Georgiadis v The Canberra Institute of Technology
[2020] ACAT 38
•3 June 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GEORGIADIS v THE CANBERRA INSTITUTE OF TECHNOLOGY (Administrative Review) [2020] ACAT 38
AT 96/2019
Catchwords: ADMINISTRATIVE REVIEW – decision to suspend CIT student from participating in a course or program – statutory interpretation – whether a reviewable decision – whether decision was made under a relevant section of the Act – whether decision was a refusal to admit to a course of study or instruction or a refusal to admit to assessment – meaning of “refuse to admit” – meaning of “a course of study or instruction” – meaning of “assessment” – no Tribunal jurisdiction to review – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 88
Canberra Institute of Technology Act 1987 ss 9, 13, 14, 14A,
20, 22
Human Rights Act 2004 s 30
Legislation Act 2001, ss 126, 138, 139, 141
Cases cited:Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529
Australian National University v Burns [1982] FCA 191
Coleman v Power [2004] HCA 39
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Gindy v Chief Minister and Ors [2011] ACAT 67
R v Moodie; Ex parte Mithen (1997) 17 ALR 219
Carson and Anor and Employment Services Regulatory Authority [1997] AATA 805
Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255
Re Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
Re Surf Air and Civil Aviation Authority [1991] AATA 50
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R v Fearnside [2009] ACTCA 3
List of
Texts/Papers cited: The Australian Concise Oxford Dictionary (2008, 4th edition)
Macquarie Dictionary (2017, 7th edition)Pearce, Administrative Appeals Tribunal (4th edition, 2015)
Pearce, Statutory Interpretation in Australia (9th edition, 2019)
Tribunal: Presidential Member G McCarthy
Date of Orders: 3 June 2020
Date of Reasons for Decision: 3 June 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL AT 96/2019
BETWEEN:
STAVROS GEORGIADIS
Applicant
AND
THE CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE:3 June 2020
ORDER
The Tribunal orders that:
1.The application dated 21 October 2019, as amended on 4 December 2019, is dismissed for lack of jurisdiction.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
1.The applicant, Mr Georgiadis, is a student at the Canberra Institute of Technology (the CIT). At the commencement of 2019, Mr Georgiadis was enrolled in a program of study leading to an award of a Certificate IV in Screen and Media (the Certificate).
2.At the commencement of Semester 2, 2019, Mr Georgiadis was enrolled in two subjects that formed part of the program of study leading to an award of the Certificate. He was participating in activities in relation to those two subjects.
3.On 30 July 2019, after commencement of Semester 2, Mr Georgiadis was involved in an incident that allegedly caused other students to become anxious and upset.
4.On 14 August 2019, after investigating the incident, the Director of the CIT’s College of Technology & Design (the Director) informed Mr Georgiadis that she had found there to be “sufficient evidence to substantiate the claim that [he] had breached the CIT Student Code of Conduct and a Student Behaviour Agreement [that he had] signed on 4 April 2019.”
5.By email of that date, the Director advised Mr Georgiadis as follows:
As a consequence of this incident, under the Director’s delegation, you have been excluded from all media and music programs for the remainder of the semester effective 14th August 2019. A hold will be placed on your account effective 16th August.
6.The implication of the email seemed to be that on 14 August 2019 the Director, exercising a power delegated to her, decided to exclude Mr Georgiadis from all media and music programs for the remainder of Semester 2. However, whether she or someone else made the decision is not clear. The email merely reports that Mr Georgiadis had been excluded. The written submissions on behalf of the CIT[1] did not clarify the matter. They state that the Director “advised [Mr Georgiadis] of the CIT’s decision to exclude him” (emphasis added), without stating who made the decision. Nevertheless, it appears from subsequent correspondence from “Street Law”[2] to the Executive Director, Corporate Services, CIT (the Executive Director), and his reply, that the Director made the decision. This is consistent with the CIT’s “Unsatisfactory Student Behaviour Procedures” (the Procedures), Stage 4, paragraph 8, which is headed “Exclusion Delegations”. The first ‘dot point’ provides:
Directors can exclude a student from a particular learning activity/class for a period up to end of semester. Can also exclude a student from all CIT locations for the rest of the semester for a stage 4 incident.
[1] Respondent’s submissions on jurisdiction dated 27 November 2019, paragraph 5
[2] Street Law is a program of Canberra Community Law Ltd
7.The opening paragraph of the Procedures states they have been developed in conjunction with the Unsatisfactory Student Behaviour Policy (the Policy). Paragraph 3.11 of the Policy, third ‘dot point’, is similarly consistent with the Director holding a delegation to exclude Mr Georgiadis for the remainder of Semester 2, 2019. It provides:
the Director may exclude a student from a particular class for a period such as the rest of the semester where the disciplinary action is stage four due to serious threats or an act of violence; this may include exclusion from all CIT premises/programs until the end of the semester
8.How the Procedures and Policy interact is far from clear, but both state that the Director was empowered to exclude Mr Georgiadis from all media and music programs for the remainder of Semester 2. I will proceed on the basis that the Director made the decision. I will refer to it in my reasons as “the Decision.”
9.Referring again to the Director’s email, as I understood it, a ‘hold’ entailed Mr Georgiadis remaining enrolled in his program of study and in the subjects he was undertaking at the time of the Decision, but suspended from participating in his studies for the remainder of Semester 2.
10.Mr Georgiadis appealed from the Director’s Decision to the Executive Director. By letter dated 17 October 2019, the Executive Director informed Mr Georgiadis that he had decided to uphold the Director’s Decision and gave his reasons for doing so.
11.By application dated 21 October 2019, amended on 4 December 2019, Mr Georgiadis applied to the Tribunal for review of the Executive Director’s decision. By way of a preliminary application, the CIT submitted that the application must be dismissed because the Tribunal does not have jurisdiction to hear it. For the following reasons, I have concluded that the CIT’s submission is correct.
The legislation
12.The Tribunal is created under statute.[3] It does not have any general jurisdiction. Any power it exercises or order it makes must be derived from statute. It can review an administrative decision only when it is empowered under statute to do so.[4] It cannot adopt a “flexible” approach to the interpretation of statutory provisions conferring jurisdiction.[5] It cannot create jurisdiction by following “a discretionary approach” to statutory interpretation.[6] It cannot, as Mr Georgiadis submitted, review a decision because the person seeking the review believes it is wrong or because it has a significant impact on the person.
[3] ACT Civil and Administrative Tribunal Act 2008, section 88
[4] ACT Civil and Administrative Tribunal Act 2008, section 9; Gindy v Chief Minister and Ors [2011] ACAT 67 at [13] – [14]; Pearce, Administrative Appeals Tribunal (4th edition, 2015) at paragraphs 3.1, 3.2; Re Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
[5] Carson and Anor and Employment Services Regulatory Authority [1997] AATA 805 [8]
[6] Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255 at 260
13.Mr Georgiadis submitted that the Executive Director’s decision (or, more accurately, the substantive decision made by the Director) was made under section 13(1)(a) or, in the alternative, section 13(1)(b) of the Canberra Institute of Technology Act 1987 (the Act). He submitted that he is entitled to apply to the Tribunal for review of the Decision under section 22(a) of the Act, which provides as follows:
22 Application for review
The following may apply to the ACAT for review of a reviewable decision:
(a) an entity mentioned in table 20, column 4 in relation to the decision;
(b) ..
14.‘Reviewable decision’ is defined in section 20 of the Act as follows:
20 Meaning of reviewable decision—pt 9
In this part:
reviewable decision means a decision mentioned in table 20, column 3, under a provision of this Act mentioned in column 2 in relation to the decision.
Table 20 Reviewable decisions
column 1
item
column 2
section
column 3
decision
column 4
entity
1 13 (1) (a) refuse to admit person to course of study or instruction of CIT person refused admission 2 13 (1) (b) refuse to admit person to assessment by CIT person refused assessment 3 14 (1) refuse to issue award to person person refused award 15.With reference to columns 2 and 3 of table 20, Mr Georgiadis submitted that the Director made a decision under section 13(1)(a) to “refuse to admit” him to a course of study or instruction or, in the alternative, a decision under section 13(1)(b) to “refuse to admit” him to assessment by the CIT. With reference to column 4 of table 20, Mr Georgiadis submitted that, as the person who had been “refused admission” or “refused assessment”, he is entitled under section 22(a) of the Act to apply to the Tribunal for review of the Decision.
16.Section 13 provides as follows:
13 Decisions on admission to CIT
(1) The CIT may admit a person to—
(a)a course of study or instruction of the CIT; or
(b)an assessment by the CIT.
(2) In deciding whether to admit a person under subsection (1), the CIT must consider any policies of the CIT board for admission to the CIT.
17.Ms Piesse, solicitor, who appeared for the CIT, submitted that the Decision was not a reviewable decision, as defined in section 20, but properly accepted (and I agree) that if the Decision is a reviewable decision, Mr Georgiadis is entitled to apply for review of it.
18.Arising from the parties’ submissions, the questions for determination were:
(a)referring to column 2, table 20, was the Decision made under section 13(1)(a) or, in the alternative, section 13(1)(b) of the Act; and
(b)if so, referring to column 3, table 20, was it a decision to “refuse to admit” Mr Georgiadis to a “course of study or instruction” or, in the alternative, a decision to “refuse to admit” him to “assessment” by the CIT.
19.For the Decision to be a reviewable decision, both questions needed to be answered in the affirmative.
Section 13(1)(a) - submissions
20.Ms Piesse focused on the second question (i.e. whether it was a decision of the kind described in table 20, column 3). She submitted that the Decision was not a decision to refuse to admit Mr Georgiadis to a course of study or instruction because, at the time of the Decision, he was already admitted to the “course of study” leading to an award of the Certificate and to the two subjects in which he was enrolled for Semester 2. She submitted that the Director’s decision to exclude Mr Georgiadis from further attendance at classes for the remainder of Semester 2, subsequent to the CIT admitting him, should be characterised as a decision to suspend his enrolment for a temporary period (i.e. until the end of Semester 2, 2019), not a decision to refuse to admit Mr Georgiadis to a course of study or instruction. It was therefore not a reviewable decision.
21.Mr Georgiadis submitted in reply that it was incorrect to focus upon his existing admission and enrolment. He submitted that for the purpose of interpreting sections 13(1) and 20 of the Act, I should rely on the definition of ‘admit’ in the Australian Concise Oxford Dictionary, quoted below. He then submitted that to ‘refuse to admit’ is to ‘exclude’. He submitted that the antonym of the verb ‘admit’ is ‘exclude’, in the sense that the two words are “two sides of the same coin”. He relied on the Oxford Dictionary of Synonyms and Antonyms that relevantly defines:
(a)the verb ‘admit’ to mean “3 he was admitted to the college; let in, accept, receive, initiate, take on. OPPOSITES deny, exclude”; and
(b)the verb “exclude” to mean “1 women were excluded from the club: keep out, deny access to, shut out, bar, ban, prohibit OPPOSITES admit, include, allow for”.
22.Mr Georgiadis submitted that the Decision to refuse him entrance and access to existing classes, and to new classes, and so to deny his ability to progress through his units of study was to exclude him from his course of study, meaning the Decision was a decision to refuse to admit him to his course of study, and is therefore a reviewable decision.
23.Mr Georgiadis submitted that the Decision was not a mere suspension, or hold, on his enrolment in his course of study. He relied on the CIT’s unofficial record of his results that records a centre ‘hold’ from 14 August 2019 to 31 December 2019. This, he said, meant he was prevented from selecting any subjects or attending at the CIT “indefinitely”. He submitted that, in this circumstance, the CIT’s submission that he remains enrolled is “disingenuous”.
24.Mr Georgiadis also made impassioned submissions about the impact that the Decision had had upon him, including delay in completing his course of study and denial of access to education and skills. He submitted that the CIT is obliged to enact its policies in accordance with its obligations under the Human Rights Act 2004 (the HR Act), and that the CIT has continually ignored these obligations which meant that he has been “continually excluded and prevented from studying at CIT towards [his] qualification”.
25.Mr Georgiadis submitted that for the Tribunal to exclude his application for review of the Decision would be against the “central spirit” of the “authorising provisions” permitting Tribunal review.
Section 13(1)(a) - consideration
26.As mentioned above, to be a reviewable decision, per item 1 in table 20, the Decision needed to be made under the provision stated in column 2 (i.e. section 13(1)(a)) and to be of the kind described in column 3.
27.Referring to column 2, determining the source of the authority under which a decision is made is very much a question of fact. I refer to three cases that illustrate the point. The first arose in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act), but the principle remains applicable for determining the Tribunal’s jurisdiction to review an administrative decision.
28.In Australian National University v Burns,[7] a professor applied for an order under the AD(JR) Act that the University provide him with reasons for its decision to retire him on medical grounds. The University challenged the application on the grounds that the AD(JR) Act did not apply because the decision was not made under an enactment. The Federal Court agreed, finding that the action was taken under the professor’s contract of employment, not the Australian National University Act 1946 (Cth), even though the contract stemmed from that Act.
[7] Australian National University v Burns [1982] FCA 191
29.In Re Surf Air and Civil Aviation Authority,[8] the applicant airline sought review of a decision of the respondent, the Civil Aviation Authority, purporting to cancel the approval of its chief pilot. Under its licence, the airline could not operate without a chief pilot. The Administrative Appeals Tribunal (Cth) (the AAT) found that it did not have jurisdiction to review the cancellation because the decision was made under a separate instrument, and not directly under a statutory provision that was within the definition of a reviewable decision in the Civil Aviation Act. The AAT found that it did not matter that the decision had an effect on another decision concerning the airline’s licence which might be reviewable.
[8] Re Surf Air and Civil Aviation Authority [1991] AATA 50
30.In Carson and Anor and Employment Services Regulatory Authority,[9] the applicant sought review of a decision made by the respondent Authority not to renew its contract with the applicant as part of its tendering process for the supply of services. Under the Employment Services Act 1994 (Cth), a reviewable decision was defined as a decision made by the respondent Authority under “the accreditation scheme”, “a condition of accreditation” or “section 57” (which dealt with disqualification). The AAT found that the decision not to renew the applicant’s contract was not a reviewable decision because it was made under the Authority’s general power to enter into contracts, and that a distinction should be drawn between the accreditation process and a tender process.
[9] Carson and Anor and Employment Services Regulatory Authority [1997] AATA 805
31.In the ACT, the Legislature commonly (if not always) uses the ‘4 column’ structure in table 20 for the purpose of defining a reviewable decision. Sometimes, a decision appears to be a reviewable decision because it ‘fits the description’ of a decision in column 3 but is not reviewable because it was not made under the corresponding legislative provision in column 2.
32.In this case, referring to column 2, I was not provided with any evidence of the legislative provision under which the Decision was made. Ms Piesse properly acknowledged that the Procedures and the Policy do not have the force of law,[10] but did not take me to the legislative provision under which the Decision was made or provide me with a copy of the instrument of delegation under which the Director acted.
[10] Respondent’s submissions on jurisdiction dated 27 November 2019, paragraph 14
33.Nevertheless, whether the Tribunal had jurisdiction could still be determined by reference to column 3, which describes a decision in quite precise terms. Section 13(1)(a) is in similarly precise terms. For this reason, I was prepared to accept that if the Decision is a decision of the kind described in item 1, column 3, then it was made under section 13(1)(a) of the Act (ie the corresponding legislative provision in column 2), and vice versa.
34.To ascertain whether the Decision was of a kind described in item 1, column 3, requires close consideration of the meaning of some key words.
35.I began with the word “admit”. It is not defined in the Act, and so its meaning needed to be determined according to rules of statutory interpretation.
36.Over time, different approaches have been taken to the interpretation of legislation.[11] The present approach, as stated by the High Court in SZTAL v Minister for Immigration and Border Protection,[12] is to ascertain the meaning of a statute by reference to its text, having regard to its context and purpose. In SZTAL, Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[11] See generally, Pearce, Statutory Interpretation in Australia, (9th edition, 2019), paragraphs 2.5 – 2.13, with reference to the ‘literal approach’ and later the ‘purposive approach’.
[12] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
37.In his work, Statutory Interpretation in Australia, Pearce observed that to follow the approach stated by the High Court in SZTAL often requires the person interpreting the legislation to make what is commonly referred to as a “constructional choice”. On this issue, in SZTAL, Gageler J said:
The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.
The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.
Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle”.
38.Section 13(1)(a), and the word ‘admit’, must be construed in the context of Part 3 as a whole. In this respect, section 14A of the Act mandates that the CIT board[13] establish policies for admission to a course of study or instruction at the CIT and policies for admission to assessment by the CIT. Section 13(2) mandates that the CIT consider any policies of the CIT board for admission to the CIT “in deciding whether to admit a person under subsection (1)”.
[13] Under section 9 of the Canberra Institute of Technology Act 1987, the CIT board is the governing board of the CIT.
39.I was not taken to any policies that, I presume, have been established under section 14A.[14] Nevertheless, when sections 13(1) and (2) are read together, it becomes clear that admission to a course of study or instruction must be informed by considerations in the policy concerning admission to CIT.
[14] I note that section 14A, mandating the establishment of policies, commenced on 5 April 2019
40.This supports a narrow construction of ‘admit’ in section 13(1)(a), in the sense that it contemplates a person who is not a student in a proposed course of study or instruction who wishes to be admitted to that course.
41.With reference to Mr Georgiadis’ submissions, I turned next to the dictionary definition of ‘admit’, having regard to the context in which the word is used in section 13.
42.The Australian Concise Oxford Dictionary[15] (to which Mr Georgiadis referred) defines the verb ‘admit’ to mean “1. a acknowledge, recognise as true b accept as valid or true 2. acknowledge responsibility for a deed, fault, etc 3 a allow (a person) entrance or access. b allow (a person) to be a member of (a class, group, etc.) or to share in (a privilege etc) c (of a hospital etc) bring in (a person) for residential treatment. 4. have room for; accommodate. 5. allow as possible.”.
[15] Australian Concise Oxford Dictionary (4th edition, 2008)
43.The Macquarie Dictionary[16] defines ‘admit’ to mean “1. to allow to enter; grant or afford entrance to; to admit a student to university 2. to give right or means of entrance to. 3. to permit; allow. 4. to permit to exercise a certain function or privilege; to permit a lawyer to the bar. 5. to allow as valid; to admit his right of entry. 6. to have capacity for the admission of at one time: this passage admits two abreast. 7. to acknowledge; confess: he admitted his guilt. 8. to grant in argument; concede: But you admit you knew where he was. 9. admit of a. to be compatible with; allow for: this situation admits of no other solution. b. to have the capacity for: the situation admits of violence 10. admit to Rare to give access; grant entrance: this gate admits to the garden.”
[16] Macquarie Dictionary (7th edition, 2017)
44.I note at this point that the kind of decision described in column 3, table 20, is not to “admit”: it is to “refuse to admit”. I therefore considered the ordinary dictionary meaning of “refuse.”
45.The Australian Concise Oxford Dictionary defines the verb ‘refuse’ to mean “1. withhold acceptance of or consent to (refuse an offer; refuse orders) 2. indicate unwillingness (I refuse to go; the car refuses to start; I refuse!) 3. not grant (a request) made by (a person) (refused me a day off; I could not refuse them). 4. (of a horse) be unwilling to jump (a fence etc.)”.
46.The Macquarie Dictionary defines the verb ‘refuse’ to mean “1. to decline to accept (something offered): to refuse an office. 2. to decline to give; deny (a request, demand, etc) 3. to express a determination not (to do something): to refuse to discuss the question. 4. to decline to submit to. 5. (of a horse) to decline to leave over (a fence, water, etc.). 6. to renounce. 7. to decline acceptance, consent or compliance.”
47.Having regard to Mr Georgiadis’ submission that to ‘refuse to admit’ is to “exclude”, I considered the ordinary dictionary meaning of ‘exclude.’
48.The Australian Concise Oxford Dictionary defines the verb “exclude” to mean “1. shut or keep out (a person or thing) from a place, group, privilege, etc 2. expel and shut out 3. remove from consideration (no theory can be excluded) 4. prevent the occurrence of; make impossible (excluded all doubt)”.
49.The Macquarie Dictionary defines ‘exclude’ to mean “1. to shut or keep out; prevent the entrance of. 2. to shut out from consideration, privilege, etc. 3. to expel and keep out; thrust out; eject”.
50.Ms Piesse referred me to a document entitled “CIT Policy Glossary” (the Glossary) that contains a table of stated definitions of many words and phrases including “admission”. The status and purpose of this document is not stated, although its heading suggests it is a document to be used for the purpose of determining the meaning of words and phrases in a CIT policy. Whether it should apply to policies created prior to its creation is unclear. Perhaps it is an ‘organic’ document to or from which words and phrases are added, varied or deleted from time to time as policies are created, varied or revoked. Whether the version of the Glossary provided to me was operative at the time of the Decision is unknown because the Glossary is not dated.
51.Mr Georgiadis submitted that I should not rely on the definition of ‘admission’ in the Glossary. He made the legitimate point that sections 13 and 20 of the Act refer to the verb ‘admit’, not the noun ‘admission.’
52.For several reasons, I was not persuaded that I should rely on anything in the Glossary for the purpose of interpreting the meaning of a word in the Act.
53.First, the apparent purpose of the Glossary is to define words in a CIT policy, not words in legislation. The Glossary might therefore have been relevant for the purpose of interpreting “admission” or other relevant words in a policy that might, in turn, have been relevant for the purpose of interpreting words or phrases in the Act,[17] but I was not taken to any such policy. Perhaps no such policy exists, which would add to my concern about referring to the definitions of words in the Glossary for the purpose of interpreting words in the Act.
[17] Section 141(1) of the Legislation Act 2001 provides "In working out the meaning of an Act, material not forming part of the Act may be considered"
54.I have quoted in full the dictionary meanings of the words arising in this case to illustrate the spectrum of different meanings available for each word. However, in the context in section 13, and noting the obligation under section 13(2) to consider any policy regarding admission to the CIT, I am satisfied that the word ‘admit’ is used as meaning to allow a person entrance or access to be a member of a class or group (and in this case, to allow a person entrance or access to course of study or instruction at the CIT).
55.Likewise, as the dictionaries demonstrate, the word ‘refuse’, as a verb, has many different meanings, but I am again satisfied from the context and purpose in which it is used in column 3, table 20 that the meaning to be attributed to the word ‘refuse’ is not to grant, or to decline to give, a person’s request or demand (and in this case, not to grant or to decline to give a request or application to be admitted to a course of study or instruction at the CIT).
56.The words ‘refuse’ and ‘admit’ in column 3, table 20, must also be read together. In Project Blue Sky Inc v Australian Broadcasting Authority,[18] the High Court confirmed the well-established principle that, when construing a statutory provision, a court or tribunal must strive to give meaning to every word in the provision and that words must be read together.[19] The operative phrase is ‘refuse to admit’. In my view, the words, read as a whole, contemplate a circumstance where a person has applied or requested to be admitted to a course of study or instruction at the CIT, and the CIT makes a decision to refuse their application or request.
[18] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
[19] This principle was noted with approval by the ACT Court of Appeal, per Besanko J, in R v Fearnside [2009] ACTCA 3 at [57]
57.To ‘refuse to admit’ does not contemplate a circumstance where a person is already admitted to a course of study or instruction, is not applying for or requesting anything and the CIT makes a decision to send them away.
58.To give an analogy, there is a difference between refusing to admit a person who seeks to be admitted to a country and deporting a person subsequent to their admission. Similarly, there is a difference between refusing to admit a person to a venue or a place, for example a club or a bar, and ejecting the person subsequent to their admission. In my view, to “refuse to admit” addresses the former situation, not the latter.
59.To work out the meaning of section 13(1) of the Act, I also had regard to section 139 of the Legislation Act 2001 which states:
139. Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
Note The Human Rights Act 2004, s 30(1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
60.Under section 7(1) of the Legislation Act, “a reference to an Act includes a reference to a provision of an Act”.
61.In R v Fearnside,[20] the ACT Court of Appeal, per Besanko J, confirmed that a court or tribunal can have regard to the purpose of a provision to determine whether more than one construction of the provision is open, even though on its face the provision is not ambiguous. That follows from the definition of “working out the meaning of an Act” in section 138 of the Legislation Act. However, Besanko J also confirmed that to have regard to the purpose of a provision does not authorise a court or tribunal to rewrite legislation: the construction adopted must still be one which is open, having regard to the words of the legislation.
[20] R v Fearnside (2009) 165 ACTR 22
62.The purpose of section 20 is to state the kind of decision that the Tribunal can review. That is a matter for the Legislature, not others. After considering section 139 of the Legislation Act, I saw no reason to adopt a different meaning of ‘refuse to admit’ nor could I see another meaning that was reasonably open.
63.Once the ordinary meaning of ‘refuse to admit’ is applied, it became clear that the CIT did not make a decision on 14 August 2019 to refuse to admit Mr Georgiadis to anything. Mr Georgiadis was not requesting admission to a course of study or instruction or to anything else. Nor did the CIT, in response to his request, refuse to admit him. All that can be said is that the CIT made a decision to prevent or exclude Mr Georgiadis from continuing to participate in a course of study to which he had already been admitted. That was not a decision for the purposes of column 3, table 20.
64.Reading the words ‘refuse’ and ‘admit’ together also demonstrates the danger of determining their meaning by reference to the meaning of a different word, ‘exclude’, which has many different meanings. To “refuse to admit” is perhaps analogous with “to shut out, keep out or prevent the entrance of” but it is not analogy with “to expel, thrust out or eject”.
65.The different meanings of ‘exclude’ add to my conclusion that the Director did not make a decision under section 13(1)(a) of the Act or a decision to ‘refuse to admit’ Mr Georgiadis to a course of study or instruction. The Procedures and the Policy use the word ‘exclude’ in the context of a ‘student’, meaning a person who is admitted to the CIT and is enrolled in a course of study or instruction, not a person seeking admission. The Decision was made in the context of Mr Georgiadis, as a student. ‘Exclude’ is used in the Procedures, the Policy and the Decision in the context of an existing student, and (referring to a different meaning of the word) a decision to expel, thrust out or reject the student for a stated period.
66.Whilst these findings are enough to reject Mr Georgiadis’ claim that the CIT made a decision of a kind described in column 3, table 20, I should (in deference to the arguments put) respond to other submissions made by the parties about the ambit of ‘refuse to admit.’
67.Aside from the meaning of ‘admit’, the question remained: admitted to what?
68.Mr Georgiadis submitted that ‘a course of study’ and ‘instruction’ should be read as two separate concepts. He submitted that an ‘instruction’ can be a small precise step, for example an instruction on how to use a spanner within a plumbing unit (or subject) within a course of study leading to a qualification in plumbing. He submitted that to refuse to admit a person to that instruction is therefore a reviewable decision. I inferred from the submission that even if Mr Georgiadis remained admitted to his course of study, the Decision was a refusal to admit him to an instruction forming part of his course that would have been given had he been able to attend class.
69.I was not persuaded by Mr Georgiadis’ submission. If the Legislature had intended ‘instruction’ to be a stand-alone feature, separate from ‘a course of study’, the word ‘an’ would have preceded it in order for section 13(1)(a) to be grammatically correct.
70.Section 13 must also be read as a whole, and the words must be read consistently. Applying that principle, referring to section 13(1)(c), it is improbable (to say the least) that the Legislature contemplated the CIT issuing an award to a person who has completed (or followed) an ‘instruction’ in the narrow sense in which Mr Georgiadis submitted the word should be used.
71.In my view, the words ‘a course of study or instruction’ should be understood to mean ‘a course of study’ or ‘a course of instruction’. Referenced to their ordinary meanings, ‘study’ involves the “application of the mind to the acquisition of knowledge, as by reading, investigation or reflection; the cultivation of a particular branch of learning, science, or art”,[21] in contrast to ‘instruction’ that involves the learning of “knowledge or information imparted.”[22] A course of instruction might entail, for example, a course of instruction on how to perform precise but complex mechanical tasks.
[21] Macquarie Dictionary (2017, 7th edition)
[22] Macquarie Dictionary (2017, 7th edition)
72.But what of the words ‘a course of’? Should they be construed as a reference to a course (or program) leading to the issue of an award, or to a course leading to the completion of a subject forming part of a course (or program) or can they be construed as a reference to either?
73.In its written submissions provided prior to hearing, the CIT submitted that section 13(1)(a) is directed to a whole course of study, and in this case the course of study to which Mr Georgiadis has been admitted leading to an award of the Certificate.[23] It submitted that where Mr Georgiadis remains admitted to that course of study, the Decision cannot be characterised as a decision to refuse to admit him to that course. At hearing, however, the CIT changed its position. It submitted that the word ‘course’ refers to “an overarching program” or to “an individual subject or unit.”[24]
[23] Written submissions dated 27 November 2019, paragraphs 15 - 20
[24] Transcript of proceedings, 13 December 2019, page 42, lines 12 - 30
74.Mr Georgiadis submitted that a course of study can refer to an individual subject, and in his case the subject “Media Students”.[25] He submitted that to refuse to admit him to attend class or training in that subject, and to refuse to admit him to be assessed in that subject, fell within the scope of sections 13(1)(a) and 13(1)(b), respectively.[26]
[25] Applicant’s submissions on jurisdiction (undated), paragraph 24, filed 10 December 2019
[26] Applicant’s submissions on jurisdiction (undated), paragraph 24, filed 10 December 2019
75.On questions of jurisdiction, the Tribunal must decide for itself whether it has jurisdiction (or power) to determine an application or to make an order. Jurisdiction cannot be obtained simply because parties agree it exists or ask for it to be exercised in a certain way.[27] Likewise, whilst parties’ submissions should be taken into account, questions of statutory interpretation remain for a court (or tribunal) to decide.[28]
[27] Pearce, Administrative Appeals Tribunal (4th edition, 2015), paragraph 3.7; R v Moodie; Ex parte Mithen (1997) 17 ALR 219 at 225; Carson and Anor and Employment Services Regulatory Authority [1997] AATA 805 [5-7]
[28] Pearce Statutory Interpretation in Australia (9th edition, 2019), paragraph 1.8; Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547; Coleman v Power [2004] HCA 39 at [243-4]
76.Notwithstanding the submissions of the CIT and Mr Georgiadis, I was not persuaded that the words “a course of study” (or, implicitly, “a course of instruction”) in section 13(1)(a) include a course of study leading to the completion of a particular subject (or unit) that forms part of a course (or program) leading to an award. In my view, the words refer only to an overarching course or program. It follows that for the purposes of item 1, column 3, table 20, when determining whether the CIT made a reviewable decision, the question was whether it made a decision to refuse to admit Mr Georgiadis to an overarching course or program: it did not.
77.The word ‘course’ (as a noun) has innumerable meanings, many of which could not be relevant for the purpose of section 13(1)(a). However, the relevant dictionary meanings of ‘course’ include meanings that are consistent with a course of study leading to an award and a course leading to the completion of a particular subject that forms part of a course leading to an award. The Australian Concise Oxford Dictionary relevantly defines it to mean “4. a a series of lectures, lessons, etc. in a particular subject. b a book for such a course (A Modern French Course)”. The Macquarie Dictionary relevantly defines it to mean “8. a systemised or prescribed series: a course of studies; a course of lectures; a course of medical treatments. 9. any one of the studies in such a series: the first course in algebra.”
78.However, when the Act is read as a whole, as it must be,[29] it becomes apparent that ‘a course’ means only a course of study or instruction leading to an award.
[29] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
79.Section 13 is one of three sections (sections 13, 14 and 14A) that make up Part 3 of the Act. Part 3 is headed -
Admission to courses and issuing awards.
80.The heading is part of Part 3 and part of the Act,[30] suggesting that “a course” is a course leading to the issue of an award. That is consistent with sections 14 and 14A.
[30] Legislation Act 2001, section 126(1)
81.Section 14(1) states:
The CIT may issue an award to a person who has completed a course of study at the CIT.
82.Section 14A states:
14A CIT board to establish policies on admissions and awards
(1) The CIT board must establish policies for—
(a)admission to a course of study or instruction at the CIT; and
(b)admission to assessment by the CIT; and
(c)issuing awards to people who have completed a course of study or instruction at the CIT.
(2) The CIT board must publish the policies on the CIT’s website.
83.The phrases ‘a course of study or instruction’ or ‘a course of study’ appear in each of the sections that make up Part 3.[31] Rules of statutory interpretation require phrases to be read and construed in a consistent manner. In Craig Williamson Pty Ltd v Barrowcliff, the Supreme Court of Victoria, per Hodge J said:
I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. [32]
[31] Why section 14 permits the CIT to issue an award to a person who has completed a course of study, but not to a person who has completed a course of instruction is unclear. Section 14A(1)(c), requiring a policy for issuing awards to persons who have completed a course of study or instruction, suggests that this is a legislative oversight. The question does not need to be resolved for the purpose of this application.
[32] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
84.When that rule is applied to each section in Part 3, it becomes apparent that ‘a course of study’ does not include a particular subject or unit, and entails a ‘course’ that, on completion, permits the issue of an award. It is illogical to construe section 14(1) as permitting the issue of an award to a person who has completed a subject. It is also illogical to construe section 14A(1)(a) as requiring the CIT board to establish a policy for admission to each and every subject or unit within each and every course of study or course of instruction, rather than a policy for admission to the ‘course’ leading to the issue of an award. Where this construction is apparent for sections 14 and 14A, it must be applied consistently when interpreting section 13(1)(a).
85.It follows that the Tribunal does not have jurisdiction to review a decision to refuse to admit a person to a particular subject forming part of a course of study or instruction to which the person had been admitted.
86.Of course, this conclusion does not have consequence in this case because there is no suggestion that Mr Georgiadis applied to be admitted to a particular subject and a decision was made to refuse to admit him to that subject. Also, after the Decision was made, he remained enrolled in the subjects in which he was enrolled at the commencement of Semester 2 and in the course of study to which he had been admitted leading to the award of the Certificate.
Section 13(1)(b) - submissions
87.In the alternative, Mr Georgiadis submitted that the Decision was a decision to refuse to admit him to “an assessment by the CIT”, referring to item 2, table 20, and was therefore a reviewable decision. He submitted that assessment in the program in which he was enrolled “is largely driven by observation of participation in class and tasks requiring the skills being taught.”[33] On this basis, he submitted that denying him the right to attend class had the “practical effect” of refusing to admit him to an assessment.[34] He referred to a writing assessment due in the same week that the Director made her Decision, and that the effect of the Decision was that he could not “participate in this screen writing unit to complete this assessment.”[35]
[33] Applicant’s submissions on jurisdiction, paragraph 2, (undated) filed 10 December 2019
[34] Applicant’s submissions on jurisdiction, paragraphs 1 and 14, (undated) filed 10 December 2019
[35] Applicant’s submissions on jurisdiction, paragraph 42c, (undated) filed 10 December 2019
88.The CIT submitted that Mr Georgiadis’ inability to be assessed does not mean that the Director made a decision to refuse to admit him to an assessment. The Decision, it said, to put a ‘hold’ on Mr Georgiadis’ attendance at the CIT was not a decision not to admit him to an assessment in any direct sense. Rather, it was a decision to suspend his participation in the subjects in which he was enrolled which had the effect of preventing his assessment whilst suspended.[36] That, it said, was not a decision to refuse to admit Mr Georgiadis to an assessment.
Section 13(1)(b) - consideration
[36] Transcript of proceedings, 13 December 2019, page 41, lines 18 - 38
89.I was not persuaded that the Decision was of a kind described in item 2, column 3. Again, referring to the definitions of ‘refuse’ and ‘admit’, there is no suggestion that Mr Georgiadis had applied for or requested assessment of anything, or that the Decision was in response to such an application or request, or that the Decision was a refusal to admit him for assessment.
90.Close attention must be given to what was actually decided, irrespective of its ‘practical effect’. Despite the absence of evidence, I was prepared to accept for present purposes that an assessment of Mr Georgiadis’ class participation formed part of his assessment in one or both of the subjects in which he was enrolled. I was also prepared to accept that his suspension prevented that assessment. However, applying the principles set out in Re Surf Air and Carson and Anor, those facts do not convert the Decision into a decision to refuse to admit him to assessment. The inability to be assessed, as Mr Georgiadis seems to accept, was no more than an effect or consequence of the Decision.
91.To give an analogy, a decision to cancel a person’s driver licence may cause the person to lose their employment as a driver, but that does not cause the decision to be a decision to terminate the person’s employment.
92.Before leaving this topic, I should perhaps add that, in my view, the ambit of ‘refuse to admit’ in section 13(1)(b) is quite different to that in section 13(1)(a). An ‘assessment’ is not a defined term. It would appear to include any kind of (perhaps formal) assessment utilised by the CIT to assess performance and/or completion of any course leading to an award, or subject or a component of a subject. Item 2, columns 2 and 3, appear to contemplate a circumstance where ‘a person’ presents themselves, or a piece of work that they have carried out, for assessment and the CIT makes a decision not to admit the person or their work, as the case may be, for assessment. That is not this case.
Additional matters
93.Before completing my reasons, I deal with two additional matters forming part of Mr Georgiadis’ submissions.
94.First, I was not persuaded by Mr Georgiadis’ submission, referenced to the CIT’s record that he is suspended until 31 December 2099, that he is suspended indefinitely, Ms Piesse explained, and I accept, that if Mr Georgiadis followed the pre-enrolment processes and attended a pre-enrolment meeting prior to commencement of Semester 1, 2020, he would be able to continue his studies from commencement of Semester 1, 2020. The centre hold until 2099, she said, and I accept, is “purely an administrative issue” that would be set aside if Mr Georgiadis participated in the pre-enrolment process.
95.Second, I was not persuaded that the CIT’s policies are in any way contrary to the HR Act or that application of that Act should produce a different outcome regarding the jurisdiction of the Tribunal to review the Decision.
96.On the first point, I was unable to consider the issue because Mr Georgiadis did not take me to any CIT policy said to be contrary to the HR Act or refer me to section of the HR Act with which a policy might be inconsistent.
97.On the second point, section 30 of the HR Act provides that “So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”. I accept (of course) that I had that obligation for the purpose of construing the provisions of the Act relevant to the Tribunal’s jurisdiction, but it did not persuade me to a different outcome. Mr Georgiadis did not point me to any different interpretation of any provision of the Act that should be made by reference to anything in the HR Act, nor could I find a human right that had a bearing on the interpretation of section 13 or section 20 of the Act.
98.Also, I do not accept that section 30 overrides general principles of statutory interpretation. In R v Fearnside, the ACT Court of Appeal, per Besanko J, considered the correct or appropriate interpretation of section 68B(1)(c) of the Supreme Court Act 1933 (ACT). When considering the effect of section 30 of the HR Act, his Honour said:
In its present form, s 30 appears to give the Court a broader power to adopt an interpretation of a Territory law which is consistent with a relevant human right. I am conscious of the fact that discussing the matter in the abstract is of limited assistance. Nevertheless, I think s 30 would enable a Court to adopt an interpretation of a legislative provision compatible with human rights which did not necessarily best achieve the purpose of that provision or promote that purpose, providing the interpretation was consistent with that purpose. On the other hand, I do not think s 30 authorises and requires the Court to take the type of approach taken by the House of Lords in Ghaidan.[37] There is no reference to purpose in s 3(1) of the United Kingdom Act and the primary constraint in that subsection is stated in terms of what is or is not possible. By contrast, under s 30 in the HRA the purpose or purposes of the legislative provision must be ascertained through well-established methods, and the interpretation adopted by the Court must be consistent with that purpose or those purposes.[38]
Conclusion
[37] This is a reference to a decision of the House of Lords (UK), Ghaidan v Godin-Mendoza [2004] 3 All ER 411
[38] R v Fearnside [2009] ACTCA 3 at [89]
99.For the above reasons, Mr Georgiadis’ application, as amended, must be dismissed because the Tribunal does not have jurisdiction to decide it.
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER:
AT 96/2019
PARTIES, APPLICANT:
Stavros Georgiadis
PARTIES, RESPONDENT:
The Canberra Institute of Technology
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Ms R Piesse
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Presidential Member G McCarthy
DATE OF HEARING:
13 December 2019
1
8
5