Sydney Law Review
Griffith University v Tang: Review of University Decisions Made ‘Under an Enactment’
In Griffith University v Tang, the court was presented with the quandary of determining the correct construction of the phrase ‘under an enactment’. A long history of litigation over the interpretation of the phrase has been played out in the Federal Court since the introduction of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). However, before this case, the phrase had only once been considered by the High Court, a decade and a half earlier in Australian Broadcasting Tribunal v Bond. While the application brought by Ms Tang was made under the Judicial Review Act 1991 (Qld) (Review Act), the linkage between s4 of that Act and s5 of the ADJR Act placed this case in a position to decide the previous Federal Court battles once and for all.
Vivian Tang was a PhD student at Griffith University (the University) in 2002. Following accusations of academic misconduct being investigated by the University’s Research and Postgraduate Committee, Ms Tang was excluded from her PhD candidature. An appeal by Ms Tang was dismissed. Ms Tang commenced proceedings for statutory review of the decision made by the University in the Supreme Court of Queensland. At all three levels, the University claimed that the decision to exclude Ms Tang was not amenable to review as the decision had been made under policy and not ‘under an enactment’. Before both the primary judge and the Queensland Court of Appeal, it was found that the decision to exclude Ms Tang was made ‘under an enactment’, namely the formative Act of the University, the Griffith University Act 1998 (Qld) (GU Act).
A majority of the High Court upheld the appeal of the University, disagreeing with the findings of the Court of Appeal on two grounds. Firstly, the majority held that the decision to exclude Ms Tang was properly characterised as a termination of a voluntary agreement between the two parties and not as an exercise of power under the GU Act. Secondly, the judges delivering the majority judgment (Gummow, Callinan and Heydon JJ), added an additional requirement to the test described by Lehane J in Australian National University v Lewins, requiring that a decision made ‘under an enactment’ affect legal rights or obligations by virtue of the enactment. While the Court of Appeal and Kirby J agreed with the statement in Lewins, both rejected this test on the grounds that it was incompatible with the requirements of a ‘decision to which this act applies’ under s4 of the Review Act.
In the aftermath of this decision, we are left to wonder what avenues of review, judicial or otherwise, are available to people such as Ms Tang who are subject to university decisions made ‘under an enactment’. While statutory review as framed by Ms Tang may no longer be an option, this case note will discuss alternative options for review of university decisions made ‘under an enactment’.
Griffith University is a statutory body formed under the GU Act. The functions of the University, listed in s5, include:
(a) to provide education at university standard;
(b) to encourage study and research;
(c) to provide courses of study or instruction…;
(e) to confer higher education awards;
(f) to disseminate knowledge and provide scholarship.
The University has all of the powers of an individual and is governed by a council that has broad powers to manage the University’s affairs. Under s61, the University’s council can make statutes concerning matters listed in subsection 2, including (a) admission and enrolment, (b) the entitlement to degrees and other awards, and (c) the disciplining of students and other persons undertaking courses at the University. The Council can delegate its powers to committees and subcommittees, but not its ability to make statutes and rules for the University. Two such committees created by the Council are the Academic Board and the Research and Postgraduate Studies Committee. A constitution approved by the Council sets out the functions of the Academic Committee, namely to report to the Council assuring the quality of academic activities across the University. In 2001, the Academic Committee approved two revised policies: a Policy on Academic
Misconduct and a Policy on Student Grievances and Appeals. There was no suggestion during the appeal that the Council did not have the power to revise these policies.
Vivian Tang was a PhD candidate in biology at the University. On 12 March 2002, a meeting of the Research and Postgraduate Studies Committee considered documents alleging that Ms Tang had engaged in academic misconduct. On 19 July 2002, a letter was written to Ms Tang by the Assessment Board, a subcommittee of the Research and Postgraduate Studies Committee. This letter advised Ms Tang of the Board’s findings at their meeting of 10 July 2002, specifically, that she had presented falsified or improperly obtained data as if it were the result of university work and that such presentation was academic misconduct as described in clause 1.1 of the Policy on Academic Misconduct. Ms Tang was invited by the Board to make further submissions on the issue.
A further letter dated 9 August 2002 was sent to Ms Tang by the Assessment Board, indicating that they had received her submissions and that the Assessment Board had resolved to exclude Ms Tang from her candidature on the basis that she had conducted research without regard to ethical and scientific standards. In accordance with the Policy on Student Grievances and Appeals, Ms Tang appealed the decision on procedural grounds to the Appeals Committee. In a letter dated 21 October 2002, the Chair of that committee advised Ms Tang that her appeal had been dismissed.
On 16 December 2002, Ms Tang lodged an application for statutory review with the Queensland Supreme Court under s20(1) of the Review Act which states:
[a] person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.
Ms Tang alleged that the University, in making their decisions notified on 19 July 2002 and 21 October 2002, had breached the rules of natural justice, failed to observe the procedure set out in the clauses of the Academic Policy, made errors of law, made a decision in the absence of evidence and that the decisions were an ‘improper exercise of the power conferred by the enactment’.
At first instance and on appeal, it was held that the decision to exclude Ms Tang from her PhD candidature on the basis of academic misconduct was a decision made under an enactment, namely the GU Act. In response to Ms Tang’s application, the University applied for an order under s48(1) of the Review Act to dismiss or stay Ms Tang’s application on the grounds that the decision was neither of an administrative character, nor made under an enactment.
In rejecting the University’s application, the trial judge found that the structure of the GU Act enabled the University to delegate responsibility for core functions to committees. Mackenzie J believed that the core function enumerated at s5(f) of the GU Act was most relevant, ‘… since it is an incident of the University’s function of conferring higher educational awards to decide whether Ms Tang had displayed conduct disentitling her to work towards obtaining such an award’. Accordingly:
The tightly structured nature of the devolution of authority by delegation in relation to the maintenance of proper standards of scholarship and, consequently, the intrinsic worth of research higher degrees leads to the conclusion that, even though the Council’s powers are expressed in a general (but plenary) way, the decision to exclude [the respondent] from the PhD program is an administrative decision made under an enactment for the purpose of the [Review Act].
The University appealed this decision on the sole ground that the decision was not made ‘under an enactment’. Before the Court of Appeal, Jerrard JA considered that in the absence of any relevant statute enacted by the University, a court has to determine whether a decision:
… made in the exercise of the widely and generally expressed powers granted by s 6 of the Griffith University Act for doing what is necessary in respect of the functions granted by s 5, answers the oft-cited descriptions given by Mason CJ in Australian Broadcasting Tribunal v Bond, (of a substantive decision having the character of finality which the statute requires or authorises, or for which it makes provision) and the further helpful decision given by Thomas J in Blizzard v O’Sullivan, namely of a unilateral exercise of power deriving from a statutory source and which does affect the applicant.
Dutney J asserted that for a decision to be made ‘under an enactment’, it must firstly be authorised or permitted by the statute; and secondly, derive its legal efficacy from the statute. In order to determine the second limb, Dutney J endorsed the question posed by counsel for Ms Tang, namely whether the decision is:
… something that anyone in the community could do, which is simply facilitated by the statute, or is it something which a person can only do with specific statutory authority?
Philippides J agreed with the reasoning of the other two justices of the Court of Appeal.
Special Leave was granted to the University to appeal the decision of the Queensland Court of Appeal on one ground — ‘whether the decision to exclude the respondent from her enrolment was a decision to which the Review Act applied’. The Review Act applies to ‘a decision of an administrative character made … under an enactment’ as described in s4(a). The majority did not consider the implications of s4(b) as it was not at issue. In line with s16(1) of the Review Act, the provisions of s4 were given the same meaning as s5 of the ADJR Act such that considerations bearing on the latter were taken to also bear on the former.
In bringing an application under Part 3 of the Review Act, the respondent sought a statutory order for review. Accordingly, the court only addressed this application, giving no consideration to the respondent’s possible entitlement to a remedy under the common law jurisdiction of the Supreme Court of Queensland (see Part 5 of the Review Act).
The majority of the court granted the appeal. The leading majority judgment was given by Gummow, Callinan and Heydon JJ, with Gleeson CJ also giving a judgment agreeing that the appeal should be upheld. Kirby J delivered the sole dissenting judgment dismissing the appeal.
Gummow, Callinan and Heydon JJ believe that there are three distinct elements involved in construing s20(1) of the Review Act (and therefore also s5(1) of the ADJR Act):
1 a decision to which the Review Act applies because the decision was made ‘under an enactment’;
2 an applicant who is ‘aggrieved’ by that decision;
3. reliance upon one or more of the listed grounds for review.
For the majority, the first element is the ‘linchpin’ which governs the ADJR Act at all stages. Unless this first element is proved, the second element cannot be considered. If the Review Act does not apply to a decision, the Act provides no relief for an applicant who claims to have been aggrieved by that decision. The majority explained that the historical focus on the phrase ‘a decision of an
administrative character made …. under an enactment’ had been mainly on three different elements of the expression:
i. ‘a decision’
ii. ‘of an administrative character’
iii. ‘made … under an enactment’
The majority noted that the trend in cases in the Federal Court had been to look at the elements separately, but that there were dangers in looking at the expression other than as a whole.
The majority judgment constructed a test involving two criteria. Under the first criterion: ‘[a] decision under an enactment is one required by, or authorised by an enactment. The decision may be expressly or impliedly required or authorised’. Additionally, the decision must generally be final or operative and determinative. However, a decision being required or authorised by an enactment is not sufficient by itself. The decision must be of an ‘administrative’ character in the sense that it is neither ‘legislative’ nor ‘judicial’ in character. From this, the majority judgment went on to consider what it sees as the key question in this case: ‘What is it, in the course of administration, that flows from or arises out of the (administrative) decision so as to give significance which has merited the legislative conferral of a right of judicial review upon the aggrieved?’
The answer to this question is the second criterion of the majority judgment test, that ‘the decision must itself confer, alter or otherwise affect legal rights or obligations and in this sense the decision must derive from the enactment’. Therefore, where the recipient of a statutory grant of power to make contracts enters into an agreement, the power to affect another party’s rights and obligations through contract ‘… will be derived not from the enactment but from the agreement as has been made between the parties’.
In the case of the respondent, the majority judgment found that there were no legal rights or obligations under private law that had been affected by the decision in question. At best, a consensual relationship had been brought to an end. While the decisions in question were authorised, but not required, by the GU Act, ‘[t]he decision did not affect legal rights and obligations’ and had ‘… no impact upon matters to which the University Act gave legal force and effect’.
Gleeson CJ preferred the test as stated by Davies AJA in Scharer v State of New South Wales:
the crux of the issue is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.
Gleeson CJ noted that the source of the University’s power to confer higher education awards as derived from the GU Act is important in construing the respondent’s status as an aggrieved person under the Review Act. However, Gleeson CJ asserted that this is not a consideration when determining if a decision had been made ‘under an enactment’.
What is at issue for Gleeson CJ is whether the GU Act had any legal force or effect on the legal rights or obligations of Ms Tang or the University. For Gleeson CJ, the decision made by the University to withdraw the provision of university standard education had the same legal effect as a decision to terminate either a contractual or voluntary arrangement. While the power to formulate the terms and conditions of the arrangement with Ms Tang, to enter that relationship and to later end it were conferred on the University in general terms by the GU Act, the ‘… decision to end the relationship was not given legal force or effect by that act’.
Kirby J gave the sole dissenting judgment. In his opening paragraphs, Kirby J is highly critical of the judgments handed down by his colleagues, asserting that their judgments, like those of the majority in NEAT Domestic Trading Pty Ltd v AWB Ltd, should be described as a ‘wrong turn’ in the law. Kirby J argues that instead of correcting the errors in NEAT, the position of the court in Griffith University v Tang extends those errors further, eroding important reforms made by the ADJR Act.
The question at issue for Kirby J in this case was ‘… whether the “decisions” affecting the “interests” of the respondent were, or were not, “made … under an enactment”.’ As the University had conceded on appeal that the decisions were of an administrative character, Kirby J focused his discussion on the construction of the latter two terms.
In analysing the arguments of the majority judgment and Gleeson CJ, Kirby J deemed the limitation of decisions made under an enactment to those where ‘legal rights and obligations’ had been affected as unwarranted gloss. As Kirby J pointed out, this gloss is incompatible with the notion of an aggrieved person as defined in s7(1) of the Review Act. Under s7(1), an aggrieved person includes someone whose ‘interests’ have been adversely affected, a far broader construction of the term. Kirby J argued that artificial restrictions should not be read into a statutory phrase inconsistent with express provisions of the Act, especially where the legislative intent behind reforms to legislation such as the ADJR Act was to enlarge, and not restrict, judicial remedies.
In considering the proper construction of ‘under an enactment’, Kirby J applied the legal source test approved by the court in NEAT. Kirby J argued that there were only two possible sources for the ‘decision’ made by the University in respect of Ms Tang: (1) the GU Act; or (2) legal powers that the University had derived from outside the GU Act.
As a corporate body with ‘all the powers of an individual’, the University had the capacity to contract. However, as both sides repudiated the existence of a contract, an additional source outside of the Act was required for the decision to be excluded from judicial review. While both the majority judgment and Gleeson CJ argued that the decision was the termination of a relationship at general law between two parties, Kirby J argued:
… that in the absence of contract in this case the only possible source of power for the decision to exclude the respondent from the programme was the University Act. No competing statutory or other source of a relevant power existed.
The University was empowered under the GU Act to ‘provide education at university standard’ and ‘confer higher education awards’ to Ms Tang and others, something which ss6 and 7 of the Higher Education (General Provisions) Act 1993 (Qld) prohibited unrecognised university providers from doing. As the GU Act was the only source empowering the University to provide university standard education and confer university awards, Kirby J held that all decisions the University made dealing with these powers were made under the GU Act. Necessarily, a decision to cease providing university standard education or not to confer a higher education award would also have been made under the GU Act. Kirby J asserted that despite attempts by the majority at abstraction, the basic characteristics of the University’s actions cannot be altered. ‘[T]he termination was, and remains, indistinguishable from the University’s refusal to exercise the relevant statutory powers.’ As Kirby J points out, by creating policy and committees to deal with these issues, the University itself recognised that these actions were within power, the power conferred by the GU Act. On this basis, Kirby J dismissed the appeal brought by the University.
As Kirby J recognised in his decision, the judgment of the court has further eroded the reforms of the ADJR Act, diminishing access to statutory forms of judicial review. Future applicants for judicial review will need more than a decision
adversely affecting their ‘interests’ for review to be granted. Applicants will need to prove that the decision itself affected legal rights and obligations and that this decision was derived from the enactment.
While decisions made within a contract are not made under an enactment, it is of interest to discuss whether Ms Tang would have had more success arguing the existence of a contract in this matter. As neither party claimed the existence of a contract, the issue was only briefly discussed in each of the judgments. In coming to their decision, the majority judgment stated that no relationship could be construed between the parties based on the manner in which the respondent framed her application. Even if Ms Tang could prove that her relationship with the University was based in either an implied or express contract, it is doubtful that this would be of assistance. As Gleeson CJ argued, the exclusion of Ms Tang was in accordance with the terms and conditions that the relationship between the parties was governed by. Even if there had been a contract, her exclusion would have been in accordance with the purported terms.
Given that the respondent was unable to obtain review of the decision excluding her from the University, the decision leaves us pondering what avenues of review, if any, remain open to Ms Tang or other students seeking to challenge their exclusion from coursework. The good news is that other avenues of review with a lesser threshold exist for reviewing the decisions of universities. The bad news is that these avenues do not present the same remedies, if an application is successful, as statutory review.
Two avenues for review remain open to Ms Tang under the Review Act. As this case did not decide if the exclusion of Ms Tang was a decision under s4(b) to which the Review Act applied, a further application for review remains open under this section. However, the judgment of Gleeson CJ tends to indicate that this application would be equally unsuccessful. As a second option, Ms Tang might seek to bring an application under the original jurisdiction of the Supreme Court of Queensland. Under Part 5 of the Review Act, the lesser threshold of ‘interests’ applies such that ‘[a] person is entitled to make an application for review if the person’s interests are, or would be, adversely affected in or by the matter to which the application relates’. However, unlike statutory review, where the court may quash or overturn the original decision, the Supreme Court is limited in the remedies they can award under Part 5 to orders of declaration and injunction.
Under Queensland legislation as in other states, decisions of universities may be reviewed by the state Ombudsman. The Ombudsman is empowered to review ‘administrative actions’ of an agency including decisions and failures to make decisions. If, after investigating the complaint, the Ombudsman is satisfied that appropriate action can be, and should be, taken to rectify, mitigate, or alter the effects of the administrative action; the Ombudsman may give to the principal officer of the agency a report stating the action that the Ombudsman considers should be taken. However, if the agency fails to act upon these recommendations, the Ombudsman’s actions are limited to providing a copy of its report to the Premier and the Speaker of the House. The Ombudsman is not empowered to award the remedies obtainable by judicial review.
Under s61 of the GU Act, the University Council was empowered to make statute in the areas mentioned above. While other universities have made by-laws addressing student discipline, the Griffith University Council has not proceeded down this path. There has been some debate that a failure to enact by-laws where a university has a capacity to do so should be seen as a strong statutory intention for the lesser rules not to be binding. This issue was not discussed in this case, but at any rate, the majority decisions tend to indicate some support for this view. A question that this debate leaves unanswered, is if Ms Tang had been a student at a university where by-laws had been enacted, would the outcome of her appeal have been different?
Unfortunately for Ms Tang, the answer to this question is yes. As Gleeson CJ explained, the university policy on academic misconduct and the procedure for exclusion based on that conduct were known to Ms Tang and formed part of the terms and conditions of her relationship with the University. The nature of this relationship as a consensual agreement was such that when the University decided to end the relationship, the majority decision found that Ms Tang had no legal rights or obligations that could be affected in private law. However, at universities where the procedures for student discipline are codified in statute, the relationship between student and university does have some basis in law. Where the correct procedures for student discipline are not complied with, legal rights and obligations prescribed in the by-law can be pointed to and derivation from an enactment established. Accordingly, the decision in this case provides no incentive for universities and other organisations to enact by-laws and other delegated legislation where broad powers already permit a full range of functions to be carried out.
The Higher Education Support Act 2003 (Cth) (HESA), was enacted after the Commonwealth Government conducted a review of Australia’s higher education system. The Act increased regulation of Higher Education Providers (HEPs), with additional requirements set out in Chapter 2 for a university to be accorded HEP status and thus be eligible for higher education assistance grants. While this legislation was enacted after the exclusion of Ms Tang, current students may be able to utilise the Act to make applications for judicial review.
Section 16.25 of the Act lists the requirements that must be met by a university before it will be granted HEP status. Section 16.25(1)(f) requires that ‘the Minister is satisfied that the body is willing and able to meet the quality and accountability requirements’ before HEP status is accorded. These quality and accountability requirements include a fairness requirement developed in Division 19D of the Act.
The extent to which the fairness requirement extends to all university decisions is not made clear by HESA. According to s19.30, a HEP must treat fairly all of their students and all persons seeking to enrol with the provider. While s19.30 could be construed as a ground for review, it must be noted that within the Higher Education Provider Guidelines, a HEP must inform a student of their right to apply to the Administrative Appeals Tribunal for a review of their decision only where the decision concerns financial assistance. It is unclear whether the guidelines, written before this case, considered that judicial review was already available to students with grievances about academic and non-academic matters, or wished to limit judicial review to decisions concerning financial assistance. At present, it would seem that only where the procedure for review of academic or non-academic grievances has been codified within a university’s by-laws, will a student succeed in bringing an application for judicial review.
If Griffith University v Tang was the opportunity to settle all previous battles over the interpretation of the phrase ‘under an enactment’, the case did not provide a very satisfactory result. While the statutory intent and purpose of the ADJR Act aimed to increase accountability and access to review, the decision in this case does the opposite. The criteria test favoured by the majority increases the threshold applicants must satisfy before accessing statutory review. Students such as Ms Tang, looking to challenge university decisions made ‘under an enactment’, must now turn to other avenues of review. Yet, unless a university has enacted grievance procedures into their statutes or by-laws, the opportunities for review and remedies available are hardly encouraging.
Notwithstanding the current situation, there is some cause to hope. As the final section of this case note explained, HESA may prove a source of power, albeit after some minor amendments. It is hoped that the Federal Government, in their push for accountability from student organisations, will seek to make universities more accountable for their decisions as well. If not, universities will be encouraged to enter ‘voluntary’ relationships and create swathes of policy, safe in the knowledge that the rules of procedural fairness and accountability do not apply.
[*] Final year student, Faculty of Law, University of Sydney. The author would like to thank Rosemary Lyster for her generous assistance in reviewing drafts of this case note before submission.
 Griffith University v Tang  HCA 7; (2005) 213 ALR 724 (hereafter Griffith).
  HCA 33; (1990) 170 CLR 321 (hereafter Bond). The judgment of Kirby J also referred to this phrase in NEAT Domestic Trading Pty Limited v AWB Limited  HCA 35; (2003) 216 CLR 277 at 116-126 (hereafter NEAT).
 The tests used in the lower courts to find that the decision was made under the GU Act were rejected in the High Court. The ‘what anyone in the community could do’ test endorsed by Dutney J was rejected by the majority judgment: Griffith, above n1 at 741 (Gummow, Callinan & Heydon JJ). The core functions test approved at first instance and by Jerrard JA received no support from any of the judgments.
 (1996) 68 FCR 87 at 101 citing CEA Technologies Pty Ltd v Civil Aviation Authority  FCA 1180; (1994) 51 FCR 329 at 333 (Neaves J): A decision meets the test ‘only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect’.
 Gleeson CJ approved a similar test: Griffith, above n1 at 729.
 GU Act ss7, 8 and 9.
 Id at s11.
 Griffith, above n1 at 726.
 Id at 733.
 Id at 726.
 Id at 733.
 Id at 737.
 Tang v Griffith University  QSC 22 at .
 Id at .
 Tang v Griffith University  QCA 571 at  (hereafter Tang).
 Id at .
 Id at .
 Griffith, above n1 at 725.
 This is confirmed by s16 of the Review Act.
 Griffith, above n1 at 734.
 Id at 735.
 Id at 738.
 Id at 738.
 Bond, above n2 at 377.
 Griffith, above n1 at 61; id at 32 ( Mason CJ; Brennan & Deane JJ agreeing).
 Griffith, above n1 at 743.
 Id at 739.
 Id at 743.
 Id at 745.
 Id at 744.
 Id at 746.
 Id at 747.
  NSWCA 360; (2001) 53 NSWLR 299 at 313.
 Griffith, above n1 at 729.
 Id at 730.
 NEAT, above n2.
 Griffith, above n1 at 747–748.
 Id at 757.
 Id at 748–749.
 This was the position taken by Jerrard JA in the Court of Appeal: Tang, above n16 at .
 Ibid and also at .
 Id at .
 Id at .
 GU Act s6(1).
 Griffith, above n1 at 766.
 Id at 765.
 Id at .
 Id at .
 Ombudsman Act 2001 (Qld) s14.
 Id at ss7(a),(b).
 Id at s50(1)(b).
 Id at ss51(3),(4).
 Tang, above n16 at .
 ‘Reforms, Backing Australia’s future’, site hosted by Department of Education, Science & Training: <http://www.backingaustraliasfuture.gov.au/reforms.htm> (14 May 2005).
 Gavin Moodie, ‘Little Room for Review’ The Australian (9 March 2005) at 28..