Thomas v University of Melbourne
[2018] VSC 647
•29 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01702
IN THE MATTER of an application under Section 3 of the Administration Law Act 1978
BETWEEN
| DARRON THOMAS | Applicant |
| v | |
| UNIVERSITY OF MELBOURNE | Proposed Respondent |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 and 17 October 2018 |
DATE OF JUDGMENT: | 29 October 2018 |
CASE MAY BE CITED AS: | Thomas v University of Melbourne |
MEDIUM NEUTRAL CITATION: | [2018] VSC 647 |
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JUDICIAL REVIEW – Application for ex parte order for review pursuant to s 3 Administrative Law Act 1978 (Vic) – Applicant complained about racial discrimination and bullying by persons supervising his candidature for the degree of PhD – Applicant aggrieved by findings of investigation of that complaint – Applicant sought internal appeal against those findings – University said no appeal available – Whether that decision amenable to an order for review – Consideration of the University regulatory framework and various policies - Whether a prima facie case for an order for review established – Held: no – Application refused.
Administrative Law Act 1978 (Vic) ss 2, 3 and 4; University of Melbourne Act 2009 (Vic); University of Melbourne Statute 2015; Academic Board Regulation 2015; Student Complaints and Grievances Policy (MPF 1066); Appropriate Workplace Behaviour Policy (MPF 1328); Student Appeals to the Academic Board Policy (MPF 1323).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | No appearance |
TABLE OF CONTENTS
Outline and summary........................................................................................................................ 1
Facts....................................................................................................................................................... 4
Background to the complaints.................................................................................................... 4
Initial complaint............................................................................................................................ 5
Complaint of victimisation.......................................................................................................... 6
Investigation and Report............................................................................................................. 7
Appeal............................................................................................................................................ 8
Decision and reply........................................................................................................................ 9
Requirements of the Administrative Law Act............................................................................ 10
University framework for investigation of complaints and appeals...................................... 12
University of Melbourne Act 2009................................................................................................. 13
University of Melbourne Statute.................................................................................................... 17
Academic Board Regulation........................................................................................................... 18
Policies.......................................................................................................................................... 21
Student Complaints and Grievances Policy.................................................................. 22
Appropriate Workplace Behaviour Policy.................................................................... 24
Student Appeals to the Academic Board Policy........................................................... 26
Discussion.......................................................................................................................................... 28
Scope and grounds for judicial review.................................................................................... 28
Jurisdictional error and error of law on the face of the record............................................. 30
Obligation to afford natural justice.......................................................................................... 32
Policy or law?.............................................................................................................................. 34
Exercise of the discretion to refuse relief................................................................................ 36
Conclusion and orders.................................................................................................................... 36
HER HONOUR:
Outline and summary
Mr Thomas is, or was (the evidence does not disclose his current student status) a PhD student at the University of Melbourne in the Department of Finance. On 1 March 2017 he made a complaint of racial discrimination and bullying against one of his supervisors (Supervisor) and also against the Director of the PhD program (Director).[1] Mr Thomas referred on a number of occasions in that complaint to a meeting held on 10 February 2017 between himself and members of his PhD supervisory committee, including the Supervisor and Director. He alleged that he was bullied and subject to racial discrimination at that meeting. On 15 March 2017, Mr Thomas made a subsequent complaint that the declaration by the Director on 8 March 2017 that his candidature was ‘at risk’ constituted victimisation for making his initial complaint. In these reasons, I describe both the initial complaint of 1 March 2017 and the subsequent complaint compendiously as the Complaint.
[1]The complaint was made online as required by the University. A printout is marked as Exhibit C.
The University engaged a consultant firm to investigate the Complaint (Investigator). The Investigator provided a report dated 15 December 2017 to the University (Report). Mr Thomas received the Report on 9 January 2018.
The discussion in the Report about the meeting on 10 February 2017 includes what it describes as ‘important background’ to the meeting.[2] The Report states ‘(o)n 2 February 2017, the Complainant’s supervisory committee held a meeting with the Complainant to discuss his progress. Following the 2 February 2017 meeting, the supervisory committee then met without the Complainant’. The Report then sets out what was said to have been agreed at that subsequent meeting (without Mr Thomas) and emails between members of the supervisory committee on 2 and 3 February 2017.[3] The Investigator found Mr Thomas’ allegations of racial discrimination and bullying at the meeting held on 10 February 2017 to be ‘unsubstantiated’.[4] The Investigator also found the allegation of victimisation to be unsubstantiated.[5]
[2]Bartlett Workplace, Investigation Report into Allegations of Bullying and Racial Discrimination made by Darron Thomas, 15 December 2017 marked as Exhibit D (Report) 24 [7.5].
[3]Ibid.
[4]Report 29.
[5]Report 48.
Mr Thomas had also made complaints of racial discrimination to the Australian Human Rights Commission (AHRC). On or around 5 June 2018 Mr Thomas says that he received an email from the AHRC to the effect that the University said there was no meeting between Mr Thomas and his supervisory committee on 2 February 2017.[6] On the basis of this information, Mr Thomas sought to appeal the findings in the Report in an email sent by him to the Academic Secretary to the Academic Board of the University on 26 June 2018 (Appeal). He submits that the Appeal was pursuant to the University’s Student Appeals to the Academic Board Policy (Appeals Policy).
[6]I draw this account from Mr Thomas’s email of 26 June 2018 to the respondent. The communication from the AHRC is not in evidence.
At the time he commenced this proceeding, Mr Thomas had not received a substantive reply to his email of 26 June 2018. He contended that the Academic Secretary had failed or refused to make a decision as to whether or not to accept the Appeal and progress it to hearing before a student appeal panel, as required by clauses 4.11 and 4.12 of the Appeals Policy. On that basis, he sought an order from the Court pursuant to s 3 of the Administrative Law Act 1978 (Vic) (ALA) requiring the Academic Secretary, or other appropriate respondent, to show cause why that failure should not be judicially reviewed.
Mr Thomas sought to file an affidavit under s 4 of the ALA in the Registry of the Court on 8 October 2018. Due to the form of his documents, they came to me for consideration as to whether to accept them for filing. I directed that they be accepted, in hard copy as opposed to electronically, in this and Mr Thomas’ related application relating to the Victorian Legal Services Board and Commissioner, and that the two applications come before me on 10 October 2018. On that date, I refused Mr Thomas’ application that the two applications be consolidated and adjourned each of them to 17 October 2018 before me for ex parte hearing. The procedure stipulated by the ALA is for initial ex parte hearing, and subsequent inter partes hearing if an order of review is made.
Mr Thomas received a substantive reply to his Appeal two days before the hearing on 17 October 2018. In that email, dated 15 October 2018, the Academic Secretary informed him that she did not consider that there was an avenue of appeal to the Academic Board pursuant to the Appeals Policy in respect of his dissatisfaction with the Report.[7] She further stated that she was not recommending any further action be taken. I will discuss the email (hereafter called the Decision), in more detail shortly. At the hearing on 17 October 2018, Mr Thomas sought, and I granted, leave to amend his application for an order for review to an application to review the Decision, on the basis that it is a dismissal of his Appeal.
[7]Email dated 15 October 2018 from Penelope Pepperell, Academic Secretary to Darron Thomas, a copy of which is marked as Exhibit A.
For the reasons that I now give, I refuse his application. In reaching that conclusion, I have approached some issues in a manner beneficial to Mr Thomas, but it needs to be borne in mind that at this stage the procedure required by the ALA is ex parte. That means that I have not had the benefit of any assistance from counsel for the University in undertaking my analysis of the University regulatory framework. Mr Thomas is not himself a lawyer, and is not legally represented. Had Mr Thomas satisfied me that there was a prima case for review, then I would have withheld publication of reasons beyond the parties until I had heard from the University through its proper respondent, which would have been the Academic Secretary.
As I will dismiss the application, it is important that I explain my reasons to Mr Thomas, and I consider that there may be benefit in publishing those beyond Mr Thomas. As indicated, however, the approach I have taken to the University regulatory framework is without the benefit of hearing from the University and so is not binding on it, and should not be regarded as determinative in any other proceeding. I express my conclusions with those provisos.
I note that for reasons to be published as Thomas v Victorian Legal Services Board and Commissioner I also refuse Mr Thomas’ application for an order for review directed to the Commissioner,[8] who would be the relevant respondent to that application. My analysis of the requirements of the ALA is the same in each application, but otherwise the applications are refused for reasons distinct to each application.
[8]Thomas v Victorian Legal Services Board and Commissioner [2018] VSC 645.
Facts
The underlying facts emerge from a combination of the affidavit that Mr Thomas has sworn and further documents that I sought from him, in an endeavour to understand his application, and that he tendered into evidence. Mr Thomas does not appear to have had legal assistance in the preparation of his affidavit, or in the preparation of his application generally, and perhaps for that reason his affidavit is difficult to follow. It is not confined to a statement of the relevant facts and attachment of the relevant documents on which Mr Thomas relies set out in clear and numbered sequence. It recites extracts of documents, rather than attaching the document itself, and includes matters of argument, extracts from legislation, the orders sought by Mr Thomas at the time of its preparation, and the application he made at that time. A further complicating factor is the last minute change to his application as a consequence of receiving a substantive reply from the Academic Secretary. Mr Thomas addressed me orally as to what he contends are the errors in that reply, and has also put into evidence his reply to the Academic Secretary’s email, which sets out in writing his contentions as to her error.[9]
[9]Email of 17 October 2018 from Darron Thomas to the Academic Secretary, marked as Exhibit B.
Doing the best that I can on the basis of the affidavit, the other documents Mr Thomas put into evidence at my request, and his oral submissions, the following emerges.
Background to the complaints
Mr Thomas participated in a confirmation seminar with his supervisory committee on 9 February 2016, as a candidate for the award of PhD in the Department of Finance, within the Faculty of Business and Economics. Prior to the seminar, he prepared a confirmation paper, which was a report of his progress towards the degree to date. Prior to the confirmation seminar, the Supervisor sent an email to Mr Thomas to the effect that he had read Mr Thomas’ work and considered that he should simplify and explain his empirical results. Mr Thomas was aggrieved by this email and what he considered to be the Supervisor’s dismissal of his theoretical work immediately after the confirmation seminar. Mr Thomas was also aggrieved by subsequent actions or what he perceived to be omissions by his Supervisor in relation to his work.
There was a meeting between Mr Thomas and members of his supervisory committee on 10 February 2017 in which his progress towards his degree was discussed. The supervisory committee was critical of that progress. Mr Thomas was aggrieved by the conduct of his Supervisor and the Director at that meeting. He was also aggrieved at the contents of an email sent to him by the Director after the meeting purporting to summarise what had been agreed at the meeting, and a later email proposing a varied course of action for him to undertake. Mr Thomas was also aggrieved at emails from the Supervisor responding to what the Supervisor claimed was an assertion by Mr Thomas at the meeting that the Supervisor had lied.
Mr Thomas made his initial online complaint against the Supervisor and Director on 1 March 2017.
On 8 March 2017 the Director gave Mr Thomas notice that his candidature was ‘at risk’. On or about 15 March 2017, Mr Thomas complained that the ‘at risk’ notification was victimisation for making his complaint of 1 March 2017.
Initial complaint
The initial complaint of 1 March 2017 is 15 pages long. I have read it in full, but it is not necessary to set it out in full in these reasons. The complaint Mr Thomas made is about the negative assessments by the Supervisor and Director of his work towards his degree. Mr Thomas begins the complaint under the heading ‘“Presumed Incompetent”- A Patently Racist Act’. Mr Thomas states that ‘(a)s a black man pursuing a PhD in the Department of Finance at the University of Melbourne, the environment has been made extremely hostile toward me by several persons’. He claims that in particular he experienced unfair treatment from the Director and Supervisor. He asserts that the ‘Key Acts of Discrimination’ he has experienced include (what follows is my summary drawn from page 2 of the complaint):
· not being judged on the merits of his work, because his work was dismissed by someone who had not read it;
· being stripped of his intellectual and other freedoms, because he was told he could only work towards his degree on one topic; and
· being bullied ‘by my professors’ and subjected to attempts to malign his character.
He identifies the ‘Key Areas of Discrimination’ as:
· being judged outside the merits of my work;
· creation of a hostile environment and bullying;
· stripped of my intellectual freedom; and
· differential and Unfair Treatment in Comparison to Other Students.
The balance of the complaint appears intended to substantiate these broad headings by analysis of various incidents and emails. It includes the assertions that he had been subjected to ‘racist innuendo’ and ‘unfair treatment’ comparable to examples given of racist behaviour in other contexts, including slavery.[10]
[10]Exhibit C, 3 and 7.
Complaint of victimisation
Mr Thomas contends that he made his complaint of victimisation by email sent on 15 March 2017 to two persons who he contends were the relevant people to whom such a complaint should be made. I allowed Mr Thomas to put this complaint, in the form in which it was first made, into evidence by providing it to my associate after the conclusion of the hearing. He did not do so. What he provided is an email to the Court into which he says he has incorporated the victimisation complaint, and his subsequent appeal by email dated 20 October 2017 to the Academic Secretary against what he considered a failure to consider the victimisation complaint, and a subsequent complaint made 9 August 2017.[11] I have marked the whole of the email to the Court as Exhibit E.
[11]By email sent to my associate on 17 October 2018 at 1.28 pm.
The portion of Exhibit E that purports to be the complaint of victimisation asserts that the declaration that his candidature is ‘at risk’ is retaliation for the complaint of 1 March 2017, which Mr Thomas describes as being ‘a racial discrimination complaint’.
It is difficult to identify from Exhibit E what constitutes the complaint there identified as a grievance filed on 9 August 2017. It appears to be a complaint that an investigation into at least the initial complaint was not being progressed sufficiently quickly, or by appropriate persons. Exhibit E includes what seems to be a recitation of a reply from the Office of the Provost dated 25 September 2017 to the effect that his complaints were the subject of a formal external investigation, presumably the investigation described below.
Investigation and Report
The University appointed the Investigator to investigate both the initial and the victimisation complaints.[12] The Investigator received instructions to commence the investigation on 22 August 2017.[13] The Investigator sought to conduct the investigation in accordance with the process set out in the University’s Appropriate Workplace Behaviour Policy in so far as the allegations concerned matters that occurred on or after the commencement of that policy, on 30 November 2016. In so far as the allegations concerned matters before that date, the Investigator sought to investigate them pursuant to the relevant precursor policy, the Equal Opportunity Policy. Both of those policies contain the same definition of ‘discrimination’ and substantially similar definitions of ‘bullying’.[14]
[12]Report 3.
[13]Ibid 5.
[14]Ibid 3.
The Report states that the Investigator sought to arrange a meeting with Mr Thomas in correspondence with him from 1 September 2017 to 24 or 27 October 2017. The Report states that Mr Thomas did not arrange a meeting by the last date stipulated by the University, 30 October 2017, and thereafter the Investigator was instructed to continue the investigation without further input from Mr Thomas. The Director declined an invitation to meet with the Investigator, but provided a written response to the Complaint on 9 November 2017. A lawyer for the Supervisor objected to the proposed investigation process on behalf of the Supervisor. Nevertheless, the Supervisor provided a written response to the substance of some allegations, under cover of objection.
The Report breaks down the Complaint into 11 allegations. All allegations were found to be unsubstantiated.
Appeal
Mr Thomas contends he appealed the findings in the Report by his email of 26 June 2018 directed to the Academic Secretary, Dr Penelope Pepperell. He states in that email that he is appealing to the Academic Board ‘under s 5.25 of the University of Melbourne’s Student Complaints and Grievances Policy (MPF 1066) and pursuant to the University’s policy/procedure on Appropriate Workplace Behaviour Policy (AWBP)’.
He states that the grounds for appeal ‘in accordance with s 4.3 of the University’s Student Appeals to the Academic Board Policy (MBF 1323) are that :
(b)there is new information that could not reasonably have been provided at the time of the original decision, and that would probably have affected the decision or any penalty imposed
…
(c) the decision was manifestly wrong.
These are grounds that appear in the Appeals Policy. In the Appeal, Mr Thomas says that they arise in his case because the findings made in the Report assume a meeting was held on 2 February 2017, when in fact there was no such meeting. He notes that the University has acknowledged that there was no such meeting to the AHRC, which in turn informed Mr Thomas on 5 June 2018. In relation to ground (b), Mr Thomas states ‘Given that there was no meeting on 2 February 2017 the entire investigation needs to be nullified…’ He specifically refers to the findings made in respect of two allegations, dealt with at pages 24 and 45 (Mr Thomas mistakenly refers to p 44) of the Report, but it may be that he intended to assert that all the findings were similarly tainted. In relation to ground (c), he asserts that ‘The decision by the “investigator” is manifestly wrong because it is based on a fabricated meeting.’
He states that the outcome he is seeking is:
To have ALL the findings detailed in the 09 January 2018 “investigation report” nullified. Furthermore, I am now requesting that an actual independent investigation be undertaken, where this kind of fabricated detail will not be allowed to go unchecked…
Decision and reply
In her email of 15 October 2018, the Academic Secretary says that she assumes the reference by Mr Thomas to s 5.25 was intended to be a reference to s 5.24 of the Student Complaints and Grievance Policy. She continues:
However, clauses 2.2 and 2.3 of the Student Complaints and Grievance Policy stipulates (sic) that complaints related to unlawful discrimination fall outside the scope of Student Complaints and Grievance Policy, instead the Appropriate Workplace Behaviour Policy applies.
The Appropriate Workplace Behaviour Policy, does not provide a channel of Appeal to the Academic Board. As such, your request for review is outside the scope of the Academic Board.
I understand that you have already sought a review of the decision taken by the University under the Appropriate Workplace Behaviour Policy with the Australian Human Rights Commission. I also understand; (1) you notified the AHRC of the error in the (Report); (2) the University confirmed the error to the AHRC; and (3) the AHRC with full knowledge of the error issued a decision to terminate your complaint due to lack of substance.
As an external and specialised independent body has already considered your complaint with full notice of the error in the (Report), and found your complaint to be without substance I am not recommending any further action be taken.[15]
[15]Exhibit A.
Mr Thomas replied to this Decision by email dated 17 October 2018.[16] In that reply, he contends that his initial complaint and his subsequent retaliation complaint are grievances within the Student Complaints and Grievance Policy, and so appeal is not precluded. He concedes that his complaint of 1 March 2017 ‘falls under the Appropriate Workplace Behaviour Policy’[17] but he contends that he is seeking to appeal the ‘process and outcome of “investigation”, not the Racial Discrimination, Bullying and Harassment which were the subject of the “investigation”’.[18] He also contends that the retaliation complaint is a ‘separate and distinct issue from unlawful discrimination and bullying’.[19] For these and other reasons set out in his reply, he asserts that the decision he is seeking to appeal does not relate ‘solely’ to unlawful discrimination or bullying, and so is not outside the scope of the Student Complaints and Grievance Policy. I will consider these contentions later in these reasons.
Requirements of the Administrative Law Act
[16]Exhibit B.
[17]Ibid 3, sixth paragraph.
[18]Ibid, first paragraph.
[19]Ibid, final paragraph.
The ALA permits the Court, on the application of a ‘person affected’ by a ‘decision’ of a ‘tribunal’, to issue an order for review directed to the tribunal, calling on it, or the members of it, to show cause why the decision should not be reviewed.
Section 4 of the ALA provides that the application for review is to be made ex parte, not later than 30 days after the giving of notification of the decision or the reasons for it (whichever is later), supported by evidence on affidavit showing a prima case for relief under s 7. Section 7 provides as follows:
7 Powers of Court
Upon the return of the order for review, the Court may discharge the order or may exercise all or any of the jurisdiction or powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings for relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto or in proceedings for a declaration of invalidity in respect of the decision or for an injunction to restrain the implementation thereof and may extend the period limited by statute for the making of the decision but shall not exercise any other jurisdiction or power or grant any other remedy.
The intention of the order for review procedure in the ALA was to remove the technicalities that beset applications to the Court for the grant of prerogative writs and similar remedies directed to bodies charged with the performance of public acts and duties. On return of the order for review, the Court has power to grant a remedy that, on the grounds set out in the order for review and on the evidence, it might have previously granted on the return of an application for any prerogative writ, or similar application. Section 7 does not empower the Court to grant new remedies, or enable an aggrieved person to obtain relief that he or she would not previously have been able to obtain. It removes the necessity for the applicant to choose the remedy he or she seeks, as it is for the Court to decide the appropriate remedy.[20]
[20]Monash University v Berg [1984] VR 383.
Application under the ALA is not the only mechanism by which decisions may be judicially reviewed. In appropriate cases, application for judicial review can be made under O 56 of the Supreme Court (General Civil Procedure) Rules 2015.
The qualifying requirements for application under s 3 of the ALA, are defined by s 2 of the ALA as follows:
decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;
person affected in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;
tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include—
(a)a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or
(b)a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.
Not all decisions are capable of supporting an application for review – the decision must be one that operates in law and determines a question affecting the rights or privileges of a person. Similarly, not all decision makers are liable to an order for review, but only those who are required by law to observe natural justice in arriving at the decision in question.
Notwithstanding that a prima case for relief is disclosed in the application under s 3, the Court may, pursuant to s 4(2), refuse the application ‘if satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal will impose no substantial injustice upon the applicant’.
University framework for investigation of complaints and appeals
The ALA only applies where the decision in question operates in law so as to affect the rights of a person, and where the tribunal in question is required by law, in arriving at that decision, to observe natural justice. These preconditions necessitate an examination of the framework within which the Complaint was considered and the Appeal lodged and dismissed.
In Mr Thomas’ application concerning the Victorian Legal Services Commissioner, I considered it appropriate to proceed on the basis that these preconditions were met (without finally deciding that issue) because the process that the Commissioner is required to follow in relation to complaints about legal practitioners is set out in the legislation creating the role of Commissioner itself. Further, that legislation expressly requires the Commissioner to observe the rules of procedural fairness in relation to the investigation and determination of complaints.
In this application, by contrast, the procedure for student complaints and appeals against the determination of such complaints is not set out in the relevant statute, the University of Melbourne Act 2009 (Vic) (UniMelb Act). Those procedures are set out in policies issued by subsidiary bodies or persons within the University, and those bodies or persons are not directly created by the UniMelb Act itself. The framework for the creation of those policies begins with the UniMelb Act, which creates the Council of the University, confers responsibilities on it including establishing ‘policy and procedural principles’, and authorises it to make university statutes and regulations. The Appeals Policy on which Mr Thomas relies is made by the Academic Board, which is not directly created by the UniMelb Act (although that Act does envisage an Academic Board), instead being created by the University of Melbourne Statute made by the Council.
I now set this framework out in more detail.
University of Melbourne Act 2009
Section 1 sets out the purposes of the UniMelb Act as follows:
1 Purposes
The main purposes of this Act are—
(a)to re-enact with amendments the law relating to The University of Melbourne by rationalising obsolete and disparate legislation; and
(b)to provide for a new Act reflecting best practice and a consistent approach to governance and reporting for universities in Victoria.
By s 4, the UniMelb Act declares that the University was established on 11 April 1853, and that it consists of the Council, the staff, the graduates, the students, such members of the staff of affiliated colleges or other bodies as are designated by the Council and the emeritus professors of the University. Section 5 sets out (non-exhaustively) the objects of the University as follows:
5 Objects of the University
The objects of the University include—
(a)to provide and maintain a teaching and learning environment of excellent quality offering higher education at an international standard;
(b)to provide vocational education and training, further education and other forms of education determined by the University to support and complement the provision of higher education by the University;
(c)to undertake scholarship, pure and applied research, invention, innovation, education and consultancy of international standing and to apply those matters to the advancement of knowledge and to the benefit of the well-being of the Victorian, Australian and international communities;
(d)to equip graduates of the University to excel in their chosen careers and to contribute to the life of the community;
(e)to serve the Victorian, Australian and international communities and the public interest by—
(i) enriching cultural and community life;
(ii)elevating public awareness of educational, scientific and artistic developments;
(iii)promoting critical and free enquiry, informed intellectual discourse and public debate within the University and in the wider society;
(f)to use its expertise and resources to involve Aboriginal and Torres Strait Islander people of Australia in its teaching, learning, research and advancement of knowledge activities and thereby contribute to—
(i) realising Aboriginal and Torres Strait Islander aspirations; and
(ii)the safeguarding of the ancient and rich Aboriginal and Torres Strait Islander cultural heritage;
(g)to provide programs and services in a way that reflects principles of equity and social justice;
(h) to confer degrees and grant other awards;
(i)to utilise or exploit its expertise and resources, whether commercially or otherwise.
For the purposes of this application, and on an ex parte basis, I proceed on the basis that these objects include public objects.
The UniMelb Act establishes the higher level governing bodies of the University – the Council (by s 8); the Visitor, who is the Governor of the State (by s 22); the Chancellor and at least one deputy chancellor (ss 24 and 25); and the Vice-Chancellor (s 26). The Act sets out the responsibilities, powers and functions of the Council in ss 8 and 9. Those responsibilities and powers relevantly include by s 8(3)(d) and s (1)(b) the making of policies and procedures. Sections 8 and 9 relevantly provide as follows:
8 The Council
(1) There is established a Council.
(2) The Council—
(a) is the governing body of the University;
(b) has the general direction and superintendence of the University;
(c)subject to this Act, the university statutes and university regulations, may exercise all the powers, functions and duties of the University.
(3) The primary responsibilities of the Council include—
(d)establishing policy and procedural principles for the operation of the University consistent with legal requirements and community expectations;
9 Powers and functions of the Council
(1) The Council has the following functions and powers—
(b) to establish policies relating to the governance of the University;
Thus the creation of policies is a responsibility of the Council (not just a power) and those policies are to be ‘consistent with legal requirements and community expectations’.
With the exception of the creation of these positions and bodies, however, the UniMelb Act delegates the making of detailed provision for the governance of the University to the Council. Sections 28, 29 and 30 relevantly provide:
28 Council may make university statutes and university regulations
Subject to this Act, the Council may make any university statutes and university regulations with respect to any matter relating to—
(a) the University; and
(b) any person—
(i) entering or on land or other property of the University; or
(ii) using University facilities.
29Specific subject matter for university statutes and university regulations
(1)Without limiting section 28, university statutes and university regulations may be made for or with respect to—
(a)the organisation, management and good government of the University;
(b) the academic board or its equivalent;
…
(e) discipline;
…
(k) students;
…
(2)-(4) not here relevant
(5)Without limiting section 28, university statutes and university regulations may be made for or with respect to any other matter in relation to which—
(a)the Council may make university statutes or university regulations; or
(b)it is necessary or expedient to make university statutes or university regulations for the good governance of the University or for the management of its affairs.
30 University statutes may provide for making of university regulations
(1)A university statute made by the Council may provide for the making of university regulations for or with respect to prescribing or providing for any matter or thing for the purposes of the university statute, either by—
(a) the Council; or
(b) if the university statutes authorise it, by—
(i) the Vice-Chancellor; or
(ii) the academic board or its equivalent.
(2) A university statute made by the Council may provide for—
(a)the manner of making and promulgation of a university regulation;
(b) the revocation or amendment of a university regulation.
As noted earlier, the Appeals Policy, that Mr Thomas contends applies to his email of 26 June 2018, is issued by the Academic Board of the University. The Academic Board is not established directly by the UniMelb Act, although its creation is contemplated by the Act. Section 20 provides:
20 Academic board or its equivalent
Subject to the university statutes and university regulations, the Council—
(a) must establish an academic board or its equivalent; and
(b) must determine—
(i)the powers, functions and membership of the academic board or its equivalent; and
(ii)the method of appointment of a president (however designated) of the academic board or its equivalent.
University of Melbourne Statute
The Council has made a statute pursuant to s 28, the University of Melbourne Statute (University Statute). The current University Statute was first made in December 2015, commencing 21 July 2016 and was subsequently amended, although not relevantly, the amendments commencing 31 August 2017.
Section 10 of the University Statute establishes the Academic Board. The section relevantly provides:
10 Academic Board
(1) The Academic Board is established.
(2)-(3) not here relevant
(4) The powers and functions of the Board are:
…
(g)acting as the University’s final appeal body for student grievances and any other matters in accordance with the statutes or regulations; and
(h)developing, approving and reviewing policies and procedures related to Board functions in accordance with statutes and regulations.
Section 12 of the University Statute provides as follows in relation to student conduct and academic progress:
12 Student conduct and academic progress
(1)University standards for student conduct and academic progress are set in regulations, policies and procedures.
(2)Students are bound by University statutes, regulations, policies and procedures.
(3)Students whose conduct or academic progress is found to be below the standard may be excluded from the University or course or otherwise penalised in accordance with statutes and regulations.
(4)For the avoidance of doubt, the principles of natural justice apply to the relevant regulations and any proceedings under section 12.
‘Natural justice’ is defined in the University Statute to mean ‘the rules against bias and the right to a fair hearing’.
Academic Board Regulation
The Council has also made a regulation in relation to the Academic Board, entitled the Academic Board Regulation (which commenced 21 July 2016, and was amended, although not relevantly in May 2018). The purpose of the Regulation is stated as follows:
1 Purpose
The purpose of this regulation is to make provision for:
(a) membership, meetings and procedures of the Academic Board;
(b) the accreditation of courses and awarding degrees and other awards;
(c) selection, admission and assessment requirements;
(d) academic progress;
(e) matters relating to student conduct; and
(f) student appeals arising from grievances and misconduct.
Parts 8 and 9 respectively of the Regulation deal with student conduct and student appeals. The provisions relating to conduct in Part 8 are directed solely at the conduct of students, not members of staff. Part 9 is headed ‘Appeals to Academic Board’ and commences by regulation 52 which provides as follows:
52 Appeal of decision
Except as otherwise provided by University statutes or regulations:
(1)the Board may establish a committee of the Board to hear appeals arising from student grievances or student misconduct;
(2)the Board may set the circumstances and manner for student appeals; and
(3)student grievances arising from failure to read and act upon a notice or correspondence sent to their University email account are not grounds for an appeal.
Regulations 53, 54 and 55 then prescribe some matters relating to appeals, which limit the general delegated power of the Board pursuant to reg 52(2). Relevant aspects of these regulations are as follows:
53 Reference to an appeal committee
(1) The Academic Secretary may accept appeals lodged with the Board.
(2)Upon receipt of an application, the Academic Secretary, must, either allow the application or disallow the application and notify the student within 10 days of the allowance or otherwise of the application.
(3)The Academic Secretary must, within 10 working days after allowing an application, refer the application to an appeal committee.
(4) An appeal committee must comprise three members of the Board.
(5)-(8) (not here relevant)
54 Hearing
(1)The chair of an appeal committee, in consultation with the Academic Secretary, must decide how the appeal is to be conducted.
(2)At an appeal in relation to penalty, the appeal committee must consider only the question of penalty.
55 Decision
(1)Following consideration of an appeal, the appeal committee must decide, by majority, to:
(a) dismiss the appeal, for reasons stated in writing; or
(b) to allow the appeal in whole or in part and:
(i)if the appeal is in relation to penalty, substitute a different penalty; or
(ii)in any other case, substitute its decision for the original decision.
(2)The appeal committee must dismiss the appeal unless a majority of the members of the appeal committee is satisfied that a ground of appeal has been established.
(3) The appeal committee may not:
(a) increase the period of any suspension imposed; or
(b)impose any penalty which it considers more onerous than the original penalty imposed on the student.
(4)When making a decision the appeal committee may include recommendations arising from the consideration of the appeal.
(5)The appeal committee may make a recommendation to the Vice-Chancellor to alleviate hardship of students due to:
(a) alterations to the requirements for courses; or
(b)due to incorrect information or advice provided by any University staff or publication.
(6)The chair of an appeal committee must, as soon as is practicable after a decision is made, advise the applicant and the relevant dean of:
(a) the decision and the reasons for it; and
(b)in the case of the notification to the applicant, the applicant’s right to apply for external review of the decision.
Regulation 56 is also significant. It preserves the right of a person to apply to a court for review or lodge a complaint or grievance with an external body. It provides as follows:
56 External appeals not excluded
Nothing in this regulation excludes or is intended to exclude:
(a)the operation of any law giving a person a right to apply to a court for review of a decision or determination made under any of the statutes or regulations; or
(b)the right of any person to lodge complaints and grievances with an appropriate body external to the University, including the relevant ombudsman or equivalent agency.
Policies
The UniMelb Act, University Statute and university regulations, such as the Academic Board Regulation, are complemented by policies and procedures developed by various bodies within the University. On its website, the University of Melbourne states that:
Policies are a formal statement of principle that:
·Regulate University operations,
·Are an instrument approved under the Policy Framework and
·Are approved under the Policy Framework.
The Policy Framework in turn states that its objectives, scope and authority are as follows:
1. OBJECTIVES
The objectives of the Policy Framework (the ‘Framework’) are to:
(a)govern the development, establishment, amendment and review of policies to ensure relevance, authority and consistency with internal and external legislation; and
(b)define the roles, responsibilities and authorities in relation to the development, establishment, amendment and review of policies.
2. SCOPE
This Framework applies to all policy developed for and on behalf of the University.
3. AUTHORITY
This Framework is made under the University of Melbourne Act 2009 (the Act).
Mr Thomas relies on three University policies in this application. The relationship of these policies to the University regulations, the University Statute and the UniMelb Act itself, and their legal status, is not entirely clear. In particular, the relationship between the provisions in the Academic Board Regulation in relation to student appeals, and the policies relating to appeals, is not immediately apparent. In what follows, I assume that the policies are the relevant determinants of redress for Mr Thomas, and are binding on him and the University.
Student Complaints and Grievances Policy
He contends that he made his initial complaint, of 1 March 2017, pursuant to the Student Complaints and Grievances Policy, which was initially approved by the Academic Board in November 2011, for commencement in August 2012. It has undergone subsequent amendment. The version current on 1 March 2017 was version 6, effective 6 December 2016. There have been subsequent editorial amendments. In these reasons, I work from the version on the University website, which is version 11 (Complaints Policy), on the basis that the Version History there shown suggests that it is substantially in the form current at the time of Mr Thomas’ initial complaint.
Sections 2 and 3 of the Complaints Policy set out the scope of the Policy, and the authority pursuant to which it is made. They relevantly provide:
2. Scope
2.1.This policy applies to all students of the University. It may also be used by former students of the University whose enrolment ended no more than 6 months before the date the complaint is lodged.
2.2.This policy covers issues arising from a student’s involvement with the University, except where the matter relates to decisions based solely on academic or general misconduct, academic judgement, unlawful discrimination, sexual harassment or bullying, or to matters covered by the Academic Progress Review Policy.
2.3.Complaints of unlawful discrimination, sexual harassment and bullying by or of staff or students are addressed by the Appropriate Workplace Behaviour Policy and Student Conduct Policy respectively.
3. Authority
This policy is made under the University of Melbourne Act 2009 (Vic) and the Vice Chancellor Regulation and supports compliance with the:
(a) Educational Services for Overseas Students Act 2000 (Cth);
(b)National Code of Practice for Providers of Education and Training to Overseas Students 2018;
(c) Higher Education Support Act 2003 (Cth); and
(d) Academic Board Regulation.
The Complaints Policy provides for the nature of the complaints or grievances which may be made. In relation to complaints about the conduct of a University staff member, it provides as follows:
4.4.Students may raise complaints or grievances in relation to misconduct by a University staff member, which will be managed under the Appropriate Workplace Behaviour Policy.
Possible grounds for a complaint or grievance are set out in s 4.8. Relevantly, grounds may include:
(e) a student being affected by unfair treatment, prejudice or bias.
The Complaints Policy contains detailed provisions directed to the fair hearing and determination of complaints or grievances, and to ensure that students are not disadvantaged by the making of a complaint or grievance. These provisions are headed ‘Natural Justice’ (ss 4.12-4.16) and ‘Timeliness’ (ss 4.18-4.19) and ‘No disadvantage’ (s 4.17) respectively.
The procedure to be followed is set out in s 5. This section makes provision for initial advice to the student; informal resolution of the complaint; mediation or independent investigation where the student is not satisfied with the outcome of the informal process; the lodgement of a ‘grievance’ and investigation of a ‘grievance’; and the appeal of the outcome.
It becomes apparent from s 5.10, although not clearly earlier, that the Complaints Policy intends some distinction in the processes to be followed depending on whether the matter involved is a ‘complaint’ or a ‘grievance’. In the definitions section, s 7, ‘complaint’ is defined to mean ‘an issue or concern raised by a student who considers that they have been wronged because of an action, decision, or omission within the control or responsibility of the University’. ‘Grievance’ is defined to mean:
a matter to be investigated according to formal processes. This includes complaints which are not able to be resolved through informal processes or mediation, and matters relating to allegations of misconduct where disciplinary action against a student or staff member may be an outcome of the investigation.
In other words, according to this definition, a ‘grievance’ includes a ‘complaint’ that is not resolved informally or through mediation, whether or not disciplinary action is a possible outcome. This definition is not consistent with s 5.10 which provides:
Where a complaint is not able to be resolved through informal processes, and the matter includes allegations of misconduct where disciplinary action against a student or staff member may be an outcome of the investigation, a student may lodge a grievance. (emphasis in bold added)
In other words, under s 5.10 a grievance must be a complaint that has the potential outcome of disciplinary action. This factor is only one possible way a complaint may become a grievance according to the definition clause. Section 5.11 states that ‘Grievances are formal matters that will be investigated by a case manager or an independent investigator’. Section 5.12 sets out the procedure that the investigator must follow. There was an investigation in this case, although Mr Thomas is dissatisfied with aspects of the procedure followed, and the outcome. I infer that it is his contention that this clause applied to his ‘complaint’. For that reason, it is not necessary to explore the inconsistency between the definition section and s 5.10 further in this application.
Section 5.24 is headed ‘Appeals’ and provides as follows:
Students may appeal the outcome of the complaints and grievances process in accordance with the Student Appeals to the Academic Board Policy.
‘Appeal’ is defined in the Complaints Policy to mean ‘a request in writing to the Academic Secretary to be heard in relation to a decision of or penalty applied by the University’. It is this section that Mr Thomas sought to invoke in his emailed Appeal of 26 June 2018, although he mistakenly referred to it as s 5.25.
Appropriate Workplace Behaviour Policy
Mr Thomas stated in his Appeal that he lodged his appeal ‘under s 5.25 of the (Complaints Policy) and pursuant to the University’s policy/procedure on Appropriate Workplace Behaviour Policy’.
The Appropriate Workplace Behaviour Policy (Behaviour Policy) is identified in clause 2.3 of the Complaints Policy as the policy which applies where, as described in clause 2.2, the complaint ‘relates to decisions made based solely on … unlawful discrimination, sexual harassment or bullying’. The University’s contention, as conveyed to Mr Thomas in the Decision, is that his complaint related solely to matters of this kind, and so was required to be addressed by the procedure stipulated in the Behaviour Policy, not the procedure stipulated in the Complaints Policy. The University contends that there is no internal appeal mechanism from a decision made following investigation under the Behaviour Policy.
The Behaviour Policy came into effect on 30 November 2016. The Version History states it incorporates former policies, including policies against discrimination and bullying. The Behaviour Policy was substantially amended on 15 October 2018, effective 19 October 2018, including in relation to complaint handling. These amendments post date the Decision, and for that reason I consider Version 1 of the Behaviour Policy. To make this clear I use the past tense when referring to provisions in the Behaviour Policy.
The Behaviour Policy in s 3 ‘Authority’ provided that it is made under the UniMelb Act and the Vice-Chancellor Regulation and supports compliance with other legislation there listed, including employment related legislation and legislation prohibiting discrimination of various kinds.
Section 12 of Version 1 (now s 13 of the current version) dealt with complaints from, amongst others, a student that he or she has experienced discrimination or bullying from a member of staff. ‘Discrimination’ and ‘bullying’ were each defined in the Behaviour Policy. Section 12.1(g) provided as follows:
While employees and students are encouraged to use the options set out in this policy, they have a right to seek advice from and/or lodge a complaint with external bodies, including Victoria Police, the Victorian Equal Opportunity and Human Rights Commission, the Australian Human Rights Commission, the Fair Work Ombudsman, the Fair Work Commission and WorkSafe Victoria. Making a complaint to an external body does not preclude the University from investigating a matter as set out in this policy.
Section 12.3 provided that a student who considered that he had experienced ‘an incident set out in section 12.1(a)’ may submit a formal complaint. Section 12.4 provided for preliminary assessment of such a complaint. The complaint manager conducting that assessment was empowered by s 12.4(a)(vii) to refer the complaint for external independent investigation. Section 12.6 sets out the procedure to be followed if a complaint is so referred. This includes the appointment of an investigator who amongst other requirements, was required to conduct the investigation ‘with regard for procedural fairness, timeliness, privacy and any person’s health and safety’ (s 12.6 (b)(iii)) and determine ‘whether the facts pertaining to the complaint are substantiated (in part or in full) based on an assessment of the information arising from the investigation and the balance of probability’ (s 12.6(b)(iv)).
Where a complaint is not substantiated, the complaint manager was required under s 12.6(d) to determine ‘how the matter progresses’ which involved ‘where the complaint is not substantiated, recommending what action, if any should be taken’ (s 12.6(d)(i)). Such action could involve ‘taking no further action’ (s 12.6(d)(i)(II)). Section 12.6(f) provided that ‘(t)he University may rely on assessments, investigation, findings, determinations and other actions pursuant to this policy in any subsequent action the University may take’.
There is no provision in the Behaviour Policy for appeal from determinations made in an investigation pursuant to s 12.6.
Student Appeals to the Academic Board Policy
This is the Appeals Policy as earlier defined. Mr Thomas contends that this Policy gives him a right of appeal against the determinations made in the investigation of his complaints of racial discrimination, bullying and victimisation. He relies on the right of appeal pursuant to this Policy as provided by s 5.24 of the Student Complaints and Grievances Policy.
The Appeals Policy was first approved in May 2016, effective 21 July 2016. It has been amended subsequently, but not since Version 5 effective 21 June 2018. I work from that version in these reasons.
Section 3 ‘Authority’ states that the Appeals Policy is made under the UniMelb Act and the Academic Board Regulation. It provides in s 4.2 that students (or other eligible persons) may appeal decisions regarding a range of matters, including a ‘grievance’ (s4.2(c)). A ‘grievance decision’ is defined in the Appeals Policy to mean ‘a decision made under the Student Complaints and Grievance Policy’.
Section 4.3 sets out the grounds on which an appeal under s 4.2 ‘must’ be made. The grounds include:
(b)there is new information that could not reasonably have been provided at the time of the original decision, and that would probably have affected the decision or any penalty imposed;
(c)the decision was manifestly wrong;
These are the grounds on which Mr Thomas relies.
Sections 4.8, 4.9, 4.10, 4.11-4.13 respectively provide for the time limit for appeal, the form of a notice of appeal, acknowledgement of a notice of appeal, and preliminary consideration of a notice of appeal by the Academic Secretary. In particular, s 4.8 provides that:
A person who wishes to appeal a decision under section 4.2 must lodge a notice of appeal with the Academic Secretary within 20 University business days of the original decision.
Sections 4.11-4.13 provide for preliminary consideration of a notice of appeal by the Academic Secretary as follows:
4.11.Upon receipt of a notice of appeal that meets the form prescribed at section 4.6, the Academic Secretary considers the notice of appeal and any relevant supporting documents.
4.12.If, after considering the notice of appeal, the Academic Secretary finds that the notice of appeal lacks merit, he or she may dismiss the appeal without hearing and give notice of the decision.
4.13.If the appeal is not dismissed, the student appeal panel will hear the appeal in accordance with this policy. (emphasis in bold added)
The reference to s 4.6 would appear to be an error, as that section does not prescribe the form of an appeal. The form is prescribed by s 4.9. I have bolded the words ‘without hearing’ for consideration in the next section of these reasons.
The Appeals Policy then sets out in detail the procedure to be followed where the Academic Secretary allows an appeal to proceed to hearing by a student appeal panel. Sections 4.15-5.3 set out the procedure and time limit for convening such a panel and for placing material before it. Section 5.4 provides the procedure to be followed by the panel in determining the appeal. Section 5.4(f) explicitly requires the panel to afford natural justice. It provides that:
In determining the appeal the student appeal panel:
(f)must act impartially and fairly in all the circumstances, having regard to the requirements of natural justice;
‘Natural justice’ is defined in the Appeals Policy in these terms:
natural justice is a legal concept embodying the idea that ‘procedural fairness’ be observed by decision making bodies in the consideration of a case. Natural justice requires that:
·the person affected by a disputed matter be given the right to present their case including the opportunity to be heard, be provided with adequate notice of the allegations and the procedures to be used, and
·members of the decision making body be free of bias and perceived bias or other personal interest in the outcome; and that these principles are incorporated within a clearly defined procedural framework.
Other sections of the Appeals Policy also require the panel to afford the parties various aspects of procedural fairness, and to avoid bias, such as ss 5.2, and 5.4 (g), (h), (j), (k), and (n).
Discussion
Scope and grounds for judicial review
It is first important to make the point that it is not open to the Court in this application to consider whether the findings of the investigation into the Complaint were correct, or even if that process was properly undertaken. These two matters are the grievances Mr Thomas sought to agitate in his Appeal. The outcome he sought in his Appeal was to ‘have the ALL the findings (sic) detailed in the 9 January 2018 “investigation” report nullified’ and that ‘an actual independent investigation be undertaken’. The question before the Court in this application is not whether or not that relief should be granted. The question the Court is to consider is whether a prima facie case is shown for judicial review of the decision of the University in relation to the Appeal, the Decision, communicated to Mr Thomas by the email of 15 October 2018.
Next, it is important to record that even in respect of the Decision, judicial review by means of the ALA is not a mechanism for review of the Decision on its factual merits. Thus to the extent that Mr Thomas argues that the Decision is factually incorrect, that is not within the scope of judicial review. The ambit of judicial review is the process by which the impugned decision was arrived at; not the decision itself. That process may include the determination of its jurisdiction by the decision maker and questions of law. Construction of legal documents is, generally speaking, a question of law not fact.
Mr Thomas has not articulated fully the relief that he seeks in respect of the Decision, or grounds on which he relies, perhaps because the Decision was so shortly before his hearing, requiring a last minute change of approach. Doing the best that I can on the basis of his written material, the additional evidence, and his oral submissions I assume that he seeks that the Decision be set aside, or quashed, and the proper respondent of the University be required to reconsider the reception of his Appeal. Permissible grounds for judicial review are those previously available under the prerogative writs. In the case of a decision that is sought to be quashed, and the making of the decision referred back to the decision maker, the available grounds are those that were available under the writ of certiorari, being jurisdictional error, error of law on the face of the record, breach of natural justice, and fraud.[21]
[21]Craig v South Australia (1995) 184 CLR 163.
The decision of which Mr Thomas seeks judicial review, the Decision, has two limbs. The first is the decision that the Appeal is outside the scope of the Appeals Policy. The second is that that no further action will be taken in respect of his Complaint. I consider the possible grounds for review to be jurisdictional error, error of law on the face of the record (taking an expansive view of ‘the record’), and breach of natural justice. There is nothing before me to suggest that the ground of fraud, in the sense required, would be available. I now consider these possible grounds.
Jurisdictional error and error of law on the face of the record
The University says in the Decision that the Complaint was outside the scope of the Complaints Policy, and that it was the Behaviour Policy that applied. The thrust of the first limb of the Decision is that as the Behaviour Policy does not provide for appeal to the Academic Board, the Appeals Policy does not apply. This is not a dismissal of the appeal under s 4.12 of the Appeals Policy. It is a statement that that Policy does not apply at all.
Taking for the purposes of this application the broadest view of jurisdictional error and error of law on the face of the record, I have considered whether any such error is shown on a prima facie basis. I do not consider that it is. On my reading of the Complaint, being both the original complaint of 1 March 2017 and the subsequent complaint of victimisation, both related to matters of alleged discrimination and bullying. Mr Thomas appears to concede in his reply to the Academic Secretary that the initial complaint related ‘solely’ to racial discrimination and bullying. It follows that it was excluded from the Complaints Policy. He contends, however, that his complaint about victimisation and his subsequent complaint about the process of the investigation did not relate ‘solely’ to racial discrimination and bullying, and so are not excluded from the scope of the Grievance Policy, and so from appeal under the Appeals Policy.
Mr Thomas identifies these two subsequent complaints in an email he sent to the Academic Secretary on 20 October 2017 as being his victimisation complaint, made by email on 15 March 2017, and a ‘grievance’ filed on 9 August 2017 for ‘inaction’.[22] He himself in that email references the Behaviour Policy in relation to the victimisation complaint. In my view, the victimisation complaint is correctly described as arising under that Policy. Section 6.3 of the Behaviour Policy prohibits, amongst other things, ‘victimisation’ (s 6.3(g)). ‘Victimisation’ is relevantly defined in the Behaviour Policy as ‘when a person is treated … in a detrimental manner as a result of … making … a complaint … about a matter under this policy’. It follows that the victimisation complaint fell for investigation under the Behaviour Policy, and there is no mechanism of internal appeal from the result of such an investigation under that Policy.
[22]Part of Exhibit E.
The ‘grievance’ for ‘inaction’ also relates to the investigation, or claimed failure to investigate, the complaint of racial discrimination and bullying under the Behaviour Policy. Mr Thomas seeks to characterise this ‘grievance’ as being one related to process, and so within the Complaints Policy, from which there is an appeal to the Academic Board. I do not consider this to be the correct characterisation. In my view, it would defeat the intention evident in the Complaints Policy of providing a different route for complaints about racial discrimination and bullying if a subsequent complaint about the process of investigation of such a complaint could bring the matter back within the Complaints Policy.
In summary, by the first limb of the Decision, the Academic Secretary has decided that it was the Behaviour Policy that applied to the investigation of the Complaint, and that there is no avenue of appeal to the Academic Board pursuant to the Appeals Policy from such an investigation. I do not consider that she has made any error as to the scope of the policies or the complaints in question (taking a broad view as to jurisdictional error) or their proper construction (construction being a question of law) in this determination.
The second limb of the Decision is to the effect that the University will take no further action, given that Mr Thomas sought external review by the AHRC of the decisions taken by the University under the Behaviour Policy. The Decision notes that the AHRC was fully aware of the error made in the Report yet nevertheless terminated Mr Thomas’ complaint. These are assertions of fact. If there is any error in them, that error is not reviewable by judicial review. In relation to possible jurisdictional error, Mr Thomas has not directed me to any avenue by which the University must consider his concerns about the Report apart from the Appeals Policy. If there is no such requirement, there can be no obligation to afford natural justice in considering if it applies. I conclude that there is no jurisdictional error or error of law on the face of the record shown in the Decision.
Obligation to afford natural justice
If I am wrong in my construction of the various policies, and there is a case for prima facie relief shown on the basis that arguably the Appeals Policy applies, then the application would fail in any event on the basis that the Secretary is not a ‘tribunal’ within the meaning of the ALA.
As noted earlier in these reasons, it is only a decision in respect of which the decision maker is required to afford natural justice that can be reviewed under the ALA. The requirements of natural justice are essentially two – an obligation to afford a hearing before making the decision, and an obligation not to be biased in the making of the decision. Natural justice can be regarded as equivalent to procedural fairness. Thus consideration of any obligation on the Academic Secretary to afford natural justice to Mr Thomas in the consideration of his Appeal overlaps with the question whether any prima face breach of procedural fairness is shown, as a ground for review.
In my view, the Appeals Policy draws a distinction between preliminary consideration of an appeal by the Academic Secretary, and consideration of an appeal that survives that preliminary consideration and is referred to a student appeal panel. Pursuant to s 5.4(f) of the Appeals Policy, natural justice explicitly applies to an appeal that survives the initial scrutiny of the Academic Secretary and is referred to a student appeal panel. It requires clear words to exclude an obligation to afford natural justice,[23] but in my view the express provision in s 4.12 that in exercising her power to dismiss an appeal if she finds that it lacks merit, the Academic Secretary may do so ‘without hearing’ constitutes such clear words. This construction is supported by the very detailed requirements of procedural fairness that apply if the appeal proceeds to a student appeal panel, in addition to the explicit requirement in s 5.4(f) that at that stage the panel must apply ‘natural justice’ and the detailed definition of that phrase.
[23]Annetts v McCann (1990) 170 CLR 596, 598.
There remains the question whether such a distinction is consistent with the requirement imposed by s 12(4) of the University Statute, that the principles of natural justice apply to the regulations and any proceedings in relation to student conduct and academic progress. This is not a clear cut issue, but on balance I do not consider that excluding natural justice in relation to the preliminary consideration of an appeal is inconsistent with the University Statute. Preliminary consideration of an appeal can be distinguished from a ‘proceeding’ in relation to an appeal. The Academic Board Regulation provides for a two stage process by reg 53 – preliminary consideration by the Academic Secretary, who may ‘allow’ or ‘disallow’ an ‘application’, and referral of an application that she has allowed for hearing by what is there described as an ‘appeal committee’. Such a two stage process is then replicated in the Appeals Policy.
It follows that I do not consider that the Academic Secretary is bound to afford a hearing to an appellant before dismissing the appeal under s 4.12 of the Appeals Policy. Given that she is not required to afford a hearing, no prima case is shown for breach of that requirement.
I accept for the purpose of this application that the Academic Secretary would be bound to make a decision to dismiss an appeal, albeit without hearing, without bias. Mr Thomas contends that the Academic Secretary has offended the non-bias rule of natural justice, by reason of the fact that she is a respondent to proceedings he has apparently brought in the Federal Court, perhaps by way of review of the determination of the AHRC. I describe the submission in this tentative way, because there is no documentary evidence before me of such a proceeding, or its current status, other than assertions made by Mr Thomas. In the absence of such evidence, there can be no proper consideration as to whether or not the Academic Secretary was in a position to make the Decision without ostensible bias. There is no evidence at all of actual bias.
There is the further possible issue that the Appeal does not comply with the time limitation for the lodgement of an appeal in the Appeals Policy. This is not a point taken by the Academic Secretary in the Decision, and this may be a proper approach. I accept the submission by Mr Thomas that strict enforcement of the time limit could appear inconsistent with a ground that allows for new information.
For these reasons, I conclude that there is no prima case for relief shown.
Policy or law?
If my construction of the Appeals Policy that natural justice does not apply to the dismissal of an appeal is incorrect, then there remains the question as to whether the obligation to observe natural justice is required ‘by law’ as required by the definition of ‘tribunal’ in the ALA. Similarly, a question would arise as to whether the Decision is a ‘decision’ within the meaning of the ALA. These questions arise because the Decision turns on policy, not a conventional legislative instrument such as an Act of Parliament or statutory rule.
In Naik v Monash University,[24] Richards J briefly considered whether a claimed failure by Monash University to adhere to a policy could be judicially reviewed. Her Honour was not required to reach a final determination on the issue, because the application before her was for extension of time to seek such a review, and for consideration of that question she was not required to determine if the ground of review was established. For the purposes of that application, which she refused, she accepted that there was an arguable case that Monash University did not follow the policy in question, which related to double marking of assignments. She added, the following, however (footnotes included):
However, a failure by a decision-maker to follow a relevant policy or procedure is not necessarily a ground for a remedy on judicial review. A policy or procedure document is generally ‘soft law’ that is not to be applied with ‘statutory nicety’.[25] Often, the only remedies available for breach of soft law are themselves ‘soft’, such as a complaint to an Ombudsman.[26] There are limited circumstances in which non-compliance with a policy or procedure might amount to jurisdictional error that could be corrected by certiorari.[27] Those circumstances include where the non-compliance involves a want of procedural fairness that results in practical injustice,[28] where it demonstrates a failure to have regard to a relevant consideration[29] or legal unreasonableness.[30] A mere failure to follow a non-statutory assessment policy or procedure would not, without a good deal more, amount to jurisdictional error that invalidates a decision.
[24][2018] VSC 605. See also Griffith University v Tang (2005) 221 CLR 99 where judicial review was only available where the decision in question was made ‘under an enactment’.
[25]Minister of State for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (Gray), 208 (French and Drummond JJ).
[26]Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017), 163.
[27]See the discussion in Greg Weeks, Soft Law and Public Authorities: Remedies and Reform, (Hart Publishing, 2016), Chapter 6 – Procedural Judicial Review Remedies.
[28]Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 (Lam).
[29]Gray, 208 (French and Drummond JJ).
[30]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; cf SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90, [70]–[82].
If I were otherwise satisfied of a prima case for review, then I would not necessarily refuse an order for review on the basis that the Decision and the decision maker were operating under a policy, not a law. This would be for several reasons.
First, the extent to which policies are ‘law’ in the relevant sense in the context of the regulatory framework for the University is not capable of easy resolution. As noted earlier in these reasons, the UniMelb Act specifically tasks the Council with the responsibility of establishing ‘policy and procedural principles’. The delegated legislation made by the Council, the University Statute, delegates the function of developing policies in relation to, amongst other things, appeals for student grievances to the Academic Board. Those policies must, by s 10(4)(f) of the University Statute, be in accordance with the regulations. The Council has also made the Academic Board Regulation, which contains detailed provision in relation to appeals. The University Statute and the Academic Board Regulation arguably have the character of ‘law’, and while the relationship between the provisions in the Academic Board Regulation in relation to appeals, and the policies relating to appeals, is not immediately apparent, policy making is specifically the responsibility of the Council under the UniMelb Act.
Next, the Appeals Policy itself states that it is made under the UniMelb Act and the Academic Board Regulation. A similar reference to the UniMelb Act and a university regulation appears in the Behaviour Policy. In other words, the University itself appears to regard its policies as part of a binding regulatory framework with the status of law. At this initial ex parte stage, the possibility that this is incorrect would not a reason to refuse relief. Finally, this complicated question would be better answered with a legally represented contradictor.
Exercise of the discretion to refuse relief
Section 4(2) of the ALA allows the Court to refuse relief, even where a prima case for relief is shown, if satisfied that ‘no matter of substantial importance is involved’ or ‘that in all the circumstances such refusal will impose no substantial injustice upon the applicant’. Given my conclusion that no prima case for relief is shown, it is not necessary to consider the exercise of this discretion. If it did arise, then one relevant factor would be the extent to which Mr Thomas’ underlying grievances, of racial discrimination and bullying, have, in any event, been considered and determined by the AHRC, as the Secretary asserts.
Conclusion and orders
For these reasons, I refuse the application for an order for review. I will dismiss the proceeding.
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