Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Education Standards Authority v Thomas [2022] NSWCATAP 110 Hearing dates: 1 April 2022 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Appeal Panel Before: T Simon, Principal Member Dr R Dubler SC, Senior Member Decision: (1) Appeal is allowed. (2) The orders and decision of the Tribunal dated 27 August 2021 are set aside. (3) Order that the whole of the proceedings be reconsidered by a differently constituted Tribunal, without further evidence, unless with the leave of the Tribunal, in accordance with the Appeal Panel's decision. Catchwords: APPEAL – administrative review – meaning of 'misconduct' in s 24(1)(e) of the Teacher Accreditation Act 2004 (NSW) – whether the Tribunal misconstrued the meaning of 'misconduct' – whether the Tribunal erred in determining that conduct alleged to be in breach of NSW Department of Education Code of Conduct could not constitute 'misconduct' – whether the Tribunal erred by determining that non-compliance with the Australian Professional Standards for Teachers approved under s 19(1) of the Education Standards Authority Act 2013 (NSW) could not constitute misconduct – whether the Tribunal erred in its discretion to find in the alternative that the respondent's suspension was disproportionate and not sufficiently serious to warrant such suspension Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 81(2) Education Standards Authority Act 2013 (NSW), s 11(1), s 12(2)(c), s 12(2)(h), s 19(1) Government Sector Employment Act 2013 (NSW), Part 2 Teacher Accreditation Act 2004 (NSW), s 4(1A) s 7(2)(c), s 19(1), s 24, s 24A, s 28, s 30-32 Teaching Service Act 1980 (NSW), s 5A, s 7(1)(c), s 7(1)(e) Cases Cited: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 Dionisatos (for the Estate of the Late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34 House v R (1936) 55 CLR 499 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 Texts Cited: Macquarie Dictionary (8th edition, 2020). Oxford University Press, 2021, online edition at www.oed.com/view/Entry/119350 (item 1b) viewed on 5 April 2022 Category: Principal judgment Parties: NSW Education Standards Authority (Appellant) Michael Thomas (Respondent) Representation: Counsel: D Fuller (Appellant) Solicitors: Lander & Rogers (Appellant) Respondent self-represented File Number(s): 2021/00272097 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Jurisdiction Citation: [2021] NSWCATOD 125 Date of Decision: 27 August 2021 Before: D Dinnen, Senior Member File Number(s): 2021/0007021 reasons for decision Introduction 1. This is an Appeal by the NSW Education Standards Authority (NESA) against a decision of the Tribunal of 27 August 2021 (the Decision). 2. NESA had decided to suspend the respondent's accreditation as a teacher pursuant to the Teacher Accreditation Act 2004 (NSW) (the Accreditation Act). The Tribunal in its decision decided to set aside the decision of NESA and in substitution, reinstated the respondent's accreditation. 3. The principal ground of the appeal is that the Tribunal misconstrued the meaning of 'misconduct' under the Accreditation Act. For the reasons which follow we have decided to allow the appeal and remit the matter to a differently constituted Tribunal for reconsideration in accordance with these reasons. Background 1. The following background is taken from the Decision at [1] – [8]: [1] Michael Thomas (the Applicant) was a teacher at Moree Public School on a temporary teaching contract in the first half of 2020. Performance issues were raised with him in March 2020, following which he took leave. He eventually returned to work full time on a return to work plan on 25 May 2020 and was placed on a performance improvement plan on 15 June 2020. He resigned shortly before that plan concluded in July 2020. Between March 2020 and his resignation in July 2020 he made various and multiple complaints of bullying, harassment and discrimination on the grounds of sexuality to the NSW Department of Education ('the Department'), SafeWork NSW, and the NSW Anti-Discrimination Board in relation to his performance management by Moree Public School and the conduct of the Department towards him. He also threatened to take his complaints to the media on 17 June 2020. [2] On 22 June 2020 the Applicant emailed various email addresses at The Australian and news.corn.au with his complaint, titled "Secretary of NSW Dept Education Allows Discrimination & Bullying to Occur Under His Watch". A journalist from The Australian contacted him on 13 July 2020 and the Applicant was interviewed by him some time later. On 24 July 2020 the Applicant texted the journalist, stating "After significant further consideration about the ramifications on my reputation in proceeding with the story, I am letting you know I no longer wish to proceed with the story", but he apparently changed his mind after speaking further with the journalist. On 12 August 2020 the Applicant texted the journalist "I have just been offered a job as a solicitor. I ask that you do not run the story any more. Thank you for all your help, Sorry for the inconvenience." [3] Nevertheless, on 13 August 2020 The Australian published the article. It was quite unfavourable to the Applicant, referring to historical criminal charges against him relating to child pornography, and was titled "School hired sacked child porn teacher". That same day, the Department wrote to the Applicant requiring him to show cause why his casual teaching approval should not be withdrawn and his name placed on the Department's confidential list of persons not to be employed ('NTBE list'). [4] On 21 August 2020 the Department decided that the Applicant's unsatisfactory performance justified the withdrawal of his conditional casual teacher approval, and pursuant to s 7(1)(e) of the Teaching Service Act 1980 ('TS Act') placed the Applicant on the NTBE list for a period of two years, having regard to s 5A and s 93A of the TS Act: Given your demonstrated breach of confidentiality and attempts to damage the integrity and reputation of the Department by airing your grievances in the media; your inability to objectively self-reflect and assess your performance and accept feedback by supervisors (Standards 6.1, 6.3, 7.1, 7.2); and above all, your failure to protect children by not ensuring a well managed and engaging classroom for all students, I have determined to place your name on the NTBE list for two years. [5] On 13 January 2021 the NSW Education Standards Authority ('NESA' / 'the Respondent') made a decision to suspend the Applicant's teacher accreditation pursuant to s 24A(1)(a) of the Teacher Accreditation Act 2004 ('the Act'). The Applicant sought internal review of that decision and the Respondent affirmed its decision on 24 February 2021 ('the Reviewable Decision'). In its Reviewable Decision, the Respondent determined that the Applicant's inclusion on the Department's NTBE list was for misconduct which would adversely reflect on his professional standing, integrity and suitability to teach, and that it was appropriate to suspend his accreditation having regard to the criteria at s 248 of the Act. [6] Both the Department and the Respondent measured the Applicant's conduct against the requirements contained in the Australian Professional Standards for Teachers ('the Standards'). The Respondent additionally relied on the Department's Code of Conduct and the ethical framework for the government sector established under Part 2 of the Government Sector Employment Act 2013 (NSW) ('Ethical Framework'). [7] By application dated 4 March 2021 the Applicant sought review of the Reviewable Decision in this Tribunal. The grounds for application were stated as: NESA have decided to suspend my teaching accreditation in NSW following a decision of the NSW Department of Education to place me on the NTBE list. The Department have now settled a homosexual discrimination complaint that has been lodged in NCAT therefore I submit there is a change of circumstances requiring a review of the decision. I also submit that NESA failed to adequately take into account that the newspaper article that triggured [sic] involvement of the Department and NESA has now been removed from the internet therefore is another change of circumstances that allows for a review of this matter to be undertaken. [8] The hearing was conducted on 20 May 2021 and 6 June 2021. The Applicant gave oral evidence at the hearing and both parties made detailed oral submissions. The Respondent chose not to cross-examine the Applicant. In addition to the material filed by the Respondent pursuant to s 58 of the Administrative Decisions Review Tribunal Act 2013 ('ADR Act'), which included copies of the Standards, the Department's Code of Conduct and the Ethical Framework, the Respondent provided the Tribunal with a copy of the Department's Complaints Handling Policy. The Applicant provided the Tribunal with extensive copies of his correspondence and supporting documentation involving his communications with Moree Public School and the Department regarding his performance management and his allegations of bullying, harassment and discrimination; communications with The Australian journalist in relation to the article published on 13 August 2020; and complaints made by him to the Australian Press Council, the Department, the Respondent, SafeWork NSW, the Anti-Discrimination Board, and associated correspondence. Relevant Legislation The Education Standards Authority Act 2013 (NSW) (the Standards Act) 1. NESA is a statutory corporation constituted under the Education Standards Authority Act 2013 (NSW) (the Standards Act). The principal objectives of the Act are set out in s 11(1). These include that NESA is to ensure that teaching quality and professional standards under the Accreditation Act and other education and teaching legislation are developed, applied and monitored in a way that improves student learning while maintaining flexibility across the entire school education and teaching sector. Its functions include the accreditation of future teachers and the development, content and application of professional teaching standards: see s 12(2)(c) and 12(2)(h) of the Standards Act. The Teacher Accreditation Act 2004 (NSW) (the Accreditation Act) 1. Under s 28 of the Accreditation Act a person must be accredited under the Act to teach in a school or early childhood centre. By s 4(1)(A) of the Accreditation Act, NESA is the statutory authority with the power to accredit teachers in NSW. 2. By s 19(1) of the Accreditation Act, the requirements for accreditation are set out in the 'Professional Teaching Standards' (Standards), which are approved by the Minister under s 19(1) of the Accreditation Act, having regard of NESA. Accreditation can take one of three forms: provisional, conditional and proficient teacher level: see s 30-32 of the Accreditation Act. 3. In addition, NESA has power under the Accreditation Act to revoke or suspend a person's teacher accreditation pursuant to ss 24 and 24A of the Act. 4. These sections provide as follows: 24 Revocation of accreditation (1) The Authority may revoke the accreditation of a person on any of the following grounds— (a) the Authority is satisfied that the person is a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012, (b) the person is found guilty of an offence punishable by imprisonment for 12 months or more, (c) the person is found guilty of an offence under this Act, (d) the person is found guilty more than once during the period of 5 years immediately before the revocation of any other type of offence that, in the opinion of the Authority, involves an act or conduct that is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (e) the person has— (i) been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or (ii) been included in the list of persons maintained by the Secretary under section 7 (1) (e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service, because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (f) the Authority is satisfied that the person has failed to comply with any condition to which the person's accreditation is subject, (g) the Authority is satisfied that the person has failed to comply with any of the requirements of the professional teaching standards that apply to the person. (2) (Repealed) 24A Suspension of accreditation (1) The Authority may suspend the accreditation of a person— (a) on any ground on which the Authority may revoke the person's accreditation, or (b) if disciplinary proceedings against the person are pending in relation to alleged misconduct, or (c) if proceedings against the person for an offence are pending and, were the person to be found guilty of the offence, the Authority would have grounds to revoke the accreditation. (2) The Authority must review the Authority's suspension of a person's accreditation at least every 3 months and must remove the suspension in the following circumstances— (a) if the suspension was imposed because of pending disciplinary proceedings and those proceedings have been finalised with no finding that the person has engaged in misconduct, (b) the suspension was imposed because of pending proceedings for an offence and the person has been found not guilty of the offence or the proceedings have been withdrawn or dismissed, (c) if the suspension was imposed on a ground referred to in subsection (1) (b) or (c) and a finding that the person has engaged in misconduct has been made against the person in the relevant disciplinary proceedings, or a finding of guilt has been made against the person in the relevant proceedings for an offence, but the Authority has not taken action to revoke the person's accreditation within a reasonable period having regard to the circumstances of the case. (3) (Repealed) (4) A person's accreditation is not in force during any period for which it is suspended whether under this or any other section of this Act. (5) (Repealed) 1. Section 24B of the Accreditation Act provides as follows 24B Criteria for determining revocation or suspension of accreditation on general grounds The Authority is to take account of the following matters (where appropriate) when determining whether to revoke a person's accreditation under section 24 or suspend a person's accreditation under section 24A or 25 (4)— (a) the nature and seriousness of the conduct concerned, (b) the frequency of the conduct concerned, (c) the recency of the conduct concerned, (d) any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(1)(c)). 1. It should be noted that there is no definition of the term 'misconduct' in the Accreditation Act. 2. Section 20 of the Accreditation Act deals with professional teaching standards as follows: 20 Matters to be dealt with by professional teaching standards (1) The professional teaching standards may deal with, and make provision for or with respect to, the following matters— (a) the skills, qualifications, experience and knowledge required for teaching at each level of accreditation, (b) the conditions and criteria for continuing accreditation, including requirements in relation to professional development, (c) the procedures and guidelines to be followed by teacher accreditation authorities in relation to the accreditation of persons under this Part and by the Authority in relation to the suspension or revocation of any such accreditation, (d) the approval by the Authority of initial and continuing teacher education courses or programs that are relevant to the accreditation of persons under this Part, (e) the approval by the Authority of those persons or bodies who may provide professional development, (f) ethical conduct of teachers, (g) any other matter relating to teaching standards. (2) Any procedures or guidelines under the professional teaching standards in relation to the suspension or revocation by the Authority of the accreditation of persons— (a) must be consistent with the rules of procedural fairness, and (b) are subject to section 24C. (3) Any approval by the Authority under the professional teaching standards of a teacher education course or program or of the persons or bodies who may provide professional development— (a) is subject to such conditions as the Authority thinks fit to impose (including while the approval is in force), and (b) may be suspended or revoked at any time by the Authority. 1. For completeness we note that the Accreditation Act was amended on and from 29 November 2021. No parties submitted or suggested that the amendments after 28 November 2021 had any relevance to this appeal as the Decision predates 29 November 2021. Accordingly, our references to the Accreditation Act are to that Act in force at the date of the Decision. Teaching Service Act 1980 (NSW) (TS Act) 1. Under the definitions of the TS Act, 'Teaching Service' means the Teaching Service of NSW referred to in section 44. 2. Section 44 of the TS Act is as follows: 44 The Teaching Service (1) The Teaching Service of New South Wales consists of the persons who are for the time being employed under this Division. (2) Those persons are taken to be employed by the Government of New South Wales in the service of the Crown, except as provided by section 12. (3) This Division does not affect any other method (statutory or otherwise) by which a person holds a position, or is otherwise employed, in the Teaching Service. 1. Accordingly, the Teaching Service under the TS Act consists of government employees in the service of the Crown in the right of NSW. By s 7(1)(c) of the TS Act, the Secretary of the Department has the function 'to prepare and maintain a list of persons who the Secretary determines not to employ in the Teaching Service'. 2. Section 5A of the TS Act provides as follows: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 1. Section 93A provides that the objects of Part for A of the TS Act, being 'management of conduct and performance', are: 93A Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, (b) to protect and enhance the integrity and reputation of the Teaching Service, (c) to ensure that the public interest is protected. 1. Section 93C of the TS Act defines misconduct as follows: 93C Meaning of "misconduct" (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person. (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position. (3) In this section, internal disclosure means a disclosure made in good faith by a person regarding the alleged misconduct of another person. The Reasoning of the Tribunal 1. NESA suspended the accreditation of the respondent pursuant to s 24A(1)(a) of the Accreditation Act relying on a ground on which the Authority may revoke a person's accreditation. NESA relied upon the ground of revocation provided for in s 24(1)(e)(ii). This in effect was because NESA accepted that the respondent had been included in the list of persons maintained by the Secretary under s 7(1)(e) of the TS Act as a person who is not to be employed because of 'any misconduct' (NTBE list) and NESA formed an opinion that such misconduct was 'of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach'. 2. The Tribunal took its task as being twofold: first, whether the alleged grounds in s 24A(1) of the Accreditation Act is made out, and second, whether it is appropriate to suspend the respondent's accreditation having regard to the matters in s 24B of the Accreditation Act: see [39]. 3. In respect of the first issue for determination the relevant reasoning of the Tribunal can be found at [42]-[59] of the Decision as follows: 42 I disagree with the Respondent's submission that the Applicant's conduct constitutes 'misconduct' within the meaning of s 24(e) [sic -s24(1)(e)] of the Act. 43 Misconduct is not defined in the Act. At s 24 'misconduct' is referred to in the context of the NTBE list from the TS Act, and the only other references to 'misconduct' in the Act, which are at s 24A, are in the context of disciplinary proceedings. 44 The Act is part of the regulatory framework for teachers, which also includes the TS Act. The conduct and performance of teachers is regulated by Part 4A of the TS Act. Misconduct is defined at s 93C of Part 4A of the TS Act. 45 There is no evidence before the Tribunal that the Department conducted an investigation into allegations of breaches of the Code of Conduct by the Applicant, that disciplinary proceedings were initiated in accordance with the TS Act and departmental policies, or that findings of misconduct were made pursuant to s 93C of the TS Act. 46 Misconduct referred to in s 24 of the Act is not the same as non­ compliance with the Standards. I accept that the Applicant's conduct as described at [38] above was "conduct of such a nature as to reflect adversely on the Applicant's professional standing", but that is not the same thing as misconduct under the Act or the TS Act. 47 The Applicant's conduct was inappropriate and could very well have breached the Department's Code of Conduct in various respects, but that is a matter for the Department to determine, not the Respondent, and the Department did not do so. It is unreasonable for the Respondent to.make allegations of breaches of the Code of Conduct as a basis for finding 'misconduct' pursuant to s 24(e)(ii) [sic – s 24(1)(e)(ii)] of the Act in those circumstances. Nor is there any evidentiary or statutory basis for the Respondent to refer to allegations that the Applicant breached the Ethical Framework as supporting his accreditation suspension. 48 It is clear on the evidence before me, including the letter of 21 August 2020, that the Applicant was not placed on the NTBE list by the Department for misconduct or because of any disciplinary proceedings as defined under the TS Act. 49 Bearing in mind the serious impact the suspension of the Applicant's accreditation has on his ability to work in his chosen profession, I find that there is insufficient evidence for the Tribunal to make a finding that the Applicant has engaged in misconduct within the meaning of s 24(e) [sic – s 24(1)(e)] of the Act. 1. The Tribunal then considered, in the event that it was wrong in determining that the basis for suspension was not made out, went on to consider the second matter, namely, whether it would be appropriate to suspend the accreditation of the respondent. 2. The relevant part of the Decision in this regard is contained in paragraphs [54] – [58] 54 Whilst inappropriate, l do not consider the Applicant's conduct to be serious for the purposes of s 24B(a). As discussed above, there was no misconduct within the meaning of the regulatory framework for teachers. In consideration of s 24B(b), the conduct occurred once. Both of those factors would mitigate against a decision to suspend or revoke accreditation. The conduct was recent, which I consider is a factor in favour of suspension for the purpose of s 24B(c). In considering the criteria at s 24B(d), being 'any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(c))', I take into account the Policy and the Applicant's evidence and submissions. 55 I consider that the Applicant's evidence at [31], [33] and [34] above is relevant to the Tribunal's consideration of the appropriateness of suspending the Applicant's accreditation. The Applicant made numerous attempts to raise his concerns and grievances with the Department through its internal complaints handling processes about his perceptions of being bullied and discriminated against by his colleagues and supervisors at Moree Public School. The Applicant's approach to the media to air his complaints regarding how those matters were handled by the Department was inappropriate and unjustified, but it was understandably borne out of his frustrations in resolving those complaints, in the context of significant mental health difficulties which were serious enough to result in his hospitalisation. I accept the Applicant's evidence that his approaches to the media in July 2020 which culminated in the article of 13 August 2020 being published, and his threats on 17 January 2021 and 4 February 2021 to again approach the media with his complaints, were similarly influenced by his mental health issues, exacerbated by the death of a close friend and mentor in December 2020 and the stress he was under. 56 It is not the Respondent's role to discipline the Applicant or make findings of misconduct in circumstances where the Department has not done so. In my view the Applicant has demonstrated some insight into the inappropriateness of his conduct and on the evidence before me is aware of the Standards and how they apply to him, despite his conduct being clouded at various times by the impact of his mental health issues. 57 The Policy provides that the Respondent has a range of options available to it to manage a teacher's accreditation in circumstances where there are concerns they are not reaching the relevant Standards, including (but not limited to) the imposition of conditions on accreditation pursuant to s 20 of the TA Act. There is no evidence before the Tribunal of the suitability of those alternative options being considered by the Respondent. 58 In my view the decision to suspend the Applicant's accreditation is disproportionate to the Applicant's conduct and the circumstances in which it occurred. In making that finding it is important to acknowledge that the Respondent did not rely on the Applicant's historical criminal charges as providing or supporting any basis for suspending the Applicant's teacher accreditation, and also did not rely on the Department's underlying concerns about the Applicant's performance. There were no relevant concerns for child welfare relied upon by the Respondent, and the Tribunal notes that the Department's only concerns for child welfare were expressed as a "failure to protect children by not ensuring a well-managed and engaging classroom for all students", which seems to conflate teaching performance with child safety concerns. Grounds of Appeal 1. By NESA's Notice of Appeal, six grounds of appeal are put forward. Given their interconnectedness, in our view it is appropriate to consider them together. 2. The grounds of appeal are as follows: Grounds relating to the meaning of 'misconduct' 1. The Tribunal made an error of law by construing 'misconduct' in s 24(1)(e) of the Teacher Accreditation Act 2004 (NSW) (Accreditation Act) by reference to, or as constrained by, the definition in s 93C of the Teaching Service Act 1980 (NSW) (Teaching Service Act) (at [43) to [48] of the primary decision). 2. The Tribunal made an error of law by determining that conduct that may have been. or was alleged to be, in breach of the NSW Department of Education Code of Conduct (Code of Conduct), could not constitute 'misconduct' for the purposes of s 24(1)(e) of the Accreditation Act. unless the Department: (a) had conducted an investigation into allegations of breaches of the Code of Conduct: (b) had initiated disciplinary proceedings in accordance with the Teaching Service Act and departmental policies: or (c) had made findings of misconduct pursuant to s 93C of the Teaching Service Act (at [45] and [47] of the primary decision). (3) The Tribunal made an error of law by determining that non-compliance with the Australian Professional Standards for Teachers approved under s 19(1) of the Education Standards Authority Act 2013 (NSW) (Standards) could not constitute 'misconduct' for the purposes of s 24(1)(e) of the Accreditation Act (at [46] of the primary decision). (4) The Tribunal made an error of law by failing to have regard to relevant considerations in determining whether the Respondent's conduct constituted 'misconduct' for the purposes of s 24(1)(e) of the Accreditation Act, being: (a) whether the Respondent's conduct fell short of standards of acceptable or proper behaviour for a NSW teacher, including by reference to the Code of Conduct, Standards and the ethical framework for the government sector established under Part 2 of the Government Sector Employment Act 2013 (NSW); and (b) further or alternatively, whether the Respondent had breached or failed to comply with the Code of Conduct, Standards or Ethical Framework. Grounds relating to the exercise of discretion under s 24B (1) The Tribunal made an error of law by applying or taking into account an erroneous construction of 'misconduct' under s 24A(1)(e) of the Accreditation Act in applying the criterion in s 24B(a) of the Accreditation Act (at [54] of the primary decision). (2) The Tribunal made an error of law by finding and taking into account that 'It is not the [the Appellant's] role to discipline the [Respondent] or make findings of misconduct in circumstances where the Department has not done so· in deciding whether the Respondent's teacher accreditation should be suspended under s 24A(1) of the Accreditation Act (at [56] of the primary decision). Consideration 1. The principal ground of appeal was that the Tribunal misconstrued the term 'any misconduct' in s 24(1)(e) of the Accreditation Act: see in particular grounds 1 and 2. 2. Mr Fuller, of Counsel, appeared for NESA before us on appeal. He submitted that the basis of the Tribunal's finding that there was no 'misconduct' within the meaning of s 24(1)(e) of the Accreditation Act was that: 1. There was no evidence that the Department of Education ('Department') had investigated allegations that the respondent had breached its Code of Conduct, initiated disciplinary proceeding in accordance with the TS Act or the Department's policies, or made findings of misconduct: see [45] of the Decision; 2. In those circumstances, it was not open to NESA to form its own view as to whether the respondent's conduct breached the Department's Code of Conduct, even though the Tribunal considered that his conduct 'could very well have' breached the Code of Conduct 'in various respects': see [47] of the Decision; and 3. It was not open to NESA to form a view that the conduct for which the respondent was placed on the not to be employed (NTBE) list was 'misconduct' on the basis that he breached the Standards or the Ethical Framework for the government sector established under Park No 2 of the Government Sector Employment Act 2013 (NSW) (GSE Act): see [46]-[47] of the Decision. 1. Mr Fuller submitted that the effect of the Tribunal's reasoning was to limit the circumstances in which there can be 'misconduct' for the purposes of s 24(1)(e) of the Accreditation Act to circumstances in which there is 'misconduct' within the meaning of s 93C of the TS Act or, at least, where the Department has initiated an investigation, taken disciplinary proceedings or made findings of misconduct in relation to the conduct. NESA submitted that this approach of the Tribunal was wrong for six reasons. 2. First, in the absence of any definition of 'misconduct' in the Accreditation Act, the term 'any misconduct' should be given its ordinary meaning and not be subject to some implied express limitations on its usage by reference to the TS Act: in respect of adopting the 'ordinary meaning' see, for example, SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 at [393]-[94] (Edelman J). 3. Second, the meaning of 'misconduct' in the Accreditation Act should not be read down or referenced to the definition of misconduct in s 93C of the TS Act or to formal disciplinary proceedings conducted under the TS Act for three reasons: 1. The definition of misconduct in s 93C of the TS Act is expressly limited to being for the purpose of part 4A of the TS Act; 2. The scope and purpose of the TS Act is very different to the scope and purpose of the Accreditation Act, where, in particular, the TS Act regulates officers employed by the Government of NSW whilst by contrast, the Accreditation Act regulates all teachers including those who teach in the non-government sector; 3. A decision to place a teacher's name on the NTBE list, being the subject of s 24(1) of the Accreditation Act, is not necessarily a form of disciplinary action that can resolve from disciplinary proceedings taken under part 4A of the TS Act. 1. Third, it is an express ground of suspension in s 24(1)(b) of the Accreditation Act, that disciplinary proceedings against a person are pending in relation to alleged misconduct. If misconduct in s 24A(1)(b) were construed as requiring that there be disciplinary proceedings or findings against the person, the remaining words in the subsection would be superfluous. 2. If 'misconduct' in s 24A is not limited to situations involving disciplinary proceedings, the same word in s 24(1)(e) should not be construed in the opposite way. It is presumed that Parliament uses words consistently in the same piece of legislation: see, for example, Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452, quoted with approval in Dionisatos (for the Estate of the Late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34 at 42 [23] (Basten JA, Macfarlan JA agreeing). 3. Fourth, the Tribunal's narrow construction of 'misconduct' is incongruent with the scheme of teacher accreditation under the Accreditation Act and NESA's functions under the Authority Act. 4. The requirements for accreditation are set out in the professional teaching standards approved under s 19 of the Accreditation Act. NESA's functions include ensuring that the professional teaching standards are applied fairly and consistently: see s 7(2)(e) on the Accreditation Act. 5. Accordingly, when it comes to upholding teaching standards with a view to properly accrediting teachers, it is NESA's function to ensure compliance with the Standards. On the other hand, the TS Act deals with the particular circumstances of disciplining teachers in the government school sector. 6. Given that the focus of the Accreditation Act and NESA's functions are on upholding professional standards throughout the teaching profession, this supports a natural and non-technical construction of the term 'misconduct', and one that is not necessarily focused upon disciplinary processes by the teacher's employer or the NSW Government. 7. Fifth, there is no indication in the legislative history or extrinsic materials to indicate that a narrow meaning of 'misconduct' was intended. 8. Sixth, the Tribunal's construction may lead to perverse outcomes. For example, in non-government schools, a teacher may be dismissed summarily (without a disciplinary investigation) for serious misconduct. It cannot have been intended that NESA could take no action under s 24(1)(e) of the Accreditation Act in those circumstances. Yet that appears to be a consequence of the Tribunal's reasoning. Similarly, the Tribunal's reasoning would appear to prevent NESA from acting under s 24(1)(e) if a teacher's employer did not engage (for whatever reason) in a disciplinary process or make disciplinary findings before a teacher resigned or is dismissed, as was the case for the respondent. 9. The respondent, who was self-represented, did not take up the question of the statutory construction and the meaning of the term 'misconduct' as a question of law. His submissions essentially revolved around the proposition that he was a 'fit and proper person' who should not have his accreditation suspended and that the Tribunal was correct as a matter of fact to conclude it was not appropriate for him to be suspended. 10. We agree with the submissions of NESA and conclude that the Tribunal erred in its construction of the term 'any misconduct' in s 24 of the Accreditation Act. 11. In our view, the term 'any misconduct' within the meaning of s 24(1)(e) of the Accreditation Act should be given its ordinary meaning. For example, the Oxford English Dictionary defines misconduct as: 'improper or unacceptable conduct or behaviour': Oxford University Press, 2021, online edition at www.oed.com/view/Entry/119350 (item 1b) viewed on 5 April 2022. Similarly, the Macquarie Dictionary defines misconduct as: 'improper conduct; wrong behaviour': see the Macquarie Dictionary (8th edition, 2020). 12. In our view, the proper application of s 24(1)(e)(ii) of the Accreditation Act involves two steps, as follows: 1. First, to identify the reason the person was placed on the NTBE list; and 2. Second, to determine whether that reason was, or those reasons included, 'any misconduct' (in accordance with the ordinary meaning of that term), which, in the opinion of NESA, is of a nature that would reflect 'adversely on a teacher's professional standing or integrity or suitability or competence to teach'. 1. If both of these matters are satisfied, then NESA 'may' suspend or revoke the person's accreditation. In other words, the discretion to do so is then enlivened, taking into account all relevant circumstances. 2. The task is therefore one of NESA identifying the reason or reasons for the person being placed on the NTBE list, deciding whether that reason constitutes 'any misconduct', and considering whether such misconduct is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach. 3. There is no reason to give 'misconduct' in this context anything other than its ordinary meaning: that is, improper, unacceptable or wrong conduct or behaviour. The question to be asked in this case was simply whether, looking at the Department's reasons for including the respondent on the NTBE list, those reasons included conduct by the respondent that was or could be characterised as improper, unacceptable or wrong. In other words, was the respondent placed on the NTBE list because he had done something wrong, improper or unacceptable? 4. In our view, there is no reason to take a narrow approach to identify the standards, breach of which may be characterised as misconduct. The relevant standard may include any applicable professional standards - including, for example, the Standards and the Ethical Framework - and any other standards that may be applicable to a NSW teacher, such as for teachers employed in the Department, the Department's Code of Conduct. 5. Accordingly, we are of the view, that it was an error for the Tribunal to hold, as it did at [46], that non-compliance with the Standards was incapable of constituting misconduct pursuant to s 24(1)(e): see Appeal ground 3. It was also an error for the Tribunal to limit its consideration of s 24(1)(e) by reference to whether or not the Department had engaged in disciplinary processes or actions, without considering the broader range of behavioural standards applicable to NSW teachers, breach of which was also capable of constituting misconduct: see Appeal ground 4. 6. Turning to the facts of this case, the Department decided to place the respondent on the NTBE for a period of two years: 7. 'Given your demonstrated breach of confidentiality and attempts to damage the integrity and reputation of the Department by airing your grievances in the media; your inability to objectively self-reflect and assess your performance and accept feedback by supervisors (Standards 6.1, 6.3, 7.1, 7.2); and above all, your failure to protect children by not ensuring a well-managed and engaging classroom for all students …'. 8. In our view, it is apparent from the above description that the Department regarded such conduct as improper, unacceptable or wrong. Accordingly, the Department's conduct can be construed as being one whereby the respondent was placed on the NTBE list for 'misconduct' within the meaning of s 24(1)(e) of the Accreditation Act. 9. Further, in our view, the 'misconduct' in question properly allowed NESA's delegate to form the view or opinion that the misconduct in question was of a nature that would reflect adversely on the respondent's professional standing or integrity or suitability or competence to teach under s 24(1)(e)(ii) of the Accreditation Act, and was therefore a ground for suspension under s 24A(1)(a) of the Accreditation Act. 10. The Tribunal accepted and found that the respondent's conduct in taking his grievances to The Australian as identified in the Department's 21 August 2020 letter – which 'demonstrated [a] breach of confidentiality and attempts to damage the integrity and reputation of the Department by airing your grievances in the media' – was conduct 'of such a nature that would reflect adversely on [the respondent's] professional standing' for the purposes of s 24(1)(e) of the Accreditation Act: see [46] of the Decision. 11. Accordingly, in our view, the Tribunal should have found that the respondent was included on the NTBE list because of misconduct within the meaning of s 24(1)(e) of the Accreditation Act and that such conduct was 'of such a nature that would reflect adversely on [the respondent's] professional standing'. The Tribunal then ought to have considered the discretion to suspend the respondent's accreditation pursuant to s 24A of the Accreditation Act. 12. As stated above, the Tribunal nevertheless proceeded in the alternative to consider whether or not, if it was wrong in its finding as to the lack of relevant misconduct taking place, it was appropriate for the respondent's accreditation to be suspended. The Tribunal concluded that the facts did not justify suspending the respondent's accreditation: see [51]-[59] of the Decision. 13. This decision in the alternative can be regarded as a finding on a question in respect of which the Tribunal had a discretion as to whether or not to act to uphold NESA's ultimate decision to suspend the respondent's accreditation. The submission put was that the discretion miscarried so as to constitute an error of law pursuant to the well-known principles in House v R (1936) 55 CLR 499 at [505] (Dixon, Evatt and McTiernan JJ). 14. NESA's submission was that the Tribunal's finding about the meaning of 'misconduct' in s 24(1)(e) of the Accreditation Act influenced the Tribunal's consideration of the factors in s 24B. In particular, NESA focused on the following remarks of the Tribunal as follows: 1. At [54]: 'As discussed above, there was no misconduct within the meaning of the regulatory framework for teachers.'; and 2. At [56]: 'It is not [NESA's] role to … make findings of misconduct in circumstances where the Department has not done so.' 1. Mr Fuller submitted that these findings were wrong for the reasons set out in relation to Appeal grounds 1-4. Accordingly, it was submitted that, in exercising the discretion under s 24B, the Tribunal acted on a wrong principle and failed to take into account relevant considerations (being the broadest range of standards, breach of which was capable of constituting misconduct under s 24(1)(e) of Accreditation Act.) Accordingly, the decision should be overturned pursuant to the principles in House v R. 2. The respondent's submissions were essentially to the effect that as a matter of 'appropriateness' it was inappropriate for him to be suspended for the reasons explained by the Tribunal. 3. We have given careful consideration to both sets of submissions. At one level, there is no doubt that the Tribunal took into account certain relevant factors, such as: the seriousness of the offence, whether it was a one-off occurrence in recent times and whether or not, to some extent, the respondent's conduct was excusable by reason of the circumstances referred to by the Tribunal: see [51] – [59] of the Decision. 4. In the end, however, we are satisfied that the Tribunal's discretion did miscarry by reason of its misconstruction of the term 'any misconduct'. This is clearly demonstrated by the fact that in its reasons for deciding that a suspension was inappropriate, the Tribunal did refer to the fact that there was no misconduct within the meaning of the regulatory framework for teachers and further that it was not NESA's role to make findings of this conduct in circumstances where the Department has not done so: see at [54] and [56] of the Decision. 5. In our view, for the reasons previously set out in relation to appeal grounds 1 - 4, the Tribunal acted on a wrong principle and failed take into account relevant considerations, being the border range of standards, breach of which was capable of constituting misconduct under s 24(1)(e) of the Accreditation Act. 6. It cannot be said that the Tribunal was bound to exercise the discretion under s 24B in the same way regardless of these errors. 7. To dismiss the appeal despite the Tribunal's errors of law, the Appeal Panel would need to be satisfied that those errors did not deny NESA the possibility of a successful outcome: for example see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 88-89 [4] (Gleeson CJ), 116-17 [80] (Gaudron and Gummow JJ), 128 [122] (McHugh J), 131-32 [133] (Kirby J). See also MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, 592 [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The authorities indicate that the standard is one of realistic possibility only. 8. Given the remarks of the Tribunal at [54] and [56] of the Decision, we are satisfied that the errors of principle identified by us did play some part in the Tribunal's consideration of the appropriateness of a suspension of the respondent's accreditation such that NESA did miss out on a realistic possibility of a different outcome. Remedy on Appeal 1. Mr Fuller for NESA submitted that the Appeal Panel should, under s 81(2) of the Civil and Administrative Tribunal Act 2013 (NSW), re-exercise the Tribunal's functions and determine the administrative review itself, rather than remitting the matter. NESA submits that this would be an appropriate course here, because: 1. the matter was fully argued by both sides below, over two hearing dates; 2. the evidence was almost entirely documentary (NESA having chosen not to cross-examine the respondent), and both parties made comprehensive written submissions or arguments which are included in the Appeal Book; 3. NESA is content to rely on the written and oral submissions it made below in relation to the merits of the matter; 4. by the time of the hearing of this appeal, it will have been almost 15 months since the original suspension decision was made, in circumstances where the decision to include the respondent's name in the NTBE list (on which the reviewable decision was based) was for only two years; and 5. remitting the matter will result in NESA and the Tribunal incurring further costs, which will not be recovered, and ultimately imposes a cost on the NSW public. 1. The respondent continued to argue that the Decision of the Tribunal not to impose a suspension of his accreditation was fair, correct and appropriate. 2. In our view, it would not be appropriate for this Appeal Panel to conduct a re-hearing and decide the administrative review itself. The evidence below was detailed and extensive. The appeal hearing before us focused entirely on the questions of legal error and no time was spent on the question of the appropriate outcome on the administrative review itself based upon all the material and evidence. 3. In particular, we heard no oral submissions from the parties on the nature and effect of this evidence on the appropriate outcome for the administrative review. 4. We believe, as a matter of fairness, that the respondent should have the opportunity, once the Decision of the Tribunal below has been set aside, to put forward further submissions on the question of the relief itself. 5. In such case, it remains more appropriate for the matter to be remitted to the Tribunal differently constituted to allow this to be done. Disposition of the Appeal 1. The orders of the Appeal Panel are: 1. Appeal is allowed. 2. The orders and decision of the Tribunal dated 27 August 2021 are set aside. 3. Order that the whole of the proceedings be reconsidered by a differently constituted Tribunal, without further evidence, unless with the leave of the Tribunal, in accordance with the Appeal Panel's decision. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2022