Griffith University v Tang - [2005] HCA 7

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, CALLINAN AND HEYDON JJ
GRIFFITH UNIVERSITY   APPELLANT
AND
VIVIAN TANG  RESPONDENT
Griffith University v Tang [2005] HCA 7
3 March 2005
B19/2004
ORDER
1.        Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 19 December 2003 and in its place order:

(a)the appeal to that Court is allowed;

(b)set aside the orders of the Supreme Court of Queensland (Mackenzie J) made on 14 February 2003 and in their place order that the application for a statutory order of review is dismissed;

(c)the University pay the costs of the appeal to the Court of Appeal;

(d)the question of the costs of the application before Mackenzie J is remitted to the Supreme Court of Queensland.

3.The appellant pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Queensland
Representation:
P A Keane QC with S E Brown for the appellant (instructed by Minter Ellison)
A J H Morris QC with J P Murphy for the respondent (instructed by Dibbs Barker Gosling)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Griffith University v Tang
Administrative law – Judicial review – Exclusion of respondent from PhD candidature programme conducted by appellant – Where appellant is a body created by statute – Power of appellant to function as a university and to confer higher education awards derived from statute – Whether exclusion was a decision to which the Judicial Review Act 1991 (Q) applied – Whether exclusion was a decision made under an enactment – Relevance of nature of relationship subsisting between parties.
Words and phrases – "decision", "under an enactment", "of an administrative character", "required or authorised", "aggrieved by".
Judicial Review Act 1991 (Q), ss 4, 5, 7(1)(a), 16(1), 20, 48.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5(1).
Griffith University Act 1998 (Q), ss 5, 6, 8, 9, 11.

GLEESON CJ. The respondent brought proceedings in the Supreme Court of Queensland seeking review under the Judicial Review Act 1991 (Q) of a decision to exclude her from the PhD candidature programme conducted by the appellant. The decision was made on the ground that she had "undertaken research without regard to ethical and scientific standards" and had thereby engaged in "academic misconduct". The finding that there had been misconduct, and that exclusion was the appropriate response, was made by an Assessment Board, which was a sub-committee of the Research and Postgraduate Studies Committee of Griffith University. The respondent pursued an appeal procedure within the University. An Appeals Committee concluded that misconduct had occurred, that exclusion was appropriate, and that the appeal should be dismissed. The respondent contends that, at both levels, there were breaches of the requirements of natural justice, failures to comply with mandatory procedural requirements, improper exercises of power, and errors of law.
In her application for review, the respondent said that she was aggrieved by the decision because she had been excluded from her PhD candidature with the appellant and, in consequence, her prospects of following a professional career in her chosen fields (molecular biology and bioscience) had been destroyed.
The issue in the present appeal is whether the decision to exclude the respondent was a decision to which the Judicial Review Act applied. By virtue of s 4 of the Judicial Review Act, the answer depends upon whether it was "a decision of an administrative character made ... under an enactment". That formula was borrowed from the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). It is common ground that the considerations bearing on the meaning of the Commonwealth Act also apply to the State Act. The appeal is concerned solely with the application under the Judicial Review Act. Whether, if the allegations made by the respondent were correct, she would be entitled to a remedy under the common law, for breach of contract, or pursuant to the powers of the Supreme Court of Queensland which are preserved by s 41 of the Judicial Review Act, or otherwise, is not a question that arises. If the Judicial Review Act applies, it provides its own procedures for judicial review and its own remedies. It is those statutory procedures that have been invoked by the respondent, and those statutory remedies that are sought. Because the Judicial Review Act picked up the language of the ADJR Act, and because of the history of judicial interpretation of the ADJR Act, it could be that the statutory scheme, in some circumstances, provides a more restricted form of judicial review than is otherwise available.
In the Supreme Court of Queensland, the appellant applied for summary dismissal of the proceedings under s 48 of the Judicial Review Act. That application failed at first instance[1] and before the Court of Appeal[2].
[1]Tang v Griffith University [2003] QSC 22.
[2]Tang v Griffith University [2003] QCA 571.
The argument turns upon whether the decision to exclude the respondent was a decision "under an enactment", the relevant enactment being the Griffith University Act 1998 (Q).
The Griffith University Act 1998, which replaced the Griffith University Act 1971 (Q), provides that the functions of the appellant include providing education at a university standard, providing facilities for and encouraging study and research, providing courses of study and instruction, and conferring higher education awards (s 5). That Act gives the appellant all the powers of an individual, including the power to enter contracts, acquire and deal with property, fix charges and other terms for the services it supplies, and do anything necessary or convenient in connection with its functions (s 6). The appellant's governing body is a Council, which has wide powers to manage the University's affairs (ss 7, 8, 9). It may delegate its powers to an appropriately qualified committee (s 11). The Council is empowered to make university statutes, which may cover, among other things, the admission, enrolment and disciplining of students and other persons undertaking courses, fees, and the making and notifying of university rules (s 61). There are no such statutes of relevance to this appeal.
In the Queensland Court of Appeal, Jerrard JA described the chain of authority pursuant to which the respondent's case was considered as follows:
"On 4 August 1997 the council approved a constitution (a revised one) for a body described as The Academic Committee. Its central function described in its constitution is that of being responsible to the Council for assuring the quality of academic activities across the University. Its responsibilities included the apparently delegated one of developing and monitoring the academic policies and procedures of the University and making recommendations to the Council on those matters; advising the Council on the policies and procedures pertaining to research higher degree programs; and advising the Council on the conduct, evaluation and enhancement of teaching and research. It has specific delegated authority to approve the content of academic courses and detailed requirements for awards, and to determine the University's academic policy in the areas of student administration, assessment, progress, credit and timetabling. On 1 March 2001 the Academic Committee approved a revised Policy on Academic Misconduct, and on 6 September 2001 a revised Policy on Student Grievances and Appeals. There was no suggestion made on the appeal that those approvals were not intra vires the Academic Committee.
Also on 4 August 1997, a Research and Postgraduate Study Committee was established by the council; it is described in the material before this court as a sub-committee of the Academic Committee. The functions of the Research and Postgraduate Studies Committee include ... those of approving the eligibility of students to receive higher degrees including a PhD ... The learned judge found that this function was a direct delegation from the council."
There is nothing in the Griffith University Act which deals specifically with matters of admission to or exclusion from a research programme or any course of study, academic misconduct, or intra-mural procedures for dealing with issues of the kind that arose in the case of the respondent. The powers that were exercised in establishing policies and procedures relating to research higher degrees, academic standards, investigation of alleged academic misconduct, and exclusion from programmes, all appear to flow from the general description in s 5 of the Griffith University Act of the University's functions, the general powers stated in s 6 and the general power to do anything necessary or convenient in connection with those functions, and the powers of the Council as the University's governing body, including its powers of delegation.
In argument, reference was also made to s 8 of the Higher Education (General Provisions) Act 1993 (Q), which, in effect, confers upon universities the exclusive right to confer higher education awards, by prohibiting a "non-university provider" of educational services from conferring such awards.
Placing reliance upon Australian National University v Burns[3] and Australian National University v Lewins[4], the appellant argued that, to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and, in addition, it must be the statute which gives legal force or effect to the decision. Those cases, and other decisions of the Federal Court extending over many years, establish, in relation to the ADJR Act, that it is not enough that the decision be within power. The legislation does not provide for review of all decisions of an administrative character made in pursuance of any power or authority which has its foundation
[3](1982) 43 ALR 25.
[4](1996) 68 FCR 87.
[5](1996) 68 FCR 87 at 101, citing Neaves J in CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329 at 333.
in a statute. As Lehane J put it in Australian National University v Lewins[5], a decision meets the 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."
The structure of the Griffith University Act follows a familiar form. In all Australian jurisdictions there are statutes which establish or incorporate particular institutions, such as schools, or hospitals, or universities, or charitable organisations, describe their functions, confer on them powers appropriate to those functions, and provide for their governance. Whatever the principal functions of such an institution may be, the statute by which it is established ordinarily confers upon some governing authority general powers appropriate to the discharge of those functions. It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the ADJR Act, or legislation expressed in the same terms.
The effect of the decision presently in question was to exclude the respondent from the appellant's PhD research programme. There was no finding in the Supreme Court of Queensland as to exactly what was involved, in terms of legal relations, in admission to, or exclusion from, the programme. There was no evidence of a contract between the parties. There may well have been such a contract, but, if there was one, we were not told about it, and it was not relied upon by either party. The silence in the evidence about this matter, which bears upon the legal nature and incidents of the relationship between the parties, is curious. If the decision to exclude the respondent had been made pursuant to the terms of a contract, then, on the authorities, that would have been a consideration adverse to the respondent on the issue with which we are concerned. In Australian National University v Burns[6], the question to be decided was whether a decision of the Council of the Australian National University to dismiss a professor was a decision made under an enactment within the meaning of the ADJR Act. The Full Court of the Federal Court answered the question in the negative. There was a contract between the University and the professor, and in dismissing the professor the University relied on the terms of the contract. Bowen CJ and Lockhart J said[7]:
"In one sense every decision of the Council may be said to be made 'under' the University Act namely, in the sense of in pursuance of or under its authority. Section 23 is, in effect, the charter of the Council. It confers the widest powers upon the Council including the power of appointing professors and other University staff. ...
Although s 23 confers no power in express terms to remove or suspend professors and others, such power arises from the more general powers conferred by the section on the Council after the express reference to the powers of appointment. In our opinion the control and management of the affairs of the appellant must include the suspension or removal of its deans, professors and others.
Notwithstanding that s 23 was the source of the Council's power to appoint and dismiss the respondent in 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part of the respondent's contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dismissed and lays down no incidents of a professor's employment.
In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 empowered the Council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract."
[6](1982) 43 ALR 25.
[7](1982) 43 ALR 25 at 31-32.
The decision was characterised as a decision under the contract rather than a decision under the Act. It was based on the terms of the contract, and there was nothing in the University Act that dictated the procedures to be followed, or the grounds to be applied. Obviously, one consequence of the dismissal was that the professor would no longer be a professor at the Australian National University, but that did not mean the dismissal was under the Act. It should also be noted that the Full Court expressly declined to distinguish between the position of academic staff, on the one hand, and "librarians, groundsmen or security officers", on the other hand, for the purposes of relating the Act to the decision[8].
[8](1982) 43 ALR 25 at 35.
This was one of the early decisions under the ADJR Act. For present purposes, it is important to note an approach to the ADJR Act that was considered, and rejected, by the Full Court. Ellicott J, at first instance, had held that the University's decision was under an enactment. He said it was wrong to exclude from the operation of the ADJR Act "fundamental decisions of the University (a body created by statute) through its Council about matters lying at the very heart of its existence and essential to the fulfilment of the basic function for which the University was set up by Parliament."[9] If the approach of Ellicott J had prevailed, it would have provided support for the respondent in the present case. It directed attention to the nature of the power being exercised rather than to its immediate source. The approach was rejected by the Full Court, and the subsequent course of authority makes it inappropriate to reconsider the decision. We were not invited to do so.
[9]Burns v Australian National University (1982) 40 ALR 707 at 717.
The functions of the appellant include providing education, providing facilities for study and research, and conferring higher education awards. Its powers include the power to do anything necessary or convenient in connection with its functions. Subject to any other legal constraint, it may establish a PhD research programme, and decide who will participate in the programme and on what terms and conditions.
Exclusion from a research programme might take the form of refusing admittance in the first place. There is nothing in the statute to oblige the appellant to accept an applicant, although there may well be other laws which could come into play depending upon the reason for a refusal.
In the present case, the exclusion was in accordance, or purported to be in accordance, with the terms and conditions as to academic behaviour which had previously been established. It appears to be accepted that, by applying to join the programme, the respondent was bound by those terms and conditions, at least in the sense that the appellant could lawfully apply them to its relationship with the respondent. If there were a contract, presumably the contract, either expressly or by implication, included those terms and conditions. The case was argued on the assumption that the appellant was entitled to invoke and apply its policies in relation to academic misconduct, and its procedures for deciding whether academic misconduct had occurred and for internal review of such a decision. The precise legal basis of that common assumption was not examined in argument. There is no reason to doubt that the assumption is correct. There is a dispute, on the merits, as to whether the policy and procedures were fairly and regularly applied, but that is presently beside the point. The character of the decision, for purposes of the Judicial Review Act, would be the same even if it were clear beyond argument that there had been academic misconduct, and that the decision to exclude the respondent had been fairly and properly made in every respect. Would it have been a decision that took its legal force or effect from statute?
In Scharer v State of New South Wales[10] Davies AJA, referring to questions under the ADJR Act as to whether a decision is under an enactment, said:
"The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient."
So, to revert to Australian National University v Burns, a grant of authority to make contracts and employ staff does not mean that when a staff member is dismissed for breach of contract the statute under which the employer is operating has played a relevant part in the legal force or effect of the decision.
[10](2001) 53 NSWLR 299 at 313.
In the Supreme Court of Queensland, importance was placed upon the considerations that the Higher Education (General Provisions) Act conferred upon universities an effective monopoly to confer higher education awards, and that, under the Griffith University Act, the appellant enjoyed the benefit of that monopoly. That is undoubtedly important to the assertion that the respondent is a person aggrieved by the decision in question, and had standing to bring review proceedings. That assertion is not in controversy in this appeal. Undoubtedly, from a practical point of view, it is unrealistic to regard the decision to exclude the respondent from the PhD programme as no different from the decision of any service provider to withdraw future supply from a consumer of those services. Yet the legal effect of an otherwise lawful decision to terminate a relationship, contractual or voluntary, may be described accurately and sufficiently as a termination of the relationship, even if the statutory or other context in which the relationship exists confers particular benefits, or potential benefits, upon one of the parties.

So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute.
Subject to one qualification, the parties accepted the line of authority in the Federal Court as providing the test to be applied in deciding whether a decision is under an enactment. The qualification is as follows. Counsel for the respondent, while accepting that a decision is not a decision made under an enactment unless the decision draws its legal efficacy from a statutory provision, proposed as an additional (or, perhaps, alternative) test the question whether such efficacy could be achieved by an exercise of power or rights by "anyone in the public". The test was said to be whether the legal force or effect of a decision is of such a kind that it could result from the exercise by any member of the public of a power or capacity not derived from statute.
That might be a useful question to ask in a given case for the purpose of answering the question whether it is a statute (or something else, such as a contract or the general law) that gives legal force or effect to a decision. As Davies AJA said in Scharer, the necessary degree of connection between a statutory grant of authority and a decision may not exist if the authority is merely a grant of a power to do that which, under the general law, an ordinary member of the public has power to do. However, as a free-standing test it suffers from the defect that the answer to the question posed may depend upon the level of abstraction at which the decision, or its legal effect, is described. Any member of the public cannot admit a person to, or exclude a person from, a PhD course, much less a PhD course at Griffith University. On the other hand, any member of the public can enter into a voluntary association with another person, and (subject to any relevant legal constraints) terminate that association.
The question in the present case turns upon the characterisation of the decision in question, and of its legal force or effect. That question is answered in terms of the termination of the relationship between the appellant and the respondent. That termination occurred under the general law and under the terms and conditions on which the appellant was willing to enter a relationship with the respondent. The power to formulate those terms and conditions, to decide to enter the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act.
There was reference, in the course of argument, to par (b) of the definition of "decision to which this Act applies" in s 4 of the Judicial Review Act. There was a suggestion that the respondent might seek to rely on that paragraph, although it was not argued in the Supreme Court of Queensland. However, as Senior Counsel for the appellant pointed out, there is no evidentiary basis for the argument and, in any event, it seems difficult to contemplate that the relevant decision could have been shown to be a decision of the kind referred to in par (b).
The appeal should be allowed. I agree with the orders proposed by Gummow, Callinan and Heydon JJ.
GUMMOW, CALLINAN AND HEYDON JJ. This appeal turns upon the construction of the Judicial Review Act 1991 (Q) ("the Review Act"). This Queensland legislation has its provenance in federal law. That is apparent from s 16(1) of the Review Act, which states:
"If -
(a)a provision of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) ['the ADJR Act'] expresses an idea in particular words; and
(b)a provision of this Act appears to express the same idea in different words because of different legislative drafting practice;
the ideas must not be taken to be different merely because different words are used."
One consequence of the linkage between the text and structure of the federal and State statutes has been reliance in the present litigation upon various decisions construing the ADJR Act.
The federal legislation
In Shergold v Tanner[11], reference was made to the development of the federal system of administrative law, including the ADJR Act. The statement in par 390 of the Report of the Commonwealth Administrative Review Committee[12] ("the Kerr Committee") of its main recommendations and suggestions had included the exercise by a new federal court of jurisdiction to review on legal grounds "decisions, including in appropriate cases reports and recommendations, of Ministers, public servants, administrative tribunals ... but not decisions of the Governor-General".
[11](2002) 209 CLR 126 at 129‑130 [2]-[4].
[12](1971) at 113.
The eventual translation of that recommendation into the terms of the ADJR Act had a significance for the later case law (and for the present case) in two respects. First, the term "decision" was ambiguous; many decisions are made by administrators in the course of reaching an ultimate determination. The Kerr Committee had not adverted to what Mason CJ later[13] discerned as competing policy considerations, enhancement of the administrative processes of government by providing convenient and effective means of redress, and impairment of efficient administration of government by fragmentation of its processes. Secondly, the adoption in the ADJR Act of the phrase "a decision of an administrative character made ... under an enactment" directed attention away from the identity of the decision-makers, the Ministers and public servants referred to by the Kerr Committee, and to the source of the power of the decision-makers. In contrast, s 75(v) of the Constitution fixes upon the phrase "officer of the Commonwealth". The resultant uncertainties generated by the case law on the ADJR Act have continued for more than 25 years.
[13]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336‑337.
The State legislation
Section 19 of the Review Act provides that the Supreme Court of Queensland has jurisdiction to hear and determine applications made to it under the statute. However, Pt 5 (ss 41‑47) reforms and preserves the jurisdiction of the Supreme Court to provide remedies in the nature of those of the prerogative writs of mandamus, prohibition or certiorari and uses the term "prerogative order" to identify this reformed jurisdiction (ss 3, 41(2)). In addition, whilst informations in the nature of quo warranto are abolished by s 42, an injunctive remedy of that nature, called a "prerogative injunction" (s 3), is provided by s 42(2). Finally, s 43 provides revised procedures for the exercise of the Supreme Court's jurisdiction to administer the declaratory and injunctive remedy as developed in public law. To the foregoing, there may be added the potential for "public law" issues to found claims of redress for tortious conduct[14].
[14]Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558.
The federal system of administrative law, including the ADJR Act, operates in addition to the jurisdiction conferred on this Court by the Constitution. Section 8 of the ADJR Act confers jurisdiction on the Federal Court and the Federal Magistrates Court. Further, a significant measure of that jurisdiction with which the High Court is endowed by s 75(v) of the Constitution has been conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act")[15].
[15]Provision for transfer of proceedings from the Federal Court to the Federal Magistrates Court is made by s 32AB of the Federal Court of Australia Act 1976 (Cth).
In a similar fashion to the operation of the ADJR Act in the broader setting of the federal system of administrative law, so also, in Queensland, the new remedies provided by the Review Act are to be understood in the context of administrative law in the wider sense described above. It is undisputed that the Review Act does not exhaustively cover the whole of that field. Section 10(1) states that the rights conferred by the Review Act are in addition to any other right to seek review by the Supreme Court, any other court or a tribunal, authority or person. However, what the respondent sought was a statutory order of review.
Griffith University
The litigation arises from the exclusion of the respondent from the PhD candidature programme conducted by Griffith University ("the University"). The University is not one of those educational institutions created by Royal Charter[16]. Rather, the University is wholly the creature of statute. It is established as a body corporate by s 4 of the Griffith University Act 1998 (Q) ("the University Act") and "has all the powers of an individual" (s 6). One of the functions of the University conferred by s 5 is the conferral of "higher education awards". The University Act is to be read with an understanding of the Higher Education (General Provisions) Act 1993 (Q) ("the Higher Education Act")[17]. The effect of s 8(1) of the Higher Education Act was to prohibit an unauthorised non‑university provider of courses of higher education from conferring a "higher education award". That term was defined in s 3 so as to include "a degree, status, title or description of bachelor, master or doctor".
[16]See, for example, R v Aston University Senate, Ex parte Roffey [1969] 2 QB 538 at 543.
[17]Now repealed by s 91 of the Higher Education (General Provisions) Act 2003 (Q).
The result was that the PhD degree sought by the respondent could only be obtained in Queensland from a body such as the University established by the University Act. If the respondent, with a view to obtaining an advantage or benefit, were to attempt to induce the belief that she had been awarded that degree contrary to the fact, then she would commit an offence created by s 8(3) of the Higher Education Act.
The Council of the University is its governing body (the University Act, s 8). It may delegate most of its powers to committees but not its power to make university statutes or rules (s 11). Two of the committees established by the Council are the Research and Postgraduate Studies Committee and the University Appeals Committee.
By letter dated 19 July 2002 from the University addressed to the respondent, she was notified that the Assessment Board, a sub‑committee of the Research and Postgraduate Studies Committee, had found that she had engaged in academic misconduct. Reference was made specifically to the presentation by the respondent of falsified or improperly obtained data as if they were the result of laboratory work. The respondent was invited to make further submissions to Professor Finnane, the Chair of the Assessment Board. By letter dated 9 August 2002, Professor Finnane wrote to the respondent indicating the receipt of further submissions by her and acknowledging that the Assessment Board had determined that she be excluded from her PhD candidature programme on the ground that she had undertaken research without regard to ethical and scientific standards. The letter notified the respondent that she had a right to appeal against this decision and enclosed a copy of the Policy on Student Grievances and Appeals.
Thereafter, on 21 October 2002, Associate Professor Healy, Chair of the University Appeals Committee, wrote to the respondent stating that, on 17 October 2002, the Appeals Committee had determined that the respondent's appeal be dismissed on grounds which were identified as follows:
". after a full review of the evidence presented to the University Appeals Committee, including the evidence and arguments provided by yourself in support of your appeal, the Committee was satisfied, on a strong balance of probabilities, that an ongoing fabrication of experimental data by yourself did occur over an extended period for a significant number of experimental results, as alleged in the initial complaint by Associate Professor Clarke and Dr Tonissen, and as found by the Assessment Board.
.the procedures followed by the University which culminated in the Assessment Board's finding against yourself were consistent with the principles of procedural fairness and with the policies, practices and procedures for consideration of allegations of Academic Misconduct within the University. The Committee was satisfied that any perceived errors or omissions in these procedures were not such as to vitiate the fairness of the procedures, or result in a different outcome had alternative actions been taken to avoid the perception of such errors or omissions."
The letter continued by stating that, in reaching its conclusion, the Appeals Committee:
"noted that it had not been suggested at any stage in the complaints or appeals process that you had any motive for fabricating your data other than saving time and effort; or that the data presented [were] intended to yield a result which differed in a significant, systematic or scientifically interesting way from what would have been yielded by application of the proper procedures and protocols".
Nevertheless, the Appeals Committee had remained satisfied that exclusion of the respondent from the PhD candidature "was appropriate in the context of [her] responsibility as a professional scientist to adhere to ethical and scientific standards at all times".
Section 18 of the Review Act provides that that statute does not affect the operation of, or apply to decisions made under, enactments listed in Sched 1. The University Act is not listed there.
No University Visitor
This litigation concerns the engagement of the jurisdiction of the Supreme Court conferred by the Review Act. The University Act contains no provision for there to be a Visitor to the University[18]. Accordingly, in the conduct by the University of its affairs there is no occasion for the consideration of the case law concerning the content and exclusivity of the jurisdiction of a Visitor[19]. In particular, in Thomas v University of Bradford[20], the House of Lords did not accept for England the view expressed by Woodhouse P and Cooke J[21] in New Zealand that the jurisdiction of the Visitor over disputes between the University of Auckland and one of its members was subject to, rather than exclusive of, the jurisdiction which otherwise might be exercised by the courts of justice. Their Honours had stressed the character in New Zealand of universities, not as the benefaction of a Founder, but as publicly funded institutions, constituted by statute and discharging an acknowledged responsibility of the State. Earlier, the Full Court of the New South Wales Supreme Court[22] had construed the legislation establishing the University of Sydney as vesting full power in the Senate, with the Governor as Visitor having "an official connection" with the University[23].
[18]cf Bond University Act 1987 (Q), s 14.
[19]Ex parte King; Re The University of Sydney (1943) 44 SR (NSW) 19 at 31; Ex parte McFadyen (1945) 45 SR (NSW) 200; R v University of Saskatchewan, Ex parte King (1968) 1 DLR (3d) 721 at 723; Norrie v Senate of the University of Auckland [1984] 1 NZLR 129; Thomas v University of Bradford [1987] AC 795.
[20][1987] AC 795 at 810‑811.
[21]Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 at 135‑136, 140. Somers J, the third member of the Court of Appeal, inclined to the view taken in England: [1984] 1 NZLR 129 at 148.
[22]Ex parte McFadyen (1945) 45 SR (NSW) 200.
[23]Ex parte McFadyen (1945) 45 SR (NSW) 200 at 205; cf Murdoch University v Bloom and Kyle [1980] WAR 193 at 198, 202; Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424, noted (1991) 65 Australian Law Journal 299. See also Matthews, "The Office of the University Visitor", (1980) 11 University of Queensland Law Journal 152.
The structure of the Review Act
Section 20(1) of the Review Act provides that a person "who is aggrieved by a decision to which this Act applies" may apply to the Supreme Court for a statutory order of review in relation to the decision. Section 20(2) lists in pars (a)-(i) the grounds of review. The text of s 20 has its provenance in the opening passage in the much litigated s 5(1) of the ADJR Act. It will be apparent that three distinct elements are involved: first, the existence of a decision to which the Review Act applies (because made "under" an enactment); secondly, an applicant to the Supreme Court who is "aggrieved" by that decision; and, thirdly, reliance upon one or more of the listed grounds of review.
The first element as it appears in the ADJR Act has been well described as its "linchpin" which governs the statute at all stages[24]. It is with its appearance in the Review Act that this litigation is concerned.
[24]Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 49.
However, something more should be said of the other two elements in s 20. As to the requirement that the applicant be "aggrieved by" a decision, the question whether the applicant is such a person only arises if there can be shown to be a decision to which the Review Act applies. If the answer be in the negative, then there is nothing "by" which any applicant can assert a grievance. If the answer be in the affirmative, then a question of adequacy of "standing" may arise. Recollection of and reflection on many decisions construing the ADJR Act[25] indicate that, particularly with regulatory schemes, it is not the successful applicant for a permission or licence but a third party who seeks administrative review.
[25]There is a collection and discussion of a number of the cases under both the ADJR Act and the Review Act in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 683‑686.
In dealing with this criterion of a person "aggrieved", the cases under the ADJR Act may be said, putting the matter very broadly, to have rejected a "rights-based approach" whilst "understandably [refusing] to go into specifics"[26]. But it is one thing to anchor the legislation in the criterion of a decision to which the review statute applies because it is made "under" an enactment; another to fix the legislative criterion for standing to enliven the Review Act. It is the first which is the precondition for the second, not vice versa.
[26]Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 684.
With respect to the need to base an application for review upon one or more of the enumerated grounds, observations by Lehane J in Botany Bay City Council v Minister of State for Transport and Regional Development[27] are pertinent. Paragraph (a) of the listed grounds in s 5(1) of the ADJR Act and s 20(2) of the Review Act is concerned with a breach of the rules of natural justice in relation to the making of the decision in question. It was against this background that, in Botany Bay City Council, a case under the ADJR Act, Lehane J observed[28]:
"The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard. Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case. Ogle v Strickland[29] was, I should think, another; and North Coast Environment Council [Inc v Minister for Resources[30]] may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority."
[27](1996) 66 FCR 537; affd (1996) 45 ALD 125.
[28](1996) 66 FCR 537 at 568.
[29](1987) 13 FCR 306.
[30](1994) 55 FCR 492.

The reference in s 20(1) to a person "aggrieved" includes "a person whose interests are adversely affected by the decision" (s 7(1)(a)). The respondent has maintained that she is a person aggrieved by the decision because her exclusion from the PhD candidature has destroyed her prospects of following a professional career in the fields of molecular biology and bioscience. The University does not put its case on the ground that the respondent was not a person "aggrieved". Rather, the question cannot arise unless it be shown that there was a decision to which the Review Act applied.
The orders which may be made on an application for a statutory order of review in relation to a decision are detailed in s 30(1) of the Review Act. They include orders setting aside the decision or part of it; an order referring the matter for further consideration by the decision-maker; and relief in the nature of a prohibitory or mandatory injunction.
As indicated above, it is the expression in s 20(1) "decision to which this Act applies" which provides the battleground in the litigation. The expression is defined in s 4 of the Review Act as meaning a decision falling within the description in par (a) or par (b). Paragraph (b) states:
"a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non‑statutory scheme or program involving funds that are provided or obtained (in whole or part) -
(i) out of amounts appropriated by Parliament; or
(ii)from a tax, charge, fee or levy authorised by or under an enactment".
This finds no counterpart in the ADJR Act. No issue is before this Court respecting par (b). The focus in debate has been par (a). This is in terms which follow those of the definition of "decision to which this Act applies" in s 3(1) of the ADJR Act. The provision in par (a) in the Queensland definition reads:
"a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)".
The words within the brackets emphasise that the decision may be made in exercise of a power rather than an obligation, so that it is proper to speak of a decision required or authorised by an enactment.
Section 3 of the Review Act states that:
"'enactment' means an Act or statutory instrument, and includes a part of an Act or statutory instrument".
The term "statutory instrument" is comprehensively defined[31].
[31]Acts Interpretation Act 1954 (Q), s 36; Statutory Instruments Act 1992 (Q), s 7. The definition of "enactment" in s 3(1) of the ADJR Act includes "an instrument (including rules, regulations or by‑laws) made under [statute]" and many cases under the ADJR Act have turned upon the question whether a decision was "made under" such an instrument.
No statutory instrument is relied upon in this appeal[32]. However, the definition of "enactment" is not without significance. A decision made under a statutory instrument might, on one view, have been considered to have been made "under" the statute which conferred the power to make the statutory instrument. On that approach, it would have been unnecessary to give the fuller definition of "enactment".
[32]A submission by the respondent relying upon the term "statutory instrument" was made to the primary judge but because other submissions succeeded it was unnecessary to deal with it. The submission has not been revived by a Notice of Contention.
The application to the Supreme Court
By Application dated 18 November 2002, the respondent sought a statutory order of review setting aside the decisions culminating in and including that of the University Appeals Committee notified by the letter of 21 October 2002. The respondent identified in the Application the decisions in question as made by the University "under its Policy on Academic Misconduct" ("the Policy").
The respondent alleged various breaches of the rules of natural justice, failure to observe procedures required by various clauses of the Policy, errors of law, absence of evidence or other material to justify the decision, and the "improper exercise of the power conferred by the enactment" under which the action against her purportedly had been taken. The "enactment" was not specified but the evident intention was to identify the University Act.
The University applied for, but did not obtain, an order by the Supreme Court under s 48 of the Review Act dismissing the respondent's case. Under that provision, the Supreme Court may dismiss an application for review if it considers there is no reasonable basis for it (s 48(1)(b)). Mackenzie J expressed his rejection of the s 48 application by the University as follows[33]:
"[T]he tightly structured nature of the devolution of authority by delegation in relation to the maintenance of proper standards of scholarship and, consequently, the intrinsic worth of research higher degrees leads to the conclusion that, even though the Council's powers are expressed in a general (but plenary) way, the decision to exclude [the respondent] from the PhD program is an administrative decision made under an enactment for the purposes of the [Review Act]."
[33]Tang v Griffith University [2003] QSC 22 at [25].
The appeal to the Court of Appeal
An appeal to the Queensland Court of Appeal (Jerrard JA, Dutney and Philippides JJ) was dismissed[34]. Dutney J (with whom Philippides J agreed) accepted the respondent's submission, renewed in this Court, that the question whether a decision was made under an enactment for the purposes of the definition in s 4 of the Review Act was answered by asking of the decision[35]:
"[i]s it something that anyone in the community could do, which is simply facilitated by the statute, or is it something which a person can only do with specific statutory authority?"
[34]Tang v Griffith University [2003] QCA 571.
[35][2003] QCA 571 at [45].
The other member of the Court of Appeal, Jerrard JA, referred to decisions in the Full Court of the Federal Court, in particular General Newspapers Pty Ltd v Telstra Corporation[36]. In that case, it was said that the term "decision" in the ADJR Act carried a meaning "of an ultimate or operative determination which has force and effect by virtue of an enactment"[37]. The Full Court had then continued[38]:
"A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute. The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract."
[36](1993) 45 FCR 164.
[37](1993) 45 FCR 164 at 173.
[38](1993) 45 FCR 164 at 173.
It has been common ground throughout the present litigation that the enrolment of the respondent at the University as a PhD candidate did not give rise to a contractual relationship between the parties. In the Court of Appeal, Jerrard JA said[39]:
"In the instant appeal … there is no evidence of any payment made by [the respondent] to [the University] for admission to the PhD course, or of any terms or conditions agreed to between the parties when she was (presumably) admitted or accepted as a PhD candidate."
[39][2003] QCA 571 at [29].
Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside[40]. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi[41]; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, "jejune and inappropriate"[42].
[40][2000] 1 WLR 1988; [2000] 3 All ER 752.
[41]Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95.
[42][2000] 1 WLR 1988 at 1992; [2000] 3 All ER 752 at 756.
The definition
The defining expression "a decision of an administrative character made … under an enactment" has given rise to a considerable body of case law under the ADJR Act, some of it indeterminate in outcome. The focus has been upon three elements of the statutory expression. The first is "a decision"; the second, "of an administrative character"; and the third, "made … under an enactment".
The cases, particularly in the Federal Court, have tended to see these as discrete elements. But there are dangers in looking at the definition as other than a whole. The interrelation between them appears from the following passage in the joint judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond[43] respecting the ADJR Act:
"It does not follow that, because s 5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s 5 of [the ADJR Act] are at large. They are confined by the requirement in s 3(1) that they be made 'under an enactment'. A decision under an enactment is one required by, or authorized by, an enactment[44]. The decision may be expressly or impliedly required or authorized[45]. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment."
[43](1990) 170 CLR 321 at 377.
[44]cf Australian National University v Burns (1982) 64 FLR 166; 43 ALR 25.
[45]See Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 404‑406.
Bond[46] concerned the exercise of a power vested by statute in the appellant to suspend or revoke licences under the statute. This Court decided that, to qualify as a reviewable decision, it will generally be necessary to point to a decision which is final or operative and determinative, at least in the practical sense, of an issue of fact falling for consideration; a conclusion reached as a step along the way in a course of reasoning to an ultimate decision ordinarily will not qualify as a reviewable decision[47]. The reasoning in Bond, particularly that of Mason CJ, apparently responded to an apprehension of misuse of the statutory review system by challenges at intermediate stages of decision-making processes.
[46](1990) 170 CLR 321.
[47](1990) 170 CLR 321 at 337 per Mason CJ; Brennan J and Deane J agreeing.
However, as has been pointed out[48], there was left a number of "escape hatches" for such litigants. One of these was an absence of the Bond restrictions in the alternative avenues of review under s 75(v) of the Constitution or s 39B of the Judiciary Act. This possibility had been recognised at the outset by the Kerr Committee. In par 390 of its Report, the Committee had written[49]:
"The constitutional jurisdiction of the High Court in cases in which prohibition, mandamus or an injunction is sought against an officer of the Commonwealth is, of course, unaffected by our recommendations and the reasons why a Commonwealth Administrative Court is recommended with a somewhat parallel jurisdiction are set out in the report. The reasons are that many administrative decisions are not important enough to warrant the attention of the High Court; proceedings in the recommended Administrative Court should be less expensive and such a court should be readily available in a nearby locality; and the Court would be part of a comprehensive and integrated system of administrative law in relation to which the High Court would play its role in important matters either on appeal or where necessary in its original jurisdiction".
[48]Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 60.
[49]Report of the Commonwealth Administrative Review Committee, (1971) at 113‑114.
The second element of the definition to which attention is given by the case law is the expression "of an administrative character". The evident purpose here is the exclusion of decisions of a "legislative" or "judicial" character. The instability of the distinctions which the statute thus preserves may be appreciated by regard to two Federal Court decisions. In Queensland Medical Laboratory v Blewett[50], a ministerial decision which took effect by substituting a new table of fees for the table set out in a Schedule to the Health Insurance Act 1973 (Cth) was held to have a legislative rather than an administrative character. Thereafter, in Federal Airports Corporation v Aerolineas Argentinas[51], a determination by the Corporation in exercise of power conferred by the Federal Airports Corporation Act 1986 (Cth) to make determinations fixing aeronautical charges and specifying those by whom, and the times at which, the charges were due and payable was held to have an administrative rather than legislative character.
[50](1988) 84 ALR 615.
[51](1997) 76 FCR 582.
This appeal involves particular consideration of the third element; that presented by the requirement that the decision be "made … under an enactment". Here again, as with the earlier two elements just discussed, there is involved a question of characterisation of the particular outcome which founds an application for review under the statute. Questions of characterisation provide paradigm examples of the application of the precept that matters of statutory construction should be determined with regard to the subject, scope and purpose of the particular legislation, here the Review Act.
In considering the present case, some care is needed lest an answer is given at odds with the subject, scope and purpose of the Review Act. In a leading Australian text, the following passage is in point[52]:
"Many of the difficulties stem from the fact that no statute could possibly spell out the detail of every single decision or step in the decision-making process, which it requires of its administrators. Some statutes are admittedly more detailed than others, whilst some do little more than stipulate the administrator's end goals and a few methods. But, whether the statute be detailed or broad brush, they all need to contain a provision which states in substance and in very broad terms that a Minister, bureaucrat or other agency has the power (or even the duty) to administer this Act, and to do all things necessary in that regard. The recent trend is to treat decisions which can find no other statutory source of authority than such a clause as not being made under an enactment for ADJR purposes, although there has been scant attempt to identify why that approach should be adopted as a matter of principle." (original emphasis)
[52]Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 73‑74 (footnotes omitted).
It is not necessarily an adequate answer to the suggested attribution to the outcome in question of one character, to urge the possession of additional or alternative attributes. Two examples from federal constitutional law may be given. Where a federal law, the validity of which is in issue, fairly answers the description of being a law of two characters, one of which is and the other of which may be not a subject-matter appearing in s 51 of the Constitution, the possession of the positive attribute is sufficient for validity and the other character is of no determinative significance[53].
[53]Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 492 [16].
Again, a matter may "arise under" a law made by the Parliament within the meaning of s 76(ii) of the Constitution if the right or duty in question owes its existence to federal law or if it depends upon federal law for its enforcement[54]; this is so notwithstanding that the action in question is brought, for example, for breach of a contract or to enforce a trust. Thus, in LNC Industries Ltd v BMW (Australia) Ltd[55], a declaration was sought that a trust existed in respect of property, being import quotas created by federal law. An order was sought to enforce the trust by requiring transfer of the quotas and, in one sense, the source of the right to obtain the order for transfer was the general law respecting trusts. Nevertheless, the subject-matter of the trust owed its existence to federal law so that the litigious proceeding "arose under" that law[56].
[54]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154.
[55](1983) 151 CLR 575.
[56](1983) 151 CLR 575 at 581.
"Proximate source of power"?
The considerations just mentioned point against acceptance of a construction of the legislation here in question which turns upon the identification of "the immediate or proximate source of power" to make the decision in question, rather than an "ultimate source residing in ... legislation". The distinction was drawn in these terms in Post Office Agents Association Ltd v Australian Postal Commission[57] and has been applied in subsequent Federal Court decisions[58]. In Hutchins v Commissioner of Taxation[59], Black CJ held that the relationship between the generally expressed administration provisions of the Income Tax Assessment Act 1936 (Cth) and a decision by a Deputy Commissioner to vote against a motion put at a meeting of creditors under Pt X of the Bankruptcy Act 1966 (Cth) was "too remote and non‑specific" to qualify the decision as made under the taxation statute.
[57](1988) 84 ALR 563 at 571.
[58]These include James Richardson Corporation Pty Ltd v Federal Airports Corporation (1992) 117 ALR 277 at 280; Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 at 409.
[59](1996) 65 FCR 269 at 273.
Notions of immediacy and proximity have given rise to much difficulty elsewhere in the law, particularly with questions of attribution of legal responsibility for tortious acts and omissions. Moreover, there is evident from the reasoning of Jerrard JA in the present case[60] uncertainty whether the suggested criterion applies only where there are arguably competing statutory sources of power. The circumstance that a decision could not have been made but for the concurrence of a range of circumstances of fact and law does not deny that in the necessary sense it was "made under" a particular enactment. The search for "immediate" and "proximate" relationships between a statute and a decision deflects attention from the interpretation of the Review Act and the ADJR Act in the light of their subject, scope and purpose.
[60][2003] QCA 571 at [28].
What anyone in the community could do
Reference has been made earlier in these reasons to the acceptance by Dutney J and Philippides J of a criterion which asked of the decision whether it was something anyone in the community could do and was but facilitated by the enactment, or whether it required specific statutory authority. On appeal, this was developed by the respondent into two limbs:
"a) One first determines the true lawful source of the power to make the decision.
b) One then asks whether members of the community at large possess that power, either at common law or by statute: if the answer is in the affirmative, the decision was not made under an enactment; if in the negative, then the source of power must be statutory in the relevant sense." (original emphasis)

Rights of corporations/individuals:If, therefore, the phrase "made … under an enactment" is approached by reference to the test that I favour, in order to identify the competing possibilities of the legal source of the "decision" concerning the respondent, those possibilities in the present case are (1) the University Act; or (2) legal powers that the University has derived outside the University Act.
The possible alternative "sources" of the University's powers outside the University Act could only derive from the fact that that Act created the University as a "corporation" with "all the powers of an individual". The University may therefore enter into contracts. However, it was common ground that there was no right, express or implied under a contract, that could be invoked to sustain the lawfulness of what the University had done in the respondent's case (assuming the contractual distinction to be a correct one). Accordingly, it remains to consider what other sources the University could rely upon to act as it did in the respondent's case. The University Act afforded the University the legal status of a corporation and the powers of an individual. Yet, under the law applicable in Queensland, there was something that no corporation and no individual might do but only a university established or recognised under an Act[230], such as the appellant. This was, relevantly, to "provide education at university standard" and to "confer higher education awards". Apart from such a university, no corporation or individual in the State of Queensland could lawfully do this because of the specific prohibition in the Higher Education Act[231].
[230]See Higher Education Act, ss 6, 7 and 8.
[231]ss 6, 7 and 8.
It follows that, whereas the University, as a corporation with "all the powers of an individual"[232], could enter contracts[233] and do any other thing an individual could do, its power to provide university education and confer higher degrees derived, and derived only, from a source in the University Act. Necessarily, the power of the University to withdraw the provision of education at university standard to an admitted candidate and to deny access by such a candidate to a higher education award, had likewise to find a source in the University Act. The power to withhold is included in the power to grant. As it happened, the University itself recognised this. By its Council, within relevant powers, it established or authorised the relevant subcommittees and made appointments to them. It adopted the applicable Policies. All of this the University did under the University Act.
[232]University Act, s 6(1).
[233]University Act, s 6(1)(a).
Thus, whatever might be the case where a "decision" is made under a contract or, as in NEAT Trading[234] (as found by the majority of this Court), under the applicable provisions of another statute (the Corporations Law), the position in this case was quite different. The source of the University's power to make the "decision" that it did in relation to the respondent was, and was only, the University Act. The "decisions" affecting the "interests" of the respondent were not made "under" some other legal source of power. They were made "under" the Act or they were unlawful.
[234](2003) 77 ALJR 1263 at 1274 [47]-[51], 1275 [54]; 198 ALR 179 at 192-193.
No other source of power: As noted by the Court of Appeal and by this Court, it was common ground between the parties that there was no contract in existence between the respondent and the University, and thus no contractual source of power (as in Burns[235]) by which the University could have purported to act so as to permit the action taken against the respondent to be characterised as taken under a contract (assuming that to be a valid distinction) and not under the enactment. In the Court of Appeal it was held, correctly in my opinion, that in the absence of contract in this case the only possible source of power for the decision to exclude the respondent from the programme was the University Act. No competing statutory or other source of a relevant power existed.
[235](1982) 43 ALR 25.
The majority in this Court now holds that the University was acting only in its capacity under "general law" as a private entity, terminating a private "relationship" or "arrangement" with another entity (the respondent), as any person may do, without recourse to a statutory power[236]. Such a characterisation conceals the reality that the relevant "arrangement" between the University and the respondent consisted solely in the exercise by the University of its statutory powers under the Higher Education and University Acts with respect to the respondent, namely the powers to "provide education at university standard" and ultimately to "confer higher education awards" upon valid enrolment and undertaking of the relevant course.
[236]Reasons of Gleeson CJ at [19]-[20], [23]; joint reasons at [91].
The "arrangement" and "relationship" in question were co‑extensive with the University's powers and obligations under the University Act. Here, they involved nothing else. The termination of that "arrangement" or "relationship" was nothing less than the refusal by the University to exercise its powers in the respondent's case. Put affirmatively, it was the withdrawal from an already accepted student of the University's facilities of education and the conferral of its degree. Describing the events as the termination of an "arrangement" or "relationship" at general law cannot alter the basic character of the University's actions: the termination was, and remains, indistinguishable from the University's refusal to exercise the relevant statutory powers[237].
[237]Under the Review Act, as under the ADJR Act, "making ... a decision" is defined to include refusing to make a decision: s 5(a). See also ADJR Act, s 3(2).
The University could have entered into, or withdrawn from, various "arrangements" or "relationships" with students as it wished. But what gave this withdrawal its "bite", and its impact on the respondent, was the denial, inflicted on a person with an interest, of access to a tertiary education and eventually to a degree, which relevantly only the University could award, pursuant to the Higher Education Act.
Summary and conclusion:The foregoing approach, which I favour, is wholly consistent with this Court's decision in NEAT Trading[238], much as I disagree with that decision. It is firmly anchored in an analysis of the statutory provisions relevant to this case. Unlike the approach in the joint reasons, it does not contradict, but fulfils, the remedial language, structure and purpose of the Review Act. It avoids glossing the phrase "under an enactment" with an additional vague and opaque requirement that is not in the Act and that contradicts the standing and interest provisions that are there. It follows that the University's appeal to this Court should be dismissed.
[238](2003) 77 ALJR 1263; 198 ALR 179.
Of academic independence and other concerns
The special position of universities: I recognise that universities are in many ways peculiar public institutions[239]. They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper[240]; the academic merit of a thesis[241]; the viability of a research project[242]; the award of academic tenure[243]; and internal budgets[244]. Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside[245], such matters are "unsuitable for adjudication in the courts ... because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate". Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly.
[239]Nelson, "Judicial Review in the Community of Scholars: A Short History of Kulchyski v Trent University", (2004) 13 Education and Law Journal 367 at 375.
[240]Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at 1992; [2000] 3 All ER 752 at 756; Hines v Birkbeck College [1986] Ch 524 at 542 per Hoffmann J. See also, for example, Thorne v University of London [1966] 2 QB 237.
[241]Re Polten (1975) 59 DLR (3d) 197 at 206.
[242]R v University of Cambridge; Ex parte Persaud [2001] ELR 64 at 74 [21] (QBD).
[243]Re Paine (1981) 131 DLR (3d) 325 at 331-333.
[244]Kulchyski v Trent University (2001) 204 DLR (4th) 364 at 375 [26]-[27], 377 [32], 379-380 [40].
[245][2000] 1 WLR 1988 at 1992; [2000] 3 All ER 752 at 756.
However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud[246] (a recent English case similar to the present appeal), it is entirely "correct" of courts "to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment". In the present appeal, the respondent's claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to "pure academic judgment", such decisions are susceptible to judicial review. They are so elsewhere[247]. They should likewise be so in Australia. An appeal to "academic judgment" does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people.
[246][2001] ELR 64 at 72-74 [20]-[21] (QBD).
[247]For example Ceylon University [1960] 1 WLR 223 (PC); [1960] 1 All ER 631; R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538; R v Chelsea College of Art and Design; Ex parte Nash [2000] ELR 686; R v University of Saskatchewan; Ex parte King (1968) 1 DLR (3d) 721. See also, for review on contractual grounds, Olar v Laurentian University (2002) 165 OAC 1.
Where the personal interests of an individual are affected by an institution funded by public monies, there is, to use Woodhouse P's expression, a "double consideration"[248]:
"On the one hand a final year ... student should be entitled on personal grounds to know that an end to his potential career has been decided upon by the University for reasons that are entirely justified and by methods that are demonstrably fair and appropriate. As well there is the very distinct public interest in seeing that the very large investment of public money in taking him so far will not be thrown away except for good and substantial reasons."
His Honour's elaboration is apposite to the situation of the respondent in this appeal. This Court, by narrowly construing the Review Act and adopting an untextual gloss, effectively puts such persons outside the Act and leaves them without the means of judicial review which would normally be afforded them in other common law countries and hitherto in Australia. This withdrawal of the protection of the law is justified neither by the statutory text nor by past authority or consideration of legal principle and policy.
[248]Norrie [1984] 1 NZLR 129 at 135.
If a university asserts that, globally, by its very nature and by the character of its "decisions", it should be completely exempted from an enactment such as the Review Act, it has the right to seek such an exemption from Parliament[249]. None was granted here. The party seeking a statutory order of review must always establish that it is a "person aggrieved", that the decision in question is "administrative" in character, that it is "made ... under an enactment" and that relief should be granted in the exercise of the court's discretion. Without embracing notions of "deference" that find no footing in the Review Act (or the ADJR Act), it remains true that, in exercising a discretion in relation to a complaint concerning a "decision" of a university, if the decision was made fairly by the appropriate body in accordance with the applicable university policy, the risks of judicial interference would be slight indeed[250].
[249]For example under the Review Act, s 18, Sched 1.
[250]For much the same reasons as were mentioned, in another legal context, by Sedley LJ in Clark [2000] 1 WLR 1988 at 1992; [2000] 3 All ER 752 at 756. See joint reasons at [58].
Unwarranted fears of floodgates:The University's arguments propounded various sources of anxiety about the outcome that I favour. It is appropriate for me to address those concerns for I do not doubt that they were sincerely held. The ultimate answer to them is one of abiding legal, indeed constitutional, importance.
Where bodies, such as Australian universities, specifically the appellant, are recipients of large amounts of public funds, they cannot complain when, like other statutory authorities and public decision-makers, they are rendered accountable in the courts for the lawfulness of decisions they make "under" public enactments. It is not unreasonable that such bodies should be answerable for their conformity to the law. Relevantly, the law includes the law of procedural fairness ("natural justice"). Universities, in formal and important decisions about disciplinary matters affecting students and others, should be places of procedural fairness. So far as the law provides, they should be held to account in the courts in response to complaints – certainly those of a serious nature – that the ordinary legal entitlements have been denied to a person with the requisite interest[251].
[251]See Kioa v West (1985) 159 CLR 550 at 633; Ridge v Baldwin [1964] AC 40; Calvin v Carr [1980] AC 574 at 592-593 (PC).
I have demonstrated that there are many protections in the language of the Review Act against needless interference by the courts in decisions such as those to admit students to candidature for higher degrees or to exclude them once they are admitted. Both in terms of general principle governing the limited role of judicial review[252], and by reason of the provisions of the applicable legislation, the fear of an undue opening of "floodgates" in connection with university "decisions" is, as authority determining the scope of similar legislation demonstrates[253], unpersuasive.
[252]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291-293.
[253]Berkeley Cleaning (1985) 7 FCR 575 at 578. See also Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79.
Avoiding untextual limitations:The foregoing shows how unnecessary it is, in the case of the decisions of a university, to adopt the untextual approach, favoured in the joint reasons, that to be made "under" the University Act the complainant must show affection of his or her legal rights and obligations.
The suggestion that a candidate part-way through the University's procedures for admission to the higher degree of Doctor of Philosophy has had no "interests" affected by a finding of academic misconduct, exclusion from the University, removal from the prospect of a degree and with a permanent or long-term blight on any chances of academic advancement elsewhere and termination of career progression is, self-evidently, unrealistic. To analyse the respondent's situation in terms of her entitlement to enter the University's land by legal licence is also unconvincing. It seriously misstates her relationship with the University. Her complaint is not a spatial one but one of procedural unfairness and the non-compliance by the University with its own lawful procedures and Policies established by its Council under the University Act.
The respondent had clear "interests" that were affected by the University's decisions. Those "decisions" were "made … under an enactment", namely the University Act. They were directly traceable to the University Act. They were of a character, and with consequences, that only a university operating under the Higher Education Act could lawfully perform. The Review Act applied. The judges of the Supreme Court of Queensland were correct to so hold. Not only for the erroneous outcome in this case, but also because of the uncertain consequences that the distinction now drawn may bring to the beneficial accountability of public decision-makers to the law in Australia, I respectfully dissent.
Order
The University's appeal should be dismissed with costs.