‘Decision to which this Act applies’ defined in s 3 – Interpretation: "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not & whether bf or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment ; or (b) by a Cth authority or an officer of the Cth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment ; other than: (c) a decision by the Gov‑General; or (d) a decision included in any of the classes of decisions set out in Sch 1. “enactment” means: "enactment" means: (a) an Act, other than: (i) the Cth Places (Application of Laws) Act 1970 ; or (ii) the Northern Territory (Self‑Government) Act 1978 ; or (iii) an Act or part of an Act that is not an enactment bc of s3A (certain legislation relating to the ACT); or (b) an Ordinance of a Territory other than the A.C.T or the N.T; or (c) an instrument (including rules, regulations or by‑laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or (ca) an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in Schedule 3; or (cb) an instrument (including rules, regulations or by‑laws) made under an Act or part of an Act covered by paragraph (ca); or (d) any other law, or a part of a law, of the N.T declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act; &, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment. “decision to which this Act applies” A decision to which this Act applies:
If jurisdictional error was protected then there would be a direct conflict with s 75 & the clause would be constitutionally invalid Alleged error was denial of procedural fairness – therefore a jurisdictional error & not protected by the clause – non-jurisdictional error may be protected if wording clear & unambiguous Decisions under State legislation: Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77]: Convictions in the Industrial Court of NSW for offences against the Occupational Health and Safety Act 1983 (NSW) Application to the NSW Crt of Appeal for relief in the nature of certiorari to quash the convictions on the basis that the Industrial Crt had fallen into jurisdictional error A privative clause provided that a decision of the Industrial Crt is ‘final & may not be appealed against, reviewed, quashed or called into Q by any crt or tribunal’ The Crt of Appeal held that there was no jurisdictional error affecting the Industrial Crt’s decision & thus Q’s concerning the operation of the privative clause did not arise. Inferior crts will be outside of jurisdiction by: ‘misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’ In this case there were 2 jurisdictional errors identified Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77] (continued): The Q’s for the HCrt were: (a) whether the Industrial Crt’s decision was affected by jurisdictional error; &, if so, (b) whether the privative clause operated to prevent the Crt of Appeal from issuing relief by way of certiorari HCrt held that State Parlt’s cannot, through privative clauses, oust judicial review for jurisdictional error This places the treatment of State privative clauses on the same footing as that set out in Plaintiff S157 for Cth privative clauses Parties are constitutionally entitled to seek review where jurisdictional errors can be made out: ‘Legislation which would take from a State SCrt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’