Australian National University v McGary [2025] FCAFC 164

1. On the basis of its decision to uphold one ground of appeal, being that the penalty imposed by the Nominee was manifestly excessive, the Appeals Committee varied the penalty imposed upon Mr McGary to allow him to complete his studies remotely. He completed his research program in accordance with the conditions imposed by the Appeals Committee, and was conferred his degree in December 2023.
2. Mr McGary sought judicial review of the Appeals Committee Decision under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The core of the application was that the Appeals Committee misunderstood its task under the Appeals Rule by failing to determine for itself what was the correct and preferable decision, and so fell into jurisdictional error. Mr McGary sought declaratory relief only; he did not seek an order that the Appeals Committee Decision be set aside or that the matter be remitted to the Appeals Committee for reconsideration according to law.
3. At first instance, the primary judge agreed that the Appeals Committee had fallen into error in its approach to the Appeals Committee Decision. Her Honour declined to remit the matter.

1. The Australian National University Act 1991 (Cth) (the ANU Act) provides for the Council of the University to make statutes with respect to certain matters, including the management, good government and discipline of the University (s 50(2)(a)), as well as for penalties for a contravention of, or a failure to comply with, a statute made by the Council (s 50(2)(b)).
2. Each of the Vice-Chancellorship Statute 2013 (Cth) and the Appeals Statute 2014 (Cth) was made in accordance with s 50 of the ANU Act.
3. Section 50(3) of the ANU Act permits the further delegation of rule-making power at the University in the following terms:

The Statutes may empower any authority (including the Council) or officer of the University to make rules or orders, not inconsistent with this Act or with any Statute:

(a) regulating, or providing for the regulation of, any specified matter (being a matter with respect to which Statutes may be made); or

(b) for carrying out or giving effect to the Statutes.

1. Subsection 9.5 of the Vice-Chancellorship Statute permits the Vice-Chancellor to make "Rules or Orders" for certain identified statutes, including the Discipline Statute 2005 (Cth) and any other statute that contains an explicit power to do so. On 19 March 2018, the Vice-Chancellor made the Discipline Rule pursuant to this provision. At the relevant time of the underlying conduct in this case, subsection 3.1 of the Appeals Statute permitted the Vice-Chancellor to make one set of rules with respect to appeals of decisions made under any one of the Academic Misconduct Rule 2015 (Cth), the Discipline Rule, the Information Infrastructure and Services Rule 2015 (Cth), or the Medical Leave Rules 2013 (Cth). Pursuant to this power, the Appeals Rule was enacted on 19 March 2018 to provide for appeals of decisions made under the Academic Misconduct Rule and the Discipline Rule.

1. This case is primarily concerned with the construction of the Discipline Rule and the Appeals Rule. The general principles relating to the interpretation of Acts of Parliament apply to delegated legislation of this kind (Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; 97 ALJR 575 at [14] (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Steward J agreeing on this point)). Therefore, the task of construing those 'statutes' involves "attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking to 'remedy perceived legislative inattention'" (Disorganized Developments at [14], citations omitted). However, it is legitimate to have regard to the fact that regulations tend to be less carefully drafted, and less keenly scrutinised, than primary legislation (see Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; 86 NSWLR 499 at [44] (Leeming JA; Bathurst CJ and McColl JA agreeing)). As a starting point, that consideration can operate as no more than an assumption; it is better placed as confirmation of a meaning otherwise ascertained by ordinary principles of construction.
2. This consideration has some relevance in this case because the construction advanced by each of the appellant and the respondent is productive of some anomalies. Each party relies upon those (other) anomalies to argue that their construction ought to be preferred. In Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; 124 FCR 316 at [37], Stone J cited with approval the comments of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180, who observed that regulations made under the Factories Act 1937 (UK) which were concerned with the use of scaffolding, were addressed to practical people with the purpose of avoiding accidents. His Lordship observed (at 183) that such regulations:

... ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. ... difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to disregard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.

1. It may be, therefore, that there is greater room for pragmatism in the construction of delegated legislation, like the Appeals Rule, which is intended to permit appeals to be heard and determined by non-lawyers in a fair and expeditious manner.
2. However, this tolerance of pragmatism does not fundamentally alter the task before us: ascertaining the drafter's intention by reference to the language of the instrument viewed as a whole. While the text governs that task, it must be considered in light of its context and purpose (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ)).
3. In carrying out that task, we are conscious that the Appeals Rule and Discipline Rule are part of a statutory scheme, so that the task of construction is approached having regard to the meaning that best fits within that scheme (Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39; 274 CLR 565 at [86] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ)).

1. The Appeals Rule applies to "reviewable decisions". A decision is a "reviewable decision" if it is (s 5):

(a) a discipline decision; or

(b) an academic misconduct decision.

1. Part 3 of the Appeals Rule identifies the grounds for review. Section 8 provides:

(1) An application by a person for review of a decision must be made on 1 or more of the following grounds:

(a) that a procedural irregularity happened that may have affected the decision by the decision-maker;

(b) that the decision-maker was biased;

(c) that the decision was manifestly wrong;

(d) that the decision was made in a mistaken application of the applicable rules;

(e) that there is substantial relevant evidence that:

(i) was not taken into account by the decision-maker; and

(ii) could not have been known to the person and provided to the decision-maker before the decision was made;

(f) that a penalty imposed on the person, or any other action taken in relation to the person, under the Academic Misconduct Rule or Discipline Rule was manifestly excessive.

(2) If an application for review includes the ground mentioned in subsection (1)(f), the penalty or other action is taken to form part of the decision for this instrument.

1. Part 4 of the Appeals Rule details the process for making an application for review. It contains only one provision (s 9), which provides:

9 Affected person may make application for review

(1) A person may make an application for review of a decision if:

(a) the decision is a reviewable decision affecting the person in the person's capacity as a student; and

(b) the application is made within 20 working days after the day the person is notified of the decision or within any further period allowed under section 30 (Extension of time).

(2) The application must:

(a) specify the grounds on which the person relies; and

(b) be given to the Registrar.

1. Section 9(1) identifies the circumstances in which an application for review may be made. A person "may" (that is, is permitted to) make an application for review if the decision is a "reviewable decision" which affects the person in their capacity as a student. Section 9(1)(b) concerns the time by which such an application is to be made.
2. A person may only make an application for review if they satisfy the requirements in s 9(1).
3. Section 9(2) refers to "the application" and identifies two things that "must" be done in relation to that application. First, the application must specify the grounds upon which the person relies, and second, it must be given to the Registrar. The word "must" connotes a mandatory step, although the question of whether failure to comply with that step is invalidating is a separate question (see Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317 at [10]- [14] (Basten JA; Simpson AJA agreeing)).
4. Section 9 is directed to the initiation of an application for review. Part 5 is concerned with the consequences of making the application for review, prior to the application being determined. Part 6 sets out a process for the preliminary consideration of applications. Section 12 concerns consideration (by the Registrar) of whether the preconditions to the appeal are met. It provides:

12 Rejection of invalid applications

(1) The Registrar may reject an application for review of a decision if it appears:

(a) that the application does not relate to a reviewable decision; or

(b) that the application does not set out 1 or more grounds required by this instrument; or

(c) that the application has not been made within the time required by this instrument.

(2) However, the Registrar may reject the application only if the Registrar has given the applicant an opportunity to make a written submission in relation to the proposed decision.

(3) If the Registrar rejects the application under this section, the Registrar must, as soon as is practical:

(a) tell the applicant and the decision-maker in writing about the decision; and

(b) give them a written statement of reasons for the decision.

1. The word "may" is understood to be permissive, subject to the terms of the particular legislation in question indicating a contrary intention (Acts Interpretation Act 1901 (Cth) s 33(2A) read with s 2(2); EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 91; 298 FCR 57 at [17] (Perram J; Rofe and Feutrill JJ agreeing). In the absence of a contrary indication, it follows that s 12(1) permits the Registrar to reject an "application for review" if "it appears" that any of the three named preconditions are not met. The matters set out in s 12(1)(a)-(c) substantially mirror the preconditions set out in s 9(1)(a), (b) and (2)(a).
2. Viewed in this way, it appears that a failure to comply with the preconditions in s 9 does not prevent the making of an application: rather, such an application enlivens the Registrar's power to reject that application. The power to reject is clear from both the permissive use of the word "may" in s 12(1), and the steps in s 12(3) which must be taken if the Registrar rejects the application.
3. If the application is not rejected under s 12, then the Registrar refers the application to the Appeals Committee provided that the Registrar is satisfied that the application relates to a reviewable decision (s 13). Section 13 provides:

13 Referral of application to Appeals Committee

Subject to section 12 (rejection of invalid applications), if it appears to the Registrar that an application for review relates to a reviewable decision, the Registrar [may or must] refer the application to an Appeals Committee.

1. We interpolate that the word "may" or "must" appears to have been omitted from s 13. In either case, it is evident that the Registrar can decide not to reject an application for review (and thereafter refer the application to an Appeals Committee), even if the application does not set out one or more of the grounds required by this instrument (s 12(1)(b)), or if it has not been made within the time required by the instrument (s 12(1)(c)). The precondition which (if not met) prevents the referral of an application for review to an Appeals Committee is identified specifically in s 13: that the application for review relates to a reviewable decision.
2. Part 7 of the Appeals Rule concerns the appointment of the Appeals Panel and the Appeals Committee. It is notable that the members of the Appeals Panel contemplated by s 15(2) must fall into certain categories. They are identified in s 15(2) as follows:

(2) The Appeals Panel is to consist of at least 2 persons in each of the following categories:

(a) students appointed after consultation with the President of the Australian National University Students' Association Inc.;

(b) students appointed after consultation with the President of the Australian National University Postgraduate and Research Students' Association Inc.;

(c) persons who have knowledge or experience in the teaching, research or visual and performing arts functions of the University.

1. We read this provision as requiring that the Appeals Panel be comprised of only "at least 2 persons" in each of the prescribed categories, and not permitting other persons outside those categories to be members of the Appeals Panel. Such an interpretation would leave the composition of the Appeals Panel at large, and undermine the focus and utility of the categories prescribed in subsection (2).
2. It is notable that there is no requirement that anyone with any legal qualifications must be appointed to the Appeals Panel (from which the Appeals Committee is drawn: s 16(2)). It must be remembered that the Appeals Committee is the subject of the Appeals Rule, and is therefore its primary audience in terms of the construction and application of those rules. We consider that the composition of the Appeals Panel militates against a construction of the task of the Appeals Committee that is overly technical.
3. The consideration undertaken by the Appeals Committee is outlined in Part 8 of the Appeals Rule. A few matters ought to be noted:

(1) The Appeals Committee may consider material that was not before the original decision-maker, and refer the decision back to the original decision-maker in limited circumstances (s 17).

(2) The material that the Appeals Committee proposes to rely upon must be provided to the student affected at least 5 working days before the matter is heard (s 18).

(3) The application can be heard with or without an oral hearing, at the election of the Chair of the Appeals Committee, having taken into account certain factors (s 20).

(4) Section 22 vests the power to determine the procedure for the hearing of the application for review in the Appeals Committee as a matter of discretion. It uses the well-worn phrase that the Appeals Committee may "inform itself on any matter in relation [to] the review in any way it considers appropriate". The Appeals Committee is not bound by the rules of evidence, and it must take into account any submission made by the student or the Registrar. The Registrar is entitled to "call and question witnesses" (s 22(2)(b)). The student is also entitled to "call and question witnesses" at the hearing of any review (s 23(1)(b)).

(5) Section 24 provides that if the student does not appear in person at the hearing, is not otherwise represented at the hearing, and does not make a written submission to the Appeals Committee, then the decision of the original decision-maker takes effect immediately at the end of the hearing. This automatic decision follows from the student's failure to engage in the request for a review, even where it was validly initiated. This emphasises the significance in the process of focusing upon the grievance of the student.

1. Section 25 sets out the task and powers of the Appeals Committee. It provides:

25 Decision by Appeals Committee

(1) After considering the application for review, the Appeals Committee may:

(a) confirm the decision of the original decision-maker; or

(b) vary the decision; or

(c) set aside the decision and make a fresh decision in substitution for the decision set aside; or

(d) set aside the decision.

(a) accept an undertaking from the student; or

(b) make recommendations arising from its consideration of the application for review, including recommendations for:

(i) counselling; or

(ii) intervention; or

(iii) corrective or other measures that should be taken.

(3) The Appeals Committee may vary the decision under subsection (1)(b), or substitute a fresh decision under subsection (1)(c), only if the decision as varied, or the fresh decision, is a decision that the original decision-maker could have made.

1. The task of the Appeals Committee is set out in s 25: to consider the application for review. Following that consideration, the Appeals Committee can take any of the steps set out in s 25(1). The list of steps is reminiscent of those available in a range of other review environments, and bears some resemblance to the Administrative Review Tribunal's (ART) power upon hearing an application for review. However, the outcomes available to the Appeals Committee are limited in some respects:

(1) It can only remit in the circumstances identified in s 17, that is, if there is cogent, relevant or substantial information that was not before the original decision-maker. Notably, it is not mandatory for the Appeals Committee to remit a matter where there is information that was not before the original decision-maker. However, it is open to it to do so, and only if it considers the information to be cogent, relevant or substantial. It is therefore apparent that while the Appeals Committee can remit a matter in those circumstances, it does not have to. Additionally, the lack of a remittal power in s 25 suggests that if the Appeals Committee has the same information before it as was before the original decision-maker, or additional information that it does not consider to be cogent, relevant or substantial, then it is not entitled to remit the matter - it can only take one of the steps set out in s 25. This in turn suggests a broad role with significant discretion to consider the application for review for itself.

(2) Section 21 provides that if the application relates only to the penalty imposed, or other action taken, then only the question of the penalty or other action must be considered.

(3) If the student takes no part in the hearing, then the decision of the original decision-maker takes effect immediately following the hearing (s 24(1)).

(4) If the Appeals Committee decides to vary or substitute a decision under either s 25(1)(b) or (c), then the Appeals Committee can make only a varied or substituted decision that could have been made by the original decision-maker (s 25(3)).

1. The Discipline Rule provides, among other things, for reporting (s 7), inquiries (s 14), and findings and action (ss 15 and 16) in respect of misconduct by a student. If findings are made and action taken in relation to misconduct, a statement of reasons for the decision must be provided (s 17(2)).
2. Part 6 of the Discipline Rule interacts with the Appeals Rule. Section 26 states that the Appeals Rule provides for the review of "reviewable decisions". Reviewable decisions are, in turn, relevantly defined in s 25(1)(f) to include a decision made by the Vice-Chancellor under s 16(4) to take action in relation to a student.
3. The Discipline Rule sets out a procedure to be followed for dealing with the original complaint. It is noted that:

(1) The Discipline Rule provides for an inquiry in which the respondent may appear, and the person or panel holding the inquiry must consider any oral or written statement presented. The person or panel carrying out the inquiry may also consider any other matters that they consider appropriate (s 14(3)).

(2) If an inquiry is held, then the steps the prescribed authority can or must take are set out in s 15, while the powers of the Vice-Chancellor are set out in s 16.

(3) Section 27 provides that if the Vice-Chancellor considers that a reviewable decision made (including any action taken) in relation to a student is inappropriate in the circumstances of the case, the Vice-Chancellor may, by written notice, call in the decision for reconsideration. However, this power ceases to be available to the Vice-Chancellor if an application for review of the decision has been made under the Appeals Rule (s 27(2)). A decision made following a "call in" operates from the day it is made as if it were a decision made by the original decision-maker (s 27(5) and (6)), and in respect of which a written statement of reasons must be provided (s 27(7)(b)), and thus can be subjected to an application for review.

1. As noted by the primary judge, it appears that the Appeals Committee on review has broader powers to obtain evidence (i.e., by hearing from witnesses) than is possible under the Discipline Rule. It is in this context that the parties join issue as to the correct role of the Appeals Committee under the Appeals Rule.

1. By the first ground, the University argues that the learned primary judge erred in holding that the Appeals Committee misconceived its function under the Appeals Rule. The University contends that the task of the Appeals Committee on review is limited to a consideration of the grounds of review identified by an applicant under s 8 of the Appeals Rule, rather than a de novo review on the merits unconstrained by those grounds. In support of that argument, the University identified a range of indicia which it asserted were consistent with a limited review rather than a de novo review:

(1) First: The task of the Appeals Committee is identified in the Appeals Rule by reference to the "application for review", which is defined by the Appeals Rule as an application that specifies the grounds on which the person relies. The integral relationship between the grounds required by s 8, and the "application for review", is relied upon to infer that it is the grounds which define and confine the scope of the review carried out.

(2) Second: It is said that unless the grounds operate to define the subject matter of the review, then the obligation to specify those grounds would be otiose. The principle that no clause should be construed as superfluous, if by another construction the clause may be made useful and pertinent, is well established (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ)).

(3) Third: The legislative scheme provides for a form of de novo review by the Vice-Chancellor in the form of their "call in" power in s 27 of the Discipline Rule. It is said that the formulation of a de novo review in the Discipline Rule suggests a separate process was intended for the review function under the Appeals Rule.

(4) Fourth: The limited power of remittal in s 17 of the Appeals Rule would be unnecessary if the Appeals Panel were carrying out a de novo review. That is because the remittal occurs following the identification of information not before the original decision-maker. Such a provision would, it is argued, be unnecessary if the Appeals Committee was standing in the shoes of the original decision-maker, and the power of the Appeals Panel to take into account that information was unbounded.

(5) Fifth: The University relies upon the use of the word "appeal" itself, arguing that there is a presumption that an administrative appeal to an administrative body generally considers whether the decision was correct when it was made, rather than creating a hearing de novo. Relatedly, it is said that the nature of the grounds themselves are "more consistent with those available in judicial review or in an appeal by way of rehearing", rather than a de novo review on the merits.

1. The University argues that various indicia relied upon by the primary judge as suggesting an unconfined review, did not do so:

(1) First: The right to call witnesses and adduce evidence is not inconsistent with a limited review (cf. Primary Judgment at [35]), arguing that the power to call witnesses may be necessary for some grounds, without suggesting de novo review. Similarly, the University asserts that the Academic Misconduct Rule provides for witnesses to give evidence. That appeals from decisions under both the Discipline Rule and the Academic Misconduct Rule are governed by the Appeals Rule explains the apparent difference in scope between the Discipline Rule and the Appeals Rule (in response to the presumption that the Appeals Rule must be construed consistently with the regime under both the Academic Misconduct Rule and the Discipline Rule: cf. Primary Judgment at [36]). The University argues that her Honour was not correct to rely upon this aspect of the Appeals Committee's powers to infer that its role was broader than the limited review for which the University contends. The University argues that it is a more natural reading of ss 22(2) and 23(1) of the Appeals Rule that the evidence be relevant to the "application for review", rather than the original complaint.

(2) Second: The fact that there was no express requirement to keep a record of the proceeding of an inquiry under the Discipline Rule was not relevant in the manner suggested by the learned primary judge (Primary Judgment at [38]-[39]). The University argued that the case of Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 at 621 (Mason J; Barwick CJ and Stephen J agreeing), which was relied upon by the primary judge, concerned whether the Court was limited to the materials before the decision-maker below, and not whether it was confined to the grounds of appeal (see Sperway at 619).

(3) Third: The terms of s 21 of the Appeals Rule (by which the Appeals Panel could consider only the question of penalty imposed "or other action taken" if the application for review related only to penalty) are consistent with the scope of the review being defined by the application, because the penalty could be challenged for a variety of reasons (and not only under s 8(1)(f)) (cf. Primary Judgment at [40]).

(4) Fourth: Any similarity between s 25 of the Appeals Rule and the powers of the ART or former Administrative Appeals Tribunal (AAT) is of no assistance, because the powers are "also not dissimilar" to the powers of the Federal Court on appeal (cf. Primary Judgment at [41]). Given the limited nature of an appeal before the Federal Court, the University argues that little support for the broad nature of appeal can be gleaned from a comparison of different appeal types.

1. The respondent contends that no error is disclosed in her Honour's reasons. The respondent points in particular to a range of indicia which it is said support the notion that the review is intended to operate as a de novo appeal in which the Appeals Committee considers the complaint afresh, effectively without regard to the identification of error, looking only for the "correct or preferable" decision in all the circumstances.
2. The respondent submits that ss 8, 9 and 12 of the Appeals Rule establish a procedural scheme governing the validity of applications for review. Once an applicant passes through the procedural "gateway", the procedural requirements fall away, and the matter proceeds to merits review by the Appeals Committee. This submission was accepted by the primary judge (Primary Judgment at [53]).
3. The respondent submits that under this interpretation, the requirement to set out grounds of review under s 8 serves three purposes:

(5) providing an application with meaningful context so the Appeals Committee can understand the nature of the grievance;

(6) directing "the mind of the applicant to clarify and specify their grievances" with the original decision; and

(7) providing a filtration mechanism by which invalid applications can be rejected under s 12(1)(b) of the Appeals Rule.

1. In oral submissions, the respondent further submitted that the grounds enumerated in s 8 of the Appeals Rule are not exhaustive. The respondent submits that while an applicant is required to state at least one of the s 8 grounds in their application for review, nothing in s 8 limits an applicant to just those grounds.
2. The respondent submits the "gateway" approach is supported by s 21 of the Appeals Rule, which requires the Appeals Committee, when considering an application for review that relates to the penalty imposed, to consider only the question of penalty. The respondent submits that the absence of a similar provision requiring the Appeals Committee to consider only the s 8 grounds identified by the applicant in all other cases indicates that the drafters intended for the Appeals Committee to have broader powers of review.
3. The respondent submits that the following provisions would be rendered meaningless if the Appeals Committee were confined to considering the grounds of review:

(1) s 22(1)(b)(i), which empowers the Appeals Committee to inform itself on any matter in relation to the review in any way it considers appropriate;

(2) s 22(1)(b)(ii), which provides that the Appeals Committee is not bound by the rules of evidence;

(3) ss 22(2)(b) and 23(1)(b), which empower the Registrar and applicant to call and question witnesses; and

(4) ss 25(2) and 26, which empower the Appeals Committee to accept an undertaking from an applicant at the time it makes its decision.

1. The respondent submits that, as a matter of practicality, it would not be possible for the Appeals Committee to be confined to "error-based" review given there is no obligation on the Nominee to keep a record of proceedings, or a requirement to furnish the Appeals Committee with a record of that which was before the Nominee.

1. The task of construing the Appeals Rule is as summarised at [69]-[73] above. We are required to consider the text, purpose and context of the scheme. In carrying out that task, we recall that the Appeals Rule sets out a process for a review which does not involve any person with legal qualifications as a precondition to the operation of the review. That suggests that a pragmatic approach to the construction of the rules, having regard to the context in which they operate, is appropriate.

1. The usual taxonomy of appeals, rehearings and reviews de novo was explained by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; 203 CLR 194 at [12]- [15] (citations omitted):

It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to "make such order as it [thought] fit". The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it.

1. This taxonomy was summarised more recently by John Dixon J in AAA v County Court of Victoria & Ors [2023] VSC 13 where his Honour identified the "types" of appeal at [49]-[52] (citations omitted):

First, a hearing de novo: the powers of the appellate court may be exercised regardless of any error of the original decision-maker. The parties begin again. The evidence led is not confined by what was placed before the original decision maker. The appellate court is not bound by the original decision in any way, though may have regard to it and give it the weight it considers proper. The appellate court must have due regard to the original decision and give the original reasons 'considerable weight' if the original decision-maker had specialised expertise and experience to make that decision. As the matter is heard afresh, it is effectively a new trial. This is an exercise of original jurisdiction as the court determines the proceeding without being fettered in any way by the decision of the court below.

Second, a broad (in contradistinction with a strict) appeal, usually described as a 'rehearing': The appellate court's jurisdiction is neither purely appellate nor purely original. This is not a re-trial of the matter. The appellate court applies the law as it exists at the time of appeal to the facts as it finds them. The jurisdiction is exercisable only where the appellant can demonstrate the original decision-maker made some factual, legal or discretionary error. Absent some contrary legislative intention, appeal powers are to be exercised for the correction of error in the original decision. The process is not unfettered merits review. However, on rehearing, powers are not restricted to the decision that ought to have been made by the court of first instance. Subject to my further observations, this type of appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence. The court is required to assess and evaluate the evidence for itself, maintaining due regard for the advantage of the trial judge in having seen and heard all of the evidence. The jurisdiction of an appellate court on rehearing is confined to the jurisdiction exercised by the court of first instance, unless the contrary is indicated.

Broad appeals may be further categorised into rehearings on existing evidence and rehearings allowing for new evidence:

(a) Limited to evidence on the record: The appellate court considers for itself the issues the trial judge had to determine and the effect of the evidence appearing on the record but applying the law as it is when the appeal is heard, not when the trial is heard. This has been described as an appeal where the court "makes its own decision on the evidence before the court below".

(b) New evidence: The powers of the appellate court are exercisable where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. The appellate court is not confined to the record of evidence led at the original hearing and may hear new evidence and applies the law as it applies when the appeal is heard. The appellate court can substitute its own decision based on the facts and the law as they then stand. Its powers are not restricted to making the decision that should have been made at first instance. However, a rehearing is not a retrial and the court's power to receive further or fresh evidence is limited to that provided by the statute creating the right of appeal. This has been described as 'an appeal by way of rehearing based upon the evidence given in the court of first instance supplemented by further evidence'.

Third, a strict appeal: The appellate court's function is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. In other words, it involves an historical exercise in the detection of error. The appellate court can only give the decision which should have been given at first instance. Its powers are limited to setting aside the decision under appeal and, if appropriate, substituting the decision that should have been made at first instance.

1. The statutory framework under consideration in AAA was very different from the present scheme, and involved an appeal between courts. His Honour in that case analysed all the factors relevant to the determination of the nature of the appeal and concluded that the relevant provision (at [67]):

... contemplates a rehearing in the sense of a broad appeal where new evidence may be led; the court may determine the case at the time of the appeal, in the light of the record of the first instance court and the additional evidence before the appellate court at the time of appeal, applying the law at the time of the appeal. The jurisdiction is appellate in the sense that it is only engaged where there is factual, legal, or discretionary error in the magistrates' decision, identifiable in light of all the new evidence before the County Court at the time of appeal.

1. The University submitted, and we accept, that the use of labels like "de novo" or "rehearing" is not necessarily of assistance. It is the statute that governs, and it is possible for the statute to create a "hybrid" appellate jurisdiction - that is, where appeals brought on different bases may demand the exercise of different powers. Furthermore, as Gleeson CJ, Gaudron and Hayne JJ acknowledged in Coal and Allied at [11], there is "no definitive classification of appeals". These labels are not used consistently, which we observe may tend toward confusion.
2. However, the convenience of those labels was also acknowledged in Coal and Allied. As observed by Refshauge ACJ in Legal Practitioner "M" v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312; 302 FLR 254 at [92]:

Sometimes, the classification of decision-making processes, such as appeal stricto sensu, rehearing and hearing de novo, is unhelpful, though the categories usually are useful to encapsulate the way in which the processes are conducted.

1. The University referred, in particular, to Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; 36 VR 656. In that case, Weinberg and Harper JJA and Hargrave AJA considered an appeal on a question of law under the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The matter with which the Victorian Civil and Administrative Tribunal (VCAT) was seized concerned an immediate action under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic). The decision of the Immediate Action Committee, as a delegate of the Pharmacy Board of Australia, to take "immediate action" permitted an "appeal against the decision" to the responsible tribunal (in that case, VCAT). An issue arose as to whether VCAT was required to conduct what it characterised as a de novo hearing (as were most VCAT hearings), or whether the position had been altered by the terms of the National Law so that the task for the Tribunal was "to determine whether, on the basis of that material [the material that was before the Immediate Action Committee] alone, the Board's decision can be justified" (at [74]). Their Honours noted that in that case, like the present case, the statute said nothing about whether the appeal was to be "an appeal in the strict sense, based upon error, or a rehearing of some kind" (at [33]). The Court of Appeal concluded (at [119]) that:

The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not "open slather", but nor is it an appeal confined to error.

1. In Legal Practitioner "M", Refshauge ACJ expressed some dissatisfaction with the Kozanoglu decision, noting (at [83]):

I have to say, however, that the notion of "open slather" is very problematic and vague. It is not clear what it means or how it is to be applied. What material should the tribunal exclude as breaching the "open slather" rubric is by no means clear. Of course, material that is irrelevant is not to be adduced, but that is obvious and hardly all that is likely to have been intended.

1. The "hybrid" approach espoused in Kozanoglu broadly corresponds to the second sub-category of rehearing (i.e., a rehearing with new evidence) identified by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied and John Dixon J in AAA, extracted above.
2. In Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, the High Court considered whether the AAT should have limited itself to the facts and circumstances prevailing at the time of the Migration Agents Registration Authority's decision, rather than receiving updated information. The High Court unanimously held that the AAT's approach was correct. In reaching that conclusion, Hayne and Heydon JJ said at [99]:

Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

1. Likewise, Kiefel J (as her Honour then was), in dissent in the result but not on this issue, noted at [143] (citations omitted):

Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.

1. Shi was concerned with the scope or composition of the material before the reviewing Tribunal. That is a separate, but related, question to the standard of review to be applied by the Tribunal. It is related in the sense that it may be possible to deduce the relevant standard from the scope or composition of that material (in combination with other factors).
2. We accept the submission of the University that ascertaining the standard of review in the present case does not call for the operation of a simple taxonomy. We are not required to choose between available types of review. We are required to construe the Appeals Rule in force at the time. However, the factors and indicators that can be discerned from earlier decisions provide a useful guide to understanding why certain features of a regime will generally be understood as being consistent with one form of hearing or another. Some propositions arise with varying strength on the authorities:

(1) Appeals are creatures of statute (Sperway at 619). It is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature (Coal and Allied at [11]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [2] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [130] (McHugh J)).

(2) Where the nature of the appeal is left unspecified in the statute conferring jurisdiction, the text, statutory scheme and purpose of the statute are of paramount importance (BSA Ltd v Victorian WorkCover Authority [2016] VSC 435 at [11]- [14] (Garde J)), as they are in any construction.

(3) It may be that a statutory focus on the original decision and the powers of the original decision-maker indicate that a new hearing with the applicant beginning again and disregarding the original decision is not intended (AAA at [65]).

(4) The composition of the reviewing body is relevant. Subject-matter experts are more likely to be required to carry out a de novo review, and are less likely to be required to certify something (like a medical impairment) unless they have had the opportunity to consider the issue afresh and unconstrained by an alleged error, even where the identification of grounds is a precondition to the review taking place (Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116 at [98] and the cases cited therein (McColl JA; Mason P and Giles JA agreeing)).

(5) A single statutory appellate process may be capable of requiring either an appeal by way of rehearing or an appeal de novo depending on the circumstances, particularly where the legislative objective is to create a flexible model (Siddik at [100]; New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; 56 NSWLR 691 at [103]-[104] (Hodgson JA; Santow JA agreeing)).

(6) The fact that a statute confers power to affirm, vary, set aside and substitute, or set aside and remit the decision under review, is not necessarily determinative of the nature of the review, noting that in AAA, the Court considered that the relevant power conferred a more limited form of review even though the types of powers included those usually associated with a de novo jurisdiction (AAA at [60(c)]). If the appellate court can make "any such order as it thinks fit", that may indicate that the "court's powers are not constrained by the need to identify error on the part of the primary decision-maker" (AAA at [60(b)]; Coal and Allied at [15]; Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; 53 WAR 156 at [61] (Buss P, Murphy and Beech JJA).

(7) A general power to receive further evidence is contra-indicative of a strict appeal (Sperway at 619). However, it may be indicative of various kinds of rehearing, including to give the appellate body a discretion to admit further evidence to buttress the findings already made (Siddik at [66] citing CDJ v VAJ (No 1) [1998] HCA 67; 197 CLR 172 at [109]). Thus, the power to receive further evidence - and, similarly, a provision that the appeal shall not be limited to the material before the original decision-maker - is not determinative of the scope of the appeal (Siddik at [97]; Stephens v Auctioneers and Agents Committee [2002] QDC 125; 23 Qld Lawyer Reps 43 at [3] (McGill DCJ)).

(8) Where there is no obligation to furnish reasons by the original decision-maker, and there is nothing by which the appellant can 'come to grips' with the original decision, the argument for a proceeding de novo is particularly strong (Sperway at 621 (Mason J); Thompkins v South Australian Health Commission [2001] SASC 147 at [34] (Martin J); R v Blizzard; Ex Parte Downs [1993] 1 Qd R 151 at 165 (Derrington J; Macrossan CJ and McPherson SPJ agreeing).

1. These factors assist in the analysis of the standard of review undertaken by the Appeals Committee, in the manner set out below.

1. None of the Appeals Rule, the Academic Misconduct Rule or the Discipline Rule specifies the nature of the appeal available for "reviewable decisions". It is therefore necessary to consider the purpose and intention of the scheme.
2. The Appeals Rule operates upon a decision made under either the Academic Misconduct Rule or the Discipline Rule. In the Discipline Rule, the focus is upon the conduct of a person subject to its jurisdiction. It sets out a detailed process for determining misconduct. Misconduct is defined broadly and includes sexual harassment (s 6(2)(a)), and conduct that is dishonest, unethical or otherwise lacking in integrity or respect for the safety or wellbeing of others at the University (s 6(1)(a)). Conduct will also be misconduct if it unreasonably hinders other members of the University community in the pursuit of their studies or research in the University or in participation in the life of the University (s 6(1)(b)).
3. The Discipline Rule identifies those decisions that are reviewable, and states that:

26 Review of reviewable decisions

The Appeals Rule provides for the review of reviewable decisions

[Note: The Appeals Rule provides that a person may, in accordance with that rule (including required time limits), apply for review of a reviewable decision affecting the person in the person's capacity as a student (see Appeals Rule, section 9).]

1. The Academic Misconduct Rule states that its objective is to ensure that "academic integrity is respected and observed at the University" (s 3). It encompasses matters like cheating, plagiarism, collusion between students, and a range of other matters. There are multiple pathways to action under the Academic Misconduct Rule. Reviewable decisions for the purposes of the Academic Misconduct Rule are set out in s 34, and are:

(a) an interim decision to exclude a student (in relation to whom an allegation of academic misconduct has been made) under s 10;

(b) a decision that a student has committed academic misconduct; and

(c) a decision to impose a penalty for academic misconduct.

1. The note to s 34 observes that "the Appeals Rule, provides that a person who is affected by a reviewable decision may, within specified time limits, apply for review of that decision".
2. Accordingly, the Academic Misconduct Rule and the Discipline Rule each identify the review right, while the Appeals Rule gives effect to it. In each scheme, both fairness to the student accused of misconduct, and the right of others to have a safe educational environment, are clear purposes. However, at a more fundamental level, it is apparent that the above-mentioned rules are intended to operate in a pragmatic way that is flexible and responsive to the competing aims that we have identified.

1. There has been some consideration of whether the word "review" or "appeal" assists in the analysis. The issue is somewhat vexed in the present case because both terms are used at different points in the Appeals Rule. We accept, as her Honour did below, that the words have "no settled pre-determined meaning", and that it is instead something that "takes its meaning from the context in which it appears" (Primary Judgment at [32], citing Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 261 (Mason CJ, Brennan and Toohey JJ)). While there has been some authority that suggests that the word "review" is more consistent with merits review, and an "appeal" is associated with a review carried out by a Court (Grand Ridge Plantations Pty Ltd v Valuer-General Victoria [2024] VSC 129; 75 VR 185 at [115] (Richards J (as her Honour then was))), we do not consider that such a taxonomy assists in the present case. Accordingly, we do not attribute weight to the use of the term "review" or "appeal" in this matter.

1. Pointing against a de novo review, the Appeals Rule has a focus on the original decision, insofar as:

(1) the review is a review of "the decision";

(2) the original decision must be supported by reasons; and

(3) there is an obligation (on the applicant for review) to identify grounds of review as part of the application process.

The University placed particular emphasis on the obligation to identify grounds of review as part of the application process. It submitted that the review was consequentially limited or confined by the grounds, which identified the scope of the review.

1. The authorities make clear that, where possible, effect should be given to every word in a statute, and no words should be treated as redundant (The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 (Griffith CJ), 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ); Project Blue Sky at [71] (McHugh, Gummow, Kirby and Hayne JJ)). This is a rule of obsolescence, not ambivalence (cf. the varied use of "appeal" and "review"). The requirement to identify grounds must therefore be given meaning.
2. It does not follow, however, that the identification of grounds suggests or requires that the grounds operate to limit the scope of review in the manner suggested by the University. In particular, we do not agree that the identification of grounds is a necessary precondition to making a valid application for review. As explained at [82] above, the Registrar is effectively empowered to dispense with the formal requirements of an application for review, except for the requirement that the application for review relates to a reviewable decision (see s 13 of the Appeals Rule). It follows that while grounds must be specified in a regular application for review, the Registrar can permit an application for review even if it does not set out one or more of the grounds required by the Appeals Rule.
3. This begs the question as to the purpose of the requirement to specify grounds. In our view, the identification of grounds serves to identify the error of which the aggrieved person complains. It focuses the review and identifies the question that the Appeals Committee is called upon to answer. Where the appeal proceeds on the basis of a single ground, for example, that there was bias in the decision-maker, the review will be carried out effectively if the question of bias is resolved. If the Appeals Committee concludes that there was no bias, then it may affirm the decision under review. To import a requirement of a broader inquiry than that which is necessary to answer the particular grievance invites duplication, confusion and inefficiency. In the example given, it would require an Appeals Committee, convened because of a perceived procedural irregularity that may have affected the decision, to reconsider all of the issues raised by the complaint afresh, even if it found that the procedural irregularity did not exist.
4. It follows that the Appeals Committee is given a substantial degree of flexibility in carrying out its function. That function is reviewing the decision that was made by the original decision‑maker. It is in the nature of a rehearing that is informed by the grounds, but not strictly confined by those listed in s 8 of the Appeals Rule, if the Registrar decides to refer an application for review with broader or different grounds, or if the Appeals Committee considers it necessary to go beyond the grounds identified in the application.

1. The Appeals Panel is not comprised of specialists. It does not comprise lawyers or necessarily involve the assistance of a lawyer. This reinforces that the approach to be taken is practical and aimed at responding to the issue raised by the aggrieved person.
2. We have been directed to a number of cases in which the use of subject-matter experts has been held to be more likely to indicate a de novo hearing. These cases tend to be more prominent where the nature of the issue is an area of specialised knowledge (e.g., medical examinations). In those instances, it is clear that individuals with expertise in the subject-matter under consideration could not be expected to "certify" any particular position (e.g., about a person's health) without the opportunity to consider the issue fully. In this instance, we do not perceive that the Appeals Panel is comprised of individuals with a particular expertise in a way that would indicate the necessity of a full inquiry into the primary complaint, as opposed to an inquiry that is guided - but not bounded - by the grounds of review in the application for review. This factor is a relevant one in the analysis.

1. The Appeals Committee can receive additional material that was not before the original decision-maker. Material of that kind is specifically contemplated by s 17(1) of the Appeals Rule. Moreover, the Appeals Committee "may inform itself on any matter in relation [to] the review in any way it considers appropriate" (s 22(1)(b)(i)). In the Primary Judgment, her Honour concluded that the "unfettered right to call and question witnesses" found in ss 22(2) and 23(1) of the Appeals Rule suggested that the hearing was not intended to be limited, but was instead intended to operate as a de novo hearing (Primary Judgment at [35]). The power to "call and question witnesses" conferred on both the Registrar (s 22(2)(b)) and the student (s 23(1)(b)) is confined only by the power of the Appeals Committee to inform itself "in relation [to] the review" in any way that it considers appropriate.
2. There is a range of cases in which a rehearing (other than a de novo hearing) has permitted additional evidence:

(1) In Siddik, the Court rejected prescriptive labels, preferring instead a flexible model for review, which could involve a hearing de novo, or an appeal by rehearing, depending on the circumstances. In that case, the Court held that conferring a discretion on an appellate body to admit further evidence was indicative of a rehearing function, conferred "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures" (at [66], quoting CDJ at [109]). Its purpose was said to be the provision of a discretionary power to "admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous" or to buttress the findings already made (at [66]).

(2) In Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234, McHugh JA said that in his view there was a presumptive rule that an administrative appeal to an administrative body was not de novo, whether or not the Tribunal was empowered to hear additional evidence (at 250-251). While we express some hesitation as to whether it could be said that there is a "presumptive rule" of the kind referred to by his Honour in that case, it is clear that his Honour did not consider that the power of the Tribunal to hear further evidence necessarily suggested a de novo hearing.

(3) In CDJ at [109], it was held by McHugh, Gummow and Callinan JJ that the power to admit additional evidence indicated that the appeal was not an appeal in the strict sense. In that case, the discretion to receive further evidence on appeal was not expressed to be limited in any way. There was no requirement that there be "special grounds" or "special leave" before the evidence could be adduced (see [107]).

1. Accordingly, we consider that the ability to call further evidence is consistent with both a broad rehearing, and a de novo hearing. It does not compel the conclusion that the hearing is de novo. Indeed, a power to admit additional evidence is consistent with a jurisdiction that is capable of responding to the issues raised by the appellant in a flexible way, consistent with the breadth of steps open to it if it decides to substitute or vary an order.
2. The learned primary judge also pointed to the breadth of the power to call evidence, which was broader on review than that which was available to the original decision-maker in the inquiry (Primary Judgment at [36]). We do not consider that this factor leads inexorably to the conclusion of a de novo hearing, and may be explained by the fact that the two bodies are undertaking different tasks, with different powers. The provision of a power to call further evidence reflects the flexibility accorded to the Appeals Committee to carry out its task in a practical and remedial manner. That breadth is not determinative of a de novo hearing.

The requirement to provide reasons by the original decision-maker

1. The authorities identify the existence of an obligation to provide reasons to be relevant to the analysis. The scheme provides for:

(1) an obligation to provide reasons for reviewable decisions arising out of ss 11(4)(b) and 17(2) of the Discipline Rule; and

(2) an obligation to provide reasons for decisions that can be reviewed arising out of ss 10(4)(b) and 30(3) of the Academic Misconduct Rule (noting that the obligation to provide reasons for a penalty decision made under s 31 is encompassed within the obligation in s 30(1)(c) in combination with s 30(3)).

1. The obligation to provide reasons for a reviewable decision is consistent with a power that focuses (but does not limit) the attention of the Appeals Committee on the reviewable decision.

1. The Appeals Committee has the power to affirm, vary, set aside or substitute the reviewable decision. It can only make a decision which the original decision maker could have made (Appeals Rule s 25(1), (3)). Powers of this kind are given to bodies carrying out an appeal function, and on a rehearing (particularly as described in AAA at [52]). This is to be contrasted with a power to make "any such orders as [the decision-maker] thinks fit", which would indicate a de novo power untethered to the underlying decision.
2. This case involved some discussion of the remittal power in s 17 of the Appeals Rule. As discussed above, that power permits (but does not require) remittal to the original decision‑maker if:

(1) there is material that was not before the original decision-maker; and

(2) the information (presumably arising from the material that was not before the original decision-maker) is considered by the Appeals Committee to be cogent, relevant or substantial.

1. This is a low bar for remittal. It is not necessary for the material to be of a kind that could not have been put before the original decision-maker. It is not necessary to show any error by the original decision-maker. Indeed, it is not necessary for the Appeals Committee to have made any substantive decision. The matter can be remitted simply because the Appeals Committee consider that there is material that was not before the original decision-maker (that is cogent, relevant or substantial). The original decision-maker then starts their task again.
2. Equally, the Appeals Committee can decide not to remit the matter, even in the face of additional material that was not before the original decision-maker.
3. It is difficult to see why such a remitter power would be required if the task of the Appeals Committee were coextensive with that of the original decision-maker: if the Appeals Committee is required to approach the task entirely afresh, then adducing or considering additional material would be entirely incidental to, and part of, that process. The provision of additional material provides a trigger for remitter, which would be unnecessary if there were a full merits review taking place for each review.
4. It might be thought that the lack of a (general) power to remit is not consistent with a more limited form of review. That is because the remitter is one of the key remedies for error in decision-making in a limited appeal. However, in this case, the only time that the Appeals Committee cannot remit the matter is where there is no material that was not before the original decision-maker or the material is not cogent, relevant or substantial. This means that in circumstances where remitter is not an option, the Appeals Committee will have before it all the material that was before the original decision-maker (and only that material, save for material that the Appeals Committee does not consider to be cogent, relevant or substantial). In that circumstance, it is difficult to see why a remittal would be necessary or convenient. If the wrong test were applied, it could be applied appropriately by the Appeals Committee. If there were bias, the decision could be remade without bias.
5. Accordingly, in this context, the lack of a remedy for remittal is not suggestive of confinement to a de novo hearing.
6. The learned primary judge said that the similarity between the (remedial) powers of the AAT and the Appeals Committee are suggestive of de novo review (Primary Judgment at [41]). We do not consider such a comparison to be decisive. It may be said that the powers are also broadly similar to those of this Court exercising its appellate jurisdiction as set out in s 28 of the Federal Court of Australia Act 1976 (Cth) (save for the existence of a remitter power, discussed above). The comparison of different statutory regimes only goes so far.
7. The learned primary judge also referred to s 21 of the Appeals Rule as being unnecessary or otiose if the appeal were not de novo (Primary Judgment at [40]). Put another way, if the Appeals Committee were limited to the grounds identified in the application, then it would be unnecessary to include a provision that if the appeal relates only to a particular subset of grounds (s 8(1)(f)), then the Appeals Committee is limited to considering only that question.
8. There is some force in this argument, although we do not accept that the Appeals Committee is limited to the grounds identified in the application (it may, but is not required to, go further). In any event, we do not consider that this materially alters the analysis. A number of review grounds could seek to challenge the penalty imposed or other action taken; such a challenge is not limited to an application identifying a ground under s 8(1)(f). Section 21 looks to whether the outcome was correct, without invoking an issue about the underlying conduct (warranting the penalty) or the review process. It underscores that the process is focused on the area of complaint by the aggrieved person, rather than being at large.

1. Little attention was given by the parties to the decision of the Appeals Committee. This was curious in circumstances where the primary judge found that the Appeals Committee misconceived its function under the Appeals Rule by limiting its consideration to whether the findings of the Nominee were open to him (Primary Judgment at [33]). Both parties proceeded on the basis that this was so.
2. However, it is not evident that the Appeals Committee did limit its consideration to whether the findings were open (as distinct from a consideration of whether the findings were correct, to the extent that such a distinction is suggested). It is necessary to examine the grounds of the application (the substance of which was replicated in the Appeals Committee Decision at [5]). Paragraphs [5] and [13] of the Appeals Committee Decision are telling insofar as they refer to Mr McGary's request that the Nominee's decision be reviewed on certain grounds under s 8(1) of the Appeals Rule. That is how the Appeals Committee conceived its role. Aside from jurisdictional and other legal objections (at [18]-[49]), the Appeals Committee addressed (only) those grounds. As explained above, there is no error in so proceeding.
3. The Appeals Committee's findings are responsive to the grounds of review. The summary of the Appeals Committee Decision (at [8]) notes that the Appeals Committee considers that it was "open on the material before the Nominee to make a finding of misconduct" (emphasis added). At first blush, this summary finding may seem to suggest a limited form of review. However, the Appeals Committee acknowledged that its role was to review the decision of the original decision-maker in accordance with the Appeals Rule (at [17]), and it acknowledged the material provided to it as part of the appeal (Attachment C), some of which postdated the Nominee's decision, which the Appeals Committee took "into account, where relevant, in assessing the appeal grounds under consideration pursuant to the Appeals Rule" (at [7]).
4. Relevantly, in response to the way in which the second ground (Appeals Rule s 8(1)(c)) was articulated, the Appeals Committee observed (at [64] and [67], with emphasis added):

The Appeal Committee (sic) is required to consider all material that was available to the Nominee, together with any additional material provided on appeal by yourself that was not available at the time of the original inquiry and any oral submissions made during the appeal. All of this evidence is then considered to the requisite standard in the applicable Rules. The Committee is then required to determine, whether there was a decision that was manifestly wrong.

1. The Appeals Committee referred (at [63]) to s 22 of the Appeals Rule, which provides that the Appeals Committee may inform itself on any matter in relation to the review in any way it considers appropriate; is bound by the rules of procedural fairness, but is not bound by the rules of evidence; and must take into account any submissions made by the student or the Registrar.
2. The Appeals Committee concluded (at [68], with emphasis added):

The Committee considers that based on the evidence available in this case that it was open to the Nominee to make a finding of misconduct. Having considered your submissions on appeal and other relevant material, the Committee does not consider that this decision was manifestly wrong and does not find an error in the conclusion that the claimed conduct was found on the balance of probabilities to have occurred and that the behaviour constituted misconduct.

1. To the extent that the specific finding at [68] differs from the summary finding at [8], the specific finding is to be preferred. There is no discernible error in that finding. We do not take the reference to "open to the Nominee" to suggest that the Appeals Committee considered the matter only on the material before the Nominee (the Appeals Committee makes express reference to the "evidence available in this case"), or that the Appeals Committee was observing a legal distinction between a conclusion being "open to" the decision-maker as opposed to being "correct" (there is nothing in the Appeals Committee's decision, or in the composition of the Appeals Panel that comprises the Appeals Committee, to suggest cognisance of such a distinction). In fact, the Appeals Committee made a specific finding - in addition to the finding that it does not consider the Nominee's decision to be manifestly wrong, in answer to the specific claim - that it does not find any error in that decision.
2. Similarly, in relation to the third ground (Appeals Rule s 8(1)(d)), the Appeals Committee found no wrongdoing in the application of the relevant section of the Discipline Rule and no procedural irregularity, as argued (at [70]). In conclusion, the Appeals Committee stated that it found no evidence that the relevant section was "contravened in any manner" (at [73]).
3. The balance of the grounds (aside from the fifth ground which alleged a manifestly excessive penalty) concerned the manner in which the matter proceeded before the Nominee. In relation to the fifth ground, the Appeals Committee found that the Nominee gave inappropriate weight to considerations that were not relevant (at [79]), and determined the appropriate penalty for itself (at [82]-[83], Attachments A and B) (noting the limited power of remittal).
4. These findings do not support a conclusion that the Appeals Committee did not consider the matter (raised in the grounds of review) for itself in determining the correct decision.

1. We consider that the task of the Appeals Committee is identified in s 25 of the Appeals Rule: it must consider the application for review, and then take one of the steps identified in s 25(1)(a)-(d). The application for review is that which is referred to the Appeals Committee by the Registrar under s 13. The Registrar may refer an application for review even if it is not limited to the grounds required by s 8. The purpose of the grounds of review is to identify the grievance of the aggrieved person. It is to this grievance that the review is directed. The Appeals Committee has substantial flexibility in carrying out its role. It is a broad form of rehearing, but it is not a hearing de novo. The Appeals Committee correctly understood and applied its task. It follows that Ground 1 is established.

1. Because of our conclusion on Ground 1, it is not necessary to determine Ground 2. However, Ground 2 proposed an unorthodox approach to the disposition of the appeal, which raises a matter of concern to this Court.
2. The respondent submits that, in the event that he was unsuccessful on appeal, it would not be appropriate to remit this matter to the Appeals Committee in circumstances where the relationship between the appellant and respondent has ceased, having had his degree conferred, in absentia, on 6 December 2023 after his in-person graduation was cancelled. Given the end of the respondent's study, the respondent submits that "[i]t is difficult to see how there could be any more severe penalty imposed by the Appeals Committee on remittal". Furthermore, the respondent submits that it is unclear how setting aside the Appeals Committee Decision undermines the validity of the conferral of his degree, given that revocation of a degree is a specific and distinct penalty under s 16(4)(l) of the Discipline Rule.
3. In the course of argument, it was put to Mr McGary's counsel that if he is successful in defending the appeal, the effect would be that the Nominee's decision would be reinstated. That decision is adverse to his client, and the penalty more significant than that imposed by the Appeals Committee. His counsel accepted that this was the case. Indeed, in this appeal, Mr McGary has resisted an order that would permit an appeal from the Nominee's decision to be heard afresh. Concerningly, in the course of a discussion about whether the findings against Mr McGary would need to be disclosed to any professional standards bodies, his counsel said as follows:

But what he [Mr McGary] will be able to say is that, "I attempted to appeal that. And the consideration" - pardon me - "of the appeals committee was affected by legal error."

1. We wish to make clear that no submission is open to Mr McGary as a consequence of any procedural complexity associated with this appeal to suggest that the findings against him are of a dubious or provisional nature. As a matter of fact and law, the Appeal Committee findings stand (AWX24 v Australian National University (Separate Question) [2024] FCA 1075 at [35] (Kennett J)). To the extent that Mr McGary has obligations of disclosure to any professional body, that position should be made clear.

1. The appeal should be allowed. The decision of the primary judge should be set aside and in lieu thereof the application for judicial review of the decision of the Appeals Committee be dismissed with costs.

I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Younan and Bennett.