Jurisdictional fact
Jurisdictional fact are facts which must objectively exist before a statutory power can be exercised by a decision-maker. They are created by and operate in the context of government authority produced by statute and are linked to the legal concept of jurisdiction.[1] A number of scholars have tried, with limited success, to categorise them.[2][3][4]
United Kingdom
[edit]In the United Kingdom, the seminal definition is the English law case of Anisminic.[5]
Some countriesm, like Singapore, India and Canada that have written constitutions, can be constrained in their definition of "jurisdictional facts" and due to the restraints in their constitutions.[6][failed verification]
Australia
[edit]In Australia the High Court has been reticent to define jurisdictional facts[7] finding that "The principles as to how one determines whether something is a jurisdictional fact are settled but necessarily imprecise. That must be so." and that "to define Jurisdictional fact is neither necessary nor desirable."[8] Despite this, Australian courts have attempted to define jurisdictional fact, including:
- "A condition of jurisdiction".[9]
- "A preliminary question on the answer to which … jurisdiction depends".[10]
- An "event or requirement" constituting "an essential condition of the existence of jurisdiction".[11] ...."a condition of jurisdiction", without which a tribunal can not act.
- But the leading definition in Australia is the "criterion, satisfaction of which enlivens the power of the decision-maker" found in Enfield.[12]
These criteria of jurisdiction are created by and operate through statute,[13] and may be subjective,[14] or objective in nature and may also be a complex of interactions.[15][16] but they must not be illogical,[14] or capricious and must be actual.[17]
Singapore
[edit]In Singapore the concept is called "precedent fact errors".
See also
[edit]References
[edit]- ^ Kelly, M (2009). Administrative Law Law Briefs. Pearson Education Australia.
- ^ Aronson, M; Dyer, B & Groves, M (2009). Judicial Review of Administrative Action (4th ed.). [1.90].
- ^ Jaffe L, "Judicial Review: Constitutional and Jurisdictional Fact" (1957) 70 Harvard Law Review 953.
- ^ Creyke, R & McMillan, J (2012). Control of Government Action: Text, Cases and Commentary (3rd ed.).
- ^ Anisminic v Foreign Compensation Commission [1968] UKHL 6, [1969] 2 AC 147, House of Lords (UK).
- ^ Attorney-General (NSW) v Quin [1990] HCA 21, (1990) 170 CLR 1 at [127].
- ^ Hunt, LM & Groves, DG (2007). Australian Administrative Law, Fundamentals, Principles and Doctrines. Cambridge University Press. p. 335.
- ^ Kirk v Industrial Court of NSW [2010] HCA 1, (2010) 239 CLR 531 at [71], High Court (Australia).
- ^ R v Connell [1944] HCA 42, (1944) 69 CLR 407 at pp 429-430, High Court (Australia).
- ^ R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60, (1978) 142 CLR 113 at p 125], High Court (Australia).
- ^ Craig v South Australia [1995] HCA 58, (1995) 184 CLR 163 at [17], High Court (Australia)
- ^ Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 at p 148, High Court (Australia).
- ^ Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 at [28], Court of Appeal (NSW, Australia).
- ^ a b Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 at [30], High Court (Australia)
- ^ Minister for Immigration v Eshetu [1999] HCA 21, (1999) 197 CLR 611 at [130], High Court (Australia).
- ^ R v Hickman [1945] HCA 53, [(1945) 70 CLR 598, High Court (Australia).
- ^ Liversidge v Anderson [1941] UKHL 1, [1942] 2 AC 206 at 21, House of Lords (UK).