Federal Court. An error is only jurisdictional if material to the decision. Is the materiality test about whether the decision would (as opposed to could) have been different had the error not occurred? If the question is about whether the decision could have been different: is there a need to make any further assessment of the likelihood of the decision being different had the error not occurred; does that mean that an error can always be surgically removed from the decision-maker's reasons, leaving the framework surrounding it intact?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: An error is only jurisdictional if material to the decision. Is the materiality test about whether the decision would have been different had the error not occurred? Or is it about whether it could have been different?
If the answer to Question 1 is "could":
Question 2: Is there a need to make any further assessment of the likelihood of the decision being different had the error not occurred?
Question 3: Does that mean that an error can always be surgically removed from the decision-maker's reasons, leaving the framework surrounding it intact?
The FCA answered those questions as follows: