Lewins, Frank William v Australian National University [1995] FCA 935

CATCHWORDS

ADMINISTRATIVE LAW - reasons for decision - Australian National University - decision not to promote staff member - whether decision made under an instrument made under an enactment - ss 3, 13 Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977 ss 3, 13; sub-s 13(1), 13(2), 13(4), 13(4A), 13(11)

Australian National University Act 1991 ss 5, 6, 8, 9, 25, 50, 53 et seq; sub-s 6(1); para 5(1)(a)

Judiciary Act 1903 s 39B

Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321

Australian Film Commission v. Mabey (1985) 6 F.C.R. 107

Australian National Airlines Commission v. Newman (1987) 162 C.L.R. 466

Australian National University v. Burns (1982) 43 A.L.R. 25

C.E.A. Technologies Pty. Ltd. v. Civil Aviation Authority (1994) 51 F.C.R. 329

Chittick v. Ackland (1984) 1 F.C.R. 254

Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 A.C. 375

Federal Airports Corporation v. Makucha Developments Pty. Ltd. (1993) 115 A.L.R. 679

General Newspapers Pty. Ltd. v. Telstra Corporation (1993) 45 F.C.R. 164

Mair v. Bartholomew (1991) 104 A.L.R. 537

FRANK WILLIAM LEWINS V. AUSTRALIAN NATIONAL UNIVERSITY

ACT G17 OF 1995

LEE J.

PERTH

17 NOVEMBER 1995

IN THE FEDERAL COURT )

OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY )

DISTRICT REGISTRY )

GENERAL DIVISION ) NO. ACT G17 OF 1995

B E T W E E N: FRANK WILLIAM LEWINS

Applicant

and

AUSTRALIAN NATIONAL

UNIVERSITY

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: LEE J.

DATE OF ORDER: 17 NOVEMBER 1995

WHERE MADE: PERTH

THE COURT ORDERS AND DECLARES THAT:

1. The applicant was entitled under sub-s.13(1) of the Administrative Decisions (Judicial Review) Act 1977 to request the respondent furnish to the applicant a statement of the reasons for its decision not to promote the applicant to the position of Reader.

2. The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )

OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY )

DISTRICT REGISTRY )

GENERAL DIVISION ) NO. ACT G17 OF 1995

B E T W E E N: FRANK WILLIAM LEWINS

Applicant

and

AUSTRALIAN NATIONAL

UNIVERSITY

Respondent

CORAM: LEE J.

DATE : 17 NOVEMBER 1995

PLACE: PERTH

REASONS FOR JUDGMENT

The applicant was appointed by the Australian National University ("the University") to the position of Lecturer in January 1978 for an unspecified term but not more than three years. In January 1980 the tenure of the applicant's appointment was extended until he reached the age of 65 years. The applicant was promoted to Senior Lecturer in January 1985. In 1994 he applied to the University to be promoted to the position of Reader. That application was unsuccessful and pursuant to sub-s.13(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the A.D.J.R. Act") the applicant requested the University to furnish reasons for its decision. By these proceedings the applicant seeks a declaratory order, under sub-s.13(4A) of the A.D.J.R. Act, that he is entitled to make that request.

The University was established under the Australian National University Act 1946. That Act was repealed by the Australian National University Act 1991 ("the A.N.U. Act"). Under the A.N.U. Act the University was continued in existence under the same name and it is implied in the consequential and transitional provisions of the A.N.U. Act (s.53 et seq.) that the contracts of employment made between the University and its academic staff before the repeal continued in the same terms.

The terms of the applicant's appointment were set out in a letter from the University to the applicant dated 22 November 1977. The letter incorporated standard conditions of appointment for lecturers ("the standard conditions") published by the University. When the applicant was granted permanent tenure and promoted from the position of Lecturer to Senior Lecturer the terms and conditions of appointment set out in the original letter of appointment continued to apply.

The letter of appointment also contained the following paragraph and the enclosures referred to therein:

"Statements on reappointment procedures (673/1976), procedures and guiding principles on promotions (633/1975), and study leave rules are attached."

The standard conditions stated that the initial term of appointment of a lecturer was for a period not exceeding three years but the University had a discretion to "re-appoint" on permanent tenure. The standard conditions also stated that the University may grant study leave. The "statement on re-appointment procedures" and the "study leave rules" were not in the materials submitted to the Court but it may be assumed that they were documents which explained how, or in what circumstances, the respective discretions referred to in the standard conditions would be exercised. Neither the letter nor the standard conditions contained any term relating to promotion.

The reference in the letter to a statement of procedures and guiding principles on promotions must be read as notice to the applicant of the existing policy of the University in respect of the promotion of staff. From time to time after the commencement of the applicant's employment the University varied and re-issued that statement of procedures and principles on promotions. No part of the letter, or the standard conditions, incorporates that statement as part of the terms of the employment contract binding upon, and enforceable by, the parties to the contract. It could be said, however, that although there was not a contractual term to that effect there was an expectation by the contracting parties that the University would maintain a scheme of promotion for its academic staff and that the applicant would be able to participate in that scheme according to the terms of the scheme as determined and published by the University from time to time.

In February 1994 the University published a revised statement of policy entitled "Statement of Policy Procedures for Promotion to Academic Level D (Reader)" ("the Statement"). The relevant parts of the Statement read as follows:

"1. ANNUAL PROCEDURES

1.1 In March, the Assistant Secretary, Appointments and Academic Staffing notifies the deans and heads of centres and the Deputy Chair of the Institute of the Arts of the procedures contained in this paper and invites eligible staff to apply.

1.2 Faculties send their recommendations for promotion to the Assistant Secretary, Appointments and Academic Staffing no later than 1 July.

1.3 The Promotions Committee submits its recommendations to a meeting of the Board of The Faculties no later than November.

1.4 Individual cases may be considered at any time if the dean and the Pro Vice-Chancellor and Chair, Board of The Faculties believe this to be warranted.

...

3. CRITERIA FOR PROMOTION TO ACADEMIC LEVEL D (READER)

3.1 General

Applications will be assessed on:

. Teaching

. Scholarship including research, scholarly professional practice, visual and performing arts professional practice

. Administration

. Community and outreach activities

Promotion to level D is a recognition of outstanding performance according to the Board's criteria. There should be strong evidence of notable and continuing achievement in both scholarship and teaching.

When applying the criteria for promotion, the committees will take into account the statements of
general standard, duties and skillbase described in the level D research-and-teaching Position Classification Standards. A high level of performance in those responsibilities set out in the Position Classification Standards for level C will be expected.

Attachment A: Record of activity, lists examples of the kind of information which may be included in support of an application.

3.2 Teaching

This criterion is concerned with the facilitation and management of learning. In this context teaching itself is an exercise in scholarship, in which the teacher not only transmits knowledge but often transforms and extends it. When teaching is the major ground relied upon evidence that the candidate's teaching is characterised by exceptional dedication, scholarship, creativity and stimulus is required.

Teaching achievements may include:

. curriculum development and implementation

. preparation of course and subject materials

. stimulation of student learning and interest in the discipline

. supervision and guidance of both undergraduate and postgraduate students

. evaluation of courses and teaching

. assisting others in the facilitation and management of learning

3.3 Scholarship, including research, scholarly professional practice and visual and performing arts professional practice

Scholarship may take the form of extending the boundaries of knowledge, integrating knowledge or applying knowledge. Promotion to level D recognises high academic distinction acknowledged by scholarly repute. There should be evidence of independent originality in significant fields of endeavour on which the verdict of peers has been favourable expressed.

Achievements may include:

. scholarly activity including research which results in a form of publication which allows assessment of standard

. practice in a profession which is recognised by peers in that profession as having made a significant contribution to the academic discipline which underpins the profession

. visual and performing arts professional practice recognised by peer assessment as having made a significant contribution to the discipline

. professional consultancy activities which contribute to scholarship in a discipline or professional field

3.4 Administration

Evidence may include:

. demonstrated contribution to department/faculty/institutional activities and acceptance of high level administrative responsibilities

3.5 Community and outreach activities

Evidence of;

. activities extending beyond the University relating to the candidate's profession or discipline which reflect favourably on the University

3.6 Weightings

The weightings attached to the criteria for promotion to level D are:

. Not less than 30% of the weighting to be for assessment of contribution to teaching;

. Not less than 30% of the weighting to be for assessment of contribution to scholarship, research, scholarly professional practice and visual and performing arts professional practice;

. Not less than 10% of the weighting to be for contribution to the administrative work and committee work of the department, faculty and University generally;

. Not more than 10% of the weighting to be for activities within the general community and relating to the candidate's profession, which reflects favourably on the University;

. Not more than 30% of the weighting to be for administration and outreach combined.

Within these parameters, the applicant should be free to select the weightings to apply to consideration of the application. If no selection is made, the Committee applies the following weightings: 45% teaching performance, 45% research achievement and 10% administrative and outreach work;

In exceptional cases the Committee may accept a case
for variation of the weightings listed above.

4. PROCEDURES WITHIN FACULTIES/CENTRES AND THE INSTITUTE OF THE ARTS

4.1 Faculty/Institute of the Arts Promotions Committee. Each year the Pro Vice-Chancellor and Chair, Board of The Faculties, on the recommendation of the dean/Deputy Chair, ITA, appoints promotion committees for each faculty, group of faculties, ITA consisting of the dean/Deputy Chair,/ITA or his/her nominee as chair and three or four other senior members. The quorum for meetings will be three. There will be a joint promotions committee of the Faculties of Arts and Asian Studies which will also consider applications from the CCE and CEDAM.

4.2 Candidates submit their applications in the following form:

. a completed application form

. an up-to-date curriculum vitae

. a list of publicaitons or other evidence e.g. a list of performances/exhibitions and so on

. a brief written statement on any other matters considered relevant.

. candidates should provide a brief statement setting out the academic context within which their activities are to be viewed

4.3 Applications. Applications are submitted through the head of department who should complete the relevant section of the application form

4.4 Referees. At least three referees nominated by the candidate are consulted. Additional referees nominated by the candidate may be consulted at the discretion of the chair. Normally wide consultation is expected and referees (preferably external) other than those nominate (sic) by the candidate may be consulted. If it is decided to seek further information from referees nominated by the committee, the applicant's curriculum vitae will be sent to these referees

The standard letter to referees, sent over the Secretary's name, includes the above statement of criteria and may be varied to seek comparisons between individuals.

4.5 The committee may request an interview with an applicant if further information is required. No inference should be drawn if an applicant is not interviewed.

4.6 Cases Recommended to the Promotions Committee of the Board. Recommendations from the faculty/ITA promotions committee comprise:

. a summary of appointment in the following form:

Faculty/ITA

name, present appointment, department

date took up duty in initial ANU appointment

level of appointment and salary level (step X of range Y)

date and level of subsequent appointments

date and number of any accelerated salary increments

whether already appointed to retiring age

current salary showing, if on maximum, date reached;

any other special facts likely to be relevant to the committee's deliberation;

.application form and accompanying documentation;

.copies of requests to referees;

.a list of the referees from whom opinions were sought, indicating whether nominated by the applicant or by the faculty committee;

.referees' reports;

.a brief written statement from the chair of the committee;

.the number of applications for promotion considered by the faculty/centre/ITA promotions committee, and the number brought forward to the Promotions Committee of the Board of the Faculties.

4.7 Cases not Recommended to the Promotions Committee of the Board.

4.7.1 The Secretary advises candidates not recommended for promotion and invites them to have discussions with the chair of the faculty/centre/ITA promotions committee.

4.7.2 If any such candidate wishes to take further steps, a case supported by the information specified in paragraph 4.6, may be put before the Promotions Committee of the Board
within one month from the date on the letter of advice from the Secretary. The candidate may provide a written statement to the Promotions Committee of the Board.

In the event that a member of the Promotions Committee has been involved in the previous considerations of the case, he/she will be replaced, utilising the procedure described in 5.1.2.

5. THE PROMOTIONS COMMITTEE OF THE BOARD

5.1 Composition.

.1 The Committee consists of the Vice-Chancellor or the Deputy Vice-Chancellor or the nominee of the Vice Chancellor (Chair), and the following members appointed by the Board of the Faculties: two persons at level E and one at level D from the Faculties, and one other member at level E from the Institute of Advanced Studies who has some experience of promotion procedures. One further person at level D or above is appointed by the Board, Institute of the Arts. Normal University requirements on gender balance will be observed. The term of office of members is three years with appointments made to provide both continuity and change.

.2 The Chair of the Board, in consultation with the Chair of the Committee, may co-opt an additional member, from time to time, such a member to count towards the quorum for meetings of the committee.

5.2 Quorum. The quorum for meetings of the Committee is four.

5.3 Functions. The functions of the Committee include consideration of cases for promotions to academic levels C, D and E(1). The Committee has the overall responsibility of ensuring that reasonable equality of standards in relation to promotions is maintained throughout The Faculties.

5.4 Role of dean/Deputy Chair, ITA. The dean or the Deputy Chair/ITA may make verbal comments to the Promotions Committee of the Board of the Faculties at the initiative of either party.

5.5 Further Assessment. The Promotions Committee is free to consult further authorities, either in writing or orally.

5.6 Recommendations. The Committee forwards the names of the candidates recommended for promotion to the Board of The Faculties for endorsement. Names of ITA candidates are forwarded via the Board, ITA. The following statistical information is also reported:

. the aggregate number of recommendations/applications considered by faculty/centre/ITA promotions committees;

. the aggregate number of persons recommended
by faculty/centre/ITA promotions committees for promotion;

. the aggregate number of persons not recommended to the Promotions Committee of the Board and who subsequently put cases to the Committee;

.a summary by numbers relating to each faculty/centre/ITA of promotions recommended to the Board;

.the aggregate number of cases still being considered by the Promotions Committee.

The Secretary advises candidates not recommended for promotion and invites them to discuss the matter with the Chair of the Promotions Committee or a designated member of the Committee.

A fresh application may be submitted the following year if the candidate believes there is evidence of significant new achievement. The old practice of permitting applications to remain on the table for three years has been abolished.

6. APPROVALS.

On the endorsement of the Board,...promotions to level D are recommended to Council for approval.

7. DATE OF EFFECT OF PROMOTION

Promotion to level D takes effect from 23 July in the year in which the case for promotion is received by the Promotions Committee."

In May 1994 the applicant submitted an application for promotion in accordance with the Statement. In August 1994 the applicant was advised by the University that the promotions committee of his Faculty had recommended that he be promoted to the level of Reader. In November 1994 the applicant was advised by the University that the Promotions Committee of the Board ("the Promotions Committee") had not recommended to the Board that he be promoted to the status of Reader. In December 1994 solicitors instructed by the applicant wrote to the University and requested that a statement of reasons be furnished under s.13 of the A.D.J.R. Act setting out why the applicant's application for promotion to Reader "was not accepted". In February 1995 the University responded to that request by a letter which included the following:

"...

The Promotions Committee consisted of six members. It is not possible to provide a detailed statement of reasons, setting out the relevant law, the findings of facts and the reasoning processes which led to the ultimate conclusions of the Committee.

The Committee reports its recommendations to the Board of the Faculties and then to the University Council. The Council is then free to accept or reject the recommendation of the Committee and the Board. In this instance, the Council accepted the recommendation of the Committee.

..."

In March 1995 the applicant commenced these proceedings which sought "an order of review under the A.D.J.R. Act" and an order of mandamus under s.39B of the Judiciary Act 1903. The order of review under the A.D.J.R. Act was said to be in respect of the failure of the University to provide a statement of reasons pursuant to s.13 of the A.D.J.R. Act and the claim for prerogative relief under the Judiciary Act was said to be based upon the failure of the University to perform the duty imposed upon it pursuant to, or by, sub-s.13(2) of the A.D.J.R. Act. In its terms the application for an order of review and the claim for relief was in effect an application to the Court pursuant to sub-s.13(4A) of the A.D.J.R. Act for an order declaring that the applicant was entitled under sub-s.13(1) of the A.D.J.R. Act to request the University furnish to the applicant a statement of the reasons for its decision not to promote the applicant to the position of Reader. The claim for prerogative relief under the Judiciary Act was not based on any entitlement the applicant may have under the general law. It was a claim based on, and limited to, the rights the applicant obtained under the A.D.J.R. Act.

The issue between the parties is whether the rejection by the University of the applicant's application for promotion was a decision to which s.13 of the A.D.J.R. Act applies. By sub-s.13(11) of the A.D.J.R. Act "a decision to which this section applies" means a decision to which the A.D.J.R. Act applies subject to certain exclusions not relevant to this matter. Section 3 of the A.D.J.R. Act defines "decision to which this Act applies" as "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment..." Section 3 of the A.D.J.R. Act defines "enactment" as, inter alia,

"...

It was not in issue that the decision made by the Promotions Committee was of an administrative character. The University contends that the decision not to promote the applicant was not made under an enactment but was made "in consequence of" the contract of employment made between the applicant and the University. (See: Australian National University v. Burns (1982) 43 A.L.R. 25.) Alternatively, the University contends that the decision was not made under the A.N.U. Act, or under an instrument made under the A.N.U. Act.

Before considering the nature of the decision made by the University it is necessary to set out pertinent provisions of the A.N.U. Act. The relevant functions of the University as set out in s.5 of the A.N.U. Act are as follows:

"5.1 The functions of the University include the following:

(a) advancing and transmitting knowledge, by undertaking research and teaching of the highest quality;

...

(c) providing facilities and courses for higher education generally, including education appropriate to professional and other occupations, for students from within Australia and overseas;

...

(2) In the performance of its functions, the University must pay attention to its national and international roles and to the needs of the Australian Capital Territory and the surrounding regions."

The Powers of the University are set out in s.6. The relevant parts are as follows:

"6.(1) ...the University has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions.

(2) The powers of the University under subsection (1) include, but are not limited to, the following powers:

...

(k) to employ staff;

...

(r) to do anything incidental to any of its powers.

..."

The provisions for governance of the University are set out in ss. 8, 9 and 25 as follows:

"8. The governing authority of the University is the Council.

9.(1) Subject to this Act and the Statutes, the Council has the entire control and management of the University.

(2) The Council is to act in all matters concerning the University in the way it thinks will best promote the interests of the University.

(3) The powers of the Council include, but are not limited to, the power to appoint persons (whether members of the staff of the University or not) to positions of responsibility within the University.

...

25.(1) There is to be a Board of The Faculties.

(2) The Board:

(a) subject to the Statues, is responsible under the Council for all academic matters relating to The Faculties; and

(b) may advise the Council on any matter relating to education, learning or research or the academic work of the University."

Pursuant to s.50 of the A.N.U. Act the Council may make statutes prescribing matters necessary or convenient to be prescribed by statutes for the carrying out or giving effect to the A.N.U. Act. The Court was informed that there is no statute relevant to the issues raised in these proceedings.

It was not in issue that the decision of the Promotions Committee not to accept the recommendation of the promotions committee of the applicant's Faculty and to decline to recommend to the Board, and to the Council, that the applicant be promoted to Reader was an ultimate or operative determination that bore the character of a decision for the purposes of the A.D.J.R. Act. (See: Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 per Mason C.J. at 338.) A determination by the Promotions Committee not to recommend to the Board that an applicant be promoted had the effect of terminating the application. A decision by the Promotions Committee that an applicant for promotion not be recommended to the Board was not reviewed by the Board or the Council. Recommendations for promotion were the only matters forwarded to the Board for its consideration. Therefore, a decision by the Promotions Committee not to recommend an applicant for
promotion was an ultimate act by the University.

For a decision to be said to be made "under an enactment" it is necessary that the decision be one which a statute requires or authorizes (Bond per Mason C.J. at 366). There must be sufficient proximity between the decision and the enactment to make it appropriate to say that the decision has been made under a statute. (See: C.E.A. Technologies Pty. Ltd. v. Civil Aviation Authority (1994) 51 F.C.R. 329 per Neaves J. at 353.)

If it is said that a decision has been made under an instrument made under an enactment, there must be sufficient proximity between the decision and the instrument, and the instrument and the enactment, to allow it to be said that the decision and the instrument have been made under the instrument and the Act respectively.

If the true source of authority for the decision is to be found in the terms of the contract, general authority in an enactment to make that contract will not have sufficient connection with the decision made under the contract to permit that step to be characterized as a decision made under the enactment. (See: Burns; Australian Film Commission v. Mabey (1985) 6 F.C.R. 107; Federal Airports Corporation v. Makucha Developments Pty. Ltd. (1993) 115 A.L.R. 679.)

Similarly, a decision to enter a contract is unlikely to be an ultimate or an operative determination, or, alternatively, is likely to be authorized by broad facultative provisions of an enactment that, perhaps, do no more than confirm powers recognized at common law. (See: Australian National Airlines Commission v. Newman (1987) 162 C.L.R. 466 per Brennan J. at 477-478.) If it could be said to be a decision it would not have such direct connection with the provisions of the enactment to have the character of a decision that has force and effect by virtue of the enactment. (See: General Newspapers Pty. Ltd. v. Telstra Corporation (1993) 45 F.C.R. 164.)

However, if an operative determination made under a contract is a decision made under the terms of an "instrument" incorporated in the contract, the connection between the decision and the instrument, and between the instrument and the enactment, means that the decision has been made under the enactment for the purpose of the A.D.J.R. Act. (See: Chittick v. Ackland (1984) 1 F.C.R. 254; Mair v. Bartholomew (1991) 104 A.L.R. 537.)

In the instant case the decision of the Promotions Committee not to recommend the applicant for promotion is a decision provided for by the Statement issued by the University and, therefore, may be said to be made under it. The question for answer is whether the Statement is an instrument for the purpose of the A.D.J.R. Act. If so the enquiry whether it is also a decision made "in consequence of the contractual relationship" is irrelevant.

The meaning of the word "instrument" as used in sub-s.3(1) of the A.D.J.R. Act, was considered at length in Chittick v. Ackland by Lockhart and Morling JJ. At pp.262-264 their Honours said:

"The word 'instrument' is a word of wide import and its meaning in s 3(1) must be ascertained having regard to its context.

...

We reject the proposition that only instruments of a legislative character are contemplated by para (c) of the definition of 'enactment'.

...

In our opinion for a document to answer the description of an instrument made under an Act or an Ordinance it must first be a document made 'under' an Act or an Ordinance. The word 'under', in the context of the Judicial Review Act, means 'in pursuance of' or 'under the authority of': see Evans v Friemann (1981) 35 ALR 428, (per Fox ACJ) at 436 and Australian National University v Burns, supra, (per Bowen CJ and Lockhart J) at 31. But as their Honours pointed out Burns' case at 31 the difficulty lies in applying the word 'under' to particular circumstances. Further, for a document to be an instrument for the purposes of s 3(1) it must be a document under which decisions of an administrative character may be made.

We think that some additional quality is required to give a document the status of an instrument for the purpose of s 3(1) of the Judicial Review Act. Before stating what that additional quality is we must, however, sound a cautionary note. Questions of construction of enabling statutes like the Judical Review Act are rarely solved at the one time. In the continuing solution of such problems usually there is a history of development and sometimes of change. Bearing this in mind, in our opinion, this is not the time to seek to expound definitively the meaning and ambit of the
expression 'instrument...made under such an Act...'. This must be determined progessively in each case as particular questions arise.

We agree with the following passage from the judgment of Ellicott J in Burns v Australian National University (1982) 40 ALR 707 (at 716-7) with which Bowen CJ and Lockhart J agreed on appeal:-

'The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power to exercise will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where a particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made "under an enactment" or otherwise.'

As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations. It seems to us that if a document has such capacity it should be regarded as an instrument for the purposes of that Act."

Applying the foregoing principles, to be an instrument made under the A.N.U. Act it is necessary that the Statement owe its force or effect to the terms of the A.N.U. Act and that it be a document that has capacity to affect legal rights and obligations.

Under para.5(1)(a) of the A.N.U. Act it is a function of the University to advance and transmit knowledge by undertaking research and teaching of the highest quality. There are no express provisions in the A.N.U. Act which direct how that objective is to be realized but under sub-s.6(1) of the A.N.U. Act the University has a general power to do all things necessary and convenient to be done in connection with the performance of its functions. The Statement establishes a detailed procedure under which the University receives and assesses applications for promotion. It stands as a declaration by the University to its staff that there will be a system of promotion and directs how applications for promotion will be dealt with. There is a more direct connection between the Statement and the provisions of the A.N.U. Act than mere administration of staff pursuant to a power to do things incidental to a general power to employ staff or pursuant to powers in that regard exercisable under the common law.

The publication of the Statement is designed to encourage the development, maintenance and renovation of the teaching and scholarship skills of the staff employed by the University and is calculated to discharge one of the prime functions the University is charged to perform under the A.N.U. Act. The Statement and the system it implements cannot be described simply as administrative conduct authorized in broad terms by general provisions of an enactment, or the common law, to which no particular provision or expectation of an enactment is directed. According to the terms of the A.N.U. Act the undertaking of research and of teaching of the highest quality is part of the University's raison d'être. The Statement is part of the means by which the University seeks to perform that function and as such it has sufficient directness of connection with the A.N.U. Act for the Statement to be characterized as being made under the A.N.U. Act.

The Statement issued by the University is a comprehensive document of general application. It was intended that the staff of the University accept the system so established to assess academic status and to provide access to promotions and salary increments.

The Statement is more than a statement of policy. It establishes a procedure of substantial importance to the staff of the University. Although the internal promotion system is intended to stimulate the acquisition of teaching skills and the development of scholarship within the University, at the same time the operation of such a system of peer-assessment has the capacity to have substantial impact upon the reputation of individual staff members. It is an important process and it should be demonstrably fair in its application. Arising out of that requirement is a duty upon the University, in operating the system, to act fairly and justly with its staff. The performance of that duty may require the University to be prepared to explain to a staff member directly affected by the use of the system how the decision made under it was arrived at.

By publishing and distributing the Statement the University held out to all staff members at the time of their appointment that as part of their employment the University would provide access to a system of peer-assessment that would allow academic staff to apply for higher status or promotion within their tenured appointments. As long as such a system is administered by the University it creates an expectation that each staff member who has applied for promotion will have the application considered in the manner provided for in the Statement. That is to say, discriminatory or differential application of the principles of the Statement would be contrary to the legitimate expectation that flows from the Statement and would breach a duty to act fairly arising out of that expectation. Such a breach by a party acting under statutory authority is amenable to judicial review under the general law. (See: Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 A.C. 375 per Lord Fraser at 401, Lord Diplock at 412 and Lord Roskill at 419-420.) Accordingly, it may be said that the Statement is a document capable of affecting legal rights or obligations.

Given that the general law provides a remedy to redress non-observance of a duty to act fairly in administrative decision-making and being satisfied that the Statement is made under the A.N.U. Act, it must be concluded that the Statement has the character of an instrument made under an enactment for the purpose of s.3 of the A.D.J.R. Act.

Therefore, the decision made by the Promotions Committee not to recommend the application for promotion is a decision made by the University under an instrument made under an enactment and is a decision to which s.13 of the A.D.J.R. Act applies. There will be a declaration accordingly under sub-s.13(4A) of the A.D.J.R. Act. Sub-section 13(4) will apply by reason of that declaration.

I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:

Date:

APPEARANCES

Counsel for the Applicant: C.M. Erskine

Solicitors for the Applicant: Porter Pilkinton & Bradfield

Counsel for the Respondent: J.E. Sexton

Solicitors for the Respondent: Mallesons Stephen Jacques

Date of Hearing : 23 October 1995

Date of Judgment : 17 November 1995

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