Bray v University of Melbourne [2001] VSC 391

[2001] VSC 391

Administrative Law - University disciplinary tribunal - Whether a suspension order warranted by a power to exclude a student from the University - Natural justice - Duty to act fairly - Bias - Discretion.

2. On 5 April 2001 a number of persons entered the 9th Floor of the Raymond Priestly Building within the University of Melbourne, a building which accommodates university administration and the office of the Vice Chancellor. I am not concerned with the events that accompanied this entry. It is sufficient that I note that 58 of the persons involved who were students enrolled at the university were charged under University Statute 13.1 - Student Discipline, with breaches of discipline and good order. One such was the applicant, Katherine Bray, who was enrolled as a Bachelor of Arts student.

5. On 4 June 2001 a hearing was conducted before Helen Hayes, the Acting Academic Registrar as delegate of the Vice Chancellor, pursuant to s. 13.1.2(3) of the Student Discipline Statute. At this time, Ms Bray together with 51 other persons charged had retained Messrs Slater & Gordon although it appears that she was not represented at this hearing. Following this hearing the delegate found three of four charges proved. As set out in her letter to Ms Bray dated 4 June 2001 the findings were as follows:

"(i) that on the 5th day of April 2001, you occupied the Raymond Priestley Building (more particularly the 9th Floor) without lawful excuse and impaired the ability of any person to participate in any activity of University life sanctioned by the University (clause 13.1.1(ii)). (ii) that on the 5th day of April 2001 you occupied the Raymond Priestly Building (more particularly the 9th Floor) and failed to comply with any lawful direction or order given in order to ensure the safety of any person, the preservation of any property or the maintenance of good order (clause 13.1.1(xi)). (iii) that on the 5th day of April 2001 you did breach discipline or good order on the University campus in that you without cause or reason occupied the Raymond Priestly Building and as part of a group that caused wilful damage to property of the University (clause 13.1.1)."

9. On the following day, 5 June 2001, the delegate interviewed Ms Bray regarding the appropriate penalty to be imposed and determined that she "be suspended from the Bachelor of Arts course for Second Semester 2001".

12. On 14 June 2001 Ms Bray, together with 40 other students represented by Slater & Gordon, filed a notice of appeal with the Appeal Committee pursuant to s. 13.1.4(1). The appeals were heard by the Appeal Committee on 11 and 13 July 2001 with the students being represented by counsel. On 16 July 2001 the Committee published its decision that Ms Bray's appeal was dismissed and the suspension penalty imposed by the delegate was confirmed and upheld.

15. By order nisi for review made on 24 August 2001 pursuant to the Administrative Law Act 1978, the Master certified the following grounds for review of the decision of the Appeal Committee.

"(a) The Tribunal acted ultra vires and erred in law as if no jurisdiction, power or authority to suspend the applicant from the Bachelor of Arts Course for a semester. (b) The Tribunal breached the rules of natural justice in that it failed and refused to: (i) act fairly, by failing to provide to the Applicant the evidence upon which the First Respondent and the Tribunal proposed to rely prior to (or during) the hearing of the appeal of the Applicant. (ii) Afford the Applicant the opportunity to correct or contradict prejudicial relevant statements made against the Applicant by failing to provide to the Applicant the evidence upon which the Tribunal proposed to rely prior to (or during) the hearing of the appeal. (iii) Ensure that all documents which were to be relied upon by the Tribunal were available to the Applicant prior to (or during) the hearing of the appeal. (iv) By refusing or failing to disqualify themselves (or one or more of them) on the ground of `reasonable apprehension of bias'."

19. The point raised in the first ground may be shortly stated but it is by no means a simple one. The delegate acting under s. 13.1.2(3) of the statute is permitted to impose any or all of the following penalties upon a student found to be in breach of discipline or good order:

"(a) fine the student not more than $600, (b) require the student to pay an amount to cover the cost of repairing any damage caused by the student to any property or facilities, (c) exclude the student from specified University premises or facilities either permanently or for such a period and on such terms and conditions as is thought fit, (d) exclude the student from the University either permanently or for such period as is thought fit."

23. What is said is that the power to suspend a student from a particular course is not an exclusion under one of these paragraphs.

26. Counsel for the University accepted that the use by the delegate and later by the Appeal Committee of the word "suspended" in the penalty was an infelicity but contended that it was an issue of semantics rather than one of substance. The practical effect of the penalty as imposed was no different from one which excluded the student from the University for the second semester 2001.

29. In ss. 13.1.2 and 13.1.3 the word "exclude" is widely used to signify that the person found guilty of misconduct is to be deprived access to that which they might otherwise have been entitled. This access is sometimes to a specified place or premises and sometimes to facilities associated with such a place or premises. Section 13.1.2(4) deals with misconduct committed in any of a number of institutions within the University such as Union House or the University Library. In each paragraph the punitive power is expressed as either one to exclude the errant student from facilities provided by the institution or to exclude them from the institution itself. Sub-section (3) like sub-s. (2)(b) of s. 13.1.2 offers a wider range of penalties but appears to proceed on the same basis of denying the student access to specified university premises or facilities or to the University itself. To my mind, as a matter of construction, the power to exclude a student from the University means just that. The disciplinary authority is entitled to order that the student be denied access to the University. The University, of course, is more than a conglomeration of buildings; it is an institution. The punitive power, if exercised, is one which would deny to the student the right to enter upon any university premises or to participate in the life of the University as such.

32. This is a punishment more serious and essentially different from one which merely impacts upon the student's enrolment. In s. 13.1.3(6) and (7) the distinction is drawn between exclusion from the University and termination of enrolment. In s. 13.1.2(6)(a) the delegate is specifically empowered in certain circumstances to suspend a student's enrolment and in paragraph (b) this is contrasted with the power to exclude the student from the University.

35. This analysis is confirmed by s. 13.1.7 which stipulates that the excluded student may not enjoy certain rights of students even if those rights had accrued while the student was in good standing. Accordingly, if the student had completed an assessment or completed a course of study prior to the exclusion order, nevertheless, they are not, during exclusion, entitled to receive results or certificates or even to graduate.

38. I conclude, therefore, that the suspension of a student's enrolment in a specific course is not a punitive course open to the delegate under s. 13.1.2(3). Nor is it a course available to the Appeal Committee which is given no broader punitive power than the delegate.

41. What is a little surprising is that the Appeal Committee failed to address this point. It was specifically raised in paragraph 4(d) of Ms Bray's notice of appeal. The point was developed in the written outline of submissions placed by counsel before the Committee. The expression "excluded from the University" was used in the letter dated 16 July 2001 in which the secretary to the Appeal Committee informed the student of the result of the appeal and set out the effect of s. 13.1.7.

44. It follows, then that the first ground is made out. Counsel for the University then submitted that, as a matter of discretion, I should decline to grant relief. The penalty which was in fact imposed is less severe that that which might have been imposed and which counsel suggested would in all probability be imposed if the matter were remitted to the Appeal Committee. I am not so sure. I cannot assume that the Appeal Committee upon a further consideration of the appeal would be minded to impose upon Ms Bray a penalty which is more severe than suspension and, perhaps, more severe than that imposed upon the other students who behaved as she did on 5 April 2001.

47. I will, therefore, quash the decision of the Appeal Committee insofar as it confirmed the penalty imposed by the delegate and will remit the matter for it to determine according to law.

50. The second ground, in different ways, strikes at the determination of the Appeal Committee generally for denying natural justice to Ms Bray and, indeed, to all of the appellants. The hearing of the appeals, insofar as they concerned the students represented by Slater & Gordon, was conducted in two stages. First, there was a general stage at which matters affecting all appellants were addressed and, second, a stage at which the circumstances applicable to each appellant in turn were addressed. All 41 appellants were represented by the same counsel and all were permitted to be present during the first stage of the hearing. Only the appellant concerned together with their legal representative, however, were permitted to be present during the second stage insofar as it affected that appellant.

53. Ms Bray was not present during either stage of the appeal. This was her own choice and she had previously indicated that she would adopt it. I offer no criticism of her for this, but it meant that she was not challenging the factual material made against her, at least insofar as it was disclosed in the statements which had been made available by the University.

56. On 11 July 2001 the first stage of the appeal took place in the presence of counsel for all 41 students and in the presence of 13 of those students. Legal submissions common to all of the appellants were presented in writing and orally. They included a contention that the finding which I have set out in part (iii) in paragraph [2] above, was not within the definition of "breach of discipline and good order", a contention to which I shall return in paragraph [24] below. They included a contention as to the power to suspend a student which I have considered. They included also submissions that the penalties imposed were generally too harsh having regard to the circumstances of the events of 5 April.

59. The Appeal Committee, after a short adjournment, proceeded to the second stage of the hearing, dealing in turn first with the 13 students who were present. I adopt the following account of what then happened from the affidavit of Geoffrey Rees Gronow sworn 18 September 2001. Mr Gronow, who was the solicitor for the University present at the hearing said this:

"29. The submissions which were made to the Appeal Committee concerning the individual students who appeared personally on 11 and 13 July 2001 followed much the same format. In each case, [counsel for the students] made a general statement about the course and year in which the student was enrolled, the finding of the Delegate in relation to that student, and the effect a suspension would have on the student's enrolment. Character references, where available, were tendered. Details of the academic record of the students were referred to. 30. In most cases, [counsel for the students] then asked the individual student a series of questions. In almost all cases, the questions related to how the student felt about the events of 5 April 2001, whether the student condoned property damage, and how the student felt about trauma the staff at the University may have suffered. The students responded to those questions. The members of the Appeal Committee asked follow-up questions in most hearings."

This account does not materially differ from that of Toby Carl Borgeest, the solicitor for the students who was also present. Mr Borgeest in his affidavit affirmed 17 August 2001 sets out 11 matters which were put to each of the students present. There was no issue before me that these were matters not previously disclosed to the students or to their legal practitioners.

64. Counsel for the students protested about this new material but sought no adjournment to meet it.

67. When the Appeal Committee reconvened on 13 July 2001, counsel for the students submitted that its members should disqualify themselves for bias. This they declined to do, announcing publicly that, having taken legal advice they would proceed with the hearing. Mr Borgeest, in paragraph 32 of his affidavit sets out the words they used as follows:

"We've had an opportunity to read your submissions and to take advice. We've decided to proceed to hear the appeals, and if you are still available to remain here today we will continue to hear submissions in relation to penalties. We intend to refer to evidence that is in the materials. We intend to rely on the determinations of Ms Hayes. We intend to rely on statements made by students during the course of these hearings. We intend to rely on the submissions on factual matters and legal matters made by the legal representatives for the students. We intend to focus on the nexus between the evidence and the submissions regarding appropriate penalties, including the financial circumstances of individuals. We intend to have regard to the financial means of individuals. We intend to have regard to the lifestyle and circumstances of individuals. We clearly invite the students to convey to us a sense of the impact upon them of the penalties determined by Ms Hayes. With that introductory comment which we would see as a clarification, we now intend to continue."

The second stage of the hearing then proceeded and was completed in the course of the day. The second stage hearing of Ms Bray's appeal was heard late on the afternoon of 13 July 2001.

72. The submission on this ground ultimately focussed on the failure of the University and the Appeal Committee to give Ms Bray notice of the new material which she had to meet; it was accepted on her behalf that if this failed, then there could be no question of bias and if it succeeded she had no need to allege bias.

75. The Appeal Committee was obliged by s. 13.1.4(8), apart from the rules of natural justice, to act fairly and to afford each party the opportunity to know the case it had to meet and to respond to it. It did not breach this obligation in its handling of the appeal of Ms Bray. The matters raised appear to represent an attempt by the Appeal Committee to bring to the attention of the students then present, the seriousness of the conduct of which they were part. It may also have been directed to extracting from them some indication of remorse. They were raised before the second stage hearing of Ms Bray's appeal. No student sought an adjournment to put the matters in issue. The statement of the Committee on 13 July 2001 which I have set out above and which was made before the Committee heard Ms Bray's particular appeal, shows that they were approaching their task in a proper manner. There is no substance in the second ground.

78. I turn next to a submission put on behalf of Ms Bray and responded to on behalf of the University notwithstanding that it was not a certified ground. It was that the definition of breach of discipline and good order was an exhaustive one notwithstanding that it is expressed to be inclusive of the 14 matters set out in it. I accept the submission of counsel for the University that in s. 13.1.1 there is abundant indication that the drafter was well aware of the two types of definitions and there is no good reason to assume that the word "includes" was intended to have any meaning other than its ordinary meaning[1]. I am conscious of the fact that this definition is found in a disciplinary statute where certainty and precision are important for the protection of the rights of those that may be affected by it. This is, however, not a sufficient reason to ignore the plain meaning of the words adopted in the definition. I conclude, therefore, that the "offence" is comprised of any conduct which may be fairly categorised as a breach of discipline or good order, accepting that the 14 instances which follow identify circumstances which certainly amount to such a breach and may, in accordance with ordinary canons of construction, limit the ambit of the expression "breach of discipline or good order" in its ordinary meaning. It follows from this that the fourth charge laid against Ms Bray was available under the Student Discipline Statute.

81. I turn finally to an argument put on behalf of the University that I should deny Ms Bray relief in the exercise of my discretion because of a non-disclosure by her when she sought ex-parte relief on 17 August 2001. The suggested non-disclosed fact was that she had decided on the day previously not to pursue her studies in the second semester 2001 irrespective of the outcome of this proceeding. Reliance was placed also on an alleged misstatement in her affidavit of the adverse consequence of the continuance of the suspension order. There was some dispute before me about what her actual intention was on 16 or 17 August and, I think, an overstatement of her decision was entered in the University records. Likewise, I am not at all confident that she misstated the impact of the suspension on her. I would not on this basis deny her the relief to which she was otherwise entitled.

84. In conclusion, therefore, I propose the following order.

(1) The decision made on 16 July 2001 by the third, fourth and fifthnamed respondents, being the Appeal Committee constituted under the Student Discipline Statute of the University of Melbourne, whereby the Committee dismissed the appeal of the applicant and confirmed a decision that she be suspended from the Bachelor of Arts course for the second semester 2001, be set aside and the matter be remitted to them for their further consideration in accordance with law.

(2) That the costs of the applicant including reserved costs be paid by the respondents.

I will hear counsel as to the precise terms of the order to give effect to these conclusions.

---

[1] See YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395 at 405, per Menzies J; Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 at 660, per Young CJ, Starke and Gray JJ.