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Thematic Issue: Conceptions of Ownership / General

Jurisdictional Error as Conceptual Totem


Leighton McDonald

Jurisdictional error is pivotal but not, in any substantive sense, ‘central’. It is pivotal because it marks important boundaries (drawn by reference to other ideas) in the law of judicial review of executive action. This pivotal but not central role has enabled jurisdictional error to function as a ‘conceptual totem’, emblematic of a determinedly ‘statutory approach’ to the articulation and elaboration of administrative law norms. After elaborating these claims, the article goes on to doubt the constitutional case for the retention of the statutory approach that, in recent years, has come to characterise the Australian approach to jurisdictional error. Recognition of the totemic function of jurisdictional error, it is concluded, is a helpful first step in better understanding and analysing administrative law norms which bear no obvious relation to statute.

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(2019) 42(3) UNSWLJ 1019: