Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: considered
In Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 (' Tang '), the issue was whether a decision by Griffith University to exclude a post-graduate student from further participation in its PhD degree program was a decision under the Griffith University Act 1998 (Qld) ('University Act'). The excluded student sought judicial review under the Judicial Review Act 1991 (Qld) which is relevantly identical to the ADJR Act: see Tang at 105 [3] per Gleeson CJ, and 119 [49] per Gummow, Callinan and Heydon JJ. It was not disputed that the university's powers to formulate the terms and conditions of the applicant's PhD candidature, to decide to enter into a relationship with the applicant in respect of that candidature, and to decide to end it were conferred in general terms by the University Act. A majority of the Court, comprising Gleeson CJ, Gummow, Callinan and Heydon JJ, held that the decision was not reviewable because it was not a decision of an administrative character under an enactment. Kirby J dissented. 171 In their joint judgment, Gummow, Callinan and Heydon JJ said at 130-131 [89]: 'The determination of whether a decision is "made ... under an 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. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.' 172 Applying these principles, Gummow, Callinan and Heydon JJ concluded at 132-133 [96]: 'The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were "made under" the University Act in the sense required to make them reviewable under the [Judicial Review Act 1991]. 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. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former.' 173 Gleeson CJ reached the same conclusion. In his Honour's view, the critical consideration was that the university's decision to end the applicant's PhD candidature was not given legal force or effect by the University Act: at 112 [23] 174 In my opinion, the Commissioner's rulings that he has an ancillary or incidental power under the RCA to determine whether or not the claim for legal professional privilege was established, and that legal professional privilege does not attach to Exhibit 665, are not given legal force or effect by the RCA. It follows that these rulings are not amenable to the review under the ADJR Act.