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Administrative Law Jurisdiction
1 Introduction An important but problematic concept The concept of 'jurisdiction' is both central to administrative law and highly problematic: Central: Because it constitutes an (arguably the) organizing concept around which the law of judicial review is structured, balance of judicial control and agency autonomy. . Problematic: For several inter-related reasons, all of which concern the inherent uncertainty and instability of the concept of jurisdiction.
1. The Boundary between jurisdictional and non-jurisdictional issues (drawing dividing line is very hard to draw)
2. Consequences of characterization as jurisdictional.
3. A Policy question masquerading as a conceptual/analytical question. At end of the day, all about policy. How much power do we want courts to have, and how much power do we want decision makers to have? All about basic question.
Jurisdictional questions' and 'merits questions' Difference between jurisdictional questions and merits questions.
Jurisdictional questions Ultimately for the court (in the sense that the court has the final word over what constitutes the right answer)
Merits questions Ultimately for the decision-maker (in the sense that there is generally no right answer capable of being judicially imposed)
An example: The Illegal Immigrant Detention by the HS.
1. May power be exercised? Is person concerned an illegal entrant? (Jurisdictional question)
2. Should the power be exercised? Would public interest favor detaining this particular illegal entrant? (merit's question)
Example Right answer?
Courts role DM' decision Style of review
Is X illegal entrant?
Should x be detained?
Decides whether decision makers answer is right one
Decides whether decision maker's decision is lawful
In attempting to understand the distinction between jurisdictional and merits questions further, it is helpful to pose four questions:
Does the question have a right answer?
What is the court's role?
What is the status of the decision-maker's determination?
How can the style of review be characterised?
How come there isn't just one jurisdictional hurdle?
'Original jurisdiction fallacy', jurisdiction is established on a once-and-for-all basis and once secured, cannot be lost. View is no longer sustainable in the light of cases like Anisminic v Foreign Compensation Commission . Now accepted that jurisdictional questions may (generally will) have to be confronted by decision-makers in the course of answering the merits question, thus a series of jurisdictional hurdles and jurisdiction gained at outset can be lost by getting a subsequent jurisdictional question wrong. Consider, for instance, the following subsidiary questions which may arise in the course of making a decision on the merits: Q in Series: Must the individual concerned be given an oral hearing?
Q in Series: Can the decision-maker take particular factual information into account?
Q in Series: Can a legitimate expectation be departed from? (it either is, or it is not) Q in Series: Must the decision-maker disclose certain adverse evidence to the individual concerned?
Final question: Still should this person be detained, which is merit, but to get there, many jurisdictional hurdles.
Fine, but what do these questions have in common? And why are they rightly characterized as subsidiary jurisdictional questions, rather than as merits questions?
How do we know what counts as a jurisdictional matter?
How do we distinguish between:
criteria which constitute primary jurisdictional requirements, such that their existence (or not) is ultimately a matter for the court; and
criteria which do not constitute primary requirements, such that their existence (or not) is ultimately a matter for the decision-maker (provided that it complies with any relevant secondary jurisdictional requirements)
Why drawing lines is hard We have already seen enough of the subject of jurisdiction to know two things about it: the paradox that it's all about drawing lines and these lines are hard to draw!
Farina (1989) 89 Columbia Law Review at 452: This area of judicial review, while presented as an exercise in conceptual or analytical reasoning, is really influenced by considerations of policy.
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