It is often assumed that universities are public authorities for the purpose of legislation. However, the case law on this issue is conflicting, making it difficult to identify with certainty whether universities are public authorities or not. The two words comprising the term 'public authority' draw attention to the two salient characteristics that must be present, namely, that an entity must be established to perform some public or governmental function and that, in addition, it must have the power or authority to act on behalf the government. This article looks at some of the relevant case law and sheds light on the principles involved in this particular challenge of statutory interpretation.
Universities and public authorities – the case law
The Case of Clark
The question was first applied to universities by the Supreme Court of Victoria in the case of Clark v University of Melbourne. In that case, section 17 of the Melbourne University Act 1958 empowered the council to make regulations concerning fees to be charged for the matriculation, examinations and degrees etc, and 'in general touching all other matters concerning the University'. The council made regulation 5.1, which levied an 'annual general service fee' on students, from the proceeds of which funds were to be made available to the students' representative council for its defined purposes and for other university purposes. The applicant relied on the legal principle that express words are necessary to empower a public authority to raise money by the imposition of fees in the nature of a levy of a charge or tax. The applicant contended that section 17 of Melbourne University Act did not contain any such express power. Among other things, Melbourne University denied that it was a 'public authority'.
Kaye J held that the University of Melbourne was a public authority because:
- it had power invested by statute; and
- the exercise of its statutory power required the approval of the Governor.
This case was unanimously overturned by the Victorian Court of Appeal in Clark v University of Melbourne (No 2). In that decision, the Court reviewed the authorities and established a test to determine whether an entity is a public authority. The Full Court stated (at pp72-73):
'The public authorities whose activities may attract the application of this branch of the law are bodies which exercise some governmental function of administration, licensing, planning or of other kinds affecting activities of members of the public. The essence of the university's power is that they are powers of self-government affecting only those who choose to become members by enrolment or the acceptance of employment or offers within the university.'
When applying this test, the Court held the university's powers did not affect members of the public because 'they cannot touch anyone who does not voluntarily bring himself within their reach' ...and that 'the regulation under consideration does not levy money to use of the Crown, nor a body substituted for the Crown to perform a Crown function ...or for use of anybody other than the university itself.' Therefore the Court held the University of Melbourne was not a public authority, at least for the purposes of the regulation considered in that case.
The Case of White
The question was then revisited by the Equal Opportunity Tribunal in the case of White v University of Sydney. In that case, the Equal Opportunity Tribunal of New South Wales (constituted by Bitel, McDonald and Suryn) had to consider whether the University of Sydney was a 'public authority' for the purposes of the Anti-Discrimination Act 1977 (NSW). The complainant commenced proceedings against the University of Sydney alleging that he was compulsorily retired from the university in contravention of the provisions of Part 4E of the Anti-Discrimination Act. The complainant was a reader with the Department of Veterinary Physiology at the university. The university had sent him a letter requiring him to retire at the age of 65. Section 49ZV(a) of the Anti-Discrimination Actrendered it unlawful for a person to retire an employee on the grounds of the employee's age. The primary issue for determination was whether the university was a 'public authority' for the purposes of the legislation (which, if answered in the positive, would mean that the complainant was 'employed in the public sector'). There was no definition of the term 'public authority' in the Anti-Discrimination Act.
The Tribunal considered the question of whether the university was a 'public authority' to be a question of fact for the consideration of the Full Tribunal, and not a determination of law to be decided by the Judicial Member alone. The complainant contended that the university was a public authority because the history of the university indicated that it is was a university in the classic sense, in that its principal functions are the provision of tertiary education and the conferring of degrees. These were said to be services of a public nature which was a critical feature.
The complainant also relied on the decision of Justice Kaye in Clark v University of Melbourne (discussed above) although no mention was made of the decision of the Full Court in that matter. He also relied on the decision of Griffiths v Smith  AC 170, where the House of Lords found that the managers of the non-provided public elementary school were a public authority, because'they form part of machinery whereby elementary education is provided for in this country …. In carrying on the school they are undoubtedly exercising a public function' (per Lord Porter at pages 205-206). The complainant also relied on two cases involving the issue of a writ of mandamus (Ex parte King; re the University of Sydney (1943) 44 SR (NSW) 19 and Ex parte Forester; re University of Sydney (1963) 63 SR (NSW) 723). In both cases the Court stated that the functions of providing instruction conferring degrees and so on may be regarded as public functions and that accordingly a writ of mandamus could be issued to the university.
The University of Sydney in essence urged a more limited definition of a public authority and contended that a public authority is a body which carries out or gives effect to the decisions or policies of government, that it is a body or an authority whose governing body is constituted by persons appointed by the Governor or Minister and that the essential character and purpose of a public authority is that it acts on behalf of the State or Government. The university argued that a public authority is governmental in essence and the university does not fall within that description. The university also highlighted that while it is governed by an Act, not all members of the Senate are appointed by the Governor or Minister.
The majority of the Tribunal accepted the argument of the complainant and held that the provision of education and the conferral of degrees is a public function and therefore the University of Sydney is a public authority. Notably, Judicial Member Bitel, the only judicial member, was in dissent. Member Bitel noted that this decision would lead to many voluntary associations being public authorities 'by default'.
The indicia of an 'authority' – FCT v Bank of Western Australia
In FCT v Bank of Western Australia the Full Court of the Federal Court of Australia reviewed the case law on what constitutes a public authority held that it not only must be 'public' but also an 'authority'. In order to determine if an entity is an authority, the Court established a two-step analysis. First, the Court will consider whether the entity has the indicia of an authority, including but not limited to whether the entity:
- is for-profit;
- has statutory authority;
- is an 'agent or instrument' of government;
- performs a 'traditional or inalienable' function of government;
- has 'coercive powers'; or
- has control power or command for the public advantage.
The banks in question were owned by the State government, which exercised powers over them and appointed their governing boards, and they performed various banking functions for the government and otherwise for the public benefit, but Hill J, with whom the other two judges agreed, nevertheless concluded that ' it is the lack of ability of each bank to exercise authority or command which leads to the conclusion that it is not an authority in the normal sense of the expression'.
Secondly, it must be proved the entity is able to exercise 'exceptional power or authority', described as a central concept of any authority or public authority. In order for power and authority to be exceptional it must not only be unavailable to an ordinary private person, but also have some level of public significance. Empowering an entity to do something it would not otherwise be able to do is not necessarily enough to satisfy the requirement of powers of control or command. In the case of Western Australian Turf Club v Commissioner of Taxation the High Court held:
'The power or authority to conduct a racecourse on land demised by the Crown, though it may be said to be exceptional in some respects is not I think such a power as the court had in mind ... notwithstanding that it probably was not 'otherwise authorised'.
The Court in FCT v Bank of Western Australia Ltd did not consider that the fact that the legislation authorised the State banks in that case to carry on general banking business and to perform certain additional financial functions as agents of the government amounted to the conferral of exceptional powers. Hill J at (619) observed that the banks had no greater authority to conduct banking business than any other private corporation that obtained a banking licence, and although he acknowledged that it was not open to others to perform the agency functions for the government which the banks were authorised to perform, these functions did not satisfy the control or command criterion.
Universities – where to from here?
Universities undoubtedly perform public interest functions by providing educational services and research facilities for the public benefit. The courts have gone so far as to describe these functions as 'public duties imposed in the public interest'. Whether universities possess sufficient power and authority to make them public authorities requires an exercise in statutory interpretation and case law analysis. Unfortunately there has not yet been a case on point regarding universities since White v University of Sydney. Numerous authorities highlight the difficulties in establishing just what power or authority is sufficient, noting that it is a question of fact and degree which requires the weighing up of a range of considerations and depends on the circumstances of the case. Consequently, whether a university will be a public authority will ultimately depend on the court's characterisation of the university's powers and the interpretation of the particular statute or regulation in question.
Universities have a number of statutory powers that other persons do not have, an example being the power to make by-laws and non-statutory rules but these either relate to matters that are incidental to their main educational, research and public discourse functions or, as in the case of the Statutes for some universities, merely provide a mechanism of internal governance. Whether these powers are 'exceptional' in the relevant sense is not settled.
Whether universities are public authorities remains an exercise of statutory interpretation and case analysis, as there is no clear answer or single set of criteria that can be applied in any given situation. (Perhaps there cannot be any given the different policy intent of different legislation.) What is clear is that you cannot assume universities are public authorities for all purposes.