Griffith University v Tang
[2005] HCA 7(Judgment by: Gleeson CJ)
Griffith University
vTang
Judges:
Gleeson CJGummow J
Kirby J
Callinan J
Heydon J
Legislative References:
Judicial Review Act 1991 - The Act
Administrative Decisions (Judicial Review) Act 1977 - The Act
Higher Education (General Provisions) Act 1993 - s 8
Administrative Decisions (Judicial Review) Act 1977 - The Act
Judiciary Act 1903 - s 39B
Griffith University Act 1998 - s 4
Federal Airports Corporation Act 1986 - The Act
Income Tax Assessment Act 1936 - The Act
Bankruptcy Act 1966 - Pt X
Migration Act 1958 - s 6A(1)(c)
Wheat Marketing Act 1989 - The Act
Australian National University Act 1991 (Cth) - The Act
Crimes Act 1914 - s 10
Higher Education Support Act 2003 - The Act
Administrative Decisions (Judicial Review) Act 1977 - The Act
Acts Interpretation Act 1954 - The Act
Case References:
-
Judgment date: 3 March 2005
Judgment by:
Gleeson CJ
[1] The respondent brought proceedings in the Supreme Court of Queensland seeking review under the Judicial Review Act 1991 (Q) of a decision to exclude her from the PhD candidature programme conducted by the appellant. The decision was made on the ground that she had "undertaken research without regard to ethical and scientific standards" and had thereby engaged in "academic misconduct". The finding that there had been misconduct, and that exclusion was the appropriate response, was made by an Assessment Board, which was a sub-committee of the Research and Postgraduate Studies Committee of Griffith University. The respondent pursued an appeal procedure within the University. An Appeals Committee concluded that misconduct had occurred, that exclusion was appropriate, and that the appeal should be dismissed. The respondent contends that, at both levels, there were breaches of the requirements of natural justice, failures to comply with mandatory procedural requirements, improper exercises of power, and errors of law.
[2] In her application for review, the respondent said that she was aggrieved by the decision because she had been excluded from her PhD candidature with the appellant and, in consequence, her prospects of following a professional career in her chosen fields (molecular biology and bioscience) had been destroyed.
[3] The issue in the present appeal is whether the decision to exclude the respondent was a decision to which the Judicial Review Act applied. By virtue of s 4 of the Judicial Review Act, the answer depends upon whether it was "a decision of an administrative character made ... under an enactment". That formula was borrowed from the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). It is common ground that the considerations bearing on the meaning of the Commonwealth Act also apply to the State Act. The appeal is concerned solely with the application under the Judicial Review Act. Whether, if the allegations made by the respondent were correct, she would be entitled to a remedy under the common law, for breach of contract, or pursuant to the powers of the Supreme Court of Queensland which are preserved by s 41 of the Judicial Review Act, or otherwise, is not a question that arises. If the Judicial Review Act applies, it provides its own procedures for judicial review and its own remedies. It is those statutory procedures that have been invoked by the respondent, and those statutory remedies that are sought. Because the Judicial Review Act picked up the language of the ADJR Act, and because of the history of judicial interpretation of the ADJR Act, it could be that the statutory scheme, in some circumstances, provides a more restricted form of judicial review than is otherwise available.
[4] In the Supreme Court of Queensland, the appellant applied for summary dismissal of the proceedings under s 48 of the Judicial Review Act. That application failed at first instance [1] . and before the Court of Appeal [2] ..
[5] The argument turns upon whether the decision to exclude the respondent was a decision "under an enactment", the relevant enactment being the Griffith University Act 1998 (Q).
[6] The Griffith University Act 1998, which replaced the Griffith University Act 1971 (Q), provides that the functions of the appellant include providing education at a university standard, providing facilities for and encouraging study and research, providing courses of study and instruction, and conferring higher education awards (s 5). That Act gives the appellant all the powers of an individual, including the power to enter contracts, acquire and deal with property, fix charges and other terms for the services it supplies, and do anything necessary or convenient in connection with its functions (s 6). The appellant's governing body is a Council, which has wide powers to manage the University's affairs (ss 7, 8, 9). It may delegate its powers to an appropriately qualified committee (s 11). The Council is empowered to make university statutes, which may cover, among other things, the admission, enrolment and disciplining of students and other persons undertaking courses, fees, and the making and notifying of university rules (s 61). There are no such statutes of relevance to this appeal.
[7] In the Queensland Court of Appeal, Jerrard JA described the chain of authority pursuant to which the respondent's case was considered as follows:
On 4 August 1997 the council approved a constitution (a revised one) for a body described as The Academic Committee. Its central function described in its constitution is that of being responsible to the Council for assuring the quality of academic activities across the University. Its responsibilities included the apparently delegated one of developing and monitoring the academic policies and procedures of the University and making recommendations to the Council on those matters; advising the Council on the policies and procedures pertaining to research higher degree programs; and advising the Council on the conduct, evaluation and enhancement of teaching and research. It has specific delegated authority to approve the content of academic courses and detailed requirements for awards, and to determine the University's academic policy in the areas of student administration, assessment, progress, credit and timetabling. On 1 March 2001 the Academic Committee approved a revised Policy on Academic Misconduct, and on 6 September 2001 a revised Policy on Student Grievances and Appeals. There was no suggestion made on the appeal that those approvals were not intra vires the Academic Committee.
Also on 4 August 1997, a Research and Postgraduate Study Committee was established by the council; it is described in the material before this court as a sub-committee of the Academic Committee. The functions of the Research and Postgraduate Studies Committee include ... those of approving the eligibility of students to receive higher degrees including a PhD ... The learned judge found that this function was a direct delegation from the council.
[8] There is nothing in the Griffith University Act which deals specifically with matters of admission to or exclusion from a research programme or any course of study, academic misconduct, or intra-mural procedures for dealing with issues of the kind that arose in the case of the respondent. The powers that were exercised in establishing policies and procedures relating to research higher degrees, academic standards, investigation of alleged academic misconduct, and exclusion from programmes, all appear to flow from the general description in s 5 of the Griffith University Act of the University's functions, the general powers stated in s 6 and the general power to do anything necessary or convenient in connection with those functions, and the powers of the Council as the University's governing body, including its powers of delegation.
[9] In argument, reference was also made to s 8 of the Higher Education (General Provisions) Act 1993 (Q), which, in effect, confers upon universities the exclusive right to confer higher education awards, by prohibiting a "non-university provider" of educational services from conferring such awards.
[10] Placing reliance upon Australian National University v Burns [3] . and Australian National University v Lewins [4] ., the appellant argued that, to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and, in addition, it must be the statute which gives legal force or effect to the decision. Those cases, and other decisions of the Federal Court extending over many years, establish, in relation to the ADJR Act, that it is not enough that the decision be within power. The legislation does not provide for review of all decisions of an administrative character made in pursuance of any power or authority which has its foundation in a statute. As Lehane J put it in Australian National University v Lewins [5] ., a decision meets the test "only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect."
[11] The structure of the Griffith University Act follows a familiar form. In all Australian jurisdictions there are statutes which establish or incorporate particular institutions, such as schools, or hospitals, or universities, or charitable organisations, describe their functions, confer on them powers appropriate to those functions, and provide for their governance. Whatever the principal functions of such an institution may be, the statute by which it is established ordinarily confers upon some governing authority general powers appropriate to the discharge of those functions. It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the ADJR Act, or legislation expressed in the same terms.
[12] The effect of the decision presently in question was to exclude the respondent from the appellant's PhD research programme. There was no finding in the Supreme Court of Queensland as to exactly what was involved, in terms of legal relations, in admission to, or exclusion from, the programme. There was no evidence of a contract between the parties. There may well have been such a contract, but, if there was one, we were not told about it, and it was not relied upon by either party. The silence in the evidence about this matter, which bears upon the legal nature and incidents of the relationship between the parties, is curious. If the decision to exclude the respondent had been made pursuant to the terms of a contract, then, on the authorities, that would have been a consideration adverse to the respondent on the issue with which we are concerned. In Australian National University v Burns [6] ., the question to be decided was whether a decision of the Council of the Australian National University to dismiss a professor was a decision made under an enactment within the meaning of the ADJR Act. The Full Court of the Federal Court answered the question in the negative. There was a contract between the University and the professor, and in dismissing the professor the University relied on the terms of the contract. Bowen CJ and Lockhart J said [7] .:
In one sense every decision of the Council may be said to be made 'under' the University Act namely, in the sense of in pursuance of or under its authority. Section 23 is, in effect, the charter of the Council. It confers the widest powers upon the Council including the power of appointing professors and other University staff. ...
Although s 23 confers no power in express terms to remove or suspend professors and others, such power arises from the more general powers conferred by the section on the Council after the express reference to the powers of appointment. In our opinion the control and management of the affairs of the appellant must include the suspension or removal of its deans, professors and others.
Notwithstanding that s 23 was the source of the Council's power to appoint and dismiss the respondent in 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part of the respondent's contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dismissed and lays down no incidents of a professor's employment.
In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 empowered the Council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.
[13] The decision was characterised as a decision under the contract rather than a decision under the Act. It was based on the terms of the contract, and there was nothing in the University Act that dictated the procedures to be followed, or the grounds to be applied. Obviously, one consequence of the dismissal was that the professor would no longer be a professor at the Australian National University, but that did not mean the dismissal was under the Act. It should also be noted that the Full Court expressly declined to distinguish between the position of academic staff, on the one hand, and "librarians, groundsmen or security officers", on the other hand, for the purposes of relating the Act to the decision [8] ..
[14] This was one of the early decisions under the ADJR Act. For present purposes, it is important to note an approach to the ADJR Act that was considered, and rejected, by the Full Court. Ellicott J, at first instance, had held that the University's decision was under an enactment. He said it was wrong to exclude from the operation of the ADJR Act "fundamental decisions of the University (a body created by statute) through its Council about matters lying at the very heart of its existence and essential to the fulfilment of the basic function for which the University was set up by Parliament." [9] . If the approach of Ellicott J had prevailed, it would have provided support for the respondent in the present case. It directed attention to the nature of the power being exercised rather than to its immediate source. The approach was rejected by the Full Court, and the subsequent course of authority makes it inappropriate to reconsider the decision. We were not invited to do so.
[15] The functions of the appellant include providing education, providing facilities for study and research, and conferring higher education awards. Its powers include the power to do anything necessary or convenient in connection with its functions. Subject to any other legal constraint, it may establish a PhD research programme, and decide who will participate in the programme and on what terms and conditions.
[16] Exclusion from a research programme might take the form of refusing admittance in the first place. There is nothing in the statute to oblige the appellant to accept an applicant, although there may well be other laws which could come into play depending upon the reason for a refusal.
[17] In the present case, the exclusion was in accordance, or purported to be in accordance, with the terms and conditions as to academic behaviour which had previously been established. It appears to be accepted that, by applying to join the programme, the respondent was bound by those terms and conditions, at least in the sense that the appellant could lawfully apply them to its relationship with the respondent. If there were a contract, presumably the contract, either expressly or by implication, included those terms and conditions. The case was argued on the assumption that the appellant was entitled to invoke and apply its policies in relation to academic misconduct, and its procedures for deciding whether academic misconduct had occurred and for internal review of such a decision. The precise legal basis of that common assumption was not examined in argument. There is no reason to doubt that the assumption is correct. There is a dispute, on the merits, as to whether the policy and procedures were fairly and regularly applied, but that is presently beside the point. The character of the decision, for purposes of the Judicial Review Act, would be the same even if it were clear beyond argument that there had been academic misconduct, and that the decision to exclude the respondent had been fairly and properly made in every respect. Would it have been a decision that took its legal force or effect from statute?
[18] In Scharer v State of New South Wales [10] . Davies AJA, referring to questions under the ADJR Act as to whether a decision is under an enactment, said:
The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.
So, to revert to Australian National University v Burns, a grant of authority to make contracts and employ staff does not mean that when a staff member is dismissed for breach of contract the statute under which the employer is operating has played a relevant part in the legal force or effect of the decision.
[19] In the Supreme Court of Queensland, importance was placed upon the considerations that the Higher Education (General Provisions) Act conferred upon universities an effective monopoly to confer higher education awards, and that, under the Griffith University Act, the appellant enjoyed the benefit of that monopoly. That is undoubtedly important to the assertion that the respondent is a person aggrieved by the decision in question, and had standing to bring review proceedings. That assertion is not in controversy in this appeal. Undoubtedly, from a practical point of view, it is unrealistic to regard the decision to exclude the respondent from the PhD programme as no different from the decision of any service provider to withdraw future supply from a consumer of those services. Yet the legal effect of an otherwise lawful decision to terminate a relationship, contractual or voluntary, may be described accurately and sufficiently as a termination of the relationship, even if the statutory or other context in which the relationship exists confers particular benefits, or potential benefits, upon one of the parties.
[20] So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute.
[21] Subject to one qualification, the parties accepted the line of authority in the Federal Court as providing the test to be applied in deciding whether a decision is under an enactment. The qualification is as follows. Counsel for the respondent, while accepting that a decision is not a decision made under an enactment unless the decision draws its legal efficacy from a statutory provision, proposed as an additional (or, perhaps, alternative) test the question whether such efficacy could be achieved by an exercise of power or rights by "anyone in the public". The test was said to be whether the legal force or effect of a decision is of such a kind that it could result from the exercise by any member of the public of a power or capacity not derived from statute.
[22] That might be a useful question to ask in a given case for the purpose of answering the question whether it is a statute (or something else, such as a contract or the general law) that gives legal force or effect to a decision. As Davies AJA said in Scharer, the necessary degree of connection between a statutory grant of authority and a decision may not exist if the authority is merely a grant of a power to do that which, under the general law, an ordinary member of the public has power to do. However, as a free-standing test it suffers from the defect that the answer to the question posed may depend upon the level of abstraction at which the decision, or its legal effect, is described. Any member of the public cannot admit a person to, or exclude a person from, a PhD course, much less a PhD course at Griffith University. On the other hand, any member of the public can enter into a voluntary association with another person, and (subject to any relevant legal constraints) terminate that association.
[23] The question in the present case turns upon the characterisation of the decision in question, and of its legal force or effect. That question is answered in terms of the termination of the relationship between the appellant and the respondent. That termination occurred under the general law and under the terms and conditions on which the appellant was willing to enter a relationship with the respondent. The power to formulate those terms and conditions, to decide to enter the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act.
[24] There was reference, in the course of argument, to para (b) of the definition of "decision to which this Act applies" in s 4 of the Judicial Review Act. There was a suggestion that the respondent might seek to rely on that paragraph, although it was not argued in the Supreme Court of Queensland. However, as Senior Counsel for the appellant pointed out, there is no evidentiary basis for the argument and, in any event, it seems difficult to contemplate that the relevant decision could have been shown to be a decision of the kind referred to in para (b).
[25] The appeal should be allowed. I agree with the orders proposed by Gummow, Callinan and Heydon JJ.