Australian National University v Burns
[1982] FCA 207
•08 OCTOBER 1982
And: ARTHUR LEE BURNS (1982) 64 FLR 166
No. G18 of 1982
Administrative Law
FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Lockhart(1) and Sheppard(2) JJ.
Administrative Law - Judicial Review - appeal from order requiring University to furnish reasons for decision terminating professor's appointment on ground of permanent incapacity - whether decision made 'unde an enactment' (Australian National University Act 1946) or under contract of engagement.
Administrative Decisions (Judicial Review) Act 1977 ss. 3, 13 Schedule 2
Australian National University Act 1946 ss.4, 23, 26A, 27, 28
Administrative Law - Judicial review - Termination of professorial appointment by council of university on ground of permanent incapacity - Whether respondent entitled to request statement of reasons for decision - Appeal from decision of single judge that respondent was entitled to statement requested - Whether decision was "of an administrative character made . . . under an enactment" - Whether decision was made under contract of engagement - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 13, Sched. 2 - Australian National University Act 1946 (Cth), ss. 4, 23, 26A, 27, 28 - Acts Interpretation Act 1901 (Cth), s. 33(4).
On 13th November, 1981, the council of the Australian National University (the university) resolved to terminate the appointment of the respondent as a professor of that university on the ground that he was permanently incapacitated from performing his duties.
On 23rd November, 1981, the respondent requested a statement from the university pursuant to the provisions of s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) containing, inter alia, the reasons for the decision to terminate the respondent's appointment.
On 4th December, 1981, the university notified the respondent that, as a matter of law, he was not entitled to make the request. The respondent sought an order pursuant to s. 13(4A)(b) of the Judicial Review Act declaring that he was entitled to make the request.
On 27th April, 1982, a single judge of the Federal Court of Australia made the order requested by the respondent and the university appealed from that judgment to the Full Court. The university contended that the decision of the council to dismiss the respondent was not "a decision of an administrative character made . . . under an enactment", namely the Australian National University Act 1946 (the University Act) within the meaning of that expression in s. 3 of the Judicial Review Act. The university further contended that the decision of the council was made, not under the University Act, but under a contract of service entered into on 9th December, 1966, between the university and the respondent.
Held: (1) The appeal would be allowed.
(2) The respondent was not entitled to make the request made by him in his letter dated 23rd November, 1981, to the appellant.
(3) The rights and duties of the parties to the contract of engagement arose from that contract and not from the Australian National University Act 1946.
Evans v. Friemann (1981) 53 FLR 229; R. v. Clyne; Ex parte Harrap (1941) VLR 200, referred to.
(4) Accordingly, the effective decision for the dismissal of the respondent was made directly under the contract of employment.
Per Bowen C.J. and Lockhart J. - It would be directly relevant to the present case if the university council had a statute stipulating the circumstances in which professors could be dismissed, assuming this to be a valid exercise of the power conferred by s. 27 (1) (g) of the University Act. If the council subsequently entered into a contract of engagement with a professor and either incorporated by reference the relevant provisions of the statute relating to dismissal or repeated them in the same terms in the contract itself, it may be that a decision to dismiss the professor would be made under the statute; but this would depend on the terms of both the statute and the contract.
Per Sheppard J. - The decision of the council of the university to terminate the respondent's appointment did not affect or make inroads into principles and tenets concerning academic freedom and security of academic tenure. The fact that the respondent may have other remedies apart from the Judicial Review Act, unlike some applicants for relief in the field of administrative law, could not be determinative of the outcome of the application by the university.
Per Sheppard J. - Semble: The wide power of management conferred on the council of the university by s. 23 of the University Act conferred a power to remove or suspend from office, quite apart from any operation which should be accorded to s. 33(4) of the Acts Interpretation Act 1901.
Per Bowen C.J. and Lockhart J. - The Schedules to the Judicial Review Act must be viewed with some caution in considering whether or not they provide a reliable guide to the scope and operation of that Act. The particular position held by a member of staff of the university is not itself determinative of the question whether a decision of the council as the governing body of the university was made under the University Act.
Per Sheppard J. - The legislature did not intend every decision of the governing body of a statutory authority to be within the purview of the Judicial Review Act. It is undesirable to attempt to define with any precision the limits of operation of the Judicial Review Act as it is still comparatively new and the field is still developing with new factual situations arising for consideration with increasing frequency.
Sydney, 1982, June 16; October 8. #DATE 8:10:1982
APPEAL.
The council of the Australian National University appealed from a decision of a single judge of the Federal Court of Australia, namely a judgment declaring the respondent professor was entitled, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, to request a statement containing reasons for his dismissal from the university.
The facts appear in the judgment.
F. H. Callaway, for the appellant university.
L. G. O'Sullivan, for the respondent.
Cur. adv. vult.
Solicitors for the appellant university: Davies Bailey & Cater.
Solicitor for the respondent: J. D. Donohue.
J. D. WHITEHEAD
1. The appeal be allowed.2. It be declared that the respondent was not entitled to make the request made by him in his letter to the appellant dated 23 November 1981.
3. The respondent pay to the appellants its costs of this appeal and of the proceedings before Ellicott J.
The Court certified that a certificate under the Federal Proceedings (Costs) Act 1981 would be available to the respondent.
Declarations and orders accordingly.
The question for determination in this appeal is whether a decision of the Council of The Australian National University ("the appellant") to dismiss a professor was 'a decision of an administrative character made...under an enactment' within the meaning of that expression in s. 3 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").On 13 November 1981 the Council of the appellant resolved to terminate the appointment of Arthur Lee Burns ("the respondent") as a professor in the appellant's Department of Political Science, Research School of Social Sciences with effect from the close of university business that day on the ground that he had become permanently incapacitated from performing the duties of his office.
On 23 November 1981 the respondent requested the appellant, pursuant to s. 13 of the Judicial Review Act, to furnish him with a statement in writing with respect to the Council's decision _ setting out its findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. On 4 December 1981 the appellant notified the respondent that, as a matter of law, he was not entitled to make the request. The respondent applied to this Court pursuant to para. 13 (4A) (b) of the Judicial Review Act for an order declaring that he was entitled to make the request. The application was heard by a single Judge of this Court who, on 27 April 1982, made an order declaring that the respondent was entitled to make the request. The appellant appeals to this Full Court from that judgment.
The facts are not in dispute. On 9 December 1966 the then Registrar of the Institute of Advanced Studies within the appellant, of which the Research School of Social Sciences forms part, wrote to the respondent offering him appointment to a second Chair in the Department of Political Science effective from 9 December 1966. The letter attached two copies of the conditions of appointment and requested that, if he wished to accept the appointment, he sign one and return it. The conditions of appointment were contained in a document dated 26 February 1963 and headed 'Conditions of Appointment of a Professor, other than a Professor in charge of a Department'. The conditions in their terms were not directed to the respondent in particular; but appear to have been the general conditions used by the appellant for the appointment of a professor in the Institute of Advanced Studies. They dealt with a number of matters including salary, tenure, duties and leave. Those relating to tenure and duties were as follows:-
'2. Tenure
(a) The appointment will be subject to the receipt of a satisfactory medical report following an examination carried out by a physician nominated by the University.
(b) A Professor shall, except where otherwise provided in the conditions of his appointment, hold office until the thirty-first day of December in the year in which he attains the age of 65 years, provided that _
(i) a Professor may retire at any time after reaching the age of 60 years with superannuation benefits in accordance with the University's superannuation scheme;
(ii)the Council may terminate the appointment of, and remove from office, any Professor who has become permanently incapacitated from performing the duties of his office, or who is guilty of misconduct or has become inefficient; but in the case of misconduct or inefficiency only after enquiry and report by a committee appointed by the Council, before which the Professor shall be entitled to appear and, if he desires, to be represented.
(c) A Professor is required to give six months' notice if he wishes to resign his office.
3. Duties
A Professor shall devote the whole of his time to the duties of his office. It shall be the primary duty of a Professor to devote himself to research and the advancement of knowledge in his subject.
He will be responsible to the Head of his Department. It will be expected that he will co-operate with the Head of his Department and with his colleagues in the research work of the Department and of the School as a whole, but consistently with his principle he will not be subject to direction by the Head of his Department in respect of the research work which he will himself carry out and may direct as Professor."
These conditions were signed by the respondent and returned to the Registrar.
A change occurred in the respondent's duties in 1975 when the Council of the appellant approved the establishment of a Centre for Foreign Politics (Western Europe) within the Research School of Social Sciences. The respondent was appointed Head of the Centre. He was informed of this by letter from the appellant dated 14 February 1974 which stated:-
'You will be responsible to the director for the management of the Centre but in other respects the conditions of appointment which you signed on 9 December 1966 will remain unchanged.'
The respondent replied on 17 February 1975 agreeing to these new arrangements.
On or about 16 April 1981 the respondent went on extended sick leave and arrangements were made for him to be examined by the Commonwealth Medical Officer on 8 September 1981. On 7 September the secretary of the appellant wrote to the Commonwealth Medical Officer confirming this appointment and enclosing a curriculum vitae and a statement of the respondent's duties and responsibilities including comments on his work performance. The letter stated:-
'As you will see there has been concern about Professor Burns' academic performance in recent years. Since 16 April 1981 he has also been on extended sick leave. Because of the foregoing the University wishes to know whether Professor Burns has any medical condition such that it is unlikely that he is fully fit to carry out his duties and responsibilities. Details of his sick leave absences are attached and a report from his doctor...will be made available to you prior to the appointment time...I would now be grateful if you would furnish me with a report on whether you consider Professor Burns is fit or unfit for continued employment in his present position and, if you find him unfit, whether he should be granted further sick leave or retired on the grounds of invalidity.'
Prior to the writing of this letter the respondent had said that the list of publications in his curriculum vitae was incomplete, and he was invited to produce to the Commonwealth Medical Officer details of any publications omitted.
The Commonwealth Medical Officer's report, following this examination, stated under the heading 'Prognosis':-
'Not good. He is a seriously ill man'.
She went on to state that she considered the respondent unfit for continued employment and that he should be retired on the grounds of invalidity.
Following receipt of this report the respondent was interviewed by the Vice Chancellor of the appellant on 22 September 1981. There is a dispute as to exactly what was said, but it is sufficient for present purposes to say that the respondent was informed of the Commonwealth Medical Officer's opinion and that the matter would be brought before the Council of the appellant for its decision.
Correspondence then took place between the respondent and the appellant and between the respondent's solicitor and the appellant's solicitor. As a result of this correspondence a decision on his retirement was deferred until the meeting of the Council held on 13 November 1981. His sick leave was extended accordingly.
On 11 November 1981 the respondent wrote to the Registrar of the appellant informing him that an appointment had been made for the respondent to have an electroencephalogram on 23 November through a specialist who had been unable to arrange it for an earlier date. On 12 November he again wrote to the Registrar requesting that the Council or other office holders not determine the matter of his retirement before he had received the report on this electroencephalogram. Copies of these letters were placed before the Council at its meeting on 13 November 1981; but the Council decided to proceed with the consideration of his retirement. The Council at that meeting resolved to terminate his appointment.
As we mentioned earlier, on 23 November 1981 the respondent requested the appellant to furnish a statement in writing relating to its decision in accordance with s. 13 of the Act. On 4 December 1981 the appellant notified him that as a matter of law he was not entitled to make the request.
We turn to the relevant provisions of the Judicial Review Act. Sub-section 13 (1) provides:-
'13 (1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.'
The phrase 'decision to which this Act applies' is defined in s. 3 as follows:-
'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;"
In the same section 'enactment' is defined as follows:-
''enactment' means
(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self Government) Act 1978;
(b) an Ordinance of a Territory other than the Northern Territory;
(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or
(d) a law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act,
and, for the purposes of paragraph (a), (b) or (c), includes a part of an enactment;'
The right to make a request under sub-s. 13 (1) is limited to 'a person who is entitled to make an application under s. 5 in relation to the decision'. Section 5 of the Judicial Review Act entitles a person who is aggrieved by the decision to make the application.
Sub-paragraph 3 (4) (a) (i) provides that a reference to a person aggrieved by a decision includes a reference 'to a person whose interests are adversely affected by the decision'.
The learned primary Judge said that whether the decision in question was a 'decision to which this Act applies' within sub-s. 13 (1) involved determining whether it was 'a decision of an administrative character made...or required to be made (whether in the exercise of a discretion or not) under an enactment...' within the meaning of s. 3. He decided that the Council's decision was a decision of an administrative character made under an enactment namely, the Australian National University Act 1946 ("the University Act"). The appellant challenges these findings on this appeal; but conceded that if the decision was made under the University Act it was a decision of an administrative character. The appellant's contentions were therefore confined to the question whether the decision was made 'under' that Act. The appellant contended before us that the decision of the Council was made, not under the University Act, but under the contract of service between it and the respondent entered into on 9 December 1966. The respondent contended that the fact that the contract of service existed did not deprive the decision of its true character as a decision made under the University Act.
The history of the Judicial Review Act and the part it plays in the context of other Commonwealth legislation relating to Administrative law, in particular the Administrative Appeals Tribunal Act 1975 and the Ombudsman Act 1976, was discussed in Hamblin v. Duffy (1981) 34 A.L.R. 333 at pp. 334 and 335 and need not be repeated.
Commonwealth legislation in the field of administrative law is intended to seek a balance between justice to the individual and efficiency of administration, between private rights and public advantage. The administrative process must be efficient in the sense that Government policy must be implemented effectively. Nevertheless the achievement of that objective must be consistent with fair play to the individual. The community must be satisfied that the administrative process is conducted with due regard to maintaining a balance between the public interest which it advances and the private interest which it disturbs. This legislation was intended to provide remedies for wrongs done to individuals whose interests are adversely affected by administrative decisions.
Under the University Act the appellant consisting of a Council and Convocation and graduate and under-graduate members is established (sub-s. 4 (1) ). It is constituted as a body corporate with perpetual succession and a common seal and is capable of suing and being sued, of holding property and generally doing all things incidental or appertaining to a body corporate (sub-s. 4 (2) ). Any contract that, if made between private persons, would be by law required to be in writing under seal may be made on behalf of the appellant in writing under its common seal (sub-s. 26A (1) ). Any other contract may be made on behalf of the appellant by any person acting with the authority of the Council express or implied (sub-s. 26A (2) ).
The Council is not only expressed to be part of the appellant (sub-s. 4 (1) ) but is its governing authority (s. 10).
Section 23 is the basic provision relating to the powers of the Council. It provides:-
'Subject to this Act and the Statutes, the Council may from time to time appoint deans, professors, lecturers, examiners and other officers and servants of the University, and shall have the entire control and management of the affairs and concerns of the University, and may act in all matters concerning the University in such manner as appears to it best calculated to promote the interests of the University.'
The control and management by the Council of the property and contracts of the appellant are referred to in ss. 26 and 26A.
The Council is empowered from time to time to make, alter and repeal Statutes with respect to all or any of a large number of matters (sub-s. 27 (1) ); for example, the management, good government and discipline of the University (para. 27 (1) (a)). The most relevant paragraph of sub-s. 27 (1) for present purposes is paragraph (g) namely:-
'(g)The number, stipend, manner of appointment and dismissal of deans, professors, lecturers, examiners and other officers and servants of the University;'
The Council has made a number of Statutes pursuant to the powers conferred by s. 27 but has made none in respect of the matters mentioned in paragraph (g).
When every Statute is approved by the Council it is to be sealed with the common seal and transmitted for the approval of the Governor-General. Upon being so approved it is notified in the Gazette and thereupon has the full force of law. A copy of every such Statute must be laid before each House of the Parliament within fifteen sitting days of that House after notification of the Statute in the Gazette (s. 28).
As no Statute has been made by the Council pursuant to para. 27 (1) (g) relating to the manner of appointment and dismissal of professors, the power of the Council to appoint the respondent a professor is that conferred by s. 23.
With these general observations in mind we turn to the question whether the decision of the Council to dismiss the respondent was made 'under an enactment'.
We agree with the primary Judge that the issue in this case is one of construing the Judicial Review Act to determine whether the respondent is entitled to reasons under s. 13, and that cases such as University Council of Vidyodaya, University of Ceylon v. Silva (1965) 1 W.L.R. 77; Malloch v. Aberdeen Corporation (1971) 1 W.L.R. 1578, to which we would add Ridge v. Baldwin (1964) A.C. 40, do not assist in considering this question.
The difficulty in the present case does not lie in the definition of the expression 'under an enactment'. We agree with Fox J. who said in Evans v. Freimann (supra) (at p. 436) that the word 'under', in the context of the Judicial Review Act, connotes 'in pursuance of ' or 'under the authority of'. See also R. v. Clyne (1941) V.L.R. 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.
We agree with the primary Judge when he said:-
'The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power to exercise will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made 'under an enactment' or otherwise."
In one sense every decision of the Council may be said to be made 'under' the University Act namely, in the sense of in pursuance of or under its authority. Section 23 is, in effect, the charter of the Council. It confers the widest powers upon the Council including the power of appointing professors and other University staff. We have already cited the section so shall not repeat its provisions. Plainly s. 23 is the source of the Council's power to enter into contracts of engagement with professors and other University staff. If the Council makes Statutes with respect to the 'manner of appointment and dismissal' of professors (para. 27 (1) (g)) those Statutes arguably may also constitute a source of the Council's authority to engage and dismiss professors; but as no such by-laws have yet been made we need not pause to consider that provision further on this point.
Although s. 23 confers no power in express terms to remove or suspend professors and others, such power arises from the more general powers conferred by the section on the Council after the express reference to the powers of appointment. In our opinion the control and management of the affairs of the appellant must include the suspension or removal of its deans, professors and others.
Notwithstanding that s. 23 was the source of the Council's power to appoint and dismiss the respondent in 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2 (b) (ii) of the conditions of appointment which formed part of the respondent's contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dismissed and lays down no incidents of a professor's employment.
In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 empowered the Council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract might be said to be acting under s. 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.
If either party had not fulfilled his or its obligations under the contract then he or it would be susceptible to an action for damages for breach of contract. In the events that happened in this case the respondent may be entitled to sue the appellant for damages for wrongful dismissal or other breach of the contract. Among the issues that would arise would be whether he had become permanently incapacitated from performing the duties of his office. The determination of that issue may involve disputed questions of fact and the construction of the contract including the expression in condition 2 (b) (ii) '...who has become permanently incapacitated from performing the duties of his office...'.
Our reference to the possible right of the respondent to sue for damages is merely to illustrate the point that the various rights and duties of the parties to the contract of engagement made in 1966, including the Council's power of dismissal,may be enforced in courts of competent jurisdiction as rights and duties arising under the contract and not otherwise. We do not say that simply because the respondent may be entitled to propound a claim for damages at common law for breach of his contract of engagement (we say nothing of course as to the prospects of success) he is unable or disentitled to apply for a review of the Council's decision to dismiss him. Section 10 of the Judicial Review Act provides that the rights conferred by ss. 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review. Whether a common law claim for damages for breach of contract, for wrongful dismissal or otherwise, falls within the scope of s. 10 (see sub-s. 10 (3) in particular) is perhaps open to some question and we say nothing about it. The existence of another remedy may be a matter to be considered when this Court is called upon to decide what relief it should grant under s. 16 in a case where application has been made for an order of review. The present application is under s. 13. The question is whether the respondent was or was not entitled to make his request for reasons.
If the making of a contract is authorised by an enactment, and such a contract, when made, in fact provides for the making of certain decisions, it does not necessarily follow that those decisions, when made, are not made under the enactment. This must depend on the language and operation of the particular enactment and contract. For example, special protection is extended to public servants and servants of statutory authorities in Australia who may be adversely affected in relation to promotion, disciplinary action or dismissal. The Public Service Act 1902 and the Broadcasting and Television Act 1942 are two Acts which contain detailed provisions for the creation, abolition and reclassification of positions in their respective services, for transfer, promotion, retirement and dismissal of officers, for the establishment of Appeal Boards and Boards of Inquiry to review disciplinary action, and for Promotion Appeal Boards or Committees to hear appeals by officers against particular promotions within the relevant service. Decisions made by those Boards or Committees under the authority conferred by sections of the Public Service Act or the Broadcasting and Television Act may be susceptible of review under the Judicial Review Act. Hamblin v. Duffy (supra) was a case where it was decided that a decision of the Promotions Appeal Board constituted by the Broadcasting and Television Act disallowing an appeal by an officer against the provisional promotion of another officer to a vacant position in the service of the Australian Broadcasting Commission could be reviewed under the Judicial Review Act.
If the Australian Broadcasting Commission entered into a contract of employment with a person which provided for the circumstances in which that person could be promoted simply by restating the relevant provisions of the Broadcasting and Television Act covering the promotion of officers in the service of the Commission, decisions in respect of the promotion of that person may be made not only under the contract but also under the Broadcasting and Television Act itself and therefore answer the description of decisions made under that Act.
It would be directly relevant to the present case if the Council of the appellant made a Statute stipulating the circumstances in which professors could be dismissed, assuming this to be a valid exercise of the power conferred by para. 27 (1) (g). If the Council subsequently entered into a contract of engagement with a professor and either incorporated by reference the relevant provisions of the Statute relating to dismissal or repeated them in the same terms in the contract itself, it may be that a decision to dismiss the professor would be made under the Statute; but this would depend on the terms of both the Statute and the contract.
Counsel for the appellant relied on Schedule 2 to the Judicial Review Act as giving some indication that decisions made in exercise of contractual rights may also be decisions made 'under an enactment' for the purposes of that Act. Reliance was placed on Evans v. Freimann (supra) where Fox J. said (at p. 434):-
'Schedules 1 and 2 to the Act are a helpful guide to the intended scope of the Act, because they provide a basis for inferences. Particularly is this so with regard to Sch. 2 which relates to decisions which are exempt from the operation of one section of the Act (s. 13), which gives a right to aggrieved persons to obtain information and reasons from the person or body which made the decision under attack.'
The primary Judge in the present case said:-
'Schedule 2 of the Act by excluding certain decisions from the application of s. 13 gives some idea of the scope and operation which the draftsman thought the section might have.'
We agree with these statements, but in our opinion the Schedules must be viewed with some caution in considering whether they provide a reliable guide to the scope and operation of the Judicial Review Act. Some of the decisions enumerated in the Schedules may have been included simply for more abundant caution by the draftsman especially in view of the very general terms in which the definitions of the expression 'decision to which this Act applies' and the word 'enactment' are cast (s. 3).
Paragraph (k) of Schedule 2 was relied on by the appellant. It excludes the decisions of various authorities from the operation of s. 13 of the Judicial Review Act 'in respect of their commercial activities'. The authorities include the Australian Wheat Board, the Australian Wool Corporation, the Australian National Airlines Commission, the Commonwealth Banking Corporation and the Commonwealth Trading Bank of Australia. It may be correct that the phrase 'decisions...in respect of their commercial activities' is sufficiently wide to include decisions made by those authorities in exercise of contractual rights. It may also be correct that the exclusion of the decisions mentioned in para. (k) supports the argument that decisions by a statutory authority in exercise of the general powers conferred on it are decisions made 'under an enactment' for the purposes of the Judicial Review Act notwithstanding that they are also decisions under contracts. We do not find it necessary to decide these questions because we accept the correctness of the proposition that the same decision may be made both under a contract and 'under an enactment' for the purposes of the Judicial Review Act. The difficulty lies, not with the acceptance of that proposition, but in deciding whether it applies in a particular case. This must depend on the circumstances of each case.
The critical findings of the primary Judge were made by him in these terms:-
'...if a statutory authority makes a decision by which a person is aggrieved, which is made under broad statutory powers but which lies at the very heart of those functions for which the body was established by statute, the Courts should be slow to find that such a decision, if administrative in character, is not made 'under the enactment' simply because the occasion for the exercise of the power arises out of a contractual situation...But it would be wrong, in my view, to exclude from the operation of the Act fundamental decisions of the University (a body created by statute) through its Council about matters lying at the very heart of its existence and essential to the fulfilment of the basic function for which the University was set up by Parliament. The establishment of the University as an autonomous statutory body independent of Government is supported by many provisions in the University Act. This emphasises the scope and importance of the powers it exercises.
In this case, the Council of the University appointed the applicant a professor in exercise of the powers conferred on it by ss. 10 and 23 of the University Act. Section 23 recognises the significance of the power to appoint deans and professors by placing it first among the powers which the Council is to exercise subject to the Act and the Statutes. This is not surprising because such appointments are so fundamental to the fulfilment of the University's functions under s. 6.'
We cannot accept that to determine whether a decision is made 'under an enactment' it is legitimate to distinguish between decisions about matters lying at the very heart of the existence of the appellant or its Council and other matters. The powers vested in the Council by s. 23 are in substance to do whatever is necessary to control and manage the activities of the appellant. It is difficult to conceive of wider or more general powers. It is true that deans and professors are mentioned as the first objects of the power of appointment conferred by that section; but we attach no importance to that circumstance. We see no reason for distinguishing between decisions of the Council of the appellant relating to professors and decisions relating to its other servants. A University cannot function without its teaching staff _ whether they be deans, professors, readers, lecturers or tutors. Nor can it function without its other officers or servants _ whether registrars, librarians, groundsmen or security officers.
Where is the line to be drawn to determine those who perform essential functions and those who do not? If deans and professors perform essential functions, do readers, lecturers and tutors perform them also? What of the appellant's librarians or registrars? Many other examples spring readily to mind; but we need not mention them. In our opinion the particular position held by a member of the appellant's staff is not itself determinative of the question whether a decision of the Council as the governing body of the appellant was made under the University Act. Our conclusion may be different if the University Act or Statutes made by the Council thereunder gave special statutory status, privilege or protection to people who held high positions or office in the appellant; but they do not do this.
The primary Judge said that the word 'administrative' carries with it the notion of 'managing, executing or carrying into effect'. Thus if any officer or servant of the appellant could show a ground for a review of a decision by theppellant or its Council dismissing him or otherwise affecting him adversely in his employment he may be entitled to apply for an order of review under the Judicial Review Act. Mindful of the far-reaching consequences of this conclusion his Honour drew the line between decisions about matters fundamental to the appellant's existence and other decisions. But if that line of demarcation is impermissible, as we think it is, it follows that a vast array of decisions relating to the employment of the appellant's officers and servants, and any other decisions of a managerial or administrative nature, may be susceptible of review under the Judicial Review Act simply because the Council's charter (s. 23) empowers it, in effect, to do whatever is necessary to run the affairs of the appellant. This serves to illustrate to our mind the correctness of the conclusion on the facts of this case that the Council's decision to dismiss the respondent was made under the contract of engagement of 1966 and not under the powers conferred by s. 23 of the University Act.
Finally, we agree entirely with the primary Judge when he said:-
'It is vital to the fulfilment of the University's functions as an independent educational institution committed to the search for truth that the tenure of its professorial staff be free from arbitrary attack. I can think of no principle more basic to the existence of a University in a free society.'
However, to decide in the present case that the Council's decision to dismiss the respondent was made 'under' the University Act rests on too frail a branch, _ s. 23. Parliament, if it wished, could have laid down essential procedural requirements to be observed before professors are removed from office or prescribed incidents of the employment of professors or otherwise specified particular rights or privileges to be enjoyed by them. But Parliament did not do this. Nor has the Council made any Statutes touching these matters.
In our opinion the Council's decision to dismiss the respondent was made under the contract between the parties and not otherwise.
We would allow the appeal. The respondent should pay the appellant's costs of the appeal and of the proceedings below.
In this matter I have had the advantage of reading the judgment to be delivered by Bowen C.J. and Lockhart J. I agree with their conclusions and, generally, with their reasons. There are, however, some matters which I wish to mention.Reliance was placed by counsel for the respondent upon the provisions of s.33(4) of the Acts Interpretation Act 1901. It provides that where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to remove or suspend any person appointed. It was said that the section was here applicable in relation to the power conferred by s.23 of the Australian National University Act 1946 whereby the Council of the University might from time to time appoint deans, professors, lecturers, examiners and other officers and servants of the university.
For reasons later to be mentioned I think there is a real question as to whether there is not, in the appellant's Act, the indication of a contrary intention. However, it seems to me that the determination of that question would be of little consequence for the outcome of this case. That is because of the wide power of management conferred on the Council by s.23 of the appellant's Act, particularly the words, "shall have the entire control and management of the affairs and concerns of the University". Those words would themselves confer a power to remove or suspend from office, quite apart from any operation which should be accorded s.33(4) of the Acts Interpretation Act.
Be that as it may, the essential question is whether the decision was made under, that is pursuant to, an enactment or not. In a sense everything which a statutory body or authority does or decides to do is under or puruant to its incorporating enactment. But for it the body has no existance and, but for statutory powers conferred on it or its governing body, it cannot act. But the question is one of the proper construction of the Judicial Review Act ("the Act"). I do not consider that the legislature intended every decision of the governing body of a statutory authority to be within the purview of the Act.
On the other hand I have not found it easy to reach a conclusion on what the touchstone or guiding principle for determining which cases are within and which cases are outside it free from difficulty. For reasons shortly to be given I am of opinion that this case is clearly outside the purview of the Act. That being so, it seems to me to ber undesirable to attempt to define with any precision the limits of the operation of the Act. The Act is still comparatively new. The field is a developing one. New Factual situations are arising for consideration with increasing frequency. It is preferable to let the limites of the jurisdiction be worked out over a period with the aid of the experience of the great variety of cases which will require consideration.
In the present case the contract was made by the appellant with the respondent. Presumably, although there is no evidence, the contract was made on the appellant's behalf either by the Council or by a delegate of the Council; it seems unlikely that the appellant could, from a practical point of view, act otherwise than by its Council. The contract provided the sum total of the rights and obligations of the parties; as mentioned by Bowen C.J. and Lockhart J. no Statutes pursuant to s.27 of the appellant's Act have been made. In the view of the Council, acting on behalf of the appellant, the contract should by determined because, in the language used by it, the respondent "has been permanently incapacitated from performing the duties of his office". The Council has purported to terminate the contract in reliance upon this provision. Its decision to do so is plainly a decision under the contract. Only in the most indirect way could it be said that its decision was also under an enactment.
Examples are not always helpful and cannot be determinative of a problem such as this. But I cannot help thinking that the present case is no different from one where the appellant, having entered into a contract for the acquisition of goods or services, e.g. a building contract, decided to terminate the contract pursuant to some provision agreed upon in that behalf. I would not have thought that the legislature intended the Act to apply in such a case. I say what I have not unmindful of the provisions of the Schedule to the Act to which reference is made in the other judgment to be published in this matter.
In the end the question will be determined, in a given case, by an evaluation or judgment of its own circumstances. Some cases will be clearly on one side of the line or the other. My assessment of the present case is that it plainly falls outside the purview of the Act.
As I understand the approach of the learned primary judge, it was that, at least in relation to a member of its senior academic staff, a university such as the appellant ought not to be regarded as taking such a drastic step as terminating his employment upon the basis only of what was to be found in the relevant contract of employment. The decision involved such fundamental considerations relating to academic life and freedom that it lay at the heart of the purposes and objects for which the institution was established and of the principles for which it stood. Accordingly, the decision did not rest upon the power conferred by the contract. That only enabled the procedural course which the appellant might embark upon in orderto achieve its object once the fundamental decision had been made.
There is no evidence of how the Council proceeded to its decision. No minutes of any of its relevant meetings were produced. But let it be assumed that the most fundamental discussion took place concerning the question of whether the Council would or would not, or should or should not, act so as to bring the employment to an end; the Council came eventually to exercise the power which it believes, in the circumstances of this case, is conferred upon it by the contract. Its purported decision pursuant to that power is the decision immediately in question. That was a decision under (i.e. pursuant to) the contract. In my respectful opinion that conclusion does not affect or make inroads into principles and tenets concerning academic freedom and security of academic tenure. These are large and important matters, not only for the academic community, but for the community generally, and I would say nothing to the contrary of that proposition. But the contract spells out the circumstances in which the respondent's employment may be brought to an end. If the parties do not act within its terms one or other will be guilty of a breach. the contract was entered into by the respondent freely and voluntarily. It records, in what I believe is a not uncommon form, the bargain which was made. The Council of the appellant has purported to act puruant to it and not otherwise. If it is mistaken in its view that it is entitled so to do, its purported termination of the contract will be of no effect.
I emphasise that I appreciate that the discussion leading to the decision may have been a fundamental one. The Council has many responsibilities and duties. It owes obligations to the community, to other entities, to private persons additional to the respondent and to the ideals for which it stands. If, and I emphasise that this may not be this case at all, a professor were recreant to his duties or incapable of performing them, whether due to illness or other circumstances, the Council may have to consider its obligations to the University itself, to other members of the staff, to the public purse and to the principles which govern its existence. It may not find the task of balancing the various considerations to which these duties give rise and of arriving at a decision free from difficulty. But the fact that that is so, and may have been so in this case, does not to my mind warrant the conclusion that what was done here, that is the actual decision to dismiss the respondent, was done under or pursuant to the enactment by which the appellant is constituted rather than under or pursuant to the contract.
It follows, in my opinion, that this appeal should be allowed. Before I conclude, however, there are some other matters on the periphery of the case which I wish to mention. Firstly, the fact that an applicant for relief under the Act such as the respondent here may have other remedies could not be determinative of the outcome of an application. Nevertheless I think it should be noted that this is not a case like some other cases in the field of adminstrative law where, but for the Judicial Review Act, a person in the situation of the respondent would have no remedy. If the appellat has acted in breach of its contractual obligations, he has the right to proceed against it under the general law seeking, if it is appropriate, a declaration of right, damages and possibly an injunction. It is true that under the general law he is not entitled at this stage to demand reasons, but if he proceeds he will be entitled, not only to pleadings, but also to particulars, discovery and answers to appropriate interrogatories.
Then I wish to say something more concerning s.33(4) of the Acts Interpretation Act. My reason for doubting its application to s.23 of the appellant's Act arises principally because of the presence of s.27 therein. It confers express power upon the Council to make, alter and repeal Statutes with respect to a number of matters including (paragraph (1)(g) the manner of appointment and dismissal of deans and professors. Such Statutes are to have the force of law (s.28(1)). The Council therefore has power to make a Statute having the force of law providing for the manner of dismissal of, amongst others, deans and professors. If the power to remove from office provided for in s.33(4) of the Acts Interpretation Act were intended to be imported into s.23 of the appellant's Act, the Council would not be empowered to include in any Statute any provision which would fetter the absolute power conferred upon it by the section. The words of paragraph 27(1)(g) seem to me to make this an unlikely intention on the part of the draftsman.
It is true that there may in some cases be a difference between removal from office and dismissal from employment. It is possible that an employee might be removed from a particular office and yet remain in his employment. That could well happen in the case of a dean, but I find it difficult to see how it could do so in the case of a professor. These considerations seems to me to disclose a contrary intention and to warrant the conclusion that powers of dismissal and removal which the appellant by it Council has derive from the wide power of management conferred upon the Council rather than by any application of s.33(4) of the Acts Interpretation Act. But the matter was not fully argued and I express no concluded view.
I emphasise that in the present case the decision to dismiss was made pursuant to the express power in that regard contained in the contract itself and only in the most indirect way pursuant to powers contained in the appellant's Act. The contract itself was, of course, made pursuant to that Act.
Finally I wish to make it clear that my conclusion in this matter may have been different if there had been made a Statute providing for dismissal or termination of employment. If there had been such a Statute, depending upon its terms, there may have been a sound argument to the effect that the dismissal was under such Statute and thus under an enactment. That could have been so whether the decision, strictly speaking, was made under a contract which imported the provisions of the Statute, or whether it was made pursuant to the Statute alone. The position may then have been no different from that which exists in cases under Public Service employment legislation which usually contains express provisions dealing with the circumstances in which a variety of public servants may be appointed, promoted, disciplined and dismissed. Although such employees have contracts of service with the Commonwealth or with a particular statutory authority, which contracts may import the provisions of the relevant enactment, one would still conclude, as has been done in many case, that challenged decisions were made under the enactment, as well as under the contract and were thus open to review under the Act. In such cases, just as in the present, the question of whether the power provided for in s.33(4) of the Acts Interpretation Act is imported into the relevant enactment may pose a difficult question of construction. In those cases the question may have more significance than it has in this one.
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