A Typology of Materiality

Abstract

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 issue, which causes conceptual confusion and obscures important underlying issues. By reference to material drawn from Australia, Canada, England, Ireland and New Zealand, I argue that there are three distinct types of materiality. First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional. Second, materiality can be used to denote a causal link between the error complained of and the decision under review. Third, materiality can be used to denote judicial discretion to refuse relief. I suggest that distinguishing between these types facilitates clearer analysis and debate about the appropriate place of “material” error in judicial review of administrative action.