The thesis investigates the so-called "Anisminic revolution" in Australia, that is, the
reception of the doctrine of extended jurisdictional in this country, and explores the
reasons why a case which has had such a profound impact upon English law - a
"legal landmark" - has been almost totally ignored by Australian superior courts.
The seeds of the Anisminic revolution were sown long before it was held that the
Foreign Compensation Commission had exceeded its jurisdiction in not treating as
established the Anisminic company's claim for compensation. If, as things turned
out, the House of Lords in Anisminic Ltd v Foreign Compensation Commission &
Anor widened the field of judicial review for jurisdictional error, their Lordships
did so in the sense of preferring one of two long competing lines of judicial
authority to the other.
The traditional doctrine of jurisdictional error which, in its modern form, can be
traced from the 17th century, is first explored. A jurisdictional error, in traditional
terms, is of three kinds:
1 . A want (or lack) of jurisdiction: that is, there is an absence of power or
authority on the part of the decision-maker to made the decision.
2. An excess of jurisdiction: that is, the decision is within the general
power or authority of the decision-maker, but there is a lack of
jurisdiction occurring somewhere throughout the decision-making
3. A wrongful failure or refusal to exercise jurisdiction: that is, there is no
lack or excess of jurisdiction, but simply no exercise of it.
A non-jurisdictional error of law (being an error made within jurisdiction), in
traditional terms, is any other error of law. Errors made with respect to matters
within jurisdiction - whether of fact or law - were always seen as unreviewable (in
the absence of some statutory right of appeal) unless the original decision-maker
had made an error of law which was apparent "on the face of the record".
In England, the distinction between jurisdictional and non-jurisdictional errors of
law was, for all practical purposes, abolished as a result of the House of Lords
decision in Anisminic. The effect of the majority's reasoning in that case was to
"extend" the traditional concept of jurisdictional error so as to embrace errors of law
not traditionally thought to go to jurisdiction, namely, errors of law of the kind
subsumed within broad or extended ultra vires (eg the taking into account of
irrelevant considerations, manifest unreasonableness).
The result of the Anisminic decision in England - which, interestingly, was not
immediately apparent when the decision was first handed down - was that every
error of law, even in the absence of a statutory right of review or appeal, became
prima facie reviewable at common law. The decision has conferred upon a
reviewing court, purportedly exercising "supervisory jurisdiction", such wide
powers of judicial review that its role arguably has become more appellate than
In Australia, despite some intermittent enthusiasm for the Anisminic doctrine of
"extended jurisdictional error", the fact is that most Australian superior courts
continue to maintain, or at least pay lip-service to, a distinction between
jurisdictional and non-jurisdictional errors of law.
There would appear to be a number of reasons why the Australian courts generally
have been reluctant to formally embrace the Anisminic doctrine of extended
Perhaps the main reason is that, for the most part, Australian courts have found the
decision unnecessary, having already developed their own liberal interpretation of
the traditional doctrine of jurisdictional error.
Using their own "local" version of the Anisminic principle - which was well in place
before the House of Lords decision in Anisminic - and drawing on much the same
line of authority relied upon by the majority Lords in Anisminic, Australian superior
courts have been able to categorise virtually every error of law as jurisdictional and
intervene and strike down any exercise of power which they deem to be an abuse
of power just as easily as their British counterparts.
The Australian courts, for the most part, have been content to proceed on a case-by-
case basis, guided only by such nebulous and self-serving parameters as
"misconstruing the statute the source of jurisdiction", "misconceiving one's duty",
"failing to comply with some requirement essential to its valid or effectual,
performance", "not applying oneself to the question which the law prescribes",
"misunderstanding the nature of the opinion to be formed" and "being actuated by
extraneous conSiderations", all of which are readily capable of manipulation and
therefore uncertain in their application.
The thesis traces the development and promulgation of this distinctively Australian
approach to jurisdictional error through four pre-Anisminic Australian cases and
the proposition that Anisminic has, in fact, been impliedly accepted by most
The writer submits that since:
into one of jurisdiction if the opinion that the error is a "serious" one
justifying judicial intervention, whether using the traditional doctrine impact on the existing practice of most Australian superior courts.
The writers submits that since:
* no satisfactory test has ever been devised for distinguishing between
jurisdictional and non-jurisdictional errors of law;
* a reviewing court can quite easily transmute an error of law in its mind
of intervention, whether using the traditional doctrine or otherwise; and
* abolition of the distinction arguably would have little or no practical impact on the existing practice of most Australian superior courts,
no useful purpose is served in continuing to pay lip-service to the traditional
doctrine of jurisdictional error with its hair-splitting distinction between jurisdictional
and non-jurisdictional errors of law.