Jurisdictional error without the tears

The Unfolding Purpose of Fairness

“…The most obvious one aligns to an elementary aspect of fairness, which is the right of affected people to receive notice of adverse material and receive a chance to put their own case. 111 Heydon J cautioned that to hear one side was unfair but liable also to invite inaccuracy because ' [e]xperience teaches that commonly one story is good only until another is told.' 112 Fairness in the form of the rights to receive notice, disclosure and put one's own views can thus increase the quality of material upon which decisions are made.…”

An Elegant Convergence? The Constitutional Entrenchment of ‘Jurisdictional Error’ Review in Australia

“…In practical terms, it seems that a deliberate and more generally-applied focus on specific legislative intention might be a more coherent, transparent and workable organising principle than anything to be found in the opaque and very contestable categories of jurisdictional error laid down in Craig 165which Professor Aronson has noted were 'carefully crafted to say very little indeed'. 166 This broader methodology provides a truer rationalisation of the assessment of 'authority' being undertaken, 167 a means by which we can achieve flexible and sustainable clarity in common scenarios, and a tool for proceeding in a principled manner in new situations. It is also a methodology that can address criticisms of the problematic inferior court / tribunal distinction 168 drawn by Craig.…”

Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals

“…Despite these statutory features, systemic pressures curtail the operation of inquisitorialism in all the major Australian tribunals. 74 The culture of adversarialism has arisen through: the general application of the rules of evidence out of pragmatic convenience 75 and historical significance; 76 concerns over ostensible bias; 77 the organisational leadership of tribunals by judges or senior lawyers; 78 the use of legal counsel and a pervasive adversarial legal culture; 79 the location of tribunals in a system in which ultimate review is in an adversarial court proceeding; 80 resource limitations; 81 and the objective that tribunals be 'fair, just, economical, informal and quick'. 82 These pressures mean that the major Australian tribunals do not operate inquisitorially in the civil law sense.…”