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  • If a decision-maker makes an error while exercising a statutory conferred power, the error must have been ‘material’ in order to be a jurisdictional error.
  • There is a divergence in the case law as to what constitutes a ‘material’ error.
  • When looking at the materiality of an error, the courts will look at the statute under which the decision was made.

An error committed by an administrator when making a decision pursuant to a statutory conferred power must be ‘material’ in order to be a ‘jurisdictional error’. This article focuses on how the requirement for materiality is considered to originate from the common law principle of statutory interpretation.

In this regard, despite some remarkable division between several High Court judgments, a common thread through the jurisprudential area of materiality is the acknowledgement of the importance of proper construction of the statute under which the impugned decision is made. This article endeavours to illustrate this by addressing the High Court decisions in Hossain v Minister for Immigration and Border Protection and Another (2018) 264 CLR 123 (‘Hossain’), Minister for Immigration and Border Protection v SZMTA and Another (2019) 264 CLR 421 (‘SZMTA’), and MZAPC v Minister for Immigration and Border Protection and Another (2021) 390 ALR 590 (‘MZAPC’).


Hossain concerned whether to grant relief where an executive officer, whose decision-making authority was conferred by statute, made an error when making an administrative decision.

Hossain considered the nature of the error in question because the nature of the error determined the consequences with respect to the grant of any relief.

There were some differences in opinion between the judgments in Hossain particularly as to how to analyse an error. The different judgments did not share the same jurisprudential view as to errors including:

  • how to differentiate between a jurisdictional error of law and a non-jurisdictional error of law;
  • the concept of a material error;
  • how the concept of materiality relates to the concept of a jurisdictional error; and
  • ultimately, the test to meet in order to be granted relief.

One point of agreement, however, was the focus on the significance of proper construction of the statute under which a decision was made.

Statutory interpretation may be seen as the secure basis upon which to begin assessment of the nature of an error. The error of law committed by the Tribunal was the improper application of a timing criterion.

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