Griffith University v Tang

[2005] HCA 7

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(Judgment by: Kirby J)

Griffith University
vTang

Court:

Judges: Gleeson CJ
Gummow J

Kirby JCallinan 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:
Kirby J

[99] For the second time in less than two years, this Court adopts an unduly narrow approach to the availability of statutory judicial review directed to the deployment of public power. The Court did so earlier in NEAT Domestic Trading Pty Ltd v AWB Ltd ^[97] .. Now it does so in the present case.

[100] Correctly in my opinion , NEAT Trading has been described as a "wrong turn" in the law ^[98] .. Its consistency with past authority of this Court ^[99] . has presented difficulties of explanation ^[100] .. Its outcome has been described, rightly in my opinion, as "alarming", occasioning a serious reduction in accountability for the exercise of governmental power ^[101] .. Now, the error of approach, far from being corrected, is extended. This constitutes an erosion of one of the most important Australian legal reforms of the last century ^[102] .. This Court should call a halt to such erosion.

[101] In the Supreme Court of Queensland, Ms Vivian Tang (the respondent) succeeded both before the primary judge (Mackenzie J) ^[103] . and in a unanimous decision of the Court of Appeal ^[104] .. The attempt by Griffith University to obtain summary dismissal of the respondent's application for a statutory order of review, directed to the University, failed. That order had been sought to challenge (essentially) the procedural fairness of the steps by which the University, provided for in the Griffith University Act 1998 (Q) ("the University Act"), excluded the respondent from the candidature upon which she had embarked for the award of the University's degree of Doctor of Philosophy. Such exclusion was explained as being "on the grounds that [the respondent had] undertaken research without regard to ethical and scientific standards" ^[105] ..

[102] The exclusion of the respondent was affirmed by the University's Appeals Committee, established by the University Council. In the result, the respondent has not only been stopped in the middle of her studies for the higher degree for which she was enrolled, refused the opportunity to graduate in the University with that degree and had findings of "falsified or improperly obtained data ... of laboratory work" ^[106] . made against her. She has also been confirmed as guilty of a grave wrong-doing such as would effectively make it difficult, or impossible, for her to pursue academic aspirations in this or another university and to follow the professional career in the employment field (molecular biology and bio-science) which she had chosen.

[103] These serious consequences notwithstanding, the respondent is now held by this Court to be disentitled to a statutory order of review on the basis that the "decisions" of the University which she challenges were not made "under" the University Act. This conclusion is reached because, it is said, in order to be made "under" that Act "legal rights and obligations" between the University and the respondent had to be affected ^[107] ., but were not ^[108] ..

[104] This outcome has, in my respectful view, only to be stated to demonstrate its flaws. There is nothing in the Judicial Review Act 1991 (Q) ("the Review Act") to warrant such a gloss upon its beneficial and facultative terms. It is a gloss that defeats the attainment of important reformatory purposes of that Act. It destroys the capacity of the Review Act to render the exercise of public power accountable to the law where a breach can be shown. Moreover, it is incompatible with the express provision of the Review Act affording remedies to those whose "interests" are adversely affected by the challenged decision ^[109] .. There was never a dispute that the respondent's "interests" were so affected. Nor was it contested that she was, within the Review Act, a "person aggrieved" ^[110] .. The gloss favoured by the majority is contrary to the text and the purposes of the Review Act. Properly construed, that Act is applicable to this case. The University's appeal should be dismissed.

The facts, procedures and legislation

[105] The background facts: Most of the facts necessary to an understanding of these reasons appear in the description of the case set out in the reasons of Gummow, Callinan and Heydon JJ ("the joint reasons") ^[111] .. However, because of the University's proceedings (effectively for the summary judgment now entered by this Court) ^[112] ., the respondent's claim for relief, and her contentions on the merits, have never been tried. Now, they will not be, at least in this case. It is useful, therefore, in considering the construction now imposed on the Review Act, to examine the type of case that it will now keep out of the courts.

[106] Universities in Australia have special characteristics that distinguish most of them from universities in other lands. Even the oldest Australian universities (those at Melbourne and Sydney) were established by statute in colonial times ^[113] .. Until recently, all Australian universities have been "public institutions, heavily dependent on government funds" ^[114] ., governed in accordance with statute by a council or senate with power to make subordinate legislation and to establish policies consistent with the legislation, to carry into effect the public purposes of the law creating them ^[115] ..

[107] The first university in Queensland was established by statute in 1909 ^[116] .. The appellant University was first created in 1971 as one of five new Australian universities formed at that time. The Act of 1998, affording the present statutory basis of the University, was enacted as a public law by the Queensland Parliament. In this respect, the University can be distinguished from universities created by private benefactions and trusts or royal charter ^[117] .. Most Australian universities are in the same class as the appellant and so are those of New Zealand ^[118] .. In this country, even private universities not publicly established are subject to statutory regulation, essential for their recognition as such and for permission lawfully to use the title of "university" and to confer university degrees and awards ^[119] .. The maintenance of high standards of teaching and research, and the furtherance of the export of university services by Australian universities, make it essential that public regulation of universities be scrupulously maintained, in accordance with the law enacted to achieve that objective. It also makes the defence of academic standards and of the integrity of degrees or awards and university research a vital part of the functions of such statutory bodies. The University did not contest any of these propositions.

[108] Universities, public funding and judicial review: The foregoing features of universities, and specifically of the appellant, require adjustment in Australia to any notion that, because of their functions, universities are somehow exempt from the provisions for judicial review applicable to government authorities, as under the Review Act. Although provision is made under that Act for exclusion of specified enactments ^[120] . or exemption of identified corporations ^[121] ., no such exclusion or exemption applied to the present case. The Review Act therefore governed the University to the full extent of its provisions.

[109] This conclusion should cause no surprise because, as a body established as a statutory corporation, the University enjoyed (as Callinan J remarked during argument) ^[122] . monopoly powers, notably that of conferring university degrees, including the degree of Doctor of Philosophy ^[123] .. Moreover, as such a university, the appellant receives very substantial funds for capital and recurrent expenditures under the Higher Education Funding Act 1988 (Cth). It is now a "higher education provider" under the Higher Education Support Act 2003 (Cth) ^[124] .. By virtue of s 19-35(1) of the lastmentioned federal statute, the University, receiving such federal assistance in respect of a student or a class of students, "must ensure that the benefits of, and the opportunities created by, the assistance are made equally available to all such students ... in respect of whom that assistance is payable".

[110] By federal and State legislation, then, universities in Australia are not wholly private bodies, entitled to govern themselves or enter private arrangements as they please. With their establishment by public law and with large subventions of public funds, they are rendered part of the network of public authorities which, to the extent provided, must conform to the law -- relevantly, to the legal requirements of procedural fairness and administrative justice.

[111] Similar principles about the susceptibility of the administrative decisions of universities to judicial review have been acknowledged by superior courts throughout the common law world, including in New Zealand ^[125] ., Canada ^[126] . and the United Kingdom ^[127] .. In Norrie v Senate of the University of Auckland, Woodhouse P in the Court of Appeal of New Zealand explained ^[128] .:

Like other statutory corporations here [universities] have been established by Act of Parliament as public institutions to promote public purposes, in this case higher education, and largely with public funds. And for that important reason alone I would agree ... that they 'should be subject to public scrutiny in the courts'.

Academic commentators have expressed the same conclusion about the legitimacy (as well as the social and legal desirability) of judicial review of the administrative decisions of universities ^[129] ..

[112] Such basic postulates were not denied by the University in this case. It could scarcely be otherwise, given that, in the "Policy on Student Grievances and Appeals", adopted by the University's Council, within powers conferred by the University Act ^[130] ., there appears the following paragraph ^[131] .:

6.0 Finality of appeal

The decisions of the University Appeals Committee are final and there is no further recourse to appeal within the University. Before pursuing any avenues of judicial review, the appeals process within the University should be exhausted.

[113] It was not suggested, or found, that this paragraph precluded the respondent's access to the remedy under the Review Act that she sought in the courts. The existence of the paragraph indicates that the facility of judicial review was contemplated as a possibility. Given the foregoing features of the law affecting the University, the contrary would not have been arguable.

[114] The student's complaints: In the way in which the proceedings developed, the respondent's complaint of procedural unfairness and administrative injustice has not been examined by a court. The University sought to forestall such examination by seeking relief against the proceedings on legal grounds. Nevertheless, it is useful to be aware of the kind of case which the respondent alleged and that is now put out of court. That case should be measured against the language and purposes of the Review Act, in its application to a statutory authority such as the University ^[132] .. Because, necessarily, the principle upheld in this case has an application far beyond universities and affects other statutory authorities, likewise not excluded from the Review Act, it is proper to test the majority's conclusion against the case which it expels from consideration under the Review Act.

[115] The respondent's complaint, as stated in her application for a statutory order for review, was that the University officer who chaired the Assessment Board ^[133] . was a person who would not bring an impartial mind to the resolution of the issue before the Board. This was claimed to be so because that person had initially investigated the complaint against the respondent, satisfied himself that a case existed against her in relation to it and then participated in the substantive decision of the Assessment Board.

[116] The law requires the actuality and appearance of impartiality on the part of those who exercise power under a law made by Parliament ^[134] .. Depending upon the evidence, the claim by the respondent was not unarguable. The respondent complained that she had been denied adequate time to evaluate and respond to expert witnesses relied on by the University before the Board; that she had been denied legal representation, notwithstanding the very serious nature and consequences of the allegations; and that the University had breached its own Policy as promulgated under authority from the Council. The respondent also claimed that the Policy had been misinterpreted by the Board and the Committee as requiring the prohibition of legal counsel, as distinct from permitting the Board to deny legal representation. The University's decision-makers were also charged with acting on irrelevant material and without evidence.

[117] At the hearing of an application for a statutory order to review, the respondent might have been incapable of making good any of the foregoing complaints. However, the present appeal must be approached on the footing that the respondent could establish each and every one of the matters complained of. Notwithstanding this, it is now held that the Review Act affords her no legal remedy.

[118] Given her enrolment in the University for the degree of Doctor of Philosophy, the nature of the complaints that the respondent wished to ventilate, the public character of the University as a statutory authority substantially supported by public funds, the devastating consequences of the University "decision" on the immediate and long-term career and reputation of the respondent and the language and purposes of the Review Act, such a result would be surprising.

[119] Unusual outcomes sometimes happen in the law. The answer to this appeal does not lie in impressions derived at the foregoing level of generality. Nevertheless, impression is often a useful check for judges to apply when their reasoning and verbal analysis lead to an outcome that appears counter-intuitive. When many less serious "decisions", made within statutory authorities, are subjected to judicial review, the conclusion that the Review Act is inapplicable on a case such as the present demands thorough justification, anchored clearly in the text and purposes of that Act. Repeatedly, in recent years, this Court has insisted upon the duty of others to approach problems such as the present with the closest of attention to the statutory language in question, read in its context and so as to achieve its purposes ^[135] .. We must be no less strict in the application of this rule to ourselves.

[120] A procedural restraint: There is another consideration of a general kind that must be mentioned at this point ^[136] .. The University sought peremptory relief against the respondent's claim. By the authority of this Court, such relief "must be sparingly exercised" ^[137] ., at least in a case such as the present.

[121] Where the law is uncertain and where it is in a "state of transition" ^[138] ., it is undesirable for courts to "decid[e] questions of legal principle without knowing the full facts" ^[139] .. This is because it is the experience of the law that the interpretation of a statute is more likely to be accurately performed when the issue is approached not as one of disembodied verbal analysis but as one proceeding on a thorough appreciation of the law applied to clearly identified evidentiary findings. In a sense, this is an aspect of the resistance which this Court has shown from its earliest days ^[140] . to the formulation of "legal rules against a background of hypothetical facts" ^[141] ..

[122] Application to the present case: The slightest familiarity with the meandering course of decisions in the Federal Court of Australia, concerning the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), and the informed criticisms of the inconsistencies that had emerged in those decisions ^[142] ., should have suggested to the Supreme Court the desirability of postponing the provision of the interlocutory relief sought by the University until after the substantive hearing of the application under the Review Act. In my view, that is the course which, at the least, this Court also should require before now deciding a most important question in advance of evidentiary findings.

[123] It cannot be doubted that evidence can throw light on the application of statutes to particular facts. Now, without evidence (or a full demonstration of the "rights" and "interests" asserted by the respondent and provable by her) her claim to relief under the Review Act is refused because she is said to have no "legal rights or obligations" affected by the University's "decisions". Given that it is common ground that the meaning of the critical expression in the Review Act is to be derived from the language of that Act read in the light of its subject, scope and purpose ^[143] ., it is highly undesirable that the present outcome should be reached in the procedure that was initiated by the University. At a minimum, those inclined towards such relief should send the matter to trial where derived principles could better be applied to the facts as those facts are finally found.

The legislation and common ground

[124] The legislation: The joint reasons set out, or describe, the provisions of the Review Act, the University Act and the Higher Education Act of Queensland, applicable in this case ^[144] .. There is no need for me to repeat these provisions or to explain the provisions of the ADJR Act, comparable to those of the Review Act, and the way in which the Queensland Parliament has commanded an interpretation of its law in a way consistent with the interpretation of the ADJR Act ^[145] .. It is this command that makes it essential in this appeal to have regard to the history of the judicial attempts to elaborate the critical words "under an enactment" appearing both in the federal and Queensland statutes. As will appear, that history is confused. It remains unsettled.

[125] The link between the "decisions" made successively by the University's Assessment Board and Appeals Committee, pursuant to the Policy on Academic Misconduct adopted by the Council of the University, is easily traced. The University Act creates the University as a body corporate ^[146] .. Unsurprisingly, the powers of the University are widely stated. They include "all the powers of an individual" ^[147] . and the power to "do anything ... necessary or convenient to be done for, or in connection with, its functions" ^[148] .. Those functions include the provision of education at university standard ^[149] .; the provision of courses of study or instruction to meet the needs of the community ^[150] .; and the dissemination of knowledge and promotion of scholarship ^[151] .. Notably, the functions include "to confer higher education awards" ^[152] .. It was common ground that the conferral of the degree of Doctor of Philosophy was such an "award".

[126] Necessarily, both by the operation of the Acts Interpretation Act 1954 (Q) ^[153] . and by the common law ^[154] ., the conferral of such powers on a statutory body, such as the University, extended to the provision of all powers necessary to carry the enumerated functions and expressly stated powers into effect including, where appropriate, the power not to confer a higher education award on a candidate or to exclude a candidate, who is otherwise being provided with education at university standard, from a course that might, save for such exclusion, lead to such an award. The capacity and power of the University to exclude a candidate such as the respondent was not in dispute.

[127] The University Act establishes a council ^[155] .. That council ("the Council") is designated the "governing body" of the University ^[156] .. It is empowered to do anything necessary or convenient to be done for, or in connection with, its functions ^[157] .. Those functions include the management and control of the University's affairs ^[158] .. Specifically, the Council is empowered to delegate its powers to an appropriately qualified committee ^[159] .. By s 61 of the University Act, the Council is empowered to make university "statutes" (elsewhere frequently called by-laws) dealing with various matters, including the entitlement to degrees and other awards and the disciplining of students and other persons undertaking courses at the University.

[128] No such "statute" was made by the Council to govern either of the foregoing matters by express terms. Instead, the Council, under its power of delegation, established the Academic Committee, relevantly with powers to determine the University's academic policy, including in respect of "student ... assessment, progress [and] credit" ^[160] .. In March 2001, the Academic Committee approved a revised Policy on Academic Misconduct. In September 2001, the same Committee approved a revised Policy on Student Grievances and Appeals. The Council appointed subcommittees of the Academic Committee. These included the Research and Postgraduate Studies Committee (of which the Assessment Board was itself a subcommittee) and the Appeals Committee contemplated by the foregoing Policies ^[161] ..

[129] It follows from this series of steps, made in pursuance of the University Act, that the proceedings taken against the respondent, and the Policies purportedly applied in her case, were neither expressly stated in the University Act nor even expressly provided for there. However, this does not prevent the "decisions", so made, from being made "under" an enactment, namely the University Act ^[162] .. It remains in each case to characterise the undoubted "decisions" by reference to that statutory expression.

[130] Common ground: A number of features of the case may be accepted as being uncontested. Thus, it was agreed (although detailed evidence might have shaken this) that there was no contractual arrangement between the respondent and the University pursuant to which, within the University Act, the University "provide[d] education at university standard" to the respondent ^[163] .. In the nature of the peremptory challenge to the respondent's proceedings, the exact basis upon which the respondent came to be enrolled or registered or accepted as a postgraduate candidate, submitted to supervision and permitted to use facilities (including laboratory facilities) towards a degree of Doctor of Philosophy, was not spelt out or elaborated ^[164] ..

[131] There was no suggestion in this case that the respondent had failed to exhaust the remedies made available to her within the University, as by a final appeal to the Council as the governing body. The revised "Policy on Student Grievances and Appeals" contained a provision ^[165] . specifically stating that the decision of the Appeals Committee was "final". In the case of the University, no provision was made by the University Act for a Visitor to whom an ultimate appeal might be addressed ^[166] .. Within the University, therefore, the respondent was at the end of the line.

[132] It was not suggested that the omission of the University to make "statutes" for the discipline of students (as it might have done) ^[167] . invalidated or affected in any way the Policies and subcommittees created by the Council under its general powers ^[168] .. On the other hand, the respondent relied upon the fact that such subordinate lawmaking was specifically contemplated by the Act. She suggested that the University could not put itself in a better position by proceeding indirectly in the way that it had.

[133] It was agreed that the power of the University to confer higher awards ^[169] . included the power to confer the higher degree of Doctor of Philosophy ^[170] .. The respondent contended that the "decision" to exclude her from candidature for that degree was equivalent to a "decision" not thereafter "to provide education at university standard" and not to confer a higher degree on her, in which she had evidenced an "interest" by her earlier pursuit of candidature for her chosen degree.

[134] No submission in the Supreme Court was addressed to a suggestion that the "decisions" of the Assessment Board or Appeals Committee were not "decisions" as referred to in the Review Act, if otherwise it was established that they were made "under" the University Act. Clearly, within the line of authority that developed in the Federal Court in relation to the meaning of "decision" in the equivalent provisions of the ADJR Act, the determination of the allegation made against the respondent, and the sanction imposed in consequence, represented a "substantive" determination ^[171] .. It was clearly justiciable in character ^[172] .. The subcommittees' determinations, certainly that of the Appeals Committee, were "decisions" within the language used by this Court in Australian Broadcasting Tribunal v Bond ^[173] . and had a real and immediate impact on the respondent's interests. The determinations did not constitute merely preliminary actions or recommendations, although even these can sometimes amount to a "decision" within the ADJR Act ^[174] .. Whatever debates have circled around characterisation of a "decision" ^[175] . in this statutory context, they can be put aside in this case. It is clear beyond doubt that the "decisions" complained of had an immediate operative effect on the respondent's interests ^[176] .. In litigation in which so much else was contested, this was not.

[135] As noted in the joint reasons, the University did not argue that the respondent was not a "person who is aggrieved" within the Review Act ^[177] .. Neither did it suggest any other basis upon which relief should be denied to the respondent for lack of relevant standing to engage the Act ^[178] .. In the general law, by the authority of this Court, standing is now ordinarily determined by reference not solely to the affection of legal rights and duties belonging to parties but to the effect of the impugned conduct on the parties' interests ^[179] .. Given this established and unchallenged approach, and the terms of the Review Act, the conclusion stated in the joint reasons in this appeal becomes all the more remarkable.

[136] It was common ground that the Review Act does not purport to cover the entire field of judicial review applicable to government officials and public authorities in Queensland. The Supreme Court of Queensland continues to enjoy power, pursuant to Pt 5 of the Review Act, to grant prerogative orders, as well as declarations and injunctions ^[180] .. The statutory orders of review provided by the Review Act ^[181] . represent a non-exhaustive but simplified remedy, supported by modernised procedures and enhanced by rights to reasons for challenged decisions ^[182] . which rights, in turn, facilitate the new statutory remedy.

[137] So much was also uncontested. However, the respondent urged that it would be wrong, in the light of the purposes of the Review Act, and its provisions, for an interpretation to be favoured that significantly reduced the availability of the statutory orders of review when compared to remedies still available to persons with an interest to obtain the older remedies of the prerogative writs, declarations and injunctions. There is merit in this argument. The Review Act was meant to enhance and supplement the remedies available under the general law, not to cut them back.

[138] Finally, although there was at first instance a dispute on the part of the University, challenging the respondent's characterisation of the "decisions" impugned in these proceedings as of "an administrative character", by the time the matter reached the Court of Appeal, this argument had been abandoned. It was specifically conceded on the appeal that the decision was one of "an administrative character" ^[183] .. This fully justified concession, therefore, confines the matter in contention (all other issues being resolved by decision or concession in favour of the respondent) to the sole remaining question. This was, and is, whether the "decisions" affecting the "interests" of the respondent were, or were not, "made ... under an enactment" ^[184] ..

[139] One final point should be mentioned in reviewing the statutory landscape. In the definition in the Review Act of "decision to which this Act applies" ^[185] ., there is an alternative definition that goes beyond the simple formulation of "a decision of an administrative character made ... under an enactment". It is provided that decisions enlivening the Review Act extend to decisions of the same character made by a "State authority" under a "non-statutory scheme or program involving funds that are provided ... out of amounts appropriated by Parliament" or "from a tax, charge, fee or levy authorised by or under an enactment". Although in the Supreme Court, the respondent presented her argument as being founded solely upon the principal definition of an applicable "decision", attracting the application of the Review Act, in this Court, her counsel reserved her entitlement, in any later possible proceedings, to rely on the alternative definition of the "decision" engaging the Review Act. By that Act, a "State authority" means "an authority or body (whether or not incorporated) that is established by or under an enactment" ^[186] .. The appellant University is certainly such a body.

[140] In the nature of these proceedings, the evidentiary foundation for attracting the application of the alternative definition of a "decision to which this Act applies" was not laid in the Supreme Court. No notice of contention was filed for the respondent in this Court. Accordingly, the alternative definition does not arise for consideration in this appeal. Nonetheless, the existence of an alternative, and even wider, ambit for the operation of the Review Act -- extending as is there contemplated into decisions made "under a non-statutory scheme or program" -- represents a further argument against the adoption of a narrow interpretation of the phrase "under an enactment", as it appears in the primary definition ^[187] .. In the Review Act it is clear that the Queensland Parliament was marking out a large ambit for the application of these beneficial provisions. That fact should guide the approach taken by this Court to the ambit of the expression "made ... under an enactment".

The competing meanings of "under an enactment"

[141] The context of the new federal laws: It would have been possible, when the ADJR Act was adopted, for the Federal Parliament to have specified the "decisions" that it would subject to the new law on judicial review, in a way different from that ultimately chosen. Thus, it would have been feasible to enumerate the decisions of specific decision-makers or to identify particular decisions by name or description.

[142] Various possibilities were debated in the report and parliamentary discussions that preceded the adoption of the ADJR Act ^[188] .. For instance, it would have been possible (as was done in relation to the case of a failure to make a decision) to limit the occasion for relief under the Act to those "decisions" in which a person had a duty to make a decision, whether by or under an Act or by the unwritten law ^[189] .. There were many methods by which a different key could have been fashioned that would unlock access to the simplified system of judicial review afforded by the ADJR Act (and hence its later Queensland derivative) in different ways ^[190] ..

[143] Instead, under the ADJR Act, the formula adopted was to apply that Act to all defined "decisions" ^[191] .. Relevantly, these were defined by reference to whether they had, or had not, been "made, proposed to be made, or required to be made ... under an enactment" ^[192] .. Provision was made in the ADJR Act for the express exception of "a decision by the Governor-General" ^[193] ..

[144] In this approach, the ADJR Act adopted a course different from that followed when provision had been made by the Federal Parliament two years earlier, for merits review of specified federal administrative "decisions" by the new Administrative Appeals Tribunal ^[194] .. In the case of that Tribunal, the same wide definition was adopted for those persons who might apply to the Tribunal for relief. In such a case, it was enacted that application might be made "by or on behalf of any person or persons ... whose interests are affected by the decision" ^[195] .. Indeed, standing was extended to organisations whose objects or purposes included such "interests" ^[196] ..

[145] However, these large prescriptions in the new federal administrative law concerning the "interests" of those who might enliven the new remedies stand in marked contrast to the narrow view which the majority reasoning in this appeal now seeks to stamp on the Review Act under the guise of a requirement, inherent in the necessity to show that the "decision" impugned was made "under" an enactment. The parallel language of the Review Act, and its express command to adopt an approach to the Queensland statute similar to that taken to the ADJR Act ^[197] ., deny the validity of this approach. It represents a departure from a fundamental feature of the ADJR Act which the Queensland Parliament had copied in this respect.

[146] Encompassing all decisions: Nonetheless, the words "under an enactment", appearing in the ADJR Act and in the Review Act, remain to be interpreted. In Australian National University v Burns ^[198] . Bowen CJ and Lockhart J, writing of the same phrase in the ADJR Act, observed ^[199] .:

The difficulty in the present case does not lie in the definition of the expression 'under an enactment' ... [T]he word 'under', in the context of the [ADJR Act], connotes 'in pursuance of' or 'under the authority of' ... The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.

...

In one sense every decision of the [university] Council may be said to be made 'under' the University Act namely, in the sense of in pursuance of or under its authority ... If the Council makes statutes with respect to the 'manner of appointment and dismissal' of professors ... those statutes arguably may also constitute a source of the Council's authority to engage and dismiss professors; but as no such by-laws have yet been made we need not pause to consider that provision further on this point.

[147] Although "in one sense" every "decision" of the governing body of a statutory authority such as the University (and every decision made "under" such decisions) might be seen as being made "under" the University Act, this has not been the approach that courts have taken, virtually from the start of the operation of the ADJR Act, and hence of the Review Act. The reason is simple. And it is grounded in the language of each statute.

[148] If it had been the purpose of the two Acts to cast the net of their application so widely, there would have been no reason to include in the definition of a "decision to which this Act applies" the phrase "under an enactment". It would have been sufficient simply to require "a decision" and that it was one "of an administrative character" and perhaps one made by an identified authority or officer of the polity concerned. Instead, the precondition was added, applicable to every case that enlivened the reforming legislation. The "decision" in question had to be one "made ... under an enactment". Plainly, therefore, the phrase was intended to impose an additional requirement. It is one that, to the extent of its language and purpose, cuts back the availability of the new law to provide simplified judicial review. Accordingly, although "in one sense" every decision made by or under the governing body of the University might be said to be made "under" the University Act, this was not the sense in which the phrase is used either in the ADJR Act or in the Review Act. The respondent did not argue otherwise.

[149] Attempted limitations on the ambit: The appreciation in the courts that this was so has led to successive attempts, principally in the Federal Court, which long enjoyed exclusive jurisdiction under the ADJR Act ^[200] ., to explain the meaning of the requirement that the administrative decision in question was one "made ... under an enactment". The Federal Court has sought to do so by using alternative words, or description of appropriate approaches. The attempted explanations include the following:

(1)

The core functions test: This was the view that the phrase was intended to refer to a decision in pursuance of a "core function" of the public official or authority concerned. It represented an approach expounded at first instance in Burns by Ellicott J ^[201] ., whose part as one of the federal law officers instrumental in designing and piloting the ADJR Act into law made his opinion one of special significance. It was this approach that led Ellicott J in Burns to his conclusion that the ADJR Act applied in that case which concerned the termination by a university council of a professor's appointment. Such an action was found to lie "at the very heart of its existence and [was] essential to the fulfilment of the basic function for which the University was set up by Parliament" ^[202] .. There are resonances of this approach in the earlier opinion of Kitto J in this Court in Board of Fire Commissioners (NSW) v Ardouin ^[203] .. There, in construing a statutory provision exempting a statutory authority from liability, Kitto J asked whether the negligence on which the plaintiff sued "would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other than [the exemption] ... gave power in the circumstances to do" ^[204] .. In his reasoning in the Court of Appeal in this case, Jerrard JA ^[205] . came close to a similar exposition. He described the decision made affecting the respondent as one "as to a central or core function of the University". However, on appeal in Burns, that approach was criticised as incorrectly focussed. The Full Court in Burns found that it was impossible to distinguish between decisions affecting professors and decisions relating to other employees including "registrars, librarians, groundsmen or security officers". By hypothesis, the latter decisions ^[206] . were thought not to have been made "under an enactment" by reason only of the general powers under the statute belonging to the university council. Therefore, some other and different connection was required. The orders of Ellicott J were set aside.

(2)

The proximate source test: In place of the test suggested by Ellicott J, the Full Court in Burns propounded no principle better than that the outcome of the statutory criterion depends on "the circumstances of each case" ^[207] .. However, whilst this approach was undoubtedly correct, it scarcely gave much guidance. It was in this context (and perhaps reflecting developments happening at the same time in the law of tort) that judges began to suggest that whether a "decision" was made "under an enactment" depended upon whether the propounded enactment was the "immediate" or "proximate" source of the power deployed in the given case. This was the way in which a number of decisions were reasoned in the Federal Court including Australian Film Commission v Mabey ^[208] .; Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd ^[209] .; and James Richardson Corporation Pty Ltd v Federal Airports Corporation ^[210] .. In such cases, the Federal Court was at pains to draw a distinction between the enactment which afforded the capacity for the public decision-maker to make the "decision" in question and the subordinate source (usually a contract made under general powers) which was the proximate foundation or justification of the "decision". Where such a distinction could be made, the impugned decision was held not to have been made "under" the enactment but "under" the more proximate source of power ^[211] .. However, the difficulty with the supposed distinction between "proximate" and "remote" sources of "decisions" is obvious. Essentially, the distinction is self-fulfilling. Debates over "remote" and "proximate" sources are unhelpful because the words are descriptive of the outcome. They are not prescriptive of the way in which that outcome is to be reached.

(3)

The " authorised or required " test: A realisation that this was so led, in turn, to renewed attempts to find a discrimen that would mark out an applicable statutory conferral of power from that which was inapplicable when applying the test required by the statute. This resulted in the suggestion in General Newspapers Pty Ltd v Telstra Corporation ^[212] . that it was necessary to ask whether the impugned decision amounted to an "ultimate or operative determination which an enactment authorises or requires, and thereby gives it statutory effect" or otherwise ^[213] .. This new test came as something of a surprise because the facts in General Newspapers were substantially indistinguishable from those in James Richardson, decided shortly before by reference to the concept of "proximate" and "remote" decisions. Moreover, as particular members of the Federal Court were quick to point out, if the Federal Parliament, in the ADJR Act, had meant to confine judicial review to "decisions" expressly identified for that purpose in the legislation, it would have proceeded in the ADJR Act in the manner that it had adopted in the AAT Act; yet it did not. In Chapmans Ltd v Australian Stock Exchange Ltd ^[214] ., Lockhart and Hill JJ remarked with telling effect:

The question of characterisation must be determined as one of substance and it would seem not to be determinative that the statute did not spell out precisely the power to make the decision.

This view conformed to the opinion that had been stated by the Full Court in Burns, at the beginning of this series of cases, that "[t]he [ADJR] Act should not be confined to cases where the particular power is precisely stated" ^[215] .. Notwithstanding these conflicting signals, the Federal Court continued to favour an approach restricting the ambit of the phrase "made ... under an enactment". It became generally disinclined to characterise a decision in that way if the only source of the legislative power relied upon was stated in general terms in the enactment and if a different, more specific source could be identified, usually a contract, to explain and justify the "decision" made.

(4)

The rights and duties test: Now, on the proposal of the University in the present appeal, a majority of this Court has endorsed a new and different test altogether. It requires consideration of whether, in the given case, the enactment "under" which the applicant for review says that the impugned "decision" was made, was one affecting the applicant's "legal rights and obligations" ^[216] .. The test as thus stated is "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?" I shall turn shortly to criticise this test. However, let me at once state what, in my view, is the correct test:

(5)

The need for statutory authority test: According to the correct test, the question whether a decision challenged in the Review Act ^[217] . proceedings was "made ... under an enactment" is answered by first determining whether the lawful source of the power to make the "decision" lies in the enactment propounded and, secondly, deciding whether an individual would, apart from that source, have the power outside of the enactment (either under the common law or by some other statute) to make the "decision" concerned. If the answer to that question is in the affirmative, the "decision" was not made "under" the propounded enactment. If it is in the negative, the source of power in the statute is established as governing the case. The "decision" is therefore made "under" the statute or it is made without power.

The applicable test and inapplicable attempts

[150] The proper approach: Obviously, none of the Federal Court decisions, nor the several approaches they have successively favoured, bind this Court. Whilst assistance may be derived from reading them, the foregoing digest and lengthier analyses elsewhere of their reasoning ^[218] . show, with all respect, the confusion into which this corner of the law has fallen. It is not sufficient to resolve the present case simply by reference to "the circumstances of each case" as was suggested in Burns ^[219] .. Clearly, this Court should adopt an approach that will help resolve not only this case but other cases in other courts in the future. It must be an approach that is consistent with the language, structure and purposes of the Review Act (and, in similar cases to which it applies, the ADJR Act). As I previously stated in Mulholland v Australian Electoral Commission ^[220] ., "between clearly valid and clearly invalid [ applications] of an Act may be other [applications] that require characterisation". To give meaning to the contested phrase, it is necessary to look beyond the words in question to other provisions of the Review Act, its context and its purpose.

[151] The other provisions of the Review Act that are relevant include the broad connotation of "decision"; the large ambit of "enactment" as defined; and the very large scope afforded to persons to establish standing so as to invoke the remedies provided by that Act. These considerations help to identify the serious flaw in the new test propounded in the joint reasons.

[152] No view could be taken of the phrase "made ... under an enactment" that is inconsistent with the clear parliamentary purpose that "persons aggrieved" by an administrative decision are entitled by law to enliven the Review Act if they can show no more than that their "interests" are "adversely affected by the decision". To provide such a wide definition of "person aggrieved" ^[221] . and then, by a judicial gloss, to narrow severely the parliamentary purpose in so providing (by obliging demonstrations of the "affecting of legal rights and obligations" ^[222] . as a precondition to relief) is unacceptable as a simple matter of statutory construction. The text is not then internally harmonious and consistent as it should be assumed the Parliament intended. Judges must not impose interpretations on parliamentary law that contradict express provisions of such law or deny, or frustrate, its application. There is no textual foundation for glossing the Review Act in this way. To the contrary, there are clear textual provisions that forbid it.

[153] Reducing the review ambit: From the start of the operation of the ADJR Act, as relevantly followed in the Review Act, courts have tried, in the ways that I have summarised, to reduce the apprehended over-reach of judicial review. The phrase "made ... under an enactment" is but one of the statutory provisions invoked for this purpose. Others have sometimes proved fruitful in confining the ambit of the legislation. These include determinations that the person concerned is not "a person aggrieved" ^[223] .; rejection of the claim that the determination is a "decision" ^[224] .; and suggestions that any "decision" is not "of an administrative character" because it does not involve the governmental action for which the Review Act and its federal predecessor were designed ^[225] .. None of these controls was available to, or was ultimately relied upon by, the University in this appeal. In elaborating the phrase "made ... under an enactment", courts should not strain themselves to adopt artificial interpretations in order to confine the text. The text itself provides for its own restrictions. Unnecessary restraints, without the clearest foundation in the statute, should not be introduced by judges to undermine beneficial legislation of this kind.

[154] Remedial purpose of the law: Least of all should artificial restrictions be read into the statutory phrase which are inconsistent with the express provisions governing the initiating party's standing rights. This is especially so because the Review Act is one that has been adopted to enlarge, and not to restrict, judicial remedies ^[226] .. The provision of remedies against legally flawed decisions by public authorities (some of which, on legal analysis, may be no "decision" at all) is, after all, simply the application to such authorities of the requirement fundamental to our system of government, namely accountability to the rule of law ^[227] .. It renders the recipients of public power and public funds answerable, through the courts, to the people from whom the power is ultimately derived and the funds ordinarily raised by taxation, and for whose interests such recipients are, in a sense, public fiduciaries.

[155] Moreover, relief by way of judicial review is ordinarily discretionary. A court is not, as such, concerned with the factual merits but with observance of legality ^[228] .. Sometimes, the complainant will have remedies otherwise. In the federal sphere, this may include access to the constitutional writs ^[229] .. In the case of the Review Act, it will include entitlements to seek prerogative relief or declaratory or injunctive orders. These are still further reasons why it is inappropriate for this Court to struggle to confine the operation of the remedial provisions of the Review Act in a way that is not fully sustained by that Act's language, structure and purposes. In my respectful opinion, the conclusion reached in the joint reasons offends all of these requirements. The Review Act is not concerned only with affection of a complaining party's "legal rights and obligations". It is concerned as well with affection of that party's "interests" -- a much broader notion, and deliberately so.

[156] Rights of corporations/individuals: If, therefore, the phrase "made ... under an enactment" is approached by reference to the test that I favour, in order to identify the competing possibilities of the legal source of the "decision" concerning the respondent, those possibilities in the present case are (1) the University Act; or (2) legal powers that the University has derived outside the University Act.

[157] The possible alternative "sources" of the University's powers outside the University Act could only derive from the fact that that Act created the University as a "corporation" with "all the powers of an individual". The University may therefore enter into contracts. However, it was common ground that there was no right, express or implied under a contract, that could be invoked to sustain the lawfulness of what the University had done in the respondent's case (assuming the contractual distinction to be a correct one). Accordingly, it remains to consider what other sources the University could rely upon to act as it did in the respondent's case. The University Act afforded the University the legal status of a corporation and the powers of an individual. Yet, under the law applicable in Queensland, there was something that no corporation and no individual might do but only a university established or recognised under an Act ^[230] ., such as the appellant. This was, relevantly, to "provide education at university standard" and to "confer higher education awards". Apart from such a university, no corporation or individual in the State of Queensland could lawfully do this because of the specific prohibition in the Higher Education Act ^[231] ..

[158] It follows that, whereas the University, as a corporation with "all the powers of an individual" ^[232] ., could enter contracts ^[233] . and do any other thing an individual could do, its power to provide university education and confer higher degrees derived, and derived only, from a source in the University Act. Necessarily, the power of the University to withdraw the provision of education at university standard to an admitted candidate and to deny access by such a candidate to a higher education award, had likewise to find a source in the University Act. The power to withhold is included in the power to grant. As it happened, the University itself recognised this. By its Council, within relevant powers, it established or authorised the relevant subcommittees and made appointments to them. It adopted the applicable Policies. All of this the University did under the University Act.

[159] Thus, whatever might be the case where a "decision" is made under a contract or, as in NEAT Trading ^[234] . (as found by the majority of this Court), under the applicable provisions of another statute (the Corporations Law), the position in this case was quite different. The source of the University's power to make the "decision" that it did in relation to the respondent was, and was only, the University Act. The "decisions" affecting the "interests" of the respondent were not made "under" some other legal source of power. They were made "under" the Act or they were unlawful.

[160] No other source of power: As noted by the Court of Appeal and by this Court, it was common ground between the parties that there was no contract in existence between the respondent and the University, and thus no contractual source of power (as in Burns ^[235] .) by which the University could have purported to act so as to permit the action taken against the respondent to be characterised as taken under a contract (assuming that to be a valid distinction) and not under the enactment. In the Court of Appeal it was held, correctly in my opinion, that in the absence of contract in this case the only possible source of power for the decision to exclude the respondent from the programme was the University Act. No competing statutory or other source of a relevant power existed.

[161] The majority in this Court now holds that the University was acting only in its capacity under "general law" as a private entity, terminating a private "relationship" or "arrangement" with another entity (the respondent), as any person may do, without recourse to a statutory power ^[236] .. Such a characterisation conceals the reality that the relevant "arrangement" between the University and the respondent consisted solely in the exercise by the University of its statutory powers under the Higher Education and University Acts with respect to the respondent, namely the powers to "provide education at university standard" and ultimately to "confer higher education awards" upon valid enrolment and undertaking of the relevant course.

[162] The "arrangement" and "relationship" in question were co-extensive with the University's powers and obligations under the University Act. Here, they involved nothing else. The termination of that "arrangement" or "relationship" was nothing less than the refusal by the University to exercise its powers in the respondent's case. Put affirmatively, it was the withdrawal from an already accepted student of the University's facilities of education and the conferral of its degree. Describing the events as the termination of an "arrangement" or "relationship" at general law cannot alter the basic character of the University's actions: the termination was, and remains, indistinguishable from the University's refusal to exercise the relevant statutory powers ^[237] ..

[163] The University could have entered into, or withdrawn from, various "arrangements" or "relationships" with students as it wished. But what gave this withdrawal its "bite", and its impact on the respondent, was the denial, inflicted on a person with an interest, of access to a tertiary education and eventually to a degree, which relevantly only the University could award, pursuant to the Higher Education Act.

[164] Summary and conclusion: The foregoing approach, which I favour, is wholly consistent with this Court's decision in NEAT Trading ^[238] ., much as I disagree with that decision. It is firmly anchored in an analysis of the statutory provisions relevant to this case. Unlike the approach in the joint reasons, it does not contradict, but fulfils, the remedial language, structure and purpose of the Review Act. It avoids glossing the phrase "under an enactment" with an additional vague and opaque requirement that is not in the Act and that contradicts the standing and interest provisions that are there. It follows that the University's appeal to this Court should be dismissed.

Of academic independence and other concerns

[165] The special position of universities: I recognise that universities are in many ways peculiar public institutions ^[239] .. They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper ^[240] .; the academic merit of a thesis ^[241] .; the viability of a research project ^[242] .; the award of academic tenure ^[243] .; and internal budgets ^[244] .. Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside ^[245] ., such matters are "unsuitable for adjudication in the courts ... because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate". Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly.

[166] However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud ^[246] . (a recent English case similar to the present appeal), it is entirely "correct" of courts "to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment". In the present appeal, the respondent's claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to "pure academic judgment", such decisions are susceptible to judicial review. They are so elsewhere ^[247] .. They should likewise be so in Australia. An appeal to "academic judgment" does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people.

[167] Where the personal interests of an individual are affected by an institution funded by public monies, there is, to use Woodhouse P's expression, a "double consideration" ^[248] .:

On the one hand a final year ... student should be entitled on personal grounds to know that an end to his potential career has been decided upon by the University for reasons that are entirely justified and by methods that are demonstrably fair and appropriate. As well there is the very distinct public interest in seeing that the very large investment of public money in taking him so far will not be thrown away except for good and substantial reasons.

His Honour's elaboration is apposite to the situation of the respondent in this appeal. This Court, by narrowly construing the Review Act and adopting an untextual gloss, effectively puts such persons outside the Act and leaves them without the means of judicial review which would normally be afforded them in other common law countries and hitherto in Australia. This withdrawal of the protection of the law is justified neither by the statutory text nor by past authority or consideration of legal principle and policy.

[168] If a university asserts that, globally, by its very nature and by the character of its "decisions", it should be completely exempted from an enactment such as the Review Act, it has the right to seek such an exemption from Parliament ^[249] .. None was granted here. The party seeking a statutory order of review must always establish that it is a "person aggrieved", that the decision in question is "administrative" in character, that it is "made ... under an enactment" and that relief should be granted in the exercise of the court's discretion. Without embracing notions of "deference" that find no footing in the Review Act (or the ADJR Act), it remains true that, in exercising a discretion in relation to a complaint concerning a "decision" of a university, if the decision was made fairly by the appropriate body in accordance with the applicable university policy, the risks of judicial interference would be slight indeed ^[250] ..

[169] Unwarranted fears of floodgates: The University's arguments propounded various sources of anxiety about the outcome that I favour. It is appropriate for me to address those concerns for I do not doubt that they were sincerely held. The ultimate answer to them is one of abiding legal, indeed constitutional, importance.

[170] Where bodies, such as Australian universities, specifically the appellant, are recipients of large amounts of public funds, they cannot complain when, like other statutory authorities and public decision-makers, they are rendered accountable in the courts for the lawfulness of decisions they make "under" public enactments. It is not unreasonable that such bodies should be answerable for their conformity to the law. Relevantly, the law includes the law of procedural fairness ("natural justice"). Universities, in formal and important decisions about disciplinary matters affecting students and others, should be places of procedural fairness. So far as the law provides, they should be held to account in the courts in response to complaints -- certainly those of a serious nature -- that the ordinary legal entitlements have been denied to a person with the requisite interest ^[251] ..

[171] I have demonstrated that there are many protections in the language of the Review Act against needless interference by the courts in decisions such as those to admit students to candidature for higher degrees or to exclude them once they are admitted. Both in terms of general principle governing the limited role of judicial review ^[252] ., and by reason of the provisions of the applicable legislation, the fear of an undue opening of "floodgates" in connection with university "decisions" is, as authority determining the scope of similar legislation demonstrates ^[253] ., unpersuasive.

[172] Avoiding untextual limitations: The foregoing shows how unnecessary it is, in the case of the decisions of a university, to adopt the untextual approach, favoured in the joint reasons, that to be made "under" the University Act the complainant must show affection of his or her legal rights and obligations.

[173] The suggestion that a candidate part-way through the University's procedures for admission to the higher degree of Doctor of Philosophy has had no "interests" affected by a finding of academic misconduct, exclusion from the University, removal from the prospect of a degree and with a permanent or long-term blight on any chances of academic advancement elsewhere and termination of career progression is, self-evidently, unrealistic. To analyse the respondent's situation in terms of her entitlement to enter the University's land by legal licence is also unconvincing. It seriously misstates her relationship with the University. Her complaint is not a spatial one but one of procedural unfairness and the non-compliance by the University with its own lawful procedures and Policies established by its Council under the University Act.

[174] The respondent had clear "interests" that were affected by the University's decisions. Those "decisions" were "made ... under an enactment", namely the University Act. They were directly traceable to the University Act. They were of a character, and with consequences, that only a university operating under the Higher Education Act could lawfully perform. The Review Act applied. The judges of the Supreme Court of Queensland were correct to so hold. Not only for the erroneous outcome in this case, but also because of the uncertain consequences that the distinction now drawn may bring to the beneficial accountability of public decision-makers to the law in Australia, I respectfully dissent.

[175] The University's appeal should be dismissed with costs.