Administrative law › Module guides › Framing: error, validity and materiality

The idea

This module is the consequence machine that closes the memo, and it runs once. It converts a ground already argued into a result by asking two questions in sequence. First, is the error jurisdictional, on the Craig and Kirk account carried forward by Project Blue Sky, which asks whether Parliament intended an act done in breach to be invalid rather than treating every breach as fatal. Second, is the breach material.

Materiality is the modern heart of the topic. A breach is material only where compliance could realistically have produced a different decision, and the applicant carries the onus on the balance of probabilities, a line running from Hossain through SZMTA and MZAPC to LPDT. The exception to learn cold is that bias and unreasonableness are inherently material, so the writs follow without a separate materiality run. Pick the strongest ground, finish both stages on it, and give every other ground its consequence in a line.

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. Finish the grounds first, because this module converts grounds already argued into consequences.
2. Pick the strongest ground and run the full analysis on it alone.
3. Route the ground. Ground established, then ask whether it is inherently material.
4. If the ground is bias or unreasonableness the error is jurisdictional and the writs follow, with no separate materiality run.
5. Otherwise run the LPDT counterfactual. Material, the error is jurisdictional and relief is open. Immaterial, no relief on that ground.
6. Give every other ground made out its consequence in one sentence.
7. Close with a single line on relief discretion, handed to Module 3. The marks sit in finishing both stages on one ground.

Cases at a glance

Case	In a line
Craig	An inferior court judge stayed a criminal trial on a wrong legal test. That was an error within jurisdiction, and jurisdictional error is defined more narrowly for courts than for tribunals
Kirk	Restated and carried forward the Craig account of jurisdictional error for tribunals and administrators. The key case for what a jurisdictional error is
Project Blue Sky	Breach of a statutory requirement does not automatically invalidate. The question is whether Parliament intended an act done in breach to be invalid
Bhardwaj	A decision affected by jurisdictional error is in law no decision at all, so a tribunal could reconsider and decide again
Hossain	Jurisdictional error requires a material breach of a condition of the valid exercise of power. Materiality enters the definition
SZMTA	A breach is material only if compliance could realistically have resulted in a different decision, and the applicant bears the onus
MZAPC	Confirmed the materiality standard and located the onus on the applicant on the balance of probabilities
LPDT [2024] HCA 12	The culmination of the topic. Restated the two stage analysis and the undemanding backward looking counterfactual for materiality
Re Refugee Review Tribunal; Ex parte Aala (SUPP)	A denial of procedural fairness is a jurisdictional error, and it fixes the working definition of acting outside the limits of power

The rules

R60 · Is the error jurisdictional or within jurisdiction? arrow A jurisdictional error is a decision made outside the limits of the power conferred, while incorrectly deciding a matter the decision maker was authorised to decide is an error within jurisdiction. Craig ; Kirk.

R61 · Why does labelling an error jurisdictional matter? arrow The door matters because prohibition, mandamus and certiorari for jurisdictional error depend on it, because the ADJR Act does not require it, and because a privative clause reaches only non jurisdictional error.

R62 · Does breach of a statutory requirement automatically invalidate a decision? staircase Breach of a statutory requirement does not automatically invalidate a decision, and the question is whether Parliament intended that an act done in breach of the requirement should be invalid. Project Blue Sky.

R63 · What is the status of a decision affected by jurisdictional error? arrow A decision affected by jurisdictional error lacks a characteristic the statute made essential to its force, so for the purposes of that statute it is properly regarded as no decision at all. Bhardwaj.

R64 · What does jurisdictional error require at stage two? staircase Jurisdictional error requires a material breach of a condition of the valid exercise of power, and a breach is not material unless compliance with the condition could have resulted in the making of a different decision. Hossain.

R65 · When is a breach material and who bears the onus? compass A breach is material only where compliance could realistically have resulted in a different decision, and the applicant bears the onus of proving that realistic possibility. SZMTA ; LPDT [2024] HCA 12.

R66 · Do bias and unreasonableness require a separate materiality inquiry? arrow Bias and unreasonableness are treated as inherently material, so once either ground is made out no separate materiality inquiry runs before the error is jurisdictional.

R67 · How many grounds get the full two stage analysis? arrow The full two stage analysis is run once on the strongest ground, and every other ground made out receives its consequence in a single sentence.

R68 · What governs the consequence of an error? arrow The consequence of an error always depends on the statute; ask what legislative intention can be discerned about the legal effect of a decision made in breach. Project Blue Sky ; Bhardwaj.

R69 · Do the labels void and voidable resolve the validity question? arrow Labels such as void and voidable give no assistance in determining the legal effect of a decision affected by error. Bhardwaj.

R70 · What is the stage two counterfactual and its standard of proof? compass The counterfactual is backward looking and undemanding, asking not what the decision maker would have decided but what could realistically have been decided had the breach not occurred, and the applicant proves that possibility on the balance of probabilities. MZAPC.

Common traps

The unfinished two stage test. The examiner's words were that some students missed finishing the first stage of the Project Blue Sky part of the test. Assert the stage one construction and answer it before you assert jurisdiction, and never assert materiality without naming the realistic possibility test and placing the onus on the applicant.

Materiality on every ground. The rubric runs the full analysis once, on the strongest ground. Running materiality on all grounds burns the words the marks sit in and leaves the strongest ground half argued. Give the others their consequence in a sentence and move on.

Invalidity from breach. A breach does not invalidate of itself. State the Project Blue Sky construction question and answer it, because Parliament may have intended the act done in breach to stand. Skipping to invalid is the error the two stage test is built to catch.

The hedged conclusion. The two stage analysis is the product, but the advice must still commit. After running both stages, say the decision is or is not affected by jurisdictional error, and say whether relief follows. A conclusion that will not land earns the analysis marks and forfeits the advice marks.

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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