Case: Cabal v Attorney-General of the Commonwealth [2001] FCA 583 ; (2001) 113 FCR 154
Outcome: referred to
my opinion, the question of reasonable practicability is not a jurisdictional fact. The question is whether 'reasonable practicability' is to be finally determined by the officer or only provisionally determined by him or her and finally determined by the Court. As I understand the authorities, that question is ultimately one of statutory consideration. The authorities have identified a number of relevant considerations: 1. If the factual reference (as it is sometimes called) is expressed in terms of the 'opinion', 'belief' or satisfaction' of the primary decision-maker then the factual reference is not a jurisdictional fact, although there will still be a jurisdictional fact, namely, the primary decision-maker's state of mind. The contrary does not follow, in that the absence of reference to 'opinion', 'belief' or 'satisfaction' of the decision-maker does not mean the factual reference is a jurisdictional fact (Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed, 2000) pages 227-239). 2. The nature of the task is important. If the task is a difficult and complex one involving an assessment of complex facts and the forming of opinions on a wide range of matters then that suggests that the factual reference is not a jurisdictional fact because it is considered that Parliament intended that the decision be made by the primary decision-maker: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 465-466 (High Court: Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297); Cabal v Attorney-General of the Commonwealth [2001] FCA 583 ; (2001) 113 FCR 154. 3. If inconvenience results from holding that a factual reference is a jurisdictional fact then that will be considered a reason not to hold that it is a jurisdictional fact: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369; Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 465-466; Cabal v Attorney-General of the Commonwealth (supra) per Weinberg J at 173 [74]. With respect, the clearest statement of the principle remains that of Dixon J (as he then was) in Parisienne Basket Shoes Pty Ltd v Whyte (supra) (at 391): 'It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.' 4. The importance of the decision in terms of the nature of the rights affected by it is a matter to be taken into account. If the rights at stake are fundamental or important rights then that may suggest that the factual reference is a jurisdictional fact: Buck v Comcare (1996) 66 FCR 359 per Finn J at 364.