High Court dissects materiality test

Some of the questions to the High Court (HCA) were as follows:

Question 1: Is a decision that lacks statutory force by reason of being affected with jurisdictional error invalid without need for any court to have determined that the decision is invalid?

Question 2: Can it be said that "the statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation"?

Question 3: Can it be said that, "whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation"?

Question 4: Can it be said that "a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process"?

Question 5: Is the threshold of materiality "expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary"?

If the answer to Question 5 is "yes":

Question 6: Is the standard condition that a decision-maker be free from actual or apprehended bias an example of non-compliance "which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met"?

Question 7: Is the standard condition that the ultimate decision that is made lie within the bounds of reasonableness an example of non-compliance "which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met"?

Question 8: In determining whether an error is material and thus jurisdictional, does a court need to find whether the administrative decision-maker actually made the error in question?

Question 9: Can it be said that "the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence"?

Question 10: Does the plaintiff in an application for judicial review "bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture"?

Question 11: Is the "requisite reasonable conjecture" about a realistic possibility that a different decision could, as opposed to would, have been made had there been compliance with the statutory condition for the valid exercise of power?

Question 12: If the answer to Question 8 is "yes", does a plaintiff in judicial review proceedings bear the burden of "proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied that the condition [for the valid exercise of a statutory power] has in fact been breached"?

Question 13: Does the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman prevent the Tribunal from appearing as an active party in a proceeding for judicial review of one of its decisions? Should "a tribunal on judicial review of one of its decisions ... become a "protagonist" in the judicial review proceeding"?

Question 14: Can the principles governing the grant by a court of a new trial at common law be applied by a close analogy to the discernment by a court of jurisdictional error?

Question 15: If the answer to Question 14 is "yes", can it be said that, "outside the province of the court in deciding that a new trial was warranted was either "to inquire into the effect which the evidence if admitted would produce upon the [c]ourt if the [c]ourt were the tribunal of fact" or "to speculate on the effect which it would have produced on the jury""?

Question 16: Can it be said that "just as a court called upon to determine whether a new trial should be ordered must be careful not to assume the function of the primary trier of fact (whether it be a judge or a jury), so a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker"?

Question 17: Can it be said that, "having arisen under the Administrative Decisions (Judicial Review) Act 1977 (Cth), however, Kioa v West has nothing to say about jurisdictional error"?

Question 18: If the answer to Question 5 is "yes", is the standard condition that persons affected by an administrative decision should be afforded procedural fairness an example of "non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met"?

Question 19: Can it be said that an "inference that the Tribunal did not take ... into account [information that was potentially helpful to a judicial review applicant] in making its decision will more readily be drawn on the balance of probabilities than will an inference that the Tribunal did take potentially adverse information into account in making its decision"?

Question 20: Is it best to "conceive of the potential for information covered by a notification to have had a subconscious impact on the Tribunal not as bearing on the statutory consequence of non-compliance with the Tribunal's procedural fairness obligation to give notice of the notification but rather as having the potential to bear on the discharge of the Tribunal's distinct obligation of procedural fairness to ensure that what occurs in the conduct of the review "is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which [Pt 7] provides might reasonably apprehend that the [Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review""?

If the answer to Question 5 is "yes":

Question 21: Is the standard condition that, "where a decision-maker is required to make a decision by reference to a single specified criterion and, in error, the decision-maker addresses a different and wrong criterion" an example of "non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met"?

Question 22: Is the standard condition "where lack of respect for the dignity of the individual results in a denial of procedural fairness" an example of non-compliance "which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met"?

Question 23: If the answers to Question 6, 7, 21 and 22 are "yes", are those examples an exhaustive list of situations of non-compliance "which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be me"?

Question 24: Can it be said that, "where there is unreasonable delay in the making of an administrative decision, it is for the respondent to establish a satisfactory justification for the delay"?

Question 25: Can it be said that, "in an application for habeas corpus, provided that the detainee has established probable cause or a case fit to be considered, the person directing detention must prove the lawfulness of the detention"?

Question 26: Can it be said that, in negligence cases, "where a defendant who seeks to argue that a plaintiff's injury was caused by a condition which pre-existed a negligent act bears the onus of proof"?

Question 27: Can it be said that, in unlawful imprisonment cases, "where, if imprisonment is found to have occurred, the defendant has to justify the lawfulness of the imprisonment"?

Question 28: If the answer to Question 10 is "no", did the Minister demonstrate in these proceedings that compliance with the statutory requirements would not have led to a different outcome?

Question 29: Can it be said that, "to take one definition of relevant material, it must be material that "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding""?

Question 30: What are the "circumstances that will be considered in assessing whether non-compliance with a statutory condition will lead to invalidity"?

Question 31: "The appellant also relied upon the opening remarks made by the Tribunal in the initial, but later revoked, decision in September 2014 that the Tribunal had "considered all the material before it relating to [the appellant's] application". Should this statement "be taken to suggest a treatment by the Tribunal of the Court Outcomes Report as material that it had considered", or should it rather be taken as a "statement by the Tribunal that it had considered all the material before it demonstrated its consideration of whether it should decline to offer an interview to the appellant and should instead "decide the review in the [appellant's] favour on the basis of the material before it""?

Question 32: If a court decision makes "a point which was not necessary for the decision and was not argued", can that point be authority? In other words, does that point have precedential value?

The HCA answered those questions as follows: