Griffith University v Tang

[2005] HCA 7

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(Judgment by: Gummow J, Callinan J, Heydon J)

Griffith University
vTang

Court:

Judges: Gleeson CJ

Gummow JKirby 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:
-

Hearing date:
Judgment date: 3 March 2005

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Judgment by:
Gummow J
Callinan J
Heydon J

[26] This appeal turns upon the construction of the Judicial Review Act 1991 (Q) ("the Review Act"). This Queensland legislation has its provenance in federal law. That is apparent from s 16(1) of the Review Act, which states:

If --

(a)

a provision of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) ['the ADJR Act'] expresses an idea in particular words; and

(b)

a provision of this Act appears to express the same idea in different words because of different legislative drafting practice;

the ideas must not be taken to be different merely because different words are used.

[27] One consequence of the linkage between the text and structure of the federal and State statutes has been reliance in the present litigation upon various decisions construing the ADJR Act.

The federal legislation

[28] In Shergold v Tanner ^[11] ., reference was made to the development of the federal system of administrative law, including the ADJR Act. The statement in para 390 of the Report of the Commonwealth Administrative Review Committee ^[12] . ("the Kerr Committee") of its main recommendations and suggestions had included the exercise by a new federal court of jurisdiction to review on legal grounds "decisions, including in appropriate cases reports and recommendations, of Ministers, public servants, administrative tribunals ... but not decisions of the Governor-General".

[29] The eventual translation of that recommendation into the terms of the ADJR Act had a significance for the later case law (and for the present case) in two respects. First, the term "decision" was ambiguous; many decisions are made by administrators in the course of reaching an ultimate determination. The Kerr Committee had not adverted to what Mason CJ later ^[13] . discerned as competing policy considerations, enhancement of the administrative processes of government by providing convenient and effective means of redress, and impairment of efficient administration of government by fragmentation of its processes. Secondly, the adoption in the ADJR Act of the phrase "a decision of an administrative character made ... under an enactment" directed attention away from the identity of the decision-makers, the Ministers and public servants referred to by the Kerr Committee, and to the source of the power of the decision-makers. In contrast, s 75(v) of the Constitution fixes upon the phrase "officer of the Commonwealth". The resultant uncertainties generated by the case law on the ADJR Act have continued for more than 25 years.

The State legislation

[30] Section 19 of the Review Act provides that the Supreme Court of Queensland has jurisdiction to hear and determine applications made to it under the statute. However, Pt 5 (ss 41-47) reforms and preserves the jurisdiction of the Supreme Court to provide remedies in the nature of those of the prerogative writs of mandamus, prohibition or certiorari and uses the term "prerogative order" to identify this reformed jurisdiction (ss 3, 41(2)). In addition, whilst informations in the nature of quo warranto are abolished by s 42, an injunctive remedy of that nature, called a "prerogative injunction" (s 3), is provided by s 42(2). Finally, s 43 provides revised procedures for the exercise of the Supreme Court's jurisdiction to administer the declaratory and injunctive remedy as developed in public law. To the foregoing, there may be added the potential for "public law" issues to found claims of redress for tortious conduct ^[14] ..

[31] The federal system of administrative law, including the ADJR Act, operates in addition to the jurisdiction conferred on this Court by the Constitution. Section 8 of the ADJR Act confers jurisdiction on the Federal Court and the Federal Magistrates Court. Further, a significant measure of that jurisdiction with which the High Court is endowed by s 75(v) of the Constitution has been conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") ^[15] ..

[32] In a similar fashion to the operation of the ADJR Act in the broader setting of the federal system of administrative law, so also, in Queensland, the new remedies provided by the Review Act are to be understood in the context of administrative law in the wider sense described above. It is undisputed that the Review Act does not exhaustively cover the whole of that field. Section 10(1) states that the rights conferred by the Review Act are in addition to any other right to seek review by the Supreme Court, any other court or a tribunal, authority or person. However, what the respondent sought was a statutory order of review.

Griffith University

[33] The litigation arises from the exclusion of the respondent from the PhD candidature programme conducted by Griffith University ("the University"). The University is not one of those educational institutions created by Royal Charter ^[16] .. Rather, the University is wholly the creature of statute. It is established as a body corporate by s 4 of the Griffith University Act 1998 (Q) ("the University Act") and "has all the powers of an individual" (s 6). One of the functions of the University conferred by s 5 is the conferral of "higher education awards". The University Act is to be read with an understanding of the Higher Education (General Provisions) Act 1993 (Q) ("the Higher Education Act") ^[17] .. The effect of s 8(1) of the Higher Education Act was to prohibit an unauthorised non-university provider of courses of higher education from conferring a "higher education award". That term was defined in s 3 so as to include "a degree, status, title or description of bachelor, master or doctor".

[34] The result was that the PhD degree sought by the respondent could only be obtained in Queensland from a body such as the University established by the University Act. If the respondent, with a view to obtaining an advantage or benefit, were to attempt to induce the belief that she had been awarded that degree contrary to the fact, then she would commit an offence created by s 8(3) of the Higher Education Act.

[35] The Council of the University is its governing body (the University Act, s 8). It may delegate most of its powers to committees but not its power to make university statutes or rules (s 11). Two of the committees established by the Council are the Research and Postgraduate Studies Committee and the University Appeals Committee.

[36] By letter dated 19 July 2002 from the University addressed to the respondent, she was notified that the Assessment Board, a sub-committee of the Research and Postgraduate Studies Committee, had found that she had engaged in academic misconduct. Reference was made specifically to the presentation by the respondent of falsified or improperly obtained data as if they were the result of laboratory work. The respondent was invited to make further submissions to Professor Finnane, the Chair of the Assessment Board. By letter dated 9 August 2002, Professor Finnane wrote to the respondent indicating the receipt of further submissions by her and acknowledging that the Assessment Board had determined that she be excluded from her PhD candidature programme on the ground that she had undertaken research without regard to ethical and scientific standards. The letter notified the respondent that she had a right to appeal against this decision and enclosed a copy of the Policy on Student Grievances and Appeals.

[37] Thereafter, on 21 October 2002, Associate Professor Healy, Chair of the University Appeals Committee, wrote to the respondent stating that, on 17 October 2002, the Appeals Committee had determined that the respondent's appeal be dismissed on grounds which were identified as follows:

•

after a full review of the evidence presented to the University Appeals Committee, including the evidence and arguments provided by yourself in support of your appeal, the Committee was satisfied, on a strong balance of probabilities, that an ongoing fabrication of experimental data by yourself did occur over an extended period for a significant number of experimental results, as alleged in the initial complaint by Associate Professor Clarke and Dr Tonissen, and as found by the Assessment Board.

•

the procedures followed by the University which culminated in the Assessment Board's finding against yourself were consistent with the principles of procedural fairness and with the policies, practices and procedures for consideration of allegations of Academic Misconduct within the University. The Committee was satisfied that any perceived errors or omissions in these procedures were not such as to vitiate the fairness of the procedures, or result in a different outcome had alternative actions been taken to avoid the perception of such errors or omissions.

The letter continued by stating that, in reaching its conclusion, the Appeals Committee:

noted that it had not been suggested at any stage in the complaints or appeals process that you had any motive for fabricating your data other than saving time and effort; or that the data presented [were] intended to yield a result which differed in a significant, systematic or scientifically interesting way from what would have been yielded by application of the proper procedures and protocols.

[38] Nevertheless, the Appeals Committee had remained satisfied that exclusion of the respondent from the PhD candidature "was appropriate in the context of [her] responsibility as a professional scientist to adhere to ethical and scientific standards at all times".

[39] Section 18 of the Review Act provides that that statute does not affect the operation of, or apply to decisions made under, enactments listed in Sch 1. The University Act is not listed there.

No University Visitor

[40] This litigation concerns the engagement of the jurisdiction of the Supreme Court conferred by the Review Act. The University Act contains no provision for there to be a Visitor to the University ^[18] .. Accordingly, in the conduct by the University of its affairs there is no occasion for the consideration of the case law concerning the content and exclusivity of the jurisdiction of a Visitor ^[19] .. In particular, in Thomas v University of Bradford ^[20] ., the House of Lords did not accept for England the view expressed by Woodhouse P and Cooke J ^[21] . in New Zealand that the jurisdiction of the Visitor over disputes between the University of Auckland and one of its members was subject to, rather than exclusive of, the jurisdiction which otherwise might be exercised by the courts of justice. Their Honours had stressed the character in New Zealand of universities, not as the benefaction of a Founder, but as publicly funded institutions, constituted by statute and discharging an acknowledged responsibility of the State. Earlier, the Full Court of the New South Wales Supreme Court ^[22] . had construed the legislation establishing the University of Sydney as vesting full power in the Senate, with the Governor as Visitor having "an official connection" with the University ^[23] ..

The structure of the Review Act

[41] Section 20(1) of the Review Act provides that a person "who is aggrieved by a decision to which this Act applies" may apply to the Supreme Court for a statutory order of review in relation to the decision. Section 20(2) lists in paras (a)-(i) the grounds of review. The text of s 20 has its provenance in the opening passage in the much litigated s 5(1) of the ADJR Act. It will be apparent that three distinct elements are involved: first, the existence of a decision to which the Review Act applies (because made "under" an enactment); secondly, an applicant to the Supreme Court who is "aggrieved" by that decision; and, thirdly, reliance upon one or more of the listed grounds of review.

[42] The first element as it appears in the ADJR Act has been well described as its "linchpin" which governs the statute at all stages ^[24] .. It is with its appearance in the Review Act that this litigation is concerned.

[43] However, something more should be said of the other two elements in s 20. As to the requirement that the applicant be "aggrieved by" a decision, the question whether the applicant is such a person only arises if there can be shown to be a decision to which the Review Act applies. If the answer be in the negative, then there is nothing "by" which any applicant can assert a grievance. If the answer be in the affirmative, then a question of adequacy of "standing" may arise. Recollection of and reflection on many decisions construing the ADJR Act ^[25] . indicate that, particularly with regulatory schemes, it is not the successful applicant for a permission or licence but a third party who seeks administrative review.

[44] In dealing with this criterion of a person "aggrieved", the cases under the ADJR Act may be said, putting the matter very broadly, to have rejected a "rights-based approach" whilst "understandably [refusing] to go into specifics" ^[26] .. But it is one thing to anchor the legislation in the criterion of a decision to which the review statute applies because it is made "under" an enactment; another to fix the legislative criterion for standing to enliven the Review Act. It is the first which is the precondition for the second, not vice versa.

[45] With respect to the need to base an application for review upon one or more of the enumerated grounds, observations by Lehane J in Botany Bay City Council v Minister of State for Transport and Regional Development ^[27] . are pertinent. Paragraph (a) of the listed grounds in s 5(1) of the ADJR Act and s 20(2) of the Review Act is concerned with a breach of the rules of natural justice in relation to the making of the decision in question. It was against this background that, in Botany Bay City Council, a case under the ADJR Act, Lehane J observed ^[28] .:

The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard. Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case . Ogle v Strickland ^[29] . was, I should think, another; and North Coast Environment Council [Inc v Minister for Resources ^[30] .] may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.

[46] The reference in s 20(1) to a person "aggrieved" includes "a person whose interests are adversely affected by the decision" (s 7(1)(a)). The respondent has maintained that she is a person aggrieved by the decision because her exclusion from the PhD candidature has destroyed her prospects of following a professional career in the fields of molecular biology and bioscience. The University does not put its case on the ground that the respondent was not a person "aggrieved". Rather, the question cannot arise unless it be shown that there was a decision to which the Review Act applied.

[47] The orders which may be made on an application for a statutory order of review in relation to a decision are detailed in s 30(1) of the Review Act. They include orders setting aside the decision or part of it; an order referring the matter for further consideration by the decision-maker; and relief in the nature of a prohibitory or mandatory injunction.

[48] As indicated above, it is the expression in s 20(1) "decision to which this Act applies" which provides the battleground in the litigation. The expression is defined in s 4 of the Review Act as meaning a decision falling within the description in para (a) or para (b). Paragraph (b) states:

a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part) --

(i)

out of amounts appropriated by Parliament; or

(ii)

from a tax, charge, fee or levy authorised by or under an enactment.

[49] This finds no counterpart in the ADJR Act. No issue is before this Court respecting para (b). The focus in debate has been para (a). This is in terms which follow those of the definition of "decision to which this Act applies" in s 3(1) of the ADJR Act. The provision in para (a) in the Queensland definition reads:

a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion).

The words within the brackets emphasise that the decision may be made in exercise of a power rather than an obligation, so that it is proper to speak of a decision required or authorised by an enactment.

[50] Section 3 of the Review Act states that:

'enactment' means an Act or statutory instrument, and includes a part of an Act or statutory instrument.

The term "statutory instrument" is comprehensively defined ^[31] ..

[51] No statutory instrument is relied upon in this appeal ^[32] .. However, the definition of "enactment" is not without significance. A decision made under a statutory instrument might, on one view, have been considered to have been made "under" the statute which conferred the power to make the statutory instrument. On that approach, it would have been unnecessary to give the fuller definition of "enactment".

The application to the Supreme Court

[52] By Application dated 18 November 2002, the respondent sought a statutory order of review setting aside the decisions culminating in and including that of the University Appeals Committee notified by the letter of 21 October 2002. The respondent identified in the Application the decisions in question as made by the University "under its Policy on Academic Misconduct" ("the Policy").

[53] The respondent alleged various breaches of the rules of natural justice, failure to observe procedures required by various clauses of the Policy, errors of law, absence of evidence or other material to justify the decision, and the "improper exercise of the power conferred by the enactment" under which the action against her purportedly had been taken. The "enactment" was not specified but the evident intention was to identify the University Act.

[54] The University applied for, but did not obtain, an order by the Supreme Court under s 48 of the Review Act dismissing the respondent's case. Under that provision, the Supreme Court may dismiss an application for review if it considers there is no reasonable basis for it (s 48(1)(b)). Mackenzie J expressed his rejection of the s 48 application by the University as follows ^[33] .:

[T]he tightly structured nature of the devolution of authority by delegation in relation to the maintenance of proper standards of scholarship and, consequently, the intrinsic worth of research higher degrees leads to the conclusion that, even though the Council's powers are expressed in a general (but plenary) way, the decision to exclude [the respondent] from the PhD program is an administrative decision made under an enactment for the purposes of the [Review Act].

The appeal to the Court of Appeal

[55] An appeal to the Queensland Court of Appeal (Jerrard JA, Dutney and Philippides JJ) was dismissed ^[34] .. Dutney J (with whom Philippides J agreed) accepted the respondent's submission, renewed in this Court, that the question whether a decision was made under an enactment for the purposes of the definition in s 4 of the Review Act was answered by asking of the decision ^[35] .:

[i]s it something that anyone in the community could do, which is simply facilitated by the statute, or is it something which a person can only do with specific statutory authority?

[56] The other member of the Court of Appeal, Jerrard JA, referred to decisions in the Full Court of the Federal Court, in particular General Newspapers Pty Ltd v Telstra Corporation ^[36] .. In that case, it was said that the term "decision" in the ADJR Act carried a meaning "of an ultimate or operative determination which has force and effect by virtue of an enactment" ^[37] .. The Full Court had then continued ^[38] .:

A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute. The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract.

[57] It has been common ground throughout the present litigation that the enrolment of the respondent at the University as a PhD candidate did not give rise to a contractual relationship between the parties. In the Court of Appeal, Jerrard JA said ^[39] .:

In the instant appeal ... there is no evidence of any payment made by [the respondent] to [the University] for admission to the PhD course, or of any terms or conditions agreed to between the parties when she was (presumably) admitted or accepted as a PhD candidate.

[58] Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside ^[40] .. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi ^[41] .; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, "jejune and inappropriate" ^[42] ..

The definition

[59] The defining expression "a decision of an administrative character made ... under an enactment" has given rise to a considerable body of case law under the ADJR Act, some of it indeterminate in outcome. The focus has been upon three elements of the statutory expression. The first is "a decision"; the second, "of an administrative character"; and the third, "made ... under an enactment".

[60] The cases, particularly in the Federal Court, have tended to see these as discrete elements. But there are dangers in looking at the definition as other than a whole. The interrelation between them appears from the following passage in the joint judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond ^[43] . respecting the ADJR Act:

It does not follow that, because s 5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s 5 of [the ADJR Act] are at large. They are confined by the requirement in s 3(1) that they be made 'under an enactment'. A decision under an enactment is one required by, or authorized by, an enactment ^[44] .. The decision may be expressly or impliedly required or authorized ^[45] .. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment.

[61] Bond ^[46] . concerned the exercise of a power vested by statute in the appellant to suspend or revoke licences under the statute. This Court decided that, to qualify as a reviewable decision, it will generally be necessary to point to a decision which is final or operative and determinative, at least in the practical sense, of an issue of fact falling for consideration; a conclusion reached as a step along the way in a course of reasoning to an ultimate decision ordinarily will not qualify as a reviewable decision ^[47] .. The reasoning in Bond, particularly that of Mason CJ, apparently responded to an apprehension of misuse of the statutory review system by challenges at intermediate stages of decision-making processes.

[62] However, as has been pointed out ^[48] ., there was left a number of "escape hatches" for such litigants. One of these was an absence of the Bond restrictions in the alternative avenues of review under s 75(v) of the Constitution or s 39B of the Judiciary Act. This possibility had been recognised at the outset by the Kerr Committee. In para 390 of its Report, the Committee had written ^[49] .:

The constitutional jurisdiction of the High Court in cases in which prohibition, mandamus or an injunction is sought against an officer of the Commonwealth is, of course, unaffected by our recommendations and the reasons why a Commonwealth Administrative Court is recommended with a somewhat parallel jurisdiction are set out in the report. The reasons are that many administrative decisions are not important enough to warrant the attention of the High Court; proceedings in the recommended Administrative Court should be less expensive and such a court should be readily available in a nearby locality; and the Court would be part of a comprehensive and integrated system of administrative law in relation to which the High Court would play its role in important matters either on appeal or where necessary in its original jurisdiction.

[63] The second element of the definition to which attention is given by the case law is the expression "of an administrative character". The evident purpose here is the exclusion of decisions of a "legislative" or "judicial" character. The instability of the distinctions which the statute thus preserves may be appreciated by regard to two Federal Court decisions. In Queensland Medical Laboratory v Blewett ^[50] ., a ministerial decision which took effect by substituting a new table of fees for the table set out in a Schedule to the Health Insurance Act 1973 (Cth) was held to have a legislative rather than an administrative character. Thereafter, in Federal Airports Corporation v Aerolineas Argentinas ^[51] ., a determination by the Corporation in exercise of power conferred by the Federal Airports Corporation Act 1986 (Cth) to make determinations fixing aeronautical charges and specifying those by whom, and the times at which, the charges were due and payable was held to have an administrative rather than legislative character.

[64] This appeal involves particular consideration of the third element; that presented by the requirement that the decision be "made ... under an enactment". Here again, as with the earlier two elements just discussed, there is involved a question of characterisation of the particular outcome which founds an application for review under the statute. Questions of characterisation provide paradigm examples of the application of the precept that matters of statutory construction should be determined with regard to the subject, scope and purpose of the particular legislation, here the Review Act.

[65] In considering the present case, some care is needed lest an answer is given at odds with the subject, scope and purpose of the Review Act. In a leading Australian text, the following passage is in point ^[52] .:

Many of the difficulties stem from the fact that no statute could possibly spell out the detail of every single decision or step in the decision-making process, which it requires of its administrators. Some statutes are admittedly more detailed than others, whilst some do little more than stipulate the administrator's end goals and a few methods. But, whether the statute be detailed or broad brush, they all need to contain a provision which states in substance and in very broad terms that a Minister, bureaucrat or other agency has the power (or even the duty) to administer this Act, and to do all things necessary in that regard. The recent trend is to treat decisions which can find no other statutory source of authority than such a clause as not being made under an enactment for ADJR purposes, although there has been scant attempt to identify why that approach should be adopted as a matter of principle.

(original emphasis)

[66] It is not necessarily an adequate answer to the suggested attribution to the outcome in question of one character, to urge the possession of additional or alternative attributes. Two examples from federal constitutional law may be given. Where a federal law, the validity of which is in issue, fairly answers the description of being a law of two characters, one of which is and the other of which may be not a subject-matter appearing in s 51 of the Constitution, the possession of the positive attribute is sufficient for validity and the other character is of no determinative significance ^[53] ..

[67] Again, a matter may "arise under" a law made by the Parliament within the meaning of s 76(ii) of the Constitution if the right or duty in question owes its existence to federal law or if it depends upon federal law for its enforcement ^[54] .; this is so notwithstanding that the action in question is brought, for example, for breach of a contract or to enforce a trust. Thus, in LNC Industries Ltd v BMW (Australia) Ltd ^[55] ., a declaration was sought that a trust existed in respect of property, being import quotas created by federal law. An order was sought to enforce the trust by requiring transfer of the quotas and, in one sense, the source of the right to obtain the order for transfer was the general law respecting trusts. Nevertheless, the subject-matter of the trust owed its existence to federal law so that the litigious proceeding "arose under" that law ^[56] ..

Proximate source of power?

[68] The considerations just mentioned point against acceptance of a construction of the legislation here in question which turns upon the identification of "the immediate or proximate source of power" to make the decision in question, rather than an "ultimate source residing in ... legislation". The distinction was drawn in these terms in Post Office Agents Assn Ltd v Australian Postal Commission ^[57] . and has been applied in subsequent Federal Court decisions ^[58] .. In Hutchins v Commissioner of Taxation ^[59] ., Black CJ held that the relationship between the generally expressed administration provisions of the Income Tax Assessment Act 1936 (Cth) and a decision by a Deputy Commissioner to vote against a motion put at a meeting of creditors under Pt X of the Bankruptcy Act 1966 (Cth) was "too remote and non-specific" to qualify the decision as made under the taxation statute.

[69] Notions of immediacy and proximity have given rise to much difficulty elsewhere in the law, particularly with questions of attribution of legal responsibility for tortious acts and omissions. Moreover, there is evident from the reasoning of Jerrard JA in the present case ^[60] . uncertainty whether the suggested criterion applies only where there are arguably competing statutory sources of power. The circumstance that a decision could not have been made but for the concurrence of a range of circumstances of fact and law does not deny that in the necessary sense it was "made under" a particular enactment. The search for "immediate" and "proximate" relationships between a statute and a decision deflects attention from the interpretation of the Review Act and the ADJR Act in the light of their subject, scope and purpose.

What anyone in the community could do

[70] Reference has been made earlier in these reasons to the acceptance by Dutney J and Philippides J of a criterion which asked of the decision whether it was something anyone in the community could do and was but facilitated by the enactment, or whether it required specific statutory authority. On appeal, this was developed by the respondent into two limbs:

a)

One first determines the true lawful source of the power to make the decision.

b)

One then asks whether members of the community at large possess that power, either at common law or by statute: if the answer is in the affirmative, the decision was not made under an enactment; if in the negative, then the source of power must be statutory in the relevant sense.

(original emphasis)

[71] The search for the "true lawful source" has the deficiencies just discussed. For the second limb, reliance was placed on the decision of this Court in Glasson v Parkes Rural Distributions Pty Ltd ^[61] .. As will appear later in these reasons , Glasson does not support the formulation in the suggested second limb. Nor does the other decision relied upon , Board of Fire Commissioners (NSW) v Ardouin ^[62] .. References by Kitto J in Ardouin ^[63] . to the lack of any need of a grant of statutory power for the Board to cause its vehicles to be driven on a public street were made in the course of construing a provision protecting the Board from liability for damage caused in the bona fide exercise of its powers. Such exemption provisions are construed narrowly ^[64] . and that is what Kitto J was doing in Ardouin. The case provides no analogy of use in construing the phrase "under an enactment" in the Review Act and the ADJR Act.

[72] What then is the preferred construction? Before turning to that question, it is convenient to refer to relevant decisions in this Court.

Decisions of the High Court

[73] Three decisions of this Court require attention, although none is necessarily determinative of the present appeal. They are Glasson ^[65] ., Minister for Immigration and Ethnic Affairs v Mayer ^[66] . and NEAT Domestic Trading Pty Ltd v AWB Ltd ^[67] .. All of the decisions were concerned with the phrase "made ... under an enactment" in the definition of "decision to which this Act applies" in s 3(1) of the ADJR Act.

[74] Mayer is authority for the proposition that a power to make a determination may be discerned as a matter of implication in a particular statute. This follows from what was said by Mason, Deane and Dawson JJ as follows ^[68] .:

[T]he preferable construction of s 6A(1)(c) [of the Migration Act 1958 (Cth)] is that it impliedly confers upon the Minister the function of determining, for the purposes of the paragraph, whether a particular applicant for an entry permit 'has the status of refugee' within the meaning of the [Convention relating to the Status of Refugees] or [the 1967 Protocol relating to the Status of Refugees]. It follows that the Minister's decision was a decision made in the performance of the statutory function which that paragraph impliedly confers upon him. It was, within s 3(1) of the [ADJR Act], a decision made 'under' an 'enactment'.

[75] The minority in Mayer ( Gibbs CJ and Brennan J) was unable to construe s 6A as impliedly conferring any relevant power upon the Minister. As Brennan J put it ^[69] ., a determination of refugee status within the meaning of the Convention produces an effect in international law but required no statutory authority or power to make it. It followed that there was in the migration legislation to be found no source of a power to make a determination of refugee status and there was no decision made under that legislation to attract the ADJR Act. A distinction was drawn by Brennan J between "the source of a decision's legal effect" and "the source of a power to make a decision having that effect" ^[70] ..

[76] The earlier decision in Glasson concerned federal legislation and a scheme formulated thereunder by a Minister of the Commonwealth which provided for the making of payments by the Commonwealth to New South Wales and by that State to distributors of certain petroleum products. The scheme provided for a system whereby officers authorised under State legislation certified that amounts were payable to the distributors, but only the State statute authorised the giving of a certificate and its effect. The Court said ^[71] .:

When neither the Commonwealth Act nor the scheme is the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment.

(emphasis added)

This was so even though the issue of the certificate might have a significant practical effect leading to the adjustment of accounts between the Commonwealth and the State.

[77] In NEAT, the written approval of AWB (International) Ltd ("AWB") was a statutory condition which had to be satisfied before the authority established by the Wheat Marketing Act 1989 (Cth) might give its consent to the bulk export of wheat. It was held in the joint judgment in NEAT that the circumstance that the production of the written approval by AWB was given statutory significance did not provide the basis for an implication of the conferral by the statute of authority upon AWB to give approval and to express its decision in writing; that power derived from the incorporation of AWB under the applicable companies legislation, s 124 of the Corporations Law of Victoria. The determination to give written approval was not a decision under an enactment for the purposes of the ADJR Act; rather, the provision of the approval was a condition precedent to consideration by the authority as to whether it would give its consent to export ^[72] ..

The preferred construction

[78] There is a line of authority in the Federal Court, beginning with the judgment of Lockhart and Morling JJ in Chittick v Ackland ^[73] . and including the judgments of Kiefel J and Lehane J in Australian National University v Lewins ^[74] ., which assists in fixing the proper construction of the phrase "decision of an administrative character made ... under an enactment". As noted earlier in these reasons, the presence in the definition in the ADJR Act of the words "(whether in the exercise of a discretion or not ... )" ^[75] . indicates that the decision be either required or authorised by the enactment. Mayer ^[76] . shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.

[79] The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase " under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

[80] The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement ^[77] .? To adapt what was said by Lehane J in Lewins ^[78] ., does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute ^[79] .?

[81] If the decision derives its capacity to bind from contract or some other private law source, then the decision is not "made under" the enactment in question. Thus, in Lewins, a decision not to promote to Reader a member of the staff of the Australian National University was not "made under" the Australian National University Act 1991 (Cth) ("the ANU Act"). Lehane J explained ^[80] .:

In this case, the relevant statutory power (in s 6(2)(k) of the ANU Act) is simply one 'to employ staff'. Obviously that, taken together with the general power to contract, empowers the University to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the University unilaterally to vary its contracts with its employees or to impose on them, without their consent, conditions which legally bind them -- except, of course, to the extent that contracts of employment may themselves empower the University to make determinations which will be binding on the employees concerned ^[81] ..

[82] For these reasons, a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party's rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties.

[83] To the extent that the Federal Court decided otherwise in Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd ^[82] ., that case and decisions relying upon it should be regarded as having proceeded on an incorrect interpretation of the ADJR Act. Given the absence in this case of any suggested contractual relationship between the parties, a matter to which attention was drawn earlier in these reasons, what has been said above respecting the contract cases cannot be determinative of the outcome.

[84] Reference has been made earlier in these reasons to the significance attached in Hutchins ^[83] . to the relationship between the income tax legislation and the decision to vote at the creditors meeting as being "too remote and non-specific". However, Black CJ also based his decision on the sound ground that "the decision was not given statutory effect by the sections relied upon" ^[84] .. Lockhart J ^[85] . said that the decision to vote could not have conferred any benefit or imposed any disadvantage when it was made; any affection of legal rights arose from the cumulative effect of the votes later cast against the special resolution at the meeting of creditors.

[85] The legal rights and obligations which are affected by the authority of the decision derived from the enactment in question may be those rights and obligations founded in the general or unwritten law. For example, in Commissioner of Australian Federal Police v Propend Finance Pty Ltd ^[86] ., it was the decision to issue the search warrants pursuant to s 10 of the Crimes Act 1914 (Cth) which provided the police officers executing them with lawful authority to commit what otherwise were acts of trespass and conversion and attracted the operation of the ADJR Act.

[86] However, that which is affected in the fashion required by the statutory definition may also be statutory rights and obligations. An example is that given by Toohey and Gaudron JJ in Bond ^[87] . of a requirement, as a condition precedent to the exercise of a substantive statutory power to confer or withdraw rights (eg, a licence), that a particular finding be made. The decision to make or not to make that finding controls the coming into existence or continuation of the statutory licence and itself is a decision under an enactment.

[87] In Mayer ^[88] ., the making of a determination of refugee status (under the power impliedly conferred by the statute) was a necessary condition for the grant of an entry permit. The determination of refugee status was a decision under the migration legislation which controlled the coming into existence of the entry permit to this country. On the other hand, in Glasson ^[89] . and NEAT ^[90] ., the statutory condition precedent was a decision made dehors the federal statute, although, once made, it had a critical effect for the operation of the federal statute. In Mayer, both the determination of refugee status and the grant of an entry permit were authorised by the Migration Act 1958 (Cth).

[88] The Review Act recognises such cases and takes them further. It does so in s 6, which states ^[91] .:

If provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken, for the purposes of this Act, to be the making of a decision.

[89] The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

[90] The character of the ADJR Act as a law of the Commonwealth which confers federal jurisdiction to hear and determine applications for review supports the construction of the critical phrase "decision ... made ... under an enactment" in these reasons. Reference has been made earlier in these reasons under the heading "The definition" to the importance in construing this phrase of the expression in s 76(ii) of the Constitution "arising under any laws made by the Parliament". There must be a "matter" so arising. The meaning of the constitutional term "matter" requires some immediate right, duty or liability to be established by the court dealing with an application for review under the ADJR Act ^[92] .. A recent example of the practical operation of the constitutional requirements of a "matter" is provided by Re McBain;Ex parte Australian Catholic Bishops Conference ^[93] .. As a State law, the Review Act does not have the constitutional underpinning which controls the interpretation of the ADJR Act. However, as noted at the beginning of these reasons, s 16(1) of the Review Act explicitly links the text and structure of that statute to the ADJR Act.

The present case

[91] Counsel for the University correctly submitted that, given the manner in which the respondent had framed her application for judicial review, there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the University under the University Act. Nor, indeed, would there have been such a decision had the respondent been allowed to continue in the PhD programme.

[92] It may, for the purposes of argument, be accepted that the circumstances had created an expectation in the respondent that any withdrawal from the PhD candidature programme would only follow upon the fair treatment of complaints against her. But such an expectation would create in the respondent no substantive rights under the general law, the affecting of which rendered the decisions she challenged decisions made under the University Act. What was said by Kiefel J ^[94] . and Lehane J ^[95] . on the point in Lewins, and subsequently by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Lam ^[96] ., supports that conclusion.

[93] Nor were there any presently subsisting statutory rights of the respondent, or statutory rights the coming into existence of which would be contingent solely upon her re-admission to the PhD candidature programme. The respondent would still have had to satisfy the requirements for award of the degree. Had she done so, a question (which it is unnecessary to decide) may have arisen as to whether she had a statutory or other right to the award.

The result

[94] It may be accepted that the Higher Education Act required the respondent to obtain the "higher education award", which she sought by her PhD candidature, from an authorised educational institution such as the University. But the circumstance that the University was not doing "what anyone in the community could do" does not render the exclusion of the respondent a decision made under the University Act.

[95] Nor is it to the point that the Council, rather than exercise its powers of delegation to the Committees involved, might have exercised its power to make university statutes or rules. The exercise of one rather than another concurrent power available to the University is insufficient to attract the Review Act to decisions later made by the Committees.

[96] The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were "made under" the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former.

Orders

[97] The appeal should be allowed. The order dismissing the appeal to the Court of Appeal should be set aside and in place thereof the appeal to the Court of Appeal should be allowed. Order 1 made by Mackenzie J should be set aside and the application for a statutory order of review should be dismissed.

[98] In accordance with the terms of the grant of special leave, the University is to bear the respondent's costs of the appeal to this Court and the costs order made in the Court below is not to be disturbed. Mackenzie J reserved the costs of the application to the Supreme Court of Queensland made under s 48 of the Review Act. The question of costs of that application should be remitted to the Supreme Court.