Editors --- "Made Under An Enactment' Reconsidered - Case Note" [2006] AdminRw 9; (2006) 57 Admin Review 74

• ‘Made under an enactment’ reconsidered

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The courts: case notes

‘Made under an enactment’ reconsidered

In Griffith University v Tang^[1] the High Court considered the meaning of the requirement that a decision be ‘made … under an enactment’ before it is susceptible to judicial review. A majority of the Court held that the decisions of an assessment board and appeals committee at Griffith University did not meet this requirement.

Ms Tang was excluded from her PhD candidature program on the grounds that she had engaged in academic misconduct. After exhausting avenues of appeal within the university, she sought judicial review of the decision under s 20 of the Judicial Review Act 1991 (Qld), alleging breaches of natural justice, failures to comply with mandatory procedural requirements, improper exercises of power, and errors of law. The question before the Court was, however, whether the decisions of two sub-committees were made ‘under’ the Griffith University Act 1998 (Qld) or any other enactment.

The University Act specified the functions of Griffith University, a body corporate, as including the provision of education at university standard, the encouragement of study and research, and the conferral of higher education awards. The University’s governing body had the power to make statutes on matters including the admission, enrolment and disciplining of students and to make and notify university rules. Although nothing in the University Act specifically dealt with ‘matters of admission to or exclusion from a research programme or any course of study [or] academic misconduct’^[2], there was no question of any committee acting ultra vires. The Higher Education (General Provisions) Act 1993 (Qld) had the effect of granting universities a monopoly on the conferral of higher education awards.

In a joint judgment Gummow, Callinan and Heydon JJ adopted a two-stage test for determining whether a decision was made under an enactment:

1. The decision must be expressly or implicitly required or authorised by the enactment.

2. The decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense it must derive from the enactment.^[3]

Although both criteria must be met, the decision need not affect existing rights or obligations: ‘it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise’.^[4] The right or obligations may derive from general law or statute.^[5]

In coming to their conclusion, Gummow, Callinan and Heydon JJ rejected several alternative tests. First, they rejected the ‘proximate source of power’ test, which required that the statute be ‘the immediate or proximate source of power’ for the decision; Kirby J also expressly rejected this test. Second, the majority rejected the ‘what anyone in the community would do’, or, as labelled by Kirby J, the ‘need for statutory authority’, test. This test asked whether:

members of the community at large possess [the] power [to make the decision], either at common law or by statute: if the answer is in the affirmative, the decision was not made under an enactment; if in the negative, then the source of power must be statutory in the relevant sense.^[6]

This test was favoured by Kirby J in dissent. Third, all the judges rejected the ‘core functions’ test, which required that a decision be made ‘in pursuance of a “core function” of the public official or authority concerned’ for it to be ‘under an enactment’.^[7]

Under the test adopted in the joint judgment, the decisions of the sub-committees were not made under an enactment for the following reason:

no legal rights and obligations under private law … were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the University under the University Act.^[8]

Their Honours did accept:

that the circumstances had created an expectation in the respondent that any withdrawal from the PhD candidature programme would only follow upon the fair treatment of complaints against her. But such an expectation would create in the respondent no substantive rights under the general law.^[9]

In coming to this conclusion, their Honours drew a distinction between authorisation of the decision and the requirement that rights or obligations be affected:

The decisions of which the respondent complains were authorised, albeit not required, by the University Act … But that does not mean that the decision of which the respondent complains were ‘made under’ the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect.^[10]

In his dissenting judgment, Kirby J argued that the majority adopted ‘an unduly narrow approach to the availability of statutory judicial review directed to the deployment of public power’.^[11] Emphasising the ‘beneficial’ nature of administrative review legislation, he argued:

In elaborating the phrase ‘made … under an enactment’, courts should not strain themselves to adopt artificial interpretations in order to confine the text. The text itself provides for its own restrictions. Unnecessary restraints, without the clearest foundation in the statute, should not be introduced by judges.^[12]

Kirby J stressed the public nature of universities, their monopoly on the conferral of higher education awards, the susceptibility of universities in other common law countries to judicial review, and the nature of the complaint to suggest that Griffith University should be subject to the legal requirements of procedural fairness and administrative justice.

Using the ‘need for statutory authority’ test, his Honour found that the decision was clearly made under an enactment because the conferral of higher education awards and the provision of education at university standard was something that no ordinary individual or corporation could do. He observed that the decisions relating to Ms Tang must have, by necessity, been ‘made “under” the Act or they were unlawful’.^[13]

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^[1] [2005] HCA 7; (2005) 221 CLR 99.

^[2] Ibid 107 [8].

^[3] Ibid 130–1 [89].

^[4] Ibid [emphasis added].

^[5] Ibid 130 [85]–[86].

^[6] Ibid 125 [70].

^[7] Ibid 148–51 [149].

^[8] Ibid 141 [91].

^[9] Ibid 131–2 [92].

^[10] Ibid 132 [96].

^[11] Ibid 133 [99].

^[12] Ibid 152–3 [153].

^[13] Ibid 155 [159].