THE UNIVERSITY VISITOR

(Last modified: 7th. March, 1998)
P.W.F. Whalley
<p_whalley@Business.ntu.edu.au>

Faculty of Business
Northern Territory University
DARWIN NT 0909
AUSTRALIA

ORIGINS & BACKGROUND

The University Visitor concept evolved from English medieval ecclesiastical law as a mechanism for the regulation and control of universities, and for the resolution of internal university disputes. 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 an eleemosynary nature, particularly the colleges within the universities of Oxford and Cambridge in the twelfth and thirteenth centuries. A Visitor was originally appointed by the founder of a particular institution to ensure its government and administration in conformity with his or her wishes and intentions. The Visitor, therefore, was a means of perpetuating the founding philosophy of an eleemosynary institution and was expected to exercise jurisdiction according to this overriding principle. The Visitor now also serves as a reminder of the close association between the early Church and early institutions of higher learning.

As the British Empire developed, and British influence and traditions spread to many parts of the world, the concept of the Visitor became an integral and largely unquestioned characteristic of universities in many parts of the former British Empire. In Australia, the founding statutes of most universities in Tasmania, South Australia, Victoria and Western Australia still preserve the traditional concept of the University Visitor and appoint the respective State Governors as their Visitors. Similar provisions also existed for New South Wales universities until 1994, when all but the ceremonial functions associated with that office were abolished.

In Australia, the Visitorial jurisdiction was rarely invoked prior to about 1979. Since that time, however, there have been at least 200 attempts to invoke the powers of the Visitor, although only about ten petitioners have been successful or partially successful.

This revival of interest in the office of Visitor has given rise to concerns about its continued utility and the extent to which it continues to serve the needs of modern universities. In March, 1994, for example, Sir Francis Burt, formerly Governor of Western Australia and Visitor to the University of Western Australia (as well as Curtin, Edith Cowan and Murdoch Universities) expressed doubts about the continued utility of the University Visitor concept. In advocating its abolition, he described it as a mischievous anachronism.

More recently, in October, 1996, the Governor of Tasmania (and Visitor to the University of Tasmania) convened a symposium at the University of Tasmania to consider the role and future of this office and whether it should be filled by vice-regal representatives. The symposium produced no clear consensus favouring or opposing retention of the office of Visitor. However, if it was to be retained, then there was consensus that it should not be filled by vice-regal representatives and that the Visitor's role and function needed to be more clearly defined.

In England the Visitorial concept has been unequivocally endorsed, most recently in 1992 by the House of Lords in R. v. Lord President of the Privy Council, ex parte Page, ([1992] 3 W.L.R. 1112) where Lord Griffiths suggested that "...the value of the visitorial jurisdiction is that it is swift, cheap and final".

The extensively quoted judgment of Sir John Holt in Philips v. Bury in 1694 (90 E.R. 198) has been described as the locus classicus of the law of visitors, repeatedly applied for the last 300 years. The following dictum from his judgment indicates both the essence of the office, and suggests the current source of concern.

"... the office of Visitor 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."
The principal issue raised by the continued recognition of the Visitorial jurisdiction concerns its relationship with the jurisdiction of other courts. The traditional view of the Common Law is that matters properly falling within the competence of the Visitor may not be decided by the courts and that Visitors' decisions will not be subject to judicial review, except in instances of error of law on the face of the record or where the Visitor has failed to observe the rules of natural justice.

Despite the support of the House of Lords for this concept in England, elsewhere in the world it has been modified or abandoned, and the Tasmanian symposium, and the observations of Sir Francis Burt, reflect growing pressure for its reform in those Australian states where it still exists.

THE VISITOR & DAVID RINDOS

The existence of the Visitor as a form of dispute resolution has been very much of a non-event for David Rindos. Although there have been various reports of this matter being referred for investigation to the Governor of Western Australia as Visitor to the University of Western Australia, this has not in fact happened.

Notwithstanding the House of Lords' endorsement of the Visitor as a cheap, speedy and final means of dispute resolution, this has not been Rindos' experience. In contemplating a petition to the Visitor, he had a number of practical concerns.

The question of cost

Rindos anticipated that any referral to the Visitor would be a complex and lengthy process, and therefore likely to involve substantial costs. In this regard his fears were probably justified. The Industrial Relations Commission had earlier taken over one year to reach its decision that it did not have jurisdiction to hear his claim. At both that hearing, and subsequently at the Parliamentary enquiry, the University had been represented or assisted by Senior Counsel. With the University able to spare no expense in its legal representation, he felt himself severely disadvantaged.

Finding suitable representation

Because so little published material exists about how the Visitorial jurisdiction operates, Rindos also experienced difficulty in finding a lawyer, or anyone else familiar with this jurisdiction, to represent him. Legal practitioners with practical experience of this jurisdiction are relatively few in number and tend to have seniority in either government practice, at the Bar or in the larger legal firms.

The possibility of bias

Rindos also had doubts about the impartiality of the Visitorial system in Western Australia. It has become an established feature of the Visitorial process that a Visitor will appoint an assessor to investigate disputed issues of fact and recommend an outcome, particularly where the issues are highly controversial. Such assessors are typically senior practitioners or retired judges. Given the size of Western Australian society, including the legal community and its small size, he was concerned about the possibility of bias.

While these fears may have been genuine and understandable, they were probably unfounded. In another recent Western Australian Visitation, for example, the Governor appointed as assessor a former judge of the Supreme Court of Western Australia with a distinguished record of public service in relation to other sensitive commissions and as Administrator of the Northern Territory, and whose competence and integrity is not to be doubted.

CONCLUSION

This whole matter, which is still unconcluded, may be considered from a number of perspectives. This article, however, has only attempted to outline the concept of the University Visitor and the role of this office in Rindos' dispute with the University of Western Australia. There has been no attempt to analyse any aspect of this dispute, or comment on the merits of the substantive issues. That will no doubt be attempted at a later stage.

The possibility of Visitorial intervention was triggered by the extraordinary finding of the Industrial Relations Commission that it did not have jurisdiction to hear Rindos' application because the Visitor was the only person with jurisdiction to decide such matters.

At an impersonal level, therefore, this matter offers an interesting case study : in suggesting the need for effective mechanisms of accountability in the Australian tertiary education sector, it highlights the deficiencies of the existing system. In serving to focus attention on the practical limitations of the Visitorial system as it has evolved in Western Australia, it also suggests the need to revive and clarify the Visitorial role if the office is to operate impartially and effectively as an ombudsman, auditor and inspector of facilities, as it once did and still does in other parts of the world. Alternatively, it may suggest the advantages in abolishing the concept altogether so that it may be replaced by some other more effective process or office.

At a more personal level, this matter represents a sad failure of "The System" to provide a practical and satisfactory means of investigating or addressing particular grievances of a serious nature. In December, 1997, the Parliamentary enquiry found that the University had acted without procedural fairness. As The Australian editorialised:

"The Rindos saga ranks alongside the Sydney Sparkes Orr affair at the University of Tasmania in 1956 and the Ormand College row at the University of Melbourne in 1991 as academic causes celebres... universities should have transparent procedures to handle allegations against staff members; and it is inappropriate for taxpayer-funded organisations to deny Parliament the right to investigate its performance."
It should be remembered that the Visitorial process could have been initiated by the University, or by the Visitor himself. Why this did not happen, particularly as it was the University which raised the jurisdictional argument before the IRC, will hopefully be considered by the Parliamentary enquiry under its second term of reference.

FURTHER READING :

   Bridge, J.W. : 'Keeping Peace in the Universities : The Role of the Visitor' (1970) 86 L.Q.R. 531.

   Caldwell, J.L. : 'The Visitor and the Visited : Judicial Review of Universities' (1982) 1 Canterbury Law Review, 307.

   Sadler, R.J. : 'The University Visitor : Visitorial Precedent and Procedure in Australia' (1981) 7 Uni Tas L.R. 2.

   Smith, P.M. : 'The Exclusive Jurisdiction of the University Visitor' (1981) 97 L.Q.R. 610.

   Price, D.M. & Whalley, P.W.F. : 'THE UNIVERSITY VISITOR & UNIVERSITY GOVERNANCE. Journal of Higher Education Policy and Management, vol. 18, (July 1996) no. 1, p. 45.

   Whalley, P.W.F. & Price, D.M. : 'THE UNIVERSITY VISITOR IN WESTERN AUSTRALIA'. The University of Western Australia Law Review, vol. 25 (July, 1995,) p. 146.

   Whalley, P.W.F. & Price, D.M. : 'The University Visitor in Tasmania : Retention, Repeal or Reform ?' in The Role of the University Visitor (ed. Snell, R). University of Tasmania Law Press, Hobart, 1997.