Jurisdictional error is a concept in

administrative law Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...

, particularly in the UK and Australia.

Jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...

is the "authority to decide", and a jurisdictional error occurs when the extent of that authority is misconceived. Decisions affected by jurisdictional error can be quashed by

judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...

. Examples of jurisdictional errors include asking a wrong question, ignoring relevant material, relying on irrelevant material, and breaching

natural justice In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...

.''Craig v South Australia''

Australia

In Australia, the definition of jurisdictional error can be found in High Court judgements. Hayne J has defined jurisdictional error in the following terms: A more specific definition of Jurisdictional error is defined as follows: The power of superior courts to respond to jurisdictional error by issuing the

prerogative writ A prerogative writ is a historic term for a writ (official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected ...

s is entrenched in Australia's

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

: However, the term has been subject to criticism. In 2008,

Kirby J Michael Donald Kirby (born 18 March 1939) is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009. He has remained active in retirement; in May 2013 he was appointed by the United ...

held:

Types

Mark Aronson identifies eight categories of jurisdictional error: * A mistaken assertion or denial of the very existence of

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...

* A misapprehension or disregard of the nature or limits of the decision-maker's functions or powers * Acting wholly or partly outside the general area of the decision-maker's jurisdiction, by entertaining issues or making the types of decisions or order which are forbidden under any circumstances. An example is a civil court trying a criminal charge. * Mistakes as to the existence of a jurisdictional fact or other requirement when the relevant act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. * Disregarding relevant considerations or paying regard to irrelevant considerations, if the proper construction of the relevant act is that such errors result in invalidity. * Errors of law, although where the decision-maker is an inferior court or other legally qualified adjudicative body, the error will probably have to be such that it amounts to a misconception of the nature of the function being performed or of the body's powers. * Acting in bad faith * Breaching the

hearing Hearing, or auditory perception, is the ability to perceive sounds In physics, sound is a vibration that propagates as an acoustic wave, through a transmission medium such as a gas, liquid or solid. In human physiology and psycholog ...

or bias rules of

This list is non-exhaustive, as these grounds lead to invalidity and therefore jurisdictional error. Jurisdictional error is a separate ground of review under the ADJR Act, sought on the ground "that the person who purported to make the decision did not have jurisdiction to make the decision". The nine statutory grounds of review provided for in s 5 of the ADJR Act overlap substantially with the concept of jurisdictional error at common law. Jurisdictional error can "be seen to embrace a number of different kinds of errors" administered in an administrative tribunal. As such, the circumstances of a particular case may permit more than one characterisation."

Canada

Canadian administrative law Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision ...

has a similar set of concepts called '' substantive review'' which incorporates most of the criteria of jurisdictional error

Singapore

In Singapore they are known as " precedent fact errors" but work effectively like the United Kingdom

jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...

Hong Kong

Judicial review in Hong Kong Judicial review in Hong Kong is conducted according to the Constitutional and Administrative Law List (Practice Direction 26.1). It comprises two different aspects: firstly, judicial review of domestic legislation as to their compatibility with th ...

is effectively the

English system English units are the units of measurement used in England up to 1826 (when they were replaced by Imperial units), which evolved as a combination of the Anglo-Saxon and Roman systems of units. Various standards have applied to English units at ...

and is enshrined in Article 35 of the

United Kingdom

In the UK, the

House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...

has held they are "... an incorrect interpretation of a statutory phrase by the ... authorities

hat A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safety, or as a fashion accessory. Hats which incorporate mecha ...

amounted to an error of law that was judicially reviewable". As with Canada,

judicial review in Scotland Judicial review in Scotland is a part of United Kingdom constitutional law that functions within the framework of Scots administrative law. The power of judicial review of all actions of governmental and private bodies in Scotland is held by the ...

does not use the term but holds many of the concepts in their judicial review system.

Grounds

In the CCSU Case,

Lord Diplock William John Kenneth Diplock, Baron Diplock, (8 December 1907 – 14 October 1985) was a British barrister and judge who served as a lord of appeal in ordinary between 1968 and until his death in 1985. Appointed to the English High Court in ...

suggests that the grounds can be reduced to three or four broad concepts – ''illegality'', ''irrationality'', ''procedural impropriety'' and ''proportionality''.Günther Doeker-Mach, Guenther Doeker-Mach, Klaus A. Ziegert, 'Law and Legal Culture in Comparative Perspective' (Franz Steiner Verlag, 2004
page 291

Other countries

The term ''jurisdictional error'' is not used in: *

Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...

United States of America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territo ...

References

Australian administrative law Administrative law United Kingdom administrative law Law of Hong Kong Judicial review Canadian administrative law Singaporean administrative law Legal concepts