Griffith University V Tang, ‘Under an Enactment’ and Limiting Access to Judicial Review

AuthorDaniel Stewart
Published date01 September 2005
Date01 September 2005
Subject MatterArticle
Daniel Stewart*
The Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJ R Act') provides for
judicial review based on decisions 'to which this Act applies'. Persons aggrieved by 'a
decision to which this Act applies',1 conduct engaged in for the purpose of making a
decision to which this Act applies,2 or a failure to make a decision to which this Act
applies3 are able to apply to the Federal Court4 for an order for review. '[D]ecision to
which this Act applies' is defined as a 'decision of an administrative character, made …
under an enactment'.5 Other similar statutory schemes providing for judicial review
also rely on showing that there was or will be a decision made 'under an enactment'.6
The High Court decision in Griffith University v Tang7 is the most recent to consider the
meaning of this phrase.
* 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) 213 ALR 724 ('Griffith').
526 Federal Law Review Volume 33
The majority in Griffith held that for a decision to be made 'under' a relevant
enactment involves 'two criteria: first, the decision must be expressly or impliedly
required or authorised by the enactment; and, secondly, the decision must itself confer,
alter or otherwise affect legal rights or obligations, and in that sense the decision must
derive from the enactment'.8 A decision by Griffith University, a body corporate
established by Queensland legislation, to exclude a student from its PhD program did
not meet these criteria. As Gummow, Callinan and Heydon JJ stated, there were no
'legal rights and obligations' affected. 'There was at best a consensual relationship, the
continuation of which was dependent upon the presence of mutuality.'9 Griffith
therefore considered when review under the ADJR Act is available against statutory
authorities such as Griffith University. However, questions remain whether statutory
and other limitations on the power of a body to make a decision are reviewable,
whether decisions that only affect interests, legitimate expectations or the conferral of a
benefit are included, and the extent to which the jurisdiction of the ADJR Act is based
on the same limitations as other avenues of judicial review at the Commonwealth
This comment will briefly review the facts of Griffith and the test established by the
majority before examining the lines of authority which are reflected in that test. The
consequence of limiting ADJR Act review of consensual decisions is then considered,
particularly in the context of statutory authorities dependent on public funds. This
comment suggests that limiting review to decisions made 'under an enactment'
requires identifying a statutory basis for any limits or conditions that may be placed on
the decision-making power. To be reviewable, the imposition of conditions on the
authority to make decisions cannot be based on the conduct of the parties or implied
through the effect a decision has on a particular individual. The ability of the court to
examine the broader regulatory framework in which a decision operates may therefore
be restricted, significantly reducing the efficacy of the statutory schemes of judicial
review in question.
Griffith University excluded a student, Ms Tang, from its PhD program because she
had 'falsified or improperly obtained data as if they were the result of laboratory work'
so as to save time and effort.10 She had 'undertaken research without rega rd to ethical
and scientific standards' and thereby engaged in 'academic misconduct'.11 This finding
was made by an Assessment Board, which was a sub-committee of the Research and
Postgraduate Studies Committee, and was agreed with by an Appeals Committee, all
properly constituted bodies acting within the terms of their delegations from the
Griffith University Council. The Council, in turn, had the power to manage the
University's affairs.12 Griffith University, through the Griffith University Act 1998 (Qld),
had all the powers of an individual, including the power to enter into contracts,
acquire and deal with property, fix charges and other terms for services supplied, and
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.

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