Can Failure to Record Hearing Constitute Jurisdictional Error?

In the case of P (name redacted), the Minister appealed the Federal Circuit Court decision of upholding that there was a jurisdictional error on the basis that Tribunal failed to provide audio-recording of the hearing to the Applicant when being requested, the issue in question at this court was to determine whether failure to record the AAT hearing constituted jurisdictional error.

The Federal Court of Australia held that the lack of full audio recording at Tribunal did not necessarily mean there was a jurisdictional error, as there is no general obligation to give reasons for an administrative decision, there is no general obligation upon a decision-maker to give reasons for an administrative decision (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 670), and there is no general obligation to make, and give to the applicant, an audio-recording of an administrative hearing.

The court reference the case of H (name redacted), where the plurality described jurisdictional error as ‘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’. Under Australian legal system, there is no statutory condition requiring the Tribunal to make, or give an applicant, an audio-recording of a hearing, a failure to do so cannot amount to jurisdictional error.

Nonetheless, the judge did acknowledge, in a case where there is a dispute about what evidence was given, or about the way a hearing was conducted, it would be much easier for the court to find issues in dispute if such audio-recording and transcript of the hearing is made available, nonetheless, it is the opinion of the court that such issues/problems are not necessarily insurmountable, hence does not constitute jurisdictional error.

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