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  • Unreported Judgment

Tang v Griffith University

 

[2003] QSC 22

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

14 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

03 February 2003

JUDGE:

Mackenzie J

ORDER:

1.that the application be dismissed;

2.that costs be reserved to the judge finally determining the application for a statutory order to review. 

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICAL REVIEW LEGISLATION – JURISDICTION GENERALLY – “DECISION WITHIN ACT’S APPLICATION – “OF AN ADMINISTRATIVE CHARACTER” – “UNDER AN ENACTMENT” – where  the respondent was excluded from her PhD candidature by the University Academic Committee – where that exclusion was upheld by the University Appeals Committee –  where respondent applied for judicial review of the decision – where  applicant University applied to have the respondent’s application for judicial review dismissed – whether the decision to exclude was subject to review under the Judicial Review Act 1991 (Qld) – whether the decision was of an administrative character – whether the decision was one made under an enactment


Griffith University Act 1998 (Qld), s4, s5, s6, s7, s9, s11, s61

Judicial Review Act 1991 (Qld), s13, s48

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited
Australian National University v Burns (1982) 43 ALR 25, cited
Australian National University v Lewins (1996) 136 ALR 1, applied
Blizzard v O’Sullivan (1994) 1 Qd R 112, cited
Concord Data Solutions Pty Ltd v Director-General of Education (1994) 1Qd R 343, applied
Hamblin v Duffy (1981) 34 ALR 333, applied
Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269, applied

COUNSEL:

Mr J Murphy for the applicant

Mrs S Cool for the respondent

SOLICITORS:

Dibbs Barker Gosling for the applicant

Minter Ellison for the respondent

[1] MACKENZIE J:  The respondent has applied for judicial review of two decisions described in the application for statutory order of review as a decision notified on 19 July 2002 and a decision notified on 21 October 2002, that on appeal, the University had upheld the decision under its Policy on Academic Misconduct of 19 July 2002 that the applicant was guilty of academic misconduct and was excluded from her PhD candidature.  The University has applied to stay or dismiss her application under s 48, or alternatively s 13, of the Judicial Review Act 1991 (Qld). Section 13, which is concerned with availability of alternative remedies, is not a viable basis in this case for dismissing the application, and was not seriously pressed in any event.

[2] I note that the date of the initial decision of the Assessment Board which considered the matter may be inaccurately stated, since the substantial decision that she be excluded from the PhD candidature program on the ground that she had undertaken research without regard to ethical or scientific standards was conveyed to her by letter of 9 August 2002 following consideration by the Board of further submissions invited from her in the letter of 19 July 2002.  In any event, the first decision was that she had engaged in academic misconduct as described in cl 1.1 of the University’s Policy on Academic Misconduct.  The basis of the finding was that the Assessment Board had found that she had presented falsified or improperly obtained data as if it were the result of laboratory work.  The letter dated 21 October 2002 advises that the University Appeals Committee had determined that her appeal be dismissed. 

[3] The application to dismiss or stay the application is based on the argument that the provisions of the Judicial Review Act do not apply to either decision since they are not decisions made “under an enactment” but rather were made pursuant to various policies of the university.  The task involved in this situation is succinctly described by Thomas J in the following passage from Concord Data Solutions Pty Ltd v Director-General of Education (1994) 1Qd R 343, 350:

 

“A correct legal analysis of whether a decision is made under an enactment requires a characterisation of the decision that has been made, and an examination of all legislation and statutory instruments applicable to it.  It is only then that the Court can say whether in its essential respects it was made under an enactment or under some other power or source.  (Australian National University v Burns (1982) 64 F.L.R 166, 174; 43 ALR 25, 32).  One searches for the operative or substantial source of the power rather than incidental sources.  (Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 C.L.R 234; Australian Film Commission v Mabey (1985) 6 F.C.R 107, 129).”     

[4] In Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269 Black CJ with whom Spender J agreed said that where a decision is impliedly required or where the authorization for a decision is to be implied in a specific context, the enactment can be seen “to make provision” for the making of the decision.  He went on:

 

“Where, however, the authorisation is very general it is difficult to see how an enactment may be said ‘to make provision’ for a decision in the sense in which that expression was used by Mason CJ in Bond [Australian Broadcasting Tribunal v Bond (1990) CLR 321] (at 337).  It seems to me that Mason CJ contemplated that there might be acts, capable of being called decisions, that were authorised in the sense of being within the general scope of powers conferred by an enactment but as to which the enactment could not be said to make provision, and which would therefore not be decisions under the enactment …

 

If a decision is neither expressly nor impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way, it is unlikely to have the character of a decision for which provision is made under an enactment.  The connection between the text of the enactment and the decision is likely to be too remote for the decision to have the requisite character.”

[5] In Australian National University v Lewins (1996) 136 ALR 1 at 14 Lehane J, with whom Kiefel J agreed, said the following:

 

“… a decision is ‘made’ under an Act if it is ‘a decision which a statute requires or authorises’ or ‘one for which provision is made by or under a statute’:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336, 337; 94 ALR 11 per Mason CJ.  In CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329; 122 ALR 724 Neaves J accepted (at FCR 333, 337) that a decision meets that 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.  It is clear, I think, that the general power to employ staff does not satisfy either limb of a test so expressed.  That conclusion is required equally, I think, by the recent decision of the Full Court in Hutchins v DCT (1996) 136 ALR 153.”

It is therefore necessary to examine the framework within which the decisions were made.  The Griffith University Act 1998 (Qld) creates the University as a body corporate with all the powers of an individual  (s 4 and s 6).  Section 5 sets out the University’s functions.  They include:

 

(a)to provide education at university standard; and …

(e)to confer higher education awards; and

(f)to disseminate knowledge and promote scholarship.

[6] Section 7 provides for establishment of a Council of the University.  Section 8 provides that the Council is the University’s governing body and that it has the functions conferred on it under the Griffith University Act or another Act.  Section 9(1) assigns a power for the Council to “do anything necessary or convenient to be done for, or in connection with, its functions”.  Section 9(2) provides that without limiting sub-s 1, the Council has the powers given to it under the Griffith University Act or another Act and in particular …

 

(b)to manage and control the University’s affairs and property.

[7] Section 11 provides that the Council may delegate its powers under the Griffith University Act to ..

 

(b)an appropriately qualified committee that includes one or more of the members of the Council.

[8] Section 61 permits the Council to make University Statutes about a variety of matters two of which are the following:

 

(b)the entitlement to degrees and other awards; and

(c)the disciplining of students and other persons undertaking courses at the university.

The events to which the present proceedings relate occurred not under a University Statute but under the power of the Council to delegate its functions. However, the existence of power to make a statute and the fact that the University has chosen not to do so are not necessarily decisive against the applicant (Australian National University v Lewins at 17).

[9] On 4 August 1997 Council approved a revised constitution for the Academic Committee.  That constitution remained in that form at all material times.  Under the heading “Delegated Authorities” it is stated that the Academic Committee has authority to:

 

  • approve the content of academic courses and detailed requirements for awards;
  • approve changes to the content of academic courses and detailed requirements for awards;…
  • determine the University’s academic policy in the areas of student administration, assessment, progress, credit and time-tabling.

[10] The functions of the Academic Committee are stated as follows:

 

“The Academic Committee is responsible to the Council for assuring the quality of academic activities across the University.  The Academic Committee is the senior body within the University which debates, decides and makes recommendations to the Council on academic developments, policies and procedures.

 

The Academic Committee may advise the Council on the academic aspects and implications of any business coming before the Council.

 

The Academic Committee shall discharge such responsibilities as shall be delegated to it by the Council except in circumstances where the Committee decides to seek the advice of the Council.

 

Without limiting the generality of (sic) the Academic Committee may-

  • develop and monitor academic policies and procedures of the University and make recommendations to the Council on these matters;

  • advise the Council on the policies and procedures pertaining to research higher degree programs;…”

[11] The Council also appointed committees which were to be sub-committees of the Academic Committee.  They included the Research & Postgraduate Studies Committee.  The functions assigned to it include making recommendations to the Academic Committee on processes for evaluation of claims of misconduct in research.  On or about 1 March 2001, the Academic Committee approved a revised policy on academic misconduct and on or about 6 September 2001 approved a revised policy on student grievances and appeals both of which remained in their original form at all material times.

[12] The policy on academic misconduct specifies that one form of academic misconduct is to present copied, falsified or improperly obtained data as if it were the result of laboratory work or other investigatory work.  It is also provided that on a determination that academic misconduct has taken place being made, one of the range of penalties that may be imposed is exclusion from a program.  Where this penalty is applied the Chair of the Assessment Board which considered the complaint must advise the Academic Registrar who is to record on the student’s academic record that the person has been excluded for disciplinary reasons (cl 5.1).  Where the penalty for academic misconduct is imposed, the student may appeal to the University Appeals Committee under the policy on student grievances and appeals (cl 5.2). 

[13] Under that policy an appeal against exclusion is considered by the University Appeals Committee and the decision of that committee is final (cl 2.1).  The University Appeals Committee consists of 6 members, a senior academic staff member, 2 academic staff members, 2 students including one post graduate student, and one member of Council (not a student or staff member (cl 5.1)).  With regard to finality of appeal the policy says that decisions of the University Appeals Committee are final and there is no further recourse to appeal within the University.  Before pursuing any avenues of judicial review, the appeals process within the University should be exhausted (6.0).  It seems clear that the provision relating to finality of appeal is not intended to imply that there is no recourse to the courts.  Nor should the reference to “avenues of judicial review” be read of itself as a concession that the Judicial Review Act applies.  It is used in that context as a more general term. 

[14] It is within this framework that the question whether each of the decisions with which Ms Tang is aggrieved constitutes a “decision to which (the Judicial Review Act) applies”.  That involves the question whether it is a decision of an administrative character made under an enactment.  “Enactment” means an act or statutory instrument. 

[15] Two competing policy considerations are involved.  One is that the purpose of judicial review legislation is to allow persons aggrieved by the administrative decision making processes of Government a convenient and effective means of redress and to enhance those processes.  The other is that the wider the concept of “a decision” is extended the greater is the risk that the effective administration of government will be impaired (cf Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 336-7).  The borderline is not always easy to draw and cases such as Australian National University v Lewins (supra), Australian National University v Burns (1982) 43 ALR 25 and Blizzard v O’Sullivan (1994) 1 Qd R 112, where decisions arising in the context of employment have been held not to be reviewable since they arise under the contract of employment, not a general statutory power related to employment of staff by the institution involved, illustrate the care that must be taken in deciding whether the decision is a decision which the statute requires or authorizes or one for which provision is made by or under a statute, or not  (see also McLean v Gilliver (1995) 1 Qd R 637 where a decision to reject a nomination for election to an executive position in a University Union council was held to be made under the Union’s constitution, not the University’s governing Act).

[16] The applicant University’s basic proposition is that neither decision is a decision made “under an enactment” but rather were made pursuant to various policies of the University.  It was also not conceded that the decisions were of an administrative character, since it was submitted that the bodies making the decision were not of a governmental character.  Reference was made to observations by Lockhart J in Hamblin v Duffy (1981) 34 ALR 333 at 339 where he said:

 

“The phrase ‘decision of an administrative character’ … looks more to the nature of character of the decision itself than to the person or body making the decision.  But the identity of the particular person or body must be relevant.”

The applicant University’s counsel placed particular emphasis on the last sentence. 

[17] Later on the same page, Lockhart J said the following:

 

“The expression ‘decision of an administrative character’ is incapable of precise definition; but in my opinion it includes at least the application of a general policy or rule to particular cases; the making of individual decisions.”

I am not persuaded that the decisions are not decisions of an administrative character and it is therefore necessary to consider whether they are made “under an enactment”.

[18] With respect to that question it was submitted that both the Assessment Board and the University Appeals Board were unincorporated bodies and their decisions were reached in accordance with their respective constitutions and having regard to policy formulated by the Academic Board, itself an unincorporated body within the University’s general structure.  It was submitted that the subsequent decisions were not made pursuant to an express provision of the Griffith University Act; nor was there an implied requirement or authorisation by the Act. 

[19] The respondent Ms Tang’s counsel submitted that evaluating academic misconduct and imposing a penalty in proven cases is an act which is necessary or convenient for or in connection with a function of the University under the Act.  It was submitted that s 5(a) to (c), (b), (f) or (h) were relevant functions. 

[20] Of these, s 5(f) would in my view be most directly 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.  The function of the Council is to govern the University and to exercise the functions conferred on it under the Act or another Act.  There is a power of wide scope (s 9(1)) to, inter alia, manage and control the University’s affairs (s 9(2)).   There is power to delegate powers to appropriately qualified committees (s 11(1)(b)).

[21] The structure of the Griffith University Act thus far, in relation to the core function of conferring higher academic awards, is that the Council has the function of governing the University, power to manage and control the University’s affairs, and authority to delegate its powers to committees. 

[22] The delegate for the purpose of  “assuring the quality of academic activities across the University” is the Academic Committee.  The Research & Postgraduate Studies Committee is also established by the Council as a sub-committee of the Academic Committee with the function of approving the eligibility of students to receive higher degrees, including a PhD, and to develop policy relating to research higher degree courses (which by definition includes a PhD).  This function is a direct delegation from the Council.  The policy on academic misconduct approved by the Academic Committee under its delegation is a means of ensuring that natural justice is accorded to a person against whom the serious allegation of academic misconduct has been made.

[23] Reducing this structure even further to its elements, the Council has power to manage and control the very core aspect of the University’s functions of conferring higher educational awards and promoting scholarship, which in my view necessarily includes measures to avoid corruption of the quality of awards by use of methods antithetical to acceptable standards of scholarship.  The Council has express power to delegate its powers to an appropriately qualified committee, which it did with regard to that particular aspect of its functions by creating the Academic Committee and its sub-committee, the Research & Postgraduate Studies Committee.  The Academic Committee created the policy on academic misconduct pursuant to its delegation by the Council, which includes the way in which complaints of academic misconduct are to be dealt with and the policy on student grievances and appeals, which allowed for the appeal against the adverse findings.  In doing those things the Academic Committee acted as delegate of the Council. 

[24] It is plainly necessary, as discussion of authority above indicates, that care must be taken not to assume that a generally expressed power in an act provides a sufficient basis for finding that the decision is one “under an enactment”.  However, as the authorities also indicate, a question of degree is involved in that the connection between the text of the enactment and the decision has to be considered.  This involves examination of the legislation to determine whether the enactment gives the operational or substantial source of power to make the decision, or, whether the decision is properly characterised as deriving from an incidental source of power.  This involves a judgment concerning the particular act in the context of the legislation and drawing a conclusion whether it can properly be said to be made under the enactment because the statute requires or authorises it or the decision is one for which provision is made by or under it. 

[25] I have come to the conclusion that 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 Ms Tang from the PhD program is an administrative decision made under an enactment for the purposes of the Judicial Review Act.  I do not accept that because the processes immediately used for the purpose of making the decisions were provided for in documents described as “policy” precludes this conclusion.  Because I have come to the conclusion that the decisions are administrative decisions made under an enactment it is not necessary to consider the subsidiary argument on behalf of the applicant that the decisions were made under a statutory instrument.

[26] The orders are as follows:

 

1.that the application be dismissed;

2.that costs be reserved to the judge finally determining the application for a statutory order to review.   

Close

Editorial Notes

  • Published Case Name:

    Tang v Griffith University

  • Shortened Case Name:

    Tang v Griffith University

  • MNC:

    [2003] QSC 22

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    14 Feb 2003

Litigation History

No Litigation History

Appeal Status

No Status