Australian National University v Lewins

This appeal involves a challenge by Frank William Lewins to a decision of the Australian National University (ANU) not to promote him to the position of Reader. The primary judge of the Federal Court had declared that Mr Lewins was entitled to request from the ANU a statement of the reasons for its decision, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The ANU appealed against this declaration. The Full Court allowed the appeal and set aside the orders made by the primary judge. The Full Court held that the statement of policy and procedures for promotion, which set out the criteria and procedures for promotion, was not an "instrument" made "under" the Australian National University Act 1991 (Cth) (ANU Act) and therefore not an "enactment" under s.3 of the ADJR Act. The Full Court found that the decision not to recommend Mr Lewins for promotion was not a decision to which the ADJR Act applied. The Full Court found 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. The Full Court held that the statement on Policy and Procedures did not have the force of law under s.52 of the ANU Act and that it was not an instrument made under an Act. The Full Court held that the statement was not given the capacity to affect legal rights and obligations by the ANU Act and could acquire it only from contract or by the operation of some other principle of private law. The Full Court held that if the capacity to bind was indeed derived from contract or some other private law source, then it was not an instrument made under an Act. The Full Court held that the appeal should be allowed and that the orders made by the primary judge should be set aside.