ADMINISTRATIVE LAW

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the High Court of Australia heard appeals from the Full Court of the Federal Court relating to notifications to the Administrative Appeals Tribunal (the Tribunal) that s 438 of the Migration Act 1958 (Cth) applies to a document or information.  The purpose of such a notification was to enliven the Tribunal’s discretion to disclose the relevant document or information to the applicant, having regard to the Government’s certification that disclosure would be contrary to the public interest.  The case is significant because of the divide as to how jurisdictional error in the nature of procedural fairness is to be established.

The majority (Bell, Gageler and Keane JJ) articulated that, in order to demonstrate jurisdictional error in the nature of a want of procedural fairness, it is necessary for a claimant to show “materiality”.  The critical passage from the majority’s reasons is at [38]:

“For … a breach [of the implied obligation of procedural fairness] to constitute jurisdictional error on the part of the [decision-maker], however, the breach must give rise to a ‘practical injustice’: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the [decision-maker’s] decision.”

The dissentients, Nettle and Gordon JJ, objected to the importation of this concept from English public law, having regard to the different trajectory of the jurisprudence in that country.  The critical passage from their Honours’ reasons is at [90]-[91]:

“Parliament cannot be taken to intend that a decision-maker need only comply with laws to the extent that failure to comply would not bring about a different result. Any such conception would be contrary to the notion, central to the conceptual foundations of judicial review, that everyone (including a decision-maker) is bound by the law. The only place for that kind of analysis (about the materiality of the error to the applicant) is in the exercise of the court's discretion whether to grant relief after jurisdictional error is made out. …

Further, whilst the concept of ‘materiality’ has been a focus in certain decisions in England, the approach there must be understood against a backdrop where the distinction between jurisdictional and non-jurisdictional error has been reduced to a ‘vanishing point’. It would be wholly inappropriate to import such a concept into this country, where the distinction between jurisdictional error and non-jurisdictional error is the essence of judicial review.”