06 Jun 2005

High Court raises bar on the ADJR reviewable decision

by Caroline Bush

To be reviewable under the ADJR Act, a Commonwealth administrative decision must affect legal rights and obligations, as well as being either required or authorised by an enactment.

Decision-makers are used to the idea that their decisions may be subject to review by a Court, but they might not understand the circumstances in which their decisions cannot be reviewed at all.

The Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") provides a statutory regime for the review of decisions. A recent decision by the High Court, Griffith University v Tang [2005] HCA 7 (3 March 2005), has considered the question of when a decision is reviewable under the ADJR Act, and it seems, added a new criterion to the test.

Although the Court’s decision concerns a decision that was reviewed under Queensland’s Judicial Review Act, the decision has implications for decisions made in the Commonwealth arena. This is because the limits in the Queensland Act as to when a decision is reviewable are the same as those set out in the ADJR Act. As a consequence, in its decision, the High Court reviewed the case law on the ADJR Act, and its analysis in this new decision will be relevant for future courts applying the ADJR Act.

Importantly, this decision does not affect the availability of other forms of judicial review, such as the prerogative writs in section 75 of the Constitution or their equivalents at state level.

What was the decision?

Ms Tang was enrolled in a PhD program at Griffith University. After an inquiry by a university committee which found she had engaged in academic misconduct (fabrication of experiment results), she was excluded from her course. An appeal to another university committee was unsuccessful.

She sought judicial review under the Queensland Judicial Review Act 1991 of the decision to exclude her, based on various deficiencies in the process by which she was excluded.

Was it even a reviewable decision?

The central issue in this case was whether the University’s decision was susceptible to judicial review under the ADJR Act.

In Queensland, section 4 of the Judicial Review Act 1991 states that a reviewable decision is "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". This test is based on the Commonwealth’s ADJR Act, so the cases on the ADJR are relevant to the interpretation of the Queensland Act. In this case, Ms Tang pointed to the Griffith University Act 1998 (under which the University was established) as the "enactment" under which the decision to exclude her was made.

The definition of a reviewable decision has three parts, and it is tempting to separate them out. The High Court has indicated that the definition should be looked at as a whole, remembering that the elements of the definition are interrelated. The definition requires that to be reviewable, the decision must be:

  1. of an administrative character;
  2. final or operative and determinative; and
  3. made under an enactment.

In this case, the High Court was concerned only with the third element of the definition of a reviewable decision, namely, whether the decision to exclude Ms Tang was a decision "made under an enactment".

Having stated the issues, the Court then considered the tests that had emerged over the past 25 years to determine when a decisions is of "an administrative character made under an enactment". It stated that in its view, it was not appropriate to ask, when determining whether a decision was made under an enactment, whether the decision was something anyone in the community could do and was only facilitated by the enactment, or whether it required specific statutory authority.

So, what is the proper construction?

How to determine whether a decision can be reviewed

The majority of the High Court determined that a decision must have the following two characteristics to be a decision "made under an enactment":

  1. Requirement or authority: the decision must be either required or authorised by the enactment. This requirement or authority may appear sufficiently as a matter of necessary implication.
  2. It must affect legal rights or obligations: the decision must, of itself, confer, alter or otherwise affect legal rights or obligations, in the sense that the decision must derive its capacity to affect legal rights and obligations from the enactment. The crucial question is whether legal rights or duties owe their existence, in an immediate sense, to the decision, or depend upon the presence of the decision for their enforcement.

If the decision derives its capacity to bind from contract or some other private law source, then the decision is not "made under" the enactment in question.

So, for example, if a statutory body is granted the bare capacity to contract, that grant, by itself, does not affect the legal rights and obligations of contracting parties. The power to affect another party’s legal rights and obligations in this case derives not from the enactment, but from the contract that exists between the statutory body and the other party. That contract is the source of the rights and obligations between the parties.

Why the decision in this case couldn’t be reviewed

The decision to exclude Ms Tang was authorised, albeit not required, by the Griffith University Act, because the university committees which had made the relevant decisions had come into existence and received their powers from the Council, which is turn was allowed to delegate those powers by sections 6 and 11 of the Griffith University Act. That fact, by itself, was not sufficient to determine that the decisions were "made under" the Act in the relevant sense.

Crucially, the majority determined that there had subsisted, between Ms Tang and the University, no legal rights and obligations under private law which were susceptible of affection by the decisions in questions. There was, at best, a consensual relationship, the continuation of which was dependant upon the presence of mutuality.

An alternative view

Justice Kirby saw things differently. For him, the imposition of a requirement to demonstrate that legal rights and obligations were effected by a decision was an unacceptable "gloss" on the beneficial and facultative terms of the Judicial Review Act. It defeated the attainment of important reformatory purposes of the Act and was incompatible with the express provision of the Act affording remedies to those whose "interests" are adversely affected by the challenged decision.

He considered that the suggestion that a candidate for admission to a higher degree has no "interests" affected by a finding of academic misconduct, exclusion from the university, removal from the prospect of a degree and with a permanent or long term blight on any chances of academic advancement and termination of career progression is, self evidently, unrealistic.

... and how future cases might be affected

Justice Kirby called the decision "an erosion of one of the most important Australian legal reforms of the last century", and it is true that the decision sets out a new requirement that applicants for judicial review will have to meet. However, it may be possible to read too much into this result.

Overall, the result might not have much practical effect on the way Commonwealth decision-makers make their decisions. This is because the ADJR Act is not the only route for those unhappy with a Government decision.

The High Court was very careful to point out that there are other means of review at Commonwealth and State level, none of which is affected by this decision.

So, for example, in Queensland the Judicial Review Act not only establishes a statutory review method modelled on the Commonwealth system, but it also reforms and preserves the jurisdiction of the Supreme Court to provide remedies in the nature of those of the prerogative writs of mandamus, prohibition or certiorari.

At the Commonwealth level, section 75(v) of the Constitution gives the High Court the power to grant the prerogative writs (mandamus, prohibition and certiorari) against an officer of the Commonwealth.

In addition, at both levels claims can still be brought in general law, such as tort or contract.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.