature set out to achieve in passing the legislation. [edit]Legislative purpose & Secondary guides to interpretation

[8]The legislative purpose is the objective purpose of parliament, not the policy behind it. This means that

the terms of the legislation itself will always be the starting point, only if this is inadequate can secondary

sources be considered, such as:

- Headings to sections and margin notes

- Reports of royal commissions, law reform commissions and parliamentary committees

- Treaties or other international agreements referred to in the legislation

- Any explanatory memorandum

- The second reading speech

- Other documents declared by the legislation to be relevant for the purpose of s 15AB

- Official records of parliament

Extrinsic evidence can only be used to confirm the ordinary meaning of words or to determine the

meaning of words where a provision is ambiguous. A court is not compelled to consider extrinsic

evidences. If external evidence is to be admitted, the court must also be satisfied that it reflects the

general legislative intention underlying the legislation.

[edit]Secondary guidelines to interpretation

[9]Common law presumptions do not override the purposive approach, they include:

Noscitur a sociis – the meaning of a word is derived from its context.

Ejusdem generis – where legislation uses general words and specific words together, the

general words will be limited in meaning to things of the same kind as the specific words.

Expressio unius est exclusio alterius – the express mention of one thing is to the exclusion of

others.

Consistent use of words is presumed: where a word is used in more than one place, it is

presumed that a consistent meaning is intended

All words should have a meaning (courts are however willing to omit words that have

inadvertently been included or add nothing to the meaning)

Parliament does not intend to interfere with fundamental rights

Parliament does not intend legislation to violate rules of international law: fact that convention

has not been incorporated into Australian law does not mean it holds not significance. Where a

statute is ambiguous, courts should favour construction that accords with Aus obligations

Parliament does not intend legislation to be retrospective: legislation is not intended to apply

to events or things that happened before it came into operation

It used to be that criminal laws were to be construed strictly in favour of the defendant but this

rule is a last resort now

Legislation can confer a discretion (‘may’) or impose an obligation (‘shall’ or ‘must’)

In interpreting legislation courts apply the same process regardless of whether it is statute or

delegated legislation. However, with delegated legislation, it is to be interpreted having regard

to the nature of the instrument and where there are two possible interpretations of a piece of

delegated legislation, the court is to prefer a construction that would bring the legislation within

the power conferred by the enabling statute over one that would not

There is an implied power that agencies can undertake activities that are incidental or

consequential upon the functions or powers conferred upon them by statute

Herscu v The Queen[10]

Facts: The appellant was convicted for bribing the Minister for Local Government and argued on appeal

that the activity for which the payment had been made to the minister was not an explicit duty of office.

Issue: Implied power to undertake activities that are incidental or consequential upon the functions or

powers conferred upon by statute.

Held: An officer responsible for administration of a statute is clothed with a general authority and

capacity to administer the statute.

Kent v Johnson[11]

Facts: A group of Canberra residents challenged the construction of a Telcom tower on the summit of

Black Mountain. The construction relied on statutes to provide facilities for ‘postal, telegraphic,

telephonic and other like services.’ The court held that those statutes would not authorise the erection of

a tower that contained a restaurant and tourist facilities.

Issue: Limitations on incidental powers.

Held: Incidental power was limited because:

Statutory power may not be used for an unauthorised purpose.

Clear language is required to authorise activity by a public official that interferes with a

fundamental right or freedom or is otherwise tortious.

Coco v The Queen[12]

Facts: Mr Coco was convicted of offering to bribe a Commonwealth officer. The conviction hinged on

evidence gleaned from telephone conversations that were tape recorded via a listening device which

was installed by police officers posing as Telcom employees. The police were purportedly acting in

pursuance of an approval granted by a judge under a stature which provided that a judge could grant

approval to ‘use a listening device.’

Issue: Parliament does not intend to interfere with fundamental rights and freedoms unless expressly

stated. Limitations on incidental powers.

Held: The High Court held that the power to approve the use of a listening device did not extend to

approving the installation of a device by unauthorised entry onto private premises.

Evans v State of NSW[13]

Facts: Regulation 7 of the World Youth Day Regulation which provided that an authorised officer could

direct a member of the public to cease conduct which “causes annoyance or inconvenience to

participants in a World Youth Day event”. The applicants commenced proceedings for a declaration that

regulation 7 was invalid. They claimed it would inhibit their freedom to protest.

Issue: Parliament does not intend to interfere with fundamental rights and freedoms unless expressly

stated.

Held: The High Court granted a declaration that regulation 7 was invalid and held that parliament is

presumed not to intend to alter common law or interfere with fundamental rights and freedoms unless

clearly stated to the contrary.

(See textbook, pp 424-5 for further examples.)

[edit]Consequences of applying the process of statutory interpretation

[14]Courts may extend or read down the meaning of words, read words into a section or omit words in

order to active the desired interpretation.

[edit]The Law/Fact distinction

[15] The law/fact distinction is relevant to the right of a court to review a decision (of a lower court or, more

commonly in this course, an administrative tribunal or agency of some sort). Usually, a court only has

the right to review an error of law (as opposed to an error of fact). 

There are two main area which this distinction applies to in administrative law:

1. Statutory appeals: legislation often provides that there is a right to appeal from a tribunal to a

court 'on a question of law'.

2. Judicial Review: also known as a 'writ of certiorari', judicial review can quash a decision for error

of law on the face of the record.

The Administrative Decisions (Judicial Review) Act s 5 (1) (f) similarly provides that an order of

review can be sought on the ground that a decision involved an error of law, although the error

need not be on the record.

The distinction arises in many other areas of law, eg, the criminal law, where judges determine

questions of law and the jury determines questions of fact. Often, the lines are blurred and thus context

is very relevant. Generally, courts are more likely to pay deference to the position or skill of a decision

maker on factual rather than legal issues.

The main purpose served by the concept of error of law is both to define and to demarcate the

supervisory jurisdiction of a court. Common pattern is the court can grant relief to correct a deficiency or

shortcoming classified as an error of law but if not it is instead classified as either an error of fact or no

error at all.

[edit]Is the distinction narrow or broad?

The right to appeal from the Commonwealth AAT to the Federal Court is restricted to questions of law

however an alternative option is for a person to seek judicial review in the Federal Court of an AAT

decision or proceeding under the Judiciary Act. Secondly, the phrase used in defining the right of appeal

from the AAT to the Federal Court is not ‘error of law’ but ‘question of law’ with the latter broader than

the former.

The Federal Court has noted that the right to appeal “on a question of law” under s 44 of the AAT Act is

narrower than if the right to appeal “involved a question of law”.[16] The court takes a strict approach to

accepting that an appeal involves a question of law.

In Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010)[17], the court indicated that a

question of law in the AAT Act s 44 includes:

Whether the tribunal identified the relevant legal test,

Applied the correct test,

Identified any evidence to support a finding of a particular fact,

And found whether facts fall within a properly construed statute.

Courts undertaking judicial review have been increasingly prepared to extend the grounds of judicial

review to cover errors of fact and perverse or illogical reasoning. However, in the context of statutory

appeals there has been a more restrained approach following the comment by Fisher J in Blackwood

Hodge (Aust) Pty Ltd v Collector of Customs (NSW)[18]:

“Parliament contemplated that only in exceptional circumstances should the decision of

the Tribunal not be the final decision…[but] does not mean that when an error of law is

identified the court should be reluctant to intervene”

Fisher J warned against “magnifying or inflating” question of fact into questions of law in

order to enable judicial intervention.[edit]Applying Legislation to the facts

[19] An area where the law/fact distinction is usually relevant in is where courts must apply a legislative

standard to the facts in order to make a decision (because the determination of questions of fact are so

hinged upon questions of law).

There are three stages involved in the application of legislative standards to facts, each of which may

involve questions of facts and law:

1. Finding the facts

2. Construing the legislation

3. Applying the legislation to the facts[edit]Fact-Finding

This is where the court ascertains the facts of the case. This may involve establishing primary facts by

evidence or observation (factum probantia) and/or using those facts to prove other facts, usually by a

process of inference (factum probandum).

This simple characterisation may be complicated by the types of fact finding in which

administrators engage, for example, Craig identifies six categories of mistake of fact.[20]

The guiding principle is that an error made at the fact-finding stage will be an error of fact

unless there is no evidence to support the finding or inference of fact: Melbourne

Stevedoring.[edit]Rule-Stating

This is where the court ascertains the meaning of the legislation. When interpreting words and phrases,

Courts make a distinction between words that bear their ordinary English meaning and words that bear

a technical or specialist meaning.

Deciding the meaning of ordinary English words is a question of fact (which is not reviewable).

Even in cases where the meaning of a word is clear but it is inherently capable of more than one

interpretation, this will usually be considered a question of fact.

Processes of law, therefore open to a court to review, include:

Deciding the meaning of a technical legal term.

The question of whether a word bears its ordinary meaning or a technical one (the wrong

choice is an error of law)

Where there is uncertainty as to the meaning of a word or expression which requires construing

the word in its context.

English dictionaries and standard reference texts are used to work out the meaning of ordinary words in

their statutory context. By contrast, expert evidence and specialist texts are frquently used to work out

the meaning of technical words.

In Collector of Customs v Agfa-Gevaert,[21] the court rejected the distinction between interpreting single

words (question of fact) and joining words to other words in statutory construction (question of law).

Instead, it advocated a more traditional distinction between ordinary and technical meaning, taking

special note of whether the word in question is part of a composite phrase. Hence, the more complex

the statutory setting, the more likely that a process of stauttory construction raising issues of law will be

required.

[edit]Rule application

This is where the court applies the legislation to the facts and arrives at a conclusion. The preferred

view is that this process follows the same patterns above: the application of a word used in its ordinary

sense is a process of fact, and the application of a technical legal word or phrase is a process of law.

However, there is a qualification in this case: where the court has to determine whether

something is either within or without the scope of a statutory phrase (ie, a binary choice), it

is an issue of law.

This is because if an error was made, it could only have been made based on a

misunderstanding of the statutory standard (which is an error of law).

Note: the right to appeal only arises if the error of law was relevant to the decision - "An

immaterial error will not vitiate the decision of the tribunal".[22]

The law/fact distinction in the application of legislative standards was discussed in Collector of Customs

v Agfa-Gevaert:[23]

Facts: An order made under the Customs Act had the effect that imported paper would be

exempt from duty if it came within the phrase “silver dye bleach reversal process”. AAT treated

the phrase as a composite one, by giving the words “silver dye bleach” their technical meaning,

and the word “reversal” its ordinary meaning. The AAT held that the paper imported by Agfa-

Gevaert did not come under the phrase. That was set aside by the Full Court, which held that it

is an error of law to construe a phrase by giving a trade meaning to some words, and ordinary

meaning to the rest of the words.

Held: The meaning attributed to individual words in a phrase ultimately dictates the effect or

construction given to the phrase as a whole. For the phrase in question, it was necessary to

look at the trade meaning of the phrase “silver dye bleach”, in order to construe the composite

phrase. Without this technological assistance, the phrase would be meaningless in its ordinary

sense. Although the phrase as a whole does not have a special trade meaning, trade usage

has a role in determining the meaning of distinct elements of the phrase.

AAT’s finding was permissible as a matter of law, as there appears to be little reason for a rigid

rule that disallows recourse to the trade meaning of a word that forms part of a composite

phrase, and ordinary meaning of another word in the phrase.

To deny the use of trade meanings of individual words in composite phrases having no special

trade meaning as a whole “would be to deny the import of logic & common-sense in matter of

statutory construction”.

And also in Azzopardi v Tasman UEB Industries Ltd:[24]

Facts: The Workers Compensation Commission rejected Mr Azzopardi’s claim for workers’

compensation on the basis that he had failed to establish that he had injured his knee on the

way to work. He appealed on a point of law (admission or rejection of evidence) and the

Supreme Court held that the commission’s decision was not vitiated by an error of law (ie, the

error of law was not relevant to the actual decision).

Held: The court would not overturn a finding of the facts (even it was surprising or possibly

illogical) unless it involved an unreasonable application of the law to the facts found. Illogicality

or perversity in fact finding is not an error of law unless it amounts to a jurisdictional error.

Therefore, the meaning and application of a statutory word or phrase that bears its ordinary dictionary

meaning is a question of fact (Brutus v Cozens; Neal v Secretary, Department of Transpot). However, it

is a question of law to decide whether the facts fully found fall within the provisions of a stautte property

construed (The State of WA v AH)

The technical legal meaning of a term is a question of law (Australian Gas Light Co v Valuer-General;

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation)

A question of mixed law and fact is involved in deciding whether facts necessarily fall within or without a

statutory term that is used in its ordinary sense (Currie v Inland Revenue Commissioners of Taxation). [edit]Law/fact – a false dichotomy?

[25] One difficulty with the fact/law distinction is that it is premised on the idea that the judicial branch

resolves questions of law and the executive resolves questions of fact. In reality, both deal with

questions of law and fact.

The distinction is often described as elusive or malleable, because every issue of fact can be

conflated into an issue of law.

The complexity of modern legislation adds to the difficulty of treating any statutory term as

giving rise only to questions of fact.

There is tension between judicial review and error of law cases as to when perversity and

illogicality in fact-finding will be a reviewable or appealable error (see, for example, Azzopardi).[26]

Similarly to the practice of “reading down”, the judiciary could be accused of stretching

classifications in order to enable intervention.

As an alternative to using the fact/law distinction, Endicott has suggested a pragmatic approach to error

of law (which suggests the courts already use), where judicial intervention occurs on the basis of

functional considerations such as the relative expertise or legitimacy of the courts and administrators in

a particular legislative context, whether judicial substitution of judgement of appropriate.

Alternatively, a stautotry provision providing for appeal on review on a question of law, do not

invetiably require that a law/fact distinction be applied.

Does the aspect of the administrative decision fall beyond the province of judicial supervision?

Another approach would be to treat the shortcoming in the decision as either one which should

be addressed by judicial review or by other means such as internal review, an administrative

tribunal, an Ombudsman or some other complaint mechanism.

[edit]‘Subjective’ Terms

[27] Legislation commonly employs ‘state of mind’ or ‘subjective’ language. Examples include “if the

Minister is satisfied”, “if the secretary has reasonable cause to believe” and “if in the opinion of the

officer”.

These phrases are ordinarily used in legislation where the issue to be determined

is discretionary, often policy driven or where the decision-maker must reach a state of

satisfaction taking into account of a range of statutory criteria which require the exercise of

judgement in order to reach a decision.

They raise a question as to the role of a court undertaking judicial review.

This was discussed in Liversidge v Anderson:[28]

Facts: During the WWII, a defence regulation provided that a minister could order that a person be

detained if the minister “has reasonable cause to believe any person to be hostile of origin or

association... and that by reason thereof it is necessary to exercise control over him.” Mr

Liversidge was one of 1400 people detained, on grounds which were later shown to have been

inadequate, as known by the authorities.

Held: the decision was not open to judicial review. The power to detain was an exceptional war

measure and it was conferred on a minister who is answerable to the parliament and that the issue

to be decided was a matter of opinion and policy. The word ‘reasonable’ just indicates that the

minister must not lightly or arbitrary invade the liberty of the subject but it is still his decision.

Dissent (Lord Atkin) (resoundingly endorsed by subsequent cases): “’Reasonable cause’ for an

action or a belief is... a positive fact capable of determination by a third party. If its meaning is the

subject of dispute as to legal rights, then ordinarily the reasonableness of the cause and even the

existence of any cause, is in our law to be determined by the judge and not by the tribunal of fact if

the functions [of] deciding law and fact are divided". “Judges are no respecters of persons and

stand between the subject and any attempted encroachments on his liberty by the executive, alert

to see that any coercive action is justified in law.”

It was also discussed in R v Connell; Ex Parte The Hetton Bellbird Collieries Ltd:[29]

Subjective terms in legislation refer to “an opinion which is such that it can be formed by a

reasonable man who correctly understands the meaning of the law under which he acts.”

‘ a person acting under a statutory power cannot confer power upon himself by misconstruing the

statute which is the source of his power’

They also mean “... an opinion which is neither arbitrary or extravagant, and which does not take

into account considerations which, upon the true construction of the statute, are irrelevant.”

The executive official must act “according to the rules of reason and justice, not according to

private opinion... according to law and not humour...”

“...if a statute provides that a power may be exercised if a person is of a particular opinion, such a

provision does not mean that the person may act upon such an opinion if it is shown that he has

misunderstood the nature of the opinion which he is to form. Unless such a rule were applied,

legislation of this character would mean that the person concerned had an absolutely uncontrolled

and unlimited discretion with respect to the extent of his jurisdiction and could make orders which

had no relation to matters with which he was authorised to deal.”

There are limitations on these clauses because if there weren’t, an executive official would have

unlimited power.

Courts frequently state that the state of mind formula amplifies the scope of a decision maker’s

authority, correspondingly impacting on the role of court intervention.

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[30] it was noted that “while the

subjective nature of [a] decision no longer can be said to immunise the decision form review, it is

necessarily of relevance to the issue of whether there has been an error of law.”

Gibbs CJ: “... the courts will interfere if the decision reached appears so unreasonable that no

reasonable authority could properly have arrived at it.” (In Buck v Bavone[31])

Or if the complainant can prove that the authority has misdirected itself in law, failed to consider

matters it was required to consider or has taken irrelevant matters into account.

However where matter of which authority is required to be satisfied is a matter of opinion or policy

or taste it may be very difficult to show that it has erred in one of these ways or that its decision

could not reasonably have been reached. In such cases the authority will be left with a very wide

discretion which cannot be effectively reviewed by the courts

Gummow J added to these statements in Minster for Immigration v Eshetu[32], review should be

permitted in “cases where the satisfaction of the decision-maker was based on findings or inferences

of fact which were not supported by some probative material or logical grounds.”

It was noted that the fact that a decision-maker has not made known the reason why they were not

satisfied, will not prevent review of their decision in Avon Downs Pty Ltd v Federal Commissioner

of Taxation.[33]

“It is not necessary that you should be sure of the precise particular in which he has gone wrong. It

is enough that you can see that in some way he must have failed in the discharge of his exact

function according to law.”

A state of mind formula can, as those cases pointed out, limit the scope for judicial review but it

can also impose a reviewable obligation on the decision maker.

[edit]The jurisdictional (or objective) fact concept

[34] Parliament may stipulate that the power to make a decision is conditional upon the existence of an

event, eg, applications filed by a specified date. These preconditions are usually referred to as

“jurisdictional facts.”

The issue arises regarding who decides whether the jurisdictional fact occurred and whether this

decision is review-able.

The decision-maker makes the initial assessment and a court may then undertake judicial

review.

The court is not restricted to the evidence that was before the decision-maker and can substitute

a new decision.

When should a statutory requirement be classified as a jurisdictional fact?

On one view, every statutory limitation can fulfil this description.

On another, every such matter is consigned to the decision-maker and a court undertaking

judicial review should only examine whether the decision-maker breached a ground of review but

not substitute a new decision.

This was discussed in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011

v Minister for Immigration and Citizenship:[35]

Facts: Plaintiff M70 (an adult) and M106 (a minor) were detainees on Christmas Island. They

claimed a well-founded fear of persecution in Afghanistan and sought asylum in Australia. The

Minister determined that they should be transferred to Malaysia pursuant to s 198 of the Migration

Act. Section 198A provided the Minister may declare in writing that a specified country:

1. Provides access, for persons seeking asylum, to effective procedures of assessing their need

for protection; and

2. Provides protection for persons seeking asylum, pending determination of their refugee status;

and

3. Provides protection to persons who are given refugee status, pending their voluntary

repatriation to their country of origin or resettlement in another country; and

4. Meets relevant human rights standards in providing that protection...

The plaintiffs sought an injunction and an order in the nature of prohibition to restrain the minister from

transferring them to Malaysia. They contended that the criteria in s 198 were jurisdictional facts which

must be established before the minister’s power to make a decision could arise.

Held: The majority found that the criteria in s 198A were jurisdictional facts that on the objective

evidence could not be met by Malaysia.

French CJ disagreed with the classification of the criteria as jurisdictional facts but said that the

“existence of the state of mind itself will constitute a jurisdictional fact.” “When a criterion

conditioning the exercise of statutory power involves assessment and value judgements on

the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional

fact...”

The majority rejected the minister’s submission that “it is the existence of the Minister’s

declaration itself, not the truth of the content of that declaration, that engages the operation of

s 198A.”

The court held that the access and protection referred to by the criteria had to be legally

assured as they clearly referred to “provision of protections of all the kinds which parties to

the Refugees Convention and the Refugees Protocol are bound to provide to such persons.”

[edit]Criticism of the jurisdictional fact approach

In ‘The Resurgence of Jurisdictional Facts’,[36] Professor Aronson argues:

Jurisdictional fact review blurs the legality/merit distinction by allowing a court to undertake de

novo redetermination of relevant facts and to review simply for factual error.

There is a distinct risk of divergent outcomes because the review court may apply different

rules of evidence and lack bureaucratic experience and insight of the primary decision maker.

It may cause lack of respect for the decision-maker and the consequences are inconvenient

and couter-productive.

Chief Justice Keane wrote that the approach:

“seems likely to produce results apt to frustrate the intent of parliament for reasons beyond the

legitimate province of judicial function. An unconstrained zeal in the characterisation of issues

for decision as jurisdictional may mean that all decisions of an administrative agency are

provisional only...”[edit]Conclusions

A constitutional limitation embedded in executive power will always be a jurisdictional fact to be

determined by a court on the evidence before it.

There is a presumption against a court’s jurisdiction being dependent on a jurisdictional fact –

or, put conversely, there is a presumption that a court’s jurisdiction extends to determining

conclusively whether the jurisdictional facts are established.