84 THE UNIVJ:RSITY OF QUEENSLAND LAW JOURNAL

w. A. LEE*

(1) The language of the Queensland statute resembles so closely that of theEnglish statutes that the Queensland statute must be construed within the his-torical context of the similar legislation; and(2) the object of the legislation is to protect the entitlement of the spouse ornext of kin against stranger executors, and not to defeat that entitlement; and(3) In Re Skeats60 the widow executrix of an intestate claimed that she wasentitled to the whole of her husband's estate, as before 1830, the Executor Act1830 having been repealed in England by the Administration of Estates Act1925. The court held that she was entitled only to her statutory share, herobligation being to. distribute the e..state as provided by the statute. I~ otherwords, section 34(2) should be construed as referring to a claim made by anexecutor as such: it does not limit in any way the claim of a spouse or kin of anintestate who happens to be executor.

60. [1936] Ch. 683; [1936] 2 All E.R. 298.

*B.A., LL.B., Solicitor(Eng.), Senior Lecturer in Law, University of Queensland.

University Discipline: A New Province for Natural Justice?

The universities of Britain and Australia are being pressed to amend and torender more explicit their rules of student discipline. In the courts of the UnitedStates, challenges to disciplinary decisions of universities and even of schoolsare now almost commonplace.

I shall not attempt to summarise or even to outline the arguments and pres­sures for change. There is ample non-legal literature upon the subject.1 Ofcourse the pleas for change exhibit mixed motives and degrees of rationality.That is merely to say that they are hunlan and youthful. Some see the universitiesas a "soft under-belly" of society, vulnerable in their "traditions of toleranceand liberalism not found in, say, industry or major {>.olitical parties."2 It is saidthat "student unrest" is one form of dissatisfaction with the difficulty of s.elf­expression in an increasingly technological and bureaucratic society. Otherspoint to tensions between educational ideals and administrative needs in largeuniversities. It is claimed that British universities have now ceased "reacting likethe offended parents of naughty children" to student disturbances, so that the"soft under-belly" is now protected by more skilful use of discipline.3 ·AtOxford4 and Cambridge5 long-standing discipline rules are being re-written. Atthe time of writing, similar rules are under review at the University of Queens­land and perhaps at other Australian universities.

The pressures for change are more political and journalistic than legal. At thesame time, they invite a particular review of "natural justice" and "domestictribunals"-rubrics under which there are many cases, but few texts or analyses.

I shall refer to the rules of c~rtain Australian universities, not of all. Thereferences are principally illustrative. This. is neither a text upon those rules, nora conspectus of recent trends in the law of administrative'tribunals in general.Rules referred to may even now be under review. Unless otherwise stated, rulesare drawn from the respective Calendars for 1970.

Naturally no Australian university is a corporation by prescription. Just as wehave no ancient corporations such as Oxford or Cambridge, we have noequivalent of the "private" universities of the U.S.A., such as S1. John'S.6 Thesocial and financial history of our universities has severely restricted "private"elements in their foundation and maintenance.7 In terms of foundation andfinance, all Australian universities may be compared with the "state" academiesof the United States.s They may be seen as a special kind of statutory corpora-

1. See e.g., Adams Walter "L.S.E. and the New Militancy" British Universities AnlZual1969 103-111, Crouch Colin "Prospects for Revolt in Universities" The Times 30thSeptember 1970-10; Morgan Patrick and Osmond Warren "The State of StudentProtest" (1970) 46 Current Affairs Bulletill 114-128.

2. Crouch loco cit.3. Crouch loco cit. For a contrary view regarding recent events at Keele University

see the letter of a Professor of Public J..aw in The Tinles 7th October 1970--9, and14th October 1970-11. '

4. See Ex parte Bolchover The Times 7th October 1970-4.5. The Tinles 3rd October 1970--13.6. Cf. infra footnote 201.7. Tertiary Education in Australia (Martin Committee Report) August 1964 Vol. I

page 176.8. Cf. O'Neil Robert M. "Private Universities and Public Law" (1970) 19 Buffalo Law

Review 155-193 at 172.

tion.9 True, certain older ones, such as SydneylO or Melbournell did not receiJetheir whole legal being from public Acts of a Colonial (State) parliament. Yet~essence, all Australian universities derive their legal powers, as well as I?U.Ch I·... !.ftheir income from State or Commonwealth12. They are more particular ygoverned by subordinate legislation,13 variously called "Statutes"14 or "B ­Laws".15 I shall refer to the universities' "domestic laws", whether pri~~pal.lrsubordinate, simply as "rules". We need not dwell here upon the dlstInCtI

4.I?-

between rilles of second or lower degree of derivation16• •

Under this subordinate legislation our university discipline rules and tribun ··,sare set up. The statutory "backing" does not deprive the tribunals of th tr"domestic" character. "Domestic" is not a term of art, and may describe swell a tribunal depending purely upon· contract as one "backed" by statute. T equestion is whether,or not the tribunal is applying the internal rules of a more rless voluntary sub-group of society.

At present the disciplinary rules of Australian universities are by no mea suniform. Here, no doubt, their various dates of enactment are relevant. T .eterse Adelaide University rules, for instance, date. from 192.6. The SOPhi~ti~t*..• dPapua and New Guinea rules were promulgated In 1967, when more hlndslg twas available, and more foresight possible. The University of Queensland rul's,now under review, are already quite elaborate. However, complexity in t~'iSfield may not be synonymous with wisdom. •

Although changes in such rules may depend upon social ~ather than le,alconsiderations, it is as well to assess proposed changes .against pr~sent all dpossible future principles of judge-made law. An over-reactIon to tranSIent pr,~­sures may saddle an institution with legal complexities soon unWeIcOmeltr.0friend and critic alike. •• '

"Open" Hearings for Discipline CommitteesThis claim has considerable emotional appeal. It is calculated to appeal to

the natural curiosity in all of us. How many non-public meetings of any gene,alinterest would retain that character by vote at a referendum? The demand 'or'open' hearings may include emotive references to 'closed doors', 'secrecy', a, dhallowed phrases about justice seeming ~o be do~e..U~iversitiesl~~ve met s1.~.hcriticisms by placing student representa1J.ves on dlsclphne panels .\

9. I do not intend to imply an "erastian" view of universities. I10. Royal ~harter, Letters Patent 27th February 1858. ~11. Letters Patent 14th March 1859. .1.12. See The University and Colleges Act 1900-1965 (N.S.W.) Sydney; The Unlver~ity

of Newcastle Act 1965 (N.S.W.); The &!acquarie Univer~ity Ac! 19~4 (N.S·W·);The Melbourne University Act 1958 (VIC); The Tasmal11lflt C!.lllverslty Act 1~51([as); The University of Queensland Ac~ of 196~ (Q); Unl.versl.ty of Western ~s­tralia Act 1911-1964 (W.A.); Australian National University Act 194.6-1:r~7(C'wealth); Flinders University of South Australia Act 1966 (SA.); The Un/ ver1'tyof Papua and New Guinea Ordinance 1965; etc. . l·

13. See e.g., The University and Colleges Act 1900-1965 (N.S.W.) s. 46; The Un/verl"ty

of Queensland Act of 1965 (Q) SSe 34(1),35.. .~14. E.g. at A.N.U., Uni of P. and N.G., U. of Q., Fhnders, U. of W.A., Mon~sh,

Tasmania, Melbourne, Adelaide. . I

15. University of Sydney, VnL of N.S.W., Newcastle, Macquane.16. The discipline rules at A.N.U. are of 'second order'-i.e., made under a Sta te

made pursuant to the constituent Act.. .. . . .16a. In Byrne v. Kinematograph Renters Society Limited, the plaintIff complained ,hat

he had been refused a representative of his union on the tribunal Harman J. cm-mented [1958] 2 A.E.R. 579 at 592. ••. ."This (claim) seems to me to b~ nonsense. It was a request to h~ve an. advoca~ l~his favour present on the committee rather than a request for an Impartial heart g.

Many demands for open domestic hearings assume that what is true ofregular courts is necessarily true of domestic tribunals. This assunlption mayormay not be coupled with a disposition to respect the regular courts. At allevents, it is dubious. Courts of law and certain statutory tribunals17 have specialfeatures not possessed by most domestic tribunals. These special features makethe "open court" feasible. Courts take evidence upon oath; untruthful evidencemay bring a prosecution for perjury18. The courts have impressive status. Theyhave officers to maintain order. They have power'to punish contemPis of court.Judges, counsel and witnesses in them ,enjoy absolut~ privilege agaInst actionsfor defamation arising out of the proceedings. They are staffed and usuallyassisted by trained lawyers, whose sense of the proper and relevant is guided byprofessional traditions and the legal rules of evidence.19

These features are absent frOlll 11lost, if not all, dOlnestic tribunals. The latterhave n~ power to sumlllon witnesses, or to administer oaths to them. Melnbersof domestic tribunals are often not lawyers. Lawyers or not, they do not have thestatus, tenure, and protection of judges at law. Menlbers and the witnessesbefore them are seldom inhibited by the rules of evidence.2o Participants indonlestic hearings enjoy not absolute, but only qualified privilege, or rather"protection". In terms of the Queensland Criminal Code (s. 377) an utterance,to attract qualified privilege must be relevant to the inquiry, must be no morethan "reasonably sufficient for the occasion", nlust :not be deliberately untrue,nor flow from ill-will or "any other improper motive".

I t is often said that qualified protection is all that dome~tic tribunals require,considering the freedom of their witnesses from the curbs of perjury, from therules of evidence, and (it is assumed) from the publicity of an open hearing.Besides, participants in domestic hearings are often more 'emotionally involved'than the general run of judges, parties and witnesses at law. 21

However, the very existence of qualified protection in a given case can be thesubject of highly expensive litiiation, or'threat of same. It scarcely seemsreasonable to ask those involved in domestic hearings to increase that risk amongothers22 by sitting in public session23. It might be contended that a public hear­ing of "domestic" charges per se involves publication of any defamation thereinmOf: widely th~n is "reasonably sufficient for the occasion", thus removing9uahfied protectIon. Indeed a court's judgment upon that issue might be heavily~nfl~enced by.the fact that a hearing in canlera is the well-accepted type of hear­Ing In domestic cases. In Wishart v. Doyle24 the Full Court was concerned with

17. An adnlittedly imprecise ternl, but it is submitted there is a recognisable differenceof 'public' character between say, a Worker's Compensation Court, or MiningWarden's Court, and a disciplinary tribunal of a university or of a profession

18. Thi~ is a sanction of more value than some lawyers may suppose. Few Jaymenreahse how rare are prosecutions for perjury.

19. Royal Aqua~iuln e!c. S~:iety v. Parkinson [1892] 1 Q.B. 431 at 447 per Fry L.I.20. Few Australtan universIties have felt a need to spell this out. For a general discretion

as to procedure see U of Q. Statute 13.6(4». At W.A. an unusual provision requiresthe committee to be "advised" by the Dean of the Faculty of Law or his deputy "asto what evidence is relevant and ... necessary to prove a charge."

21. Cf. Chafee Z. "The Internal Affairs of Association Not for Profit" (1930) 43 HarvardLaw R~v. 993-1029 at 993: "~e bitter!less of a dispute is apt to be inverselypro,?o'!lonate to. the area of conflIct. Family rows are proverbial for their violence.A SimIlar acerbity pervades quarrel in~ clubs ... and educational institutions"

22. E.g. of disruption or insult. . ·23. A discipline commi.ttee of.a univer.sity mi~ht consider a public hearing if all con­

cerned were fully Indemnified against action or other loss by the university anddefendants gave appropriate releases from legal actions. However the first conditionwould be one which most universities would be understandably slow to fulfil.

24. [1926] St.R.Qd. 269.

tion.9 True, certain older ones, such as SydneylO or Melbournell did not receiJetheir whole legal being from public Acts of a Colonial (State) parliament. Yet~essence, all Australian universities derive their legal powers, as well as I?U.Ch I·... !.ftheir income from State or Commonwealth12. They are more particular ygoverned by subordinate legislation,13 variously called "Statutes"14 or "B ­Laws".15 I shall refer to the universities' "domestic laws", whether pri~~pal.lrsubordinate, simply as "rules". We need not dwell here upon the dlstInCtI

4.I?-

between rilles of second or lower degree of derivation16• •

Under this subordinate legislation our university discipline rules and tribun ··,sare set up. The statutory "backing" does not deprive the tribunals of th tr"domestic" character. "Domestic" is not a term of art, and may describe swell a tribunal depending purely upon· contract as one "backed" by statute. T equestion is whether,or not the tribunal is applying the internal rules of a more rless voluntary sub-group of society.

At present the disciplinary rules of Australian universities are by no mea suniform. Here, no doubt, their various dates of enactment are relevant. T .eterse Adelaide University rules, for instance, date. from 192.6. The SOPhi~ti~t*..• dPapua and New Guinea rules were promulgated In 1967, when more hlndslg twas available, and more foresight possible. The University of Queensland rul's,now under review, are already quite elaborate. However, complexity in t~'iSfield may not be synonymous with wisdom. •

Although changes in such rules may depend upon social ~ather than le,alconsiderations, it is as well to assess proposed changes .against pr~sent all dpossible future principles of judge-made law. An over-reactIon to tranSIent pr,~­sures may saddle an institution with legal complexities soon unWeIcOmeltr.0friend and critic alike. •• '

"Open" Hearings for Discipline CommitteesThis claim has considerable emotional appeal. It is calculated to appeal to

the natural curiosity in all of us. How many non-public meetings of any gene,alinterest would retain that character by vote at a referendum? The demand 'or'open' hearings may include emotive references to 'closed doors', 'secrecy', a, dhallowed phrases about justice seeming ~o be do~e..U~iversitiesl~~ve met s1.~.hcriticisms by placing student representa1J.ves on dlsclphne panels .\

9. I do not intend to imply an "erastian" view of universities. I10. Royal ~harter, Letters Patent 27th February 1858. ~11. Letters Patent 14th March 1859. .1.12. See The University and Colleges Act 1900-1965 (N.S.W.) Sydney; The Unlver~ity

of Newcastle Act 1965 (N.S.W.); The &!acquarie Univer~ity Ac! 19~4 (N.S·W·);The Melbourne University Act 1958 (VIC); The Tasmal11lflt C!.lllverslty Act 1~51([as); The University of Queensland Ac~ of 196~ (Q); Unl.versl.ty of Western ~s­tralia Act 1911-1964 (W.A.); Australian National University Act 194.6-1:r~7(C'wealth); Flinders University of South Australia Act 1966 (SA.); The Un/ ver1'tyof Papua and New Guinea Ordinance 1965; etc. . l·

13. See e.g., The University and Colleges Act 1900-1965 (N.S.W.) s. 46; The Un/verl"ty

of Queensland Act of 1965 (Q) SSe 34(1),35.. .~14. E.g. at A.N.U., Uni of P. and N.G., U. of Q., Fhnders, U. of W.A., Mon~sh,

Tasmania, Melbourne, Adelaide. . I

15. University of Sydney, VnL of N.S.W., Newcastle, Macquane.16. The discipline rules at A.N.U. are of 'second order'-i.e., made under a Sta te

made pursuant to the constituent Act.. .. . . .16a. In Byrne v. Kinematograph Renters Society Limited, the plaintIff complained ,hat

he had been refused a representative of his union on the tribunal Harman J. cm-mented [1958] 2 A.E.R. 579 at 592. ••. ."This (claim) seems to me to b~ nonsense. It was a request to h~ve an. advoca~ l~his favour present on the committee rather than a request for an Impartial heart g.

Many demands for open domestic hearings assume that what is true ofregular courts is necessarily true of domestic tribunals. This assunlption mayormay not be coupled with a disposition to respect the regular courts. At allevents, it is dubious. Courts of law and certain statutory tribunals17 have specialfeatures not possessed by most domestic tribunals. These special features makethe "open court" feasible. Courts take evidence upon oath; untruthful evidencemay bring a prosecution for perjury18. The courts have impressive status. Theyhave officers to maintain order. They have power'to punish contemPis of court.Judges, counsel and witnesses in them ,enjoy absolut~ privilege agaInst actionsfor defamation arising out of the proceedings. They are staffed and usuallyassisted by trained lawyers, whose sense of the proper and relevant is guided byprofessional traditions and the legal rules of evidence.19

These features are absent frOlll 11lost, if not all, dOlnestic tribunals. The latterhave n~ power to sumlllon witnesses, or to administer oaths to them. Melnbersof domestic tribunals are often not lawyers. Lawyers or not, they do not have thestatus, tenure, and protection of judges at law. Menlbers and the witnessesbefore them are seldom inhibited by the rules of evidence.2o Participants indonlestic hearings enjoy not absolute, but only qualified privilege, or rather"protection". In terms of the Queensland Criminal Code (s. 377) an utterance,to attract qualified privilege must be relevant to the inquiry, must be no morethan "reasonably sufficient for the occasion", nlust :not be deliberately untrue,nor flow from ill-will or "any other improper motive".

I t is often said that qualified protection is all that dome~tic tribunals require,considering the freedom of their witnesses from the curbs of perjury, from therules of evidence, and (it is assumed) from the publicity of an open hearing.Besides, participants in domestic hearings are often more 'emotionally involved'than the general run of judges, parties and witnesses at law. 21

However, the very existence of qualified protection in a given case can be thesubject of highly expensive litiiation, or'threat of same. It scarcely seemsreasonable to ask those involved in domestic hearings to increase that risk amongothers22 by sitting in public session23. It might be contended that a public hear­ing of "domestic" charges per se involves publication of any defamation thereinmOf: widely th~n is "reasonably sufficient for the occasion", thus removing9uahfied protectIon. Indeed a court's judgment upon that issue might be heavily~nfl~enced by.the fact that a hearing in canlera is the well-accepted type of hear­Ing In domestic cases. In Wishart v. Doyle24 the Full Court was concerned with

17. An adnlittedly imprecise ternl, but it is submitted there is a recognisable differenceof 'public' character between say, a Worker's Compensation Court, or MiningWarden's Court, and a disciplinary tribunal of a university or of a profession

18. Thi~ is a sanction of more value than some lawyers may suppose. Few Jaymenreahse how rare are prosecutions for perjury.

19. Royal Aqua~iuln e!c. S~:iety v. Parkinson [1892] 1 Q.B. 431 at 447 per Fry L.I.20. Few Australtan universIties have felt a need to spell this out. For a general discretion

as to procedure see U of Q. Statute 13.6(4». At W.A. an unusual provision requiresthe committee to be "advised" by the Dean of the Faculty of Law or his deputy "asto what evidence is relevant and ... necessary to prove a charge."

21. Cf. Chafee Z. "The Internal Affairs of Association Not for Profit" (1930) 43 HarvardLaw R~v. 993-1029 at 993: "~e bitter!less of a dispute is apt to be inverselypro,?o'!lonate to. the area of conflIct. Family rows are proverbial for their violence.A SimIlar acerbity pervades quarrel in~ clubs ... and educational institutions"

22. E.g. of disruption or insult. . ·23. A discipline commi.ttee of.a univer.sity mi~ht consider a public hearing if all con­

cerned were fully Indemnified against action or other loss by the university anddefendants gave appropriate releases from legal actions. However the first conditionwould be one which most universities would be understandably slow to fulfil.

24. [1926] St.R.Qd. 269.

88 THE UNIVERSITY Ur <JUt:t:N~LANU LAVV jUUI'\I~I"\L. UNIV a:K~ll l LJI~L.Il"'L."~t:: A l~t:VV ~K.UV U~'-a: t-VK NA I Ut\f\L. JU.,) Il'-&:. ~

the publication of a hospital committee's opinion that a matron had been gu~ty

of serious neglect of duty. The committee's meeting was open to the public,despite the efforts of a minority of the committee.to keep it.'close~'. At a jurytrial, the defence of qualified protection was reJec~ed. TIus ~dlng ~as ~ot

disturbed on appeal. The hospital committee, like AustralIan unIverSItydiscipline committees.,25 was set up under (b~t not directly by) stat~te. Thatdid not secure for it absolute privilege.26 A tnbunal set up by subordInate (as.distinct from principal) legislation~ does not attract the absolute privilege of acourt.27 The contrary may be arguable, but is it reasonable to offer one'sdomestic tribunal as a test cas.e? Professor de Smith28 suggests a 'half-wayhouse' wherein members of tribunals,_but not parties or witnesses, would haveabsolute privilege. Of course, such-a rule would require no~~l legislation.Besides it would invite a discrimination unacceptable to most cntlcs of currentdiscipl~e rules. It seems a case of all or nothing: if open hearings are.r~aIly~the interests of universities. and student defendants, then absolute prIvilege ISneeded. But then, even if parliament would confer it, other judicial trappingswould be needed to balance it. The domestic tribunal would become a virtualcourt of law. It is by no means obvious that this would be either feasible ordesirable.

There is no suggestion, even in the wide-ranging American authorities2~,th~t

open hearings are part of natural justice, or 'due process', in domestic trI­bunals.30 One suspects that few defendants in such tribunals have press~ !oropen hearings. Given the state of defamation law, a~d the reaso~able tr?~1~10n

against "washing dirty linen in public", even fewer trzbunals are bkel~ to I~t1ate

open hearings. It is not surprising to see no mention of open hearIngs ~ thecurrent rules of Australian universities.81 All the rules seem to take It forgranted that hearings will be in camera. lbe broad commission given to mostdiscipline committees to "investigate"32 or hold "such inquiry if any as [they]think fit"38, or to "inquire ... in such manner as [they] deem appropriate"34may allow a committee to sit in open session. However, any such power shouldbe used with great caution, if at all. . .

On balance, it seems that the interests of defendants and the equally legItImateinterests of universities are best served by hearings in camera with only qualifiedprotection against actions for defamation. The legal and practical reasons forthis should not be lightly dismissed.

Legal Representation

No doubt a domestic35 tribunal may permit a party to be represented by alegal practitioner or, other agent. But is the tribunal required by natural justiceto allow such representation?

25. Supra footnotes 13, 14.26. [1926] St.R.Qd. at 291.27. O'Neill v. Barry [1911] Q.W.N. 32.28. Judicial Review of Administrative Action 2nd Edn. 79.29. Infra footnote 198 et seq.30. de Smith Ope cit. 179-180. ...31. In October 1970 a Discipline Committee at Queensland UnIverSity, ~t~r conSidera­

tion declined to sit in public. The writer respectfu!ly a~ees that thiS IS th~ p!o1?erview. It is understood that the draft of a new Unlv~rslty of Q?ee,ns1an4 ~IsclphneStatute was soon afterwards amended to remove an open heanng provIsion.

32. University of New South Wales Ch. III By-Law 5(b).33. University of Tasmania Statute Jq{II 2.34. University of Papua and New GUInea.. .35. For a recent summary of rights of representatIon before ~tatutory tnbunals.o! a nC?n­

domestic type, see Willheim E. "Legal RepresentatIon Before AdminIstratIveTribunals" (1969) 43 A.L.J. 64-69.

No doubt, if the domestic rules confer a right to counsel, the right is anenforceable term of the student's contract with the university.36 However, mostAustralian universities expressly or impliedly leave the allowance of counsel tothe discretion of the tribunal.37 None seems to forbid legal representation beforeits disciplinary bodies.

It does not appear that a right to representation before a domestic tribunal isyet part of natural justice, although there are signs that the situation maychange. At all events, it is absent from the summary of natural justice approvedin University of Ceylonv. Fernando: 38

"What, then, are the requirements of natural justice in a case of this kind?First, I think that the person accused should know the nature of the accusa­tion made; secondly, that he should be given an opportunity to state his case;and third, of course, that the tribunal should act in good faith. I do not thinkthat there really is anything more."

This should now be read with dicta to the effect that the rules of naturaljustice cannot be crystallised for all conceivable kinds ot domestic tribunal:

"What the law requires in the discharge of a quasi-judicial function is judicialfairness. That is not a label for any fixed body of rules. What is fair ...depends on the circumstances."39

However, any rules which this philosophy may yet add to the category of naturaljustice are in the lap of the judicial gods.

A New York court once suggested that legal representation should be allowed,even before the committee of a private social club, where the "honour" of amember is at stake.40 This might well be the immediate reaction, at least, of thelayman, whose sense of "fair play" has been invoked as the fons et origo ofnat~al justice r~I1es.:1 Until recel1tly it seemed cleCl:r that the general law did notoblIge a domestic tnbunal to allow legal representation.42 It was reasoned thatcounsel's ancient common law right of audience applied only in the superiorcourts. Magistrates' courts43 and a fortiori tribunals of a private or domestickind

44were deemed to have the power to regulate their own procedure, and to

allow or disallow audience to lawyers as they saw fit. Nor did English lawsuggest that counsel's absence raises the standard of fairness to be attained bythe tribuna1.45

Now we have the decision of the Court of Appeal in Pett v. Greyhound RacingAssociation Ltd.46 If that decision does not establish a right to counsel indomestic hearings, it does at least suggest that such a right is emerging.

In Pett, the plaintiff greyhound trainer sought a declaration that he wasentitled to brief counsel before the committee of stewards. The Association'srules were silent on the point, and the committee was against the proposal.

36. Lee v. Shownlen's Guild of Great Britain [1952] 2 Q.B. 329.37. For examples see Monash Statute 4.1.8; Newcastle By-Law 2.5.5(b); for a right to

counsel see Melbourne Statute 2.7.6(d).38. [1960] 1 A.E.R. 631 at 638.39. Mobil Oil Au!tralia Pty. Ltd. v.Commissioner of Taxation (1963) 37 A.L.I.R. 182

at 191 per KItto J. See to the same effect R. v. Gaming Board Ex parte Benaiman.d Khaida [1970] 2 W.L.R. 1009 at 1016 per Denning M.R.

40. Glbhard v. New York Club (1881) 21 Abb. N. Cas. 248.41. Maclean v. Workers Union [1929] 1 Ch. 602 at 625.42. Maclean v. Workers Union [1929] 1 Ch. at 621; Ex parte Evans (1846) 9 Q.B. 279.43. Collier v. Hicks (1831) 2 B. & Ad. 663.44. Re Macqueen and the Nottingham Caledonian Society (1861) 9 C.B.N.S. 793.45. Cf. Schmidt v. Rosenberg (1945) 54 N.Y.S. 2d 379.46. [1969] 1 Q.B. 125.

88 THE UNIVERSITY Ur <JUt:t:N~LANU LAVV jUUI'\I~I"\L. UNIV a:K~ll l LJI~L.Il"'L."~t:: A l~t:VV ~K.UV U~'-a: t-VK NA I Ut\f\L. JU.,) Il'-&:. ~

the publication of a hospital committee's opinion that a matron had been gu~ty

of serious neglect of duty. The committee's meeting was open to the public,despite the efforts of a minority of the committee.to keep it.'close~'. At a jurytrial, the defence of qualified protection was reJec~ed. TIus ~dlng ~as ~ot

disturbed on appeal. The hospital committee, like AustralIan unIverSItydiscipline committees.,25 was set up under (b~t not directly by) stat~te. Thatdid not secure for it absolute privilege.26 A tnbunal set up by subordInate (as.distinct from principal) legislation~ does not attract the absolute privilege of acourt.27 The contrary may be arguable, but is it reasonable to offer one'sdomestic tribunal as a test cas.e? Professor de Smith28 suggests a 'half-wayhouse' wherein members of tribunals,_but not parties or witnesses, would haveabsolute privilege. Of course, such-a rule would require no~~l legislation.Besides it would invite a discrimination unacceptable to most cntlcs of currentdiscipl~e rules. It seems a case of all or nothing: if open hearings are.r~aIly~the interests of universities. and student defendants, then absolute prIvilege ISneeded. But then, even if parliament would confer it, other judicial trappingswould be needed to balance it. The domestic tribunal would become a virtualcourt of law. It is by no means obvious that this would be either feasible ordesirable.

There is no suggestion, even in the wide-ranging American authorities2~,th~t

open hearings are part of natural justice, or 'due process', in domestic trI­bunals.30 One suspects that few defendants in such tribunals have press~ !oropen hearings. Given the state of defamation law, a~d the reaso~able tr?~1~10n

against "washing dirty linen in public", even fewer trzbunals are bkel~ to I~t1ate

open hearings. It is not surprising to see no mention of open hearIngs ~ thecurrent rules of Australian universities.81 All the rules seem to take It forgranted that hearings will be in camera. lbe broad commission given to mostdiscipline committees to "investigate"32 or hold "such inquiry if any as [they]think fit"38, or to "inquire ... in such manner as [they] deem appropriate"34may allow a committee to sit in open session. However, any such power shouldbe used with great caution, if at all. . .

On balance, it seems that the interests of defendants and the equally legItImateinterests of universities are best served by hearings in camera with only qualifiedprotection against actions for defamation. The legal and practical reasons forthis should not be lightly dismissed.

Legal Representation

No doubt a domestic35 tribunal may permit a party to be represented by alegal practitioner or, other agent. But is the tribunal required by natural justiceto allow such representation?

25. Supra footnotes 13, 14.26. [1926] St.R.Qd. at 291.27. O'Neill v. Barry [1911] Q.W.N. 32.28. Judicial Review of Administrative Action 2nd Edn. 79.29. Infra footnote 198 et seq.30. de Smith Ope cit. 179-180. ...31. In October 1970 a Discipline Committee at Queensland UnIverSity, ~t~r conSidera­

tion declined to sit in public. The writer respectfu!ly a~ees that thiS IS th~ p!o1?erview. It is understood that the draft of a new Unlv~rslty of Q?ee,ns1an4 ~IsclphneStatute was soon afterwards amended to remove an open heanng provIsion.

32. University of New South Wales Ch. III By-Law 5(b).33. University of Tasmania Statute Jq{II 2.34. University of Papua and New GUInea.. .35. For a recent summary of rights of representatIon before ~tatutory tnbunals.o! a nC?n­

domestic type, see Willheim E. "Legal RepresentatIon Before AdminIstratIveTribunals" (1969) 43 A.L.J. 64-69.

No doubt, if the domestic rules confer a right to counsel, the right is anenforceable term of the student's contract with the university.36 However, mostAustralian universities expressly or impliedly leave the allowance of counsel tothe discretion of the tribunal.37 None seems to forbid legal representation beforeits disciplinary bodies.

It does not appear that a right to representation before a domestic tribunal isyet part of natural justice, although there are signs that the situation maychange. At all events, it is absent from the summary of natural justice approvedin University of Ceylonv. Fernando: 38

"What, then, are the requirements of natural justice in a case of this kind?First, I think that the person accused should know the nature of the accusa­tion made; secondly, that he should be given an opportunity to state his case;and third, of course, that the tribunal should act in good faith. I do not thinkthat there really is anything more."

This should now be read with dicta to the effect that the rules of naturaljustice cannot be crystallised for all conceivable kinds ot domestic tribunal:

"What the law requires in the discharge of a quasi-judicial function is judicialfairness. That is not a label for any fixed body of rules. What is fair ...depends on the circumstances."39

However, any rules which this philosophy may yet add to the category of naturaljustice are in the lap of the judicial gods.

A New York court once suggested that legal representation should be allowed,even before the committee of a private social club, where the "honour" of amember is at stake.40 This might well be the immediate reaction, at least, of thelayman, whose sense of "fair play" has been invoked as the fons et origo ofnat~al justice r~I1es.:1 Until recel1tly it seemed cleCl:r that the general law did notoblIge a domestic tnbunal to allow legal representation.42 It was reasoned thatcounsel's ancient common law right of audience applied only in the superiorcourts. Magistrates' courts43 and a fortiori tribunals of a private or domestickind

44were deemed to have the power to regulate their own procedure, and to

allow or disallow audience to lawyers as they saw fit. Nor did English lawsuggest that counsel's absence raises the standard of fairness to be attained bythe tribuna1.45

Now we have the decision of the Court of Appeal in Pett v. Greyhound RacingAssociation Ltd.46 If that decision does not establish a right to counsel indomestic hearings, it does at least suggest that such a right is emerging.

In Pett, the plaintiff greyhound trainer sought a declaration that he wasentitled to brief counsel before the committee of stewards. The Association'srules were silent on the point, and the committee was against the proposal.

36. Lee v. Shownlen's Guild of Great Britain [1952] 2 Q.B. 329.37. For examples see Monash Statute 4.1.8; Newcastle By-Law 2.5.5(b); for a right to

counsel see Melbourne Statute 2.7.6(d).38. [1960] 1 A.E.R. 631 at 638.39. Mobil Oil Au!tralia Pty. Ltd. v.Commissioner of Taxation (1963) 37 A.L.I.R. 182

at 191 per KItto J. See to the same effect R. v. Gaming Board Ex parte Benaiman.d Khaida [1970] 2 W.L.R. 1009 at 1016 per Denning M.R.

40. Glbhard v. New York Club (1881) 21 Abb. N. Cas. 248.41. Maclean v. Workers Union [1929] 1 Ch. 602 at 625.42. Maclean v. Workers Union [1929] 1 Ch. at 621; Ex parte Evans (1846) 9 Q.B. 279.43. Collier v. Hicks (1831) 2 B. & Ad. 663.44. Re Macqueen and the Nottingham Caledonian Society (1861) 9 C.B.N.S. 793.45. Cf. Schmidt v. Rosenberg (1945) 54 N.Y.S. 2d 379.46. [1969] 1 Q.B. 125.

Before the Court of Appeal, the precise question was posed: "Does the refusJIto hear counsel amount to a denial of the principles of natural justice?"47 Surelynot, it was argued; after all, the law does not even demand that domestic hea.­ings be oral.48

However, the Court held that there is a right to be heard, incidental to thoestablished right, in natural justice, to be heard in person.

The basis of this ruling deserves careful analysis. It may not (as appears tfirst sight) be based primarily upon natural justice. It may be no more than a"application of the right to act by agent, albeit accompanied by natural justicdicta. In practical terms, the decision could be so interpreted by a future cou tnot anxious to pair domesticated natural justice with the unruly horse of pubf,policy. True it is·,that natural justice is.generously mentione.d in Pett (C. A.) Isome sixteen lines of judgment,49 Denning M. R. notes that the plaintiff's liv ­lihood is at stake (natural justice), cites a trade-mark case on the fundament 1right to have an agent50 and then turns to consider generally the layman's lacof skill in legal self-defence. There is a similar dualism in the brief judgment 9fRussell L. J.51. No doubt Pett (C. A.) is redolent with natural justice "atmo~­

phere". I submit however, that the ratio of the decision is (or can readily be hel~

to be) that generally a man entitled to do a thing may do it by agent, and, th,tbeing so, there "is no reason why that agent should not be a lawyer".52 If th~s

interpre~ati~n of Pelt. (C. A.) be a~c~pted., .th~ case creates no new rule ~fnatural JustIce. It deCIdes that there IS ImplICIt In the old rule of audi alterarrpartem a right to appoint an urgent to speak on one's behalf. The distinctionJ•. s?Jore than academic when we discuss the likelihood of natural justice expan:-Ing to resemble American "due process"53. .~

It is sometimes suggested that the Australian courts tend to be more coJ­ceptualistic, nlore conservative, than the English courts. If this be so, t~e"agency" explanation of Pett (C. A.) may have particular appeal in thiscountry. There is a unanimous albeit reluctant decision of the High Court H.v. !l0ard ~f 1ppeal Ex parte Kay54 that a statutory right to be heard importsj••.aprIma facze rIght to be heard by counsel. Whether Australian courts will treat ,acommon law (i.e. natural justice) right to be heard in the same way remains :0

be seen. Indeed in Kay's case, Griffith C. J. said obiter (at 185): "If I came ~o

the conclusion that this Board was a purely domestic tribunal, I should thi '\~that the common law right [to be heard by agent] was excluded."

I~ .the case'of Pett itself, the trial judge declined to follow the interlocuto;y -.~

deCISIon of the Court of Appea1.55 This strange event was possible because tedecision of the Court of Appeal in Pett was interlocutory only. Pett took t 'eunusual step ~f seeking legal relief before the domestic hearing. The Court •. fAppeal, pending trial of the action, had only to find a "prima facie arguablecase" on ~ehalf of t?e applic~nt.56Subsequently Lyell J., to his embarrassmej,.••. it,was requIred to delIver final Judgment upon the same point.

The Court of Appeal's decision was extensively canvassed before Lyell ..Both argument and Lyell J.'s judgment proceeded upon an unequivocaly

47. q~69) 1 Q.B. at 127 in arguendo. I48. CItIng Local GO.vernnlent Board v. Arlidge [1915] A.C. 120. I·.

49. [1969] 1 Q.B. at 132.50. Jackson & Co. v. Napper (1886) 35 Ch.D. 162 at 172. '51. [1969] 1 Q.B. at 135.52. [1969] 1 Q.B. at 132, 134, 135.53. Infra sub-title "An Era of Expansion for Natural Justice?"54. [1916J 22 C.L.R. 183 (Public Service Appeal).55. Pelt v. Greyhound Racing Association (No.2) [1970J 1 Q.B. 46.56. [1969] 1 Q.B. at 133 per Denning M.R. and at 134 per Davies L.J.

natural-justice basis. Counsel for Pett, with the Court of Appeal's judgmentbehind him, was probably content to treat the alternative "agency basis" for hisclient's claim as a technical curiosity superseded or subsunled by the quickeningspirit of natural justice.57 On the other hand, counsel for the Association had tomeet the argument as put, and of course was not interested in establishingeither an "agency" or a "natural justice" basis for the relief claimed.

Counsel for Pett submitted that the category of natural justice was open:"The courts are at liberty to extend the already accepted principles ... to con­fornl with the modern view of what the reasonable man today regards as naturalju~tice.'~58 Lyell J. disagreed. Nor did the rules of agency assist the plaintiff,beI~g dlsplac~d fronl th.is field by the more specific rules of natural justice,whIch do. not lnclude a fIght to counsel.59 On the limits of natural justice, LyellJ. held hImself bound by the statenlent of the Privy Council in University ofC~ylon v. Fernando,60 which was not cited to the Court of Appeal. A domestictnbunal need follow only these rules, and any rules added by the constitution ofthe association concerned. 61 .

In essence, this approach is strict positivism: natural justice lueans only thoserules of natural justice defined in the precedents. Further, the absence of thesuggested rule from the precedents is enough to exclude the more generalprinciples of agency.62

Lyell J. proceeded to draw support frolll a practical consideration. He asked:what scope is there for counsel if, as Fernando shows, there is no obligation uponthe domestic tribunal to confront the defendant with the adverse witnesses, or tohear cross-examination?63 With respect, all the Privy Council decided inFernando was that where the defendant does not seek cross-examination, thetribunal need not initiate cross-examination. No doubt counsel would seek it,and it is implied in Fernando that cross-examination should then be allowed.64

Unfortunately a voluntary change in the Greyhound Association's rules hasdeprived us of the Court of Appeal's views upon the judgment of Lyell J.65Even as it stands, that judgment concedes that "in a society which has reachedsonle degree of sophistication in its affairs a right to legal representation (sci/.as part of natural justice) might arise. "66 So the Court of Appeal's decision inPett may be seen as foreshadowing a general right to counsel before domestictribunals, subject always to the particular rules concerned.67 This applies afortiori if the "agency" view of Pett (C. A.) be taken, for then no judicialboldness would be needed to follow that case. However, relevant changes inrules of our universities, and recent trends in the U.S. courts, could conceivablywin judicial support for a frank expansionist approach to natural justice.

Let us glance at the American trends. Let us note at once that they relate tothe "due process clause"68 (the Fifth and Fourteenth Anlendments to the U.S.

57. Cf [1970J 1 Q.B. at 50, O-H.58. Cf [1970] 1 Q.B. at 55, D-E.59. [1970] 1 Q.B. at 62.60. Supra footnote 38.61. [1970] 1 Q.B. at 66.62. Supra footnote 59.63. [1970] 1 Q.B. at 63-64.64. [1960] 1 A.E.R. 631 at 641 (I).65. See Note in [1970] 1 Q.B. 67.66. [1970] 1 Q.B. at 66.67. This was conceded by counsel in Pelt (No.2): [1970] 1 Q.B. 49(0). However if the

right became general might not public policy then be invoked to let it override anyrule excluding counsel?

68. "No pe~,son shall be ... deprived of life, liberty, or property without due process oflaw ...

Before the Court of Appeal, the precise question was posed: "Does the refusJIto hear counsel amount to a denial of the principles of natural justice?"47 Surelynot, it was argued; after all, the law does not even demand that domestic hea.­ings be oral.48

However, the Court held that there is a right to be heard, incidental to thoestablished right, in natural justice, to be heard in person.

The basis of this ruling deserves careful analysis. It may not (as appears tfirst sight) be based primarily upon natural justice. It may be no more than a"application of the right to act by agent, albeit accompanied by natural justicdicta. In practical terms, the decision could be so interpreted by a future cou tnot anxious to pair domesticated natural justice with the unruly horse of pubf,policy. True it is·,that natural justice is.generously mentione.d in Pett (C. A.) Isome sixteen lines of judgment,49 Denning M. R. notes that the plaintiff's liv ­lihood is at stake (natural justice), cites a trade-mark case on the fundament 1right to have an agent50 and then turns to consider generally the layman's lacof skill in legal self-defence. There is a similar dualism in the brief judgment 9fRussell L. J.51. No doubt Pett (C. A.) is redolent with natural justice "atmo~­

phere". I submit however, that the ratio of the decision is (or can readily be hel~

to be) that generally a man entitled to do a thing may do it by agent, and, th,tbeing so, there "is no reason why that agent should not be a lawyer".52 If th~s

interpre~ati~n of Pelt. (C. A.) be a~c~pted., .th~ case creates no new rule ~fnatural JustIce. It deCIdes that there IS ImplICIt In the old rule of audi alterarrpartem a right to appoint an urgent to speak on one's behalf. The distinctionJ•. s?Jore than academic when we discuss the likelihood of natural justice expan:-Ing to resemble American "due process"53. .~

It is sometimes suggested that the Australian courts tend to be more coJ­ceptualistic, nlore conservative, than the English courts. If this be so, t~e"agency" explanation of Pett (C. A.) may have particular appeal in thiscountry. There is a unanimous albeit reluctant decision of the High Court H.v. !l0ard ~f 1ppeal Ex parte Kay54 that a statutory right to be heard importsj••.aprIma facze rIght to be heard by counsel. Whether Australian courts will treat ,acommon law (i.e. natural justice) right to be heard in the same way remains :0

be seen. Indeed in Kay's case, Griffith C. J. said obiter (at 185): "If I came ~o

the conclusion that this Board was a purely domestic tribunal, I should thi '\~that the common law right [to be heard by agent] was excluded."

I~ .the case'of Pett itself, the trial judge declined to follow the interlocuto;y -.~

deCISIon of the Court of Appea1.55 This strange event was possible because tedecision of the Court of Appeal in Pett was interlocutory only. Pett took t 'eunusual step ~f seeking legal relief before the domestic hearing. The Court •. fAppeal, pending trial of the action, had only to find a "prima facie arguablecase" on ~ehalf of t?e applic~nt.56Subsequently Lyell J., to his embarrassmej,.••. it,was requIred to delIver final Judgment upon the same point.

The Court of Appeal's decision was extensively canvassed before Lyell ..Both argument and Lyell J.'s judgment proceeded upon an unequivocaly

47. q~69) 1 Q.B. at 127 in arguendo. I48. CItIng Local GO.vernnlent Board v. Arlidge [1915] A.C. 120. I·.

49. [1969] 1 Q.B. at 132.50. Jackson & Co. v. Napper (1886) 35 Ch.D. 162 at 172. '51. [1969] 1 Q.B. at 135.52. [1969] 1 Q.B. at 132, 134, 135.53. Infra sub-title "An Era of Expansion for Natural Justice?"54. [1916J 22 C.L.R. 183 (Public Service Appeal).55. Pelt v. Greyhound Racing Association (No.2) [1970J 1 Q.B. 46.56. [1969] 1 Q.B. at 133 per Denning M.R. and at 134 per Davies L.J.

natural-justice basis. Counsel for Pett, with the Court of Appeal's judgmentbehind him, was probably content to treat the alternative "agency basis" for hisclient's claim as a technical curiosity superseded or subsunled by the quickeningspirit of natural justice.57 On the other hand, counsel for the Association had tomeet the argument as put, and of course was not interested in establishingeither an "agency" or a "natural justice" basis for the relief claimed.

Counsel for Pett submitted that the category of natural justice was open:"The courts are at liberty to extend the already accepted principles ... to con­fornl with the modern view of what the reasonable man today regards as naturalju~tice.'~58 Lyell J. disagreed. Nor did the rules of agency assist the plaintiff,beI~g dlsplac~d fronl th.is field by the more specific rules of natural justice,whIch do. not lnclude a fIght to counsel.59 On the limits of natural justice, LyellJ. held hImself bound by the statenlent of the Privy Council in University ofC~ylon v. Fernando,60 which was not cited to the Court of Appeal. A domestictnbunal need follow only these rules, and any rules added by the constitution ofthe association concerned. 61 .

In essence, this approach is strict positivism: natural justice lueans only thoserules of natural justice defined in the precedents. Further, the absence of thesuggested rule from the precedents is enough to exclude the more generalprinciples of agency.62

Lyell J. proceeded to draw support frolll a practical consideration. He asked:what scope is there for counsel if, as Fernando shows, there is no obligation uponthe domestic tribunal to confront the defendant with the adverse witnesses, or tohear cross-examination?63 With respect, all the Privy Council decided inFernando was that where the defendant does not seek cross-examination, thetribunal need not initiate cross-examination. No doubt counsel would seek it,and it is implied in Fernando that cross-examination should then be allowed.64

Unfortunately a voluntary change in the Greyhound Association's rules hasdeprived us of the Court of Appeal's views upon the judgment of Lyell J.65Even as it stands, that judgment concedes that "in a society which has reachedsonle degree of sophistication in its affairs a right to legal representation (sci/.as part of natural justice) might arise. "66 So the Court of Appeal's decision inPett may be seen as foreshadowing a general right to counsel before domestictribunals, subject always to the particular rules concerned.67 This applies afortiori if the "agency" view of Pett (C. A.) be taken, for then no judicialboldness would be needed to follow that case. However, relevant changes inrules of our universities, and recent trends in the U.S. courts, could conceivablywin judicial support for a frank expansionist approach to natural justice.

Let us glance at the American trends. Let us note at once that they relate tothe "due process clause"68 (the Fifth and Fourteenth Anlendments to the U.S.

57. Cf [1970J 1 Q.B. at 50, O-H.58. Cf [1970] 1 Q.B. at 55, D-E.59. [1970] 1 Q.B. at 62.60. Supra footnote 38.61. [1970] 1 Q.B. at 66.62. Supra footnote 59.63. [1970] 1 Q.B. at 63-64.64. [1960] 1 A.E.R. 631 at 641 (I).65. See Note in [1970] 1 Q.B. 67.66. [1970] 1 Q.B. at 66.67. This was conceded by counsel in Pelt (No.2): [1970] 1 Q.B. 49(0). However if the

right became general might not public policy then be invoked to let it override anyrule excluding counsel?

68. "No pe~,son shall be ... deprived of life, liberty, or property without due process oflaw ...

constitution) as interpreted by less conceptualistic judiciary. The Americancases would probably not be weighty citations before an Australian court today~That partly depends upon the spirit of the Bar. Still, this is an era of change,even in judge-made law, and it may be agreed that "natural justice" is a conceptpotentially no less "open-ended" than "due process".

In 1963 the Supreme Court of the United States ruled that defendants incriminal trials are entitled to counsel as to matter of due process of law. Whereaccused cannot afford cc;>unsel, counsel should be 'assigned'.69 Behind thatdecision lies a tradition of law and practice tending to treat legal representationas a vital element in justice where important legal or human rights are injeopardy.70 Gideon contains. a passage akin to one in the judgment of DenningM. R. in Pett: .....

"Even the educated and intelligent layman has small and sometimes no skillin the science of law ... He requires the guiding hand of counsel at everystep in the proceedings against him."71

However, Gideon is concerned with justice in the criminal courts of the land,not in domestic tribunals. Indeed, no American decision yet appears to havegone to the extent of Pett in finding a "domestic" right to counsel.

In Madera v. Board of Education72 a federal appeals court refused to declarethat a delinquent school pupil, summoned before a district education officer,was entitled to counsel. We must note that the officer's judicial functions werequite limited. He was empowered only to reco~endthe mor~dras.tic s~nc~o~s.

The officer's functions may be compared With those of umversity dISCiplineconunittees which must refer all but fairly light penalties to Senate or Councilfor consideration.73

The reluctance of the American courts to extend the right to counsel beyondthe regular courts is significant. Those courts have behind them a constitutionalversion of natural justice, now being interpreted most liberally. Yet they drawa line short of a "domestic" right to counsel. Understandably, the privatelypractising profession might draw the line more generously. The profession, or atany rate that part of it from which judges come, cannot be expected to under­estimate the value of their skills, nor to refuse a new province for litigiousendeavour. This is one consideration to bear in mind on receipt of legal advice(if any) to place a "right to counsel" clause in university or club rules. There isa wry realism in Mr. Justice Frankfurter's remark that

"In various proceedings, as for instance under some workmen's compensa­tion laws, the presence of lawyers is deemed not conducive to the economicand thorough ascertainment of the facts. The utmost devotion to one's pro­fession . . .'~ cannot lead one to erect as a constitutional principle that noadministrative inquiry can be had in camera unless a lawyer be allowed toattend."74

69. Gideon v. Wainwright (1963) 372 U.S. 335. .70. Cf. Kamisar Y. "A Right to Counsel and the Fourteenth Amendment: A Dialogue

on 'The Most Pervasive Right of an Accused'" (1962) 30 Univ. of Chicago LawReview 1-77.

71. 372 U.S. at 345.72. (1967) 386 F. 2d 778. .73. Cf. U. of Q. Statute 13.6(5)-committee may fine up to $50 or otherWise refer to

Senate. .74. Re Groban (1957) 352 U.S. 330 at 336. (No right to counsel at fire enqulfY). For

Australian judicial willingness to consider that quasi-judicial propriety may bepossible without lawyers see R. v. Board oj Appeal Ex parte Kay (1916) 22 C.L.R.183 at 184 per Griffith C.l.: "It might be very inconvenient if proceedings ... wereprotracted, as they might be if counsel were allowed to appear."

Pett's case (C.A.) may be a turning point, but the tenor of the comnlon lawis still against any doctrine of right to counsel in domestic hearings. It isadmittedly a long time since Coleridge J. scorned the idea of such a right in atown trader before the Cambridge University Vice-Chancellor: would the court(he asked) next have to give the right to undergraduates before the proctors, orto schoolboys before the masters? The idea was absurd.75 As recently asOctober 1970, the Court of Appeal declined to declare counsel's assistance apart of natural justice for an Oxford undergraduate facing expulsion.76 Theadverse dictim of Griffith C. J., in 1916, has already been noticed.71 Thoughstatutory in form, our Australian university discipline committees would surelybe treated as domestic in essence. However, if they are to be dressed in moreelaborate judicial trappings, the courts' expectations of them could rise.

The weight of authority on the present point is still conservative. Thereformer's problem is this: our courts feel a deep reluctance to adopt ruleswhich, overall, are likely to be uncertain, unworkable, or over-burdensome. Nodoubt a strong moral case may be made for a rigHt to counsel in "serious"domestic cases. But how are "serious" cases to be identified in advance?78 Arethe natural justice rules to vary from case to case? Might not the concept thenget out of hand? These questions were put to Lyell J. in Pett (No.2) 79 and maywell have influenced his decision. Despite recent broad dicta,80 there is so farlittle evidence that our courts are anxious to legislate for "differences of degree"in natural justice situations.81

However, positive rules of universities can move in advance of the gen~ral

law. Where the rules are silent on the present point (e.g. Sydney, AdelaIde,N.S.W., Tasmania) the common law prevails. Where they simply allow82 ordisallow83 counsel that will be the position. Where the rules leave the matter tothe discretion of the committee84 that provision, too, will displace the generallaw, for if rules can reverse the, general law85 they can make it subject to adomestic discretion.

In the matter of "representation" the discipline rules of most Australianuniversities seem to go further than the law requires..86 The motivation is nodoubt commendable. Yet one may wonder how fully-and how recently-theimplications of such a step have been considered.87 Most existing rules wereenacted when university discipline was likely to be invoked for nothing more

I complex than occasionallarrikinism or cheating in examinations. A "represent~­

tion" rule was then of small practical significance. Are those days of EdenICsimplicity about to pass? Some would have us believe so. If so, universities maybe prudent not to seek to be wiser than the common law.

75. Ex parte Death (1852) 18 Q.B. 647 at 795-6.76. Ex parte Bolchover The Times 7th October 1970.77. Supra footnote 54 et seq. . .78. Of course a dividing line may be set by rule: See e.g. Publlc Service Act 1902

(N.S.W.) s. 60.79. [1970] 1 Q.B. at 51 (A).80. Supra footnote 39; infra footnote 193.81. Contrast the U.S.: Re Groban (1957) 352 U.S. at 337 per Frankfurter l.82. Newcastle, Melbourne. . .83. No express case but A.N.D. (Rule 10(5» allows representatIon as of nght by

"another student 'or by a member of the staff of the University:" u.. "84. Papua-N.G., Flinders, Monash (quaere U. of Qld., whose conmuttees are to InqUIre

as they "deem appropriate" (Statute 13.6(4); 13.18).85. Supra footnote 67. . . . .86. I understand that the new U. of Qld. rules may prOVide explICitly for representatIon.87. Cf. infra: "Conclusion".

constitution) as interpreted by less conceptualistic judiciary. The Americancases would probably not be weighty citations before an Australian court today~That partly depends upon the spirit of the Bar. Still, this is an era of change,even in judge-made law, and it may be agreed that "natural justice" is a conceptpotentially no less "open-ended" than "due process".

In 1963 the Supreme Court of the United States ruled that defendants incriminal trials are entitled to counsel as to matter of due process of law. Whereaccused cannot afford cc;>unsel, counsel should be 'assigned'.69 Behind thatdecision lies a tradition of law and practice tending to treat legal representationas a vital element in justice where important legal or human rights are injeopardy.70 Gideon contains. a passage akin to one in the judgment of DenningM. R. in Pett: .....

"Even the educated and intelligent layman has small and sometimes no skillin the science of law ... He requires the guiding hand of counsel at everystep in the proceedings against him."71

However, Gideon is concerned with justice in the criminal courts of the land,not in domestic tribunals. Indeed, no American decision yet appears to havegone to the extent of Pett in finding a "domestic" right to counsel.

In Madera v. Board of Education72 a federal appeals court refused to declarethat a delinquent school pupil, summoned before a district education officer,was entitled to counsel. We must note that the officer's judicial functions werequite limited. He was empowered only to reco~endthe mor~dras.tic s~nc~o~s.

The officer's functions may be compared With those of umversity dISCiplineconunittees which must refer all but fairly light penalties to Senate or Councilfor consideration.73

The reluctance of the American courts to extend the right to counsel beyondthe regular courts is significant. Those courts have behind them a constitutionalversion of natural justice, now being interpreted most liberally. Yet they drawa line short of a "domestic" right to counsel. Understandably, the privatelypractising profession might draw the line more generously. The profession, or atany rate that part of it from which judges come, cannot be expected to under­estimate the value of their skills, nor to refuse a new province for litigiousendeavour. This is one consideration to bear in mind on receipt of legal advice(if any) to place a "right to counsel" clause in university or club rules. There isa wry realism in Mr. Justice Frankfurter's remark that

"In various proceedings, as for instance under some workmen's compensa­tion laws, the presence of lawyers is deemed not conducive to the economicand thorough ascertainment of the facts. The utmost devotion to one's pro­fession . . .'~ cannot lead one to erect as a constitutional principle that noadministrative inquiry can be had in camera unless a lawyer be allowed toattend."74

69. Gideon v. Wainwright (1963) 372 U.S. 335. .70. Cf. Kamisar Y. "A Right to Counsel and the Fourteenth Amendment: A Dialogue

on 'The Most Pervasive Right of an Accused'" (1962) 30 Univ. of Chicago LawReview 1-77.

71. 372 U.S. at 345.72. (1967) 386 F. 2d 778. .73. Cf. U. of Q. Statute 13.6(5)-committee may fine up to $50 or otherWise refer to

Senate. .74. Re Groban (1957) 352 U.S. 330 at 336. (No right to counsel at fire enqulfY). For

Australian judicial willingness to consider that quasi-judicial propriety may bepossible without lawyers see R. v. Board oj Appeal Ex parte Kay (1916) 22 C.L.R.183 at 184 per Griffith C.l.: "It might be very inconvenient if proceedings ... wereprotracted, as they might be if counsel were allowed to appear."

Pett's case (C.A.) may be a turning point, but the tenor of the comnlon lawis still against any doctrine of right to counsel in domestic hearings. It isadmittedly a long time since Coleridge J. scorned the idea of such a right in atown trader before the Cambridge University Vice-Chancellor: would the court(he asked) next have to give the right to undergraduates before the proctors, orto schoolboys before the masters? The idea was absurd.75 As recently asOctober 1970, the Court of Appeal declined to declare counsel's assistance apart of natural justice for an Oxford undergraduate facing expulsion.76 Theadverse dictim of Griffith C. J., in 1916, has already been noticed.71 Thoughstatutory in form, our Australian university discipline committees would surelybe treated as domestic in essence. However, if they are to be dressed in moreelaborate judicial trappings, the courts' expectations of them could rise.

The weight of authority on the present point is still conservative. Thereformer's problem is this: our courts feel a deep reluctance to adopt ruleswhich, overall, are likely to be uncertain, unworkable, or over-burdensome. Nodoubt a strong moral case may be made for a rigHt to counsel in "serious"domestic cases. But how are "serious" cases to be identified in advance?78 Arethe natural justice rules to vary from case to case? Might not the concept thenget out of hand? These questions were put to Lyell J. in Pett (No.2) 79 and maywell have influenced his decision. Despite recent broad dicta,80 there is so farlittle evidence that our courts are anxious to legislate for "differences of degree"in natural justice situations.81

However, positive rules of universities can move in advance of the gen~ral

law. Where the rules are silent on the present point (e.g. Sydney, AdelaIde,N.S.W., Tasmania) the common law prevails. Where they simply allow82 ordisallow83 counsel that will be the position. Where the rules leave the matter tothe discretion of the committee84 that provision, too, will displace the generallaw, for if rules can reverse the, general law85 they can make it subject to adomestic discretion.

In the matter of "representation" the discipline rules of most Australianuniversities seem to go further than the law requires..86 The motivation is nodoubt commendable. Yet one may wonder how fully-and how recently-theimplications of such a step have been considered.87 Most existing rules wereenacted when university discipline was likely to be invoked for nothing more

I complex than occasionallarrikinism or cheating in examinations. A "represent~­

tion" rule was then of small practical significance. Are those days of EdenICsimplicity about to pass? Some would have us believe so. If so, universities maybe prudent not to seek to be wiser than the common law.

75. Ex parte Death (1852) 18 Q.B. 647 at 795-6.76. Ex parte Bolchover The Times 7th October 1970.77. Supra footnote 54 et seq. . .78. Of course a dividing line may be set by rule: See e.g. Publlc Service Act 1902

(N.S.W.) s. 60.79. [1970] 1 Q.B. at 51 (A).80. Supra footnote 39; infra footnote 193.81. Contrast the U.S.: Re Groban (1957) 352 U.S. at 337 per Frankfurter l.82. Newcastle, Melbourne. . .83. No express case but A.N.D. (Rule 10(5» allows representatIon as of nght by

"another student 'or by a member of the staff of the University:" u.. "84. Papua-N.G., Flinders, Monash (quaere U. of Qld., whose conmuttees are to InqUIre

as they "deem appropriate" (Statute 13.6(4); 13.18).85. Supra footnote 67. . . . .86. I understand that the new U. of Qld. rules may prOVide explICitly for representatIon.87. Cf. infra: "Conclusion".

The Right to a Hearing-Content of the Rule ·1It is unnecessary to argue at length that the key rule of established natur~1l

justice--audi alteram, partem-applies in university discipline prOCeeding.s. W.'find that rule in a specifically academic context as early as 1765: R. v. Ca .,­bridge University.88 In that case Dr. Bentley, B.A., B.D., D.D., (Cantab.) w.~

contemptous towards the court of the Vice-Chancellor. The impudent fellowwas summarily divested, without hearing, of his several degrees. Bentley move~'in King's Bench for mandamus to restore his degrees. He succeeded. "EvehGod himself", reflected Fortescue J.,89 "did not pass sentence upon Adani,before he was called upon to make his defence". There was no doubt in ~E

mind of the Ch~;ef Justice that Bentley_.deserved to be "laid by the heels for hr·... ·'contempt", but first he must be hearer: .'

"The Vice-Chancellor's authority ought to be supported for the sake of keep{­ing peace witllln the University, but then he must act according to law, w.hierI do not think he has done in this case."90

1The right to a hearing, then, is of ancient lineage.9l The correlative duty to he!the person affected has been said to lie upon anyone who decides anything.fDoubtless this needs qualification, but we may safely say that when a person f'facing penalties for wrongdoing, and even expulsion from a university, thaccusers should "quote chapter and verse"93 which metaphor, beyond doub~,covers a hearing. Any suggestion that unless this right be spelt out in the rules9fit does not apply95 may in this context be disregarded.96 Decisions based purelyon academic success or failure may well be a different matter.97 So may acti0f:for misconduct by universities against their employees, even those of hig:'academic status.9B

Concerning student discipline in general, it is more profitable to ask: "Wh~t

kind of a hearing are they entitled to unaer the general law?" First, however, l~l

us consider whether a hearing is strictly necessary where .·l'

(i) an interim suspension is imposed, or '.;(ii) the discipline committee merely recommends action (if any) to a highe;

d . h· ~omestlc aut onty. ~

(i) Interim Suspensions: There may be suspension after, or even before .t~decision upon the merits is made. In other words, the authority of first instanc.!may suspend pending confirmation of its ,considered opinion by a highe!:authority; or the university or its officer may suspend forthwith, pending a~opportunity to ,consider the matter. This kind of interim suspension may b~!,

88. 1 Str. 557.89. at 567. 'I'90. at 565. \ i

91. de Smith 136-7. ..~92. Board of Education v. Rice [1911] A.C. 179 at 182. . •.,~93. R. v. Gaming Board Ex P. Benaim and Anor [1970] 2 W.L.R. at 1017 per Dennln~

M.R.94. Cf. Sydney By-Law VIII.7; Tas., Statute XXII.2.95. Nakkuda Ali v. Jayaratne [1951] A.C. 66.96. Ridge v. Baldwin [1964] A.C. 40.97. Leary v. National Union of Vehicle Builders [1970] 3 W.L.R. 434 at 446 (C-D;

but see also R. v. Aston University Senate Ex p. RoDey and Anor. [1969] 2 W.L. ·1418. '.

98. Orr v. University of Tasmania (1957) 100 C.L.R. 526; Vidyodaya Ulli~er.sltyCeylon and Ors. v. Silva [1964] 3 A.B.R. 865; but see now elaborate vanationsthe common law position effectively written into staff employment contracts e.g. t.of Q. Statute 14-Dismissals Advisory Committee.

'~.seen as emergency self-defence, or as an executive act to prevent continuing orimminent damage to the institution. As an executive act, it must be done in goodfaith, but it is submitted that no prior hearing would be required.99 It is in thenature of police action, not judicial process. If no honest and reasonable basisfor urgent action can be shown, that will go to the question of good faith. It isdesirable, if not strictly necessary, that such a power should expressly beincluded in the university-student contract, i.e. the rules. loo It would be as wellto "spell out" that where, in the opinion of the suspending authority the situationrequires it, the order may be made without a hearing at that stage. It wouldthen be fair to add that such cases must then be dealt with upon the meritswithin a set short time. tol

Where there is power to suspend pending a final determination, the case maybe different. To the extent that a discipline committee may suspend "until thematter has been disposed of by the cOlnmittee"102 the considerations in our lastparagraph may apply, although one would think that such an enlergency powerwould be better placed among the executive powers of the Vice-Chancellor.103Discipline committees, particularly ad hoc ones, take time to convene. Ex parteaction carries less conviction if delayed.

Where a power of interim suspension nlay be used pending a decision oncommittee recommendations by e.g. a Senatel04 we suggest that ex abundantecautela it should be used only after hearing the accused, for we are now a furtherstage removed from executive necessity. By the same token, the rules mightexpressly protect the committee in such a case. While a Senate in its wisdommay not share a discipline committee's view of a case, the committee may care­fully decide that it would not be proper to permit a student's rights andprivileges to continue until the date of the next Senate meeting.lOS The com­mittee then has to anticipate the decision of the final tribunal. It may anticipateincorrectly, though in good faith. The committee, in such event, should be savedharmless. l06 ,

(ii) Where the committee Hrecomm'ends" It is said that the determination ofrights is essential to judicial functions, so where a person or group simplyrecommends an action or a penalty, no h.earing is necessary.107 What is theposition where a discipline committee has no power to impose a certain penalty,but only power to recommend that the Senate impose it?lOB Is a hearing thennecessary? Yes: recommendations without a hearing carry little weight, even ifthey are not a breach of natural justice. This applies a fortiori where the com­mittee possesses some power of final judgment (e.g. to fine), The fact that inretrospect such a committee has merely "recommended" may be no answer toa complaint that at the outset it had open the possibility of using its own powers

99. de Smith 175, 179.100. E.g. Melbourne Statute 4.1.1 (1)(b) If it is in the domestic rules it will be judicially

recognised albeit reluctantly. Cf. Byrne v. K.R.S. [1958] 2 A.E.R. at 590.101. W.A. Statute 17.6 (a), 17.3 (5) (ii) (14 days) seems better than Newcastle By-Law

4.1.4. ("as soon as possible").102. U. of Q. Statute 13.6(7).103. Cf. footnote 99.104. E.g. U. of Q. Statute 13.6(7).105. At Flinders Univ., however, no Board of Discipline decision takes effect until 14

days after it is reported to Council: Statute 6.4.10 (Too inflexible?).106. Cf. the protection in costs for the Statutory Committee of the Qld. Law Society

when in error: In re a Solicitor [1932] St.R.Qd. 33.107. Testro Bros. Pty. Ltd. v. Tait (1963) 109 C.L.R. 353; Re N.S.W. Bar Association Ex

parte Evatt [1967] 1 N.S.W.R. 695.108. Cf. U. of Q. Statute 13.6(5)-may fine up to $50, otherwise required to recommend

to Senate.

The Right to a Hearing-Content of the Rule ·1It is unnecessary to argue at length that the key rule of established natur~1l

justice--audi alteram, partem-applies in university discipline prOCeeding.s. W.'find that rule in a specifically academic context as early as 1765: R. v. Ca .,­bridge University.88 In that case Dr. Bentley, B.A., B.D., D.D., (Cantab.) w.~

contemptous towards the court of the Vice-Chancellor. The impudent fellowwas summarily divested, without hearing, of his several degrees. Bentley move~'in King's Bench for mandamus to restore his degrees. He succeeded. "EvehGod himself", reflected Fortescue J.,89 "did not pass sentence upon Adani,before he was called upon to make his defence". There was no doubt in ~E

mind of the Ch~;ef Justice that Bentley_.deserved to be "laid by the heels for hr·... ·'contempt", but first he must be hearer: .'

"The Vice-Chancellor's authority ought to be supported for the sake of keep{­ing peace witllln the University, but then he must act according to law, w.hierI do not think he has done in this case."90

1The right to a hearing, then, is of ancient lineage.9l The correlative duty to he!the person affected has been said to lie upon anyone who decides anything.fDoubtless this needs qualification, but we may safely say that when a person f'facing penalties for wrongdoing, and even expulsion from a university, thaccusers should "quote chapter and verse"93 which metaphor, beyond doub~,covers a hearing. Any suggestion that unless this right be spelt out in the rules9fit does not apply95 may in this context be disregarded.96 Decisions based purelyon academic success or failure may well be a different matter.97 So may acti0f:for misconduct by universities against their employees, even those of hig:'academic status.9B

Concerning student discipline in general, it is more profitable to ask: "Wh~t

kind of a hearing are they entitled to unaer the general law?" First, however, l~l

us consider whether a hearing is strictly necessary where .·l'

(i) an interim suspension is imposed, or '.;(ii) the discipline committee merely recommends action (if any) to a highe;

d . h· ~omestlc aut onty. ~

(i) Interim Suspensions: There may be suspension after, or even before .t~decision upon the merits is made. In other words, the authority of first instanc.!may suspend pending confirmation of its ,considered opinion by a highe!:authority; or the university or its officer may suspend forthwith, pending a~opportunity to ,consider the matter. This kind of interim suspension may b~!,

88. 1 Str. 557.89. at 567. 'I'90. at 565. \ i

91. de Smith 136-7. ..~92. Board of Education v. Rice [1911] A.C. 179 at 182. . •.,~93. R. v. Gaming Board Ex P. Benaim and Anor [1970] 2 W.L.R. at 1017 per Dennln~

M.R.94. Cf. Sydney By-Law VIII.7; Tas., Statute XXII.2.95. Nakkuda Ali v. Jayaratne [1951] A.C. 66.96. Ridge v. Baldwin [1964] A.C. 40.97. Leary v. National Union of Vehicle Builders [1970] 3 W.L.R. 434 at 446 (C-D;

but see also R. v. Aston University Senate Ex p. RoDey and Anor. [1969] 2 W.L. ·1418. '.

98. Orr v. University of Tasmania (1957) 100 C.L.R. 526; Vidyodaya Ulli~er.sltyCeylon and Ors. v. Silva [1964] 3 A.B.R. 865; but see now elaborate vanationsthe common law position effectively written into staff employment contracts e.g. t.of Q. Statute 14-Dismissals Advisory Committee.

'~.seen as emergency self-defence, or as an executive act to prevent continuing orimminent damage to the institution. As an executive act, it must be done in goodfaith, but it is submitted that no prior hearing would be required.99 It is in thenature of police action, not judicial process. If no honest and reasonable basisfor urgent action can be shown, that will go to the question of good faith. It isdesirable, if not strictly necessary, that such a power should expressly beincluded in the university-student contract, i.e. the rules. loo It would be as wellto "spell out" that where, in the opinion of the suspending authority the situationrequires it, the order may be made without a hearing at that stage. It wouldthen be fair to add that such cases must then be dealt with upon the meritswithin a set short time. tol

Where there is power to suspend pending a final determination, the case maybe different. To the extent that a discipline committee may suspend "until thematter has been disposed of by the cOlnmittee"102 the considerations in our lastparagraph may apply, although one would think that such an enlergency powerwould be better placed among the executive powers of the Vice-Chancellor.103Discipline committees, particularly ad hoc ones, take time to convene. Ex parteaction carries less conviction if delayed.

Where a power of interim suspension nlay be used pending a decision oncommittee recommendations by e.g. a Senatel04 we suggest that ex abundantecautela it should be used only after hearing the accused, for we are now a furtherstage removed from executive necessity. By the same token, the rules mightexpressly protect the committee in such a case. While a Senate in its wisdommay not share a discipline committee's view of a case, the committee may care­fully decide that it would not be proper to permit a student's rights andprivileges to continue until the date of the next Senate meeting.lOS The com­mittee then has to anticipate the decision of the final tribunal. It may anticipateincorrectly, though in good faith. The committee, in such event, should be savedharmless. l06 ,

(ii) Where the committee Hrecomm'ends" It is said that the determination ofrights is essential to judicial functions, so where a person or group simplyrecommends an action or a penalty, no h.earing is necessary.107 What is theposition where a discipline committee has no power to impose a certain penalty,but only power to recommend that the Senate impose it?lOB Is a hearing thennecessary? Yes: recommendations without a hearing carry little weight, even ifthey are not a breach of natural justice. This applies a fortiori where the com­mittee possesses some power of final judgment (e.g. to fine), The fact that inretrospect such a committee has merely "recommended" may be no answer toa complaint that at the outset it had open the possibility of using its own powers

99. de Smith 175, 179.100. E.g. Melbourne Statute 4.1.1 (1)(b) If it is in the domestic rules it will be judicially

recognised albeit reluctantly. Cf. Byrne v. K.R.S. [1958] 2 A.E.R. at 590.101. W.A. Statute 17.6 (a), 17.3 (5) (ii) (14 days) seems better than Newcastle By-Law

4.1.4. ("as soon as possible").102. U. of Q. Statute 13.6(7).103. Cf. footnote 99.104. E.g. U. of Q. Statute 13.6(7).105. At Flinders Univ., however, no Board of Discipline decision takes effect until 14

days after it is reported to Council: Statute 6.4.10 (Too inflexible?).106. Cf. the protection in costs for the Statutory Committee of the Qld. Law Society

when in error: In re a Solicitor [1932] St.R.Qd. 33.107. Testro Bros. Pty. Ltd. v. Tait (1963) 109 C.L.R. 353; Re N.S.W. Bar Association Ex

parte Evatt [1967] 1 N.S.W.R. 695.108. Cf. U. of Q. Statute 13.6(5)-may fine up to $50, otherwise required to recommend

to Senate.

of final judgment, so that a hearing was obligatory. Natural justice in a secondtribunal does not cure defects of natural justice in the first. 109 In Tait v. TestroBros. and in Ex parte Evatt, any further action. would have been completely denovo in a discrete court of law whereas a discipline committee's recommenda­tions are part of one internal'process. It would be unsafe to omit a hearingbefore a "reconunending" committee.110

We may now return to the principal question: what kind of hearing must begiven? How elaborate must the procedures be? We have seen that the hearingmay be in camera, and that there is probably no general right to leg.al representa­tion. How formal and detailed must the charges be? Does the heanng have to bean oral one? Orin adversary form? Qpes natural justice imply a right of cross­examination of adverse witnesses by the accused? How impartial must the"judges" be?

The ChargesThe accused is entitled to know "the nature of the accusation made".111 He

"must have notice of what he is accused."112 What more can the general lawprescribe? There is no Archbold for discipline committee pr~ctice! It is har~ tosee how the position regarding charges could be other than flUId. 113 The questIonwhether a charge is sufficient is one of fact. In the Ceylon University case114 itwas enough that Vice-Chancellor Ivor Jennings told Fernando by letter that hewas accused of knowing contents of examination papers in advance. It is doubt­ful whether an exp,ress rule requiring "all proper particulars" to be given addsanything to the law, or to our general knowledge.115 No doubt the particularityrequired will depend upon the breadth or narrowness of the rule allegedlybroken. A charge of "conduct disreputable to the University", to be fairlyanswerable, would probably need more particulars than a charge of cheating orof property damage. If the rules attempt to render the "general ar~cle"116.some­what nlore explicit,117 it will be desirable to indicate the sub-sectIons relted on,

109.110.

111.112.113.114.115.116.

117.

Leary v. National Union of Vehicle Builders ~1970] 3 ~.L.~. 434. .Even, I submit, where the rules merely reqUIre a heanng before any penalty ISimposed""U. of Q. Statute 13.18.University of Ceylon v. Fernando [1960] 1 A.E.R. at 638.Leeson v. General Medical Council (1889) 43 Ch. D. 366 at 383.Cf. de Smith 185.[1960] 1 A.E.R. 631.Melbourne Statute 2.7.6(a).The term is borrowed from military law, where it denotes the offence of conduct"prejudicial to good order and discipl~ne". [Enderby K. E. "Courts ~~rtial Appea~sin Australia" (1964 1 Fed. Law ReView 95-121 at 118-119).] A SImIlar charge ISfamiliar to the legal and medical professions. Ex parte Spackman [1942] 2 K.B: 261.Several of our universities base their discipline rules on the even broader premIse ofa "breach of discipline", without more. [Sydney, Macquarie, N.S.W., Adelai~e,

Monash Tasmania, Newcastle.] A few [A.N.U., Qld., Papua & N.G .., W.A.] mentIon"disrepu'tabl~ conduct", and bravely proceed to t9' to ~!v~ it (a~? "misconduct")sonle definition. [E.g. U. of Q. Statute 13.1 (1)] SImple dIsrepute IS a matter forinference by the committee, from evidence or from its own knowledge or experience,not for witnesses swearing to the issue. [R. v. Jarnlall (1953); R. v. Phillips (1961)-both unreported but see Enderby loco cit. at 120.] The "general arti~l~ is easy tocriticise in good. faith or otherwise. However, it can hardly be admInistered permediun; of referenda. It could only be replaced, if at all by vastly more complex,legalistic and inflexible rules; and even the wide-ranging criminal law finds need ofopen-ended concepts like unlawful assembl~. The. theore~ical objections.to . itsgenerality can wel~ be J!1et by t~e.c~arge partIculars In spec!fic c.ases. An ~bJechonto the "general artIcle" In the dlsclphne. rUI~s of Monash UnIverSIty was rejected ~yGowans J. in the Supreme Court of Victona on 14th December 1970. See note InThe Australian 15th December 1970-5. "E.g. A.N.U. Discipline Rule 1(1). "

'I

J

- .•.. _ ..- _.__ •• - ••• - •• ~ •• - _ _ - J--"--'

and then to particularise further,t18 although the court in Dawkins v.Antrobus119 was content with less: "The club committee may have consideredthe immediate conduct a culminating act, though they may not have so expressedit."120

The sufficiency of a charge is, in the first instance, a question for the domestictribunal. However, "as this is a natural justice issue, any such decision of thetribunal is open· to review in a court of law. The same applies to sufficiency oftime to prepare a defence. Denial of reasonable time, or refusal of an adjourn­ment for serious cause, may amount to denial of a hearing.121

Oral HearingsOur court lawyers are deeply accustomed to oral hearings. Their techniques

in large measure depend upon them; they are habituated to them. However, not­withstanding a passing dictum of Lord Denning122 there is no present authoritybinding domestic tribunals to proceed viva voce.

Judges have often stated that domestic tribunals need not conduct proceed­ings in a form recognisably like that of a court of law.12~ The suggestion that adomestic tribunal must attain the procedural standards of a Magistrates' Courtof lay justices has been roundly rejected.124 The courts consider the realities ofdomestic tribunals125 and of their parent bodies needs, resources and desirableautonomy. However, what future courts may require of associations whichchoose to deck out their tribunals in all but wigs and gowns remains to be seen.They who live by "judicialisation" may "die" by it in some future developmentof natural justice.

At present, given bona fides, domestic tribunals may inform themselves asthey see fit. They are by no means bound to follow adversary procedure. Nodistinct prosecutor is necessary or, perhaps, conunon.126 Like the juries of old,they luay act upon their own knowledge, or upon hearsay.t 27 Once the inquiryhas begun, the tribunal generally should not receive information128 withoutdisclosing it to the accused.129 However this is no autonomous rllie, but merely aguide to what is genuine "hearing". In given cases the policy of disclosure mayhave to yield to "considerations of fairness to other people".130 In any event,there is no rule that such information, or any information, must be received (orrelayed to the accused) orally. Nor need it be received in the presence of theaccused. In the University of Ceylon case, it was enough that the Vice-

118. E.g. "You are guilty of conduct contrary to the good repute of the University, anddetrimental to the interests of X., a student of the University in that ..." [Cf. U. ofQ. Statute 13.1(vi)].

119. (1881) 17Ch.D.615.120. Ibid, at 624 per Jessel M.R.121. Rose v. HU111bles [1970] 1 W.L.R. 1061.122. Pelt v. Greyhound Racing Assn [1969] 1 Q.B. at 133.123. The phrase is that of Dwyer J. Evan v. Winterbottonl (1945) 47 W.A.L.R. 79

(Racing club inquiry).124. Russell v. Duke of Norfolk [1949] 1 A.E.R. 109 at 118 per Tucker L. J.125. Maclean v. Workers' Unioll [1929] 1 Ch. 602 at 620-621, and cf. the sympathetic

application of the aims and limits of the trade union tribunal in Bailey v. A "ern(1968) 13 F.L.R. 199 (Kerr J.).

126. Maclean v. Workers' Union [1926] 1 Ch. at 626. Recently the University LegalOfficer has "prosecuted" before Qld. University Committees.

127. Ibid at 621. .128. For reasons for preferring "information" to "evidence" see Maclean's case [1926]

1 Ch. at 621.129. Shareef v. Conlnlissioner for Registration of Indian and Pakistani Residents [1965]

3 W.L.R. 704.130. Mobil Oil Australia Pty. Ltd. v. Commissioner of Taxation (1963) 37 A.L.J.R. at

190 per Kitto J.

of final judgment, so that a hearing was obligatory. Natural justice in a secondtribunal does not cure defects of natural justice in the first. 109 In Tait v. TestroBros. and in Ex parte Evatt, any further action. would have been completely denovo in a discrete court of law whereas a discipline committee's recommenda­tions are part of one internal'process. It would be unsafe to omit a hearingbefore a "reconunending" committee.110

We may now return to the principal question: what kind of hearing must begiven? How elaborate must the procedures be? We have seen that the hearingmay be in camera, and that there is probably no general right to leg.al representa­tion. How formal and detailed must the charges be? Does the heanng have to bean oral one? Orin adversary form? Qpes natural justice imply a right of cross­examination of adverse witnesses by the accused? How impartial must the"judges" be?

The ChargesThe accused is entitled to know "the nature of the accusation made".111 He

"must have notice of what he is accused."112 What more can the general lawprescribe? There is no Archbold for discipline committee pr~ctice! It is har~ tosee how the position regarding charges could be other than flUId. 113 The questIonwhether a charge is sufficient is one of fact. In the Ceylon University case114 itwas enough that Vice-Chancellor Ivor Jennings told Fernando by letter that hewas accused of knowing contents of examination papers in advance. It is doubt­ful whether an exp,ress rule requiring "all proper particulars" to be given addsanything to the law, or to our general knowledge.115 No doubt the particularityrequired will depend upon the breadth or narrowness of the rule allegedlybroken. A charge of "conduct disreputable to the University", to be fairlyanswerable, would probably need more particulars than a charge of cheating orof property damage. If the rules attempt to render the "general ar~cle"116.some­what nlore explicit,117 it will be desirable to indicate the sub-sectIons relted on,

109.110.

111.112.113.114.115.116.

117.

Leary v. National Union of Vehicle Builders ~1970] 3 ~.L.~. 434. .Even, I submit, where the rules merely reqUIre a heanng before any penalty ISimposed""U. of Q. Statute 13.18.University of Ceylon v. Fernando [1960] 1 A.E.R. at 638.Leeson v. General Medical Council (1889) 43 Ch. D. 366 at 383.Cf. de Smith 185.[1960] 1 A.E.R. 631.Melbourne Statute 2.7.6(a).The term is borrowed from military law, where it denotes the offence of conduct"prejudicial to good order and discipl~ne". [Enderby K. E. "Courts ~~rtial Appea~sin Australia" (1964 1 Fed. Law ReView 95-121 at 118-119).] A SImIlar charge ISfamiliar to the legal and medical professions. Ex parte Spackman [1942] 2 K.B: 261.Several of our universities base their discipline rules on the even broader premIse ofa "breach of discipline", without more. [Sydney, Macquarie, N.S.W., Adelai~e,

Monash Tasmania, Newcastle.] A few [A.N.U., Qld., Papua & N.G .., W.A.] mentIon"disrepu'tabl~ conduct", and bravely proceed to t9' to ~!v~ it (a~? "misconduct")sonle definition. [E.g. U. of Q. Statute 13.1 (1)] SImple dIsrepute IS a matter forinference by the committee, from evidence or from its own knowledge or experience,not for witnesses swearing to the issue. [R. v. Jarnlall (1953); R. v. Phillips (1961)-both unreported but see Enderby loco cit. at 120.] The "general arti~l~ is easy tocriticise in good. faith or otherwise. However, it can hardly be admInistered permediun; of referenda. It could only be replaced, if at all by vastly more complex,legalistic and inflexible rules; and even the wide-ranging criminal law finds need ofopen-ended concepts like unlawful assembl~. The. theore~ical objections.to . itsgenerality can wel~ be J!1et by t~e.c~arge partIculars In spec!fic c.ases. An ~bJechonto the "general artIcle" In the dlsclphne. rUI~s of Monash UnIverSIty was rejected ~yGowans J. in the Supreme Court of Victona on 14th December 1970. See note InThe Australian 15th December 1970-5. "E.g. A.N.U. Discipline Rule 1(1). "

'I

J

- .•.. _ ..- _.__ •• - ••• - •• ~ •• - _ _ - J--"--'

and then to particularise further,t18 although the court in Dawkins v.Antrobus119 was content with less: "The club committee may have consideredthe immediate conduct a culminating act, though they may not have so expressedit."120

The sufficiency of a charge is, in the first instance, a question for the domestictribunal. However, "as this is a natural justice issue, any such decision of thetribunal is open· to review in a court of law. The same applies to sufficiency oftime to prepare a defence. Denial of reasonable time, or refusal of an adjourn­ment for serious cause, may amount to denial of a hearing.121

Oral HearingsOur court lawyers are deeply accustomed to oral hearings. Their techniques

in large measure depend upon them; they are habituated to them. However, not­withstanding a passing dictum of Lord Denning122 there is no present authoritybinding domestic tribunals to proceed viva voce.

Judges have often stated that domestic tribunals need not conduct proceed­ings in a form recognisably like that of a court of law.12~ The suggestion that adomestic tribunal must attain the procedural standards of a Magistrates' Courtof lay justices has been roundly rejected.124 The courts consider the realities ofdomestic tribunals125 and of their parent bodies needs, resources and desirableautonomy. However, what future courts may require of associations whichchoose to deck out their tribunals in all but wigs and gowns remains to be seen.They who live by "judicialisation" may "die" by it in some future developmentof natural justice.

At present, given bona fides, domestic tribunals may inform themselves asthey see fit. They are by no means bound to follow adversary procedure. Nodistinct prosecutor is necessary or, perhaps, conunon.126 Like the juries of old,they luay act upon their own knowledge, or upon hearsay.t 27 Once the inquiryhas begun, the tribunal generally should not receive information128 withoutdisclosing it to the accused.129 However this is no autonomous rllie, but merely aguide to what is genuine "hearing". In given cases the policy of disclosure mayhave to yield to "considerations of fairness to other people".130 In any event,there is no rule that such information, or any information, must be received (orrelayed to the accused) orally. Nor need it be received in the presence of theaccused. In the University of Ceylon case, it was enough that the Vice-

118. E.g. "You are guilty of conduct contrary to the good repute of the University, anddetrimental to the interests of X., a student of the University in that ..." [Cf. U. ofQ. Statute 13.1(vi)].

119. (1881) 17Ch.D.615.120. Ibid, at 624 per Jessel M.R.121. Rose v. HU111bles [1970] 1 W.L.R. 1061.122. Pelt v. Greyhound Racing Assn [1969] 1 Q.B. at 133.123. The phrase is that of Dwyer J. Evan v. Winterbottonl (1945) 47 W.A.L.R. 79

(Racing club inquiry).124. Russell v. Duke of Norfolk [1949] 1 A.E.R. 109 at 118 per Tucker L. J.125. Maclean v. Workers' Unioll [1929] 1 Ch. 602 at 620-621, and cf. the sympathetic

application of the aims and limits of the trade union tribunal in Bailey v. A "ern(1968) 13 F.L.R. 199 (Kerr J.).

126. Maclean v. Workers' Union [1926] 1 Ch. at 626. Recently the University LegalOfficer has "prosecuted" before Qld. University Committees.

127. Ibid at 621. .128. For reasons for preferring "information" to "evidence" see Maclean's case [1926]

1 Ch. at 621.129. Shareef v. Conlnlissioner for Registration of Indian and Pakistani Residents [1965]

3 W.L.R. 704.130. Mobil Oil Australia Pty. Ltd. v. Commissioner of Taxation (1963) 37 A.L.J.R. at

190 per Kitto J.

...- - .... ~.._... -. ""C.--_..__....- _.... J-_······fChancellor, in private interview, gave Fernando the gist of the complaints ma~.~and information given against bim.lal

It may be said that any cross-examination, at least, must be oral. Should Wi

assume this? It is not yet clear that a general right to cross-examine "domestic'witnesses exists.132 If there be such a right, it does not follow inevitably thatl.ttmust be exercised orally. So long as the law permits domestic judges to ta~E

"evidence in chief" by hearsay, from their own knowledge, or in writing, mii...inot the duty (if any) to allow cross-e~amination be satisfied by written inte-rogatories? , .

The question of an oral hearing i~ variously treated in existing Universit~

rules. Some simply require that the accused have "a reasonable opportunity ofanswering the charge".133 Some say even less, 134 although no doubt au4ialteraln partem applies in any event. Others speak of a right to give, or brin~

"evidence"135 without prescribing any form in which it is to be received. How­ever Melbourne University (Statute No. 2.7.6(b), (c)), closely followed b1,Newcastle, allows the accused to "make representations, either orally or if;.writing, or both", and to "give and call evidence". Here as elsewhere, domesti~rules may add to the legal duties of the general law. Monash rules simply sta¢that "he shall have the right to be heard and to call evidence" (Statute 4.1.7).1

Cross-Examination? ;

If there be legal counsel, it follows, almost as the night the day, that or11cross-examination will be sought. On this specific point, none of the sets of rul~sexamined is explicit. Would a denial of cross-examination be a denial of .~"hearing", or a failure to "inquire"? Does "calling evidence"136 necessarily impl~a right to cross-examine?137 r

No doubt a domestic tribunal has a discretion to limlt cross-examination upohgeneral grounds of relevance, within the broad limits of bona fides. 138 There isno precise rule for this aspect of judicial work even in the courts.139 prObably·~t.~ribu?al has a disc~etion t? re~e to hear a multiplici~y of witnesses "in Chief·,'.If satIsfied that therr contrIbution would be nugatory, Irrelevant or repetitive, athat they are present as sympathisers or protestors rather than witnesses.14o ~

However, the basic question is more difficult to answer. Two quite differe~tapproaches are open. On the one hand, one may say that fairness, at least inquasi-criminal cases, demands a right to cross-examine, as well as a right tp -­counsel. (In pr.actice the two claims are closely linked.)141 This argument ,,:!pprobably seek to enlist broad commonsense; in reality, it may be heav~

influenced by an assumption by lawyers, that lawyers' traditional ways qfgoverning and deciding are uniquely good and just, in and out of court. Heff:ther.e may occur a curious coalition between English-style lawyers' interests an~

habIts and the pressures outlined above.142 Even Denning M. R. is wary abo 't

131. University of Ceylon v. Fernando [1960] 1 A.B.R. at 639 (E-F).132. Infra sub-title "Cross-Examination".133. P. & N.G. No.6 of 1967 s. 18(i); U. of Q. Statute13.18.!134. E.g. Sydney, Adelaide, N.S.W., Macquarie. ~135. A.N.U. Rule 10(6); W.A. Statute 17.3(41). '136. Supra footnote 135.137. Not, at any rate,for purposes of deciding the order of addresses in an ordinary cou ••..138 . Cf. Maclean v. Workers' Union [1929] Ch. at 625-6; infra f.n. 164. .139. R. v. Smallman (1914) 10 Cr.App.R. 1.140. Bailey v. Ahern (1968) 13 F.L.R. 199 at 211 (C'wealth Ind. Ct.).141. Cf. Pelt v. G.R.A. [1969] 1 Q.B. at 133(C).142. Cf. footnote 212 infra.

"' y ,w... ...,. ...., ,-, . I''''' • II "'., ". ""I" , .. J"""' •• .-... .. ;.

declaring a right to confrontation, and hence cross-examination, of domesticwitnesses for the "prosecution".143

The opposite approach would confine itself to the search for any positivelegal rule giving a right to "domestic" cross-examination. This approach albeitconservative is not necessarily narrow. It might take the broad view that it isnot necessarily wise, or just, for domestic tribunals to let themselves be bustledinto judicial trappings far in advance of the law's requirements.

In the University of Ceylon case, it was not a breach of natural justice toomit cross-examination, because the accused did not seek it.144 So it seemsthat at least a domestic tribunal does not have to invite cross-examination ofwitnesses. But in the same place there are dicta of the Privy Council suggestingthat it might be contrary to natural justice to deny cross-examination if it wererequested.145 It is submitted that these are passing dicta, far from condusive. Inthe judgment of Denning M. R. in Pett,146 there are dicta, (even more obiter)that "fairness" "in such a case as this" calls for "an oral hearing then legalrepresentation". If pressed, the Master of the Rolls would probably have added"and then cross-examination".

More recently, however, Denning M. R. dealt with a case involving a licenceno less valuable than Mr. Pett's greyhound trainers licence.147 On this occasionhis Lordship refused to hold that natural justice required the Board even toidentify their "witness"

"... if that would put their informant in peril, or otherwise be contrary to thepublic interest. Even in a criminal trial, a witness cannot be asked who is hisinformer ... Rex. v. Hardy 24 State Trials 199, 208."

It seems fair to add that a criminal court cannot act upon information left out offormal evidence, whereas a domestic tribunal may. However to make that con­sideration the basis of a "cross-e!amination rule" would be to discard all, ormost of the settled law upon the permissible informality and pluralism ofdomestic proceedings. A witness at law, however willing to testify, can ask for,and "shelter behind" a subpoena. He comes, usually, from a wider, looser-knitcommunity, often oblivious of his role as witness. The law can protect himbefore and after he testifies. The "domestic" witness is differently placed; notleast, in a small sub-section of Australian society, he is apt to be abused as adishonourable informer.148 For similar reasons, an American court, in 1956,refused to intervene when Illinois University expelled a medical student forcheating. The University heard her story, but declined to identify its source ofinformation to her.149 The High Court of Australia has held that cross-examina­tion is no part of natural justice before a War Pensions Tribuna1.15o

"Natural justice" is at heart a matter of morality and policy. Once such bed­rock principles as audi alteram partem are left behind, the courts recognisecompeting policies. If witnesses identify themselves by voluntarily appearing atdomestic hearings, should they then be further discouraged (and domestic

143. [1970] 2 W.L.R. at 1017.144. [1960] 1 A.E.R. at 641(1).145. See also Osgood v. Nelson (1872) L.R. 5 H.L. 636 at 646 per Martin B.146. [1969] 1 Q.B. at 133(C).147. A gaming licence: R. v. Ganling Board, Ex p. Benailn & Allor [1970] 2 W.L.R. 1009

at 1017.148. Cf. Sherman v. Hyman (1943) 171 S.W. 2d 822. (U.S.)149. People ex rei. Bluett v. Board of Trustees oj the Ulliversity of Illinois 134 N.E. 2d

635.150. R. v. War Pensions Entitlement Appeal Tribunal, Ex p. Bott (1933) 50 C.L.R. 228.

...- - .... ~.._... -. ""C.--_..__....- _.... J-_······fChancellor, in private interview, gave Fernando the gist of the complaints ma~.~and information given against bim.lal

It may be said that any cross-examination, at least, must be oral. Should Wi

assume this? It is not yet clear that a general right to cross-examine "domestic'witnesses exists.132 If there be such a right, it does not follow inevitably thatl.ttmust be exercised orally. So long as the law permits domestic judges to ta~E

"evidence in chief" by hearsay, from their own knowledge, or in writing, mii...inot the duty (if any) to allow cross-e~amination be satisfied by written inte-rogatories? , .

The question of an oral hearing i~ variously treated in existing Universit~

rules. Some simply require that the accused have "a reasonable opportunity ofanswering the charge".133 Some say even less, 134 although no doubt au4ialteraln partem applies in any event. Others speak of a right to give, or brin~

"evidence"135 without prescribing any form in which it is to be received. How­ever Melbourne University (Statute No. 2.7.6(b), (c)), closely followed b1,Newcastle, allows the accused to "make representations, either orally or if;.writing, or both", and to "give and call evidence". Here as elsewhere, domesti~rules may add to the legal duties of the general law. Monash rules simply sta¢that "he shall have the right to be heard and to call evidence" (Statute 4.1.7).1

Cross-Examination? ;

If there be legal counsel, it follows, almost as the night the day, that or11cross-examination will be sought. On this specific point, none of the sets of rul~sexamined is explicit. Would a denial of cross-examination be a denial of .~"hearing", or a failure to "inquire"? Does "calling evidence"136 necessarily impl~a right to cross-examine?137 r

No doubt a domestic tribunal has a discretion to limlt cross-examination upohgeneral grounds of relevance, within the broad limits of bona fides. 138 There isno precise rule for this aspect of judicial work even in the courts.139 prObably·~t.~ribu?al has a disc~etion t? re~e to hear a multiplici~y of witnesses "in Chief·,'.If satIsfied that therr contrIbution would be nugatory, Irrelevant or repetitive, athat they are present as sympathisers or protestors rather than witnesses.14o ~

However, the basic question is more difficult to answer. Two quite differe~tapproaches are open. On the one hand, one may say that fairness, at least inquasi-criminal cases, demands a right to cross-examine, as well as a right tp -­counsel. (In pr.actice the two claims are closely linked.)141 This argument ,,:!pprobably seek to enlist broad commonsense; in reality, it may be heav~

influenced by an assumption by lawyers, that lawyers' traditional ways qfgoverning and deciding are uniquely good and just, in and out of court. Heff:ther.e may occur a curious coalition between English-style lawyers' interests an~

habIts and the pressures outlined above.142 Even Denning M. R. is wary abo 't

131. University of Ceylon v. Fernando [1960] 1 A.B.R. at 639 (E-F).132. Infra sub-title "Cross-Examination".133. P. & N.G. No.6 of 1967 s. 18(i); U. of Q. Statute13.18.!134. E.g. Sydney, Adelaide, N.S.W., Macquarie. ~135. A.N.U. Rule 10(6); W.A. Statute 17.3(41). '136. Supra footnote 135.137. Not, at any rate,for purposes of deciding the order of addresses in an ordinary cou ••..138 . Cf. Maclean v. Workers' Union [1929] Ch. at 625-6; infra f.n. 164. .139. R. v. Smallman (1914) 10 Cr.App.R. 1.140. Bailey v. Ahern (1968) 13 F.L.R. 199 at 211 (C'wealth Ind. Ct.).141. Cf. Pelt v. G.R.A. [1969] 1 Q.B. at 133(C).142. Cf. footnote 212 infra.

"' y ,w... ...,. ...., ,-, . I''''' • II "'., ". ""I" , .. J"""' •• .-... .. ;.

declaring a right to confrontation, and hence cross-examination, of domesticwitnesses for the "prosecution".143

The opposite approach would confine itself to the search for any positivelegal rule giving a right to "domestic" cross-examination. This approach albeitconservative is not necessarily narrow. It might take the broad view that it isnot necessarily wise, or just, for domestic tribunals to let themselves be bustledinto judicial trappings far in advance of the law's requirements.

In the University of Ceylon case, it was not a breach of natural justice toomit cross-examination, because the accused did not seek it.144 So it seemsthat at least a domestic tribunal does not have to invite cross-examination ofwitnesses. But in the same place there are dicta of the Privy Council suggestingthat it might be contrary to natural justice to deny cross-examination if it wererequested.145 It is submitted that these are passing dicta, far from condusive. Inthe judgment of Denning M. R. in Pett,146 there are dicta, (even more obiter)that "fairness" "in such a case as this" calls for "an oral hearing then legalrepresentation". If pressed, the Master of the Rolls would probably have added"and then cross-examination".

More recently, however, Denning M. R. dealt with a case involving a licenceno less valuable than Mr. Pett's greyhound trainers licence.147 On this occasionhis Lordship refused to hold that natural justice required the Board even toidentify their "witness"

"... if that would put their informant in peril, or otherwise be contrary to thepublic interest. Even in a criminal trial, a witness cannot be asked who is hisinformer ... Rex. v. Hardy 24 State Trials 199, 208."

It seems fair to add that a criminal court cannot act upon information left out offormal evidence, whereas a domestic tribunal may. However to make that con­sideration the basis of a "cross-e!amination rule" would be to discard all, ormost of the settled law upon the permissible informality and pluralism ofdomestic proceedings. A witness at law, however willing to testify, can ask for,and "shelter behind" a subpoena. He comes, usually, from a wider, looser-knitcommunity, often oblivious of his role as witness. The law can protect himbefore and after he testifies. The "domestic" witness is differently placed; notleast, in a small sub-section of Australian society, he is apt to be abused as adishonourable informer.148 For similar reasons, an American court, in 1956,refused to intervene when Illinois University expelled a medical student forcheating. The University heard her story, but declined to identify its source ofinformation to her.149 The High Court of Australia has held that cross-examina­tion is no part of natural justice before a War Pensions Tribuna1.15o

"Natural justice" is at heart a matter of morality and policy. Once such bed­rock principles as audi alteram partem are left behind, the courts recognisecompeting policies. If witnesses identify themselves by voluntarily appearing atdomestic hearings, should they then be further discouraged (and domestic

143. [1970] 2 W.L.R. at 1017.144. [1960] 1 A.E.R. at 641(1).145. See also Osgood v. Nelson (1872) L.R. 5 H.L. 636 at 646 per Martin B.146. [1969] 1 Q.B. at 133(C).147. A gaming licence: R. v. Ganling Board, Ex p. Benailn & Allor [1970] 2 W.L.R. 1009

at 1017.148. Cf. Sherman v. Hyman (1943) 171 S.W. 2d 822. (U.S.)149. People ex rei. Bluett v. Board of Trustees oj the Ulliversity of Illinois 134 N.E. 2d

635.150. R. v. War Pensions Entitlement Appeal Tribunal, Ex p. Bott (1933) 50 C.L.R. 228.

justice further hampered) by a right of cross-exam!nation? Ho~ can tri~una1swhich have no power to compel witnesses to give eVIdence-tn-chIef be subject toa duty to hold cross-examinations? At most, there might be a duty to hear cross­examination, if requested, and if the witness consents. But suppose, ~hen, th~tthe witness declines to be cross-examined. Must the tribunal totally dIscard hISevidence?

The demand for cross-examination depends upon an analogy betweeJ?domestic inquiries, on one hand, and trials and evidence at law, on the other.The analogy breaks down at several points.151 Besides, while domestic tribunalsare at liberty to inform themselves so freely, cross-ex~m~ationwill often be l~sscrucial than in a court of law. Of course, cross-examInation may be voluntartlygranted and answered. If not, the aCcused's interests may best be se~ve~ byusing the informality of proceedings to include matters of cross-examlnanon,and of comment, in his own evidence and "representations".Bias'

Short of gross impropriety or indiscretion, a domestic tribunal has little tofear on this account. The modesty of the law's demands will surprise the laycritic, particularly if he himself be not quite free from bias. It is probably un­necessary to provide, as do the Universities of Melbourne (St. 2.7.5 (b)) andW.A. (St. 17.3 (3) (i)) that the person who makes the complaint may not takepart in the disciplinary decision. After all, most universities, including W.A.and Melbourne, give minor powers of discipline to staff from lecturer's rankupwards. In practice, many of the offences thus dealt with would be akin to"contempt in the fact of the Court".152 This summary power is probably asvalid and necessary as the power to deal with contempt.

The meaning of "bias", in this context, emphasises the restraint of the naturaljustice doctrine. It has been stated153 that personal prejudice, even resultingfrom a previous quarrel with the accused, does not disqualify a "domest!c"judge. The Commonwealth Industrial Court has held that even longstandIngand bitter political rivals are not ipso facto "biased" against each other forpurposes of a domestic hearing.154 Allegations of bias against a committeemember received short shrift in the University of Ceylon case.

In practice, academics are likely to be a good deal more scrupulous ab?utbias than the law requires. It would be unnecessary for a staff member to declineto "sit" merely on the ground that the accused is enrolled in his department orfaculty. At all our universities, and especially the larger ones, discipline com­mittee members are much less likely to be "involved" in cases than the membersof many clubs or associations.

Points of Law

Where questions of law begin, the "privacy" of domestic tribunals ends."The [discipline] rules are the contract between the members. The committeecannot extend their jurisdiction by giving a wrong interpretation to the con­tract, no matter how honest they may be."155

Quite apart from the natural justice doctrine, excesses of jurisdiction, of power,and errors of law will be reviewed by the courts. A rule making the tribunal's

151. Maclean v. Workers Union [1926] 1 Ch. at 620-621.152. Indeed the Uni. of N.S.W. rules (Ch. III 5(a» limit the power of individuals to

offences in their presence or in their immediate area of responsibility.153. Maclean v. Workers Union [1926] 1 Ch. at 625.154. Holn'les v. O'Toole and Ors (1957) 1 F.L.R. 212 at 232. .155. Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at 344 per DennIng L.J.

decisions on law final would probably be invalid.156 A committee patentlyinfluenced by an accused's past misconduct, or recent offences not subject of theinstant charge, might be ultra vires for considering extraneous matters.151 Weshall not dwell upon these considerations here. Domestic tribunals in general,and disciplinary ones in particular are largely concerned with (legally) uncom­plicated questions of fact and opinion.

What legal considerations apply where a disciplinary tribunal is called on todeal with some "fundamental" rule of criminal law? The authorities give littleguidance. Suppose for instance that the defence, in essence, relies on s. 24 ofthe Queensland Criminal Code.158 Suppose again, that the accused claims thathe will be prejudiced if tried jointly with other persons, or objects to answer forseveral' acts, or sets of acts.159 at the same time? In good faith, a lay tribunalmight regard such points as merely "technical", even time-wasting, yet a FullCourt has described the former as· "fundamental" to the administration ofjustice.160 This is close to the language· of natural justice.

These problems may arise in one of several ways. They may be implied, butnot expressly dealt with at the domestic hearing; or they may be explicitlyrejected as inapplicable to the domestic proceedings; or misconstrued in termsof law;161 or they may be correctly understood, but wrongly applied.162 Themore "judicialised" discipline tribunals become, the more likely that theirmembers will be burdened with such problems, and expected to handle themwith the skill of courts.

Assume, in every such case, that the committee acts bona fide. Is its decisionreviewable? The questions

(i) whether a certain criminal defence or procedure applies in a domesticcase and

(ii) whether (if "yes" to (i)) the law has been correctly interpreted,, may find answers under the prinaiple that errors of law are per se reviewable.What of clearly wrong decisions on the facts relating to s. 24 of the Code, or anunwise exercise of discretion in e.g. refusing separate trials? "Domestic" assess­ments of evidence, as such, are not reviewable.163 Could any such case, malafides absent, be redressed under "natural justice"? At present, probably not. Ifa bad overall assessment of the facts be not reviewable, how can a subsidiarymisjudgment of facts be reviewable?

Penalties

Mala fides vitiates a "domestic" penalty, as it does other "domestic" findings.However, if the penalty be authorised by the rules concerned, bad faith will not

156. Czarnikow v. Roth Schmidt & Co. [1922] 2 K.B. 478.157. Ex parte S.F. Bowser & Co; Re Municipal Council of Randwick (1927) 27 S.R.

(N.S.W.) 209; but see the dietunl of Jessel M.R. in Dawkins supra footnote 120.158. "24. Mistake of Fact-A person who does or omits to do an act under an honest

and re~onable, but mistaken, belief in the existence of any state of things is notcriminally responsible for the act or omission to any greater extent than if the legalstate of things had been such as he believed to exist ..." On the range of this section,consider Thomas v. McEather [1920] St.R.Qd. 166.

159. R. v. McGee (1895) 6 Q.L.J. 151 at 153, per Griffith C.J.; but see Criminal Code(Q) 8.568.

160. R. v. Potter and McKenzie [1959] Qd. R. 378 per Philp J.161. E.g. the burden of proof may be misinterpreted: cf. Brintblecombe v. Duncan; Ex

parte Duncan [1958] Qd. R. 8 (F.C.).162. E.g. separate trials of joint offenders refused where a court clearly should grant

same.163. Australian Workers Union v. Bowen (No.2) (1948) 77 C.L.R. 601 at 628 per Dixon

J.

justice further hampered) by a right of cross-exam!nation? Ho~ can tri~una1swhich have no power to compel witnesses to give eVIdence-tn-chIef be subject toa duty to hold cross-examinations? At most, there might be a duty to hear cross­examination, if requested, and if the witness consents. But suppose, ~hen, th~tthe witness declines to be cross-examined. Must the tribunal totally dIscard hISevidence?

The demand for cross-examination depends upon an analogy betweeJ?domestic inquiries, on one hand, and trials and evidence at law, on the other.The analogy breaks down at several points.151 Besides, while domestic tribunalsare at liberty to inform themselves so freely, cross-ex~m~ationwill often be l~sscrucial than in a court of law. Of course, cross-examInation may be voluntartlygranted and answered. If not, the aCcused's interests may best be se~ve~ byusing the informality of proceedings to include matters of cross-examlnanon,and of comment, in his own evidence and "representations".Bias'

Short of gross impropriety or indiscretion, a domestic tribunal has little tofear on this account. The modesty of the law's demands will surprise the laycritic, particularly if he himself be not quite free from bias. It is probably un­necessary to provide, as do the Universities of Melbourne (St. 2.7.5 (b)) andW.A. (St. 17.3 (3) (i)) that the person who makes the complaint may not takepart in the disciplinary decision. After all, most universities, including W.A.and Melbourne, give minor powers of discipline to staff from lecturer's rankupwards. In practice, many of the offences thus dealt with would be akin to"contempt in the fact of the Court".152 This summary power is probably asvalid and necessary as the power to deal with contempt.

The meaning of "bias", in this context, emphasises the restraint of the naturaljustice doctrine. It has been stated153 that personal prejudice, even resultingfrom a previous quarrel with the accused, does not disqualify a "domest!c"judge. The Commonwealth Industrial Court has held that even longstandIngand bitter political rivals are not ipso facto "biased" against each other forpurposes of a domestic hearing.154 Allegations of bias against a committeemember received short shrift in the University of Ceylon case.

In practice, academics are likely to be a good deal more scrupulous ab?utbias than the law requires. It would be unnecessary for a staff member to declineto "sit" merely on the ground that the accused is enrolled in his department orfaculty. At all our universities, and especially the larger ones, discipline com­mittee members are much less likely to be "involved" in cases than the membersof many clubs or associations.

Points of Law

Where questions of law begin, the "privacy" of domestic tribunals ends."The [discipline] rules are the contract between the members. The committeecannot extend their jurisdiction by giving a wrong interpretation to the con­tract, no matter how honest they may be."155

Quite apart from the natural justice doctrine, excesses of jurisdiction, of power,and errors of law will be reviewed by the courts. A rule making the tribunal's

151. Maclean v. Workers Union [1926] 1 Ch. at 620-621.152. Indeed the Uni. of N.S.W. rules (Ch. III 5(a» limit the power of individuals to

offences in their presence or in their immediate area of responsibility.153. Maclean v. Workers Union [1926] 1 Ch. at 625.154. Holn'les v. O'Toole and Ors (1957) 1 F.L.R. 212 at 232. .155. Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at 344 per DennIng L.J.

decisions on law final would probably be invalid.156 A committee patentlyinfluenced by an accused's past misconduct, or recent offences not subject of theinstant charge, might be ultra vires for considering extraneous matters.151 Weshall not dwell upon these considerations here. Domestic tribunals in general,and disciplinary ones in particular are largely concerned with (legally) uncom­plicated questions of fact and opinion.

What legal considerations apply where a disciplinary tribunal is called on todeal with some "fundamental" rule of criminal law? The authorities give littleguidance. Suppose for instance that the defence, in essence, relies on s. 24 ofthe Queensland Criminal Code.158 Suppose again, that the accused claims thathe will be prejudiced if tried jointly with other persons, or objects to answer forseveral' acts, or sets of acts.159 at the same time? In good faith, a lay tribunalmight regard such points as merely "technical", even time-wasting, yet a FullCourt has described the former as· "fundamental" to the administration ofjustice.160 This is close to the language· of natural justice.

These problems may arise in one of several ways. They may be implied, butnot expressly dealt with at the domestic hearing; or they may be explicitlyrejected as inapplicable to the domestic proceedings; or misconstrued in termsof law;161 or they may be correctly understood, but wrongly applied.162 Themore "judicialised" discipline tribunals become, the more likely that theirmembers will be burdened with such problems, and expected to handle themwith the skill of courts.

Assume, in every such case, that the committee acts bona fide. Is its decisionreviewable? The questions

(i) whether a certain criminal defence or procedure applies in a domesticcase and

(ii) whether (if "yes" to (i)) the law has been correctly interpreted,, may find answers under the prinaiple that errors of law are per se reviewable.What of clearly wrong decisions on the facts relating to s. 24 of the Code, or anunwise exercise of discretion in e.g. refusing separate trials? "Domestic" assess­ments of evidence, as such, are not reviewable.163 Could any such case, malafides absent, be redressed under "natural justice"? At present, probably not. Ifa bad overall assessment of the facts be not reviewable, how can a subsidiarymisjudgment of facts be reviewable?

Penalties

Mala fides vitiates a "domestic" penalty, as it does other "domestic" findings.However, if the penalty be authorised by the rules concerned, bad faith will not

156. Czarnikow v. Roth Schmidt & Co. [1922] 2 K.B. 478.157. Ex parte S.F. Bowser & Co; Re Municipal Council of Randwick (1927) 27 S.R.

(N.S.W.) 209; but see the dietunl of Jessel M.R. in Dawkins supra footnote 120.158. "24. Mistake of Fact-A person who does or omits to do an act under an honest

and re~onable, but mistaken, belief in the existence of any state of things is notcriminally responsible for the act or omission to any greater extent than if the legalstate of things had been such as he believed to exist ..." On the range of this section,consider Thomas v. McEather [1920] St.R.Qd. 166.

159. R. v. McGee (1895) 6 Q.L.J. 151 at 153, per Griffith C.J.; but see Criminal Code(Q) 8.568.

160. R. v. Potter and McKenzie [1959] Qd. R. 378 per Philp J.161. E.g. the burden of proof may be misinterpreted: cf. Brintblecombe v. Duncan; Ex

parte Duncan [1958] Qd. R. 8 (F.C.).162. E.g. separate trials of joint offenders refused where a court clearly should grant

same.163. Australian Workers Union v. Bowen (No.2) (1948) 77 C.L.R. 601 at 628 per Dixon

J.

,

Ibe inferred from the fact that, in the opinion of a reviewing court, the penaltylisdisproportionately severe.

164 !'\The ultimate sanction within most voluntary associations, and within univ.1r-

sity disc.ipline, is outright expulsion. Th~ range of penalties at Australi?n univ· ... r­sities ranges downward through suspensIons, fines (usually not exceeding $10.. )to formal provision for repriman.d. Some of our university rules merely reft,r,with an old-world aplomb, to "penalties in accordance with academic usage" .• ~5

The University of Western Australia has an intriguing requirement that t eProfessor of Psychology shall always be on its Committee of Discipline.166 I

Some iffiPortan.. t. reflections.upon..univers~ty p~nalties appear in the. rece1.l':ntreasons for decision of a commIttee~ the UmversIty of Queensland: ..

"The University'· is very different from the State, which disciplines the mu h. lidwider community by means of its criminal laws. The State IS arge ar~

resilient; the University relatively small and fragile ... The State has for~­able legal force at its command. The University, quite properly, and qUlteobviously, possesses virtually no means of comrulsion .... [I.t may] bt1·agrave mistake to compare too closely the penaltIes of the crimInal law .. t ·and of 'domestic tribunals' ... [W]e think it would be quite erroneous~o

adopt the approach: 'This offence draws penalty X at law, and so shoq~dnecessarily attract penalty X, or little more, in th~ exercise of un~vers;tydiscipline.' There are offences, trivial or even non-existent at law, WhICh c¥nbe very serious indeed in the conduct of the University. Take, for example,h .. .. "167 Ic eatIng In exalTIlnations . ..I!

Reasons for Decision lThe more "judicialised" disciplinary proceedings become, the more interest,: d

lawyers and others may press for "judgments" somewhat similar to those of t1teregular courts.168 Appeals may be made to the perhaps naive faith that the moreand better the reasons given, the more probable it is that those adversely afIectydand popular critics will becontent.~~~

Under the rubric of natural justice, a domestic tribunal need not ~ive reas~:. sfor its decision; not even a court of law is bound to do that.16D If It does gI, ereasons, then a court will look at them within the limits of the establish~d

principles of review.170 It would be regrettable if hypercritical, or over-legalisticapproaches to domestic tribunals drove them to take final refuge in the devic!e,not entirel~ unk.nown in the ~egular courts, ~f the decision~wi~,o~t-reas.ons.l

Most unIverSIty rules reqUIre reports, or recommendatIons ,IncludIng fi . ­ings of fact171 to be produced for higher internal authority. However th ·sedocuments, together with transcript (if any) are the university's. There is 0

obligation to publish them.172

AppealsNatural justice does not demand that there be a domestic avenue of appeal.173

A fortiori there is no obligation to allow an appeal de novo. However, if there isan "internal" appeal, it should be used before resort to courts of law.174

The belief that justice always requires some avenue of appeal extends wellbeyond the community of lawyers. Almost all the Australian universities providefor an appeal to Senate or Council, or to a sub-committee thereof175 which lattermay be more satisfactory for all concerned. In saIne cases176 nlore than oneappeal is available. Adelaide has not express provision for appeals, but itsCouncil's power to "reverse vary or confirm"177 disciplinary decisions (whichmust aU be reported to Council) may be usable as a basis for appeals. Thesalutary opportunity for "second thoughts" may be taken to extremes when allbut fairly trivial penalties require a resolution of a full session of Senate.178

Understandably, few laymen appreciate lawyers' distinctions between appealsde novo, appeals upon linlited grounds, appeals only on points of la\v etc. Onesuspects that whatever their rules may say,179 most university appeal bodies, atleast if pressed, would grant a re-hearing, or entertain a broad appeal admisericordiam. If so, it is desirable: (i) that audience be given to the Universityas well as to the accused (ii) that there be a record from "below" sufficient tocontrol gross changes of story or grounds of prosecution or defence (iii) thatthere be a compact, reasonably leisured and experienced tribunal of appeal,and (iv) some limit upon appeals to the highest authority.

At present, even universities which have quite elaborate provision fordiscipline committees have little to say about the procedure of their appellatebodies. However, it will not be sufficient for a Senate or Council to "make suchenquiry into the matter as it deems appropriate"180 unless audi alteram partemis observed.18!

Cutting the Knot?

Suppose that some grave breach of discipline occurs, perhaps very near theend of.an academic year. Suppose, then, that the university concerned is unwill­ing to embark on a long, costly and universally damaging disciplinary inquiry.Suppose, in addition, that there has set in an increasing tendency to "judicialise"and pubJicise the disciplinary processes. Could the university in good faithresolve its problem by simply declining to accept the next annual enrolnlent ofthe student concerned, without a hearing, and without giving reasons?

The legal question here turns upon the context of the student's contract. Is itpurely a contract for tuition etc. from year to year? If so, it may confer novested right, and the refusal of re-enrolment may be in no sense a judicial pro­ceeding.182 Or does an implied term in the contract, or some other rule of law,require the university to re-enrol the student until graduation, provided he does

164. Byrne v. K.R.S. [1958] 2 A.E.R. at 600. 4'.165. Macquarie By-Laws Ch. XV. 6(4); Sydney By-Laws VIII.7(1). Presumably: s

could be a matter for evidence at law. .166. Statute 17.2. . .•167. Quoted in Cowen Z. The Quang Incident and University Discipline Dmv. of 'd.

13.11. 1970 pamphlet 11 pp. 7-8. .~168. In civil non-jury cases and cases on appeal; nothing could be more terse than -que

criminal jury verdict. .169. Weinberger v. Inglis (No.2) [1918] 1 Ch. 517 at 544, per Swifen Eady LJ.; e

Smith 133, 179.170. Hayman v. Rugby School Governors (1874) L.R. 18 Eq. 28.171. See e.g. U. of Q. Statute 13.6(5).172. For a publication of edited selections, see the pamphlet supra footnote 167.

173.

174.

175.176.177.178.179.180.181.182.

Maclean v. Workers Union [1926] 1 Ch at 621; Byrne v. K.R.S. [1958] 2 A.E.R. at583 (right "nebulous").White v. Kuzyeh [1951] 2 A.E.R. 435. But see now Leary v. National Union ofVehicle Builders [1970] 3 W.L.R. 434, which decides that a denial of natural justiceat first instance cannot be cured on (domestic) appeal.E.g. Newcastle By-Laws 2.5.10(3). .E.g. Newcastle-appeal from V.-C. to Discipline Committee, thence to Council.Statutes Ch. XII.5.U. of Q. Statute 13.6 (5), (8). The "new" Statute is unavailable at the time of writing.Cf. Newcastle By-Laws 2.5.10(i).Papua & N.G. loc cit. SSe 15(2), 16(2).Osgood v. Nelson (1872) L.R. 5 H.L. 636 at 647.Learoyd v. Stoner and Ors (1903) 2 Tas L.R. 174; Cassell v. Inglis [19161 2 Ch. 211.

,

Ibe inferred from the fact that, in the opinion of a reviewing court, the penaltylisdisproportionately severe.

164 !'\The ultimate sanction within most voluntary associations, and within univ.1r-

sity disc.ipline, is outright expulsion. Th~ range of penalties at Australi?n univ· ... r­sities ranges downward through suspensIons, fines (usually not exceeding $10.. )to formal provision for repriman.d. Some of our university rules merely reft,r,with an old-world aplomb, to "penalties in accordance with academic usage" .• ~5

The University of Western Australia has an intriguing requirement that t eProfessor of Psychology shall always be on its Committee of Discipline.166 I

Some iffiPortan.. t. reflections.upon..univers~ty p~nalties appear in the. rece1.l':ntreasons for decision of a commIttee~ the UmversIty of Queensland: ..

"The University'· is very different from the State, which disciplines the mu h. lidwider community by means of its criminal laws. The State IS arge ar~

resilient; the University relatively small and fragile ... The State has for~­able legal force at its command. The University, quite properly, and qUlteobviously, possesses virtually no means of comrulsion .... [I.t may] bt1·agrave mistake to compare too closely the penaltIes of the crimInal law .. t ·and of 'domestic tribunals' ... [W]e think it would be quite erroneous~o

adopt the approach: 'This offence draws penalty X at law, and so shoq~dnecessarily attract penalty X, or little more, in th~ exercise of un~vers;tydiscipline.' There are offences, trivial or even non-existent at law, WhICh c¥nbe very serious indeed in the conduct of the University. Take, for example,h .. .. "167 Ic eatIng In exalTIlnations . ..I!

Reasons for Decision lThe more "judicialised" disciplinary proceedings become, the more interest,: d

lawyers and others may press for "judgments" somewhat similar to those of t1teregular courts.168 Appeals may be made to the perhaps naive faith that the moreand better the reasons given, the more probable it is that those adversely afIectydand popular critics will becontent.~~~

Under the rubric of natural justice, a domestic tribunal need not ~ive reas~:. sfor its decision; not even a court of law is bound to do that.16D If It does gI, ereasons, then a court will look at them within the limits of the establish~d

principles of review.170 It would be regrettable if hypercritical, or over-legalisticapproaches to domestic tribunals drove them to take final refuge in the devic!e,not entirel~ unk.nown in the ~egular courts, ~f the decision~wi~,o~t-reas.ons.l

Most unIverSIty rules reqUIre reports, or recommendatIons ,IncludIng fi . ­ings of fact171 to be produced for higher internal authority. However th ·sedocuments, together with transcript (if any) are the university's. There is 0

obligation to publish them.172

AppealsNatural justice does not demand that there be a domestic avenue of appeal.173

A fortiori there is no obligation to allow an appeal de novo. However, if there isan "internal" appeal, it should be used before resort to courts of law.174

The belief that justice always requires some avenue of appeal extends wellbeyond the community of lawyers. Almost all the Australian universities providefor an appeal to Senate or Council, or to a sub-committee thereof175 which lattermay be more satisfactory for all concerned. In saIne cases176 nlore than oneappeal is available. Adelaide has not express provision for appeals, but itsCouncil's power to "reverse vary or confirm"177 disciplinary decisions (whichmust aU be reported to Council) may be usable as a basis for appeals. Thesalutary opportunity for "second thoughts" may be taken to extremes when allbut fairly trivial penalties require a resolution of a full session of Senate.178

Understandably, few laymen appreciate lawyers' distinctions between appealsde novo, appeals upon linlited grounds, appeals only on points of la\v etc. Onesuspects that whatever their rules may say,179 most university appeal bodies, atleast if pressed, would grant a re-hearing, or entertain a broad appeal admisericordiam. If so, it is desirable: (i) that audience be given to the Universityas well as to the accused (ii) that there be a record from "below" sufficient tocontrol gross changes of story or grounds of prosecution or defence (iii) thatthere be a compact, reasonably leisured and experienced tribunal of appeal,and (iv) some limit upon appeals to the highest authority.

At present, even universities which have quite elaborate provision fordiscipline committees have little to say about the procedure of their appellatebodies. However, it will not be sufficient for a Senate or Council to "make suchenquiry into the matter as it deems appropriate"180 unless audi alteram partemis observed.18!

Cutting the Knot?

Suppose that some grave breach of discipline occurs, perhaps very near theend of.an academic year. Suppose, then, that the university concerned is unwill­ing to embark on a long, costly and universally damaging disciplinary inquiry.Suppose, in addition, that there has set in an increasing tendency to "judicialise"and pubJicise the disciplinary processes. Could the university in good faithresolve its problem by simply declining to accept the next annual enrolnlent ofthe student concerned, without a hearing, and without giving reasons?

The legal question here turns upon the context of the student's contract. Is itpurely a contract for tuition etc. from year to year? If so, it may confer novested right, and the refusal of re-enrolment may be in no sense a judicial pro­ceeding.182 Or does an implied term in the contract, or some other rule of law,require the university to re-enrol the student until graduation, provided he does

164. Byrne v. K.R.S. [1958] 2 A.E.R. at 600. 4'.165. Macquarie By-Laws Ch. XV. 6(4); Sydney By-Laws VIII.7(1). Presumably: s

could be a matter for evidence at law. .166. Statute 17.2. . .•167. Quoted in Cowen Z. The Quang Incident and University Discipline Dmv. of 'd.

13.11. 1970 pamphlet 11 pp. 7-8. .~168. In civil non-jury cases and cases on appeal; nothing could be more terse than -que

criminal jury verdict. .169. Weinberger v. Inglis (No.2) [1918] 1 Ch. 517 at 544, per Swifen Eady LJ.; e

Smith 133, 179.170. Hayman v. Rugby School Governors (1874) L.R. 18 Eq. 28.171. See e.g. U. of Q. Statute 13.6(5).172. For a publication of edited selections, see the pamphlet supra footnote 167.

173.

174.

175.176.177.178.179.180.181.182.

Maclean v. Workers Union [1926] 1 Ch at 621; Byrne v. K.R.S. [1958] 2 A.E.R. at583 (right "nebulous").White v. Kuzyeh [1951] 2 A.E.R. 435. But see now Leary v. National Union ofVehicle Builders [1970] 3 W.L.R. 434, which decides that a denial of natural justiceat first instance cannot be cured on (domestic) appeal.E.g. Newcastle By-Laws 2.5.10(3). .E.g. Newcastle-appeal from V.-C. to Discipline Committee, thence to Council.Statutes Ch. XII.5.U. of Q. Statute 13.6 (5), (8). The "new" Statute is unavailable at the time of writing.Cf. Newcastle By-Laws 2.5.10(i).Papua & N.G. loc cit. SSe 15(2), 16(2).Osgood v. Nelson (1872) L.R. 5 H.L. 636 at 647.Learoyd v. Stoner and Ors (1903) 2 Tas L.R. 174; Cassell v. Inglis [19161 2 Ch. 211.

not fall foul of any express rules of "quotas" or "exclusion" (for academicfailure) ?183 Perhaps so. The student "applies" for enrolment or re-enrolment,184but the pre-requities for "approval" of same may be held to be purelyacademic.185 It is not a point which many universities would be keen to testtoday.185a

An Era of Expansion for Natural Justice?

Are our courts likely to expand "natural justice" in the near future? Theycould do so either by adding a new rule or rules to the existing category, or(more radically) by adopting a new policy of broad, ad ·hoc review. Theoccurrence of th~.first event would r~nder more likely the eventual occurrenceof the second.

It is not inconceivable that a right of legal representation in domestic hearingsmay come. If it does,a requirement of oral proceedings, or at least oral cross­examinations (as of right) may also come. But first, the reluctance of the courtsto create a rule affecting cases serious and trivial, within voluntary bodies greatand small, must be overcome.

There are other avenues to explore, e.g. higher procedural standards, ques­tions of sufficiency of evidence, and of proper degree of penalty. However, thereare many difficulties practical and theoretical to be solved before any layman'smyth of a general "appeal" to the courts from "unfair" domestic decisions isrealised. Still, we should look at prospects for a change of "atmosphere" even ifwe cannot foresee specific changes in actual rmes. Of course much may beachieved by changes to the rilles of a domus irrespective of the state of thegeneral law. . . ...

The case for elaborating the principles and procedures of unIverSIty dISCIplIneis crystallised by Chafee of Harvard:

"When we tum aside from the authorities, and consider the actual humaninterests which suffer from expulsion, it becomes apparent that ... a studentwho has been excluded from college is branded for years to come."186

How far may our courts be ready to "tum aside"? Some Australian judges, atleast, show a keen appreciation of the manner in which social norms andeconomic realities have shifted the emphasis from "privilege" to "right" in anyconception of.university.·mem.bership.187 Blain J. may not represent the presentspirit of the judiciary when he observes:

"[The applicants] were members of a university-that is a status akin tomembership of a social body, a club with perhaps something more than meresocial status attached to it ..."188

Yet it is no small thing to ask the courts to abandon the shelter of "purelegalism" for regions where "layman are as well able to decide as are

183. On the validity of such exclusion rules see Exparte Forster Re University of Sydney(1963) S.R. (N.S.W.) 723 at 729.

184. Cf. U. of Q. General Rules 4(3). ..185. It may be some support for the approval is given bUY hDIS. D.ean

R(llbld

7(41(51»D) not the

central administration. Yet in some instances (A.N. . ISClp. U es eans assuch have specific disciplinary functions.

185a. Cf. U. of Q. General Rule 8 (Senate may refuse enrolment).186. Chafee Z: loc cit. 43 Harv. L.R. at 998.187. Ex parte Forster; Re U~~versir-, f?f ~ydney (1963) S.R. (N.S.W.) 723 at 729. The

context is the reverse of pernuSSlve.188. R. v. Senate of Aston University; Ex parte Roffey and Anor. [1969] 2 W.L.R. 1418

at 1433--emphasis added.

lawyers."189 Still pervasive is the judicial fear of becoming embroiled in esotericdomestic feuds.190 True, we have broad dicta of Kitto J. in the recent case ofMobil Oil191 and Lord Denning's invocation of "fairness" in Pett's case,192which echo the American philosophy of "due process":

"[D]ue process ... is not a technical conception with a fixed content ... It isa delicate process of adjustment inescapably involving the exercise of judg­ment by [the judges] whom the constitution entrusted with the enfolding ofthe process."193

No doubt, if we abstract "natural justice", "good faith" etc. from Anglo­Australian judicial traditions, they are concepts as flexible as "due process oflaw" in the Fourteenth Amendment of the U.S. Constitution.194 But suchabstraction would render legal prediction or advice in this country highly sus­pect. Even as Denning M. R.I05 hints at a move from. the letter to the spirit ofnatural justice, the Privy Council shudders at the "vast area" of quicksandawaiting the court so bold as to venture beyond the "well-known cases" .106 Ourjudges would probably treat as typical of those quicksands such cases asFalcone v. Middlesex County Medical Society l07 Scroggin v. Lincoln Univers­ity 198 Leonard v. School Committee of Attleboro199 and Tinker v. Des MoinesIndependent School District,20o which may be seen as involving review denovo of domestic decisions by the courts. If these were decisions of our courts,they would indeed open broad acres of natural justice.

In Falcone, the Court set aside a decision not to r~gister a doctor withpartially sub-standard medical training, on the ground that the economic con­sequences were unjustly severe in comparison with the professional "shortfall"concerned. In Scroggin, the court reversed a domestic decision to expel studentsfor a disturbance in the university's refectory. The students received a patienthearing before two domestic tribunals. They had legal assistance for thedomestic appeal. The evidence was reviewed and found to be insufficient tosupport the university's decision. In Leonard the disciplinary action of a schoolwas upheld, but it was assumed that the court might proceed upon its ownassessment of the real need for the disciplinary action in relation to the school'sdiscipline. The same assumption was made in Tinker, in which the U.S. SupremeCourt disallowed as unnecessary a rule forbidding the wearing to school of

189. Pettitt v. Pettitt [1969] 2 A.E.R. 385 at 390(C) per Lord Reid.190. ~ee Dawkins v. Antrobus (1881) 17 Ch. D. at 630 and cf the cautious approach to

Intra-company quarrels in e.g. Re Broadcasting Station 2GB [1964-65] N.S.W.R.1648.

191. Supra footnote 39; but natural justice was there held not to apply.192. [1969] 1 Q.B. at 133.193. Joint Anti-Fascist Refugee COlnmittee v. McGrath (1951) 341 U.S. 123 at 162-3 per

Frankfurther J.194. For a plea against liberal use of a less elastic concept see Whitmore Harry: "O!

That way Madness Lies" Judicial Review for Error of Law" (1966) 2 Fed. L.R.159-182~

195. On the most liberal interpretation of hjs judgment in Pelt v. Greyhound [1969] 1Q.B. at 133.

196. Durayappah v. Fernando [1967] 2 A.E.R. 152 at 156.197. (1961) 34 N.J. 582.198. (1968) 291 F. SuPP. 161.199. (1965) 212 N.E. 2d. 468.200. (1969) 393 U.S. 503.

not fall foul of any express rules of "quotas" or "exclusion" (for academicfailure) ?183 Perhaps so. The student "applies" for enrolment or re-enrolment,184but the pre-requities for "approval" of same may be held to be purelyacademic.185 It is not a point which many universities would be keen to testtoday.185a

An Era of Expansion for Natural Justice?

Are our courts likely to expand "natural justice" in the near future? Theycould do so either by adding a new rule or rules to the existing category, or(more radically) by adopting a new policy of broad, ad ·hoc review. Theoccurrence of th~.first event would r~nder more likely the eventual occurrenceof the second.

It is not inconceivable that a right of legal representation in domestic hearingsmay come. If it does,a requirement of oral proceedings, or at least oral cross­examinations (as of right) may also come. But first, the reluctance of the courtsto create a rule affecting cases serious and trivial, within voluntary bodies greatand small, must be overcome.

There are other avenues to explore, e.g. higher procedural standards, ques­tions of sufficiency of evidence, and of proper degree of penalty. However, thereare many difficulties practical and theoretical to be solved before any layman'smyth of a general "appeal" to the courts from "unfair" domestic decisions isrealised. Still, we should look at prospects for a change of "atmosphere" even ifwe cannot foresee specific changes in actual rmes. Of course much may beachieved by changes to the rilles of a domus irrespective of the state of thegeneral law. . . ...

The case for elaborating the principles and procedures of unIverSIty dISCIplIneis crystallised by Chafee of Harvard:

"When we tum aside from the authorities, and consider the actual humaninterests which suffer from expulsion, it becomes apparent that ... a studentwho has been excluded from college is branded for years to come."186

How far may our courts be ready to "tum aside"? Some Australian judges, atleast, show a keen appreciation of the manner in which social norms andeconomic realities have shifted the emphasis from "privilege" to "right" in anyconception of.university.·mem.bership.187 Blain J. may not represent the presentspirit of the judiciary when he observes:

"[The applicants] were members of a university-that is a status akin tomembership of a social body, a club with perhaps something more than meresocial status attached to it ..."188

Yet it is no small thing to ask the courts to abandon the shelter of "purelegalism" for regions where "layman are as well able to decide as are

183. On the validity of such exclusion rules see Exparte Forster Re University of Sydney(1963) S.R. (N.S.W.) 723 at 729.

184. Cf. U. of Q. General Rules 4(3). ..185. It may be some support for the approval is given bUY hDIS. D.ean

R(llbld

7(41(51»D) not the

central administration. Yet in some instances (A.N. . ISClp. U es eans assuch have specific disciplinary functions.

185a. Cf. U. of Q. General Rule 8 (Senate may refuse enrolment).186. Chafee Z: loc cit. 43 Harv. L.R. at 998.187. Ex parte Forster; Re U~~versir-, f?f ~ydney (1963) S.R. (N.S.W.) 723 at 729. The

context is the reverse of pernuSSlve.188. R. v. Senate of Aston University; Ex parte Roffey and Anor. [1969] 2 W.L.R. 1418

at 1433--emphasis added.

lawyers."189 Still pervasive is the judicial fear of becoming embroiled in esotericdomestic feuds.190 True, we have broad dicta of Kitto J. in the recent case ofMobil Oil191 and Lord Denning's invocation of "fairness" in Pett's case,192which echo the American philosophy of "due process":

"[D]ue process ... is not a technical conception with a fixed content ... It isa delicate process of adjustment inescapably involving the exercise of judg­ment by [the judges] whom the constitution entrusted with the enfolding ofthe process."193

No doubt, if we abstract "natural justice", "good faith" etc. from Anglo­Australian judicial traditions, they are concepts as flexible as "due process oflaw" in the Fourteenth Amendment of the U.S. Constitution.194 But suchabstraction would render legal prediction or advice in this country highly sus­pect. Even as Denning M. R.I05 hints at a move from. the letter to the spirit ofnatural justice, the Privy Council shudders at the "vast area" of quicksandawaiting the court so bold as to venture beyond the "well-known cases" .106 Ourjudges would probably treat as typical of those quicksands such cases asFalcone v. Middlesex County Medical Society l07 Scroggin v. Lincoln Univers­ity 198 Leonard v. School Committee of Attleboro199 and Tinker v. Des MoinesIndependent School District,20o which may be seen as involving review denovo of domestic decisions by the courts. If these were decisions of our courts,they would indeed open broad acres of natural justice.

In Falcone, the Court set aside a decision not to r~gister a doctor withpartially sub-standard medical training, on the ground that the economic con­sequences were unjustly severe in comparison with the professional "shortfall"concerned. In Scroggin, the court reversed a domestic decision to expel studentsfor a disturbance in the university's refectory. The students received a patienthearing before two domestic tribunals. They had legal assistance for thedomestic appeal. The evidence was reviewed and found to be insufficient tosupport the university's decision. In Leonard the disciplinary action of a schoolwas upheld, but it was assumed that the court might proceed upon its ownassessment of the real need for the disciplinary action in relation to the school'sdiscipline. The same assumption was made in Tinker, in which the U.S. SupremeCourt disallowed as unnecessary a rule forbidding the wearing to school of

189. Pettitt v. Pettitt [1969] 2 A.E.R. 385 at 390(C) per Lord Reid.190. ~ee Dawkins v. Antrobus (1881) 17 Ch. D. at 630 and cf the cautious approach to

Intra-company quarrels in e.g. Re Broadcasting Station 2GB [1964-65] N.S.W.R.1648.

191. Supra footnote 39; but natural justice was there held not to apply.192. [1969] 1 Q.B. at 133.193. Joint Anti-Fascist Refugee COlnmittee v. McGrath (1951) 341 U.S. 123 at 162-3 per

Frankfurther J.194. For a plea against liberal use of a less elastic concept see Whitmore Harry: "O!

That way Madness Lies" Judicial Review for Error of Law" (1966) 2 Fed. L.R.159-182~

195. On the most liberal interpretation of hjs judgment in Pelt v. Greyhound [1969] 1Q.B. at 133.

196. Durayappah v. Fernando [1967] 2 A.E.R. 152 at 156.197. (1961) 34 N.J. 582.198. (1968) 291 F. SuPP. 161.199. (1965) 212 N.E. 2d. 468.200. (1969) 393 U.S. 503.

politically significant black armbands. The rule was adjudged unnecessary f'! 'rthe true purposes of the School, and a violation of free expression.201

Certainly these American decisions involve constitutional factors which 0

not apply here, but, further, they evince a judicial breadth of reference not to .efound in our courts. One may contrast with Falcone202 the still-valid approa hof Leeson v. General Medical Council.203 Pace Scroggin204, no Australian co itwould enlbark on a general review of evidence205 in a disciplinary case, while i ncases of academic failure even where review is sought, audi alteram parte..·t.·probably does not apply.206 , •

Here, if not in the United States, it is still true that "if anything in the law Ifassociation is clear, it is that no '... tri:u d~ novo in t~e courts takes place."2p7Some may say that.the "progresslve'~lctaIn the EnglIsh and Austrahan 'courtsare very young, and need time to bear fruit. But that is not so. Even in t 'eCambridge University case (1765) we find seeds of broader intervention.2 8

The same may be said of Osgood v. Nelson209 yet the seeds have not germinate! .More recent are Lord Atkin's words:

"I cannot think that the procedure which may be very just in deciding wheth: rto close a school or an insanitary house is necessarily right in deCidingl:,acharge of infamous conduct against a professional man."210 . ,

Yet the r~le,s of.natural justice remain a~ in Uni~ersity.ofCeylon v. Fernando.2flLord Atkm s wIsdom has had to be satisfied wIth vanous of those minima co$­tained in the statutory or contractual rules governing particular specimens ~fthat complex category, domestic tribunals.!

Conclusion .~

"Domestic tribunal" is a concept as complex as it is impreGise. It covers tIledisciplinary functions of a range of institutions and associations, varying widelyin size, resources and needs. For such a variety of entities our courts ha~elegislated, under the natural justice rubric, very cautiously. The present rules ~fnatural justice are highly general. It is difficult to conceive desirable rules 0,f t~r,esame generality remaining to be "enacted". Even rules relating to leg Irepresentation, or cross-examination, might be too particular to serve well t ebroad field of "domestic" law. The Charybdis of undue rigidity lies on odehand, the Scylla of uncertainty on the other. At the level of general public tat,this subject presents the classic tension between justice-claims on one hand anldlegal prudence- and workability on the other. In more concrete form, the tensidnis between the American "bill of rights" philosophy and the more mOdert

201. A more benevolent approach may be taken to the rules of "private" schoolsbruniversities which, because of e.g. their religious character, may be able to justifyrules not justifiable in "state" or "public" institutions: Carr v. St. John's University

~~~:s2~~t2dfstJ;b~~J8 (Expulsions from Catholic university for defiance of religi0r....••, s202. Supra footnote 197. .203. (1889) 43 Ch. D. 366.204. Supra footnote 198. .:205. Australian Workers Union v. Bowen (No.2) -(1948) 77 C.L.R. 601 at 628 per Dix n

J.; Maclean v. Workers Union 1929 1 Ch. at 621. A total absence of evidence migttestablish nlala fides, but the complete negative would in itself be difficult to prove,

206. Leary v. National Union of Vehicle Builders [1970] 3 W.L.R. at 446. Even the U.' .Courts hesitate here, unless racial issues are raised: Connelly v. University' fVennont 244 F. Supo. 156.

207. Chafee loc cit. at 1005.208. 1 Str. 557 at 565 (per C.J.), 566 (Powys J.) 566 (Forescue J.)-comments on penal, .209. (1872) L.R. 5 H.L. 636 at 646 per Martin B., 651 per Lord Chelmsford.210. General Medical Council v. Spackman [1943] A.C. 627 at 638.211. [1960] 1 A.E.R. 631.

English view of the limits of judicial control. The latter view is not necessarilyless rational nor less liberal. Those who evince least trust of "domestic justice"are not always those who could be relied upon to respect either the views ortechnicalities of a regular court.

However, on the "domestic law" plane, rules can be better tailored to thecase than in general principles of public law. Some of the older, terser rules ofour universities should condescend to more particularity. In the interests ofexpertise and consistency, discipline and appeal conlmittees should be standingcommittees. Where this is already provided for, more attention could be paid tospecial aptitudes in members, and less' to ex officio men1bership related toadministrative or academic hierarchy. It can seriously be questioned whetherSenates or Councils in full session are from anyone's viewpoint suitable appel­late (let alone primary) tribunals of discipline. A good case can be made forlimiting appeals in minor-to-medium cases. The overriding rule audi allerGInpartern, should be spelt-out with respect to summary as well as higher disciplin­ary powers. A simple, if non-mandatory "order of procedure" might assist alikelay tribunal nlembers, defendants and witnesses.

On the other hand, some existing university discipline rules may alreadyextend, procedurally, about as far as is wise to go without further pronlptingfrom the courts or general law. Negotiations for changes in domestic rulesshould not be divorced from the relevant rules and reasons of the common law.When considering new rules or procedures, it does no harm to remenlber thateven lawyers are not always detached when questions of the proper degree oflegalism are raised. As for lay demands for more legalism, these can soabruptly switch to complaints that the legal letter killeth! It would be piquant ifcurrent "activism" in the universities became allied with the rearguard lawyer'ssuspicion212 of any decision-nlaking other than in the hallowed manner of thecourts at Westminster. Who, then, would be the conservatives?

In framing new rules or interpteting old ones, universities have to do even­handed justice. Well-reasoned and lasting clainls deserve precedence overtransient or tactical demands. Every advance towards "judicialisation", how­ever well-merited in itself, may bring a disproportionate growth of legalism andexpense upon the academic body politic. Legal representation? Cross-examina­tion? Then mandatory shorthand records? A greatly heightened quest for pointsof law for internal or external use?213 A steeply-rising qualification for conlnlitteemembers to cope with the law and the counsel before then1? Counsel to be pro­vided for accused at university expense? Special grants to universities to main­tain their court-systems? An abolition of the "genera.l article"214 and its ambientnon-technical sense in favour of a "criminal code" for acadenlic or voluntaryassociations? Legalism as a progressive badge today, and a reproach uponadministrations tomorrow? Domestic tribunals aping the courts, with the meritsof neither?

The essential point is to assess claims for increased complexity in due per­spective. Undue extensions here may be peculiarly difficult to correct. The morerules surround domestic tribunals, the more courts of law, despite their pastpluralism, and probably against their better judgment, will be called on to inter-

212. On which see e.g. Jackson R.M. uThe 'Machinery 011 Justice ill Englalld" 4th Edn.Camb. U.P. 1964 401-405; Abel-Smith and Stevens Lawyers and the Courts LondonHeinnemann 1967 263-4.

213. The Australian 10th December 1970-3 reported that disciplinary proceedings atMonash University had been adjourned pending disposal by a court of legalobjections in limine.

214. Cf supra footnote 116.

politically significant black armbands. The rule was adjudged unnecessary f'! 'rthe true purposes of the School, and a violation of free expression.201

Certainly these American decisions involve constitutional factors which 0

not apply here, but, further, they evince a judicial breadth of reference not to .efound in our courts. One may contrast with Falcone202 the still-valid approa hof Leeson v. General Medical Council.203 Pace Scroggin204, no Australian co itwould enlbark on a general review of evidence205 in a disciplinary case, while i ncases of academic failure even where review is sought, audi alteram parte..·t.·probably does not apply.206 , •

Here, if not in the United States, it is still true that "if anything in the law Ifassociation is clear, it is that no '... tri:u d~ novo in t~e courts takes place."2p7Some may say that.the "progresslve'~lctaIn the EnglIsh and Austrahan 'courtsare very young, and need time to bear fruit. But that is not so. Even in t 'eCambridge University case (1765) we find seeds of broader intervention.2 8

The same may be said of Osgood v. Nelson209 yet the seeds have not germinate! .More recent are Lord Atkin's words:

"I cannot think that the procedure which may be very just in deciding wheth: rto close a school or an insanitary house is necessarily right in deCidingl:,acharge of infamous conduct against a professional man."210 . ,

Yet the r~le,s of.natural justice remain a~ in Uni~ersity.ofCeylon v. Fernando.2flLord Atkm s wIsdom has had to be satisfied wIth vanous of those minima co$­tained in the statutory or contractual rules governing particular specimens ~fthat complex category, domestic tribunals.!

Conclusion .~

"Domestic tribunal" is a concept as complex as it is impreGise. It covers tIledisciplinary functions of a range of institutions and associations, varying widelyin size, resources and needs. For such a variety of entities our courts ha~elegislated, under the natural justice rubric, very cautiously. The present rules ~fnatural justice are highly general. It is difficult to conceive desirable rules 0,f t~r,esame generality remaining to be "enacted". Even rules relating to leg Irepresentation, or cross-examination, might be too particular to serve well t ebroad field of "domestic" law. The Charybdis of undue rigidity lies on odehand, the Scylla of uncertainty on the other. At the level of general public tat,this subject presents the classic tension between justice-claims on one hand anldlegal prudence- and workability on the other. In more concrete form, the tensidnis between the American "bill of rights" philosophy and the more mOdert

201. A more benevolent approach may be taken to the rules of "private" schoolsbruniversities which, because of e.g. their religious character, may be able to justifyrules not justifiable in "state" or "public" institutions: Carr v. St. John's University

~~~:s2~~t2dfstJ;b~~J8 (Expulsions from Catholic university for defiance of religi0r....••, s202. Supra footnote 197. .203. (1889) 43 Ch. D. 366.204. Supra footnote 198. .:205. Australian Workers Union v. Bowen (No.2) -(1948) 77 C.L.R. 601 at 628 per Dix n

J.; Maclean v. Workers Union 1929 1 Ch. at 621. A total absence of evidence migttestablish nlala fides, but the complete negative would in itself be difficult to prove,

206. Leary v. National Union of Vehicle Builders [1970] 3 W.L.R. at 446. Even the U.' .Courts hesitate here, unless racial issues are raised: Connelly v. University' fVennont 244 F. Supo. 156.

207. Chafee loc cit. at 1005.208. 1 Str. 557 at 565 (per C.J.), 566 (Powys J.) 566 (Forescue J.)-comments on penal, .209. (1872) L.R. 5 H.L. 636 at 646 per Martin B., 651 per Lord Chelmsford.210. General Medical Council v. Spackman [1943] A.C. 627 at 638.211. [1960] 1 A.E.R. 631.

English view of the limits of judicial control. The latter view is not necessarilyless rational nor less liberal. Those who evince least trust of "domestic justice"are not always those who could be relied upon to respect either the views ortechnicalities of a regular court.

However, on the "domestic law" plane, rules can be better tailored to thecase than in general principles of public law. Some of the older, terser rules ofour universities should condescend to more particularity. In the interests ofexpertise and consistency, discipline and appeal conlmittees should be standingcommittees. Where this is already provided for, more attention could be paid tospecial aptitudes in members, and less' to ex officio men1bership related toadministrative or academic hierarchy. It can seriously be questioned whetherSenates or Councils in full session are from anyone's viewpoint suitable appel­late (let alone primary) tribunals of discipline. A good case can be made forlimiting appeals in minor-to-medium cases. The overriding rule audi allerGInpartern, should be spelt-out with respect to summary as well as higher disciplin­ary powers. A simple, if non-mandatory "order of procedure" might assist alikelay tribunal nlembers, defendants and witnesses.

On the other hand, some existing university discipline rules may alreadyextend, procedurally, about as far as is wise to go without further pronlptingfrom the courts or general law. Negotiations for changes in domestic rulesshould not be divorced from the relevant rules and reasons of the common law.When considering new rules or procedures, it does no harm to remenlber thateven lawyers are not always detached when questions of the proper degree oflegalism are raised. As for lay demands for more legalism, these can soabruptly switch to complaints that the legal letter killeth! It would be piquant ifcurrent "activism" in the universities became allied with the rearguard lawyer'ssuspicion212 of any decision-nlaking other than in the hallowed manner of thecourts at Westminster. Who, then, would be the conservatives?

In framing new rules or interpteting old ones, universities have to do even­handed justice. Well-reasoned and lasting clainls deserve precedence overtransient or tactical demands. Every advance towards "judicialisation", how­ever well-merited in itself, may bring a disproportionate growth of legalism andexpense upon the academic body politic. Legal representation? Cross-examina­tion? Then mandatory shorthand records? A greatly heightened quest for pointsof law for internal or external use?213 A steeply-rising qualification for conlnlitteemembers to cope with the law and the counsel before then1? Counsel to be pro­vided for accused at university expense? Special grants to universities to main­tain their court-systems? An abolition of the "genera.l article"214 and its ambientnon-technical sense in favour of a "criminal code" for acadenlic or voluntaryassociations? Legalism as a progressive badge today, and a reproach uponadministrations tomorrow? Domestic tribunals aping the courts, with the meritsof neither?

The essential point is to assess claims for increased complexity in due per­spective. Undue extensions here may be peculiarly difficult to correct. The morerules surround domestic tribunals, the more courts of law, despite their pastpluralism, and probably against their better judgment, will be called on to inter-

212. On which see e.g. Jackson R.M. uThe 'Machinery 011 Justice ill Englalld" 4th Edn.Camb. U.P. 1964 401-405; Abel-Smith and Stevens Lawyers and the Courts LondonHeinnemann 1967 263-4.

213. The Australian 10th December 1970-3 reported that disciplinary proceedings atMonash University had been adjourned pending disposal by a court of legalobjections in limine.

214. Cf supra footnote 116.

vene. Technical sophistication is not necessarily so good in domestic as incriminal law. The degree to which. substantive definitions and proceduralelaboration control judicial power at any level can easily be exaggerated. Inlarge measure, and inevitably, judges of any kind have to be trusted to seekjustly the substance of things.215 Here legalism helps only up to a point. Thatpoint is more quickly reached ,in domestic than in higher public tribunals.

J. R. FORB·ES*

215. Cassel v. Inglis [1916] 2 Ch. at 226; Weinberger v.Inglis [1918] 1 Ch. 517 at 549.

Postscript:

Legal Representation: At the time of writing, Enderby Town Football Club vFootball Association Ltd [1970] 3 W.L.R. 1021 was not available. Thisdecision seems to support our thesis, that within the common law system, new'natural justice' rules evolve very slowly. In Enderby, Denning M.R. takesoccasion to explain (modify?) the inconclusive decision in Pett (C.A.) supra.In Enderby, we hear no more of the 'agency' rationale for a supposed right tocounsel. (Cf. Pett (C.A.) supra.) Semble, where the rules are silent, thetribunal may refuse to hear lawyers, provided it decides this on the merits, andnot according to an a priori general policy. Semble, also, (per Fenton Atkinsonand Cairns L.IJ.) that an express provision in the club's rules excluding lawyersfrom its tribunal does not offend natural justice, provided, at any rate (perDenning M.R.) that such rule leaves the tribunal a discretion to allow lawyers inan exceptional case.

*B.A., LL.B. (Syd.), Barrister-at-Iaw (N.S.W.), Solicitor (Qld.), Senior Lecturer inLaw, University of Queensland.

Correspondence

The Editors,University of Queensland Law Journal.

Dear Sirs,

It is worthwhile to reflect on the reason why students, although invited to doso, did not take any great part in the process of revising the curriculunl. It was,I think, because they felt they had little to contribute; how does a man who hasnever practised know what intellectual equipment he needs? The professionalbodies were, of course, consulted on this occasion, but there is no continuing"feed-back" of information from the profession to the University. If it is,. as Ithink it to be, an important function of a law sch091 to train lawyers, it isunfortunate that there is really very little detai1~d contact between the professionand academics in matters of law teaching. SOUle law teachers are inclined tothink that too great a professional influence in teaching would tend to makethe law school a training ground for a race of super-clerks, having saleablepractical skills, but little basic legal education. To some extent this anti-profes­sional attitude is justified, but it is capable of producing ideas which seenl to memere delusions. For example, there is, a notion current that some legal subjectshave "academic value" and some have not. Those containing ,a large proportionof case law, such as tort, are perhaps thought to be more cultural than subjectslike criminal law. Such distinctions seem to have little rational basis. Althoughit is no doubt more difficult to teach codified law, students who intend to be

iii. anything more than legal dilettanti will be constantly grappling with statutes,!. from which it follows that skill in their analysis is an important part of legalId·'I e ucatlOn. ..

I Apart from what I might call the uncultured statute delusion, I have noticedothers, such as the drafting delusion. Lawyers who practise mainly as advocatesin the appellate courts have little to do with drafting legal documents, but theother 95 % of the legal population engage frequently in that task. In spite of andI think partly because of the, evident practical value of drafting skills, no seriousattempt is made to teach them. This is so although the subject is capable ofacademic treatment-indeed it is arguably a higher discipline than skill inpursuing the woolly casuistries of case law. One must of course concede thatthe teaching of legal drafting as an integral part of such subjects as contract, landlaw, commercial law and the like would be difficult, perhaps so difficult that thelack of such teaching cannot be remedied. My point is that it is rejected forquite the wrong reason, because it is thought not to be academic enough.

The academic world has over-reacted to the profession's clamour for a"practical" course. Faced with the fact, and it is a fact, that the. new graduatehas not acquired some legal abilities, his teachers seek to justify that position bysaying that this has been necessitated by concentration on matters of culturalvalue. The unlettered rude practitioner wants a practical course for all the wrongreasons, no doubt; he hopes it will be shorter and easier, to smooth the pathfor his son, and he seems concerned only with money-making skills. These badmotives have made the academic feel comfortable in rejecting the practitioner'scriticism and have made him more convinced than ever that his present methodsresult in the production of a legally cultured graduate. More specifically, this