Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: applied
Mr O'Neill's decision was not within the expression "decision to which this Act applies" in s 3(1) of the AD(JR) Act because it was not "a decision of an administrative character made ... under an enactment ..." because: it was not a final, ultimate or operative determination, and was therefore not a "decision" for the purposes of the AD(JR) Act ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" ABT v Bond ") at 338); and it was not required or authorised by any enactment, and legal rights or duties do not owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 (" Tang ") at [78] [80]). The Guidelines are not "an enactment" as defined in s 3(1) of the AD(JR) Act, because they are not an instrument made under an Act: the most that can be said is that they were issued by the Commissioner to ATO officers as part of his general administration of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"), s 8 of which provides: "The Commissioner shall have the general administration of this Act". With respect to whether the decision was made under an "instrument", the applicants submit that Tang establishes that the Guidelines are an instrument for the purposes of the AD(JR) Act. The High Court's decision in that case departed from previous authority to the effect that documents issued under a general power of administration could not constitute an instrument under the AD(JR) Act (as an illustration of that previous course of authority they refer to Australian National University v Lewins (1996) 68 FCR 87 (" ANU v Lewins") ). All earlier decisions on the matter must now be understood in light of the High Court's consideration in Tang of the expression "a decision of an administrative character made ... under an enactment". That case concerned a decision of Griffith University, through its relevant committee, to exclude a postgraduate student, Ms Tang, from a program leading to the award of the degree of Doctor of Philosophy. The decision was based on a finding that Ms Tang had engaged in academic misconduct. The relevant admission/exclusion, academic misconduct and appeal processes were the subject of policies adopted by the University Council. The policy documents were similar to the Guidelines in the sense that although the making of them was within the power and mandate of the Council as the University's governing body under the Griffith University Act 1998 (Qld), that Act did not refer, expressly or by implication, to the laying down of the policies. Rather, to do so was in the general power of the University Council as the body having the general functions and powers of management given it by the Act. Ms Tang applied for review of the University's decision under the Judicial Review Act 1991 (Qld). The issue was whether that decision was "a decision of an administrative character made ... under an enactment" a formula borrowed from the AD(JR) Act. The University sought summary dismissal. It failed at first instance in the Supreme Court of Queensland and then before the Queensland Court of Appeal. The High Court, however, by a 4:1 majority, allowed the University's appeal. Two judgments were delivered by the Judges constituting the majority, one by Gleeson CJ and the other by Gummow, Callinan and Heydon JJ ("joint judgment"). In their joint judgment in Tang , Gummow, Callinan and Heydon JJ pointed (at [60]) to dangers in looking at the expression "a decision of an administrative character made ... under an enactment" otherwise than as a whole. Their Honours quoted the following passage from Aronson MI, Dyer BD, Groves M, Judicial Review of Administrative Action (3 rd ed, Lawbook Co, 2004) pp 73-74 (footnotes omitted): The recent trend is to treat decisions which can find no other statutory source of authority than such a clause [giving power or even a duty to administer an Act and to do all things necessary in that regard] as not being made under an enactment for ADJR purposes, although there has been scant attempt to identify why that approach should be adopted as a matter of principle. (Original emphasis.) Their Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]): Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154] ? To adapt what was said by Lehane J in Lewins [ ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [ General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 169]. Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations. Gummow, Callinan and Heydon JJ did not see it as an obstacle to their view the fact that the terms of the policy and other circumstances may well have created an expectation in Ms Tang that any withdrawal from her PhD candidature would only follow upon the fair treatment of complaints against her. Their Honours said (at [92]) that such an expectation would not create in Ms Tang any substantive rights under the general law, which would render the decision she challenged a decision made under the University's Act. A similar observation is to be made in relation to the Guidelines. They are calculated to create an expectation that they will be adhered to by the Commissioner. However, that expectation does not convert a non-reviewable decision into a reviewable one. The following summary paragraph (at [96] of the joint judgment in Tang ) concludes their Honours' discussion of the issues and immediately precedes their discussion of the orders to be made: 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 Review Act. 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. This passage applies, mutatis mutandis, to the Guidelines and to Mr O'Neill's decision under them. I turn now to consider other authorities to which I was referred. In Tang , Gummow, Callinan and Heydon JJ described (at [84]) as a "sound ground" of non-reviewability, Black CJ's reference to the Commissioner's voting decision as one that was not given statutory effect by s 8 of the ITAA. For the reasons given above, the application is incompetent in so far as it relies on the AD(JR) Act. Sections 39B(1) and (1A) of the Judiciary Act In this case the jurisdictional question under s 39B(1) is whether the proceeding is a matter in which certiorari or an injunction is sought against an officer of the Commonwealth. It is not suggested that the Commissioner and Mr O'Neill (an Assistant Commissioner of Taxation) are not such officers. The applicants seek an order quashing or setting aside Mr O'Neill's decision and an injunction restraining the respondents "from seeking access to" Documents 226 to 238. The Court therefore has jurisdiction under s 39B(1) of the Judiciary Act . The question that remains in relation to s 39B(1) is whether the applicants have no reasonable prospect of successfully prosecuting the proceeding (ie gaining the order and injunction they seek). In the present state of the evidence and exploration of the legal issues involved, I am not persuaded that they have no reasonable prospects of success of doing so. Evidence has not been filed.