Griffith University v Tang

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Callinan,Heydon JJ,Kirby J
• Judgment Date: 03 March 2005
• Neutral Citation: 2005-0303 HCA A,[2005] HCA 7
• Court: High Court
• Docket Number: B19/2004
• Date: 03 March 2005

[2005] HCA 7

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ

B19/2004

Griffith University

Appellant

and

Vivian Tang

Respondent

Representation:

P A Keane QC with S E Brown for the appellant (instructed by Minter Ellison)

A J H Morris QC with J P Murphy for the respondent (instructed by Dibbs Barker Gosling)

Judicial Review Act 1991 (Q), ss 4, 5, 7(1)(a), 16(1), 20, 48.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5(1).

Griffith University Act 1998 (Q), ss 5, 6, 8, 9, 11.

Griffith University v Tang

Administrative law — Judicial review — Exclusion of respondent from PhD candidature programme conducted by appellant — Where appellant is a body created by statute — Power of appellant to function as a university and to confer higher education awards derived from statute — Whether exclusion was a decision to which the Judicial Review Act 1991 (Q) applied — Whether exclusion was a decision made under an enactment — Relevance of nature of relationship subsisting between parties.

Words and phrases — ‘decision’, ‘under an enactment’, ‘of an administrative character’, ‘required or authorised’, ‘aggrieved by’.

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 19 December 2003 and in its place order:

• (a) the appeal to that Court is allowed;

• (b) set aside the orders of the Supreme Court of Queensland (Mackenzie J) made on 14 February 2003 and in their place order that the application for a statutory order of review is dismissed;

• (c) the University pay the costs of the appeal to the Court of Appeal;

• (d) the question of the costs of the application before Mackenzie J is remitted to the Supreme Court of Queensland.

3. The appellant pay the respondent's costs of the appeal to this Court.

1 Gleeson CJ. The respondent brought proceedings in the Supreme Court of Queensland seeking review under the Judicial Review Act 1991 (Q) of a decision to exclude her from the PhD candidature programme conducted by the appellant. The decision was made on the ground that she had ‘undertaken research without regard to ethical and scientific standards’ and had thereby engaged in ‘academic misconduct’. The finding that there had been misconduct, and that exclusion was the appropriate response, was made by an Assessment Board, which was a sub-committee of the Research and Postgraduate Studies Committee of Griffith University. The respondent pursued an appeal procedure within the University. An Appeals Committee concluded that misconduct had occurred, that exclusion was appropriate, and that the appeal should be dismissed. The respondent contends that, at both levels, there were breaches of the requirements of natural justice, failures to comply with mandatory procedural requirements, improper exercises of power, and errors of law.

2 In her application for review, the respondent said that she was aggrieved by the decision because she had been excluded from her PhD candidature with the appellant and, in consequence, her prospects of following a professional career in her chosen fields (molecular biology and bioscience) had been destroyed.

3 The issue in the present appeal is whether the decision to exclude the respondent was a decision to which the Judicial Review Act applied. By virtue of s 4 of the Judicial Review Act, the answer depends upon whether it was ‘a decision of an administrative character made … under an enactment’. That formula was borrowed from the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). It is common ground that the considerations bearing on the meaning of the Commonwealth Act also apply to the State Act. The appeal is concerned solely with the application under the Judicial Review Act. Whether, if the allegations made by the respondent were correct, she would be entitled to a remedy under the common law, for breach of contract, or pursuant to the powers of the Supreme Court of Queensland which are preserved by s 41 of the Judicial Review Act, or otherwise, is not a question that arises. If the Judicial Review Act applies, it provides its own procedures for judicial review and its own remedies. It is those statutory procedures that have been invoked by the respondent, and those statutory remedies that are sought. Because the Judicial Review Act picked up the language of the ADJR Act, and because of the history of judicial interpretation of the ADJR Act, it could be that the statutory scheme, in some circumstances, provides a more restricted form of judicial review than is otherwise available.

4 In the Supreme Court of Queensland, the appellant applied for summary dismissal of the proceedings under s 48 of the Judicial Review Act. That application failed at first instance 1 and before the Court of Appeal 2.

5 The argument turns upon whether the decision to exclude the respondent was a decision ‘under an enactment’, the relevant enactment being the Griffith University Act 1998 (Q).

6 The Griffith University Act 1998, which replaced the Griffith University Act 1971 (Q), provides that the functions of the appellant include providing education at a university standard, providing facilities for and encouraging study and research, providing courses of study and instruction, and conferring higher education awards (s 5). That Act gives the appellant all the powers of an individual, including the power to enter contracts, acquire and deal with property, fix charges and other terms for the services it supplies, and do anything necessary or convenient in connection with its functions (s 6). The appellant's governing body is a Council, which has wide powers to manage the University's affairs (ss 7, 8, 9). It may delegate its powers to an appropriately qualified committee (s 11). The Council is empowered to make university statutes, which may cover, among other things, the admission, enrolment and disciplining of students and other persons undertaking courses, fees, and the making and notifying of university rules (s 61). There are no such statutes of relevance to this appeal.

7 In the Queensland Court of Appeal, Jerrard JA described the chain of authority pursuant to which the respondent's case was considered as follows:

‘On 4 August 1997 the council approved a constitution (a revised one) for a body described as The Academic Committee. Its central function described in its constitution is that of being responsible to the Council for assuring the quality of academic activities across the University. Its responsibilities included the apparently delegated one of developing and monitoring the academic policies and procedures of the University and making recommendations to the Council on those matters; advising the Council on the policies and procedures pertaining to research higher degree programs; and advising the Council on the conduct, evaluation and enhancement of teaching and research. It has specific delegated authority to approve the content of academic courses and detailed requirements for awards, and to determine the University's academic policy in the areas of student administration, assessment, progress, credit and timetabling. On 1 March 2001 the Academic

Committee approved a revised Policy on Academic Misconduct, and on 6 September 2001 a revised Policy on Student Grievances and Appeals. There was no suggestion made on the appeal that those approvals were not intra vires the Academic Committee.

Also on 4 August 1997, a Research and Postgraduate Study Committee was established by the council; it is described in the material before this court as a sub-committee of the Academic Committee. The functions of the Research and Postgraduate Studies Committee include … those of approving the eligibility of students to receive higher degrees including a PhD … The learned judge found that this function was a direct delegation from the council.’

8 There is nothing in the Griffith University Act which deals specifically with matters of admission to or exclusion from a research programme or any course of study, academic misconduct, or intra-mural procedures for dealing with issues of the kind that arose in the case of the respondent. The powers that were exercised in establishing policies and procedures relating to research higher degrees, academic standards, investigation of alleged academic misconduct, and exclusion from programmes, all appear to flow from the general description in s 5 of the Griffith University Act of the University's functions, the general powers stated in s 6 and the general power to do anything necessary or convenient in connection with those functions, and the powers of the Council as the University's governing body, including its powers of delegation.

9 In argument, reference was also made to s 8 of the Higher Education (General Provisions) Act 1993 (Q), which, in effect, confers upon universities the exclusive right to confer higher education awards, by prohibiting a ‘non-university provider’ of educational services from conferring such awards.

10 Placing reliance upon Australian National University v Burns3 and Australian National University v Lewins4, the appellant argued that, to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and, in addition, it must be the statute which gives legal force or effect to the decision. Those cases, and other decisions of the Federal Court extending over many years, establish, in relation to the ADJR Act, that it is not enough that the decision be within power. The legislation does not provide for review of all decisions of an administrative character made in pursuance of any power or authority which has its foundation

in a statute. As Lehane J put it in Australian National University v Lewins5, a...