Griffith University v Tang

What happened?

Ms Tang was excluded from Griffith University's PhD programme for "academic misconduct" — undertaking research "without regard to ethical and scientific standards". The finding was made by an Assessment Board, a sub-committee of the University's Research and Postgraduate Studies Committee, and an internal Appeals Committee dismissed her appeal. She sought review under 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 at both levels ([1]).

What did the Court decide?

The University's appeal was allowed and the application for review dismissed. The majority (Gummow, Callinan and Heydon JJ) set out two criteria for a decision "made ... under an enactment": it "must be expressly or impliedly required or authorised by the enactment", and it "must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment" ([89]).

The first criterion was satisfied here and the second was not. The decisions "were authorised, albeit not required, by the University Act" — the committees owed their existence and powers to a delegation under that Act — but they "did not affect legal rights and obligations" and "had no impact upon matters to which the University Act gave legal force and effect" ([96]). Nor was there a private-law footing: between Ms Tang and the University there subsisted "at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality" ([91]).

Two qualifications travel with the second criterion and are easy to miss: the decision need not affect existing rights, since it is enough that new rights or obligations arise from it, and the rights affected need not owe their existence to the enactment — rights derived from the general law or from another statute will do ([89]).

Kirby J dissented.

Why does this case matter?

Look at what went untested. Ms Tang alleged denial of natural justice, breach of mandatory procedures, improper purpose and error of law, at two internal levels, in a process that ended her doctorate. As Kirby J recorded, her claim for relief and her contentions on the merits "have never been tried", and would not be ([105]). The case was decided at the threshold, and the threshold question is not about the quality of the decision — a perfectly sound process and an outrageous one fail or pass it alike.

Kirby J thought that a mistake worth naming. He called it the second time in under two years that the Court had taken "an unduly narrow approach to the availability of statutory judicial review directed to the deployment of public power", following NEAT Domestic Trading Pty Ltd v AWB Ltd, and described the result as eroding "one of the most important Australian legal reforms of the last century" ([99]–[100]). You do not have to agree with him to need him: a dissent that identifies what the majority's line costs is the fastest way to see where the line actually runs.

Exam and application relevance

Take the criteria in order and do not stop at the first. Most statutory bodies clear it easily, and an answer that establishes authorisation and then concludes reviewability has done the easy half of Tang and skipped the half that decided it. For the second, the question is not merely whether rights were affected but whether the enactment is what gave the decision the power to affect them — "are legal rights and obligations affected not under the general law but by virtue of the statute?" ([80]). The rights themselves may come from the general law or another statute, and may be created by the decision, but an expectation, an opportunity, or a consensual arrangement either side could end is not a legal right at all. If the relationship is contractual, say so — a decision that binds because the contract says it binds is not made under the enactment.

Check your understanding

The University Act authorised the committees that excluded Ms Tang, and they followed a delegation made under it. Why was the decision still not "made under" that Act?