A Typology of Materiality

Paul Daly, University Research Chair in Administrative Law & Governance, Faculty of
Law, University of Ottawa
Forthcoming, Australian Journal of Administrative Law

Introduction
The question of when an error will be sufficiently “material” to justify the quashing of a tainted
decision has prompted some discussion and debate on the High Court of Australia in two
important recent cases: Minister for Immigration and Border Protection v SZMTA [2019] HCA
3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
This is a difficult question, which is obscured by the terminology of “material” error. The goal
of this paper is to set out a typology of materiality. My suggestion is that there are three
different types of materiality in judicial review of administrative action: whether an error is
sufficiently serious to be treated as jurisdictional; whether a causal link can be identified
between the error complained of and the decision under review; and whether judicial discretion
should be exercised to refuse relief on the basis that the error made no difference to the
impugned decision.
Setting out the typology achieves two goals. First, it illuminates the tendency to blur these
distinct types of materiality. In the following sections, I will describe the three types of
materiality, with particular reference to the judgments delivered in SZMTA and Hossain and
also to comparative material from other common law jurisdictions (Canada, England, Ireland
and New Zealand). Along the way I will offer some critical comment on the confusion in some
recent Australian judgments between the three different types of materiality.
Second, distinguishing between these different types of materiality would allow lawyers and
judges to cut through the terminological thicket and more clearly perceive the underlying
issues. In the conclusion, I will offer some thoughts on the implications of my typology of
materiality for contemporary Australian administrative law. Although I argue that there is
strong support in Australia and further afield for each type of materiality, I recognise that when
viewed in the cold light of day, one or more of the types might be revealed to be unattractive,
because they create practical difficulties, invite a distinction between matters of procedure and
substance or place a heavy burden on the shoulders of an individual who wishes to apply for
judicial review of administrative action. Without the typology, however, these underlying
issues will remain obscured.

Seriousness of Error
First, materiality can be used to denote whether an error is sufficiently serious to count as
jurisdictional. The point here is that all errors are not created equal: some will have more
serious consequences than others, entailing the invalidity of the decision under review; whereas
some errors will be so immaterial to the statutory scheme that invalidating the impugned

Electronic copy available at: https://ssrn.com/abstract=3471622

decision would not be appropriate.1 As Kiefel CJ, Gageler and Keane JJ put it in their joint
judgment in Hossain, “jurisdictional error is an expression not simply of the existence of an
error but of the gravity of that error”:2

Jurisdictional error, in the most generic sense in which it has come to be used to describe
an error in a statutory decision-making process, correspondingly refers to a failure to
comply with one or more statutory preconditions or conditions to an extent which
results in a decision which has been made in fact lacking characteristics necessary for
it to be given force and effect by the statute pursuant to which the decision-maker
purported to make it.3

To take an overseas example, in the Irish case of Cork County Council v Shackleton [2007]
IEHC 241, Clarke J (as he then was), corrected a “significant error in the interpretation of a
material statutory provision leading to a decision of [a] property arbitrator being wrong in
law”.4
Similar issues arise in respect of the distinction between “mandatory” and “directory” statutory
provisions. This distinction has been deprecated by the High Court of Australia,5 the House of
Lords6 and the Supreme Court of Canada7 but has been retained in Ireland. It is designed to
serve a similar function to the distinction between jurisdictional and non-jurisdictional error,
namely, assisting a court in “interpreting a statute to determine whether invalidity was the
intended result”8 and hence in determining whether an error should be treated as being fatal to
the validity of an administrative decision:
If the requirement which has not been observed may fairly be said to be an integral and
indispensable part of the statutory intendment, the courts will hold it to be truly
mandatory, and will not excuse a departure from it. But if, on the other hand, what is
apparently a requirement is in essence merely a direction which is not of the substance
of the aim and scheme of the statute, non-compliance may be excused.9

1
The Australian approach to judicial review of administrative action involves the implication of common law
limitations on executive action into legislation, such that the grounds of judicial review are placed on a statutory
footing. See generally Gageler S, “The Underpinnings of Judicial Review of Administrative Action: Common
Law or Constitution?” (2001) 28 FLR 303. The upshot is that, as is normal in complex regulatory schemes, there
are many breaches of ‘statutory’ provisions by (mostly) well-meaning administrative decision-makers. Only some
of these breaches, however, will count as jurisdictional or, to put the point more broadly, will cause the invalidity
of the resulting decision.
2
Hossain v Minister for Immigration and Border Protection [2018] HCA 34, [25] (‘Hossain’), emphasis original.
3
Hossain (n 2) [24].
4
Cork County Council v Shackleton [2007] IEHC 241, [9.7] (‘Shackleton’), emphasis added.
5
Project Blue Sky Inc v Australian Broadcasting Authority) (1998) 194 CLR 355.
6
R v Soneji [2006] AC 340 (‘Soneji’).
7
British Columbia (Attorney General) v Canada (Attorney General) [1994] 2 SCR 41.
8
Boughey J and Burton-Crawford L, “Reconsidering R. (on the application of Cart) v Upper Tribunal and the
rationale for jurisdictional error” [2017] Public Law 592, 601.
9
State (Elm Developments Ltd) v An Bord Pleanála [1981] ILRM 108, 110 (Henchy J). See also Macaulay RW,
Sprague JH, and Sossin L, Carswell, Practice and Procedure Before Administrative Tribunals, vol 3 (looseleaf)
22 [126-126.1]:
Where a provision is imperative it must be complied with. The consequence of failing to comply with an
imperative provision will vary depending on whether the imperative direction is mandatory or directory.
Failing to comply with a mandatory direction will render any subsequent proceedings void while failing
to comply with [a] directory command will not result in such invalidation (although the person to whom
the command was directed will not be relieved from the duty of complying with it.

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In determining whether to treat an error as a breach of a mandatory or merely directory
provision, the materiality of the error — in terms of its consequences for the operation of the
statutory scheme10 — will be a key consideration.11 One way to understand the
mandatory/directory distinction is to think of it in terms of the importance of the error in
question: only a serious error, which undermines the statutory scheme (or, perhaps, interferes
with individual rights or other legal values12), will be treated as mandatory and, therefore, as
having invalidated the decision; whereas a relatively immaterial error will not invalidate the
decision.13
I emphasise this comparative learning because there are echoes of the mandatory/directory
distinction in Hossain, notwithstanding its relative decline in Australian administrative law.
Consider, for instance, Edelman J’s contention that it is “unlikely to be an intention that the
legislature is taken to have that a decision be rendered invalid by an immaterial error”,14 or the
following passage from the joint judgment:
Ordinarily, a statute which impliedly requires that condition or another condition to be
observed in the course of a decision-making process is not to be interpreted as denying
legal force and effect to every decision that might be made in breach of the condition.
The statute is ordinarily to be interpreted as incorporating a threshold of materiality in
the event of non-compliance.15
Distinguishing jurisdictional from non-jurisdictional errors and mandatory from directory
provisions is no easy task.16 As O’Donnell J commented in Gillen v Commissioner of An Garda
Siochána [2012] IESC 3; [2012] 1 I.R. 574, “[t]he question for the court is to interpret [the

10
See e.g. Society Promoting Environmental Conservation v Canada (Attorney General) [2003] 4 FC 959, [27]
(Evans JA): “The relevant question was whether invalidating administrative action for breach of the statute would
be inconvenient or unjust, or would otherwise be inconsistent with the purposes of the legislation”.
11
See also Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, 32.
12
See e.g. R v Immigration Appeal Tribunal, Ex parte Jeyeanthan, [2000] 1 WLR 354, 360 (Court of Appeal,
Lord Woolf MR): “In the majority of cases, whether the requirement is categorised as directory or mandatory, the
tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of
failing to comply with the requirement in the context of all the facts and circumstances of the case in which the
issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances”.
13
See e.g. the list of factors set out by Evans JA in Society Promoting Environmental Conservation v Canada
(Attorney General) [2003] 4 FC 95, [35] and Hogan D, Morgan DG and Daly P, Administrative Law in Ireland
(Roundhall, Dublin, 5th ed, 2020, forthcoming) [12-75]:
A court addressing this issue will have to ask two questions. First, was the provision mandatory or
directory? Second, should the violation of the provision be tolerated or not? The first question is
essentially an exercise in discerning legislative intent, in the abstract; the second more a matter of judicial
policy as applied to the facts of particular cases. In general, the stronger the legislative intent…and the
more serious the consequences of the violation, the more compelling the argument will be to invalidate
the impugned decision. Conversely, where legislative intent is weaker and the consequences of non-
compliance are relatively harmless, the party arguing that non-compliance should be excused will
ordinarily win the day. Of course, most cases are likely to fall somewhere in between these two extremes.
14
Hossain (n 2) [67] (Edelman J).
15
Hossain (n 2) [29] (Kiefer CJ, Gageler and Keane JJ). See also [64-65] (Edelman J).
16
See e.g. London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 190 (Lord Hailsham
of St. Marylebone LC):
In such cases, though language like `mandatory', `directory', `void', `voidable', `nullity' and so forth may
be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the
consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular
case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of
Procrustes invented by lawyers for the purposes of convenient exposition.

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legislature’s] silence on the topic”.17 In all cases, however, “[t]he question of whether a
particular failure to comply with an express or implied statutory condition in purporting to
make a particular decision is of a magnitude which has resulted in taking the decision outside
the jurisdiction conferred by the statute cannot be answered except by reference to the
construction of the statute”.18 To put the point another way, the first type of materiality will
typically involve a pure question of statutory interpretation: “The decision is informed by the
usual process of statutory interpretation”.19
It may be, as Gaudron and Gummow JJ can be taken to have suggested in in Re Refugee Review
Tribunal, Ex parte Aala (2000) 204 CLR 82, that breaches of procedural requirements –
whether explicit or implied into a statutory scheme by judges – are more likely to be material,
as the concern in cases involving procedure “is with observance of fair decision-making
procedures rather than with the character of the decision which emerges from the observance
of those procedures”.20 Indeed, where legislation contains substantive, rather than procedural,
requirements or guarantees, those are quite likely to be treated as directory or non-justiciable.21
But Gaudron and Gummow JJ’s premise that the “conditioning of a statutory power so as to
require the provision of procedural fairness has, as its basis, a rationale which differs from that
which generally underpins the doctrine of excess of power or jurisdiction” is contestable,
certainly in view of subsequent developments in Australian administrative law. Legal
reasonableness is now also an implied condition on the exercise of many statutory powers:
although it would be difficult to categorise as procedural or substantive, it would be
unconvincing to describe it as only procedural, yet it is nonetheless of fundamental importance:
“[t]he legislature is taken to intend that a discretionary power, statutorily conferred, will be
exercised reasonably”.22 In any event, as was said by Lord Steyn in R v Soneji [2006] AC 340,
“the emphasis ought to be on the consequences of non-compliance, and posing the question

17
Gillen v Commissioner of An Garda Siochána [2012] IESC 3; [2012] 1 IR 574, 602. Unless, of course, there is
“a specific indication in the particular enactments of the effect of non-compliance with its provisions” or “a general
enactment which provided for relief against the consequences of non-compliance with a mandatory statute”:
Hatton v Beaumont [1977] 2 NSWLR 211, 225, (Mahoney JA). See e.g. Waratah Coal Inc v Minister for
Environment, Heritage and the Arts (2008) 173 FCR 557, 567.
18
Hossain (n 2) [27] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA
[2019] HCA 3, [83] (Gageler and Gordon JJ) (‘SZMTA’).
19
British Columbia (Attorney General) v Canada (Attorney General) [1994] 2 SCR 41, 143 (Iacobucci J). Cf
Craig v Workers Compensation Tribunal (2004) 90 SASR 490.
20
Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82, [59-60] (‘Aala’).
21
See generally Feldman D, “Legislation Which Bears No Law” (2016) 37 (3) Statute Law Review 212. See e.g.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 358 (Hayne, Kiefel and Bell JJ, commenting
that a statutory provision requiring decision-making to be “fair, just, economic, informal and quick” was “apt to
apply to objectives but not to enforceable commitments, not the least because each pulls the Tribunal in a different
direction”). See also Bare v Independent Broad-based Anti-corruption Commission (2015) 326 ALR 198.
22
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 30 [63] (Hayne, Kiefel and Bell JJ). See
the discussion in Aronson M, “The Growth of Substantive Review: The Changes, their Causes and their
Consequences” in Bell J, Elliott M, Varuhas J and Murray P (eds), Public Law Adjudication in Common Law
Systems: Process and Substance (Hart, Oxford, 2016) 113, 119-121. It might be that there are different conceptual
rationales for conditions of reasonableness and fairness. If so, it is possible that the materiality analysis might play
out differently in respect of reasonableness and fairness – but such an argument would need to be developed in
detail. My view is that both reasonableness and fairness are supported by the same set of rationales: Daly P,
“Administrative Law: Characteristics, Legitimacy, Unity” in Elliott M, Varuhas J and Stark SW (eds), The Unity
of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, Oxford, 2018), 99.

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whether Parliament can fairly be taken to have intended total invalidity”;23 the answer will not
depend on whether the non-compliance related to procedure or substance.
Obviously, in jurisdictions where the distinction between jurisdictional and non-jurisdictional
error has been abolished (entirely in New Zealand24 and for all practical purposes in England25)
this first type of materiality has much less purchase. But even there it retains a tenacious hold
on cases involving the mandatory/directory distinction, inasmuch as the question in such cases
will always be whether “on a true construction non-observance of the condition is fatal to the
validity of the action”,26 or in other words, whether non-observance of the condition was
material.

Causality
Second, materiality can be used to denote a causal link between the error complained of and
the decision under review. Reviewable error does not exist in the air: “the error has to be one
which affected the actual making of the decision and affected the decision itself”.27 What is
required is a “material” error.28
This is distinct from the first type of materiality.29 To use the language of the Full Federal
Court, it “will not invariably be the case” that a breach of the law “results in jurisdictional
error”.30 As Edelman J put it in Hossain, “an error will not usually be material, in [the] sense
of affecting the exercise of power, unless there is a possibility that it could have changed the
result of the exercise of power”.31 This does not have to be established as a fact: the question
is not “what would have occurred” if the law “had been observed”;32 what matters is whether
the error “might” have affected the outcome.33
Thus, for example, when an applicant successfully demonstrates that an irrelevant factor has
been taken into account by an administrative decision-maker, the applicant must also establish
that the factor had a “substantial” influence on the decision;34 factual errors, in jurisdictions
which recognise them as grounds of review, must also be “material”;35 and where there has

23
Soneji (n 6) (Lord Steyn).
24
Peters v Davison [1999] 2 NZLR 164.
25
R (Cart) v Upper Tribunal [2012] 1 AC 663, [18, 39] (Lady Hale).
26
Forsyth C and Wade W, Administrative Law (Oxford University Press, 11th ed, 2014) 183-184.
27
Peters v Davison [1999] 2 NZLR 164, 202 (Thomas J).
28
R(Cart) v Upper Tribunal [2012] 1 AC 663, [110] (Lord Dyson).
29
SZMTA (n 18) [44] (Bell, Gageler and Keane JJ).
30
DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10, [71] (Reeves, Rangiah and Bromwich JJ),
referring to procedural fairness.
31
Hossain (n 2) [72]. Emphasis added. See also Stead v State Government Insurance Commission (1986) 161
CLR 141, 147; Aala (n 20) 89 (Gleeson CJ); Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 500 (Kirby
and Callinan JJ); and, most recently, EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
[42] (Allsop CJ, Markovic and Steward JJ), identifying the key issue as whether the error complained of “could
have affected the outcome”. Emphasis added.
32
Minister for Immigration and Border Protection v WZARH [2015] HCA 40, 342 (Gageler and Gordon JJ)
(‘WZARH’).
33
WZARH (n 32) 339 (Kiefel, Bell and Keane JJ).
34
R v Rochdale Metropolitan Borough Council, Ex parte Cromer Ring Mill [1982] 3 All ER 761, 770 (Forbes J).
See also McKernan v Employment Appeals Tribunal [2008] IEHC 40, [4.6] (Feeney J).
35
See e.g. E v Secretary of State for the Home Department [2004] QB 1044, 1070, (Carnwath LJ); Efe v Minister
for Justice [2011] 2 IR 798, 819 (Hogan J).

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been a breach of procedural fairness, “practical injustice or unfairness” must be
“demonstrated”.36
A counter-factual inquiry is called for: would the same outcome have been reached if the error
had not been made? Unfortunately, such a question is almost impossible to answer:37
It will often be extremely difficult to say what decision might have been made by an
administrative decision-maker if there had been no denial of procedural fairness in a
given case — and it is not for the review court to speculate. To try to reconstruct a
decision-making process or to rework the apparent basis upon which a decision has
been made, in order to state with any confidence what the result might have been or
would have been but for denial of procedural fairness, is likely to be a speculative and
unproductive task and certainly one likely to lead to injustice, because the judicial
reviewer is not equipped and is not charged with responsibility to make the sort of
administrative decision that the primary decision-maker has been set up to determine.38
Conducting such an inquiry may be easier in the case of a question of law “when, in the opinion
of the appellate court, the question of law must clearly be answered unfavourably to the
aggrieved party” and so a further hearing would be “futile”, than in circumstances where the
error complained of “affects the entitlement of a party to make submissions on an issue of
fact”,39 where matters might have unfolded quite differently, but will typically be quite
difficult.
Special rules might apply to breaches of procedural fairness. A procedural failing may be “so
fundamental that it will be material whether or not a person is deprived of the possibility of a
successful outcome”;40 or, as Nettle J put it, “there may be a number of circumstances in which
an error is jurisdictional despite not depriving a party of the possibility of a successful
outcome”.41 Furthermore, if one takes the view, like Lord Reed in Osborn v Parole Board
[2014] 1 AC 1115,42 that procedural fairness is underpinned by dignitarian considerations,
many procedural failings will be classified as “fundamental”. In general, given these concerns,
it seems fair to say that breaches of procedural fairness are, all other things being equal, more
likely to be treated as material when the existence of a causal link is in issue.
Mortimer J went even further in her concurring reasons in DPI17 v Minister for Home Affairs
[2019] FCAFC 43, attacking the very existence of the second type of materiality, at least in
cases involving procedural fairness. In her view, drawing on the “principles in Aala”, when
imposed as “conditions on the exercise of power”, procedural fairness obligations “are

36
NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44, 47 (Alsop CJ and Katzmann J).
37
See John v Rees [1970] Ch 345, 402 (Megarry J); VAF v Minister for Immigration and Cultural Affairs (2004)
206 ALR 471, [60], (Merkel J); SZMTA (n 18) [47-49] (Bell, Gageler and Keane JJ).
38
SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557, 59 (Barker J).
39
Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (‘Stead’). See also Collection
House Limited v Taylor [2004] VSC 49, [33] (Nettle J). As Basten JA observed in Shi v ABI-K Pty Ltd [2014]
NWSCA 293, [52], Stead was not an administrative law case. Nonetheless, its teachings have been applied and
adopted by the High Court and intermediate appellate courts in administrative law cases. That said, the analysis
may differ, in Australia, depending on whether impugned decision was issued by an inferior court or an
administrative tribunal. See e.g. Craig v Workers Compensation Tribunal (2004) 90 SASR 490.
40
Hossain (n 2) [72] (Edelman J).
41
Hossain (n 2) [40].
42
See also Cardinal v Director of Kent Institution [1985] 2 SCR 643, 661 (LeDain J); International Finance Trust
v New South Wales Crime Commission (2009) 240 CLR 319, 380-381 (Heydon J).

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generally seen as intended to affect the jurisdiction of the repository to exercise the power”; if
they are not, very simply, “then there is no breach of procedural fairness”.43 It is notable,
however, that in Aala the legislation “laid down a particular framework for the particular
conduct by the Tribunal of its review of the decision of the delegate of the Minister”.44 It may
be that the best view of Aala is that it concerned the first type of materiality, that is, whether
the procedural breach in issue was – because of its importance to the framework under
consideration – jurisdictional in nature and that Aala says nothing either way about the second
type of materiality.
Unlike the first type of materiality, which is in substance a question of law, the second type of
materiality is more in the nature of a question of fact or mixed law and fact. Regardless of how
it is classified or described, however, the burden of proof will be on the applicant.
Demonstrating the presence of the second type of materiality is an essential component of
‘making one’s case’ in an application for judicial review.45 The second type of materiality “is
an ordinary question of fact in respect of which the applicant bears the onus of proof” and, as
such “it is to be determined by inferences drawn from evidence adduced on the application”.46

Judicial Discretion
Third, materiality can be used to denote judicial discretion to refuse relief. In situations
where there has been an error which qualifies as jurisdictional (including a breach of a statutory
provision which qualifies as mandatory) and there is a causal link between the error and the
outcome, the court still retains discretion to refuse a remedy. This is part of the ordinary
remedial discretion exercised by a reviewing judge.47 And it might be exercised in situations
where the error complained of was immaterial, in the sense that the decision-maker would
inevitably have reached the same conclusion:
Even where the irrelevant factor played a significant or substantial part in the decision-
maker’s thinking, the decision may, exceptionally, still be upheld, provided that the
court is satisfied that it is clear that, even without the irrelevant factor, the decision-
maker would have reached the same conclusion…There is, in theory at least, a
possibility that, even if the court concludes that it ought otherwise to set aside a decision
on the ground that a legally irrelevant factor was taken into account, it can nonetheless
uphold the decision, if it is satisfied that it would be pointless to require the decision-
maker to reconsider the question afresh, because he would reach the same answer.48
Granting of relief in respect of an unlawful decision is generally the starting point, even if the
breach was procedural in nature and might not have had a material impact on the decision

43
DPI17 v Minister for Home Affairs [2019] FCAFC 43, [102].
44
Aala (n 20) 110 (Gaudron and Gummow JJ).
45
See e.g. CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, 200.
46
SZMTA (n 18) [46] (Bell, Gageler and Keane JJ).
47
See e.g. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949)
78 CLR 389, 400; Harelkin v University of Regina [1979] 2 SCR 561, 576; Bulk Gas Users Group v Attorney-
General [1983] NZLR 129,136; Stefan v Minister for Justice Equality and Law Reform [2001] 4 IR 203, 217; R
(New London College) v Secretary of State for the Home Department [2013] 1 WLR 2358, [45-46].
48
R (FDA) v Work and Pensions Secretary [2013] 1 WLR 444, [68-69] (Lord Neuberger MR).

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reached.49 Bingham LJ took a strong line in R v Chief Constable of the Thames Valley Police,
Ex parte Cotton [1990] IRLR 34450 in respect of the idea that relief should not be granted where
the decision-maker would have reached the same decision regardless of the error complained
of: “Unless the subject of the decision has had an opportunity to put his case it may not be easy
to know what case he could or would have put if he had had the chance”, because “experience
shows that that which is confidently expected is by no means always that which happens”;51
and, in any event, “[t]his is a field in which appearances are generally thought to matter”.52
However, the jurisprudence does not support the proposition that breaches of the law which
make no difference to the substantive outcome will invariably result in a decision being
quashed. As Lord Wilberforce noted in Malloch v Aberdeen Corporation [1971] 1 WLR 1579,
there must be “something of substance which has been lost by the failure. The court does not
act in vain”.53 There are examples of courts refusing to grant relief where the breach
complained of would not have made a material difference to the decision.54 It has been said
that the cases in which a remedy should not be granted on the basis that it would make no
difference to the outcome will “be rare”,55 but it is nonetheless conceptually possible:
Once the applicant establishes “the possibility” of a different outcome had there not
been a denial of natural justice, relief will only then be refused if it would be futile to
grant a new hearing as the same outcome would be inevitable. To establish this the
respondent may rely upon arguments involving incontrovertible points of law or fact
that were not raised at the initial hearing (or in some circumstances on new facts) which
may support the conclusion that the outcome of a further hearing would inevitably be
the same.56
In Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR
202, for example, where although the applicant had established a breach of procedural fairness,
the remedies sought were “impractical”; compelling the decision-maker to reconsider its
position would have been “nonsensical” as it was “bound in law” to reject the application

49
See e.g. Kioa v West (1985) 159 CLR 550, 582 (Mason J): “Once the applicable breach is proved, the victim of
the breach is ordinarily entitled to relief”. Cf Aala (n 20) 122 (McHugh J).
50
R v Chief Constable of the Thames Valley Police, Ex parte Cotton [1990] IRLR 344, 352 (‘Cotton’). See also
R. v Monopolies and Mergers Commission, ex parte Argyll Group [1986] 2 All ER 257, 266.
51
Cotton (n 50) 352. See also Meadowvale Stud Farm Ltd v Stratford County Council [1979] 1 NZLR 342, 350,
(Mahon J). Compare Secretary of State for the Home Department v AF (No 2) [2010] 2 AC 269, [73], (Lord
Hoffmann): “Most lawyers will have heard or read of or even experienced such cases but most will also know
how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not refuted”.
52
Cotton (n 50) 352.
53
Malloch v Aberdeen Corporation [1971] 1 WLR 1579, 1595.
54
See e.g. Giretti v Commissioner of Tax (1996) 70 FCR 151; Brannigan v Davison [1997] 1 NZLR 140, 149
(PC); Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32, [112]; R (KM) v
Cambridgeshire County Council (2012) 126 BMLR 186, [38] (UKSC); Australian and International Pilots
Association v Fair Work Australia (2012) 202 FCR 200, 242-243; Sami v Minister for Immigration and Border
Protection [2015] FCA 1496, [14]. And, indeed, courts have long used the so-called mandatory/directory
distinction to justify the conclusion that a given breach of a statutory requirement was too technical to justify the
grant of a remedy.
55
Nobarani v Mariconte [2018] HCA 36; 359 ALR 31, [48]. See e.g. Kioa v West (1985) 159 CLR 550, 582,
(Mason J); Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018]
FCAFC 203, [109].
56
Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, [80] (Redlich JA) (‘Ucar’).

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because of the Court’s disposition of other aspects of the case.57 In these “exceptional”
circumstances, Iacobucci J concluded, relief would be inappropriate.58
This type of materiality is conceptually distinct from the first and second types. The joint
judgment in Hossain came perilously close to rolling types two and three together: “the
threshold of materiality would not ordinarily be met in the event of a failure to comply with a
condition if complying with the condition could have made no difference to the decision that
was made in the circumstances in which that decision was made”.59 But the “no difference”
issue arises in relation to the third type of materiality, whereas the “threshold of materiality”
relates to the second type of materiality and the possibility of a connection between the error
complained of and the decision under review. As Nettle J explained in Hossain, an error of law
may be jurisdictional and material but the issue of the consequences that flow from this
combination of factors is a separate matter. Consider, for instance, a situation:
…where a decision maker is required to make a decision by reference to a single
specified criterion and, in error, addresses himself or herself to the wrong criterion. In
such a case, the decision maker’s error will be a jurisdictional error – a failure to
exercise the jurisdiction of deciding the question according to the applicable criterion
– regardless of whether one can say that, if properly directed and having determined
the application by reference to the correct criterion, the decision maker would have
been bound to make the same decision.60
Counterintuitive though it may seem, a breach of a procedural requirement might be material,
and might well have had a possible influence on the outcome and yet not result in the granting
of a remedy. In R (Nadarajah) v Home Secretary [2002] EWHC 2595 (Admin), to take an
unusual example, relief was refused because the illegality at issue had subsequently been
legitimised, such that the same result would inevitably have been reached on remittal.61
Nettle and Gordon JJ seemed to conflate the second and third types of materiality in SZMTA.
While they were quite right to observe that deciding whether or not to exercise discretion to
refuse relief “entails a different and separate exercise from the identification of jurisdictional
error”,62 which “must remain distinct”,63 their insistence that materiality is always “a question
of statutory construction”64 would eliminate any role for the second type of materiality (causal
connection): “The only place for that kind of analysis (about the materiality of the error to the
applicant) is in the exercise of the court’s discretion whether to grant relief after jurisdictional
error is made out”.65 Mortimer J expressed similar views in DPI17 v Minister for Home Affairs
[2019] FCAFC 43:

57
Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202, 228 (‘Mobil Oil’).
58
Mobil Oil (n 57) [1994] 228. See e.g. R. v. Papadopoulos (2005) 201 CCC (3d) 363 (Court of Appeal for Ontario),
[24-28]; Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 DLR (4th) 167,
[70-72].
59
Hossain (n 2) [30].
60
Hossain (n 2) [40].
61
R (Nadarajah) v Home Secretary [2002] EWHC 2595 (Admin), [30]. See also GXL Royalties v Minister of
Energy [2010] NZCA 185.
62
SZMTA (n 18) [85].
63
SZMTA (n 18) [88].
64
SZMTA (n 18) [89].
65
SZMTA (n 18) [90].

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 …if a supervising court finds that a repository’s exercise of power (or the failure to
consider an exercise of power) is legally unreasonable, that is a finding that the
repository has breached a condition on the power which affects the jurisdiction of the
repository. It may, of course, be a separate issue whether, in an exercise of discretion
as to relief, a court should be satisfied that an applicant has not been deprived of the
possibility of a successful outcome, or that there is no utility in setting aside the
repository’s decision because of other factors.66
Nettle and Gordon JJ had two particular concerns. First, they doubted the applicability of the
second type of materiality to Australia, on the basis that it is a creature known only to the
English law of judicial review which, having more or less abolished the distinction between
jurisdictional and non-jurisdictional error,67 is now very different from Australian
administrative law.68 As I have shown, however, the second type of materiality can be
perceived in other Commonwealth systems. Second, they considered that it would be
inappropriate to place the burden of proving materiality on the applicant.69 It is true that where
the third type of materiality is concerned, the burden should be on the decision-maker “to
establish that the relief would be futile in the applicant’s circumstances”.70 But as I have
observed above, demonstrating a causal link between error and result is part of the case an
applicant for judicial review must make out, as courts across the common law world have
recognised. This is often difficult, especially in the case of abuse of discretion71 but is
nonetheless a well-settled feature of the common law of judicial review of administrative
action.
Characterising the exercise of determining whether an error is “material” as backward-looking
or forward-looking72 is apt to cause confusion between the second and third types of
materiality. Consider the explanation offered by Redlich JA in Ucar v Nylex Industrial
Products Pty Ltd (2007) 17 VR 492:
[Relief] will be refused if upon analysis of the basis for the decision there is an
incontrovertible fact or point of law which provides a discrete basis for the decision
which cannot be affected by the procedural unfairness. It will then be concluded that
the applicant could not possibly have obtained a different outcome. Second, even where
the subject of the procedural unfairness touched upon an issue in dispute that was
material to the decision, relief may be refused if the respondent can demonstrate that it
would be futile to hold a further trial because the result would inevitably be the same.73
The first of these circumstances relates to the second type of materiality – causal link– whereas
the second relates to the third type of materiality – judicial discretion. In the first circumstance,
the applicant for judicial review will be unable to make out his or her case. In the second
circumstance, the applicant for judicial review might well have been able to make out his or

66
DPI17 v Minister for Home Affairs [2019] FCAFC 43, [105].
67
See especially R (Privacy International) v Investigatory Powers Tribunal [2019] 2 WLR 1219, [132] (Lord
Carnwath).
68
SZMTA (n 18) [91].
69
SZMTA (n 18) [93-95].
70
SZMTA (n 18) [93].
71
See e.g. CREEDNZ Inc v Governor-General [1981] 1 NZLR 172; R (Bancoult) v Foreign and Commonwealth
Secretary (No. 3) [2018] 1 WLR 973.
72
Hossain (n 2) [43] (Nettle J) and [74] (Edelman J).
73
Ucar (n 56) [75].

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her case. At the very least, as Aronson, Groves and Weeks observe, there is “little real
distinction” between the backward-looking and the forward-looking test as “the issue must
always depend so heavily on the facts of each case”.74

Conclusion
As noted in the introduction, setting out this typology of materiality serves two purposes. First,
it has revealed the tendency in some recent Australian judgments to blur the distinctions
between the different types of materiality. One lesson from the analysis in the preceding
sections is that passages in judicial decisions need to be read very closely. Consider the legal
and factual matrices of Hossain and SZMTA.75 SZMTA concerned three appeals relating to s.
438 of the Migration Act 1958 (Cth). Under Part 7 of the Act, some refusals or cancellations
of protection visas by a ministerial delegate are reviewable by the Administrative Appeals
Tribunal. A review triggers an obligation under s. 418 on the part of the Secretary of the
Department of Immigration and Border Protection to provide relevant information in his
possession to the Tribunal. In turn, however, the obligation under s. 418 is subject to
exceptions, one of which is set out in s. 438.
Section 438 applies to documents or information which the Minister has certified would be
contrary to the public interest for any reason “that could form the basis for a claim [for non-
disclosure] by the Crown in right of the Commonwealth in a judicial proceeding”, or material
received “in confidence”. The Minister must notify the Tribunal that such documents or
information have been transferred to it and may offer advice on how the Tribunal should
proceed. It is then for the Tribunal to decide whether to “disclose any matter contained in the
document, or the information”.
Problems arise where the documents or information do not, in fact, fall within the scope of s.
438. In such cases, although relevant information will have been given to the Tribunal, in
accordance with s. 417, it might not have been disclosed to the individual concerned. In
SZMTA’s case, for example, the Minister had invoked s. 438, on the basis that material had
been received “in confidence”, and the individual was never notified. The Federal Court held
that the material did not come within the scope of s. 438 and that SZMTA was thereby
materially disadvantaged. On appeal, the High Court of Australia took a different view. As the
joint judgment put it: “Having regard to the contents of the documents before the Tribunal…the
appropriate further inference to be drawn was that taking them into account could not
realistically have made any difference to the Tribunal's decision”.76
To my mind, SZMTA is best classified as raising the second type of materiality. The error was
important and thus material as far as the first type of materiality is concerned, but the applicant
simply failed to discharge the burden of proving that the failure to comply with the procedures
set out in the Act had an effect on the outcome. As such, the third type of materiality, which
relates to judicial discretion to grant relief, was not engaged.

74
Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability, (6th
ed, Lawbook Co, Sydney, 2017) pp 484.
75
See also WZARH (n 32) [56, 60] (Gageler and Gordon JJ). There are arguably distinct types of materiality at
issue in these paragraphs, but (with my gratitude to Nina Boughey) WZARH concerned declaratory relief, a remedy
in respect of which jurisdictional error operates quite differently.
76
SZMTA (n 18) [70].

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The facts of Hossain can be set out succinctly. Hossain made an application for a partner visa,
which was refused by a ministerial delegate, a refusal which was affirmed, on merits review,
by the Administrative Appeals Tribunal. The Tribunal affirmed the decision on two grounds:
first, that Hossain had not applied for the visa in a timely manner and, second, that he had an
outstanding debt to the Commonwealth (and, as such, granting a visa would be contrary to the
public interest as defined in the Migration Regulations 1994 (Cth)). On judicial review, the
Minister accepted that the Tribunal’s interpretation of the timeliness criterion was erroneous,
but argued that the decision should be upheld regardless, because of the independent basis
provided by the existence of an outstanding debt. The Federal Circuit Court refused to interfere
with the Tribunal’s decision, but by majority the Full Federal Court allowed an appeal by the
Minister. And so too did the High Court of Australia, bluntly stating in the joint judgment:
“The Tribunal in those circumstances had no option but to affirm the decision of the
delegate”.77
The joint judgment in Hossain would have been more convincing had it clearly distinguished
between the different types of materiality. Where an independent basis exists for a valid
decision, as in Hossain, the classification exercise is, admittedly, difficult. The better view,
however, is that Hossain involves the third type of materiality: there was a sufficiently serious
error (first type of materiality) and it seems conceivable that the error could have made a
difference to the outcome because of the possibility of the facts relating to the debt changing
before a final decision was rendered (second type of materiality), but it would have been
inappropriate for the reviewing court to grant relief (third type of materiality): the inevitability
of the result were the matter to be remitted to the decision-maker for a fresh hearing counselled
in favour of the exercise of discretion to refuse relief.
To rest the decision in Hossain on the second type of materiality would have potentially
unfortunate consequences in future cases with slightly different facts: if the independent basis
for the decision disappeared (say, for example, an outstanding debt had in fact been paid)
subsequent to a refusal but prior to the disposal of an application for judicial review, a court
applying Hossain would be constrained to hold that the applicant could not discharge his or her
burden of proving a causal link between the error complained of and the decision. Whereas, by
contrast, if Hossain is understood to rest on the third type of materiality, it would not be
appropriate in a hypothetical future case for a reviewing court to exercise its discretion to refuse
a remedy on the basis that a grant of relief would be futile. In any event, simply stating, as the
joint judgment did, that the error “could not realistically have made any difference”78 risks
creating analytical confusion, especially for lower courts, between the second and third types
of materiality.
The second purpose is to illuminate important underlying issues. Consider two issues relating
to the second type of materiality. To begin with, one might question whether a distinction
should be drawn between procedure and substance. On one view, as expressed mostly elegantly
by Mortimer J, the second type of materiality should have no purchase when an issue of
procedural fairness arises: there should, in effect, be an irrebuttable presumption that the
procedural failing had a material effect on the outcome. On another view, given voice by
Edelman J, some procedural failings will be so fundamental as to be material, regardless of

77
Hossain (n 2) [35].
78
SZMTA (n 18) [70].

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their actual effect on the outcome. On a further alternative view, however, the prospect of a
distinction between procedure and substance would be viewed askance: distinguishing the two
is a difficult exercise and given the stakes here – where successfully characterising an error as
procedural would eliminate the second type of materiality as a barrier to a successful judicial
review – has the potential to prompt a flood of litigation.
The discussion of different types of materiality also raises the issue of the burden of proof on
judicial review. As we have seen, the burden will often be difficult to discharge. It may be that
procedural or substantive failings escape judicial correction because the applicant cannot
discharge the burden of proof. Difficulties engendered by the burden of proof are endemic in
judicial review cases, but they take on an especial significance when type two materiality is at
issue: in such cases, the very point will be that a breach of the law has occurred but that the
court cannot remedy it because insufficient proof has been proffered. Whereas one might be
content to accept that the applicant bears the burden of proof generally in judicial review cases,
one might nonetheless consider that putting the onus of proving materiality on the applicant
does not adequately ensure that administrative decision-makers will comply with the law. And,
again, one might view the significance of compliance with the law differently depending on
whether a procedural or substantive breach has been identified.
I do not wish to endorse any of the competing views laid out in the previous paragraphs. The
importance of the analysis made possible by my typology is that, whatever one’s view of the
merits of these points, drawing clear distinctions between different types of materiality
illuminates significant underlying issues.

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