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THE UNIVERSITY VISIT'OR AN UNWANTED LEGACY OF EMPIRE
OR A MODEL OF UNIVERSITY
GOVERNANCEFORTHEFUTURE?
Peregrine WF. Whalley* & Dr Gillian R. Evans**
The concept of the University Visitor evolved from medieval English
ecclesiastical law as a mechanism for the resolution ofinternal university disputes
and the regulation and control of universities. Although it was abolished in
New Zealand in 1990, it nevertheless remains a feature ofmany universities in
England, Australia and Canada, and a visible legacy ofBritish imperialism.
Against a background of societal concern about many facets of tertiary
education, its objectives and governance, this paper considers the early origins of
the University Visitor concept in medieval England and its subsequent migration
to other parts of the former British Empire. This paper traces the subsequent
evolution ofthis office in Australia and Canada, and its demise in New Zealand,
and discusses its application and value in today's universities.
INTRODUCTION
As the oldest mechanism still in existence for the resolution of internal
university disputes and for the regulation and control of universities, the
University Visitor concept should be of particular interest to legal historians,
B.A., LIB., Grad. Dip. Ed., Ll.M .. Barrister and Solicitor (A.CT.), Solicitor (N.S.W), Notary
Public (N.T.) Associate Dean, School of Accounting, Finance and Business Law, Faculty of
Business, Northern Territory University, Darwin.
M.A., Ph.D., D.Litt. (Oxford), Litt.D. (Cambridge), FRHist.S., FRSA. Faculty of History,
University of Cambridge, England. This paper is based on the separate presentations of the
authors at the Law & History Conference at La Trobe University, Melbourne, 3-5 July 1998,
addressing the theme Empires, Colonies, Legal Cultures.
110
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as well as to educational administrators, students, academics and legal
practitioners.
The extensively quoted judgement of Sir John Holt in Philips v. Bury1
in 1694 has been described in England as the "locus classicus of the law of
visitors, repeatedly applied for the last 300 years". 2 The following dictum
from his judgement both indicates the essence of the office, and remains
the source of more recent concerns:
... the office ofVisitor by the common law is to judge according to the
statutes of the College, to expel and deprive upon just occasions and to
hear appeals of course. And from him and from him only the party
grieved ought to have redress; in him the founder have reposed so entire
confidence that he will administer justice impartially that his
determinations are final and examinable in no other court whatsoever. 3
The traditional view of the common law, therefore, has been to restrict
or limit the circumstances in which Visitors' decisions will be subject to
judicial review, and to deny courts jurisdiction, or concurrent jurisdiction,
to consider matters which properly fall within the competence of the Visitor.
The essential function and features of the University Visitor today remain,
at least in theory, substantially unchanged, and the principal issue flowing
from continued recognition of the visitorial jurisdiction concerns its
relationship with the jurisdiction of other courts. This involves two central
concerns: the finality of Visitors' decisions and the extent to which they
should be subject to judicial review in a changing social climate of
accountability; and whether the courts should have at least concurrent
jurisdiction with the visitor.
The University Visitor concept can be traced back to the establishment
of the universities of Oxford and Cambridge in the twelfth and thirteenth
centuries in England. Since then, the jurisdiction has been quite frequently
invoked in England, where it still tends to be favourably regarded. 4 As the
British Empire developed, and British influence and traditions spread to
Philips v. Bury (1694) 90 ER 198.
R. v. Lord President of the Privy Council, ex parte Page [ 1992] 3 WLR 1112 at 1119 per Lord
Browne-Wilkinson.
n2atll25.
For example, see PJ Cannon, "Dismissals at Queen's", The Irish Times, 21st October, 1998.
2 Mac LR
The University Visitor
111
many other parts of the world, the Visitor became an integral and largely
unquestioned characteristic of universities in many parts of the British
Empire. 5 This paper outlines the evolution and emergence of this concept
in England from its original medieval ecclesiastical law origins; its subsequent
adaptation and application to the needs of civil corporations of a charitable
nature; and its current status in England. It then describes how the concept
travelled to Canada, New Zealand and Australia. In tracing its subsequent
evolution in these countries, it focuses on current themes of debate, and
pressures for reform or abolition, currently emerging in Australia.
In this latter regard, in Australia, the exclusive nature of the Visitor's
jurisdiction and the traditional immunity from judicial review ofVisitors'
decisions hc.ve generated a subtle but distinct controversy. Concerns of more
immediate practical urgency also relate to the scope of the visitorial
jurisdiction. The traditional role and function of the University Visitor has
a threefold character: ceremonial, appellate, and original interventionist.
Of these th:-ee aspects, the ceremonial role is today the least controversial,
and the on~ with which the Visitor is most usually associated. In New
South Wale:;, therefore, the ceremonial functions associated with the office
were preserved when all other functions were abolished in 1994. 6 With
regard to the appellate function, there is mounting evidence of an
"expectation gap" between popular belief concerning the nature and extent
of the visito~ial jurisdiction and the types of issue that a Visitor may consider
on the one hand; and the way in which Visitors perceive their role, and act
in it, on the other hand. The essential issue here is whether a Visitor may
enquire into the merits of a particular decision, or whether he or she is
merely limi:ed to reviewing the decision for procedural irregularity. 7
With regard to the continued existence of the original interventionist
role, opinims differ about whether this aspect of visitorial jurisdiction is
obsolete, or whether it is merely dormant, not having been exercised in
recent years simply because there has been no actual occasion for it. The
Australian cmstitutional crisis of 1975 invites comparison - the prerogative
For exampe, Fiji, Hong Kong, India, Pakistan, Ireland, Trinidad, Nigeria and South Africa in
addition to Australia, Canada and New Zealand. See generally: Association of Commonwealth
Universitie: annual yearbooks.
University ,,egislation (Amendment) Act 1994 (NSW).
P W F \)7htlley, & D M Price, "The University Visitor in Western Australia" (I 995) 25 The
University if Western Australia Law Review 146.
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power of the Governor-General to intervene may not have been exercised
for many years but this did not mean that this power had been extinguished.
The King-Byng8 crisis in 1926 in Canada raised similar issues - when advised
by the Canadian Prime Minister King to dissolve Parliament and permit a
general election, Lord Byng, the Canadian Governor-General, refused to
exercise his prerogative of dissolution. Similarly, the Visitor's original
interventionist role may not have been exercised frequently, but this does
not necessarily mean it no longer exists. 9
ENGLAND: The medieval origins.
The concept of the University Visitor evolved from medieval English
ecclesiastical law as a mechanism for the resolution of internal university
disputes, and for the regulation and control of universities. Ecclesiastical
foundations were liable to visitation by the relevant bishop for the purposes
of supervising their activities. Subsequently, the concept was preserved with
the development of civil corporations of a charitable nature, particularly
the colleges within the universities of Oxford and Cambridge from the
later medieval centuries. The Visitor was originally appointed by a founder
of a particular institution to ensure that its government and administration
would continue in conformity with his or her wishes and intentions as
founder. The Visitor was, therefore, a means of perpetuating the founding
philosophy of a particular institution and he or she was expected to resolve
disputes and exercise jurisdiction according to this overriding principle. 10
The subsequent adoption, adaption and use of this ecclesiastical model of
regulation and governance in modern universities, therefore, today also serves
as a reminder of the close association between the early Christian Church
and early institutions of learning.
K McNaught, The Pelican History of Canada, Allen Lane, London, 1978 at 243.
Re Petition to Dame Roma Mitchell (1992) 57 SASR 574. PWF Whalley, & DM Price, "The
University Visitor and University Governance" ( 1996) 18 journal of Higher Education Policy
and Management 45.
Ill
See generally, JL Caldwell, "The Visitor and the Visited: Judicial Review of Universities" (1982)
I Canterbury Law Review 307; JW Bridge, "Keeping Peace in the Universities: The Role of the
Visitor" (1970) 86 LQR 531; RJ Sadler, "The University Visitor : Visitorial Precedent and
Procedure in Australia'' (1981) 7 Uni Tas LR 2; PM Smith, "The Exclusive Jurisdiction of the
University Visitor" (1981) 97 LQR 610.
2 Mac LR
The University Visitor
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In English law, there were two strands to the ide;a of 'visitation' both
deriving ultimately from ecclesiological ideas of episcopal "oversight". By
the mediaeval period (c. 1200-1500), a bishop had a jurisdiction over all
the clergy and people of his diocese. This extended not only to the forensic
tasks which might fall to him in discipline cases or in resolving disputes,
but also to the duty to defend the faith and tend the spiritual well-being of
his people. These duties were all aspects of the ministry of "oversight"
(episcope). This type of visi ta ti on was undertaken by bishops and
archbishops in mediaeval universities, usually with a strictly "pastoral" remit,
but occasionally straying into areas of scholarship. Thus, Archbishop
Arundel's visitation of 1408 to Cambridge obliged the university to set up
a committee of twelve "censors", composed equally of doctors, bachelors
and scholars of theology, to investigate allegations of heretical teaching.
The second type of visitation arose from the need of a private and selfgoverning community to have someone to turn to in order to resolve its
internal difficulties when it could not do so itself. Such communities also
needed to be able to resolve conflicts between themselves, or their members,
and outside persons or authorities. At both the universities of Oxford and
Cambridge, therefore, it has long been accepted that there are a:causes and
contentions which belong to the cognisance of the University' - hence the
idea that an autonomous body of scholars, a universitas, should have
jurisdiction over its own affairs. 11
More complex questions of jurisdiction arose where 'town' and 'gown'
were both involved. In medieval times, relations between 'town' and 'gown'
could be extremely violent. 12 At Cambridge, the University Court has
exercised a jurisdiction which appears to have originated in a charter of
Edward l. 13 In granting the 'scholars' of the University power to summon
the burgesses and other laymen of the town before the Chancellor in all
litigation which did not involve landed property, this charter gave Cambridge
parity with Oxford in this respect and was confirmed by Edward II and
Edward III. Today in Cambridge, the Chancellor and the High Steward
can deal only with cases in which both parties are members of the University
although a wider civil jurisdiction still remains in Oxford. At both Oxford
JI
for example, AB Cobban, Medieval Universities, Methuen, London, 1975 at 104.
12
G Leef, Paris and Oxgfard Universities in the Thirteenth and Fourteenth Centuries, Wiley Publishers,
New York, 1968 at 89; RS Rait, Life in the Medieval University, Cambridge, Cambridge
University Press, 1912 at chapter 7.
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and Cambridge, the civil law procedure was followed by custom only until
Elizabeth I formally gave the court jurisdiction over civil proceedings in
1561.
Despite the secular aspects of their jurisdiction, the early university
courts were in essence ecclesiastical, reflecting a direct link with episcopal
visitorial functions. Early Chancellors had powers of excommunication
enforceable by the King's officers. 14 The scholars of mediaeval universities
were also all pursuing clerical careers (and continued to do so in Oxford
and Cambridge until the nineteenth century). The University of Cambridge
was hierarchical in its organisational structure. It had a higher court which
dealt only with cases involving Masters ofArts and above. Since the sixteenth
century, Cambridge has also had, in the person of a Commissary, a senior
lawyer who used to act as judge in place of the Chancellor in cases involving
inferior persons, including students. In more recent times, this term has
also been used in Canada, England and New Zealand to describe a person
appointed by a Visitor to investigate petitioners' grievances. 15 There was no
equality before the law within the University of Cambridge and different
rules existed for students, academic and non-academic staff respectively.
That is still the case.
According to a Cambridge University Statute of 1569, in the higher
court, where the Chancellor sat as judge, a sentence of imprisonment passed
on a doctor, or a sentence of expulsion passed on anyone, was of no effect
unless the majority of heads of colleges assented to it. There was a right of
appeal to the University itself, such appeal being heard by delegates elected
by the Senate. No ordinary court of justice could review their decision,
though appeal might lie to the King in Council. This provides an early
illustration of the principle that (academic judgement' should be
unreviewable. Within the autonomous jurisdiction, therefore, there was a
recognition that there were rights attaching to membership in the corporate
body, and that these rights were greater where the standing of the member
of the University was higher. There was also a presumption that the scholars
had rights of control over academic affairs.
G Dyer, Privileges ofthe University of Cambridge, Vol 1, London, 1824 at 68-81.
14
VA Huber, The English Universities, William Pickering, London, 1843, at 127 (iru vol.1) and
122-8 (in vol.2); The Ecclesiastical Courts -Principles ofReconstruction, Report of the Commission
on Ecclesiastical Courts, London, SPCK, at 19.
For example, Rigg v. University a/Waikato [1984] 1 NZLR 149.
2 Mac LR
The University Visitor
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The rationale of the authority ofVisitors has its origins in the traditions
of governance of eleemosynary 16 bodies. 17 A charitable corporation was
regarded as the "creature of the founder". Applying the principle eius est
disponere, the founder was entitled to determine how it should be run, and
to provide for its government and administration, and the application of its
revenues, in perpetuity. The founder was thus the source and authority of a
domestic law. Enjoying the perpetual right of patronage and visitation, the
founder might appoint a Visitor to be the judge of that law in his or her
stead, and to maintain his or her authority into the future. It was on that
basis that universities were first taken to be corporations of a sort which
could have visitors. 18
Modern universities in England, and, indeed elsewhere, have changed
greatly since medieval times and are now manifestly different in character
and structure. Many newer universities are now established by Act of
Parliament rather than Royal Charter and are now essentially publicly funded
bodies. Financial imperatives have resulted in the growing commercialisation
of tertiary education which in turn increasingly challenges traditional models
of governance by a collegial system, replacing it with a line management
structure. Despite these developments, the University Visitor has survived
because the office is built in to the structure of older universities. Thus, in
1978 rejecting the suggestion that the visitor was anachronistic, Megarry
V-C endorsed it as "being a valuable institution for contemporary society,
and one which ought to be supported and maintained". 19
More recently, in 1992, Lord Griffiths similarly doubted20 that the
exclusive jurisdiction of the visitor had outlived its usefulness, and Lord
Browne-Wilkinson noted that "the advantages of having an informal system
which produces a speedy, cheap, and final answer to internal disputes has
been repeatedly emphasized in the authorities". 21
J{,
"Of or dependent on, alms; charitable". The Concise Oxford Dictionary, Oxford University
Press, Oxford, 1985. Universities are still considered eleemosynary in nature.
17
See generally, H Picarda, The Law and Practice Relating to Charities, Butterworths, London,
chapter 39; SG Maurice & DB Parker, Tudor on Charities, Sweet & Maxwell, London at 312329.
I~
GD Squibb, Founders" Kin: privilige and pedigree, Clarendon Press, Oxford, 1972.
19
Patel v. Bradford University Senate [1978] 1 WLR 1488 at 1500.
20
n2 at 1167.
21
n2 at 1125.
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THE LEGACY OF EMPIRE
Since its medieval English origins, the University Visitor concept has
been adopted in many other universities in many other parts of the world,
once part of the British Empire, including, Canada, New Zealand and
Australia. In each of these former colonies, however, the concept has evolved
separately and differently. In Canada, it attracts relatively little comment;
in New Zealand, after a decade of visitorial activity, it was quietly abolished
as part of a larger package of tertiary education reforms; in Australia, it has
been abolished, in effect, in New South Wales and is under threat in other
jurisdictions.
Canada
In Canada, 22 at least eleven universities currently have a Visitor23 and
others appear to have had a Visitor at some stage in their history but have
now discarded the office. Visitorial activity can be traced back at least 150
years. Recording the early difficulties of McGill College, later to become
McGill University, Frost describes two visitations in 1844 and 1848. He
records that the generally accepted understanding of the role of the Visitor
"was that of a trustee in the public interest, to ensure that the foundation
was honestly administered for the particular purposes set out in its charter" .24
The 1844 visitation investigated and confirmed allegations of financial
mismanagement, declining student numbers and lack of public confidence
in the institution. The visitation report recommended termination of the
principal's tenure, dismissal of the bursar and re-allocation of their duties.
The 1848 visitation was similarly wide ranging and made recommendations
regarding the dismissal of administrative staff, the remuneration of
professors, financial management and the adequacy and suitability of the
College's physical amenities. 25
Similarly, Thompson, 26 in his history of the University of Saskatchewan
devotes a chapter to "The Crisis of 1919" and to the subsequent visitation
22
In preparing this section, the authors acknowledge access to an unpublished work: S Belson,
The University Visitor in Canada: Anachronism or Current Event, 1990. Ms Belson is currently
University Ombudsperson at Concordia University.
See generally Association of Commonwealth Universities annual yearbooks.
24
SB Frost, McGill University, vol. I, McGill-Queens's University Press, Montreal , 1980 at 72.
2'i
n24 at 109-110.
26
WP Thompson, The University ofSaskatchewan,. University ofToronto Press, Toronto, 1970 at
106.
2 Mac LR
The Universi-ty Visitor
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in 1920. That visitation involved a wide ranging enquiry concerning the
circumstances in which four professors were dismissed. Commenting on
the benefits of this process, he described the context of these dismissals as
involving:
loss of confidence in the administration on the part of a section of the
faculty, leading to disgruntlement, disaffection, and dis-loyalty; a
campaign for replacement of the president; division of the faculty into
warring camps; ... dismissal of the ringleaders ... 27
Allegations of improper conduct against the University President were
not substantiated and his action in dismissing the four professors was found
to have been justified in all the circumstances. Thompson noted the benefits
of this process, and that this example of visitorial intervention neatly
demonstrated the advantages of this jurisdiction and of having a Visitor
able to undertake an inquisitorial enquiry.
Both these cases are relevant to contemporary Australian debate about
the continued existence of this aspect of the role and function of the Visitor.
Of greater relevance, however, and perhaps more persuasive because of its
recent date, is the decision in Blasser v. Royal Institution for the Advancement
ofLearning. 28 This case concerned a student's attempt to challenge her failing
grades in the Quebec Court of Appeal. Confirming the exclusive nature of
the Visitor's jurisdiction, the Court also concluded that the Visitor's
customary jurisdiction covered the internal affairs of the university which
clearly included questions concerning academic evaluation of students.
There appear, however, to have been relativdy few attempts to invoke
the authority of Canadian Visitors, although there also seems to have been
less inclination to limit their actions to ceremonial activity or the review of
decisions for procedural irregularity. Paradoxically, to the extent that there
has been a revival of interest in the University Visitor in Canada, Australia
and New Zealand, this has also hastened its demise in some of these
jurisdictions. In Canada, this is illustrated by events in Alberta. Legislation
provided for the Provincial Lieutenant Governor to be Visitor to University
of Alberta. Two professors in dispute with the university about tenure issues
n27 at 107.
28
(1986) 16 Admin LR 298.
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were refused relief by the courts 29 and subsequently petitioned the Visitor
for relief. Being unaware of his duties as Visitor, and unfamiliar, with the
jurisdiction, the Visitor, was reluctant to become involved. The Supreme
Court subsequently granted mandamus to compel the Visitor to exercise
jurisdiction. Thus forced to act, the Visitor accepted the obligation, and,
taking account of all relevant considerations, exercised his visitorial discretion
and declined to intervene. 30
Apart from illustrating the truth of the adage about leading a horse to
water, the phyrric nature of the petitioners' victory in forcing the Visitor to
act was emphasised by subsequent events. To avoid future repetition of any
such embarrassment to the vice regal office, the Alberta Government
subsequently abolished the office ofVisitor. 31
The Visitor concept has not been without criticism in modern times.
Ouellette, for example, has argued that the unique features traditionally
associated with the office are no longer justified or suited to modern needs
in modern times. 32 Other Canadian commentators, however, have generally
been more supportive of the concept. Commenting, on the Blasserdecision,
for example, Petraglia saw the office of Visitor "as a means of (sic.) which
the autonomy and independence of Canada Universities are protected". 33
Expressly questioning whether the Visitor continues to matter, Ricquier
concluded that" [a] ppeal to the Visitor could be a valuable mode of redress
of internal grievances". 34 In similar vein, commenting that some Canadian
universities no longer have a visitor or have never had one, Bezeau added
"but they and their students are poorer for it." 35
29
Vanek v. Governors of the University of Alberta [1974) 3 WWR 167; [1975] 5 WWR 429;
(1975) 57 DLR. (3d) 595; McWhirter v. Governors ofthe University ofAlberta (1975) 63 DLR
(3d) 684; (1977) 80 DLR (3d) 609.
311
Based on inspection of unpublished archival records of the University of Alberta.
31
Universities Amendment Act, 1976 (Alberta) c88, s2.
32
Y Ouellette, "Le Contr-le Judiciaire sur "Universit" (1970) 48 The Canadian Bar Review 63 l.
.14
W, Ricquier, "The University Visitor" (1978) 43 Dalhousie Law journal 647 at 681 & 684 .
55
LM Bezeau, "The University Visitor: Medieval anachronism or Modern adjudicator" (1993) 4
ELJ 241. See also AN Khan, "British universities: Visitor's Jurisdiction" (1993) 22 journal of
Law & Education 197; AN Khan, "University Visitor: Strict Construction" (1993) 5 ELJ 245;
Belson, n22 at 64.
P Petraglia, "The University Visitor" ( 1988) 4 Administrative Law journal 25 at 31.
2 Mac LR
The University Visitor
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Despite these endorsements, however, there is, in fact, very little evidence
to suggest that the Visitor does act as an effective mechanism for dispute
resolution or university governance, or could do so if asked. As the Alberta
experience demonstrates, many people who should be aware of the role
and potential of this office often do not in fact know of its existence, let
alone how it is supposed to operate.
New Zealand
The history of the Visitor in New Zealand36 dates from 1869 at the
University of Otago, 37 and 1874 for the University of New Zealand. 38 Prior
to the 1970's, the Visitor's role and duties were essentially ceremonial. The
exclusive nature of the Visitor's jurisdiction was first judicially considered
by the New Zealand Supreme Court in 1969. 39 There are also anecdotal
accounts that former Governor-General Sir Denis Blundell, acting of his
own volition as Visitor, attempted to intervene as Visitor and resolve disputes
in the English department at Otago University and the History department
at Waikato University in 1974.
The New Zealand Visitor was first formally petitioned in 1981. 40 Rigg
had been a senior lecturer at Waikato University. Dismissed, in effect, for
misconduct, he petitioned the Visitor to set aside the University's decision,
and to be reinstated. Without the benefit of guiding precedent, but aware
of recent visitorial activity in Victoria, the New Zealand Governor-General
initially sought information from the Governor ofVictoria about how the
Victorian petition 41 had been managed. He subsequently appointed two
Commissaries to conduct the enquiry and hearing on his behalf, and his
decision was duly published. The Rigg case triggered a spate of appeals to
successive Visitors which ended when the Visitor was abolished as part of a
package of wider educational reforms in 1990. 42
See generally, Norrie v. Auckland University Senate [ 1984] 1 NZLR 131.
l7
University of Otago Ordinance 1869 s 14.
New Zealand University Act 1874 s29.
.l9
Bell v. University ofAuckland [ 1969] NZLR 1029 .
40
Rir,gv. UniversityofWaikato (1984] 1NZLR149.
41
See below. Re University ofMelbourne; ex pa rte De Simone [1981] YR 378.
42
Education Amendment Act 1990.
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In the short decade prior to its abolition, New Zealand visitorial practice
developed a number of features which might yet be usefully considered and
adopted in Australia, or elsewhere where jurisdictional and/or procedural
ambiguities continue to arouse concern. An interesting feature of the Rigg
case, for example, was the decision to distance the vice regal office from the
process of enquiry and hearing. Having accepted a petition, the Visitor
delegated the enquiry and hearing to two Commissaries, one a retired judge
and the other an experienced academic.
In the same year, the Supreme Court of New Zealand declined to
recognise the Visitor's exclusive jurisdiction. 43 It noted that English
universities were traditionally established by charters while New Zealand
universities are established by statute. As a matter of statutory interpretation,
therefore, the Supreme Court held that Parliament could not have intended
to exclude universities from the jurisdiction of the Court. 44 Of additional
relevance to current Australian concerns, the Court also clearly contemplated
that a Visitor might consider the merits of particular decisions in appropriate
circumstances, thereby confirming dicta in Rigg's case. In his review of the
Visitor's role, Brookfield subsequently confirmed that the Visitor was
concerned not only with procedural fairness but also with substantive
fairness. 45
A criticism of the visitorial system, not limited to New Zealand, concerns
the paucity of information about visitorial practice and procedure. This
inhibits its use, inevitably disadvantages petitioners, and favours respondent
universities as repeat players, able to accumulate knowledge and
understanding of the jurisdiction. 46 The fact that Visitors' decisions
overwhelmingly tend to favour the universities does nothing to detract from
this argument. Responding to the need for practice guidelines, the more
clearly perceived in light of the popularity of, and revival of interest in this
jurisdiction, the New Zealand Governor-General's office developed and
43
Norrie v. Senate ofthe University ofAuckland [1984) 1 NZLR 129.
44
Interestingly, this decision was followed by the English Court of Appeal in Thomas v. University
of Bradford [ 1986) 1 All ER 217 but reversed on appeal by the House of Lords in Thomas v.
University ofBradford[l987] 1 All ER 217.
4')
FM Brookfield, "The Visitor in the New Zealand Universities" (1985) 11 New Zealand
Universities Law Review 382 at 391.
46
G Howells, "Employment Disputes within Universities" (1989) 8 Civil justice Quarterly 152 at
154.
2 Mac LR
The University Visitor
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published formal practice directions.47 Developed following a consultative
process involving representatives of the universities, staff, students and the
Governor-General, the document described the visitorial process for the
benefit of all parties. Regrettably, no such practice guidelines have been
published by Visitors for other jurisdictions.
As in Canada, New Zealand commentators
favourably. Commenting on Norrie's case, for
optimistically of the jurisdiction's future. 48 In a
of the Visitor has been regretted as a symbol
become:
have regarded the concept
example, Caldwell wrote
different vein, the passing
of what universities have
Although, the removal of the Visitor seems at first to be the disposal of
an ancient ornament, it is in fact a sign that the transition of the
universities from independent seats of learning to educational local
authorities is complete. 49
Australia
Turning finally to Australia, the founding statutes of most public
universities have appointed the Governor of the respective states Visitor to
the universities in those states. 50 The Visitor, therefore, has been a feature
of most public universities since the establishment of the University of
Sydney in 1850. The earliest visitations took place at Melbourne University
late last century. 51 There was subsequently little visitorial activity in Victoria
or elsewhere in Australia until about 1979/1980. In 1979 interest in, and
awareness of, this jurisdiction was stimulated almost simultaneously by
separate and unrelated petitions in Victoria and Western Australia. De
Simone's petition concerning alleged irregularities in the operation and affairs
47
Governor-General As Visitor: A Procedure for Dealing with Petitions. Issued by Government House,
Wellington.
4H
JL Caldwell, "Judicial Review of the Universities - The University Visitor" (1984) NZLJ 66.
4'>
R Pitchforth, Obituary for a Visitor, Massey University, 1990, at 20. Published as an occasional
paper.
No such statutory provision was ever made for public universities in the A.CT, Northern
Territory, or Queensland. Original drafts of the Queensland University Bill 1911 did contain
provision for a Visitor but that was discarded prior to its presentation to Parliament. Bond
University has been the only private university in Australia to appoint a Visitor.
Sadler, n 1O; E Scott, A History of the University of Melbourne, Melbourne University Press,
Melbourne, 1936, at 84-94. The original records are still held in the University of Melbourne
Archives.
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of the SRC was delivered to the Visitor of Melbourne University on 9th
July 1979 and dismissed on 16th October 1979. 52 Bloom's petition seeking
review of a decision about an application for study leave was delivered to
the Visitor of the University of Western Australia on 30th October 1979.
The Visitor's decision was delivered on 18th December 1979. An appeal to
the Supreme Court was heard on 12th March 1980, and rejected on 16th
April, 1980. 53 Since then there have been approximately 200 petitions in
Australia, of which fewer than 10 have been successful, or partly successful. 54
As in Canada and New Zealand, renewed interest in the visitorial
jurisdiction has generated contradictory reactions in Australia. On the one
hand, the Visitor has been welcomed as "a guarantee of academic freedom
and security of tenure" .55 On the other hand, there has been strong criticism,
and mounting pressure for abolition, of at least its non-ceremonial functions.
Concerns seem to be twofold. It has been suggested that the Visitor is
simply anachronistic and inappropriate to the needs of modern universities,
and that the Visitor has been overtaken by the development of a body of
Administrative Law, alternative dispute resolution procedures, a proliferation
of internal grievance procedures for universities and the establishment of a
variety of watchdog organisations, particularly the Ombudsman. Despite
the House of Lords' endorsement in 1992 of the Visitor as a "swift, cheap
and final process" ,56 its retention has been scathingly criticised. Sir Francis
Burt, 57 for example, in an address 58 which attracted wide coverage in the
academic press 59 but little attention elsewhere, described it as "a mischievous
'i2
Re University ofMelbourne; ex parte De Simone [1981] VR 378.
53
Murdoch University v. Bloom and Kyle [1980] WAR 193.
54
Estimate based on largely unpublished research of vice-regal archival records in Victoria,
Tasmania, South Australia, Queensland, Western Australia and Victoria. See, for example,
Whalley & Price, nlO.
AN Khan & AG Davidson, "University Visitor and Judicial Review in the British
Commonwealth (Old) Countries" ( 1995) 24 Journal ofLaw & Education 457 at 462.
56
n2 at 1116. Similarly, per Lord Browne-Wilkinson at 1125.
57
Formerly Chief Justice of the Supreme Court of Western Australia ( 1979 to 1990), Governor
of Western Australia ( 1990 to 1993), and ex officio Visitor to the University ofWestern Australia,
Curtin University of Technology, Edith Cowan University and Murdoch University. He also
delivered the leading judgment in Bloom's case.
F Burt, "University Visitor", unpublished paper delivered in Perth to the University of Western
Australia Convocation on 18 March, 1994.
59
For example, Campus Review, 24-30 March, 1994; Campus Review, 7-13 April, 1994; Campus
Review, 21-27 April, 1994.
2 Mac LR
The University Visitor
123
anachronism", 60 adding "that final and cheap are the badges of palm tree
justice". 61
There is also growing anecdotal evidence that it is not necessarily cheap,
speedy nor final. In some Australian jurisdictions, the visitorial process has
become very legalistic and relatively inflexible. Petitioners are often legally
represented in their dealings with the Visitor, and, at hearings, universities
are invariably represented by Counsel, usually Senior Counsel. The
disbursements alone incurred by one university in one dispute in the early
l 980's amounted to $28,745. 62 Nor is the process necessarily speedy. In
Sawyer's case 63 the Visitor took fourteen months to decide, in what some
might consider a highly technical argument, that his petitioners, a full
professor and two colleagues, were not members of the respondent university
and therefore lacked standing.
As to the Visitor's immunity from judicial review and the finality of his
or her decisions, legal and constitutional historians may find the decision
of the New South Wales Supreme Court in Bayley-Jones v. University of
Newcastltf 4 of particular interest. Apart from demonstrating that Visitors'
decisions are reviewable, at least in cases of error of law on the record, it
triggered the effective abolition of the Visitor in New South Wales in 1994. 65
The petitioner had been a PhD student and petitioned the Visitor concerning
the circumstances in which her candidature had been terminated. Finding
in her favour, the Visitor also awarded her a solarium of $6000. She
subsequently appealed this decision to the Supreme Court which found
that the Visitor had erred in his method of ca)culating this award and
remitted the matter so that the correct principles of calculation might be
applied. Senior Counsel for the Visitor, the New South Wales Solicitor
General, subsequently prepared a scathing opinion on the continued utility
(){)
n58 ar 10.
(,J
n58 ar 12.
Deakin University and the Inquiry into the case of Professor Michael Briggs. A report adopred by
Deakin U niversiry Council, December, 1988. Appendix IV. This was one of the rhree Victorian
decisions which found against the respondent universiry.
(,j
Unreported decision of rhe Visiror dared 1 February, 1995. See also Senate Selecr Commitcee
on Public Inreresr Whisdeblowing: Jn the Public Interest, Canberra, 1994; rhe report of that
commitcee on unresolved whisdeblower cases: The Public Interest Revisited, Canberra, 1995;
and associated transcripts of proceedings.
(1990) 22 NSWR 424. See also JL Roberts, "The Role of the Visiror" (1991) 65 ALJ 299.
n6.
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of this jurisdiction. Calling it "obsolete, unnecessary, costly and deficient" ,66
his strong recommendation 67 for abolition was implemented in 1994. As
in Alberta, losers who are powerfully placed to influence the legislative
process tend to get the last laugh.
Other vice-regal pressures for reform generated by increased visitorial
activity include concerns that:
•
the integrity of vice-regal office is jeopardised by the possible
personal involvement of State Governors in matters of public
controversy;
•
non-ceremonial visitorial duties consume too much time and
expense;
•
as the system presently operates, Visitors are not necessarily
appropriately qualified or experienced. 68
This may partly explain why Australian Visitors have tended to adopt
a narrow approach to, and interpretation of, their role and function.
Successive Visitors in Victoria69 and Western Australia, 70 at least, will only
review educational administrative decision for procedural irregularity, and
it is clear that there is a considerable gap between how they perceive their
role, and act in it, and how it is perceived by others. The more potentially
controversial and public the issue, the greater the degree of concern and,
therefore, reluctance to intervene, either by way of exercising the appellate
jurisdiction or by exercising the original interventionist powers. This
reluctance, in turn, has reduced the effectiveness of the office of Visitor in
resolving serious issues, even though, by virtue of their complex or
controversial nature, they may be, in fact, those very issues which justify
the unique features traditionally associated with this office. The issue,
therefore, still untested in the courts, is whether the Visitor still enjoys this
K Mason, "University Visitors", unpublished paper, March 1990 at 2.
n66 at 12.
6H
Whalley & Price, n l O; Burt, n58; Mason, n66; R Snell (ed), The Role ofthe University Visitor:
A Symposium, occasional paper published by the University ofTasmania Law School, 1997.
Re University ofMelbourne; ex parte De Simone [1981] VR 378, 395; H Winneke, "The Visitor",
unpublished address given at Monash University on 28 March, 1980, at 6; "LLD. FOR
CROCKETT J." [1995] Victorian Bar News 16 at 19; Office of the Governor : The Role ofthe
Governor of Victoria, Melbourne, Government House, 1994, at 10.
711
Whalley & Price, n 10 at 159.
2 Mac LR
The University Visitor
125
traditional range of powers, albeit that they may have not been exercised
frequently in recent years, or whether current practice in fact reflects the
formal limits of their authority.
As to whether the Visitor continues to serve the needs of modern
universities and the wider community of which they are part, it has been
argued elsewhere 71 that if current practice accurately reflects the limits of
visitorial authority then it serves no useful purpose. As it currently operates
in Australia, there is little doubt that it is far from being the guarantor of
academic freedom envisaged by some commentators. Thus, although
Stamm, writing in 1980, suggested that "the Visitor can continue to play a
vital role in the oversight of University affairs" ,72 it had not operated that
way hitherto in Australia, and it has hardly operated that way since.
There are, however, strong arguments to support the view that the
Visitor's authority is much more extensive than current practice would
suggest. It may also be argued that there is a need for such a system and that
its role should be clarified and redefined so that it may once again serve as
an effective mechanism for dispute resolution and university governance.
Cases such as the Rindos dispute with the University ofWestern Australia, 73
Sawyer's dispute with RMIT, 74 and the Ormond College Affair 75 in
Melbourne, all demonstrate the failure and inadequacy of existing systems
of dispute resolution, and the a lack of accountability. This is not intended
as a comment on the merits of the substantive issues at the heart of these
71
PWF Whalley & OM Price, "The University Visitor and University Governance" (1996) 18
Journal ofHigher Education Policy and Management45.
72
M Stamm, "Consumer Rights in Academe: A Victorian Postscript", 1980/81 LAURA 55 at
62.
Legislative Council Standing Committee on Public Administration : Fourth Report on its enquiry
into the events surrounding the denial of tenure to the late Dr David Rindos by the University of
Wf>stern Australia. Perth, 1997.
74
See generally, the report of the Senate Select Committee on Public Interest Whistleblowing: Jn
the Public Interest, Canberra, 1994, and the report of that committee on unresolved
whistleblower cases: The Public Interest Revisited, Canberra, 1995. See also the associated
Hansard transcripts of the Committee; M Forbes, "Chief Justice to probe RMIT fraud claim",
Campus Review 27 February, 1994; E Aubert, "RMIT audit finds all well in economics and
finance", Campus Review, 10-16 June, 1993 at 2; D Illing, "Call to make VCs more accountable"
The Australian, 29 November, 1995 at 46.
This matter has received extensive publicity. See, for example, R Manne, "The Ormond College
Affair" (1995) 39 Quadrant 2; A Cossins "On stone throwing from the feminist sidelines: a
critique of Helen Garner's book, The First Stone" (1995) 20 MULR 528; H Garner, The First
Stone, Picador, Sydney, 1995; J Mead, Bodyjamming, Random House, Sydney, 1997.
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disputes - it is, rather, to recognise that in each of these unrelated situations
the integrity of some aspect of university administration was challenged in
circumstances warranting a proper investigation of the various allegations
and counter allegations. However, to the inevitable detriment of the
respective institutions, in each of these instances, the underlying issues
remain unresolved and impartial external observers can have little confidence
that they have been properly investigated by the universities respectively
involved.
For those, therefore, who advocate reform, clarification and/or
revitalisation of the role and function of the University Visitor, rather than
its simple abolition, an appreciation of differing practices and procedures
adopted in other countries, but evolving from a common source, may also
suggest the direction for future reform in Australia. The University Visitor
concept, therefore, also provides a convenient vehicle for considering the
role and value of an histqrical and comparative perspective in addressing
current legal dilemmas.