Facts
Judicial Review Act 1991 is the act which is being related to the review on law question of some administrative decisions and reforming procedures related to the judicial review at the common law. In this act, certiorari order is referred to as an order in which the remedy or relief is considered to be the same in nature and effect. The competitive commercial activity in this act means an activity which is being carried out on the commercial basis and in competition with an individual other than the commonwealth or territory or state, state authority and local government authority. The act can be applied to the following decision:
- A decision of the administrative character required to be carried out proposed to be carried out or carried out under the enactment.
- A decision of the administrative character proposed to be made or made by employee or officer under the program which involves funds or non-statutory program or scheme.
Making a decision under this act is based on the following situations:
- Suspending, making, refusing or revoking an order.
- Suspending, giving, refusing or revoking to provide a certificate, approval, direction, permission or consent.
- Suspending, issuing, refusing or revoking to issue an authority, license another instrument.
- Imposing a restriction or condition
- Making a demand or declaration
- Refusing or retaining to provide an article
- Refusing or doing to do anything else
The judicial review is being carried out on some of the grounds that are as follows:
- The decision maker has breached the laws of natural justice.
- The decision maker was not able to examine the correct legal process.
- The decision maker has no authority to make the decision.
- The legislation did not authorize the decision and it was purported made under the law.
- The decision consists of inappropriate use of power.
- The decision consists of an error of law.
- The decision may be or is tainted by fraud.
- There was no other material or evidence supporting the decision.
- The decision was depicted to be unlawful.
According to the Judicial Review Act 1991, prerogative writs of certiorari, prohibition or mandamus are not being issued by court.
Facts
The Griffth University of Queensland had excluded Vivian Tang from her PhD candidature that affected her career as a scientist. It is being depicted that the student has appealed to the Supreme Court of Queensland for reviewing the decision of the University. The appeal was being accepted by the court and the question raised whether the decision of excluding Tand was carried out as per the Judicial Review Act 1991. The University stated that Tang had improperly or falsified the obtained data for carrying out the laboratory work in order to save effort and time. The research undertaken by the student was not as per the scientific and ethical standards. Thus, the act was considered to be academic misconduct. The council has the power of managing the affairs of the University. Tang challenged the decision of excluding her based on different breaches of the natural justice consisting of the decision maker as a judge and prosecutor. The student claimed that there was a failure of observing the procedure needed by different sections of the errors of law, evidence absence, policy or other materials for justifying decision and inappropriate exercising the power granted by the enactment.
Reviewing the decision
The issue of the case is whether the decision of the University was amenable under the ADJR Act to judicial review. Under Judicial Act 1991, the judicial review explains that a reviewable decision is considered to be the decision made, needed to be made or proposed to be made by an administrative character under an enactment. The test relies on the ADJR Act of Commonwealth and the ADJR cases are relevant to the examination of the Queensland Act. Tang was considered to be enactment as per the Griffith University Act 1988 under which the decision of excluding her was taken. The reviewable decision consisted of three parts which need to be examined. The situation depicts that the University was carried out an appropriate decision because the student breaks the rules and regulation of the University.
Reviewing the decision
The High Court is responsible for examining the case on the basis of the elements of the definition. The definition needs that the decision should be of the administrative character, operative or final and determinative and carried out under an enactment. High Court was depicted to be only concerned with the definitions’ third elements of reviewable decision. The High Court carried out a test which assisted to identify whether the decision of the administrative character is carried out under the enactment. It is considered to be appropriate for asking whether the decision was carried out under the enactment of the decision was important for an individual within the community and required any particular statutory authority.
Analysis of the relationship
Tang was being excluded by the University because she had falsified or inappropriately obtained data in her laboratory work for saving effort and time. The assessment board, postgraduate and research committee was agreed with the decision taken by the University. The council had the power of managing the affairs of the University. Under Griffth University Act 1998, the University had the powers which consisted of power of entering a contract, dealing and acquiring property, service terms, fix charges and do convenient or necessary things associated with its roles. The main role of the University consisted of providing education, facilities to encourage research and study, providing instruction and courses and also give awards to the students in the higher education. The University’s council can also make statues of the University with the position of the subordinate legislations about the matters consisting of the entitlement to the degrees, punishing the students and admission of the students. It depicts the contractual relationship between the the students and University. The consensual relationships can also be seen between the University and the student.
The decision taken by the University is considered to be amenable as per the order in the nature of the certiorari. The University can claim that the council has the right to take actions against the students under the Griffth University Act 1998. Other boards and committees also supported the action taken by the council. Apart from this, the contractual relationship also shows that the students have to follow the rules and regulations implemented by the management of the University. The actions taken by the University is considered to be appropriate and ethical as per the law. The decision taken by the University was based on the Queensland legislation which depicted that the exclusion of the student did not meet the criteria. The consensual relationship can be found on basis of the continued dependence on the presence of the mutuality. Under the ADJR Act, the review was carried out against the statutory authorities of the University. The questions raised whether the statutory decision needs to be reviewed and whether the decisions affected the interests, conferral of the benefit are consisted or legitimate expectations.
Analysis of the relationship
The result of restraining the ADJR Act for the consensual decision needs to be included, especially in statutory authority’s context reliant on public funds. It was stated that restraining review of decisions carried out under the enactment needs determining a statutory base for any conditions or limits that can be replaced on the decision making power. The obligation of terms on authority for making decisions is not relied on the behaviour of parties. The ability of court for examining the regulatory frameworks in which the decisions works can be restricted decreases the efficiency of statutory schemes in the question of the judicial review. The invalidity of the taken actions without complying with the procedures relies on the examination of the legislative intent and the limited capacity affects the interests and rights which need to be taken into account. The requirement conditions for entering into the contract or regulating the process by not getting invalidity results inconsistent with the objective of the legislative provisions. The invalidity within the contract does not affect necessarily obligations and rights just like the University.
The decisions of entering into a contract or validity of a contract do not alter the rule that the parties involved in the contract are bound only through the enforcing ability of the contract but also by the statue. Under the enactment, it is considered to be the potential impact of the decision and not the impact of the enforcing conditions under which the decision was taken. The consensual character of the effect on individual obligation and rights is not altered by creating restrictions on the abilities of decision makers for entering into an effective relationship. The court has the right to consider the questions of contract validity entered into by the statutory corporations as per the Judiciary Act 1903. The relationship between student and University was relied on mutual assent and not any classified legal relationships. If Tang and the University had been in the contractual agreement then the issue will arise whether the decision of excluding her will alter the contractual rights through the legislation power or it was just a use of the contractual rights with the application of contract law for addressing the breach. The parties accepted that there was no foundation of contractual relationship between the student and the University.
‘Under an enactment’ plays a significant role in ensuring that the Commonwealth statute limits the decision making power. The conditions imposition on the authority for making the decisions does not rely on the conduct of the parties. The law implemented by the University explains that all the members and students have to accept the policies. The natural justice obligation is being applied through the consensual relationship between the parties and the court can accept the natural justice which can be applied to the contractual relationship. The existences of the justice obligation do not provide any source of indication which is not adequate for reviewing under the ADJR Act. It is being determined that there is a difference between making expectations about exercising power by the privates and creating expectations about exercising power that affects obligations and rights. The policy that restricts the situations which the legal obligation or right would be affected can create natural justice obligation. The consensual relationship between the student and University shows that there was no basis on which the natural justice obligation can arise. The issue with consensual was to explain the relationships between the student and University depicting that the misconduct carried out by the student.
Available remedies
Available remedies
The University has the right the right to claim that the students have to follow the rules and regulations implemented as per the Griffth University Act 1998. The decision of the University is considered to be amenable on the basis of the consensual and contractual relationship. The student carried out academic misconduct within the University. The judicial review remedies are available that are common law remedies and statutory remedies. The power of Supreme Court in respect to the application for reviewing statutory orders under point 3 of Judicial Review Act 1991 is set out in section 30 of act. Thus, the court can make all or any of the orders as per the decision was taken:
- Setting aside or quashing the decision
- Referring the matter to an individual who carried out the decision for taking into consideration such as making preparatory steps and increasing the time limits
- Declaring or explaining the rights of the parties
- Directing the parties for not to do or do things that the court should consider for making justice to the parties.
Under the common law principle, if the application is successful then the court in its discretion can provide a remedy for solving the issue. The remedies that are being available for the University are as follows:
- Declaration: The court can give a formal statement stating that the decision or action is unlawful or lawful. It is not the disrespect of court to defy or ignore a declaration but government ordinarily would comply with the terms and conditions of the declaration.
- Injunction: It is an order that is to be taken or done or an administrative body refrain or ceases from carrying out the act. In administrative law, most of the injunctions are in the form of prohibitive. An injunction, unlike the declaration, has the coercive effect and disrespect of court for disobeying the injunction.
- Mandamus: The court can give order stating that the administrative body should carry out its activities in an appropriate manner.
- Certiorari: The order that was given and the decision were being made unlawfully.
- Prohibition: The order requires a body of ceasing the proceedings which is due to the lack of appropriate jurisdiction or exercising the jurisdiction inappropriately. The remedy is considered to be appropriate when the proceedings are completed partly and restricts the body to proceed in making a decision.
The case examined on the basis of the case such as “Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355”, Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. The consensual relationship between the University and the student depicted that the committees had supported the action taken by the student as per the law. The contractual relationship depicted that the rules created and implemented by the University need to be followed by the students in an appropriate manner. The council of the University has the right to take actions against the students who have carried out academic misconduct. The Supreme Court under the Judicial Review act cannot issue prerogative writs rather can make the prerogative orders that are identical in effect. When a person under point five of the Judicial Review Act makes an application to carry out the review process then the Supreme Court can grant a declaration or injunction or a prerogative order in nature of prohibition or certiorari order as per the section 47 of Judicial Review Act. The court is allowed to consider flexibility about what remedy would be appropriate on the basis of the situation of the case as per section 47.
The certiorari under the common law deprives or quashes legal effect for a decision taken which is unlawful or invalid. The prohibition under the common law prevents illegal administrative decisions or acts. The Mandamus under the common law requires that the performance should be carried out as per the needs of the people. The errors of law need to be corrected under certiorari and the decision should have some apparent or discernible legal effect. The prohibition states that the decision maker is restricted to exceed its jurisdiction. The power is considered to be discretionary and the court cannot state the decision maker for making a specific decision. The declaration directs the decision maker by explaining what should not or should be done for a power which needs to be exercised lawfully. Injunctions direct which actions need to be carried out and which should not be.
The remedies are not associated with the errors of law and jurisdictional error but it is to be based on the situation of the case. The statutory and common law remedies are considered to be discretionary. The court has the right to carry out its discretion for not granting the remedy in many situations which consists of bad faith, waiver, unreasonable delay, the futility of the remedy and existence of more satisfactory and convenient remedy. The understanding of the remedies will assist to carry out the case in an appropriate manner. The University has to prove that the decision and actions taken by the management are not considered to be an unlawful act. The decision was taken on the basis of the rules and regulations implemented within the University. The decision was also taken for the welfare of the students and the activities carried out by Tang is considered to be illegal.
The Griff University and Tang would have settled ‘under an enactment’ phrase in order to solve the issue but the case would not have provided satisfactory outcomes. The statutory purpose and intent of AIDR Act main aim were to increase access and accountability of reviewing but the decision was carried out in the opposite direction. The test of the criteria was being supported by the majority of people which increased the threshold but the applicants should satisfy before accessing the statutory reviews. The students like Tang challenging the University’s decision ‘under an enactment’ should turn to other aspects of the review. The University carried out grievance procedures by laws or into the statutes in order to review and available remedies. The University has the right to implement rules and regulations as per the Griffth University Act 1998 .
The Judicial Review Act 1991 states that remedies are available if the review is being carried out in an appropriate manner. The University has to use the Judicial Review Act 1991 in order to ensure that the actions were taken on the basis of the rules and regulations and for the welfare of the students. The decision should be either authorized or required by the enactment. The authority or requirement can appear sufficient as the subject of the necessary implication. The decision should confer, itself, or alter the effect of legal obligations or rights from the enactment. It is is not determined whether the legal duties or rights in an immediate situation owe their existence. If the decision obtains its capacity for binding from the contract then the decision would not be carried out under the enactment.
The decision of excluding Tang was not required but authorized by the management of Griffith University. The council of the University had carried out the decisions that came into existence and powers was obtained from the legal rules and regulations implemented within the University. It was being determined that the University and Tang have no legal obligations and rights under the private law where the risk of taking the decision was raised. The best scenario would have been developing the consensual relationship in which the continuation relied on the presence of the mutuality. It is being determined that the decision carried out on the basis of the new requirement for the judicial review need to be fulfilled by the applicants. The result from the case would not be seen to be affected practically on the way the decisions are taken by the decision makers. The main reason behind it is that the ADJR Act is not considered to be the only way for the people who are not happy with the decision taken by the government.
The high court in each and every case is very much careful in pointing that there are other ways of reviewing at the state and Commonwealth level and none of the applicants is being affected by the decision. The Judicial Review Act in the country has not established the statutory review technique structured on the Commonwealth framework but also preserves and reforms the decision taken by the Supreme Court for providing remedies in nature of prerogative writs of prohibition, certiorari and mandamus. Section 75 of the constitution at the Commonwealth level provides power to the high court for granting the prerogative writs against the officer of the Commonwealth. Universities are being developed for meeting the needs of the people. The services are provided for achieving both societal and individual benefit. It is important to provide qualifications that are depended on several accreditation forms. There can be many alternative bases for the judicial review for the decision taken by the University such as excluding the student is not depended on the legislation in order to found the jurisdiction of the court. Majority of people made clear that there is not enough for establishing that there are requirements or restrictions placed on making the decision through operations of different review grounds. The court should distinguish different restrictions sources in order to provide an appropriate basis for the judicial review. The University has the right to review the jurisdiction because the student did not follow the legal and ethical rules of the University. The relationships also depicted that the student should have followed the rules in an appropriate manner.
References
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Austlii, Not Making A Difference: Queensland’s Extension Of Statutory Review (2016) Classic.austlii.edu.au <https://classic.austlii.edu.au/au/journals/AIAdminLawF/2016/17.pdf>
Bush, Caroline, High Court Raises Bar On The ADJR Reviewable Decision – Knowledge – Clayton Utz (2005) Claytonutz.com <https://www.claytonutz.com/knowledge/2005/june/high-court-raises-bar-on-the-adjr-reviewable-decision>
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Groves, Matthew, Should We Follow The Gospel Of The Administrative Decisions (Judicial Review) Act 1977 (CTH)? (2005) Law.unimelb.edu.au <https://law.unimelb.edu.au/__data/assets/pdf_file/0019/1703530/34_3_3.pdf>
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