Griffith University v Tang [2004] HCATrans 227 (21 June 2004)

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Griffith University v Tang [2004] HCATrans 227 (21 June 2004)

Last Updated: 28 June 2004

[2004] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2004

B e t w e e n -

GRIFFITH UNIVERSITY

Appellant

and

VIVIAN TANG

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 JUNE 2004, AT 2.15 PM

Copyright in the High Court of Australia

MR P.A. KEANE, QC: May it please the Court, I appear with my learned friend, MS S.E. BROWN, for the appellant. (instructed by Minter Ellison)

MR A.J.H. MORRIS, QC: May it please the Court, I appear with my learned friend, MR J.P. MURPHY, for the respondent. (instructed by Dibbs Barker Gosling)

GLEESON CJ: Yes, Mr Keane.

KIRBY J: Mr Keane, just before the matter starts, I will put on the record the matter that I put on the record at the special leave hearing. I have had a long association with universities and have served on the governing bodies of three of them. I am also a member of the advisory board of the Key Centre for Ethics, Law, Justice and Governance of Griffith University. I have been a rather indifferent member of that body, I am ashamed to say, but I think the parties have been notified of these matters and they do not cause me any embarrassment and I understand they do not cause the parties any embarrassment.

MR KEANE: Quite, and once again we invite your Honour to sit. If the Court please, your Honours will have seen that the issue is whether the appellant’s decision to exclude the respondent from a PhD course was a decision made under an enactment within the meaning of section 4 of the Judicial Review Act 1991 (Qld). Your Honours have had our written submissions, of course. May we summarise our contentions before addressing briefly the points of difference as we see them between ourselves and our learned friends. Your Honours, the first submission we make is that - - -

KIRBY J: Can I just ask a question. It was common ground when we were told this at the special leave hearing that there is no contractual relationship. I am curious about that. Would not the respondent have paid fees? I accept that this has been common ground and maybe it ought not and cannot be revived now, but would you just illuminate why that was common ground?

MR KEANE: Well, your Honour, it is common ground but no evidence of any contractual relationship - that was said at page 110 of the record in the Court of Appeal in the course of argument, 110, lines 45 to 46 and your Honour’s particular question, your Honour makes an assumption as to the provision of consideration which one cannot confirm.

KIRBY J: I just have to put it out of my brain even though it will not seem to go away. All right, well I will do so.

MR KEANE: Your Honours, our first contention is that the Judicial Review Act 1991 did not seek to subject to orders for statutory - statutory orders for review, under Part 3 of that Act, every decision by a body established and given functions by statute, and in that regard, we submit that the very presence of the express requirement in section 4(a) of the provision that the decision be made under an enactment confirms that this is so and we submit as well that force is given to the submission by the terms of section 4(b) which refers to a different species of decision of administrative character. The point about it being simply that it shows there is a limit.

GLEESON CJ: Well, I do not suppose you can get your exam paper re-marked by a judge?

GUMMOW J: What is the relationship between the Judicial Review Act and the jurisdiction the Supreme Court of Queensland otherwise has with respect to the prerogative writs?

MR KEANE: In section 41, your Honour? Your Honours have been given, I believe, two volumes of authorities and materials. The Judicial Review Act is in volume 1, under tab 1 and the provision your Honour Justice Gummow is enquiring about is in section 41. Your Honours will see that subsection (1) says “The prerogative writs . . . are no longer to be issued” but the Court’s jurisdiction is preserved and, in effect, now the orders that are made are orders for review and the writ of quo warranto has been abolished. So the jurisdiction of the Supreme Court of Queensland is otherwise preserved by Part 5, your Honour, to answer your Honour’s question shortly.

GUMMOW J: So there will be decisions made otherwise than under an Act that could attract section 41?

MR KEANE: Yes, that is right. It may be, your Honour, that the common law gets ahead of the legislature. Your Honours, the next submission we make is that the meaning of the phrase “decision made under an enactment” was authoritatively explained by the decision of the Full Court of the Federal Court in General Newspapers v Telstra and that statement of the test has been affirmed in a number a subsequent cases in the Full Court of the Federal Court so that we would submit it is now, subject to the view of this Court, securely established. Under that test, to satisfy the requirement of a decision made under an enactment, the legal efficacy of the decision must come from the statute which authorises or requires the decision, that is to say, the Act is concerned with decisions which being authorised or required by an enactment are given force or effect by it.

KIRBY J: Well, in one sense in this case it does come from the statute and the question is by what principle can you cut off the root of title back to the statute which sets up the University?

MR KEANE: Your Honour, in relation to that observation, our next submission is that the statutory conferral of functions or the conferral of capacity to act in particular circumstances is not sufficient to expose the body to judicial review on the footing that decisions that are made within power, albeit with an ultimately statutory source, are not necessarily identical with decisions made under the enactment.

KIRBY J: But the phrase is wide enough to make it so. It is a question of how one, on a principled basis, can cut back what would seem to be highly undesirable and excessive interpretations that would push the phrase beyond a reasonable boundary, if I can use that expression. I mean, as the Chief Justice said, you would not want to have judges marking students’ examinations and similarly, we have had very strong traditions in respect of our universities that academic matters are really left to the university academic authorities. Now, all of that might be undone if you take too broad a view under the enactment.

MR KEANE: And to respond to your Honour’s question which I think was directed to what is the principal basis for drawing the line, we submit that the Telstra test does draw the line in the appropriate place in that it permits review where the statutory body, the functionary, exercises a power conferred by statute to affect other persons, but denies review where the functionary is only exercising its capacity to carry out its functions and, insofar as it affects other persons, relies on the general law, whether it is of contract or property or tort.

KIRBY J: I wish this case were as easy as the Fire Board Commissioners because there the driving of the fire engine, you could say you do not need the Act to allow that, that is just done under the general law, the Motor Traffic Act or something else, but here the giving of degrees or not giving of degrees is the very business that a university is established to do.

MR KEANE: That is true, your Honour, and so far as the very business that it is established to perform as a possible test, the core function test that was addressed in those terms in ANU v Burns many years ago now, the Full Court of the Federal Court in that decision rejected that test on the footing that it simply produces the result that any decision by a statutory authority vested with a statutory function will answer it in the affirmative and does not give the words and, we submit as well, the legislative history and context any work to do.

As a matter of principle, we would submit that if persons are not aggrieved by the exercise of a statutory power unilaterally to affect them, there is no reason in principle or policy why the functionary should be susceptible of review under Part 3 because the functionary is relying on legal rights and duties that are common to the functionary and to individuals as opposed to exercising a statutory power of decision whereby another party may be unilaterally affected, to use the language of Justice Thomas in Blizzard’s case, and in this case, the severance of the association between the parties did not depend upon the exercise of any statutory power of decision rather than the exercise by the appellant of its management and control of its affairs and property.

Next, in terms of summarising our submissions, we submit that the Griffith University Act plainly does not say that there is no power to exclude, save by a decision under the Act, which the Act provides and apropos of some submissions made in our learned friends’ outline, the Higher Education Act does not alter that position. That Act confirms that those institutions which are not universities, recognised as such in Queensland, may not pretend to be so, but it distinctly does not determine the terms on which universities shall be conducted or the relations between universities and their students, much less the relationship between the Griffith University and its students.

KIRBY J: But Mr Morris says that you cannot just set yourself up to give out university degrees or to withhold them. You have to have authority in this State because of the Higher Education Act and that, therefore, that makes it clear that when the Griffith University Act talks of the functions and powers of the University, reading that with the Higher Education Act, that means that decisions relating to the giving or withholding of degrees are matters that must trace their root of title to the University Act.

MR KEANE: Your Honour, as to that we say that, properly understood, the provisions of the Higher Education Act are there to protect the status and integrity of awards of higher degrees by universities but they are a very long way away from purporting to provide for, whether by the Higher Education Act itself or in combination with the Griffith University Act, the terms, the statutory terms, on which the University may deal with students.

Your Honours, if we can then, having stated in a summary way the propositions for which we contend, can we now deal with what we apprehend are the principal areas of difference between ourselves and our learned friends. It is apparent from the written submissions that have been exchanged that the first area of dispute between the parties is marked out by the competing views that, as the respondent would have it in paragraph 17 of the respondent’s submissions, that the purpose of the Judicial Review Act is to control the exercise of public power and perhaps one might put it a little more accurately, the purpose of Part 3 of the Judicial Review Act is to control the exercise of public power, whereas our submission is that the objective of Part 3 of the legislation is more accurately stated as being to provide a simple and effective system of judicial review of administrative decisions authorised and given effect by legislation and in that regard Part 3 of the Act is plainly not intended to cover all decision making by statutory authorities.

The terms of section 4 in subsections (a) and (b), to which we have referred, make that point and the presence of Part 5 of the Act, which preserves the operation of common law review of administrative action, is also an indication that the intention was not to provide for the comprehensive exercise by the courts of judicial review of every decision made by a body established under statute.

One thing we should mention in response to your Honour Justice Gummow’s question is that while the jurisdiction of the Supreme Court is preserved by section 41(2) there are, of course, differences in terms of the grounds of review and particularly of relevance, or what may be of relevance, in cases like the present, is the circumstance that under Part 3 there may be a statutory order for review granted on the ground of error of law, whether or not the error is jurisdictional or apparent on the face of the record. That broad ground would not be available under the common law and that may have significance in cases like the present as your Honours will see if your Honours look at the grounds that are set out in paragraphs 10 and 11 at pages 3 and 4 of the record.

KIRBY J: Which page?

MR KEANE: Your Honour, if your Honour goes to the appeal book, the application is the first document and the grounds to which I was referring are at page 3 in paragraphs 10 and 11 and going over the page to page 4. But insofar as what is being agitated there are errors of law, it is not obvious that they are errors of law that are either jurisdictional or on the face of the record.

GUMMOW J: The Act is both wider and narrower than the general law. That is what it comes to.

MR KEANE: Yes.

CALLINAN J: And what do you say the general law is, Mr Keane?

MR KEANE: Well, in relation - - -

CALLINAN J: In relation to say disciplining, expulsion of students in a university?

MR KEANE: Your Honour, it is unsatisfactory to say so, your Honour, but it depends. If one takes, for example, the kind of case to which your Honour referred recently, Bently’s Case, that is where Dr Bentley had been stripped of his degrees by Cambridge University, one sees that in that case, in 93 ER, the particular report in 93 ER, one sees that the university having been established by letters patent and confirmed in the Oxford and Cambridge Act 1571 had actually been vested with jurisdiction by the Parliament and the letters patent to determine questions between members of the university and the university - - -

CALLINAN J: Well, that was a kind of a statutory context.

MR KEANE: Quite, so that in that situation, one sees that the writs would go, the prerogative writs would go and did go.

GUMMOW J: In England, a lot of these cases turn on the powers of the visitor, do they not?

MR KEANE: They do.

GUMMOW J: Is there any situation in Queensland analogous to that?

MR KEANE: No, your Honour. Queensland, unlike some of the other States, and I think New South Wales and Victoria, Queensland does not have a system of visitors.

CALLINAN J: Mr Keane, I have a vague recollection of cases, old English cases, dealing with the expulsion of students from schools that were unaffected by any considerations of contract or, indeed, outside a statutory context, and in which it was held that the headmaster, for example, had power to expel so long as he did not act arbitrarily or capriciously.

MR KEANE: Your Honour, I am not familiar with those cases. I am familiar with some old cases that suggest that the same position applied in respect of universities on the footing of the in loco parentis rule, that the institution acted in loco parentis and was not reviewable accordingly.

CALLINAN J: Yes, that was the sort approach, but I cannot remember what the cause of action is? Now one of the cases is Fitzgerald v Northcote [1865] EngR 16; 176 ER 734. Now, I do not know whether it has a great deal to do with this but it would be interesting to know what the position is independently of any enactment.

MR KEANE: Your Honour, as Justice Gummow says in England, the cases depend upon whether there is a visitor or whether there is not and - - -

CALLINAN J: I mean I though there was a body of law that really went a long way and said that expulsion or disqualification was a very serious matter.

MR KEANE: It is.

CALLINAN J: A bit like The Winslow Boy, which there has been quite a lot of publicity recently, which is based upon a real person.

MR KEANE: Quite. Archer-Shee. I think that was a case of petition of right, but I am not sure, your Honour.

CALLINAN J: I think it was.

MR KEANE: But I think it might well be that the government of the day agreed that in the event that Archer-Shee had been wrongly sent down, they would not put any obstacle in the way.

CALLINAN J: There had to be some concurrence, I think, by the Executive to what took place there.

MR KEANE: I think that is right, your Honour.

KIRBY J: A famous playwright recorded the story of that case, did he not?

CALLINAN J: Terence Rattigan, that is right. There have been two films.

MR KEANE: Your Honours, I am not aware of that Fitzgerald Case. We will have a look at it.

KIRBY J: Do you have an argument here, I mean, if it is a decision under an enactment, universities have their own internal structures, appeal mechanisms to professorial boards, proctorial boards and ultimately to university governing bodies. Now, is there an argument on the basis that if this is the correct interpretation, that cuts across the statutory scheme of the university legislation, or not?

MR KEANE: Well, your Honour, the position is that in this case there is a set of policies which establish the academic policies in relation to academic fraud, and - - -

KIRBY J: But would not the present respondent have the right to appeal to somebody within the University including the council of the University?

MR KEANE: And she did. She had a right to go to the appeal committee. There were two decisions that are challenged. One is the initial decision of the assessment board, and the other is the decision of the appeal committee, to whom she had a right of appeal under the University - - -

KIRBY J: The question I am asking is what is the concordance of the two statutes? Whatever may be the general meaning of under an enactment, decision under an enactment, in the special case of universities, there is enough in the enactment to indicate that this is a special regime with its own internal mechanisms of review.

MR KEANE: Well, your Honour, under the Griffith University Act, section 62 provided that the University might make statutes - - -

KIRBY J: They are what we call in other States by-laws of the University, are they?

MR KEANE: Yes, that it might make section 61(1):

The council may make university statutes.

(2) A university statute may only be made about the following matters –

and they include:

(a) the admission and enrolment of students;
(b) the entitlement to degrees and other awards;
(c) the disciplining of students and other persons undertaking courses at the university -

and the situation is that if such statutes are made, section 62 provides that a university statute is subordinate legislation.

Now, to respond to your Honour’s question, the situation is that no such statutes were made. Policies were adopted and followed, we submit, but what we do submit to be drawn from that is, that the statute conferred on the University council the power to establish a reviewable system of decision making, left it to the University council to exercise that power and it did not.

KIRBY J: It is very curious not to have a part of the by-laws, or statutes as they are called in this State, dealing specifically and in some detail with disciplinary matters. All the universities I have been involved in have had that sort of scheme, as far as I remember.

MR KEANE: Well, this situation, that is to say where there was a power to establish a system of reviewable decision making which was not exercised to establish a system of reviewable decision making was the same sort of thing that was adverted to by Justice Lehane in ANU v Lewins. In ANU v Lewins, his Honour referred to that circumstance and the argument that it suggested that there was not intended to be judicial review as having force. So that there are two things, your Honour. There is the substance of the point and the second is that, as to your Honour’s observation that it is unusual, it certainly seems to have been the case in relation to our national university.

KIRBY J: But the answer to the problem of, as it were, premature engagement of the jurisdiction of the courts if there was some internal mechanism would be the refusal of relief on a discretionary basis and an indication that the person should first exhaust any remedies that they have within the university system.

MR KEANE: True.

KIRBY J: So that the decision that it might engage the courts for error of law or jurisdiction or natural justice would be the ultimate decision, the decision of the University council, I suppose?

MR KEANE: Well, your Honour, that might be - - -

KIRBY J: I am just trying to see how the two Acts work together, the Judicial Review Act and the Griffith University Act?

MR KEANE: Well, we submit that the way in which they work together is that the Griffith University Act created or conferred on the University council a power to establish a system of reviewable decision making. Whether or not it exercised it was a matter for its discretion. It exercised its discretion not to do so, and we submit that is relevant.

GUMMOW J: But would there be jurisdiction to obtain a declaration?

MR KEANE: Well, it would depend upon the basis on which it was sought, your Honour. One can imagine that in cases, in some cases, where the rights that are being exercised are private rights arising from contract, it may be that in cases of natural justice, or failure of natural justice, there would be. In cases where there is not a contract, but where the exercise of power is so bad as to amount to an abuse of power, it might be that there might be some remedy by way of injunction to restrain its exercise - - -

CALLINAN J: Well, that is what I was interested in, Mr Keane. I just had an idea that there was special authority applying to schools – a rather 19^th century flavour about it – talking about what a terrible thing it was to expel a boy from a public school and that, I thought, was in a context which was devoid of any contractual or statutory influence at all. Anyway, you might look at that overnight or think about that.

GUMMOW J: I think there is a decision of Lord Goddard’s in the 1940s Thompson v Park, is it, involving injunctions and assault, removal from the premises, those sort of things, because tort may have a role to play too – I am not suggesting in this case but - - -

MR KEANE: No, but generally, in relation to the particular question before the Court, that is to say, whether what is subject to review is the exercise of a statutory power to affect others in their rights, interests, expectations and so forth. If one is an airport authority, in excluding people from the airport, one is simply relying upon one’s rights of property to do that absent some special provision, and one does not need a special provision.

KIRBY J: The reason that I asked you the questions concerning the Griffith University Act is that I do understand, perhaps, the desirability of recognising the unique features of university responsibilities, but the problem with giving a limited view to a decision under an enactment is that it will not just affect universities, it will affect all the people with all the subordinate bodies, statutory bodies throughout the State and throughout the nation because of the similar wording of the Judicial Review Act, the federal Act and that would be a view that would seem to run counter to the beneficial purpose of this legislation, as you said yourself, a simplified, accessible, easy and very broad provision for judicial review under the whole gamut of bodies that exercise public power.

MR KEANE: And, your Honour, there are two things about what your Honour says. The first is, of course, that we are dealing with a university, and the question is whether it has exercised a power conferred by a statute to affect someone else. No doubt, in some respects, it is appropriate to regard universities as public bodies, in the sense that they receive public funds and educate members of the public, although perhaps not as such. Nevertheless, though it is to some extent regulated by statute, it is autonomous within those bounds. It is a community of scholars and students, which enjoys substantial internal autonomy, and it is a self-governing body with the powers and rights of a natural person. So that is the first thing we would say.

The second thing we would say is in relation to the general operation point, that one has to give the statute its due operation. One should not unduly read it down, nor, in our submission, should one unduly read it up, in the sense that, as Sir Anthony Mason said in Bond’s Case, there are competing considerations here, and as a matter of policy they were adverted to in the EARC report. That is the report that led to the passage of Act. In particular, we would refer your Honours to page 16 of our written submissions, where we have excerpted passages from the EARC report.

In our written submissions, at page 16, paragraph 46, we refer in the second paragraph of the citation to the circumstance that – and the context in which this appears, your Honours, is EARC recommending against the adoption of a more liberal test for review. It was said:

Some of the examples given relate to powers of the Crown –

So it is the Crown generally, not special beasts such as universities –

that are not materially different to the powers of most adult citizens, i.e. to enter contracts, to manage and control one’s own property. They are not powers conferred by Parliament for the benefit of citizens or to regulate the affairs of citizens, and there seems to be no compelling case for a statutory obligation to give reasons for decision to be extended to them.

So, your Honour, that is why we say that in terms of policy, if one is concerned with powers to regulate the affairs of others or statutory powers to be exercised for the benefit, or, indeed, the detriment of others, one can see why one does not want to cut it down. But, as has been said, the Crown should not necessarily have to have the worst of both worlds, that is to say, be subject to review and also be subject to the ordinary rules that apply to everybody. In terms of the rule of law considerations, that everybody should be equal before the law - - -

KIRBY J: In the federal sphere, there are many people who are subject to the Judicial Review Act, but also subject to being sued for causes of action which are completely separate from the public law enactments.

MR KEANE: Yes, quite, your Honour.

KIRBY J: What is so unusual about that?

MR KEANE: Sometimes they may be inconsistent. All we are saying is that you should not be subject to, as I say, the worst of both worlds. If it be the case that there is an exercise of proprietary rights that is intra vires, that is to say, within the course of the functions, that is otherwise unobjectionable if it had been rights exercised by a private citizen, then it should not be subject to review. If they are wrongfully exercised, then, just as with any other individual before the law, there will be a remedy.

KIRBY J: You seem to have pitched your argument very much at a general theory of decisions under an enactment, and you have referred to the Federal Court decisions which are on federal statutes. You have not really tried, as I understand your submissions, to say, “Well, this is a special case, Griffith University has a special statute. It just does not work in this case”. Now, if I am misunderstanding that, I would like to understand it clearly because, in one sense, I have never seen an enactment that says that a statutory body has all the powers of an individual. It may be that that is a common form in Queensland, but it is not something I have seen before. It may be that one could construct a special case for universities – I am not sure. I am just concerned that you are pitching your argument at the very generality which has huge ramifications for federal administrative law as well as the law in this State.

MR KEANE: Your Honour, we have been responding to some questions which have arisen in relation to the susceptibility of the University’s decisions to review under the general law, which, of course, does not arise, and in that regard we say it is a special case. So far as the application of section 4 of the Judicial Review Act, which is the question which falls for determination by the Court – so far as that question is concerned, it is relevant to look at the particular statute. For that reason, we look at the Griffith University Act, and we see that the Griffith University Act is concerned to provide for functions in the University, and then it gives it the powers of an individual.

The point we are making in that regard is that by reason of the particular provisions of the Griffith University Act, which may or may not be replicated in relation to other statutory functionaries because of those provisions, the answer to the question, “Is the decision to exclude the respondent made under an enactment?” – the answer is in the negative, just as, for example, your Honour, in Hutchins’ Case, the decision whether the exercise of the power to vote the tax debt in a scheme of arrangement situation under the Bankruptcy Act by the Commissioner for Taxation was held not to be a decision made under an enactment. The Commissioner of Taxation only got into the picture because section 8 of the Act vested in the Commissioner the administration of the Act, and some other provisions of the Act made the tax debt payable to him. So that is an example.

Another example is Lewins’ Case itself, where a person, a teacher at the university, the ANU, had been refused promotion, saw a statement of reasons and was refused, for the reason that the decision to refuse reasons by the university, a statutory creature, was not a decision made under any particular power of the statute to promote or withhold promotion. In that regard, it would probably be appropriate to take your Honours to the way the test has been formulated in General Newspapers. General Newspapers is in volume 2 of the bundle. It is item - - -

KIRBY J: Just before we embark on that, if you remember in Mr Morris’ submission, he takes what one might call a sweep on the horizon. He says there have been a few theories that courts have propounded to try to cut back an overbroad. Now, do you agree with the broad thrust of what he said, or do you posit different – it would be helpful to me to have some sort of structure of how the courts have tackled this problem, which is an overreach, and what theories they have propounded into which the one you are now taking us fits, so that we can, as it were, see what is on the table, what are the different ways courts over the last 25 years have sought to cut back an overreach, to see the broad contours of the choice we have to make.

MR KEANE: To respond to your Honour as concisely as we can, at first instance in ANU v Burns, in Justice Ellicott’s decision, his Honour took the view that where the decision that was made was made in the exercise of one of the core functions for which the authority had been established, then one could say that one had a decision made under an enactment. That approach was rejected, and, we submit, decisively, in the Full Court in ANU v Burns.

We will take your Honours to that passage in a moment, but to stick with the overview, there were then some cases such as Berkeley Cleaning, the effect of which was to suggest that if the decision that is made is a decision made under a general statutory authority to enter into contracts, for example, then that could be regarded as a decision made under an enactment. That view was rejected in General Newspapers v Telstra Corporation on the basis that it was necessary in applying the phrase “decision made under an enactment” to appreciate a distinction between the conferral of functions and the giving of capacity to a functionary to act and decisions that are made under an enactment in the sense that the decisions are required by, and take their force from, the enactment.

That is the view that prevailed in General Newspapers v Telstra. The Berkeley Cleaning decision and the case that followed it, a single judge decision that followed it, were disapproved and distinguished, and subsequent cases in the Federal Court have followed the Telstra approach. We will just mention them. The particular decisions which did that, Salerno, Hutchins and Lewins, all Full Court decisions, adopt and emphasise the test which requires that one be able to see that the statute in question actually gives effect to the decision. So that it is not simply a case like Ardouin, the Fire Board case that your Honour referred to, where the statutory authority exercising its functions and having capacity to do so is simply exercising the rights and duties that everyone has under the general law.

GUMMOW J: Is there any mention in any of these Federal Court cases of any analogy with 76(ii) of the Constitution, which has the phrase “arising under”, which one would have thought was no narrower - - -

MR KEANE: Your Honour, I think that the answer to your Honour’s question is no, there is not, but I would need to check.

GUMMOW J: Perhaps there should have been.

KIRBY J: Thank you for that overview. It is, I think, handy to keep in mind that this is not unploughed field.

MR KEANE: No, and as we submit, with respect, because our learned friends take a different view – they put that there are a number of tests in play that suggest the possibility of reconciliation in terms of the test that our learned friends propose in paragraph 19, I think it is, of their submissions. As to that, we say that their proposed new test is a reworking of the core function test, and really does not come to grips with the need to demonstrate that it is the decision-making power unilaterally to affect others that is the touchstone of the application of the Act.

Can we take your Honours, then, to the decision or the observations in Telstra. It is General Newspapers v Telstra in volume 2 of our bundle at tab 26. That was a case where the appellant, General Newspapers, had been approached by Telstra to indicate an interest in tendering for the printing of certain telephone directories. Having been told they were on the tender list, they were then not approached by Telstra to tender and Telstra entered into contracts with others. The question arose whether the decision to enter into contracts with others, pursuant to the power which Telstra had to make contracts, was a decision made under an enactment.

In the judgment of Justices Davies and Einfeld, with whom your Honour Justice Gummow agreed in this regard, if your Honours go to page 172, your Honours will see that in the second full paragraph of text at about point 3 on the page, it is said:

The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment, issues concerning the relevant factors to be taken into account –

and so forth, and we invite your Honours to read down, where there is reference to the Full Court decision in ANU v Burns. After citing from that, their Honours say, “That decision has been applied on many occasions”. Then they refer in the last paragraph on page 172 to the two authorities to the contrary, and your Honours will see it is the Berkeley Cleaning Case and the single judge decision that followed it. If your Honours then go to the top of 173, their Honours say:

Neither of those cases gave to the term “decision” the meaning which, in our view, it carries, namely that of an ultimate or operative determination which has force and effect by virtue of an enactment. 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.

Pausing there, your Honours, it is for that distinction between capacity and special statutory power to affect rights, interests, expectations and so forth that is the reason why we cite Ardouin and Hudson v Vanderheld. That distinction is, we submit, well-grounded in principle and authority. Then reading down to the second last paragraph on 173:

In the present case, the decisions relied upon involve the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provisions for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus the ADJR Act had no application to the conduct or to the alleged decisions.

GUMMOW J: What is the law here in this present appeal? No law of contract, but what is it?

MR KEANE: It is the power of the University as an owner of property and the controller of the affairs of a university to cease association with another person.

KIRBY J: What is the association? That is not a very persuasive characterisation of it here. They are in the University and this is pure academic business.

MR KEANE: That is right, and the University has - - -

KIRBY J: It is hardly a ceasing of association. It is a decision by the University, presumably for good and thoughtful reasons, not to persist with an arrangement to teach and examine a person for a higher degree.

MR KEANE: Your Honour, we do not submit – obviously, we do not suggest that when we say “ceasing association” it is a matter of whimsy. It is for reasons that seem good to the University to decide that it shall not any longer have the respondent as a student.

KIRBY J: But it is exercising a function which is specifically nominated in respect of a power which is specifically nominated by a body established by Parliament, the recipient of public funds accordingly, and the donee of the powers that are given to it by Parliament in a statute, which powers other bodies in this State are forbidden to exercise.

MR KEANE: Your Honour says it is exercising specific powers - - -

KIRBY J: Well, I was thinking of the power to award higher degrees. There is such a - - -

MR KEANE: There is a function in section 5(e).

KIRBY J: Would you agree that the conferral of a PhD is the conferral of a higher education award?

MR KEANE: I would, but, your Honour, that is not the power that is involved here. There is no suggestion that the - - -

KIRBY J: The Acts Interpretation Act, I think, would mean “confer” includes non-confer.

MR KEANE: In circumstances where there might otherwise be a claim for conferral. There is no suggestion that the respondent is in any way ready to present or have - - -

KIRBY J: In any way ready to?

MR KEANE: To present for the conferral of the degree. Your Honours will not see any suggestion in the application that - - -

KIRBY J: But these decisions are not made, as we all know, in an instant. They are made over a course of preparation, of examination, of vivas, of evaluation, of letters, of assessments. So all of those are the steps anterior to conferring higher education awards.

MR KEANE: And, your Honour, no doubt many decisions are made before one gets to that. This is not a decision not to award a person a degree, and, with respect, she did not suggest it was. If your Honour looks at page 1, the applicant - - -

KIRBY J: Well, it is a decision not to provide education at university standard, which is a - - -

MR KEANE: Your Honour, we would accept that. As to that, that is, the functions which this body performs, it chooses not to do so in Ms Tang’s case on the basis of good and sufficient reason under its own policies. If your Honour looks at page 1 of the record, the applicant is aggrieved not because she has been refused the degree. She is aggrieved because:

She has been excluded from her PhD candidature with the respondent.

KIRBY J: Is there a provision in the Judicial Review Act (Qld) permitting exclusions of particular statutory decisions that, as it were, expressly take out of the ambit of the Act - - -

MR KEANE: Some statutes, yes, there is.

KIRBY J: There is in the federal one.

MR KEANE: Yes, there is, and under ours.

KIRBY J: Why is that not the way to handle the problem of the present kind, rather than trying to contort the language of the Act?

MR KEANE: Your Honour, we come back, with respect, to the point that the language of section 4(a) is confined in that it does not say, “Any decision by any statutory authority other than the excluded ones shall be subject to review”. It says particular kinds of decisions of administrative character are subject to review, and there are broadly two. One is decisions made under an enactment and the other is the kinds of decisions dealt with in section 4(b). They are the ones that are in. Then there is provision to exclude decisions that are actually made under particular statutes, where those particular statutes do provide for the unilateral exercise of power. Just to complete the point that the view expressed in Telstra is secure, subject to the view of this Court, and to make another point, that one cannot confine the Telstra test by treating it or ANU v Burns as limited to cases where the immediate source of the power to make the decision is contract.

GUMMOW J: Are there any cases where it has been treated in the Federal Court as sufficient that it is something other than contract?

MR KEANE: Yes, there is Salerno v National Crime Authority, which was the case concerning the search and seizure of property by the National Crime Authority. That is at volume 2 of our bundle, item 34. In particular, if your Honours look at the passage which begins at page 139G, it is useful because it also contains a reference to Hutchins, which is another case on which we would rely in answer to your Honour Justice Gummow. Your Honours will see that reference at the top of 141. It is also useful because it refers as well to Lewins, which is the case where the university relied upon its policy and procedures in relation to academic promotion, and that is dealt with at 143. They are all cases where the immediate source of power, if one likes, was not contract.

GUMMOW J: It was some other statute.

MR KEANE: Well, it was a statute that conferred a capacity or a function, and, in the course of exercising that function, powers that were otherwise available under the general law were engaged. In Lewins’ Case, it is the power of management of the affairs of the university, and, in the exercise of those powers of management, the implementation of policies about promotion. We say here, by an analogy – no analogy ever being perfect – it is not a long way from saying that here what is being exercised are policies to exclude. Your Honours, we have mentioned - - -

KIRBY J: Of course, Ardouin was a case of the construction of a provision of an Act exempting a statutory body from liability. This is a case of the construction of an Act which is affording important valuable new rights to citizens to challenge public decision-making.

MR KEANE: And one understands that in the one case, the perspective which the Court might bring would be to read down the special immunity, and one can understand that in another case, where one is looking to give effect to remedial legislation, one would not be so inclined. Indeed, one would be inclined to give it beneficial operation. That having been said, the reason we refer to Ardouin is because it does recognise, as does Telstra and the cases that follow Telstra, the distinction between the notion of capacity to act and statutory powers to act, and that where one is concerned with the former and in the exercise of capacity to avail oneself of the rights, powers, privileges and immunities available to anyone, one is not relying upon the statute.

Can we take your Honours very briefly just to the passages in Ardouin that we have in mind. It is in volume 1 of the bundle, and it is item 21. Your Honours will see on the first page – that is page 105 of the report, down in the bottom left-hand corner – the text of the provision set out. As your Honour Justice Kirby was commenting, it refers to:

“an officer of the board, exercising any powers conferred by this Act, or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers”.

If we can take your Honours to page 109, in the reasons of the Chief Justice, Sir Owen Dixon. At the bottom of the page, at about point 8 or 9:

When s. 46 speaks of the bona fide exercise of the Board’s powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property.

Then over the page, the first full sentence:

But it may be said generally that once a power is found which depends upon the statute and involves detriment or disadvantage to others, either necessarily or in consequence of its improper or faulty exercise, it appears to me that s. 46 is capable of applying: it is not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority.

To similar effect, in the judgment of Justice Kitto at page 118 - - -

GUMMOW J: Well, this was not an act of an ordinary character, this present case, to those cases requiring no special authority. Driving a truck along the street is one thing.

MR KEANE: Operating a university is another. Here there is a view that if the situation is that the University is being operated and the question is, is there a statutory power that entitles the University to cease teaching the respondent, and the answer is there is not.

GUMMOW J: Well, the power to enrol would ordinarily, as a matter of implication, have a power to disenrol like Davis’ Case, with barristers the same idea.

MR KEANE: Yes.

KIRBY J: I would add to that section 6(1) says:

The university has all the powers of an individual, and may –

and then at (f) says:

do anything else necessary or convenient to be done for, or in connection with, its functions.

The functions include the function of providing education at university standard and conferring higher education awards. This is at the very, if I can use the word, “core” - - -

MR KEANE: And the University’s functions, of course it is, with respect - - -

KIRBY J: And rightly so. Universities have a duty to preserve the integrity of their functions otherwise they lose their name.

MR KEANE: And in the exercise of their powers as such in the performance of their functions they have rights. In our respectful submission, it is not the case of which section 4(a) is directed which is the case of the exercise of a statutory power of decision. It is not like the case of the person who sits in an office administering an Act under which rights are granted or withheld or taken away. This is a case where the University, this community of scholars performs functions and in doing so has rights. It binds itself voluntarily to exercise them in a particular way and it does it. The question is then, whether in those circumstances, it is subject to a statutory order for review. The answer to that question is whether the particular decision it has made is one which takes its force and effect in the statute and your Honours understand our submission about that.

Can we just take your Honours to the other couple of passages in Ardouin’s Case and then take your Honours to the passage that we rely on in ANU v Burns in relation to core function test. The other passages we refer to in Ardouin are at 118 commencing at about point 7:

There can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful. To drive –

does not require a special grant of power. Similarly, we submit that to decide no longer to teach a student does not require a special grant of power. It is a decision made by the council or by its delegates to discharge its functions in a particular way.

Going then into 119, the first full paragraph of text on the page, that paragraph I would invite your Honours to read, particularly we note:

and in relation to them the word “powers” cannot refer to capacities; it must mean authorities to derogate from the legal rights of individuals.

So that capacity in this sense, capacity or function or the power to perform functions, is not to be equated with the power to derogate from the rights of others. Capacity does not equal power. Page 121, in the judgment of Sir Alan Taylor, the last six lines for the same point:

there is a significant distinction between its general authority and capacity to function as a statutory body and the special powers conferred upon it by the Act in relation to the prevention and control of fires.

The judgment of Sir Victor Windeyer at 127, in the first ten lines and then – I am sorry, I will wait till your Honours read that. In this context, we should also give your Honours - - -

GUMMOW J: A special power is needed to enable the respondent to acquire this academic qualification.

MR KEANE: In the sense that - - -

GUMMOW J: No one has a right to obtain any academic distinctions.

MR KEANE: No, no one has a right to obtain them. One can submit oneself to the judgment of the University and the University has a function of conferring degrees.

GUMMOW J: Yes. You might have the right once you have established the entitlement through satisfaction of the requirements, study - - -

MR KEANE: That involves decisions, many decisions that are academic decisions. In this case, there was a decision made in relation to the academic work that was being performed and it was a decision that led to the relationship being terminated.

We wanted just to refer your Honours very briefly, without harping on it, to Clough v Leahy which is in volume one, tab 23 at 157. Your Honours will recall that was the case about royal commissions and the point that was being made by the High Court there was that anyone can ask a question, you might not be able to compel an answer. At 157 the first full paragraph, Sir Samuel Griffith said:

We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty of reputation of his neighbour or interfere with the course of justice. That is the general principle.

Then finally, in relation to the authorities to which we intended to take your Honours, that is ANU v Burns, at item 17 in volume 1, in the passage where the approach taken by Justice Ellicott we mentioned earlier is addressed. That is at page 34 in the joint judgment of the Chief Justice and Justice Lockhart, with whom Justice Sheppard agreed, albeit that he also added some further views. The relevant passage begins at the bottom of 34, the last paragraph:

The critical findings of the primary judge were made by him in these terms: “...if a statutory authority makes a decision by which a person is aggrieved, which is made under broad statutory powers but which lies at the very heart of those functions for which the body was established by statute, the courts should be slow to find that such a decision, if administrative in character, is not made ‘under the enactment’ simply because the occasion for the exercise of the power arises out of a contractual situation....But it would be wrong, in my view, to exclude from the operation of the Act fundamental decisions of the University (a body created by statute) through its Council about matters lying at the very heart of its existence and essential to the fulfilment of the basic function for which the University was set up by Parliament. The establishment of the University as an autonomous statutory body independent of Government is supported by many provisions in the University Act. This emphasizes the scope and importance of the powers it exercises.

And we invite your Honours to read what follows, the point being that:

the Council of the University appointed the applicant a professor in the exercise of powers conferred on it by ss 10 and 23 of the University Act. Section 23 recognizes the significance of the power to appoint deans and professors by placing it first among the powers which the Council is to exercise subject to the Act and the statutes. This is not surprising because such appointments are so fundamental to the fulfilment of the University’s functions under s 6”.

Then having set out what Justice Ellicott said, their Honours say:

We cannot accept that to determine whether a decision is made “under an enactment” it is legitimate to distinguish between decisions about matters lying at the very heart of the existence of the appellant or its Council and other matters. The powers vested in the Council by s 23 are in substance to do whatever is necessary to control and manage the activities of the appellant. It is difficult to conceive of wider or more general powers. It is true that deans and professors are mentioned as the first objects of the power of appointment conferred by that section; but we attach no importance to that circumstance. We see no reason for distinguishing between decisions of the Council of the appellant relating to professors and decisions relating to its other servants. A University cannot function without its teaching staff – whether they be deans, professors, readers, lecturers or tutors. Nor can it function without its other officers or servants – whether registrars, librarians, groundsmen or security officers.

Where is the line to be drawn to determine those who perform essential functions and those who do not -

and so forth. So, your Honours, coming then if we may to the test proposed by our learned friends in paragraph 19, it is our submission that that test would be answered in the affirmative in every case where the decision-maker is exercising the function conferred on that decision-maker by the statute, because it is the circumstance that the statute confers the function. That will always mean that the question whether what is being done could be done by any member of the community will always be answered no.

We submit the real issue is whether the legal power being exercised is one available only to the statutory decision-maker. Where the legal power is one which is available to us all, that is, to decide no longer to have dealings with another citizen, the test does not apply. Going then to the Higher Education Act - - -

KIRBY J: That does not seem to be a test that has much to do with the context. I mean the context is a statute providing for a simplified method of judicial review and access to that method.

MR KEANE: Yes.

KIRBY J: Now, how can one - I suppose in favour of your test is the fact that its purpose is to render public decision making answerable to the law, but - - -

MR KEANE: Your Honour, can we pause there. I hesitate to interrupt, your Honour, but, with respect, the very text of the section shows that that is to overstate the scope of the Act because it is not public decision making. It is not about decisions of public bodies, it is narrower. It is decisions of public bodies, if one wishes to call them that, because many of them will be, decisions of bodies who are exercising a power conferred by the statute because it is that kind of unilateral exercise of powers to affect others where the others would not, under the general law, be so affected, that is what the Act is about. The Act is about bringing statutory decision-makers back to the field, as it were, with the rest of us. It is about - - -

KIRBY J: Not really, because the rest of us are not subject to a judicial review mechanism. It is - - -

MR KEANE: Quite, it is not often that we exercise our decisions as to whether or not we will work together on a matter or not, precisely, your Honour. That is where the kind of legal power that is being exercised, where my decision is that I no longer wish to work with my learned friend - it is a decision that I may make. I would not do it flippantly, one hopes, but my learned friend’s entitlement to continue to work with me is co-extensive with my willingness to continue to work with her.

GUMMOW J: What is the rationale, leaving outside the Act areas of public decision making, where there is a general law remedy? What is the rationale of giving these new remedies in some narrower sense? It undoubtedly does, it is narrower in some respects. Everyone agrees. Why was that decided?

MR KEANE: Your Honour, just to make sure I have understood your Honour, insofar as the general - - -

GUMMOW J: It may be that this plaintiff could have got a declaration.

MR KEANE: Possibly. The reason is that in the realm of public law people may be affected in their expectations and so forth in a way in which they do not have a private law remedy.

GUMMOW J: Yes.

MR KEANE: Your Honour, the appreciation of the possibility of that, or the scope of that possibility, may be narrowing over time as one appreciates the width of equitable remedies and the liberal view of standing that is being advanced, but the original reason for the adoption of the Act - one looks at the Kerr Committee Report, it was to provide a simplified means of review to avoid all the complications and difficulties and uncertainties that beset the prerogative risk - - -

GUMMOW J: But in doing that they set up a boundary, which is unstable. I just wonder if they have an awareness of the instability of the boundary they were setting up.

MR KEANE: Well - - -

GUMMOW J: You may be perfectly right, but I am just trying to work out what lay behind all this chaos, really - - -

MR KEANE: Your Honour says it is unstable - - -

GUMMOW J: All right, but there are about 12 Federal Full Court cases trying to explain it and they have shifted ground.

MR KEANE: They have, but they are on the true ground now.

GUMMOW J: It just seems to me a piece of law reform in need of some reform.

MR KEANE: Your Honour, it is language that needs to be interpreted. It is language that is striking a compromise or striking a balance, I should say - - -

GUMMOW J: Is there any consciousness of what they were doing in this particular respect, namely, that there would be this question of some common law, general law remedial situations that would have been left out of the Act? I understand that they were broadening it, but they were narrowing it in some respects, too. I do not think there is.

MR KEANE: Of course, federally one had section 75 and then one had section 39B.

GUMMOW J: Yes.

MR KEANE: At the State level, the EARC Report plainly contemplated that the common law remedies would be retained, but this simplified provision was inserted.

GUMMOW J: One of the great advantages of this was the requirement to give reasons.

MR KEANE: Yes, but so far as what was in contemplation is concerned, as we say to refer your Honours to the distinct disinclination of EARC to produce the state of affairs where public authorities were to be subject to review where the powers they were exercising were powers to enter contracts, to manage and control their property, that seems distinctly not to have been brought within the net. In our submission, it is a decision that was deliberately made.

Your Honours, in relation to a Higher Education Act, section 8 of the Higher Education Act which one will find in volume 1 of our bundle under tab 4 - section 8(1) provides:

A non-university provider, or a person who purports to be a non-university provider, must not confer, or hold out that the
provider or person is competent to confer, a higher education award unless the provider or person is authorised to confer the award.

Now, in our respectful submission, that provision simply does not purport to prescribe the terms on which the universities carry out their functions, certainly not this University. What it does is ensure that those institutions that are not universities may not pretend to be. We have given your Honours in our written submissions reference to the explanatory memorandum which makes the intent of the Act and the mischief at which it was aimed quite clear in that regard. Your Honour, unless there are some further questions for us, those are our submissions.

GLEESON CJ: Thank you, Mr Keane. Yes, Mr Morris.

MR MORRIS: Thank you, your Honour. Your Honours, in our submission, a correct approach to this appeal requires in the first instance a degree of reality to be reintroduced to this argument. Our learned friend has sought to characterise the power exercised in this case as a bit like the power of a landowner to exclude a trespasser, or the power of a person in a business or employment or some other form of relationship to terminate that relationship. That is not what this case is about.

This University, in common with a small number of other institutions in this State, has the statutory power to offer courses leading to the provision of a higher degree; not something that I can do, or anyone else in this room can do, only a limited number of bodies known as universities are capable of doing that. This University has decided that in the case of the respondent to this appeal it will exercise its power to exclude her from the course leading to that degree.

It has not said, as Mr Keane’s submissions might lead one to think, that she is excluded from the campus so that she will become a trespasser if she sets foot on the campus. It has not decided that it will terminate the relationship in the way that one might terminate a relationship by saying, “I won’t invite you to my birthday party”. It has not made a decision which could be made - - -

KIRBY J: Let us not perhaps invite her to a New Year’s party with a big academic ceremony.

MR MORRIS: Indeed. No doubt, I cannot say that this is the case in respect of Griffith University, but there are universities that provide non-degree courses, that provide adult education courses for the benefit of the community generally, and a decision to exclude a member of the public from such a course as that would not be a decision under an enactment because anyone can offer that sort of course. Anyone can set themselves up in a local building, in a public hall or something like that, and offer tuition in a particular area. What this University does, and only it and institutions like it can do, is to enrol a person in a course which is promoted and advertised and held out and conducted as a course leading to the conferral of a degree if the student fulfils the necessary academic requirements.

KIRBY J: That sounds like the core functions theory which has not found favour in recent years. That does not stop us embracing it if we think it is right. That was Justice Ellicott’s view, was it not?

MR MORRIS: Yes.

KIRBY J: He was one of the founders of this modern administrative law.

MR MORRIS: I do confess that I draw some comfort from your Honour Justice Gummow’s comment about the boundaries being unstable. It really is our primary submission that the time has arrived for this Court to stabilise the boundaries as best they can and do so by embracing two fairly simple propositions, in our submission. One is that a decision is not a decision made under an enactment unless the decision draws its legal efficacy from a statutory provision.

GUMMOW J: What do you mean by “legal efficacy”?

MR MORRIS: I mean legal efficacy in the sense that the decision has force or validity or effect under the statute rather than under the law of contract, or under the law of tort, or under the law of equity or under the law of another jurisdiction. For the decision to have force as a decision, after all the legislation only concerns decisions by which a person is aggrieved, decisions which somehow affect a person whether in their proprietary rights or their contractual rights or their statutory rights or their reputation or somehow, so the effect of the decision to cause a person to be aggrieved must derive from statute. That is the first test that we propose.

The second overlying that is that the legal efficacy which the decision draws from statute is not a legal efficacy that can be drawn by anyone in the public. It has to be a special, peculiar governmental function. By way of example, the tax case that has been mentioned in argument, anyone in the community who is a creditor can decide to vote one way or another at a meeting of creditors. That is, in a sense, a statutory power because it comes from corporations legislation, but the Commissioner of Taxation is in no different position than any other creditor in exercising that power, whereas the power under consideration here, the power to enrol or disenrol a person from a course leading to a higher educational degree is a peculiar power limited to that small group of institutions which the legislature has chosen to confer that power on.

KIRBY J: Is it the Higher Education Act that gives you that argument, or would that exist without that Act?

MR MORRIS: It is the Higher Education Act that gives us that argument, in the sense that the higher education prohibits anyone other than Griffith University and similar institutions from enrolling a person in a course of this nature or, on the other side of the coin, disenrolling a person from such a course.

GUMMOW J: But how do you deal with the undergraduate examination system situation?

MR MORRIS: Your Honours, the undergraduate examination situation is not a situation of including or excluding a person from a degree course. It may be that if the student fails enough exams he or she will be excluded at some point and the decision to exclude would, in our submission, be reviewable, but the decision to award 47 per cent rather than 52 per cent in a particular exam is not on any view a decision under an enactment.

KIRBY J: But what about the system of exclusion after two failures, or the decision to take a certain number of overseas students? Are they decisions under an enactment? Are we going to see a higher court or courts becoming courts of appeal from university councils? That would be a somewhat worrying result.

MR MORRIS: May I answer your Honour’s question in three ways. Firstly, the decision to adopt a policy that one is excluded after two failures, three failures or whatever the number is, is undoubtedly, in our submission, a decision made under an enactment because the capacity to make that decision arises only because Griffith University is empowered by legislation to offer higher degree courses. It cannot be anything else.

A decision such as the other one your Honour mentioned, a decision to allow a certain number of overseas students, may fall into a different category. I have not considered that, but at first blush it would seem to attract the same characterisation.

KIRBY J: That is rendering a whole lot of – take for example, an ordinary corporation, a private corporation, it is established pursuant to the Corporations Act. Now, how far does this principle reach? Do we then say, well every decision of the board of the corporation in Australia is now susceptible to the Judicial Review Act, or some of its decisions are decisions made under enactment?

MR KEANE: That is why there has to be the second stage in the test, the second stage which limits it to what could loosely be described as governmental or public decisions rather than decisions which anyone in the community can make in the management or administration of their own business or affairs.

KIRBY J: But where do we get that out of the text? Is it an inference from the context?

MR MORRIS: It may be that, or it may be from the very word “decision” as implying a decision of a public character. I cannot put it higher than implication, but the source of the implication is, in my submission, the use of the word “decision”.

CALLINAN J: The decision to award a doctorate is a decision under an enactment, is it not, because of the definition of “higher education award” in the Higher Education Act?

MR MORRIS: Undoubtedly, your Honour.

CALLINAN J: Why is not a decision then to exclude a person from obtaining a higher education award – which this is a decision to do, is it not – why is that not also a decision under an enactment?

MR MORRIS: With respect, we embrace that entirely. That is our core submission.

CALLINAN J: The control on universities seems to be a fairly tight one under the Higher Education Act, does it not?

MR MORRIS: I am not sure that I understand your Honour’s question. Certainly, there is - - -

CALLINAN J: Well, so far as their establishment is concerned and so far as their monopoly to grant higher education awards is concerned. Because that is what it is, is it not? It is a statutory monopoly.

MR MORRIS: That is certainly so, of course, in this State. I cannot comment on the position in other States, but the monopoly - - -

CALLINAN J: We are only talking about this State.

MR MORRIS: Yes. The monopoly has been extended to, I think, two private institutions, Bond University and the Australian Catholic University, but nonetheless it is a statutory monopoly confined to a small number of bodies, some of them government-owned and some of them privately owned.

GUMMOW J: That is what I was going to ask you about. How does Bond fit in with 8(1)?

MR MORRIS: There is special legislation, the Bond University Act. It is not in the materials.

GUMMOW J: What year is it?

MR MORRIS: I will have Mr Murphy look at that. There is also a decision of Justice Dowsett, when his Honour was a Supreme Court judge, dealing with the application of the Judicial Review Act to Bond University. For reasons that are not presently relevant, his Honour decided it could not be - - -

GUMMOW J: It would be interesting to know about it, though.

MR MORRIS: I will ask Mr Murphy to dig that out.

KIRBY J: Yes or no? It did or did not apply?

MR MORRIS: It did not apply to Bond University.

KIRBY J: Even though it is a university established by an enactment?

MR MORRIS: No, that was the point. Its enactment merely exempted it from the operation of the Higher Education Act, and therefore its relations with its students were essentially contractual, which, I suppose, gets back to the question with which your Honour began the proceedings.

May I move to address one of the points that raised in argument when your Honour Justice Kirby asked our learned friends whether they advance a special case in relation to universities, rather than a general case, in relation to the meaning of the words “decision under an enactment”. We apprehend that our learned friends did not, in oral argument, put their case on any basis that universities fall into a special class and therefore the general words of the legislation must be construed more narrowly in relation to universities. But we do make the point that if one goes to the Judicial Review Act, which is behind tab 1 in the first volume of authorities - - -

GUMMOW J: Well, bits and pieces of it are.

MR MORRIS: Bits and pieces of it are.

KIRBY J: It is not a very long Act. Would it not be better for us to have the full Act, because I would like to see the provisions excluding decisions under particular enactments of a particular kind. That is not here.

MR MORRIS: It would be, and I make no criticism of anyone because this bundle was prepared by agreement between the solicitors for both parties, but I accept that it would have been better to provide the entire Act and we will make sure that that is provided.

KIRBY J: I think we should have the whole Judicial Review Act.

MR MORRIS: The point to which I was going to draw your Honours’ attention is section 16.

KIRBY J: I am told we have a copy of the Judicial Review Act in its entirety.

MR MORRIS: Thank you, your Honour. Section 16 is a rather curiously worded provision, stipulating that:

(1) If –

(a) a provision of the [federal Act] expresses an idea in particular words; and
(b) a provision of this [State] 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.

That seems to be the State parliamentary draftsman’s way of saying that, despite the language of the Queensland Act, it is meant to have the same effect as the federal Act, subject to any obvious departures.

We do have one obvious departure here and that is in section 4, the definition of “decision to which this Act applies”. Paragraph (b) of the definition, so far as we have been able to ascertain, is unique to Queensland. Mr Murphy has searched through the corresponding legislation in other States and Territories and none of them seems to have embraced this idea of extending the operation of the Act to decisions which are not made under an enactment, but which are, in effect, funded out of the public purse. What we suggest the Court derives from all of this is that the Queensland legislation must be construed as being at least as wide as the federal legislation. It cannot be narrower. Section 4(b) takes it somewhat wider.

KIRBY J: Do you make a separate argument under (b) that, whatever you might say about (a), the University is a recipient of appropriation by Parliament and that this is a decision of administrative character made by such a body?

MR MORRIS: Your Honours, if we fail in this appeal, we will be contending that the respondent is entitled to relief under (b) in any event. The difficulty is we have come to this Court in a rather artificial way at an interlocutory stage of proceedings, in which Griffith University has applied to have the proceedings summarily dismissed on the basis that the applicant does not come within section 4(a). Griffith University failed in that at first instance, failed in that in the Court of Appeal, and sought leave to appeal to this Court to review that decision, but 4(b) has never been argued.

KIRBY J: Is Griffith University a State authority under the Act?

MR MORRIS: Within the meaning of the Act, it undoubtedly is, yes.

KIRBY J: So what you are saying to the Court is, this is not a notice of contention point seeking to uphold the Court of Appeal on a different basis; it is a matter which will require evidence and you will keep it in reserve in case you have to go to trial. But if you lose the appeal, then you do not get a trial. Do you not need to reserve that in a notice of contention?

MR MORRIS: Your Honours, we do not believe that we do, in this sense. The present appellant, Griffith University, sought to have the proceedings dismissed on a particular and narrow basis. At no stage has Griffith University sought to have the proceedings dismissed on the basis that the respondent does not fall within paragraph (b). In other words, if Griffith University wins the appeal, the worst possible outcome, in our submission, is that the matter has to go back to the Supreme Court at first instance for such amendments as are necessary.

GUMMOW J: “Program involving funds” is the one that causes you trouble, I suppose.

MR MORRIS: We do not think so, with respect, your Honour, because the way in which paragraph (b) is expressed, it would seem that if one cent out of every thousand dollars comes out of the State purse, then paragraph (b) applies. That seems to be the way that the paragraph operates.

Your Honour Justice Gummow asked our learned friend, Mr Keane, whether there is any explanation for why this unstable boundary is, as it were, narrower than the common law remedies. We suggest that the explanation is this. The State legislation, like the federal legislation, was intended to cover so far as possible the full range of judicial review, so far as it was within the competence of the draftsman to put it. But saving provisions were inserted to make it clear that if a situation arose in which a party would, at common law, have been entitled to prerogative relief, the party is not deprived of that relief.

One can think of examples, at least in the State context, where that would apply, where voluntary associations such as racing authorities have historically been amenable to review by way of prerogative relief, but do not come within this legislation. So we would suggest that the legislation is intended to be construed - - -

GUMMOW J: Would Ainsworth’s Case have come within this statute?

CALLINAN J: That was plainly made under the Criminal Justice Act, was it not, the decision there?

MR MORRIS: Ainsworth’s Case – I know that your Honour Justice Callinan was in the case.

CALLINAN J: So was Mr Keane. He did it in this Court, I think.

MR MORRIS: From memory, I think that Mr Ainsworth applied for a prerogative writ.

GUMMOW J: Yes, but he ended up with just no more than a declaration.

MR MORRIS: Yes, he got a declaration, but I think the proceedings were instituted by way of proceedings for prohibition or certiorari.

CALLINAN J: I think they were.

GUMMOW J: Yes, but this Court held that it was not available.

MR MORRIS: Yes.

GUMMOW J: It was the nature of the question.

MR MORRIS: Precisely, with respect, your Honour. That really means that when your Honour asked Mr Keane how this Act stands alongside common law remedies, it is not just the common law remedies of prerogative-type relief that are preserved by section 41, it is also Ainsworth-type declarations and, indeed, injunctions and, indeed, collateral attacks. So that if a decision, for example, purports to authorise entry on land, one can attack that decision in the traditional way by suing for trespass. It does not cover the field. It is, as our learned friends rather eloquently put it in their outline, remedial legislation which is intended to provide a simpler, more efficient, more effective remedy for judicial review. This case is one, in our submission, which clearly justifies that approach.

Your Honours, I am conscious of the fact that in our written submissions we have gone into some details as to our submissions in respect of the case law. I am, of course, more than happy to take your Honours through that case law, but we - - -

KIRBY J: What is the best case that supports your twofold approach? Is there any decision of the Full Court of the Federal Court at any stage in this saga that has embraced that type of approach?

MR MORRIS: Firstly, the Lewins Case, which, interestingly, was treated at first instance here as expressing a test which was common ground.

KIRBY J: Which tab is that?

MR MORRIS: I am sorry, I am referring to the decision at first instance here, section 12 in the record. If your Honours go to page 143 of the record, this is, of course, in the judgment of Justice of Appeal Jerrard. Paragraph [22] deals with the core functions approach. Paragraph [23] deals with the route of authority approach. When we get through to paragraph [25], his Honour comes to the Lewins Case. That includes also at paragraph [25] the reference to the case of Orr v Bond University, which I alluded to a little earlier, the decision of Justice Dowsett.

Then, perhaps most importantly, there is the decision of this Court in the Neat Domestic Trading Pty Ltd Case, and reference is made in paragraph [27] to the joint judgment, which says that the company:

“had power to create such a document. No doubt the production of such a document was given statutory significance by s 57(3B) but that subsection did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision, and to express it in writing, derived from AWBI’s incorporation and the applicable companies legislation. Unlike a statutory corporation, or an office holder such as a minister, it was neither necessary nor appropriate to read s 57(3B) as impliedly conferring those powers on AWBI.”

It is apparent that in this case that was treated – as it had to be, of course, being a decision of this Court – as a correct statement of the law. Really, the only difference between the tests as we have proposed them and the test as our learned friend has proposed it is whether the use of the language which we used in the Court of Appeal, and which was adopted by Justice Dutney, of drawing a distinction between members of the community generally and the powers they can exercise and a particular decision-maker is, as our learned friend put it, based on the Telstra decision, whether what is being done is a general administrative power or whether it is a statutory power to affect the rights of an individual.

We, with respect, suggest that that is a difference which is largely illusory. If there is a general administrative power which affects rights, then that falls within our category of a power that anyone in the community can exercise. If there is a power that is not a general administrative power but affects rights, then that is what we would classify as a peculiar or special power conferred on a governmental body by force of statute.

KIRBY J: Where do you get the governmental element out of the Act? What is the textual foundation for that?

MR MORRIS: As I said earlier, one can only get that by implication, particularly from - - -

GUMMOW J: Of an administrative nature.

MR MORRIS: Of an administrative nature and also the word “decision”, if I can add that. It can only be a matter of implication.

KIRBY J: Is it implication from the history of administrative review, which this Act was intending to simplify? Is that how it comes in?

MR MORRIS: It is. In the course of research we have looked at authorities in other parts of the world, in Canada, the United States, New Zealand and so on, and we would observe that the corresponding legislation in New Zealand seems to have been construed as extending even to administrative decisions made by boards of directors of public companies, but the language is different.

KIRBY J: I did raise this in the special leave hearing as to whether we should not have any overseas authorities. I looked through this compilation and, thorough though it is, it is entirely Australian material.

MR MORRIS: Yes. Perhaps I should explain, at least for our part, why we have done that. This case really does turn upon the precise words of the section referring to decisions “under an enactment”.

KIRBY J: Yes, but the great movement to simplify judicial review is not confined to Australia. It has happened in New Zealand, it has happened in England. If, in fact, there is any enlightenment to be had from their statutes, that would be something perhaps we should look at.

MR MORRIS: Well, the conclusion we reached was that there was no enlightenment to be had from those statutes, because the form in which the more efficient judicial review legislation has taken in those various jurisdictions is relevantly so different from the form of this legislation that we did not, with respect, feel that it would be of assistance to your Honours. We have certainly done the exercise of comparing - - -

KIRBY J: At least theoretically, you could say everything Griffith University decides is a decision made under an enactment because it has to trace its root back to the statute, but the courts have said no, you have to concentrate on “made under an enactment” and “of an administrative character”, so you have to cut it back. Now, why are we cutting it back in this way? Answer, because we do not want the courts fussing about and interfering in all sorts of matters that is really not going to be very helpful or is not the object of this Act.

MR MORRIS: Might I suggest a slightly different answer to that rhetorical question. Why we cut it back is that if the power being exercised is a general law power, then that is subject to its own general law limitations. If it is a power to enter into contracts or to terminate contracts, then the general law carries with it the legal consequences and the restraints upon the exercise of that power.

KIRBY J: But the borderland between the general law and the law that is derived from the statute is a minefield – it is full of traps. It is very hard to chart it.

MR MORRIS: We accept that. That is why, with respect, we would contend that the Full Federal Court in Lewins and the Court of Appeal in this case were correct in seeing the relevant nexus as being that of whether or not the statute gives legal force and effect to the decision. Not simply that it facilitates the decision or permits the decision to be made, but gives it whatever validity it has.

KIRBY J: Mr Keane says you are living in the past, that more water has passed under the bridge and the Federal Court has now in the Newspapers decision and other decisions reached a different plateau.

MR MORRIS: The problem with that is that those different decisions lead to the situation which, as your Honour Justice Gummow has said, produces a boundary that is unstable. The Federal Court speaks, for example, about proximity as a test, whether the decision-making is proximately related to the relevant statutory provision or is too remote - - -

KIRBY J: I never thought I would see proximity have a second run.

MR MORRIS: And, with respect, that is a very unhelpful test. It is really equivalent to saying a decision is judicially reviewable if a judge in a particular case thinks it should be judicially reviewable. It is not an abstract test which is capable of being applied across the whole range of cases, whereas the test whether or not this decision derives its legal efficacy from the legislation can be applied to any authority, to any body in whom statutory powers are vested, and can be applied without exception. With respect, it makes sense. It is a sensible way to limit this legislation. We all accept that there has to be some limit and that is, with respect, the logical limit. Your Honours, I am not sure that there is anything usefully I can - - -

KIRBY J: That is on your test. On the first test – every decision of a board of directors of a company would pass the first test, but it would not pass the second test because it would not be of a governmental function.

MR MORRIS: I am sorry, no, your Honour. No doubt I have misled your Honour. It would not pass the first test if what the board of directors is doing is exercising a non-statutory power. If the board of directors decide to enter into a contract, then that decision takes its legal validity from the law of contract, not from the statute. If the board of directors decides to exclude a - - -

KIRBY J: Just pause there. It is the contract of the corporation, because the corporation has been formed under the Corporations Act and the decision has been made by the board in line with the requirements of the Corporations Act. So why is it not a decision made under - - -

CALLINAN J: It is theoretically possible that a corporation might not have the power under its articles. It needs a memorandum of articles of association to confer power on it to do that.

MR MORRIS: Yes.

CALLINAN J: Which is a matter of contract, really.

KIRBY J: They have no effect as a corporation unless it is formed under the Corporations Act.

MR MORRIS: Yes. I suppose part of the answer to your Honour’s question is that it has long been settled that the relevant decision for the purposes of the federal legislation is the final or ultimate or operative decision. The decision by the directors to affix the company’s common seal to a piece of paper is just a step in giving effect to a decision to enter into a contract, and that contract derives its legal efficacy from the law of contract rather than from the Corporations Act.

GLEESON CJ: Presumably, a decision by the board of directors of a corporation as to the salary of the managing director is not judicially reviewable. It is a suit of a shareholder.

MR MORRIS: Yes, that is certainly so. One might first ask the question whether they are a party aggrieved, but assuming one gets over that hurdle - - -

GLEESON CJ: A shareholder could be a party aggrieved.

MR MORRIS: We would say that that is why you need the second test. It is not enough to say it is a decision that derives its legal efficacy from the statute. It also has to be a decision of a special or peculiar nature relevant to the exercise of governmental functions by the body concerned.

KIRBY J: You seem to be wobbling now, Mr Morris. You are seeming to concede that it might actually be under the statute. The first of your tests derives legal efficacy from the statute.

MR MORRIS: Yes. It may be, to use the Chief Justice’s example, that a decision to pay a salary to a director or to an executive has no source of legal efficacy other than the legislation under which the body is created. If that were the situation, it still would not, in our submission, be reviewable because it does not pass the second test.

KIRBY J: But the problem with the second test is you introduce this notion of governmental function. The only leg-in for that is the use of “of an administrative character”, but corporations can make decisions of an administrative character. Unless there is something in the Act, I suppose you would say, well, you have to read the statute in the context of the history of judicial review of administrative decisions.

MR MORRIS: I would say that. I suppose the opposite way of expressing the same thing is the way in which I put it in the Court of Appeal and it was accepted by at least one member of the Court of Appeal, Justice Dutney, and that is the question whether or not it is something that anyone in the community could do, which is simply facilitated by the statute, or is something which a person can only do with specific statutory authority.

KIRBY J: This is a very lively area of debate in administrative law in England. For example, recent decisions of the courts in England have sent judicial review to the stock exchange, which is not a statutory body.

MR MORRIS: Yes, and that is why I put it in terms of a governmental function, even though it may be exercised by a body which is not a public authority in the ordinary sense. One of the phenomena of government administration in this country at the moment is the increasing use of non-government bodies to perform traditional governmental functions like - - -

GUMMOW J: The phrase “of an administrative character” takes it colour from the Constitution and the notion of ministers administering Acts. There is an executive instrument called administrative arrangements and it tells you, when each government is formed, which ministers have the good fortune or bad fortune of administering which Acts. That is the idea.

MR MORRIS: That is so. The point I was - - -

KIRBY J: Does that work in the State sphere, as well as the federal?

MR MORRIS: It undoubtedly does. The point I was making, though, is that even within that regime there must be some scope for extending it to bodies – for example, independent public companies that run prisons – that are exercising a traditional governmental function.

KIRBY J: Now, you are in Neat territory, the Neat Case. Your proposition might or might not succeed.

MR MORRIS: It may or may not, but I mention that as the only difficulty in embracing wholeheartedly what Justice Gummow just put to me, that there may be argument to extend the scope of what is an administrative decision to bodies which are neither the Crown nor emanations of the Crown nor statutory authorities in the traditional sense, but which have unique statutory powers in the State context – bodies like racing clubs, which are given special statutory powers even though they are simply voluntary associations of members.

KIRBY J: Are there any Law Review articles on these? There is a very good article in the last part of the Federal Law Review by Mr Arora concerning the Neat Case, but are there others? We do not now wait until they are dead, before we look at authors. I mean, this must have been the subject of a lot of discussion arising out of an enactment. It is the pivot for the operation of these Acts.

MR MORRIS: Your Honours, the only additional article that we thought might be of some assistance is an article from the Federal Law Review, but it is old as 1998, (1998) 6 FLRev 15 by authors Robyn Creyke and Graeme Hill.

KIRBY J: Professor Creyke.

MR MORRIS: Professor Creyke, yes, indeed, although a senior lecturer at the time when the article was written.

KIRBY J: Her article was very well received and she was promoted.

MR MORRIS: Indeed. Titled “A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial Review”.

GUMMOW J: Bond may be the answer to the exam question situation.

MR MORRIS: Yes, it may be, your Honour.

GUMMOW J: This is something that happens on the path to a degree.

MR MORRIS: Yes, it is not the ultimate decision.

GUMMOW J: Yes.

MR MORRIS: Those are our submissions.

GLEESON CJ: Thank you, Mr Morris. Yes, Mr Keane. How long do you think you will need?

MR KEANE: About 10 minutes.

GLEESON CJ: Yes, go ahead.

MR KEANE: Your Honours, in relation to our learned friends’ two-part test, can we say in relation to the first part, that is to say, the effect of the decision to cause a person to be aggrieved must derive from the statute – it leaves one to address what “derive from” means, and our submission would be that insofar as our learned friends rely upon Lewins as a case in support of that test, Lewins was, of course, a case where the application for review failed because there was no statutory effect given to any decision. There was no decision that had any statutory effect at all.

KIRBY J: If the Court were to embrace this twofold test, I understood your earlier submissions to say that you could live with that because you say it fails it on the first step. Is that correct or not?

MR KEANE: We say a couple of things. The first thing we say is that on that test that has just been articulated – insofar as what “derived from” means is exemplified by Lewins – we win. The second thing we say is, in relation to the qualification it has to be a special or peculiar governmental function and that that is derived from the reference to “administrative character”, we remind the Court that very early in the consideration of these provisions Justice Lockhart, in Hamblin v Duffy [1981] FCA 38; (1981) 34 ALR 333 – we will have copies of this provided to the Court – Justice Lockhart said at page 338, lines 15 to 20:

By use of the expression “decision of an administrative character” doubtless the Judicial Review Act is excluding decisions of a different character such as those answering the description of legislative or judicial, and perhaps ministerial.

He went on to say at 339, lines 3 to 8:

The phrase “decision of an administrative character” suggests to me that the Judicial Review Act looks more to the nature or character of the decision itself than to the person or body making the decision.

So that, in our respectful submission, one does not get this rather vague notion of governmental character from the language of administrative character. Administrative character is talking about administrative, not judicial or legislative.

KIRBY J: I wonder about that. It is a very general expression. I would not feel very happy about cutting it back, especially when you look at the way administrative law in Australia has tended to wither in recent years and grow and flourish in other parts of the common law world. Why should we give it such a narrow construction? It is just a phrase, “of administrative character”. Corporations in the world today are now some of the biggest administrators.

MR KEANE: It is the character of the decision, your Honour, not the decision-maker. It is decision of an administrative character, not decision by an administrative body. That is the only point we are making and it is the point that, with respect - - -

KIRBY J: In a sense, that might be against you because “decision of administrative character” is focusing on the nature of the decision and corporations make decisions, courts make decisions, of administrative character.

MR KEANE: Your Honour, we are simply making the point that the test our learned friends advance, in respect of its second level, which confines it by reference to notions of governmental bodies, does not derive that support from “decision of administrative character”. The other thing we would say in relation to that, in relation to universities, is to refer your Honours to the decision of the Full Court of the Supreme Court of Victoria, in Clark v University of Melbourne (No 2). It is item 24 in volume 2 of our book. In a passages that begins at the bottom of page 72 and concludes at line 36 on page 73, their Honours conclude that:

There appears to be no reason for identifying the University with the Crown, or as a governmental agency of any kind –

We rely upon what is said there and we draw your Honours’ attention as well to the provisions of the statute, which are set out at page 68 at the bottom of the page – sections 15 and 17, which are rather close to the provisions in this Act. So we rely upon Clark’s Case to support the proposition that what the University is doing is not governmental.

The next thing we wish to say is that so far as it was suggested that the Higher Education Act prevents enrolment in some way, with respect, the language of neither section 7 nor section 8 of the Higher Education Act says anything like that. Section 7 says that people cannot call themselves universities; it is not concerned with enrolling people. Section 8 says:

A non-university provider, or a person who purports to be a non-university provider, must not confer, or hold out that the provider or person is competent to confer, a higher education award –

So that those provisions, with respect, are not concerned with enrolments for granting degrees or anything like that.

The next point we would wish to make is in relation to section 4(a). The first point we make about that is that at no stage, at any stage, has the respondent sought to suggest that the decision in question was one of an administrative character made by an officer or employee of a State authority, under a non-statutory scheme, involving funds that are provided out of amounts appropriated by Parliament. There is simply no basis for any concern that the decision is question is a decision under a non-statutory scheme, involving funds that are provided by or obtained from Parliament.

KIRBY J: Is that because you moved to strike the proceedings out?

MR KEANE: I do not understand that to be so.

KIRBY J: Is your point that it would require evidence that would enliven that provision? Is that the point?

MR KEANE: It would certainly require evidence and it is difficult to see how the evidence could ever establish – well, it would require evidence that the decision was one within section 4(b), which is a decision by a State authority – assuming that that is met – “under a non-statutory scheme or program involving funds”. It is directing attention to a “scheme or program involving funds”, and there is just no suggestion that there is such.

KIRBY J: They put on their application, you then move to strike it out. You say their application would have to disclose on its face that it was founding its claim.

MR KEANE: Quite, and what it did, as one sees at paragraph 1 in the appeal book:

Application to review the following decisions made by the respondent under its Policy on Academic Misconduct –

Whatever else it is doing, it is not identifying some statutory scheme, and one rather understands why our side were astute to apply to strike it out, having regard to the confession that the application was made under the policy.

KIRBY J: A bit of water ran under the bridge after that.

MR KEANE: Absolutely, your Honour.

KIRBY J: But it has been fought on the basis that it is made under an enactment.

MR KEANE: Quite, and not under a scheme. Finally, your Honours, we too, as our learned friends did, looked for non-Australian authority. The Kerr Report in 1971 looked at the examples of France, the United Kingdom, New Zealand and the United States. For reasons which are explained in the Kerr Report, the proposal that was ultimately put forward, the three-pronged package – the Ombudsman, merits review under the AAT Act and judicial review under the AD(JR) Act – was an Australian response to the problem, and the examples of other nations were not adopted.

Particularly, there was no adoption of any other nation’s approach to judicial review by reference to decisions made under an enactment. That is peculiarly Australian. In that regard, South Africa has recently adopted our legislation, the AD(JR), as a model, although it has not used the phrase “decision made under an enactment”. So, in one sense, your Honour, the reason why there is not much assistance in the other authorities is that, I suppose, as Pericles said in his funeral oration over the Athenian dead, we are not imitators of the laws of others, we are a model for them.

KIRBY J: Yes, I hope they had a lot of assistance from the decisions of the courts on this problem.

MR KEANE: Your Honours, one further thing, in relation to the questions raised by Justice Callinan and Justice Gummow in relation to the situation of schools, might we have liberty within seven days to provide the Court with a note?

GLEESON CJ: Yes.

MR KEANE: Obviously, we will give our learned friends the note as well.

GLEESON CJ: And they will have a further seven days if they want to put anything in.

KIRBY J: If you can find any articles, living or dead authors - - -

MR KEANE: Your Honour, there are a lot of articles, but they are really of very little assistance.

KIRBY J: Well, I am going to look at them, Mr Keane, so if you want to help you can put them in, if you do not, well, I will just keep looking myself, on my own.

MR KEANE: We will give your Honour the references.

KIRBY J: I wish the Bar, at this level, at the High Court of Australia, would really appreciate that we look at these things, we look at Law Review and scholarly articles. It is our job, at least as I conceive it.

GLEESON CJ: Thank you, Mr Keane.

MR MORRIS: Just on that last point, your Honour, there is one other article that we found that would fit into that category and we will provide that if that assists.

KIRBY J: You can put that in the note.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.28 PM THE MATTER WAS ADJOURNED