Case: Griffith University v Tang [2005] HCA 7 ; (2005) 213 ALR 724
Outcome: cited
The Authority submitted next that a similar conclusion to that which it advocated here was reached by an application of the principles stated by the High Court in Griffith University v Tang [2005] HCA 7 ; (2005) 213 ALR 724. The issue there arising was whether the decision of a university to exclude a candidate for a doctorate of philosophy on account of academic misconduct was made under an enactment. In a majority finding to the contrary of that candidate's complaint, the following appears at [89] in the joint reasons for judgment of Gummow, Callinan and Heydon JJ to the negative of that proposition (their Honours' emphasis appears in non-italics): '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.' Purportedly in the light of that dicta , the Authority contended that its '... decision not to entertain [WAL's] request, however it be characterised, did not confer, alter or otherwise affect legal rights', but '... left them precisely as they were before the applicants requested the [Authority] to exercise its non-compellable discretionary power'. Even if that analysis of the Authority be correct in terms of the present circumstances of either one or both of the applicants, notwithstanding implications flowing historically from their enjoyment of transmission from the Tingalpa site, it is an analysis which in any event appears to fall short of the foregoing dicta in Griffith University that '... it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise'. I would add that counsel for the Authority conceded during the hearing that Griffith University would be of no assistance to him if I were to find that the Authority had in fact exercised its power under s 111 , as opposed to merely declining to do so. At least the Authority's communications with the applicants in 2004 point to the former of those propositions as being the case, as do the Authority's file notes of the same year, as is I think sufficiently apparent from what I have earlier extracted therefrom. 51 The submissions of the respondent Authority sought to conclude that '[f]or all of these reasons, the decision of the [Authority's] officers was not a decision under an enactment', and was '... not, therefore, a decision to which the [ADJR Act] applies ... [and] [s]imilarly, the lawfulness of the decision is not a matter arising under a law of the Parliament if it were made under a non-legislative policy'. The Authority did not elaborate on that latter submission. However it is clear that it was predicated on the Authority's construction of its decision that was contended by the applicants to be 'highly technical' and 'prefer[ring] form over substance, contrary to the remedial character of the ADJR Act'. In essence, as I have foreshadowed already, the respondent Authority contended that the 'decision' was nothing more than the refusal of its own officers to consider whether to exercise the Authority's power under s 111 of the Act, that determination having been made by the relevant officers by reference to the policies of the Authority encapsulated in NAS PIP and NAS BOP.