Harradine v The University of Adelaide

[1991] HCATrans 251

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IN THE HIGH COURT OF AUTRALIA

Office of the Registry

Adelaide No A46 of 1989

B e t w e e n -

BRENDAN CONWAY HARRADINE

Applicant

and

THE UNIVERSITY OF ADELAIDE

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 3.49 PM

Copyright in the High Court of Australia

Harradine 1 4/9/91

MR H.A.L. ABBOTT: If it please the Court, I appear for the

applicant. I apologize for delaying the Court.

(instructed by Brendan Conway Harradine)

BRENNAN J: That is all right, Mr Abbott.

MR D.J. ELEBY, OC:  May it please the Court, I appear with

my learned friend, MR A. BESANKO, for the

respondent. (instructed by Finlaysons)

BRENNAN J:  Mr Bleby. Mr Abbott.

MR ABBOTT:  The applicant seeks special leave to appeal from

the judgment of the Full Court wherein the

Full Court decided that regulation 8(a) of the

Statutes of the University of Adelaide was a valid

regulation authorized by both of two particular

subsections of section 22 of the Act, which is the

section which empowers the University to legislate

and enact statutes.

That particular section appears in the

authorities at page 95. Section 22(1) provides

that:

The Council shall have power to make, alter or

repeal any statute, regulation or rule for any

of the following purposes -

and there follow placita (a) to (1), and the
Full Court decided that the particular statute was
authorized by placitum (f) and placitum (1).

Placitum (f) empowers the enactment of statutes:

prescribing the fees to be paid in respect of

instruction, tuition, applications for awards,

or any other matters -

and it was held by the Full Court that the fee

imposed by clause 8(a) fell within the words "any

other matters". The court also held that it fell

within placitum (1) as a matter falling within the

any other matter pertaining to the
administration of the University.

Now, the particular clause the validity of

words:

which we seek to impugn is set out in the judgment

of His Hqnour Justice Bollen, at page 11 of the
application book. Sorry, it appears in the

judgment of the judge at first instance,

Justice Prior, at page 1 of the application book.

It is clause 8 of chapter XXV of the statutes, and clause (a) provides that:

Harradine 2 4/9/91

Every student proceeding to a degree or a

diploma ..... shall, unless exempted therefrom
by the Council, pay an Entrance Fee and an

Annual Fee for membership of the Adelaide

University Union.

And the reason we say it is invalid is that it is

that aspect of it, namely that it imposes a fee

compulsorily for membership of the Adelaide

University Union. It is our submission that the
University has no power to compel a student to pay

a fee for membership of the union.

The Adelaide University Union is referred to

in the Act, section 71 of the Act, which appears in
the book of authorities at page 95 as well.

Section 21(1) provides that:

The union at the University entitled "The

Adelaide University Union" shall continue.

And subsection (2) provides that:

the constitution and rules of the union shall

be as they existed at the commencement of this

Act.

And (3):

The constitution and rules of the union may,

with the concurrence of the Council, be

altered in accordance with the procedures

provided by the constitution and rules.

Now, that is the only reference in the Act to the union, and as a matter of fact it was held by the learned trial judge that the union undertook

activities at the University which I might refer to

as activities outside the academic matters relating

to provision of clubs and social activities and

relations between academics and students; basically

matters that relate to matters other than the provision of tuition or.education or the preferment of degrees or awards or that sort of thing.

TOOHEY J:  Mr Abbott, was it the whole of clause (a) that

was challenged, or just the last line and a half

that referred to the annual fee for membership?

MR ABBOTT:  It was only that annual fee for membership that

was impugned.

TOOHEY J:  I asked you that because on page 1 there is a

comment by the primary judge that:

the validity of paragraph (a) of the Clause is

attacked -

Harradine 3 4/9/91

but we are to read that as meaning "the clause so

far as it refers to an annual fee for membership of

the union", are we?

MR ABBOTT:  Yes, Your Honour. I should say now that the

University of Adelaide Act was amended in 1978 by the addition of another placitum to section 22(1)

and that appears at page 102 of the authorities.

Section 15 of the amending Act inserted

placitum (fa) which provides that the University

may enact a statute:

prescribing, with the concurrence of the

Adelaide University Union, the fees for

membership of the union, and providing for the

collection and recovery of those fees by the

University on behalf of the union.

The other significant event that happened in 1978

was that the University union was incorporated, and

from that time on has been an incorporated body.

BRENNAN J:  What is the year of union fees which is under

attack here?

MR ABBOTT: That statute was enacted on 16 December 1971,

after the enactment of the 1971 Act.

BRENNAN J: But for which year did Mr Harradine want to

contend that he was not obliged to pay?

MR ABBOTT:  1987. So the statute we attack was enacted in

1971, when the Act was in its form as set out at

page 95 of the bundle.

BRENNAN J:  I am not following something. When was

paragraph (fa) inserted?

MR ABBOTT: In 1978. But we would point out that - - -

DEANE J:	Why does not (fa) apply?
MR ABBOTT: In our submission, (fa) does not go so far.

DEANE J: But (fa), if it applies, was enacted at the

relevant time.

MR ABBOTT: It was enacted in 1978.

DEANE J:  And we are concerned with 1987.

MR ABBOTT: That is when the compulsory fee was levied, yes,

but clause 8(a) was enacted in 1971, when we say

there was no power to enact it.

DEANE J:	I see.
Harradine	4/9/91
TOOHEY J:	We have not the benefit of the original

proceedings, Mr Abbott. What was sought: simply

declaratory relief that clause 8(a) of the relevant

statute was invalid?

MR ABBOTT:  Yes. That appears at page 9 of the application

book in the judgment of His Honour Justice Bollen.

The relief sought was a declaration:

That the University of Adelaide Act, 1971-1978

does not authorise the Defendant to require

students of the said University to pay fees

for membership of the Adelaide University

Union.

(2) That Part 8(a) of -

the statute -

is ultra vires .....

(3) That the Plaintiff has the right to be a

student of the Defendant whether or not he is
also concurrently a member of the Adelaide

University Union.

But, really, as regards clause 8(a), the

declaration is that it is ultra vires the Act.

TOOHEY J: But the Act which it is said to be ultra vires is

the Act of 1971-1978, is it not? At least that is

the way it appears at the foot of page 9.

MR ABBOTT:  Yes. The argument proceeded, on both sides, on

the basis that the validity of the clause had to be

decided in accordance with the Act as it was when

the clause was passed.

BRENNAN J: But from the point of view of the special leave

application, a practical consequence, if you were

successful, will be that the University would then

have to re-enact, if it saw fit, precisely the same

clause now acting under the power conferred by

paragraph (fa).

MR ABBOTT: If indeed paragraph (fa) did authorize the

compulsion to pay the levy, as opposed simply to

prescription by the University of the fee, and the

collection by it on behalf of the union. It is the

compulsory levy of it that we say is invalid, or

makes it invalid.

DEANE J: Provided the new clause was with the concurrence

of the union which, on the argument against you,

was not necessary previously.

Harradine 4/9/91

MR ABBOTT:  I am sorry, Your Honour. No, that is right.

The concurrence of the union was never set out

before in the Act and, in fact, the fee was never

before referred to in the Act in express terms.

DEANE J:	And is the constitution of the union in evidence?
MR ABBOTT:	It was in evidence - it may not be in the bundle

of documents.

DEANE J:	Can the union expel somebody?
MR ABBOTT:	One thing that the constitution does provide is that the category of ordinary member is a student
who is required to pay the fee.  The student is
then required to be nominated and elected by the
board of the union.  So the payment of the fee does
not actually, of itself, grant membership. As to expulsion, I am not aware of what the position is
about that.

DEANE J: Well, it does appear from the evidence that a

student is not automatically entitled to membership

of the union, does it?

MR ABBOTT:  No. And in fact - - -

DEANE J: Well, "no" means it does appear or it does not

appear from the evidence?

MR ABBOTT: Well, on the evidence he was enrolled as a

student and paid - I will start again. For the

1986 year he did not pay his fee and did not become

a member of the union, and because he did not pay

his fee he was not entitled to become a member of

the union.

DEANE J: But what if he had paid the fee?

MR ABBOTT: Well, if he paid the fee then he would have been

entitled to be an ordinary member, subject to being

nominated and elected by the board of the

University, pursuant to - I understood that - yes.

An "ordinary member" is defined as:

All students who are required by any statute to pay the annual fee.

That is clause 3.1 (a); and then clause 3.4 provides that:

All ordinary members shall be nominated and

elected by the board.

So there, in my submission, must be a nomination

and election by the board.

Harradine 6 4/9/91

DEANE J:  You are saying that somebody who pays the fee is

not entitled to become a member; he is eligible to

be elected as a member.

MR ABBOTT:  Yes, eligible to fall within the category of an

ordinary member, and then he is required to be

nominated and elected by the board. So that the

University compels payment of the fee, but it then lies in the hands of the union to confer

membership.

DEANE J: Well, may it not be relevant to know if somebody

can be expelled from the union?

MR ABBOTT: Well, our objection is that we should be

required to pay the fee in the first place.

DEANE J:  You may not want to pursue it, but does it appear

from the evidence whether somebody can be expelled?

MR ABBOTT:  No, Your Honour.

DEANE J: The constitution of the union is not in evidence?

MR ABBOTT: Well, it provides for cessation, and one of the

grounds of cessation is upon ceasing to be required

to pay the fees under the statute, the annual fee

for membership.

DEANE J: But you cannot be expelled for misbehaviour in the

union premises, for example?

MR ABBOTT: 

I think you can be expelled from the University,

but I am not sure whether or not the constitution
deals with that.

TOOHEY J: 

What does "elected by the board" mean, Mr Abbott?

Obviously there is a board. Is it majority vote, or are there any sort of guidelines for the board

in considering whether or not to elect someone to

membership?

MR ABBOTT:  As I understand the constitution there are not

any guidelines. I would have to concede that, upon

being eligible, it would be very likely to follow

that membership would follow that - - -

DEANE J: But that is not the point.

MR ABBOTT:  - - - as a matter of fact, but there is, as I

understand it, no entitlement to membership upon

payment of the fee.

DEANE J: Which means, if what you say be correct and if the

material was in evidence, somebody who is refused

membership of the union is ordered to pay a

Harradine 4/9/91

compulsory fee to the University for membership of

the union.

MR ABBOTT:  Yes. And the point I am making is that it does

not lie in the hands of the University to ensure

membership. Although membership is almost

inevitable to follow from payment of the fee, it

lies in the hands of the union, not the University.

Equally, the funds raised by the fee are passed on

by the University to the union, and dealt with by

the union under its constitution, which has broad

powers as to the use it can put its funds to.

So the University does not control the use of

the funds raised by the fee and, as is made clear
by the 1978 amendment, it acts as the collector of
the fee, for which it must account to the union.

So it is not a matter of the University raising the

fee and then deciding to use it for the certain

purposes, one of which is the union; it is a matter

of the University levying a fee on behalf of the

union. And in our submission, neither

a separate body.

section 22(l)(f) or section 22(1)(1) authorizes the of

BRENNAN J:  Mr Abbott, knowing that there is now

paragraph (fa) inserted into section 22(1), what is

it about the problems of construction of 22(1) as

it used to be and clause 8 of chapter XXV of the

statutes of the University which makes those

problems of construction problems which ought to be

considered by this Court on a grant of special

leave?

MR ABBOTT:	The significance of the point of construction is that the Act prior to 1971, the University of
Adelaide Act, was in terms very much similar to the
University of Melbourne Act, which was considered
by the Full Court of Victoria in Clark's case. In
Clark's case, the Full Court decided that the
legislative provision gave power to the university
council to legislate on any subject that was, in essence, for the good government of the university,
and that the power was not limited to the specific
objects set forth in the section.

The 1971 Act here repealed our earlier Act,

the Act of 1935, which was probably in pari materia with the Victorian Act, and replaced the equivalent

section with section 22, and the material

difference, we say, was that subsection (l) was

enacted in a materially different form from the

previous subsection.

The previous subsection was as wide as could be, and that appears at page 81 of the book, and it

Harradine 4/9/91

is section 18 of the 1935 Act, placitum XII. That

provides that - after the specific objects it

provides:

In general, all other matters whatsoever

regarding the university.

Now, that was repealed and replaced by section

22(1)(1), which is in, we say, a significantly

narrower form, namely:

prescribing any other matter pertaining to the

administration of the University.

BRENNAN J:  Be it so, why is it a matter of general public

importance, as distinct from an interesting problem

now partially overcome by the enactment of (fa), if

not totally, which, no doubt, is an interesting

problem of construction, but where is the general

question of public importance?

MR ABBOTT:  It affects the powers of the University to

legislate and, on the one hand, the powers may be

as they were found to be in Clark's case, powers to

legislate for the good government of the limited to the objects set out in section 22, which
is a far narrower power to legislate. So, from the

University's point of view, it is a significant

question as to what they can or cannot do.

BRENNAN J:  The university union has been at Adelaide

University for many, many years. That is my

recollection. Is that correct?

MR ABBOTT: That is right.

BRENNAN J: Before the 1971 Act.

MR ABBOTT: For many, many years before that, yes.

BRENNAN J:  And I would imagine that over the years the

statutes of the University have provided, in a

manner similar to that provided for in clause 8 of

chapter XXV.

MR ABBOTT:  Yes, I think clause 8(a) - well, the effect of

it has been in existence since something like 1961,

or thereabouts - perhaps 1967.	1967, I think it
was.

BRENNAN J: It would be surprising if a provision such as

that was in the contemplation of the legislature as

going to lie outside the powers of the senate once

the 1971 Act came into force. It would have been a

radical change in the organization of the

Harradine 9 4/9/91

University and its arrangements with the union,

would it not?

MR ABBOTT: Well, we say that there was a radical change in

the 1971 Act from its predecessor, which indicates

a narrowing of the legislative intention, which is

especially significant since the fee, or no fee

remotely resembling it, is referred to in express

terms in section 22. So where it might have been

authorized before the 1971 Act, it, we say, is not

authorized afterwards. And in the 1971 Act there

are other sections which indicate an awareness by

the legislature to protect the students from this

sort of incursion. I draw specific reference to

section 5 of the 1971 Act which provides that:

The University shall not discriminate

against -

this is page 91 of the book -

or in favour of any person upon grounds of

sex, race or religious or political belief.

Now, the insertion of ttsex, race and political

belieftt is new. The old section only referred to

ttreligious belieftt, Further than that, in

section 18(6) of the Act, page 94, dealing with the

senate, ttall graduates of the University shall be

members of the senate", but there is a specific

provision in subsection (6) which allows a person

to be:

exempted from membership of the Senate upon

satisfying the Council that he objects upon

grounds of conscience to membership of the

Senate.

Now, in our submission, that shows a concern for

the effect upon people of the compulsion to join a

body, which would indicate that the legislature did

not intend the University to impose such an

obligation in the absence of express words

authorizing it in the Act.

Further than that, the Act gives greater

powers, or gives a greater right, to the students

in that where, before, they were not entitled to be

elected or vote in elections to the council, the

1971 Ac~ gives them the right to stand for election

and vote, and that right is predicated upon the

student being enrolled. And if the student is

refused enrolment, because he does not pay this fee

for membership of the union, not only is he barred

from pursuing his studies, which is a drastic

consequence, but he is also barred from standing

for election to the council. And there is no such

Harradine 10 4/9/91

restriction in the qualification section that would

suggest that the legislature intended that at all.

Lastly, the legislature has shown a regard for the rights of the students, which again did not

exist before, in passing section 23, which relates

to by-laws - it is at pages 95 and 96 - which

provides, in subsection (3):

No by-law shall be made -

(a) except at a meeting of the Council of

which at least fourteen days' prior notice has

proposed;

been given in writing to each member of the

and that is a requirement which does not exist in

relation to any other of the council's business; it only relates to by-laws which affect the discipline

of the students. And a by-law, as does a statute,

has to be confirmed by the Governor.

So, in providing for the enactment of by-laws

that affect the students, providing that sort of

notice that has to be given prior to the passage of

a by-law, it is our submission that the Act, again,

shows an intention to respect the rights of the

students, which rights, we say, are violated in an

impermissible way by the forcing the compulsory

levy of this fee for membership of a body to which

they may not want to belong.

TOOHEY J:  When you say "in an impermissible way", are you

still putting that as a question of construction?

I am just having a bit of difficulty with the

argument. It seems to be a construction argument,

although at times you speak of the rights of

students and, perhaps, seem to be hinting at

something more fundamental than a construction

point.

MR ABBOTT:  No, with respect, Your Honour, I simply mean

that it is a construction point, but the effect of

the clause is such that it is likely the

legislature would have intended the construction

adopted by the Full Court, unless it used rather

more express words to indicate it. And I simply
mean by that, the effects are very dire as far as a

student is concerned, not only in terms of expense

but also in terms of the effect upon his continuing

his education.

TOOHEY J: Yes, I can see that.

MR ABBOTT:  But it is really a construction point, and we

say that there are no express words in the statute

Harradine 11 4/9/91

to authorize it, where, if it was intended, one

would expect them to be there. And we say that

under placitum (f) the matters for which fees can

be raised are set out, and are the sort of matters

which bear no relation whatsoever to a compulsory

fee for membership of a union, a separate body.

They are matters which relate entirely to what I

might call academic matters: for awards, for

tuition, for instruction; for all those sorts of

things. And it is our submission that they

constitute a genus, and the words ''any other

matters" should be construed ejusdem generis with

that genus and do not encompass this sort of fee.

As to subsection (1), that the change and

narrowing of the language when compared with the

previous section indicates that the power to

legislate is not universal, but is restricted to

the administration of the University.

BRENNAN J: But are you not assuming that the Adelaide

University Union is not an integral part of

university life?

MR ABBOTT: Well, the finding of fact, we must accept, is

that it was - I think the phrase used was "part and

parcel of university life".	We must accept that
finding of fact, yes.

BRENNAN J: If the union is so regarded, why is not (1)

ample to cover that? Having regard to the language

of section 21 as well.

MR ABBOTT:	In our submission, section 21 simply operates to continue the existence of the union, and no more.
It does not - - -
BRENNAN J:	What possible concern is it of the council as to

what the constitution and rules of the union may

be, if the union is not regarded as an integral
part of university life to be kept under the

administration, if you like, of the council?

MR ABBOTT:  In our submission, the constitution of the union

is such that the only control the council has over

it is over changes to the constitution.

BRENNAN J: That is, no doubt, right; over changes to the

constitution and arguably over the revenue which

the unio~ may derive.

MR ABBOTT: Well, the constitution gives the union ample

powers to use its revenue as it sees fit, and I

think the evidence shows that at least the practice

was that the council would not interfere with the

disbursement of funds by the union. So, the fee

was levied by the University, passed on, virtually

Harradine 12 4/9/91

as an agent, to the union, for the union to do with

the funds as it saw fit.

Now, it may have provided services that were

beneficial to many students, but they were services

that were outside the academic and instructive

purposes of the University, and it is our

submission that the Act, in failing to mention that

these services and benefits are within the province
of the council, contemplates that they are within

the province of the students to organize as they

see fit.

BRENNAN J:  No doubt what happens, practically speaking,

under paragraph (b) of clause 8, chapter XXV, is

that the union year by year presents the council

with a budget of its intended expenditure, and the

council and the union no doubt negotiate about the

intended expenditure and activities of the union,

and when that is all finished the council then

strikes the fee. That is how it would practically

go, I would imagine.

MR ABBOTT:  Yes, that determines the amount of the fee, and

we say that the statute empowers - for obvious

reasons of convenience - empowers the University to

levy and collect the fee, because it can be done at

the same time as enrolment.

BRENNAN J: Yes.

MR ABBOTT:	But we say that is all subsection (fa) does, and does not provide the power to compel payment of the
fee.  And if a student wishes to belong to the
union, well, in our submission, that should be his choice and it is not for the University to compel
the membership.
TOOHEY J:	Mr Abbott, would the position be any different if

the requirement of an annual fee for membership of

the union were not linked to the entitlement to

proceed to a degree? In other words, if there was

a requirement of compulsory payment of an annual

fee - and let us assume,· without any corresponding

right to membership - and the only apparent

consequence of that was a right of recovery on the

part of the union, would the position be any

different?

MR ABBOTT:  In our submission, it would not be different

because, even in that form, it would still not be

authorized by the section.

TOOHEY J:  Then the argument does not appear to place any

weight on the requirement of the payment of an

annual fee as an apparent condition of entitlement to proceed to a degree? I put that as a question.

Harradine 13 4/9/91

MR ABBOTT: Well, it is our submission that the University

is not empowered to charge such a fee and it is

objectionable for that reason.

TOOHEY J: Full stop?

MR ABBOTT: Full stop. It is all the more objectionable

because they can use that as a reason for refusing

a student to proceed to a degree. It may be that

the University had power to levy a fee for itself

from the students, to be used for stipulated

purposes, which is what the regulation did in

Clark's case, but here the clause does not do that.

All the University is, is basically a collecting

agent for another body, the union. As to the

effect of non-payment of the fee - - -

DEANE J:	Mr Abbott, at page 4 of Mr Justice Prier's
judgment there is stated:

The imposition of that fee by the old clause 9

was specifically endorsed and approved by

Parliament, not rejected by it, in (3) of

Section 2 of the present Act.

Where do we find section 2(3) of the present Act?

MR ABBOTT:  Section 2(3) was an amendment that was enacted

in 1972, and it appears - I am not sure that it is
in the book, but it is number 40 of 1972, and it

amended section 2 of the 1971 Act to insert a

saving clause, and the saving clause, if I could

read it, was:

The statutes, regulations, rules and by-laws

made under the repealed Act and in force

immediately before the commencement of this

Act -

that is the 1971 Act -

rules and by-laws lawfully made under this Act

shall be deemed to be statutes, regulations,

and shall have force and effect for the

purposes of this Act as from the time of its

commencement and may be amended or revoked by

statute, regulation, rule or by-law, as the

case may require, made under this Act.

So, a saving clause had been omitted from the

1971 Act, and in 1972 the saving clause is

inserted. But as to that, we submit that if the

clause was invalid under the 1971 Act, this saving

clause would not operate to make it valid.	It is
simply a saving clause.

Harradine 14 4/9/91

The other question apart from that - or it is related to the construction question, is whether or

not the fee is a charge or tax which it should be

interpreted that the Act imposes, or it authorizes

the council to impose in the absence of clear and

unambiguous language. This point was dealt with in

Clark's case by the Full Court reversing the decision of the learned judge at first instance who

held a similar fee was a tax, and it is our

submission that this fee is imposed by a public

body upon those members of the public that seek to

join the University. If it is imposed without

clear and unambiguous terms in the Act and that,

according to the rule, the Act should therefore be

construed as not authorizing that fee.

The decision of the Full Court in Clark's case

was that for the rule to apply then the body

imposing the charge or fee had to be an instrument

of the Crown. For the fee levy to be a tax it had instrumentality of the Crown and that the money was
to be levied for the use of the Crown, and the Full

not raised for the use of the Crown.

It is our submission that the University has

the characteristics of a public body, it is a

corporation created by statute and the rule applies

to it. So that it should not be able to levy this

sort of fee in the absence of clear and unambiguous

language, which is absent from the 1971 Act. There

have held in making rulings in relation to other matters affecting universities, namely, cases

are cases in which the public role of the

concerning the jurisdiction of a visitor; whether

a student has a right to be enrolled and those

sorts of issues.

In those cases comments have been made that

the University is providing instruction and

conferring degrees which are, or may be regarded as

public functions. It is created by statute,

subject to duties which are public duties, and it

acts in the public interest, and although it may

not strictly be an instrumentality of the Crown it

is a public body, we submit, which should be

subject to this rule, so that it should not be able

to impose a fee unless clearly authorized to do so

by its own statute. And we say that cases relevant

to that are not simply cases concerning government
bodies, municipal corporations, et cetera, but
cases involving statutory corporations which are
not public instrumentalities, and there are a

number of old cases where railway companies or dock

companies were incorporated by statute in the 19th

century and empowered to charge fees where the rule

Harradine 15 4/9/91

was held to apply that they should not charge fees

to the public unless clearly authorized to do so.

Now, there were two bases for that rule in

relation to statutory corporations: one was that

the corporation would draft its own Act and present

it to Parliament, the Parliament would enact it and

the courts therefore said that the Act should be

construed strictly unless there was clear and

unambiguous language. But the second basis for the

rule was, simply, that the public ought not to be

charged with apparent authority of the legislature

unless there was clear and unambiguous language to

support it. And, in our submission, the 1971 Act

certainly contains no such language.

The fee is for a - it is not for services

rendered by the University because the University

renders none. If anything, it is for membership of

the union and the benefit of services rendered by

the union.	So the levier of the fee does not
render the services.	The fee is levied whether or

not the payer wishes to partake of the services

offered by the union and, in fact, in this case,

Mr Harradine was at the University for the 1987

year and had not paid his fee; did not belong to

the union therefore, but was still required to pay

his fee. So that payment of the fee to him gave

him no benefit whatsoever.

So, although the union provides services, the

presence of which may be beneficial to those
students who wish to take advantage of them, they

are not services rendered to each student and we

say that they are in the nature of a tax.

The fee in Clark's case was paid to the

University and the distinction here is that

although here it is paid to the University, it is

paid to the University as agent for the union, the

fee is the union's fee. So that no services are

provided by the University though it levies the

fee.
The fee is enforceable, as is apparent from
the 1978 amendment, enforceable as a debt.	The

University may sue for it, but it is also enforceable in the sense that the University can refuse to re-enrol a student.

BRENNAN J:  Mr Abbott, you appreciate this is not the

appeal, this is the application for special leave

to appeal.

MR ABBOTT: If it please Your Honour. If I could come to

the special reasons which we say exist. We say,

first, that the statute was invalid as not

Harradine 16 4/9/91

authorized by the Act in 1971; we say the

importance of the question continues because

section (fa) and the amended section (1) in 1978

still do not authorize the compulsion to pay the

fee, so the question is still relevant and,

further, that the question of construction will

have an important bearing on just how wide the

powers of the University are. So those are my

submissions.

BRENNAN J:  The Court will adjourn briefly to consider what

course it should next take.

AT 4.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.56 PM:

BRENNAN J: We need not trouble you, Mr Eleby. This case

has been presented as raising a question of

construction of section 22(1) of the University of

Adelaide Act 1971, in order to determine whether

the council of the University had power to enact

clause 8 of chapter XXV of the University statutes.

If special leave were granted, and the appeal

were to succeed, the scope of the council's powers

in the relevant respect would not thereby be

finally decided, because in 1978 paragraph (fa) was

added to section 22(1) in the following terms:

prescribing, with the concurrence of the

Adelaide University Union, the fees for

membership of the union, and providing for the

collection and recovery of those fees by the

University on behalf of the union;

In the light of that amendment a majority of the Court do not think that the question of

construction raised by Mr Abbott, in his careful

argument, warrants the grant of special leave.

Accordingly special leave will be refused.

MR BLEBY:  I ask for costs, if the Court pleases?

BRENNAN J:  Do you? Do you have anything to say, Mr Abbott?

MR ABBOTT: Only that my client was a student at the

University, that the matter was raised in the interest of some students, and I ask the Court to exercise a discretion.

Harradine 17 4/9/91

BRENNAN J:  We note that the application for costs has been

made. There is no basis on which we are able to

decline that application. Accordingly, the

application for costs is granted.

AT 4.59 PM THE MATTER WAS ADJOURNED SINE DIE

Harradine 18 4/9/91