Administrative law › Module guides › Jurisdiction and avenues

The idea

Every held paper stipulates the avenue, so this module is about obedience, not argument. You confirm the named jurisdiction and court in one line and import nothing from any other regime. The work sits in routing the paper down the right track: a constitutional paper on s 75(v) and s 39B, an ADJR paper through the gateway definitions, or a joint paper that runs both.

The recurring trap is treating a stipulated avenue as something to be litigated, or mixing an ADJR ground into a constitutional answer. Jurisdiction is confirmed, not fought over. The examinable value is the joint gateway walk and the OLAM multiple-choice pair.

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Read the rubric and name the stipulated avenue and court in one line. Never argue it and never import another regime's grounds or standing.
2. Route by track. A constitutional paper (s 75(v), s 39B(1) or s 39B(1A)(c)) runs the elements in a line, confirms an officer of the Commonwealth and moves to remedies. An ADJR paper walks the gateway exclusions first, then decision, then administrative character, then made under an enactment on the Tang limbs. A joint paper runs both tracks and answers both limbs.
3. Deliver the remedies menu per track and hand off to Module 3, writs and equitable relief on the constitutional track and s 16 orders on the ADJR track.
4. Jurisdiction is confirmed, not litigated. The exam value here is obedience, the joint gateway walk and the OLAM pair.

Cases at a glance

Case	In a line
Australian Broadcasting Tribunal v Bond	Alan Bond was found not fit and proper to hold broadcasting licences. That finding was a substantive intermediate decision the statute provided for, so it was reviewable, while the ordinary reasoning steps were not
Griffith University v Tang	A PhD candidate excluded for academic misconduct sued under the review Act. Her candidature was a consensual relationship, so the exclusion was not made under the University Act and there was no jurisdiction

The rules

R21 · How is the stipulated avenue and court handled? arrow The paper stipulates the avenue and it is never argued, so the answer confirms the named jurisdiction and court in one line and imports nothing from any other regime.

R22 · What does High Court jurisdiction under s 75(v) require? checklist High Court jurisdiction under s 75(v) requires a matter, a writ of mandamus or prohibition or an injunction sought, and an officer of the Commonwealth as the respondent.

R23 · Who is an officer of the Commonwealth? compass An officer of the Commonwealth covers public servants, statutory office holders and federal judges, and excludes contractors and corporations.

R24 · What does s 75(iii) jurisdiction require? arrow Section 75(iii) turns on who rather than what; it requires a matter in which the Commonwealth is a party, so the question is the identity of the respondent and not the remedy sought.

R25 · What does s 39B(1) provide and why is it chosen? arrow Section 39B(1) mirrors s 75(v) in the Federal Court on identical elements, and it is chosen because it is cheaper, faster and carries an appeal that the High Court original jurisdiction does not. s 39B(1).

R26 · What does s 39B(1A)(c) cover? arrow Section 39B(1A)(c) expands Federal Court jurisdiction to any matter arising under a law made by the Parliament, with the exception of a criminal prosecution or other criminal matter. s 39B(1A)(c).

R27 · What error threshold applies to constitutional writs versus ADJR relief? arrow The constitutional writs issue only for jurisdictional error, while ADJR relief issues on any ground in s 5 without a jurisdictional error threshold.

R28 · What is a decision to which the ADJR Act applies? checklist A decision to which the ADJR Act applies must be a decision, of an administrative character, made under an enactment, and outside the Governor General, Schedule 1 and s 19 exclusions run first. s 3.

R29 · What counts as a reviewable decision under the ADJR Act? keyring A reviewable decision is final or operative and determinative and substantive under Definition A, or intermediate but expressly provided for and substantive under Definition B. Australian Broadcasting Tribunal v Bond.

R30 · Is a finding of fact along the way a decision or reviewable conduct? arrow Conduct is essentially procedural and reaches the way the proceedings are carried on, so a finding of fact along the way is neither a decision nor reviewable conduct. Australian Broadcasting Tribunal v Bond.

R31 · When is a decision made under an enactment? checklist A decision is made under an enactment where the enactment expressly or impliedly required or authorised it, and the decision itself confers, alters or affects legal rights or obligations deriving from the statute. Griffith University v Tang.

R32 · Is a decision drawing its force from contract made under an enactment? arrow Where the decision derives its force from contract or another private source rather than the statute it is not made under an enactment, however public the body appears. Griffith University v Tang.

R33 · Can the ADJR Act reach delegated legislation? arrow Delegated legislation is legislative rather than administrative in character, so the ADJR Act cannot reach it and the challenge is routed through s 39B(1) instead.

Common traps

The imported regime. In a s 39B(1) only paper, citing ADJR provisions or running the person aggrieved standing test is fatal at the answer level. Use common law standing and common law grounds, and keep the s 5 catalogue out.

The forgotten limb. A joint application is two regimes. The examiner noted that some students forgot the ADJR and focused only on the writs. Answer both limbs and name which order does the work on each track.

The private power source. A decision that draws its force from contract or a consensual relationship is not made under an enactment however public the body looks (Tang). Griffith University could make rules and confer degrees, and still the exclusion was not reviewable.

The decision along the way. A finding of fact is not a reviewable decision unless the statute expressly provides for that finding (Bond). Bond's fit and proper finding qualified because the Act made it an essential preliminary, ordinary reasoning steps do not.

Delegated legislation under the ADJR. Delegated legislation is legislative in character, so the ADJR Act cannot reach it. Route the challenge to the instrument through s 39B(1) and cross to Module 10 for the validity ladder.

Arguing the stipulated jurisdiction. The avenue is given and confirmed, never litigated. Spending words proving the court has jurisdiction earns nothing and signals that you missed the lock.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

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