Are Decisions Made by Universities Directly Affecting Students Justiciable - Coursework Example

Are decisions made by universities directly affecting justiciable Should they be Consider the position of universities established under Commonwealth and under NSW legislation: The area of law that rules university decisions is judicial review, because if the university has made an unfair decision which is upheld through an in-house appeals process then the student must apply for judicial review. Judicial Review is a part of the traditional English Legal System, therefore the laws governing the commonwealth system. This discussion is going to explore this system and then consider if the NSW legislation enhances the ability of students to get a fair hearing, hinders it or has no effect. It must be noted that the precedents for the Commonwealth decision come via the Privy Council or the English House of Lords, which makes English cases highly influential on judicial review cases in Australia. NSW - Administrative Decisions Tribunals Act 1997 (ADT): The key piece of legislation in NSW in respect to the Judicial Review of University academic decisions is the ADT, it is through this act it allows for unfair publicly decided decisions to be reviewed on the grounds of fairness and legitimacy. In fact this act is based on the commonwealth's, especially the English Legal System's, common law approach. It is not based on the merits of the case rather whether there has been a procedurally fair decision. Therefore if one wants to refer to case law it is best to refer to the binding precedents of case law from the Commonwealth. This will be discussed in the next section. There is one factor that this discussion needs to point out, which is under English Law Higher Education Institutions are legislated so that they are considered public institutions; however in Australia this is not the case so there is the problem of private v's public institutions which will be discussed in further in reference to national law. The case of Hall v UNSW [2003] NSWSC 669, however combated these limitations created by national law by referring to the Commonwealth system in protecting the right to a fair hearing and the procedural rules contained under Dicean Judicial Review that are enshrined in the ADT, in order to protect students and to ensure that Universities are being transparent, fair and accountable as centers of learning and excellence. Ultimately, integrity in research requires leadership. If, in the wake of the Hall affair, our universities cannot ensure an enlightened and responsible ethos in their research enterprises they risk a loss of public confidence (Hall v UNSW [2003] NSWSC 669. These rules are a crux to limitations faced by private higher education institutions under Australian National Law, which will be discussed in the following section. Commonwealth System: Dicey's jurisprudential thought is central to the present system of constitutional and administrative law; it deals with the decision making process and the powers of parliament; the government; executive bodies; and the courts. The main theoretical concept that Dicey's theory hinges upon is that parliament is supreme; there is no authority within the British territories or extra-territorially that has more power than parliament. The courts cannot overturn statutes or parliamentary decisions as this would erode parliamentary sovereignty. However not all decisions made in the name of parliament may be legal, because the individual has not acted in accordance with the spirit of parliamentary decision of the statute enacted by parliament. Also executive decisions are delegated through the hierarchy to bureaucratic departments and agencies; as well as human error or bias resulting in unlawful decisions1. To counter this Dicey incorporated the concept of checks and balances into the legal and parliamentary system; whereby the judiciary can hear a case, concerning the decision of an executive body, which may be illegal or a breach of natural law; whereby judicial review is an essential demonstration of Dicey's rule of law which is creating a system of political morality, by using the legal system as a check and balance2; therefore this exploration will consider the effectiveness and the modern approach to judicial review to illustrate the weaknesses with Dicey's theory and his rule of law. The court cannot hear a case based upon its merits, but can hear a case where there is sufficient evidence that the rule of law has not been adhered to. The reasoning behind Dicean theory is that if the rule of law has been contravened then the supremacy of the parliament has been breached and therefore the decision is illegal and against the supreme will of parliament. On the other hand if the rule of law has been adhered to then the decision must stand because the executive body is the delegate of parliament; parliament is supreme; therefore the courts cannot reconsider the case, i.e. judicial review is not concerned with the reconsideration of cases but determining if the will of parliament has been superceded3. There are inherent problems with Dicean theory, because it does not allow for parliament to be properly questioned in respect to the validity of decisions and statute4, especially in respect to whether decisions violate the basic rights afforded to individuals and more radically the rights of animals and the environment5. Dicey's precepts for his model of law and governance are arguably flawed because; in the first place English Law has a bias for landowners; and secondly that the parliament and administrative bodies have discretionary powers, which causes a lot of focus on non-legal factors such as morals, beliefs and social standing6. Dicey's model also did not allow for the vast departments of the modern day parliament where powers and laws are abused or misread without detection. Also the subject of standing (locus standi) in the Dicean model of judicial review makes it very hard for modern special interest groups, such as Environmentalists, to have grounds to challenge administrative decisions. To explore this further the elements of Dicean judicial review will be considered, to indicate how the rule of law is changing in respect to modern challenges. As previously indicated the aim of judicial review is to allow an aggrieved person to apply to have an executive decision (by a public body) to be questioned by the judiciary, which acts as a check and balance of the rule of law. The courts will consider whether there is a possible breach of the rules of natural justice or question whether the decision is ultra vires (outside the law). These two terms are late 19th century terms, Lord Diplock in the GCHQ 7case redefined judicial review for 20th century jurisprudence. These new terms were illegality, irrationality (previously unreasonableness as according to the Wednesbury principles8) and procedural impropriety. The following section is going to explore these elements of judicial review, which are known as grounds for judicial review. Illegality refers to whether the executive body has the power and jurisdiction to make the questioned decision. It also refers to whether the discretionary powers used by the executive body are used in accordance to the reasonable decision maker. The misuse of power and jurisdiction embraces a number of scenarios including; lack of power9; not adhering to a statute10 and not fulfilling the prescribed duties11; where the executive decision is upon the misinterpretation of a statute12; and the no evidence rule. The no evidence rule13 is apparent when an executive decision that has no grounds and not reasonably foreseeable (i.e. no reasonable decision maker would conclude in the decision). The misuse of discretion includes; unlawfully delegating the decision making process; allowing the decision to be made by an unauthorized body; hindering decision making with policy; hindering decision making with contractual obligations; and succumbing to duress or outside influences in the decision making process, including having and objective other than that which is prescribed by law. Traditionally the ground of irrationality was known as unreasonableness asset forth by the case Associated Picture House v Wednesbury Corporation14. Unreasonableness refers to errors that fall within abuse of discretion and decisions that are 'so unreasonable that no reasonable authority could have come to it'. The GCHQ case reformulated unreasonableness to irrationality to mean 'a decision so outrageous its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it'. Therefore this ground has been so narrowed in order to apply to a decision it must be completely out of the ordinary, which makes it very hard for the aggrieved individual to challenge a decision on this ground. This ground is the main arm of the traditional breach of natural justice, as irrationality is too hard to prove. In legal terms this arm refers to the breach of two very central rules to justice which are; the right to a fair hearing; and the rule against bias. Therefore if the proven decision has not allowed the individual make their case before it has been decided or have an appeals process to challenge it then the first rule may be broken. Whereas the second rule simply refers to the decision maker allowing personal preferences or dislikes to influence his decision in a way that no reasonable decision maker would. Procedural impropriety can also refer to an executive body either exceeding or omitting statutory duties. Therefore under this heading one would assume that it would be in accordance to the ECHR (The European Convention on Human Rights); however in the second part of this discussion a different picture is painted when considering the challenges to judicial review in a multi-faceted 21st Century. Standing is crucial to judicial review because without it the claim will not be considered, even if it obviously fulfills one of the grounds of judicial review. Therefore it provides an opt out for the judiciary not to challenge executive decisions on a point of law. This section will explore the facets of standing and will explore recent changes in how the courts have tried to adapt judicial review in order to be in line with a modern society. Standing's or sufficient interest's main pitfall is locus standi15. The test was clarified by Lord Donaldson in R v Home Secretary, ex parte Swati16 which said the person must have an arguable case, which was real and not a theoretical possibility. Therefore it must exclude hopeless cases and as per Nolan J in R v inspector of Taxes, ex parte Kissane17 leaves a fairly low threshold of cases to be able to show standing. The second tier is that, traditionally, the individual must have 'some right, interest or legitimate expectation deserving of legal protection has been detrimentally affected'18, however in lately this has been expanded to include situations where 'the alleged abuse of power appears to be of such severity or substance that an member of the public or community served by the public body is justified in bringing it before the courts. This expansion may allow for judicial review to evolve with public interest groups but it has come under a lot of challenges with the introduction of the HRA and a move away from landownership as the primary driver in cases, instead a move towards the protection of rights seems to be the key driver for 21st Century legal cases19. Especially in a legal system that sees parliament as supreme and its executive bodies as an extension of this supremacy in practically putting the government's decisions into action. The judiciary has been set up only to challenge these decisions if they are not legally correct by not carrying out the wishes of parliament or overstepping the boundaries that parliament has set. Therefore the long and short of the situation is that there is no recourse to challenge decision on the merits of the case or that the administrative law is wrong as not taking into account the concerns of the modern society, unless parliament changes the law. In fact judicial review does not allow the law that has been used to be challenged only the legal application, which in effect does not satisfy the needs of the modern society, especially in the ambit of environmental law. Also English Law has gone further to ensure just decisions for students by introducing legislation via the Higher Education Act 2004; however as this is UK domestic law related it would have very little binding effect. For a student to apply for judicial review of the situation as universities are controlled and regulated by the DfES. However the remedies open to the student are limited and unfortunately if it can be shown that the mitigating circumstances were properly considered then very little action can be taken, unless it falls under one of these difficult to prove grounds. However if the Higher Education Act 2004 was enforced then the student could complain to an independent governing body under Part 2 of the act, therefore ensuring that her complaint is properly heard and disciplinary actions are appropriate for the circumstances20. Australian National Legislation: The ADJR is a statute in Australian law which confirms the Dicean Judicial Review approach. This approach has the problems of grounds, locus standi and costs applying for judicial review. The result is that it is very difficult for students to apply for judicial review, especially if it is a private institution. In the UK universities are governed by state law and has a public ombudsman; therefore creating a public institution. In Australia the private/public split is a lot more confused, which results in students unable to apply for judicial review on the grounds of the institution not being governed by the state. The case of NEAT may prove that there is an intersection between the public and the private, where decisions of private institutions can be brought in front of judicial review boards if they are unfair and fail to meet the constitution of that institution.21 This is very important when education institutions fall outside the ambit of government legislation, because under judicial review grounds presently in the UK it is very fair to achieve a justiciable decision. However, at least students can apply for judicial review where at the moment except for cases similar to NEAT this is not possible. Also there is the additional possibility that the decision in NEAT will be ignored in favor of the private institution approach.22 The private institution approach was the approach that was initially taken by the case of Griffith v Tang23because it was determined that it was outside the ambit of public jurisdiction. However, the High Court of Australia overturned this decision because the Griffith University Act 1988 brought the university into the area of public administration, which meant that the case could apply for judicial review on the grounds of justiciability. Yet, if an institution has not been brought into the public domain then it would rightfully fall outside the application of public administration and judicial review. This is following the Dicean approach of fairness, because Judicial Review was aim to create a check and balance to public and government bodies. Summary: In order to ensure that there is a system of fairness there needs to be more than the decision of NEAT. Rather all higher education institutions in need to be brought into the public ambit like the UK has done with its Higher Education Act 2004; otherwise students in so called private institutions will not be protected from unfair decisions of their administrative bodies. NSW system does have a fair approach under the ADT but this is limited by the National Law which does not bring all Higher Education Institutions under the ambit of Public institutions therefore it fails to protect all decisions with the ADT. However, the Hall Case found a way around the limitations of national law to ensure that the procedural fairness rules of the ADT was upheld by referring to Commonwealth legal systems and protections where educational institutions were deemed as public and therefore protected under Judicial Review. Bibliography: Allars, 2005, Public Administration in Private Hands, 12(2) Australian Journal of Administrative Law 126 Hilaire Barnett (2002) Constitutional and Administrative Law (4th Edition), London, Cavendish Alex Carroll (2002) Constitutional and Administrative Law (2nd Edition), Harlow, Longman Terence Daintith (2004) The Constitutional Protection of Economic Rights, Icon 2.1(56) AV Dicey (1965) Introduction to the Study of the Law of the Constitution (10thedition), London, Macmillan C.R. Munro (1999) Studies in Constitutional Law (2nd Edition), London, Butterworths Lord Steyn, 2004, Dynamic Interpretation amongst an orgy of statutes, EHRLR 2004 (3) pgs. 245-247 G. Teubner, Law as an Autopoietic System, (Blackwell, Oxford, 1993) Read More