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Stewart, Daniel --- "Griffith University v Tang, 'Under an Enactment' and Limiting Access to Judicial Review" [2005] FedLawRw 17; (2005) 33(3) Federal Law Review 525

[*] Faculty of Law, Australian National University. An earlier version of this paper was presented at a Law Faculty Seminar at the University of Tasmania, 9 June 2005. Thanks to Rick Snell, Michael Stokes and other participants of the seminar for their helpful comments. Thanks also to the anonymous referee and the editors for their suggestions for improvement, Christos Mantziaris for making available his notes presented at the NSW Bar Association Administrative Law Section, lunchtime seminar on 22 March 2005, and Graeme Hill and Leighton McDonald for their willingness to listen to my thoughts on Griffith and share theirs. Failures in representing the richness of their suggestions are all my own doing.

[1] ADJR Act s 5.

[2] ADJR Act s 6.

[3] ADJR Act s 7.

[4] ADJR Act s 8.

[5] ADJR Act s 3(1).

[6] See Judicial Review Act 1991 (Qld) s 4, and the Administrative Decisions (Judicial Review) Act 1989 (ACT). Note that the Administrative Law Act 1978 (Vic) also provides a statutory scheme for judicial review but uses the threshold criteria of 'decision' involving determinations affecting rights, privileges or licences by 'tribunals' required to comply with the obligations of natural justice. The concerns over whether contractual arrangements and other 'private decisions' are within the ambit of statutory review that are discussed in this comment have also arisen under the Victorian scheme: see Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 22-3.

[7] [2005] HCA 7; (2005) 213 ALR 724 ('Griffith').

[8] Ibid 745 [89] (Gummow, Callinan and Heydon JJ).

[9] Ibid 746 [91].

[10] See ibid 733 [36] (Gummow, Callinan and Heydon JJ).

[11] See ibid 725 [1] (Gleeson CJ), 733 [36–7] (Gummow, Callinan and Heydon JJ).

[12] See ibid 725–6 [6–7] (Gleeson CJ), 733 [33–8] (Gummow, Callinan and Heydon JJ) for description of the facts.

[13] Griffith University Act 1998 (Qld) s 6.

[14] Griffith University Act 1998 (Qld) s 5.

[15] Griffith University Act 1998 (Qld) s 62.

[16] Griffith University Act 1998 (Qld) s 61.

[17] Higher Education (General Provisions) Act 1993 (Qld) s 8. See Griffith [2005] HCA 7; (2005) 213 ALR 724, 732 [33].

[18] See Griffith [2005] HCA 7; (2005) 213 ALR 724, 737 [53] (Gummow, Callinan and Heydon JJ), 752 [116] (Kirby J).

[19] Under Part 5 of the Judicial Review Act 1991 (Qld) the Queensland Supreme Court continues to enjoy the power to grant prerogative writs, declarations and injunctions (ss 41, 47(1)). See ibid 725 [3] (Gleeson CJ), 757 [136] (Kirby J).

[20] Tang v Griffith University [2003] QSC 22 (Mackenzie J).

[21] Tang v Griffith University [2003] QCA 571 (Jerrard JA, Dutney and Philippides JJ).

[22] Section 16(1) of the Review Act explicitly states that ideas expressed in the ADJR Act are not taken to be different in the Review Act merely because different words are used. This was used to indicate the connection between the Review Act and the ADJR Act, and hence it was accepted that where the same words are used then the meaning was also relevantly the same. See Griffith [2005] HCA 7; (2005) 213 ALR 724, 725 [3] (Gleeson CJ), 731 [26] (Gummow, Callinan and Heydon JJ).

[23] Griffith [2005] HCA 7; (2005) 213 ALR 724, 745–6 [89] (emphasis in original).

[24] [1984] HCA 49; (1984) 155 CLR 234 ('Glasson') (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ).

[25] Meaning outside of, or not within the scope of (see the Oxford English Dictionary). 'Dehors' is the description used by the majority in Griffith [2005] HCA 7; (2005) 213 ALR 724, 745 [87].

[26] See the description of the operation of the scheme in Glasson [1984] HCA 49; (1984) 155 CLR 234, 237–40.

[27] Ibid 239.

[28] Ibid 241.

[29] Ibid.

[30] [1985] HCA 70; (1985) 157 CLR 290 ('Mayer').

[31] Mason, Deane and Dawson JJ.

[32] Mayer [1985] HCA 70; (1985) 157 CLR 290, 303.

[33] Ibid 301.

[34] Ibid 302–3.

[35] Ibid 303.

[36] Ibid 296 (Gibbs CJ), 306–7 (Brennan J).

[37] Mayer [1985] HCA 70; (1985) 157 CLR 290, 307. This was cited with apparent approval in Griffith [2005] HCA 7; (2005) 213 ALR 724, 742 [75].

[38] [2003] HCA 35; (2003) 216 CLR 277 ('NEAT').

[39] Ibid 297–300 [51–63].

[40] Section 57(3B) of the Wheat Marketing Act 1989 (Cth) relevantly stated: '[WEA] must not give a bulk-export consent without the prior approval in writing of [AWBI].'

[41] NEAT [2003] HCA 35; (2003) 216 CLR 277, 298 [55].

[42] Citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 ('Bond'), 336–7 (Mason CJ).

[43] Citing Mayer [1985] HCA 70; (1985) 157 CLR 290 and Attorney-General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162, 171–2 ('Oates'). Oates concerned a provision calling for the Commonwealth Minister's consent to extend the limitation period to bring a prosecution under the corporations law (which relevantly at the time was operating as a law of Western Australia). It was held that the better approach as a matter of construing legislative intent was to conclude that the provision calling for the consent of the Minister implied conferred authority on the Minister to give their consent, because of the legislative history of the provision, and that the Commonwealth's consent to the drawing in of its Ministers into the operation of the State Act was itself conditioned on the relevant corporations law provisions conferring power to make the decision.

[44] NEAT [2003] HCA 35; (2003) 216 CLR 277, 298 [54].

[45] For other discussions of NEAT see Neil Arora, 'Not so NEAT: Non-statutory Corporations and the Reach of the Administrative Decisions (Judicial Review) Act 1977' [2004] FedLawRw 6; (2004) 32 Federal Law Review 141; Graeme Hill, 'The Administrative Decisions (Judicial Review) Act and "Under an Enactment": Can NEAT Domestic be reconciled with Glasson?' (2004) 11 Australian Journal of Administrative Law 135; Mark Aronson, 'Is the ADJR Act Hampering the Development of Australian Administrative Law?' (2004) 15 Public Law Review 202; Margaret Allars, 'Public Administration in Private Hands' (2005) 12 Australian Journal of Administrative Law 126; Christos Mantziaris, 'A "Wrong Turn" on the Public/Private Distinction: NEAT Domestic Trading Pty Ltd v AWB Ltd' (2003) 14 Public Law Review 197; Casper Conde, 'Accountability for the Exercise of "Public" Power: A defence of Neat Domestic' [2005] AIAdminLawF 12; (2005) 46 Australian Institute of Administrative Law Forum 1.

[46] NEAT [2003] HCA 35; (2003) 216 CLR 277, 299 [60].

[47] [1986] HCA 40; (1986) 162 CLR 24, 38–40 (Mason J).

[48] NEAT [2003] HCA 35; (2003) 216 CLR 277, 288–90 [21–6].

[49] Ibid 297 [49].

[50] The factum metaphor comes from Hill, 'The Administrative Decisions (Judicial Review) Act and "Under an Enactment"', above n 45, 138, where he points to the cases in the context of constitutionally-required separation of judicial power that have referred to the decision of an administrative body as a 'factum' for creating rights and obligations.

[51] See also the discussion by Arora, above n 45.

[52] Griffith [2005] HCA 7; (2005) 213 ALR 724, 743 [78].

[53] [1984] FCA 29; (1984) 1 FCR 254 ('Chittick').

[54] (1996) 68 FCR 87 ('Lewins').

[55] Chittick [1984] FCA 29; (1984) 1 FCR 254, 263–4.

[56] Ibid 265.

[57] See also the discussion in Mair v Bartholomew [1991] FCA 541; (1992) 104 ALR 537.

[58] Lewins (1996) 68 FCR 87, 103, as quoted in Griffith [2005] HCA 7; (2005) 213 ALR 724, 744 [81].

[59] See discussion in Griffith [2005] HCA 7; (2005) 213 ALR 724 , 741 [68–9].

[60] [1982] FCA 191; (1982) 43 ALR 25 ('Burns').

[61] (1985) 7 FCR 575 ('Berkeley').

[62] See also Hawker Pacific Pty Ltd v Freeland [1983] FCA 139; (1983) 79 FLR 183, 186; Abe Copiers Pty Ltd v Secretary of the Department of Administrative Services [1985] FCA 188; (1985) 7 FCR 94, 95.

[63] (1992) 117 ALR 277 ('Richardson').

[64] Griffith [2005] HCA 7; (2005) 213 ALR 724, 744 [83].

[65] Berkeley (1985) 7 FCR 575, 578. See also Richardson (1992) 117 ALR 277, 282.

[66] [1993] FCA 473; (1993) 45 FCR 164 ('General Newspapers').

[67] Ibid 173. This is based on the decision in Bond [1990] HCA 33; (1990) 170 CLR 321, which is discussed further below.

[68] Ibid.

[69] Griffith [2005] HCA 7; (2005) 213 ALR 724, 744 [80] n 79. The majority also referred to 'force and effect' in concluding that there were no rights and obligations affected by the decision. Gleeson CJ also relied on the lack of the enactment's 'force and effect' to reach his conclusion that there was no decision made under it. See below around n 165.

[70] General Newspapers [1993] FCA 473; (1993) 45 FCR 164, 173.

[71] [1987] FCA 456; (1987) 17 FCR 1 ('Gerah Imports').

[72] Burns [1982] FCA 191; (1982) 43 ALR 25, 32–3, 36. See also Chittick [1984] FCA 29; (1984) 1 FCR 254, 268.

[73] [1989] HCA 15; (1989) 166 CLR 454 ('Redmore'), on appeal from the NSW Supreme Court. See also Capricornia Electricity Board v John M Kelly (Builders) Pty Ltd (1990) 71 LGRA 256.

[74] These cases are distinguished by Nicholas Seddon from those where the contract 'has been successfully challenged on the basis that it was simply beyond the legal capacity of a statutory corporation … to make it'. Whether such a distinction is justified is perhaps arguable. However, in any event, cases where such a challenge has been successful are rare: Nicholas Seddon, Government Contracts: Federal, State and Local (3rd ed, 2004) 72.

[75] See ibid 356–69.

[76] [1989] HCA 15; (1989) 166 CLR 454, 462. Brennan and Dawson JJ dissented on the basis of their view that the public interest could not be achieved without declaring the contract void. Seddon suggests that holding contracts void should be an absolute last resort where no other solution can be found: ibid 361.

[77] See generally Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[78] Cases such as Hawker Pacific Pty Ltd v Freeland [1983] FCA 139; (1983) 79 FLR 183, Community and Public Sector Union v Woodward (1997) 76 FCR 551 and Dardak v Minister for Regional Services, Territories & Local Government [2001] FCA 21; (2001) 182 ALR 419 considered the operation of legislative restrictions on the capacity to contract, where the capacity to contract was derived from executive power. For a discussion of such inherent capacity see Michael Taggart, 'Reinvented Government, Traffic Lights, and the Convergence of Public and Private Law' [1999] Public Law 124, 130–3, and Seddon, above n 74.

[79] Judiciary Act 1903 (Cth) s 39B(1A)(c). For a discussion of the meaning of 'arising under' in this context see the discussion below around n 85.

[80] Note that s 77 allows for the jurisdiction in s 76(ii) to also be conferred on federal courts, enacted through s 39B of the Judiciary Act 1903 (Cth).

[81] [1945] HCA 50; (1945) 70 CLR 141 ('Barrett').

[82] Ibid 154.

[83] Griffith [2005] HCA 7; (2005) 213 ALR 724, 740 [67].

[84] [1983] HCA 31; (1983) 151 CLR 575.

[85] Griffith [2005] HCA 7; (2005) 213 ALR 724, 743–4 [79–80].

[86] Ibid 745 [85].

[87] Ibid 745 [86].

[88] Ibid 744 [80]. The reference to 'in an immediate sense' seems to refer to the need to establish the legislation as the source of the capacity to bind the parties rather than merely regulating the contractual or other private law obligation entered into consensually.

[89] Ibid 746 [90]; see also Neil Arora, above n 45, 157–9.

[90] Briefly, if the decision is made under a Commonwealth Act, then the application of the ADJR Act will be supported by whatever head of power supports that Commonwealth Act. If the decision is made under a State Act, then the application of the ADJR Act will be supported by whatever head of power supports the Commonwealth law authorising the Commonwealth body to perform the State function, and possibly by the Commonwealth's inherent executive power to regulate the conduct of its own officers and bodies.

[91] See Graeme Hill, 'Griffith University v Tang — Comparison with NEAT Domestic, and the Relevance of Constitutional Factors' (2005) 47 AIAL Forum forthcoming, reproduced with the permission of the author. Footnotes reproduced from the original.

[92] [1921] HCA 20; (1921) 29 CLR 257.

[93] Ibid 265–6. See also Fencott v Muller (1983) 152 CLR 570,591, 603; Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289, 303, 316, 321–2; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 ('Ainsworth'), 582.

[94] [2002] HCA 16; (2002) 209 CLR 372 ('Re McBain').

[95] Ibid 382 (Gleeson CJ), citing In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 267.

[96] [1992] HCA 10; (1992) 175 CLR 564.

[97] Ibid 582.

[98] The relevance of Ainsworth to the definition of 'matter' was referred to in Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119 ('Croome'), where Gaudron, McHugh and Gummow JJ stated:

The Chief Justice [in Davis v Commonwealth [1986] HCA 66; (1986) 68 ALR 18] described as 'analogous' the questions of standing to bring an action challenging the validity of an Act of the Parliament and of the sufficiency of an interest to support an action to prevent the violation of a public right or to enforce the performance of a public duty. That this is so is illustrated by the joint judgment in Ainsworth v Criminal Justice Commission. The Court was dealing not with federal jurisdiction but with the inherent power of superior courts to grant declaratory relief. However, In re Judiciary and Navigation Acts was cited for the proposition that declaratory relief must be directed to the determination of legal controversies, not to answering abstract or hypothetical questions: at 132 (citations omitted).

[99] See also Hill, 'Griffith University v Tang' above n 91 forthcoming.

[100] [2002] HCA 16; (2002) 209 CLR 372, 406–7 [66] (Gaudron and Gummow JJ) (citations omitted).

[101] Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 612 [49].

[102] [1999] HCA 14; (1999) 197 CLR 510, 527 [31].

[103] Re McBain [2002] HCA 16; (2002) 209 CLR 372, 460.

[104] Ibid 407 [69] citing University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447, 457–8, and using Croome [1997] HCA 5; (1997) 191 CLR 119 as an example.

[105] [1998] HCA 49; (1998) 194 CLR 247.

[106] Ibid 258 [27].

[107] Ibid 267 [49–50].

[108] Ibid 263 [40] citing R v Graziers' Association of NSW; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, 327; R v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, 81; R v Federal Court of Australia; Ex parte WA National Football League (Incorporated) (1979) 143 CLR 190, 201–2.

[109] See discussion above around nn 70–79.

[110] Croome [1997] HCA 5; (1997) 191 CLR 119, 132–3 (Gaudron, McHugh and Gummow JJ).

[111] Griffith [2005] HCA 7; (2005) 213 ALR 724, 735 [44].

[112] Although as Graeme Hill points out, the language is different. See Hill, 'Griffith University v Tang', above n 91, at and around n 61.

[113] See, eg, Randwick City Council v Minister for the Environment (1998) 54 ALD 682, 697–8; Edelsten v Health Insurance Commission (1990) 27 FCR 56, 68; Kelson v Forward [1995] FCA 1584; (1995) 60 FCR 39, 61–2; Dardak v Minister for Regional Services, Territories & Local Government [2001] FCA 21; (2001) 182 ALR 419, 425 [26].

[114] [2001] FCA 1296; (2001) 113 FCR 230.

[115] Ibid 231–52. Note that Finn J also found that the opinions were not made under an enactment. Even if it were accepted that they were authorised by the enactment establishing the powers of the ACCC they were not given 'force or effect' by that legislation, citing General Newspapers [1993] FCA 473; (1993) 45 FCR 164 . It would seem that Finn J was using force or effect in the same way as the majority in Griffith referred to rights and obligations, namely the decision was a precondition to the legal effect produced by the legislation.

[116] [1990] HCA 33; (1990) 170 CLR 321.

[117] Ibid 337.

[118] Ibid.

[119] Ibid 342.

[120] Ibid 339. See also Edelsten v Health Insurance Commission (1990) 27 FCR 56, 68; Kelson v Forward [1995] FCA 1584; (1995) 60 FCR 39.

[121] Bond [1990] HCA 33; (1990) 170 CLR 321, 336–7.

[122] Griffith [2005] HCA 7; (2005) 213 ALR 724, 739 [61]. See also Robinswood Pty Ltd v Federal Commissioner of Taxation (1998) 55 ALD 717, 724. Perhaps a more apt discussion of the possible policy considerations behind restricting access to ADJR Act review is set out in Salerno v National Crime Authority [1997] FCA 475; (1997) 75 FCR 133 (von Doussa, Drummond and Mansfield JJ):

If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest: at 143.

However, this justification merely refers to the need for there to be some restriction on the review of intra vires activities, leaving the basis for the distinction between intra and ultra vires activities unclear.

[123] This was a criticism made in dissent in Griffith [2005] HCA 7; (2005) 213 ALR 724, 764–5 [155] (Kirby J).

[124] While no definition of 'rights and obligations' is given in the judgments, for the purposes of exposition, describing the range of entitlements and privileges that may be affected by administrative decisions may include rights as something that can be legally enforced (for example property rights enforceable through trespass and conversion — see the majority in ibid 745 [85]), interests as existing benefits that require lawful authority before they can be taken away, and legitimate expectation as the conferral of a benefit where there has been a representation by the decision-maker which suggests that the benefit will be conferred subject only to special or unusual circumstances. See Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, 682.

[125] Bond [1990] HCA 33; (1990) 170 CLR 321, 376.

[126] Ibid 377.

[127] Griffith [2005] HCA 7; (2005) 213 ALR 724, 745 [86].

[128] Bond [1990] HCA 33; (1990) 170 CLR 321, 339.

[129] Ibid ,377.

[130] Griffith [2005] HCA 7; (2005) 213 ALR 724, 741 [69].

[131] See also the quote from the judgment of Toohey and Gaudron JJ in ibid 738–9 [60].

[132] Ibid 745 [87]. The individual incurring of a debt to repay the subsidy provided by the State in Glasson is clearly an obligation.

[133] See discussion below around n 166

and following.

[134] [1967] 2 QB 864 ('Lain').

[135] Ibid 888. The judgment of Brennan CJ, Gaudron and Gummow JJ in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 quoted this passage from Lord Diplock with apparent approval in discussing the availability of the prerogative writs to decisions not involving 'legal rights in any ordinary sense': at 163; see discussion in Aronson, Dyer and Groves, above n 6

, 133–4.

[136] Griffith [2005] HCA 7; (2005) 213 ALR 724, 746 [91].

[137] Such as through the passing of a University statute. See the discussion below around nn 167–9.

[138] Griffith [2005] HCA 7; (2005) 213 ALR 724. As Gleeson CJ states:

The case was argued on the assumption that the appellant was entitled to invoke and apply its policies in relation to academic misconduct, and its procedures for deciding whether academic misconduct had occurred and for internal review of such a decision. The precise legal basis of that common assumption was not examined in argument. There is no reason to doubt that the assumption is correct: at 729 [17].

In similar circumstances there may indeed be a contractual relationship between the university and its students: see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.

[139] Griffith [2005] HCA 7; (2005) 213 ALR 724, 746 [92]. See also Gleeson CJ: at 730 [20].

[140] (2003) 214 CLR 1 ('Lam').

[141] Ibid 27–8 [81–2] which in turn referred to statements of McHugh J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 311–12 where he said that 'there is no need for any doctrine of legitimate expectations. The question becomes what does fairness require in all the circumstances of the case?', and Brennan J in A-G (NSW) v Quin (1990) 170 CLR 1, 39 where he stated: 'If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case'.

[142] (1996) 68 FCR 87.

[143] Ibid 96–7.

[144] Ibid 103–4.

[145] Note that Kiefel J, in finding that the promotions policy was not capable of affecting legal rights and obligations in the sense referred to in Chittick [1984] FCA 29; (1984) 1 FCR 254, went on to suggest the policy 'does not impact upon the interests of the applicant even if one extends that to benefits or privileges held or which might accrue to him, as the term "legitimate expectations" in its original sense referred': ibid 96. Thus Kiefel J drew a distinction between legitimate expectations of receiving a benefit based on the limited conditions of its denial in the legislation and expectations based on the conduct or policy of the decision-maker or executive government.

[146] It is not the breach of a ground of review in ss 57 of the ADJR Act that leads to a decision being made under an enactment. As Kiefel J suggested: ibid 97, the necessary link between the decision and an enactment cannot be supplied by the ADJR Act itself.

[147] Lam (2003) 214 CLR 1, 24–5 [76–7]. See Hill, 'Griffith University v Tang', above n 91, n 67. Thanks to Professor Robin Creyke for pointing out this aspect of Lam.

[148] See the discussion in Aronson, Dyer and Groves, above n 6

, 464–7.

[149] For a discussion on why this is not an easy question in relation to statutory authorities and other government-owned organisations see Stephen Bottomley, 'Government Business Enterprises and Public Accountability through Parliament', (Research Paper No 18, 1999–2000) Department of the Parliamentary Library 2001.

[150] See also Mantziaris, above n 45: (NEAT involved 'a normative evaluation of where the boundary between the executive and a "private" concern lay and the appropriateness of judicial review within the particular regulatory scheme': at 200); Hill, 'Griffith University v Tang' above n 91: ('As a practical matter, the interpretation of the general phrase "under an enactment" will be influenced by a court's perception of the extent to which the [ADJR Act] should apply to decisions by persons who are not Commonwealth officers': at 145).

[151] Which includes statutory authorities such as the University. See Griffith [2005] HCA 7; (2005) 213 ALR 724, 758 [139] (Kirby J).

[152] Electoral and Administrative Review Commission (Qld), Report on Judicial Review of Administrative Decisions and Actions (1990) 51 [6.30].

[153] [1967] 2 QB 864.

[154] Administrative Review Council, 'Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act' (Report No 32, 1989), 38 [164]. See Bituminous Products Pty Ltd v General Manager (Road System and Engineering), Department of Main Roads [2005] QSC 042, [18] (Holmes J).

[155] Although they reserved the right to perhaps pursue it in later proceedings: see Griffith [2005] HCA 7; (2005) 213 ALR 724, 758 [139] (Kirby J). Gleeson CJ suggested that 'it seems difficult to contemplate that the relevant decision could have been shown to be a decision of the kind referred to in [s 4(b)]': at 731 [24]. Whether a decision is made under a non-statutory scheme would perhaps depend on the first step in the majority's criteria, namely whether the decision is required or authorised by an enactment.

[156] Ibid 758 [140].

[157] [1982] FCA 191; (1982) 43 ALR 25.

[158] Ibid 31–2. See Griffith [2005] HCA 7; (2005) 213 ALR 724, 759–60 [146–7] (Kirby J).

[159] Griffith [2005] HCA 7; (2005) 213 ALR 724, 763 [149].

[160] Higher Education (General Provisions) Act 1993 (Qld) s 8. See ibid, 732 [33].

[161] [2001] NSWCA 360; (2001) 53 NSWLR 299, 313.

[162] [2005] HCA 7; (2005) 213 ALR 724, 729 [18].

[163] Ibid 730 [22].

[164] Ibid 730 [23].

[165] Ibid 747 [96].

[166] Ibid 752 [118].

[167] Griffith University Act 1998 (Qld) s 61. See ibid 725–6 [6], 756 [132]. Note that the issue of a university statute would not be of administrative character and hence not be reviewable under the ADJR Act until a decision has been made under that statute.

[168] Griffith University Act 1998 (Qld) s 62.

[169] Griffith University Act 1998 (Qld) s 61(2)(c).

[170] Griffith University Act 1998 (Qld) s 61(3).

[171] Note that the Higher Education Support Act 2003 (Cth) in s 2(1)(b) recognises that 'universities are established under laws of the Commonwealth, the States and the Territories that empower them to achieve their objectives as autonomous institutions through governing bodies that are responsible for both the university's overall performance and its ongoing independence'. As conditions on Commonwealth funding universities are required to have in place and comply with grievance and review procedures for student complaints on academic matters (ss 19–45) and must comply (under s 16(25)) with National Protocols for Higher Education Approval Processes (first endorsed by the Ministerial Council on Employment, Education, Training and Youth Affairs on 31 March 2000), as in force from time to time, which include the requirement that the university have governance, procedural rules, organisation and admission policies which are sufficient to ensure the integrity of the institution's academic programs (National Protocol 1.14). Note that it is not suggested that these requirements would result in a decision to exclude a PhD student being made under the Higher Education Support Act 2003 (Cth). For a discussion of the history and development of the regulation of universities in Australia see Department of Education, Science and Training, 'Rationalising Responsibility for Higher Education in Australia' (Issues Paper 2004).

[172] Margaret Allars, using justiciability to include the threshold hurdles to access to review discussed here, has commented on NEAT by suggesting:

The reasoning in this confusing and contradictory world of justiciability is premised on an assumption that there exists a category of decisions which are intra vires but not justiciable. Yet the very point of justiciability is to enable it to be established whether or not a decision is intra vires. The assumption permits a penumbra of power to enjoy the protection of some kind of relationship with an enactment, without the lawfulness of its exercise being capable of being tested under the ADJR Act: Allars, above n 45, 139.

I would disagree that the threshold hurdles are appropriately classified as going to justiciability in the sense of whether a decision was within power or not in breach of a ground of review.

[173] For a discussion of whether the decision in Griffith may be reviewed on the basis of the availability of prerogative writs and equitable remedies outside of the ADJR Act context, including a discussion of the applicability of decisions such as R v Panel on Take-overs & Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] 1 QB 815 and cases in Australia that have considered that decision, see Daniel Stewart, 'Non-Statutory Review of Private Decisions by Public Bodies' (2005) 47 AIAL Forum forthcoming.

[174] [1984] HCA 49; (1984) 155 CLR 234.

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