Tiptoeing through the Tripwires: Recent Developments in Jurisdictional Error

Abstract

Australian administrative law's continuing emphasis on the concept of jurisdictional error is increasingly unique amongst common law jurisdictions. This paper argues that recent developments in Australian jurisprudence have provided little guidance for administrative decision-makers, who are left ‘tiptoeing through the tripwires’ of judicial review. Combining a detailed analysis of primary decisions, academic publications and historical scholarship, this paper suggests that this lack of guidance is the result of a widespread judicial reluctance to engage with either the guidance or educative roles of judicial review. As this paper demonstrates, failure to do so encourages uncertainty, unpredictability and a general lack of clarity which inhibits judicial review's ability to guide decision-makers and contribute to the maintenance of effective governance, administrative justice, and the rule of law in Australia. Particular attention is given to the decisions of Minister for Immigration and Citizenship v Li, Plaintiff M61/2010E v Commonwealth, and NBMZ v Minister for Immigration and Border Protection, which together encapsulate many of the most problematic aspects of recent jurisprudence. To avoid these consequences, this paper calls on senior judges and commentators to articulate a clearer framework which will be applied to guide the future development of the doctrine of jurisdictional error.