Rowley and Decision Maker

[2023] AATA 2732

Rowley and Decision Maker [2023] AATA 2732 (22 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3780

Re:Rev Comrade Rowley

APPLICANT

AndDecision Maker

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:22 August 2023

Date of written reasons:        25 August 2023

Place:Sydney

The application is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

......[SGD]..................................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – decision to exclude university student – student misconduct – no jurisdiction found – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Charles Sturt University Act 1989 (NSW)

Charles Sturt University By-law 2005 (NSW)

SECONDARY MATERIALS

Student Misconduct Rule 2020
University Student Appeals Policy

University Student Appeals Procedure

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

25 August 2023

INTRODUCTION

1. Rev Comrade Rowley (the Applicant) seeks review of a decision by Charles Sturt University (CSU) dated 1 May 2023 to affirm the CSU Appointed Officer’s decision to exclude the Applicant from enrolment for five years. The application was listed for an interlocutory hearing on 4 September 2023 to determine whether the Tribunal has jurisdiction to review CSU’s decision. Upon review of the filed materials, the Tribunal dismissed the application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) without proceeding to the listed hearing.

2. The Applicant was notified of the Tribunal’s decision on 22 August 2023 and requested written reasons for the Tribunal’s decision the following day.

   BACKGROUND

3. On 27 May 2023, the Applicant lodged his application with the Tribunal, attaching the CSU decision dated 1 May 2023. This decision was the determination of an appeal against CSU’s earlier decision to exclude the Applicant from enrolment for a period of five years under the Student Misconduct Rule 2020 (the misconduct decision). The appeal was confined to considering two discrete issues. First, whether the Applicant was afforded procedural fairness in the misconduct decision, and second, whether the Applicant had new evidence relevant to that decision. In brief, CSU dismissed the appeal, being satisfied that the Applicant was afforded procedural fairness and that he did not have new, relevant evidence.

4. The letter sent to the Applicant enclosing CSU’s decision includes an appeal clause. That clause states that there are two avenues of appeal against the decision, that is, a complaint to the NSW Ombudsman, or an application to the Administrative Appeals Tribunal. On 3 May 2023, a CSU representative emailed the Applicant, in effect restating the appeals clause.

5. On 5 June 2023, the Registry informed a CSU representative that CSU’s decision was not on the Tribunal’s jurisdiction list. The CSU representative acknowledged that the appeals clause in the letter was incorrect. It should have referred to the NSW Civil and Administrative Tribunal (NCAT) rather than the AAT. The CSU representative stated that the appeals clause had now been updated to correct this error.

6. On 6 June 2023, the Tribunal forwarded this correspondence to the Applicant with an accompanying letter requesting the Applicant to show that the Tribunal has jurisdiction to review CSU’s decision, and raising the possibility of dismissal under section 42A of the AAT Act.

7. On 19 June 2023, the Applicant provided a response. This is considered below.

   RELEVANT LEGISLATION

8. Section 25 of the AAT Act relevantly provides:

   (1)  An enactment may provide that applications may be made to the Tribunal:

   (a)  for review of decisions made in the exercise of powers conferred by that    enactment; or

   (b)  for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment

9. An “enactment” is defined in section 3 of the AAT Act to mean:

   (a) an Act;

   (b) an Ordinance of a Territory other than the Northern Territory, the               Australian Capital Territory or Norfolk Island; or

   (c) an instrument (including rules, regulations or by‑laws) made under an Act or under such an Ordinance;

   and includes an enactment as amended by another enactment.

10. CSU’s original decision to exclude the Applicant was made under CSU’s Student Misconduct Rule 2020 (the Rule).[1] Clause 3 of the Rule states that it is made pursuant to the Vice-Chancellor’s power to make rules under section 109 of the Charles Sturt University By-law 2005 (NSW).[2]

    [1] Student Misconduct Rule 2020 / Document / CSU Policy Library

    [2] Charles Sturt University By-law 2005 - NSW Legislation

11. CSU’s decision on appeal (the decision the Applicant seeks to review) was made under the University Student Appeals Procedure (the Procedure)[3] and the University Student Appeals Policy (the Policy).[4] Section 19 of the Charles Sturt University Act 1989 (NSW) (the CSU Act)[5] provides that a function of the Council is to “establish policies and procedural principles for the University consistent with legal requirements and community expectations”. The Council is the governing authority of CSU as established by section 8B of the CSU Act.

    [3] University Student Appeals Procedure / Document / CSU Policy Library

    [4] University Student Appeals Policy / Document / CSU Policy Library

    [5] Charles Sturt University Act 1989 No 76 - NSW Legislation

    DOES THE TRIBUNAL HAVE JURISDICTION?

12. The AAT Act is not the source of the Tribunal’s jurisdiction to conduct a review. Rather, the Tribunal’s jurisdiction “comes from statutes which confer jurisdiction on the Tribunal to review particular administrative decisions”: Federal Commissioner of Taxation v Apted [2021] FCAFC 45 at [16] per Logan J. The effect of section 25 of the AAT Act is that the Tribunal only has power to review a decision where an enactment expressly authorises review of that decision.

13. Neither the Procedure nor the Policy are “enactments” as defined by the AAT Act, nor do they provide for review of decisions made in the exercise of the powers conferred by them. For example, clause 38 of the Procedure merely states that students are not precluded from “exercising any available right of review of the decision by a court, tribunal or other external body with authority to review it.”

14. As noted above, the Applicant provided written submissions in response to the Tribunal’s letter of 6 June 2023. The Applicant submitted that the Tribunal has jurisdiction to review CSU’s decision, relying on section 27 of the AAT Act, section 7 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and section 107 of the Education Act 1990 (NSW) (Education Act). None of these provisions are of assistance to the Applicant. Section 27 of the AAT Act merely outlines who may apply for review of a decision at the AAT. It has nothing to say in relation to the types of decisions the AAT can review. In addition, the decisions that can be reviewed under the ADR Act and Education Act are only reviewable by NCAT (see section 4 of the ADR Act and section 3 of the Education Act).

15. For completeness, neither the CSU By-law nor the CSU Act make any reference to AAT review of decisions made under the Policy or the Procedure.

16. The Applicant filed voluminous material in support of his claim that he was treated unfairly by CSU. As this material is not relevant to the question of jurisdiction, it has not been considered.

    DECISION

17. The application is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 25 August 2023