Jurisdictional fact

Last updated

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]

Contents

United Kingdom

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

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:

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

In Singapore the concept is called "precedent fact errors".

See also

Related Research Articles

<span class="mw-page-title-main">Natural justice</span> Concept in UK law

In English law, natural justice is technical terminology for the rule against bias and the right to a fair hearing. While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".

The system of Tort law in Australia is broadly similar to that in other common law countries. However, some divergences in approach have occurred as its independent legal system has developed.

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.

<span class="mw-page-title-main">Fixture (property law)</span> Legal concept; physical property which is permanently attached to real property

A fixture, as a legal concept, means any physical property that is permanently attached (fixed) to real property. Property not affixed to real property is considered chattel property. Fixtures are treated as a part of real property, particularly in the case of a security interest. A classic example of a fixture is a building, which, in the absence of language to the contrary in a contract of sale, is considered part of the land itself and not a separate piece of property. Generally speaking, the test for deciding whether an article is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land, the article is likely a fixture; if the article was affixed to enhance the use of the chattel itself, the article is likely a chattel.

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.

Malice aforethought is the "premeditation" or "predetermination" required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

<span class="mw-page-title-main">Australian contract law</span>

The law of contract in Australia is similar to other Anglo-American common law jurisdictions.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

The persona designata doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the judge personally, as opposed to powers having been conferred on the court. The doctrine in the more general sense has been recognised throughout the common law countries. Persona designata, according to Black's Law Dictionary, means "A person considered as an individual rather than as a member of a class"; thus it may be a person specifically named or identified in a lawsuit, as opposed to the one belonging to an identified category or group. While it has its origin in Montesquieu's doctrine of the separation of powers, it can be traced back as far as Aristotle's Politics.

<span class="mw-page-title-main">Contractual term</span> Any provision forming part of a contract

A contractual term is "any provision forming part of a contract". Each term gives rise to a contractual obligation, the breach of which may give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as they are peripheral to the objectives of the contract.

In Australia, murder is a criminal offence where a person, by a voluntary act or omission, causes the death of another person with either intent to kill, intent to inflict grievous bodily harm, or with reckless indifference to human life. It may also arise in circumstances where the accused was committing, or assisting in the commission, of a different serious crime that results in a person's death. It is usually punished by life imprisonment.

<span class="mw-page-title-main">Precedent fact errors in Singapore law</span> Singaporean legal doctrine

Errors as to precedent facts, sometimes called jurisdictional facts, in Singapore administrative law are errors committed by public authorities concerning facts that must objectively exist or not exist before the authorities have the power to take actions or make decisions under legislation. If an error concerning a precedent fact is made, the statutory power has not been exercised lawfully and may be quashed by the High Court if judicial review is applied for by an aggrieved person. The willingness of the Court to review such errors of fact is an exception to the general rule that the Court only reviews errors of law.

<span class="mw-page-title-main">Exclusion of judicial review in Singapore law</span> Singapores application of legal concept to protect the exercise of executive power

Exclusion of judicial review has been attempted by the Parliament of Singapore to protect the exercise of executive power. Typically, this has been done though the insertion of finality or total ouster clauses into Acts of Parliament, or by wording powers conferred by Acts on decision-makers subjectively. Finality clauses are generally viewed restrictively by courts in the United Kingdom. The courts there have taken the view that such clauses are, subject to some exceptions, not effective in denying or restricting the extent to which the courts are able to exercise judicial review. In contrast, Singapore cases suggest that ouster clauses cannot prevent the High Court from exercising supervisory jurisdiction over the exercise of executive power where authorities have committed jurisdictional errors of law, but are effective against non-jurisdictional errors of law.

<i>New South Wales v Commonwealth</i> (1915)

New South Wales v Commonwealth, commonly known as the Wheat case, or more recently as the Inter-State Commission case, is a landmark Australian judgment of the High Court made in 1915 regarding judicial separation of power. It was also a leading case on the freedom of interstate trade and commerce that is guaranteed by section 92 of the Constitution.

<span class="mw-page-title-main">Ouster clause</span>

An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the executive in check by ensuring that its acts comply with the law, including, where applicable, the constitution. Ouster clauses prevent courts from carrying out this function, but may be justified on the ground that they preserve the powers of the executive and promote the finality of its acts and decisions.

<i>Minister for Immigration and Citizenship v SZMDS</i> Case in Australian High Court regarding judicial review

Minister for Immigration and Citizenship v SZMDS, is a landmark Australian judgment of the High Court. The matter related to immigration law, jurisdictional error and illogicality as a ground of judicial review.

Jurisdictional error is a concept in administrative law, particularly in the UK and Australia. Jurisdiction 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. Examples of jurisdictional errors include asking a wrong question, ignoring relevant material, relying on irrelevant material, and breaching natural justice.

Judicial independence is regarded as one of the foundation values of the Australian legal system, such that the High Court held in 2004 that a court capable of exercising federal judicial power must be, and must appear to be, an independent and impartial tribunal. Former Chief Justice Gerard Brennan described judicial independence as existing "to serve and protect not the governors but the governed", albeit one that "rests on the calibre and the character of the judges themselves". Despite general agreement as to its importance and common acceptance of some elements, there is no agreement as to each of the elements of judicial independence.

References

  1. ↑ Kelly, M (2009). Administrative Law Law Briefs. Pearson Education Australia.
  2. ↑ Aronson, M; Dyer, B & Groves, M (2009). Judicial Review of Administrative Action (4th ed.). [1.90].
  3. ↑ Jaffe L, "Judicial Review: Constitutional and Jurisdictional Fact" (1957) 70 Harvard Law Review 953.
  4. ↑ Creyke, R & McMillan, J (2012). Control of Government Action: Text, Cases and Commentary (3rd ed.).
  5. ↑ Anisminic v Foreign Compensation Commission [1968] UKHL 6 , [1969] 2 AC 147, House of Lords (UK).
  6. ↑ Attorney-General (NSW) v Quin [1990] HCA 21 , (1990) 170 CLR 1 at [127].
  7. ↑ Hunt, LM & Groves, DG (2007). Australian Administrative Law, Fundamentals, Principles and Doctrines. Cambridge University Press. p. 335.
  8. ↑ Kirk v Industrial Court of NSW [2010] HCA 1 , (2010) 239 CLR 531 at [71], High Court (Australia).
  9. ↑ R v Connell [1944] HCA 42 , (1944) 69 CLR 407 at pp 429-430, High Court (Australia).
  10. ↑ 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).
  11. ↑ Craig v South Australia [1995] HCA 58 , (1995) 184 CLR 163 at [17], High Court (Australia)
  12. ↑ Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 , (2000) 199 CLR 135 at p 148, High Court (Australia).
  13. ↑ Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 , (1999) 46 NSWLR 55 at [28], Court of Appeal (NSW,Australia).
  14. 1 2 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 , (2010) 240 CLR 611 at [30], High Court (Australia)
  15. ↑ Minister for Immigration v Eshetu [1999] HCA 21 , (1999) 197 CLR 611 at [130], High Court (Australia).
  16. ↑ R v Hickman [1945] HCA 53 , [(1945) 70 CLR 598 , High Court (Australia).
  17. ↑ Liversidge v Anderson [1941] UKHL 1 , [1942] 2 AC 206 at 21, House of Lords (UK).
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.