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Administrative Laws and Judicial Powers

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Hossain v Minister for Immigration and Border Protection

In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 [31], Kiefel CJ, Gageler, and Keane JJ defined a jurisdictional error as a ‘material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act.’ This definition, with its requirement of materiality, was endorsed by a majority of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. However, the requirement that a breach is “material” is not without its critics. Indeed, in SZMTA, Nettle and Gordon JJ argued strongly against it. They argued that introducing a requirement of materiality would mean the Court was undertaking “a form of merits review”.

The argument by SZMTA Nettle and Gordon JJ on the matter of materiality should not be part of the ruling or review process as it will create a blur in the undertakings made. The introduction of the requirement of materiality means that the Court will be giving one side of the case a better hand when it comes to judgment. The material element in any decision will bring unnecessary blurs, given that it will not have clear differences between legality review and merits review regarding an administrative decision. The judgment based on materiality means that the person who is guilty of a crime can defend themselves on the ground that their judgment and presentation of the case were affected by the materiality elements (Sunstein & Vermeule, 2017). The judges should, however, intervene and ensure that they do not focus too much on the materiality aspects when making a ruling lest they interfere with the legality of the judgment. In instances where the materiality entity occupies a significant part of the ruling, it will be hard to give a convicted person procedural fairness.

For the case of the materiality concept, the judges will not check the credibility of an error or determine if it is jurisdictional before granting it in the discretion exercised. According to Potter (2019), using materiality should not prevail in the determination of the nature of an error. Materiality might also hinder the judge’s position when making rulings hence failing to give considerations to the statutory conditions as well as requirements needed in the application of administrative decisions. Given that the outcome of decisions made through the materiality approach will likely cause biasness, the need to have a better approach should be put in place (Sunstein & Vermeule, 2017). In all fairness, the inclusion of the materiality aspect means that the courts will impose a relatively forgiving approach, more so to the errors registered in the judicial decisions. 

The jurisdictions should be based on the procedural errors made by the organization in line with its gravity of the error so that it becomes possible to constitutionally entrench minimum content with the supervisory jurisdiction. There should always be limitations regarding the limits of judicial power that are practiced within the Court as it is a nice approach for ensuring that the decisions made meet the required threshold (Matoesian & Gilbert, 2018). Under such circumstances, it will be easier to have a clear line between non-jurisdictional and jurisdictional errors. It is also ideal to understand that traditional distinction remains unavoidable, but the judges have the upper hand as they can use more modern language when offering joint judgment.

Jurisdiction entails the discourse of authority scope, which should be contained in repositories as conferment so that when applying for judicial review, the administrative undertakings will be within the provisions of the statute. Therefore, the references will be inclined to the sphere of fair judgment and legality rather than materiality. According to Potter (2019), it is a good judicial practice to ensure that the component of materiality is at bay, as it will help the judges to encompass the entire scenarios and conditions when basing their judgments on the statutory provisions. Therefore, the judges ought to understand that the decision that they make in any ruling should borrow heavily from the jurisdictions and provisions of the statutory conditions and preconditions as they bring about forces and effects needed to have sincere judgment.

The jurisdictional error can be seen as an error accruing from the decision-making process based on the statutory but in essence, it the failure of a judge to make judgments and ruling as per the provisions of the statutory conditions. Under such circumstances, the results or the outcome will be lacking characteristics that are prevalent for effective statute persuasiveness. If a particular decision will be having a jurisdictional error, the description of that particular decision will mean that it had external jurisdiction (Mendes, 2017). Therefore, when quantifying such errors, it is necessary to avoid the incorporation of materiality, but it should rather focus on the legality of the situation. Once the judge has made a decision, it is hard to reverse it hence the reason why proper jurisdiction during the decision-making process should be a priority in any undertaking. 

The decision-making process should have a clear distinction in the decision-making process so that the jurisdictional error as well as and ‘wanting in authority’ approach will be accorded the attention they deserve (Matoesian & Gilbert, 2018). At such points, it will not be ideal to consider if the decision followed statutory provisions or not, but rather, the attention should be on the applicability of express and implied statutory conditions. The situation will therefore constitute jurisdictional errors that borrow heavily from the constructs of the country’s statutory laws. When making decisions, the decision-makers will therefore have to abide by the correct legal principles basis so that they can reach correctly applied statutory decision-making conditions.

The threshold of materiality will create a layer of non-compliance that will compel the parties involved to meet specific conditions as part of their compliance (Levin, 2018). The Decision-making process should therefore have to foster these components to reduce the chances of the second failure of the statutory jurisdiction. Incorporating the component of materiality means that there is a high chance that the outcome will create a significant level of satisfaction or non-satisfaction depending on the conditions contained in the overall ruling. According to Kang & Kendall (2019), the element of biasness will, however, have to be eliminated through a better understanding of the statutory laws. It, therefore, means that misconstruing implications have higher chances of failing the misapplication criteria as it borrows heavily from the application timing. Under the gist of materiality, it is necessary to understand that the appeal of such decisions will depend on the ruling of the tribunal, the body which lies mostly on delegated decisions.

The tribunal also factors in the public interests to ensure that the outcome meets their interests. It is also ideal to understand that in most cases, errors that have been registered in the application of laws and when making judgments have been insignificant; hence they lack materiality. According to Kang & Kendall (2019), the introduction of the decision-making process in the face of materiality has been a major reason why the jurisdictional error affects the outcome. The two elements will therefore create an overlap when categorizing errors, given that these errors bring about dire consequences in the overall decision making. The two categories will overlap given that the approach used in distinguishing between these two elements has little considerations to the crucial components such as authority and decision-makers. Furthermore, it is not a good practice to classify a decision as unlawful without giving it due consideration regardless of the authority under which that particular decision was made. 

The gravity of the error should also apply under such circumstances when determining the legality of the subject matter. According to Elden (2017), given that the criteria used should be within the legal consequences, the incorporation of the materiality will likely blur the legibility of the laws that will be applied under such circumstances. It is, therefore, necessary to ensure that there are proper investigative bodies in place to help in tracing and prosecuting such unbecoming. It is also necessary to understand that errors affect not only the first decision but also the subsequent decisions. According to Kang & Kendall (2019), the situation stands because the ruling of the second judgment is down to the decision made in the first decision. It is also good to understand that the decisions made by the relevant bodies normally borrow a lot from the statutory bodies, which makes the whole situation complex.

When it comes to administrative laws, it will be wise to consider the degree of powers vested upon the judges to ensure that they are within their stipulated limits (Schulzke & Berger-Walliser, 2017). Under such conditions, it will be ideal to factor in the errors that have been made by such judges before, as it will help in building a foundation under which future decisions will follow. It, therefore, boils down to the materiality aspect, which will call for an error in order for an individual to be deprived of their success possibilities. Given that the errors arise as per the circumstances under which they are subjected, it will be wise to make a better and comprehensive observation regarding a judgment to ensure that they meet the required minimums.

The circumstances under which the errors are made should be within the provisions of the jurisdictions given to avoid instances where the deprivation of possibilities are made. According to Kwok (2018), the elements such as the dignity of an individual will likely come into play when making a judgment, but in all fairness, it should be the basis under which an unbiased decision is made. To avoid blurring legality and materiality, it will be ideal for addressing the errors made based on the decision made, whereby they will be clustered into their distinct criteria. The public interest will always come into play, given that they also deserve to understand how rulings are made as well as how decisions made are reversed based on their level of wrongness.

The wide range accruing from potential errors normally makes the judgment more prone to externalities whereby the third forces, such as political class, will influence the outcome of the decisions and court rulings (Schulzke & Berger-Walliser, 2017). The overall expectation is that the administrative decision-makers will have to be careful in their activities, endeavors, and decision-making process so that they avoid legal errors. It is necessary to minimize the jurisdictional errors as their consequences are normally dire and have long-term effects on the parties involved.

According to Kwok (2018), the erroneous decision made during the mentioned case shows the gravity of the subject matter as it affected the overall outcome of the case. Given that the complainant was denied visa means that the error was immaterial though there are still a significant number of questions that can be asked on how these can be lawful decisions. It will also be necessary to avoid ambiguity in the decision-making process as well as making rulings because the administrative decision-makers normally come up with decisions that can negatively affect the comfort of the consumers. It will be necessary to ensure that the legal errors when making administrative decisions does not have jurisdictional weaknesses as it will lead to failed decisions.

According to Kwok (2018), the grounds under which the judicial reviews should consider when making their reviews include the no jurisdiction status whereby the decision-maker will have to decide based on the powers bestowed upon them. They will also have to ensure that they do not have an error of law as it is the case of misapplication and misunderstanding of the jurisdictions and laws. The judicial bodies will also have to minimize their improper use of power so that their decisions are neutral and lack any grounds of biasness (Schulzke & Berger-Walliser, 2017). The considerations absorbed in the decision-making process should be relevant and ideal to the situation at hand as most of the cases in the past have fallen into error zones due to irrelevant considerations. If the judgment does not have relevant considerations, it will likely end with poor decisions or errors in its application of laws.


Elden, S. (2017). Legal terrain—the political materiality of territory. London Review of International Law, 5(2), 199-224.

Kang, H. Y., & Kendall, S. (2019). Legal materiality. The Oxford handbook of law and humanities, 21-38.

Kwok, K. H. F. (2018). The Concept of’ Agreement Under Article 101 TFEU: A Question of EU Treaty Interpretation.

Levin, R. M. (2018). Rulemaking and the guidance exemption. Admin. L. Rev.70, 263-266.

Matoesian, G., & Gilbert, K. E. (2018). Multimodal conduct in the law: Language, gesture and materiality in legal interaction (Vol. 32). Cambridge University Press.

Mendes, J. (2017). Discretion and law in the EU administration: where the courts do not enter. In Accountability in the EU. Edward Elgar Publishing.

Potter, R. A. (2019). Bending the rules: Procedural politicking in the bureaucracy. University of Chicago Press.

Schulzke, K. S., & Berger-Walliser, G. (2017). Toward a Unified Theory of Materiality in Securities Law. Colum. J. Transnat’l L.56, 6.

Sunstein, C. R., & Vermeule, A. (2017). The morality of administrative law. Harv. L. Rev.131, 1924.

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