Griffith University v Tang

[2004] HCATrans 103

[2004] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 2004

B e t w e e n -

GRIFFITH UNIVERSITY

Applicant

and

VIVIAN TANG

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 APRIL 2004, AT 9.34 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear with my learned friend, MS S.E. BROWN, of counsel, for the applicant.  (instructed by Minter Ellison)

MR B.D. O’DONNELL, QC:   May it please the Court, I appear for the respondent.  (instructed by Dibbs Barker Gosling)

McHUGH J:   Yes, Mr Keane.

KIRBY J:   Mr Keane, I notified the parties through the Registrar of the fact that I have had a long history of association with universities, having been the chancellor and deputy chancellor of different universities and on the council or senate of others.  I understand that neither the applicant nor the respondent has any objection to my participating in the application.

MR KEANE:   That is so, your Honour.  I think, perhaps, the form is we should actually ask your Honour to sit in the circumstances, and we do.

KIRBY J:   I was simply rostered and so my number came up.

MR KEANE:   If your Honour please.  Your Honours, the Judicial Review Act (Qld) emulates the Administrative Decisions (Judicial Review) Act (Cth) in that statutory review is afforded to those agreed by a decision made under an enactment. The scope of review then, available under the statute, is determined by the width of the phrase “under enactment”. The particular scope of the phrase has not been the subject of close consideration by this Court at all and the only consideration it had by this Court was in Bond 14 years ago and your Honour Justice Kirby adverted to it briefly, but only to say that it did not arise in Neat’s Case.

There is a line of Federal Court authority from Australian National University v Burns in 1982 until more recently in Salerno v National Crime Authority in 1997, to which we have referred in our submissions, which makes it clear, in our submission, that the phrase does not refer to any decision of an administrative body which owes its functions or capacity to act to a statute, or which is exercising its statutory functions.  These decisions have established that it is only a decision, itself required by and given force and effect by the statute which falls within the scope of the phrase and, hence, statutory judicial review.

In that regard, can we refer your Honours very briefly to three or four of those cases, without taking your Honours necessarily to them in any detail.  Firstly, can we take your Honours to the reference to the decision in General Newspapers v Telstra, which your Honours will find in the application book page 58.  Your Honours will see that the decision is referred to and excerpted at page 58, paragraph [16], beginning at line 17, and we would invite your Honours to read down to line 30, particularly the passage that says in the quote:

“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.  That empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract.”

Similarly, more recently in Hutchins v Federal Commissioner of Taxation, which is in the booklet we sent your Honours – it is item 5 – if your Honours go to item 5, particularly to page 272 in the passage which commences at F, and read the reference there to General Newspapers and the quotation from the joint judgment of Justices Davies and Einfeld which begins at G, and we note that Justice Gummow agreed with them, and they concluded:

“The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment.”

We will not take your Honours to them, but those passages were referred to and approved in the decisions of the Full Court of the Federal Court in ANU v Lewins, which is item 6 on our list, especially at page 101 in the judgment of Justice Lehane, with whom Justice Kiefel agreed, and in Salerno v National Crime Authority, which is item 7 on our list, at page 143 C to D.  Your Honours, all the decisions on our list and, indeed, all the decisions on ‑ ‑ ‑

McHUGH J:   As the Full Court pointed in Salerno, if every intra vires action of an organisation has decisional effect for the purposes of the statute, then the potential for massive disruption of an organisation’s activities is extreme.

MR KEANE:   Quite, your Honour, and in this case, if one goes to the decision of the Court of Appeal, if we can invite your Honours to go back to that, particularly to page 62, and if your Honours look at paragraph [28] ‑ ‑ ‑

KIRBY J:   I can see the importance of the point and, as you say, this Court has not really had a chance to go with any depth into the point, so that may be enough for special leave, but what is your answer to the contention that allowing that there are many, many things that may fall outside such a phrase as “arising under the enactment”, that what was involved in this case was really at the very heart of the purposes and functions of a university and that because of the Queensland provision forbidding other institutions from giving university degrees, that really this is striking at the very heart of the University’s function, that therefore, whatever may be the general elaboration of the legal point, that in the end the decision of the Court of Appeal is correct.  What is the answer to that?

MR KEANE:   Your Honours, can we say a couple of things in response.  The first thing we should say in response is that the notion that one can decide whether a decision is made under an enactment by looking at the core functions of the functionary is one which was rejected as long ago as the decision in Burns.  Your Honours will see that if your Honours go to page 60 of the record and see the passage from Burns that is cited in paragraph [23] on that page where, in the majority judgment, it was said:

“We cannot accept that to determine whether a decision is made ‘under an enactment’ it is legitimate to distinguish between decisions about matters lying at the very heart of the existence of the appellant or its Council and other matters.

In other words, this notion of a core function that is determinative of whether the decision is made under an enactment has been distinctly rejected by the majority in Burns’ Case, which has been referred to consistently with approval in all the cases since.

The second thing we would say, if we could take your Honours to what the majority said at paragraph [31] in this case – your Honours will see it begins at page 62 – and if we could invite your Honours to read from the bottom of page 62, paragraph [31] over the page where Justice Jerrard, with whom the other members of the court agreed, referred to what the learned trial judge did and then says:

When a decision made is as to a central or core function of the University, as it was here, where the decision is substantive and final, and where the decision is made in the exercise of the statutory power and responsibility vested in the University to execute its functions of encouraging study and research and conferring higher education awards, then the decision is likely to answer the description given by Thomas J in Blizzard v O’Sullivan –

and then there is reference to Justice Thomas’ decision which was a case where his Honour was able readily to say the decision was not made under an enactment because it was made under a contract.

Now, to the extent that this decision seems to want to distinguish the Federal Court cases on the basis that some of them are contractual cases, then we say it still cannot stand with those cases that are not about the exercise of contractual power.  Telstra, Hutchins and Salerno are all cases where there was no such contract.  To return more specifically to your Honour Justice Kirby’s question, we would submit ‑ ‑ ‑

KIRBY J:   Is there a contract argument in this case?

MR KEANE:   No, your Honour.

KIRBY J:   So that we are not faced with that suggested dichotomy?

MR KEANE:   No, your Honour, that is one of the ‑ ‑ ‑

KIRBY J:   Well, what is the foundation then of the University’s power if it is not to be traced back to its statute in a matter that is really a university‑type matter?

MR KEANE:   Your Honour, its right or its liberty that it exercised was the right or liberty of any individual conferred on it by section 6 of its Act to associate or not to associate with persons according to its own choice.

KIRBY J:   I remain to be convinced of that argument, but in any case you say that it is an important matter that this Court should look at.

MR KEANE:   We do, your Honour, and might we say, with the greatest respect, that the way your Honour put the question to us, that is not its power sourced back to its statute, that is precisely, in our respectful submission, the impermissible source of reasoning which is actually reflected in this core test approach.  The core test approach, in our respectful submission, is either too vague to be of any use or it is just another way of putting the “source of authority” test, which has been consistently rejected.

KIRBY J:   Yes, but your problem may be to postulate another proposition as to the source of a power in the case of a statutory corporation with limited objectives and purposes and powers.

MR KEANE:   With special functions, your Honour, but with a statutory conferral of all the powers of an individual.  Hence our indication of the right or liberty, if one wishes to get Hohfeldian about it, to associate.

McHUGH J:   There are a series of cases, including decisions in this Court, concerned with whether, for the purpose of the limitations statutes, statutory bodies are acting under, or doing acts under the Act.  They start in this case with Board of Fire Commissioners v Ardouin 109 CLR, Hudson v Vanderheld.  There are a series of cases and those cases hold that you are not doing something under the Act when you are just exercising some common law power.  For instance, in Hudson v Vanderheld it was held that councils are not acting under the Local Government Act when their vehicles are driving along the highway.  They do not need any authority from the Local Government Act to ‑ ‑ ‑

KIRBY J:   And that is the difficulty I presently have, that, I think, in Ardouin too, it was the fire engine driving on the street, but in this case this is the University exercising its powers and functions to, first of all, comply with the other Queensland law, which forbids other institutions than universities to grant degrees, and then, secondly, in respect of the decision which is really the very purpose of the University’s existence, giving legitimate university qualifications.

MR KEANE:   That is true, your Honour, but, similarly, if one simply says it is performing its function on the authorities and on the test that has been accepted until now, to be able to identify in the statute the source of one’s functions is distinctly not to answer the question whether a decision made by the body is made under enactment, because one is directed to the inquiry, “Is this decision which affects rights” – and it affects rights under the statute – “Is this decision to affect rights one which is made under the enactment?”

KIRBY J:   The difficulty I am having is seeing the analogy to driving a car on the road and this activity of upholding the integrity of the University’s ‑ ‑ ‑

MR KEANE:   Can we propose a couple of examples, your Honour.  In our submission, the decision to cease association in this case is no more a decision made under an enactment than was the decision in Telstra to exercise its functions to enter into contracts.  It is no more a decision made under the enactment than the decision of the National Crimes Authority v Salerno to decide to execute a warrant obtained under the general law. 

It is no more a decision made under an enactment than the decision of the Commissioner of Taxation in Hutchins’ Case to vote the tax debt in a scheme of arrangement under the Bankruptcy Act, or its no more a decision made under an enactment than a decision, for example, by the Federal Airports Corporation to exclude certain persons from entering into federal airport buildings.  These are all exercises of rights that people have because they own property, or because they are persons who have rights and liberties.

Another example which might be given in response to your Honour Justice McHugh’s point is, I think, Attorney-General – perhaps it is Clough’s Case – the decision on commissions of inquiry.

McHUGH J:   Yes, Clough.

MR KEANE:   It is Clough.  I think anyone can ask a question.

McHUGH J:   You do not need any power to ask questions.

MR KEANE:   Quite.

KIRBY J:   It is a very narrow view and it thereby cuts back important beneficial rights that are given under administrative law.

MR KEANE:   And your Honour appreciates that in Bond’s Case, Chief Justice Mason identified the competing considerations between the consideration your Honour mentions and considerations of efficiency on the other hand.  It is necessary to strike a balance, and our submission is that the course of Federal Court decision over the last 15 years has struck the balance.  It is obviously a balance with which the Parliament is content and, in our respectful submission, this decision of the Court of Appeal is distinctly a step away from that satisfactorily struck balance.

KIRBY J:   Well, whether it is satisfactory or not may be an important question.  We do not decide the matter today, but we have to consider whether it is an important issue, and at the moment I am inclined to think it is.

MR KEANE:   Your Honour, I am not sure ‑ ‑ ‑

McHUGH J:   Yes, I think we will hear from your opponent, Mr Keane. 

MR KEANE:   If your Honour please.

McHUGH J:   Yes, Mr O’Donnell.

MR O’DONNELL:   Your Honour, we submit there is not sufficient doubt about the correctness of the Court of Appeal decision.  If we could take your Honours to the ‑ ‑ ‑

KIRBY J:   How can you say that, given the long strand of authority in Burns and the fact that at 63 in paragraph [31] Justice Jerrard seems to have at least given considerable weight to this core function notion which might be the correct notion, but his Honour does not seem to be treading the Burns’ path.

MR O’DONNELL:   In our respectful submission, his Honour did not follow the core function test.  At page 57 he quotes from the various decisions in the Federal Court, Hutchins and ANU v Lewins.

KIRBY J:   Well, I am thinking of the second line on page 63:

When a decision made is as to a central or core function of the University, as it was here –

Now, I can see distinct arguments, especially in a statute that is supposed to be giving very important and beneficial rights to citizens to challenge public authorities, that that is a correct approach, but it has not been the approach taken by the Full Court of the Federal Court and, therefore, we have a disharmony between the way the Court of Appeal of Queensland is approaching the matter and the way the settled authority of the Full Court of the Federal Court.  Now, is that not an important question for us?

MR O’DONNELL:   In my submission, it does not reflect a disagreement with the Federal Court decisions.  It rather reflects the fact that, under this particular statute, the Griffith University statute, a statutory function of the University is the awarding of high degrees.  That is a feature peculiar to this legislation which was not present in the Federal Court cases.  When you look at the Griffith University statute, it sets out in section 5 the functions – this is in the application book behind tab 1.  Section 5(e) defines the University’s functions as “to confer higher education awards”.  Therefore, his Honour is simply saying that the decision in this case was in exercise of the particular statutory function conferred on the University and that is what distinguishes this case from the Federal Court decisions, in our submission.

KIRBY J:   Yes, well you could say in Ardouin, the purpose of the fire brigades is to fight fires and you do not do that with horses now.  You do it with cars and trucks.

MR O’DONNELL:   Anyone can fight fires.  Under the Queensland legislation only a university can confer a higher education degree and that was the question at issue here.  To make a decision to confer a degree or not to confer a degree is exercising that specific statutory function conferred only on universities.

McHUGH J:   Yes, but in the limitation cases that is not sufficient.  It is not merely Vanderheld and Ardouin, but you have Stephens’ Case, which was a case about firefighting off the roadway and it was held what was done was not done under the Act.  Then you have, in this Court, the ANA Case – I cannot remember the other party’s name – that it was held it was not done under the Act – the Australian National Airways Case.  There you are flying planes.  You may be right and these Federal Court cases may be wrong, particularly given the nature of the judicial review and what its purpose is, but it does seem to me a very important case to decide this issue because it affects the federal statute and the Queensland statute and probably other statutes.

MR O’DONNELL:   But ultimately it turns upon the particular decision here and the features of this legislation.  Any reviews by your Honours ‑ ‑ ‑

McHUGH J:   All cases do, but the argument against you is that the Court of Appeal fell into error because it applied the wrong test.  It applied a central or core function test and it is said that is not the test.  Maybe the test is, would you be acting unlawfully in conferring a degree if you did not have the statute behind you?  Now, you can say, yes, you would, but I am not sure this central or core function test is the correct test.

KIRBY J:   I can see a bit more merit in it myself.  It may be that that simply demonstrates that you got sucked into quite a significant case.  It was raised in Neat Holdings, as Mr Keane has pointed out.  I think Burns was footnoted in that case in the majority opinions.

MR O’DONNELL:   Yes.  But, ultimately, in my submission, the court’s reasoning did not turn on whether it is the central or core function test, or some other test.  It turned on the fact that under this legislation the University is given the specific function of awarding degrees.  This was a decision in exercise of that function.  It can only have effect because the University is given that statutory function.  It is as simple as that.  Can I take your Honours to Justice Dutney’s reasons which commence at the foot of 65?

McHUGH J:   Yes.

MR O’DONNELL:   I was going to take your Honours to Justice Dutney’s reasons, with whom Justice Philippides agreed, commencing at the foot of 65.  In paragraph [43] his Honour states the test for what is the decision under an enactment in a way which conforms to the Federal Court decisions.  It does not mention anything about central or core functions.  In paragraph [45] he states an apposite question, in our submission:

“Is 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?”

[46]  Griffith University has power to confer degrees by virtue of its status as a university conferred on it by the Griffith University Act 1998 (Qld). The effect of the Higher Education (General Provisions) Act 1993 (Qld) is that the conferral of a degree . . . can only be made by a university except in limited circumstances provided for in the Act . . .

[47]  The power of Griffith University to confer degrees is thus a power “under an enactment” because it meets the two criteria I have identified.  It is a power authorised or permitted by statute and it derives its legal efficacy from statute.

[48]  The decision in this case is not a decision to confer a degree but a decision not to confer a degree.  Since the choice whether to confer the degree or not only exists by virtue of the Griffith University Act it must in my view follow that the decision either to confer or not to confer must equally be a decision “under an enactment”.

In my submission, the reasoning is unanswerable and does not depend upon any disagreement with earlier Federal Court decisions.  Indeed, his Honour’s statement of the principles in paragraph [43] is entirely in accord with the earlier Federal Court decisions.

KIRBY J:   Now, if we were to grant leave, is there a request that the University should pay the costs of the appeal?

MR O’DONNELL:   Yes, there is, your Honour.

KIRBY J:   If they want to have this matter sorted out, it would seem reasonable that as a well‑funded institution they should pay for it.  That is at least subject to what Mr Keane says.  That is how I would react.

MR O’DONNELL:   Yes, there is that request, your Honour.

KIRBY J:   All right.  Well, you have said everything you want to say in the written submissions and in what you have said.

MR O’DONNELL:   Yes, your Honour.

McHUGH J:   Yes, Mr Keane.

MR KEANE:   Your Honours, apropos of what our learned friend said about Justice Dutney’s judgment, in our submission, it highlights the error.  All statutory bodies exercise special functions, but not every decision they make is reviewable.  The Federal Court decisions confirm that the question is distinctly not whether the statute confers special functions on a body and the capacity to discharge those functions, rather they say the question is whether the statute requires the making of and gives effect to a particular decision.  For example, in Hutchins’ Case, the decision made by the Commissioner of Taxation whose power was the administration of the Act to vote the tax debt, it is obviously something that the man in the street cannot do, but that did not make it a decision made under the enactment.

McHUGH J:   Yes, but that case and cases like it are far removed from this case, are they not, because you require the authority of the statute to confer the degree to give it any force.  It is not something that anybody else can do.  No other people can go along and confer university degrees, PhD degrees, in Queensland.

MR KEANE:   Well, as to that, that is because of the prohibition in the Higher Education (General Provisions) Act, section 8. It prohibits conduct by non‑universities. It does not require or give force to the decisions of universities. The power to confer degrees is conferred by the exception to that prohibition ‑ ‑ ‑

McHUGH J:   That tells against you, because you need your special power under the Griffith University Act to do something which the law otherwise prohibits.

KIRBY J:   This is getting back to Justice McHugh’s point that maybe the criterion is, would it be unlawful for you to do something other than under the Act?

MR KEANE:   Well, just as it would be unlawful for someone other than the Commissioner of Taxation to seek to vote the tax debt.  To identify the performance of a function is distinctly not to identify the making of a decision under an enactment because the latter phrase is concerned with the capacity to effect rights and duties by the exercise of a statutory decision‑making function.  The other thing we should say in relation to universities is that this statute confers specific functions on these bodies and gives them the powers then, all the powers of an individual to discharge those functions.

KIRBY J:   If you were granted special leave, there are two little defects that I see in the way it has been reasoned below.  First of all, it is all very incestuous.  There is no reference to any overseas decisions and there must be many decisions on this problem in other countries and it may be useful, if this Court looks at the issue, to have those available.

Secondly, they do not, in the courts below, give any real consideration to the issue that Justice McHugh kicked off in Kingston v Keprose that we really have to look at a statutory phrase like this in the context and for the purpose for which it is provided, which is to give important and beneficial rights of review to people to challenge decisions of public authorities.  I just wonder whether some of these Federal Court decisions have really not given enough attention to that fundamental principle of statutory construction.

MR KEANE:   We will certainly look at that, your Honours, in the event that leave is granted.

KIRBY J:   And what about costs in the event that leave were granted?

MR KEANE:   Your Honour, we will not quibble with your Honour’s observation as to the University being well‑funded and we will not barter with your Honours about the condition.

KIRBY J:   That is unusual.  Most universities are complaining about that.  But it is an unequal battle between an institution and an individual.

McHUGH J:   It is more than that, is it not?  This is not one‑off litigation between two private parties.  This is a matter of general importance to you just as cases under the Income Tax are of general importance to the Commissioner and we ordinarily require ‑ ‑ ‑

MR KEANE:   Yes, your Honour.  Your Honours, I might not have made myself clear.  We are not bartering with your Honours.  We have instructions to accept the condition your Honours would impose.

McHUGH J:   There will be a grant of leave in this matter, conditional upon the applicant undertaking to pay the respondent’s costs in this Court and not to disturb orders for costs in the court below.  You will give that further undertaking?

MR KEANE:   I had not taken instructions on the last aspect of it, your Honour.  I will seek those.

McHUGH J:   Yes.

MR KEANE:   Yes, I have those instructions, your Honour.

McHUGH J:   Yes.  That undertaking having been given, there will be a grant of special leave.

MR KEANE:   May it please the Court.

AT 10.05 AM THE MATTER WAS CONCLUDED