Australian National University v Lewins

[1996] FCA 594

C A T C H W O R D S

JUDICIAL REVIEW - whether applicant entitled to request from respondent a statement of the reasons for a decision not to promote the applicant - s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether refusal to recommend promotion a "decision" under the ADJR Act - whether "statement on Policy and Procedures" an "instrument" made "under" the Australian National University Act 1991 (Cth) and therefore an "enactment" under s.3 of the ADJR Act - whether decision has "force and effect" by nature of empowering enactment - doctrine of "legitimate expectation".

THE AUSTRALIAN NATIONAL UNIVERSITY ACT 1991 (CTH) - ss.5, 6, 8 & 9 - publication of policies and procedures to be adopted in relation to promotions ("statement on Policy and Procedures") - criteria - promotion not recommended and so lapsed - s.50 ANU Act - whether exclusively provides for making of instruments which affect legal relations.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian National University Act 1991 (Cth)
Health Insurance Commission Act 1973 (Cth)
Judiciary Act 1903 (Cth)
Reserve Bank Act 1959 (Cth)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian National University v. Burns (1982) 64 FLR 166
Burns v Australian National University (1982) 40 ALR 707
CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329
Chittick v Ackland (1984) 1 FCR 254
Cole v Cunningham (1983) 49 ALR 123
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375
Director-General of Social Services v Hales (1983) 47 ALR 281
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 69 ALJR 778
Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Hutchins v Deputy Commissioner of Taxation (unreported, Black CJ, Lockhart & Spender JJ, 27 March 1996)
Lamb v Moss (1983) 76 FLR 296
Mair v Bartholomew (1991) 104 ALR 537
Meek v Port of London Authority [1918] 2 Ch 96
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829
Thorby v Goldberg (1964) 112 CLR 597

THE AUSTRALIAN NATIONAL UNIVERSITY v FRANK WILLIAM LEWINS  No ACT G 74 of 1995   

Davies, Kiefel & Lehane JJ.
18 July 1996
Sydney (heard in Canberra)  

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
AUSTRALIAN CAPITAL TERRITORY                )
  )
DISTRICT REGISTRY  )  No ACT G 74 of 1995
  )  
GENERAL DIVISION  )     

On appeal from a single judge of the Federal Court of Australia

BETWEEN:  THE AUSTRALIAN NATIONAL UNIVERSITY

Appellant

AND:  FRANK WILLIAM LEWINS

Respondent

Coram:                 Davies, Kiefel & Lehane JJ.
Date:  18 July 1996         
Place:                   Sydney (heard in Canberra)

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.      The appeal be allowed.

2.His Honour's orders be set aside insofar as his Honour declared that Mr Lewins was entitled to request from the Australian National University a statement of the reasons for its decision not to promote Mr Lewins to the position of Reader. 

3.In lieu thereof, an order be substituted that the application to the Court be dismissed. 

4.The Court makes no order as to the costs of the appeal or as to the costs below.

NOTE:        Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
AUSTRALIAN CAPITAL TERRITORY  )
  )
DISTRICT REGISTRY  )  No ACT G 74 of 1995
  )  
GENERAL DIVISION  )     

On appeal from a single judge of the Federal Court of Australia

BETWEEN:          THE AUSTRALIAN NATIONAL UNIVERSITY

Appellant

AND:                   FRANK WILLIAM LEWINS

Respondent

Coram:        Davies, Kiefel & Lehane JJ.
Date:          18 July 1996
Place:         Sydney (heard in Canberra)

REASONS FOR JUDGMENT

Davies J:  This is an appeal from orders made by a single judge of the Court in proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). His Honour declared that the applicant, Frank William Lewins, was entitled to request from the respondent, the Australian National University ("the University"), a statement of the reasons for a decision not to promote the applicant to the position of Reader. That declaration was made under s.13 of the ADJR Act.

The issues in the case have many similarities with those which were considered in Chittick v Ackland (1984) 1 FCR 254 and in Mair v Bartholomew (1991) 104 ALR 537. His Honour followed the approach there adopted. However, there are differences between the present and those earlier cases and it is to these differences that attention must be directed.

The relevant provisions of the Australian National University Act 1991 (Cth) ("the ANU Act") read:-

"5. (1)The functions of the University include the following:

(a)advancing and transmitting knowledge, by undertaking research and teaching of the highest quality;

...

6.  (1)  Subject to Division 2 of Part 3, the University has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions.

(2)The powers of the University under subsection (1) include, but are not limited to, the following powers:

...

(k)to employ staff;

...

(r)to do anything incidental to any of its powers.

...

8.The governing authority of the University is the Council.

1. (1)Subject to this Act and the Statutes, the Council has the entire control and management of the University.

(2)     The Council is to act in all matters concerning the University in the way it thinks will best promote the interests of the University.

(3)     The powers of the Council include, but are not limited to, the power to appoint persons (whether members of the staff of the University or not) to positions of responsibility within the University."

Mr Lewins was appointed, in January 1978, to the position of Lecturer at the University.  In January 1980, his tenure was extended until he reached the age of 65 years, and he was promoted to the position of Senior Lecturer in 1985.  In 1994, he applied to be promoted to the position of Reader.

From as far back as 1975, the University has published documents which set out the procedures to be adopted and the criteria to be applied in relation to promotions and variations in salary.  On 25 February 1994, there was published a document setting out the policies and procedures to be adopted in relation to "Promotion to Academic Level D (Reader)" ("the statement on Policy & Procedures").  The statement on Policy & Procedures set out in detail the procedures and criteria to be adopted.  The following is sufficient to give an outline of the general nature of the statement on Policy & Procedures:-

"1.      ANNUAL PROCEDURES

1.1In March, the Assistant Secretary, Appointments and Academic Staffing notifies the deans and heads of centres and the Deputy Chair of the Institute of the Arts of the procedures contained in this paper and invites eligible staff to apply.

1.2Faculties send their recommendations for promotion to the Assistant Secretary, Appointments and Academic Staffing no later than 1 July.

1.3The Promotions Committee submits its recommendations to a meeting of the Board of The Faculties no later than November.

1.4Individual cases may be considered at any time if the dean and the Pro Vice-Chancellor and Chair, Board of The Faculties believe this to be warranted.

...

3.       CRITERIA FOR PROMOTION TO ACADEMIC LEVEL D (READER)

3.1GENERAL

Applications will be assessed on:

.Teaching

.Scholarship including research, scholarly professional practice, visual and performing arts professional practice

.Administration

.Community and outreach activities

Promotion to level D is a recognition of outstanding performance according to the Board's criteria.  There should be strong evidence of notable and continuing achievement in both scholarship and teaching.

When applying the criteria for promotion, the committees will take into account the statements of general standard, duties and skillbase described in the level D research-and-teaching Position Classification Standards.  A high level of performance in those responsibilities set out in the Position Classification Standards for level C will be expected.

Attachment A:  Record of activity, lists examples of the kind of information which may be included in support of an application.

...

3.6Weightings

The weightings attached to the criteria for promotion to level D are:

.Not less than 30% of the weighting to be for assessment of contribution to teaching;

.Not less than 30% of the weighting to be for assessment of contribution to scholarship, research, scholarly professional practice and visual and performing arts professional practice;

.Not less than 10% of the weighting to be for contribution to the administrative work and committee work of the department, faculty and University generally;

.Not more than 10% of the weighting to be for activities within the general community and relating to the candidate's profession, which reflects favourably on the University;

.Not more than 30% of the weighting to be for administration and outreach combined.

Within these parameters, the applicant should be free to select the weightings to apply to consideration of the application.  If no selection is made, the Committee applies the following weightings: 45% teaching performance, 45% research achievement and 10% administrative and outreach work;

In exceptional cases the Committee may accept a case for variation of the weightings listed above.

4.       PROCEDURES WITHIN FACULTIES/CENTRES AND THE INSTITUTE OF THE ARTS

4.1Faculty/Institute of the Arts Promotions Committee.  Each year the Pro Vice-Chancellor and Chair, Board of The Faculties, on the recommendation of the dean/Deputy Chair,/ITA, appoints promotion committees for each faculty, group of faculties, ITA consisting of the dean/Deputy Chair/ITA or his/her nominee as chair and three or four other senior members.  The quorum for meetings will be three.  There will be a joint promotions committee of the Faculties of Arts and Asian Studies which will also consider applications from the CCE and CEDAM.

...

5.       THE PROMOTIONS COMMITTEE OF THE BOARD

5.1Composition

.1The Committee consists of the Vice-Chancellor or the Deputy Vice-Chancellor or the nominee of the Vice Chancellor (Chair), and the following members appointed by the Board of the Faculties: two persons at level E and one at level D from the Faculties, and one other member at level E from the Institute of Advanced Studies who has some experience of promotion procedures.  One further person at level D or above is appointed by the Board, Institute of the Arts.  Normal University requirements on gender balance will be observed.  The term of office of members is three years with appointments made to provide both continuity and change.

...

5.6Recommendations.  The Committee forwards the names of the candidates recommended for promotion to the Board of The Faculties for endorsement.  ...

...

6.       APPROVALS

On the endorsement of the Board ... promotions to level D are recommended to Council for approval.

7.       DATE OF EFFECT OF PROMOTION

Promotion to level D takes effect from 23 July in the year in which the case for promotion is received by the Promotions Committee."

As can be seen, the ordinary procedure for promotion required the lodging of an application, its consideration by the Promotions Committee of the Faculty, a further consideration by the Promotions Committee of the Board of the Faculties, further consideration by the Board of the Faculties and, finally, consideration by the Council of the University of such applications as had received the endorsement of the Board of the Faculties.  An application which failed at any stage was not further considered.

In Mr Lewin's case, his application was recommended by the Promotions Committee of his Faculty but it was not recommended by the Promotions Committee of the Board of the Faculties.  Accordingly, his application lapsed and was not considered by the Board of the Faculties or by the Council of the University. 

Section 13 of the ADJR Act provides, inter alia:-

"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.

...

(3)  Where a person to whom a request is made under sub-section (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request -

(a)give to the second-mentioned person notice in writing of his opinion; or

(b)apply to the Court under sub-section (4A) for an order declaring that the person who made the request was not entitled to make the request.

...

(4A)The Court may, on the application of -

(a)a person to whom a request is made under sub-section (1); or

(b)a person who has received a notice under sub-section (3);

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request."

Mr Lewins sought a statement of the reasons for the decision of the Promotions Committee of the Board of the Faculties. That request was refused on the ground that Mr Lewins was not entitled to make the request. Mr Lewins then applied to the Court under s.13(4A) of the ADJR Act. 

It is not in dispute in the present case that the relevant act, the refusal to recommend that Mr Lewins' application for appointment as Reader be accepted, had the necessary characteristics of a "decision", provided it was made under an enactment.  Thus, in Director-General of Social Services v Hales (1983) 47 ALR 281, Lockhart J said at 306:-

"A pronouncement which alters rights or imposes liabilities is readily classified as a `decision', but the word has a wider scope.  It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia (1980) 30 ALR 165 at 169-70; 3 ALD 113 at 117."

See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where, at 338, Mason CJ approved the decision in Lamb v Moss (1983) 76 FLR 296 that a finding by a Magistrate that a prima facie case had been established and that he would proceed with committal proceedings was a reviewable decision. Here, where the decision of the Promotions Committee effectively brought Mr Lewins' application for promotion to the level of Reader to an end, it not having been recommended, there was a sufficient element of finality or conclusiveness for the Committee's act to constitute a reviewable decision.

It is also not in dispute that the Committee's decision was made "under" the statement on Policy and Procedures.  In Bond at 337, Mason CJ said:-

"... a reviewable `decision' is one for which provision is made by or under a statute."

Here, the decision was one for which provision was made by the statement.

The principal issue debated is whether the statement on Policy and Procedures was an "instrument" made "under" the ANU Act and, therefore, an "enactment" for the purposes of s.3 of the ADJR Act which provides, inter alia:-

"3. (1)In this Act, unless the contrary intention appears:

...

`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;

...

`enactment' means, subject to section 3A:

(a)an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978;

...

(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or

..."

Counsel are agreed that the approach adopted by Lockhart and Morling JJ in Chittick v Ackland should be followed. At 262-3, their Honours rejected the view that an "instrument" must be a document of a legislative character in the nature of a rule, regulation or by-law. Their Honours went on to say that an "instrument" must have two qualities, it must be made "under an enactment", as the definition in s.3(1) of the ADJR Act requires, and it must have the capacity to affect legal rights and obligations.  On the latter point, their Honours said at 264:-

"As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations.  It seems to us that if a document has such  capacity it should be regarded as an instrument for the purposes of that Act."

Mr Leslie Katz SC, who appeared for the University, submitted that the statement on Policy and Procedures was not an instrument as the ANU Act specifically provided for the making of statutes which would affect legal relations.  The ANU Act provides, inter alia:-

"50. (1)The Council may make Statutes, not inconsistent with this Act, prescribing matters:

(a)required or permitted by this Act to be prescribed by the Statutes; or

(b)necessary or convenient to be prescribed by the Statutes for carrying out or giving effect to this Act.

(2)  The powers of the Council under subsection (1) include, but are not limited to, the power to make Statutes with respect to the following matters:

...

(k)the appointment of persons to positions of responsibility within the University, the terms and conditions of such appointments and the termination of such appointments;

...

52.(1)  When a Statute has been made by the Council:

(a)it must be sealed with the seal of the University; and

(b)the Chancellor must transmit the Statute to the Governor-General for approval.

(2)Where a Statute has been approved by the Governor-General:

(a)the Council must cause the Statute to be notified in the Gazette; and

(b)the Statute has the force of law from the day on which it is so notified.

(3)The notification of a Statute in the Gazette must specify the place at which copies of the Statute may be bought.

(4)  A copy of a Statute must be laid before each House of the Parliament within 15 sitting days of that House after the Statute is notified in the Gazette.

(5)The production of:

(a)a copy of a Statute under the seal of the University; or

(b)a document purporting to be a copy of a Statute and to have been printed by the Government Printer;

is, in all proceedings, sufficient evidence of the Statute.

..."

Mr Katz submitted that, if the statement on Policy and Procedures purported to affect legal relationships, it was inconsistent with the above provisions and was of no effect.  Mr Katz submitted that the ANU Act provided the means by which instruments having the force of law would be brought into being, namely by the making of a Statute which would become effective on the approval of the Governor-General. 

Mr Katz referred to the principle stated by Gavan Duffy CJ & Dixon J in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, where their Honours said at 7:-

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

This principle has been cited with approval in many cases, including in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 69 ALJR 778 at 783-4.

However, I see nothing unlawful in the statement on Policy and Procedures.  Certainly, the matters dealt with in the statement could have been the subject of a Statute, but they were not. 

It was submitted by Mr Katz that the statement on Policy and Procedures concerned promotion, not matters of discipline, transfer, redeployment or the like and  that the case fell within the ratio of Australian National University v. Burns (1982) 64 FLR 166, in which it was held that a decision to terminate the appointment of a member of the staff of the Australian National University was a decision taken under the contract of employment, not under the powers conferred by the then s.23 of the Australian National University Act 1946 (Cth). Mr Katz submitted that Mr Lewins had no right to be appointed Reader at the Australian National University and that, were he to be so appointed, his appointment would constitute a new contract between him and the University: see Meek v Port of London Authority [1918] 2 Ch 96 at 99-100.

However, the issue is a little different from that considered in Australian National University v Burns, where there was no document equivalent to the statement on Policy and Procedures.  In that case, the relevant document, which merely set out certain general conditions of employment, formed part of the contract of engagement.  At 174, Bowen CJ & Lockhart J said:-

"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. 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."

It is not alleged that the statement on Policy and Procedures was contractual in effect.  It was imposed by the unilateral act of the University, albeit it was presumably a document negotiated between the University and the relevant union.  Nevertheless, the procedures for promotion having been formalised and specified in such a detailed manner, it can hardly be doubted that members of staff had at least an expectation that they would be dealt with in accordance with the document. 

The learned trial Judge referred to the doctrine of "legitimate expectation".  His Honour said:-

"By publishing and distributing the Statement the University held out to all staff members at the time of their appointment that as part of their employment the University would provide access to a system of peer-assessment that would allow academic staff to apply for higher status or promotion within their tenured appointments.  As long as such a system is administered by the University it creates an expectation that each staff member who has applied for promotion will have the application considered in the manner provided for in the Statement.  That is to say, discriminatory or differential application of the principles of the Statement would be contrary to the legitimate expectation that flows from the Statement and would breach a duty to act fairly arising out of that expectation.  Such a breach by a party acting under statutory authority is amenable to judicial review under the general law.  (See: Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 A.C. 375 per Lord Fraser at 401, Lord Diplock at 412 and Lord Roskill at 419-420.) Accordingly, it may be said that the Statement is a document capable of affecting legal rights or obligations."

His Honour's approach finds support in the recent decision of the High Court of Australia in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, where it was held by Mason CJ, Deane, Toohey & Gaudron JJ, McHugh J dissenting, that the Executive's ratification of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation that statutory discretions would be exercised in conformity with the Convention, notwithstanding that the Convention itself was not a part of Australian law.

However, it is not sufficient for Mr Lewins' success in this case that the statement on Policy and Procedures raised a legitimate expectation that it would be complied with or that there may be principles of law such as legitimate expectation or estoppel or contract which would entitle him to enforce it.  There must be an instrument made "under" an Act, in this case the ANU Act. 

In Chittick v Ackland, there was an express power conferred upon the Health Insurance Commission to determine, with the approval of the Public Service Board, the terms and conditions of employment of its officers.  At 264, Lockhart & Morling JJ said that relevant power in s.28(2) of the Health Insurance Commission Act 1973 (Cth) gave to the subject document greater significance than that which attaches to an ordinary contractual document.  The position was similar in Mair v Bartholomew, where s.66(3) of the Reserve Bank Act 1959 (Cth) provided that, subject to that Act and its regulations, officers were to hold office on such terms and conditions as the Bank determined. Such a provision is not expressed in the ANU Act, save in ss.50 and 52, which power was not exercised.

The ADJR Act is concerned with decisions which have force and effect by virtue of an enactment.  Therefore it is necessary to trace the force and effect of the instrument under which the subject decision was made to a statutory base.  It must appear that, through the chain of an enactment, an instrument made thereunder and a decision made under the instrument, the subject decision has force and effect by virtue of an empowering enactment.  See the discussion in General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 and Hutchins v Deputy Commissioner of Taxation (unreported, Black CJ, Lockhart & Spender JJ, 27 March 1996).  As Black CJ said in Hutchins:-

"A decision that is neither expressly authorised or required, nor impliedly required, by an enactment but which has as its sole source of authority general powers of administration conferred by an enactment is unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment."

As was established by Australian National University v Burns, the general powers of administration conferred by the ANU Act are not sufficient for Mr Lewins' purposes.

Had the statement on Policy and Procedures been issued by way of Statute, to which s.52 of the ANU Act applied, decisions taken under it would have had statutory force and effect and would have been reviewable under the ADJR Act. But the statement on Policy and Procedures was not so issued. So the binding effect of the statement, insofar as it was binding, did not derive from statute. Decisions made under it therefore were not made under an "enactment", as defined in s.3(i) of the ADJR Act.

It is not sufficient, in my opinion, that the principle of legitimate expectation is a principle of judicial review and can be enforced by the ADJR Act, which applies to decisions made under the ANU Act.  I do not accept that the necessary link between a "decision" and an "enactment" can be supplied by the ADJR Act itself. 

In my opinion, the subject decision was not a decision to which the ADJR Act applies.

For these reasons, I would allow the appeal and would set aside his Honour's orders insofar as his Honour declared that Mr Lewins was entitled to request from the Australian National University a statement of the reasons for its decision not to promote Mr Lewins to the position of Reader.  In lieu thereof, I would substitute an order that the application to the Court be dismissed.  The applicant does not seek an order as to costs or an order disturbing the order as to costs made below.

I certify that this and the 14 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  18 July 1996

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION   No. ACT G 74 of 1995

On appeal from a Single Judge of the Federal Court of Australia

BETWEEN:THE AUSTRALIAN NATIONAL UNIVERSITY

Appellant

AND:FRANK WILLIAM LEWINS

Respondent

BEFORE:Davies, Kiefel and Lehane JJ

PLACE:  Sydney (heard in Canberra)

DATE:18 July 1996

REASONS FOR JUDGMENT

KIEFEL J

I am in agreement with Lehane J that the appeal should be allowed, with no order as to costs, for the reasons given by his Honour.  I wish to add only these few observations with respect to the qualification of the document entitled "Statement of Policy Procedures for Promotion to Academic Level D (Reader)" as an instrument, within the meaning of the Administrative Decisions (Judicial Review) Act 1977, by reference to the decision in Chittick v Ackland(1984) 1 FCR 254. 

His Honour, the primary Judge, held that the Statement was a document capable of affecting legal rights and obligations.  This had been suggested as a general, though not universal, requirement of an instrument for the purposes of the Judicial Review Act by Lockhart and Morling JJ in Chittick v Ackland, 264. Their Honours' statement to
this effect followed a reference to the purpose of the Judicial Review Act being to confer rights on citizens aggrieved by the exercise of statutory powers, as the passage their Honours cited from Burns v Australian National University(1982) 40 ALR 707, 716-7 shows. 

The Statement here was a document dealing with matters of policy relating to promotion, for example eligibility for promotion;  and with procedures to be undertaken with respect to applications.  That does not in my view qualify it as capable of affecting legal rights and obligations in the sense referred to by their Honours.  The Statement does not impact upon the interests of the applicant even if one extends that to benefits or privileges held or which might accrue to him, as the term "legitimate expectations" in its original sense referred.  The decision in Council of Civil Service Unions v Minister for the Civil Service[1985] AC 375, referred to by his Honour the primary Judge, is a case in point.  There the applicants for review had a benefit in the form of membership in and representation by unions but which they might no longer be able to enjoy because the Minister's instruction sought to change that state of affairs.  And the determinations in Chittick v Ackland, as Lehane J has explained, had the effect of unilaterally altering terms and conditions of employment. 

The term "legitimate expectation" has a secondary meaning (or as Toohey J said in Minister of State for Immigration and Ethnic Affairs v Teoh(1995) 183 CLR 273, 299, there is another "broad category"), its original meaning being extended to cases where there was some undertaking or commitment that the decision-maker would follow a
particular procedure (McHugh J, Teoh311).  This approach provides a platform for the application of the rules of natural justice:  see for example Cole v Cunningham (1983) 49 ALR 123.  It is in this sense only that his Honour has here referred to there being a "legitimate expectation".  But whatever influence the Statement had here in the formation of such an expectation it is not, in my view, the effect of which their Honours spoke in Chittick v Ackland.  Nor, in my view, is it likely that the creation of any such expectation was brought about by the Statement alone.  Although the facts were not gone into in detail in argument, the production of an earlier version of the Statement concerning promotions with the letter of offer of appointment must have played some part in the creation of any understanding. 

I certify that this and the preceding two pages are a true copy of the reasons for judgment of the Honourable Justice Kiefel.

Associate

Date: 18 July 1996 

IN THE FEDERAL COURT OF AUSTRALIA              )
AUSTRALIAN CAPITAL TERRITORY  )
DISTRICT REGISTRY  )
GENERAL DIVISION  ) No. ACT G 74 OF 1995

ON APPEAL FROM A SINGLE JUDGE
  OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:THE AUSTRALIAN NATIONAL UNIVERSITY

Appellant

AND:FRANK WILLIAM LEWINS

Respondent

CORAM:Davies, Kiefel and Lehane JJ

PLACE:Sydney (heard in Canberra)

DATE:18 July 1996

REASONS FOR JUDGMENT

LEHANE J: The respondent is a senior lecturer in the Department of Sociology of the Australian National University (the University). In accordance with procedures established by the University and notified to its staff, he applied for promotion to the position of Reader. His application was unsuccessful. He sought a declaration that the University was required, by s 13 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), to provide a statement of reasons for the decision which resulted in the failure of his application. He sought also an order that the University provide such a statement of reasons and (relying on s 39B of the Judiciary Act 1903), an "order of Mandamus" directed to the University requiring it to provide a statement of reasons. It was common ground that the only substantive issue was whether the respondent was entitled to a statement of reasons under the ADJR Act. A judge of the Court (Lee J) made a declaratory order that the appellant was entitled under subs 13(1) of the ADJR Act to request that the University furnish to the respondent a statement of the reasons for its decision not to promote him to the position of Reader. The University appeals against his Honour's decision.

Facts
The relevant facts are not in contention.  My statement of them which follows is taken substantially from his Honour's judgment.

By letter dated 22 November 1977 the University offered the respondent (and he accepted) appointment as a lecturer in the Department of Sociology.  The letter set out certain of the terms of the offer; others were contained in printed conditions of appointment, a copy of which was attached to the letter.  The initial term of the appointment was "for a period not exceeding three years", but there was provision, on its expiry, for reappointment with tenure - i.e., for a term expiring at the end of the calendar year in which the respondent would attain the age of 65.  There were also attached to the letter copies of statements on reappointment procedures, procedures and guiding principles on promotions and rules concerning study leave; those statements were not explicitly incorporated in the terms of the offer.  The respondent was reappointed, with tenure, from 26 January 1980 and was promoted to Senior Lecturer with effect from 1 January 1985.

I have mentioned that one of the documents sent to the respondent with his offer of appointment as a lecturer was a statement of procedures and guiding principles on promotions.  That statement has been revised, and new versions have been published by the University, on several occasions since then.  The version of it with which this case is concerned (and which I shall call the promotion statement) was published early in 1994 and applied during that year.  Extensive extracts from it are set out in his Honour's judgment and it is not necessary, I think, to set them out again.  The promotion statement commences by saying that it comprises a notification to deans and other senior officers of the University of the procedures for promotion of academic staff and it then invites eligible staff to apply for promotion having regard to criteria, and in accordance with the procedures, which the promotion statement sets out in detail.

The promotion statement deals with the criteria on which applications will be assessed under four separate heads: teaching, scholarship (including research, scholarly professional practice and visual and performing arts professional practice), administration and "community and outreach activities".  It permits an applicant, within limits which it specifies, to nominate the "weighting" to be given, for the purposes of his or her application, to each criterion.  It makes it clear that, for promotion to the position of Reader, the standards required in relation to teaching and scholarship are high and will be rigorously applied.  It then deals with procedures.  The applicant is to submit an application in a particular form accompanied by specified material; at least three referees are to be nominated.  The application is then considered, first by a faculty promotion committee which makes a recommendation to the Promotions Committee of the Board of The Faculties.  That Committee is responsible for ensuring that reasonable equality of standards, in
relation to promotions, is maintained throughout the various faculties.  It considers the applications recommended to it and in turn is required to forward to the Board of The Faculties, for endorsement, the names of the candidates whom it recommends for promotion.  On endorsement by that Board, the successful applications proceed to the Council of the University for final approval.

In May 1994 the appellant applied, in accordance with those procedures, for promotion to Reader.  He was informed that the promotions committee of his Faculty had recommended his promotion.  In November 1994, however, he was told that the promotions committee of the Board of The Faculties had not recommended that he be promoted: that meant that his application failed.

In December 1994 the appellant's solicitors wrote to the University requesting a statement of reasons under s 13 of the ADJR Act. The University declined the request. The appellant then commenced these proceedings.

Statutory Background

Subsection 13(1) of the ADJR Act 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.

With certain exceptions which do not matter for present purposes, a decision to which s 13 applies is one to which the ADJR Act applies: that is (subs 3(1)) a "decision of an administrative character made ... under an enactment". A person entitled to make an application under s 5 in relation to a decision is a person who is aggrieved by the decision. There is no doubt or dispute that, if the decision not to promote the appellant is one to which the Act applies, the appellant is a person aggrieved by the decision.

There is also no doubt or dispute that the decision not to recommend the appellant for promotion (which in practical terms amounted to a decision that he would not be promoted) was a decision of an administrative character.  The issue between the parties is, thus, whether it was a decision made under an enactment.  "Enactment" means, among other things (subs 3(1)) an Act (again, with certain exceptions that do not matter) or "an instrument (including rules, regulations or by‑laws) made under such an Act".

The University owes its existence to an Act - the Australian National University Act 1991 (the ANU Act) - and derives its functions and powers from that Act. The University was established by an earlier Act, the Australian National University Act 1946; but the ANU Act continued the University in existence as a body corporate and has been the University's governing statute since its commencement on 1 January 1992.

As such statutes commonly do, the ANU Act assigns to the University a number of functions. These are set out in s 5 as follows:

5.(1)The functions of the University include the following:

(a)advancing and transmitting knowledge, by undertaking research and teaching of the highest quality;

(b)encouraging, and providing facilities for, research and postgraduate study, both generally and in relation to subjects of national importance to Australia;

(c)providing facilities and courses for higher education generally, including education appropriate to professional and other occupations, for students from within Australia and overseas;

(d)providing facilities and courses at higher education level and other levels in the visual and performing arts, and, in so doing, promoting the highest standards of practice in those fields;

(e)awarding and conferring degrees, diplomas and certificates in its own right or jointly with other institutions, as determined by the Council;

(f)providing opportunities for persons, including those who already have post‑secondary qualifications, to obtain higher education qualifications;

(g)engaging in extension activities.

(2)In the performance of its functions, the University must pay attention to its national and international roles and to the needs of the Australian Capital Territory and the surrounding regions.

Subsection 6(1) then gives the University power to "do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions".  Subsection (2) tells us that those powers include, but are not limited to, a list of particular powers including powers to enter into contracts, to employ staff and to do anything incidental to any of its powers.

Section 8 of the ANU Act provides that the governing authority of the University is the Council; subs 9(1) gives the Council, subject to the ANU Act and the Statutes, the entire control and management of the University. The making of Statutes is authorised by s 50; that section provides that the Council may make Statutes, not inconsistent with the ANU Act, prescribing various matters including the following:

(j)the employment of members of staff of the University, including the terms and conditions of such employment and the termination of such employment;

(k)the appointment of persons to positions of responsibility within the University, the terms and conditions of such appointments and the termination of such appointments.

Statutes have (s 52) the force of law, but only when they have been made and notified in the manner which the ANU Act requires: that is, they are made by the Council, must be sealed with the University's seal, transmitted to the Governor‑General for approval and, upon approval, notified in the Gazette.  After notification they must be laid before each House of the Parliament.

No Statutes have been made concerning the employment or promotion of staff. The promotion statement does not have the force of law under s 52: it was promulgated simply under the wide powers of the Council in relation to the control and management of the University.

The decision at first instance; contentions; reasons

There are, in principle, two bases on which it might be said that the decision with which this case is concerned was one made under an enactment. One is that it is properly to be regarded as one made under the ANU Act itself; the other is that the promotion statement is an instrument of the kind referred to in the definition of "enactment" in subs 3(1) of the ADJR Act and that the decision was made under that instrument. It was on the latter basis that his Honour held in favour of the appellant. His Honour held that the decision not to recommend the applicant for promotion was a decision provided for by the promotion statement and might therefore be said to have been made under it. On the question whether the statement was an "instrument", his Honour held, applying the decision of the Full Court in Chittick v Ackland (1984) 1 FCR 254 at 262 - 264, that such an instrument has two essential characteristics: that it owes its force or effect to the terms of an Act (in this case the ANU Act) and that it has the capacity to affect legal rights and obligations. He then held that the promulgation of the promotion statement was no mere administrative act under a general or incidental power: the promotion statement stood as a declaration by the University to its staff that there would be a system of promotion and directed how applications for promotion would be dealt with; and its publication
was designed to encourage the development, maintenance and renovation of the teaching and scholarship skills of the staff employed by the University, that being central to the functions with the performance of which the University was charged. It might be seen accordingly as part of the means by which the University sought to perform that function and thus to have had a sufficiently direct connection with the ANU Act to enable it to be characterised as being made under the ANU Act.

His Honour then held that the promotion statement had the capacity, in the relevant sense, to affect legal rights and obligations.  This was so because the promotion statement, a comprehensive document of general application, was intended to be accepted by the staff of the University as establishing a system for the assessment of academic status and the provision of access to promotions and salary increments: thus it was more than a mere statement of policy but established a procedure of substantial importance to staff with the capacity to have considerable impact upon the reputation of individual staff members and carried with it a duty, on the part of the University, to act fairly and justly.  By publishing and distributing the promotion statement the University held out to staff members, at the time of their appointment, that they would have access to such a system; and the existence of the system created an expectation that each staff member who applied for promotion would have the application dealt with in accordance with the promotion statement: thus, discriminatory or differential application of the principles in the promotion statement would be contrary to the legitimate expectation flowing from it; and to act in a discriminatory or differential way in relation to an application would be contrary to
that legitimate expectation and thus would breach a duty to act fairly arising out of it, that breach being in turn amenable to judicial review under the general law: Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 per Lord Fraser at 401, Lord Diplock at 412 and Lord Roskill at 419‑420. Accordingly, his Honour held that it might be said that the statement was a document capable of affecting legal rights or obligations.

In this Court, as well as supporting his Honour's decision that the statement was an instrument made under an Act, counsel for the respondent argued that the decision might alternatively be seen as one made directly under the ANU Act. He contended that para 6(2)(k) of the ANU Act (which confers power "to employ staff") is more than a mere general administrative power, "employment" connoting more than the mere engagement of staff but what counsel described as an ongoing relationship involving a power, on the part of the University, to determine the terms and conditions of employment of the staff it employs.

I shall consider later in these reasons the legal effect of the promotion statement, particularly the extent to which it can be said to have "mandatory" effect.  For present purposes, however, a decision is "made" under an Act if it is "a decision which a statute requires or authorises" or "one for which provision is made by or under a statute": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336, 337 per Mason CJ. In CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329 Neaves J accepted (at 333, 337) that a decision meets that test only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect. It is clear, I think, that the general power to employ staff does not satisfy either limb of a test so expressed. That conclusion is required equally, I think, by the recent unreported decision of the Full Court in Hutchins v Deputy Commissioner of Taxation, 27 March 1996.

The question whether the promotion statement is properly to be described as an instrument made under an Act is considerably more difficult.  The commencing point is the decision of the Full Court in Chittick v Ackland (1984) 1 FCR 254. That case concerned the Health Insurance Commission established under the Health Insurance Commission Act 1973.  That Act established the Commission; s 28 provided as follows:

28(1)Subject to this section, the Commission may appoint such officers and engage such employees as it thinks necessary for the purposes of this Act.

(2)The terms and conditions of employment (other than in respect of matters provided for by this Act) of persons appointed or engaged under subs. (1) shall be as determined by the Commission with the approval of the Public Service Board.

The Commission, with the approval of the Public Service Board, made a determination of the terms and conditions of employment of persons appointed or engaged by the Commission.  In purported exercise of its powers under that determination, the Commission first suspended and then dismissed an employee.  The
question was whether those decisions were reviewable under the ADJR Act. The Court held that they were.

Jenkinson J held that the decisions were made directly under the Act.  The majority (Lockhart and Morling JJ), however, held that the determination of terms and conditions was an instrument made under the Act and that the decisions were made under that instrument.  Their Honours held, at 262, 263, that an instrument of either a legislative or an administrative character may be an instrument under an Act; and, at 263, that a document may be an instrument made under an Act if, first, it is made "under" the Act, in the sense of being made "in pursuance of" or "under the authority of" the Act and if, secondly, it is a document under which decisions of an administrative character may be made.  Their Honours then held that those two characteristics by themselves were insufficient: an additional quality was required.  After sounding a "cautionary note" about the danger inherent in seeking to expound definitively in one judgment, rather than progressively, the meaning of the words in question their Honours continued (at 264):

As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations.  It seems to us that if a document has such capacity it should be regarded as an instrument for the purposes of that Act.

Their Honours held that subs 28(2) gave the determination of terms and conditions a significance greater than that which attaches to an ordinary contractual document.  The power to determine terms and conditions applied not only at the time of engagement of an employee but throughout employment by the Commission: the subsection empowered the Commission (with the approval of the Public Service Board) unilaterally to change the conditions on which its employees had been engaged: thus (at 265):

... a document which is the formal expression of a determination made under s. 28(2) is different in character from a document embodying other decisions of the Commission.  For example, a decision taken under s. 28(1) to engage staff may, and probably will, find expression in a document, being a letter offering employment.  But such a document would not have the inherent capacity to affect rights or obligations.  The document would have no effect in law unless and until the offer of employment contained in it was accepted.

In our opinion the Conditions of Employment determined by the Commission do have the capacity to affect the rights and obligations of the Commission's staff.

That decision was followed in Mair v Bartholomew (1991) 104 ALR 537 (Davies J). That case had to do with an unsuccessful application for promotion. The applicant was an officer of the Reserve Bank of Australia; that Bank was established under the Reserve Bank Act 1959, s 66 of which provided:

66(1)The Bank may appoint such officers as are necessary for the purposes of this Act.

(2)The officers appointed under this Part shall constitute the Reserve Bank Service.

(3)Subject to this Part and to the regulations, officers hold office on such terms and conditions as the Bank determines.

Davies J held that subs (3) had an effect similar to that of subs 28(2) of the Health Insurance Commission Act. In other words, it empowered the Bank to determine terms and conditions of employment which would bind not just those who might later be engaged, and in whose contracts of employment the terms might be incorporated, but also those previously engaged, and remaining in employment, on other terms. Therefore, the terms and conditions relating to promotions, included in general terms and conditions promulgated by the Bank under s 66, were binding on employees. The terms and conditions so determined were accordingly properly to be described as an instrument made under an Act.

The primary Judge relied on the authority of those two decisions, as did counsel for the respondent before us.  Clearly there are similarities between the facts of the present case and those of Chittick and Mair. Here, as in each of those cases, the employer is a body corporate established by and deriving its functions and powers from a Commonwealth Act. Here, as there, a decision was made in purported application of detailed rules promulgated by the employer as to an important aspect of the relationship between itself and its employees. But there is, in my view, a crucial difference. In this case, the relevant statutory power (in para 6(2)(k) of the ANU Act) is simply one "to employ staff". Obviously that, taken together with the general power to contract, empowers the University to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the University unilaterally to vary its
contracts with its employees or to impose on them, without their consent, conditions which legally bind them - except, of course, to the extent that contracts of employment may themselves empower the University to make determinations which will be binding on the employees concerned (see, e.g., Thorby v Goldberg (1964) 112 CLR 597).

Thus, unlike the terms and conditions with which Chittick was concerned, I do not think that the statement in question here is one to which the Act gives the capacity to affect legal rights and obligations - any more than a similar document issued by a private employer would have that capacity.  Certainly it is true that the promotion statement is an important document which, as his Honour put it, establishes a procedure of substantial importance to staff of the University; equally it is true that by distributing the statement the University held out to members of its staff that they would have access to a system of peer‑assessment that would allow academic staff to apply for higher status or promotion within their tenured appointments.  It can be accepted, too, that such a system may create an expectation in staff members that if they apply for promotion they will have their applications considered fairly and in the manner which the statement contemplates.

I have mentioned his Honour's reference to that expectation.  At p 22 of his judgment, his Honour said this:

That is to say, discriminatory or differential application of the principles of the Statement would be contrary to the legitimate expectation that flows
from the Statement and would breach a duty to act fairly arising out of that expectation.  Such a breach by a party acting under statutory authority is amenable to judicial review under the general law.  (See: Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 375 per Lord Fraser at 401, Lord Diplock at 412 and Lord Roskill at 419‑420.)  Accordingly, it may be said that the Statement is a document capable of affecting legal rights or obligations.

But, with respect, the legitimate expectation with which Council of Civil Service Unions was concerned was not one which in some way gave legal efficacy to a decision or to an instrument under which a decision was made: it was one which arose in relation to decisions which, if properly made, would by operation of statute or the prerogative have mandatory force and gave rise to a requirement that decision‑makers accord procedural fairness to persons whose interests the decisions would affect.  An expectation of that kind does not, I think, assist an argument that, in Chittick terms, a document is of such a kind that it has the capacity to affect legal rights and obligations. If, as I think, the statement is not given that capacity by the ANU Act it can acquire it only from contract or by the operation of some other principle of private law. But if its capacity to bind is indeed derived from contract or some other private law source, then it is not an instrument made under an Act: Australian National University v Burns (1982) 43 ALR 25.

It is, I think, unnecessary to analyse further the questions whether the promotion statement has, as a matter of private law, any binding effect and, if so, what is the source of that effect.  Speaking for myself, and old fashioned as it may seem, I am attracted by the contractual analysis suggested by senior counsel for the University: a successful application for promotion results in a novation (Meek v Port of London Authority [1918] 2 Ch 96). It is perhaps worth adding, though strictly it is irrelevant, that if the original offer of employment had, rather than simply enclosing the current rules about promotion, incorporated as a term of the offer the rules as they then existed and any other rules which might be substituted for them, there could have been little doubt that the proximate source of the authority to make the decision was the contract so that there could be no question of requiring reasons, or seeking redress, under the ADJR Act. It would strike me as more than a little odd if, by omitting to take that step in its contracts of employment, the University gave the statement greater force and a capacity to attract remedies otherwise unavailable.

I have mentioned the power to make Statutes, including Statutes dealing with terms of employment. Counsel for the University relied on the existence of that power as a strong statutory indication that, a means being expressly provided for the making of rules having binding force (and one requiring particular procedures to be followed), the ANU Act should not be construed as enabling rules having legally binding force to be made by other, less formal means. He cited, in support of that argument, David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 69 ALJR 778 at 783, 784; PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829 at 841 and Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678. In my view, that argument has force. As will be apparent, however, I do not think that a conclusion favourable to the University depends upon it.
Conclusion

For those reasons the appeal in my view should be allowed.  In accordance with the arrangements of which counsel informed us, his Honour's order as to costs should not be disturbed and there should be no order as to the costs of the appeal.

I certify that this and the preceding 17 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated: 18 July 1996

Heard:  11 April 1996

Place Delivered:                 Sydney

Place Heard:  Canberra

Decision:  18 July 1996

Appearances:  Mr L S Katz SC of counsel instructed by Mallesons Stephen Jaques appeared for the appellant.

Mr C M Erskine of counsel instructed by Porter Pilkinton & Bradfield appeared for the respondent.