Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FTM v Secretary, Department of Education [2023] NSWCATOD 40 Hearing dates: 6 December 2022 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Occupational Division Before: J Gatland, Senior Member Decision: 1. The application for review is dismissed pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b). 2. Disclosure of the name of the applicant and the names of the students, staff and schools at which the applicant worked at the time of the allegations should be prohibited pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a). 3. Access to documents lodged with the Tribunal that disclose the name of the applicant and the names of the students, staff and schools at which the applicant worked at the time of the allegations is restricted to the parties, and the publication of those documents is prohibited pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c). Catchwords: ADMINISTRATIVE LAW — Reviewability — Jurisdiction — no identified enabling legislation – dismissal Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2014 (NSW) Education Standards Authority Act 2013 (NSW) Teacher Accreditation Act 2004 (NSW) Teaching Service Act 1980 (NSW) Cases Cited: Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 White v Sutherland Shire Council [2019] NSWCATAD 100 Texts Cited: Nil Category: Principal judgment Parties: FTM (Applicant) Secretary, NSW Department of Education (Respondent) Representation: Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent) File Number(s): 2022/00297610 Publication restriction: Disclosure of the name of the applicant and the names of the students, staff and schools at which the applicant worked at the time of the allegations should be prohibited pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a REASONS FOR DECISION Introduction 1. The Secretary of the Department of Education, who is the Respondent in these proceedings, seeks the application for review filed on 28 September 2022, be dismissed on the basis that it is misconceived or lacking in substance under the Civil and Administrative Tribunal Act 2014 (NSW), s 55(1)(b). Specifically, the Respondent contends that the Tribunal has no jurisdiction to determine the matter. Background 1. Since about 2018, the Applicant, FTM, has been engaged as a temporary teacher with the Department of Education. 2. On 28 September 2022, the Applicant filed an application for review to the Tribunal. To his application for review, the Applicant attached a letter dated 3 September 2022, signed by the Relieving Director of Investigations, Professional and Ethical Standards (PES) at the Department of Education. 3. The letter dated 3 September 2022 advised that an investigation into the Applicant's conduct had been concluded and that, as a consequence, he was to be given a warning, and the Department of Education was going to place conditions on the Applicant's teaching approval. Those conditions required the Applicant to provide work reports from two principals at schools where the Applicant had worked for 20 days each over the next 12 months. Those reports are to be submitted to an area in the Department of Education called Teacher Approvals. 4. Among the grounds stated on his application, the Applicant identified the Teacher Accreditation Act 2004 (NSW), ss 24C and 27. In his written submissions responding to the Respondent's application for summary dismissal, the Applicant stated that he seeks a review of the Respondent's decision, communicated in the letter dated 3 September 2022, to place conditions on the approval for him to teach. Issue 1. The question for determination is: Does the Tribunal have jurisdiction to review the decision set out in the letter to the Applicant dated 3 September 2022? The answer, in short, is no. Applicable Law 1. The Tribunal has jurisdiction only regarding those matters for which legislation, referred to in the Civil and Administrative Tribunal Act, s 4 as "enabling legislation", has conferred such jurisdiction. 2. The Tribunal has jurisdiction over matters provided in the Civil and Administrative Tribunal Act or other enabling legislation; Civil and Administrative Tribunal Act, s 28(3). 3. The circumstances upon which the administrative review jurisdiction is conferred on the Tribunal is provided under the Administrative Decisions Review Act 1997 (NSW), s 9, which provides, relevantly, that (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … 1. The Administrative Decisions Review Act, s 7 defines an administratively reviewable decision as: (1) … a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. 1. The effect of the Administrative Decisions Review Act, ss 7 and 9, is that the Tribunal's administrative review jurisdiction only arises where the enabling legislation empowers the Tribunal to review particular decisions or conduct. The Tribunal's administrative review power does not extend to being able to review every decision made under legislation. 2. In proceedings for the exercise of its administrative review jurisdiction, the Tribunal has jurisdiction to make ancillary decisions; Civil and Administrative Tribunal Act, s 30(2)(a). An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; Civil and Administrative Tribunal Act, s 4. 3. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b). 4. In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b), observed that: "…The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]." 1. Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as being misconceived or otherwise lacking in substance. 2. In his application for review as well as his written and oral submissions addressing the Respondent's application for dismissal, the Applicant contended that the source of the Tribunal's power to hear and determine his application is found in the Teacher Accreditation Act, ss 24C or 27. 3. The Teacher Accreditation Act, s 24C provides: 24C Notice to be given of intention to suspend or revoke accreditation (1) The Authority may suspend or revoke a person's accreditation only after having served on the person written notice of its intention to suspend or revoke the accreditation setting out its reasons. (2) The notice must include a statement that the person concerned may make submissions to the Authority in relation to the proposed suspension or revocation within 14 days after the date of the notice. (3) This section also applies in relation to the suspension by the Authority of a person's accreditation for failure to pay the annual fee under section 25. (4) This section does not apply to the suspension or revocation of a person's accreditation on the following grounds— (a) the person is subject to an interim bar imposed under the Child Protection (Working with Children) Act 2012, section 17, (b) the working with children check clearance for the person is cancelled under the Child Protection (Working with Children) Act 2012, section 23. 1. The Teacher Accreditation Act, s 27 provides: 27 Administrative review of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions— (a) the refusal or failure by the Authority to accredit the person under this Part, (b) the revocation or suspension of the person's accreditation by the Authority under this Part, (c) the refusal or failure of the Authority to approve— (i) a teacher education course or program for the purposes of this Act, or (ii) a person or body to provide professional development in accordance with the requirements of the professional teaching standards, (d) the revocation or suspension of any such approval by the Authority. (2) A decision of a kind referred to in subsection (1) is not reviewable by any other court or tribunal (including in any proceedings in the nature of disciplinary proceedings or in any proceedings for unfair dismissal). 1. The "Authority" referred to in the Teacher Accreditation Act, s 24C and s 27 is the NSW Education Standards Authority (NESA). NESA is an independent statutory body constituted under the Education Standards Authority Act 2013 (NSW) that is concerned, among other things, with the accreditation of teachers. As an independent statutory body, NESA is not answerable to, nor controlled by, the Respondent. 2. Employment of teachers with the Department of Education is substantially regulated by the Teaching Service Act 1980 (NSW). As noted above, the Applicant is employed as a temporary teacher with the Department of Education. The employment of teachers, including temporary teachers, is referred to as being members of the Teaching Service - a term defined under the Teaching Service Act, s 44(1) 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. 1. The employment of temporary employees in the Teaching Service is regulated, in part, by the Teaching Service Act, s 50, which provides: 50 Temporary employees (1) The Secretary may employ on a temporary basis: (a) persons who are accredited under the Teacher Accreditation Act 2004 to carry out work in the Teaching Service, or (b) persons who have, in the opinion of the Secretary, the appropriate qualifications to carry out work in the Teaching Service. (2) A person employed under this section may be employed on a full-time, casual or part-time basis. (3) A temporary employee is a member of, but does not hold a position in, the Teaching Service. (4) (Repealed) (5) A person employed under this section: (a) may be employed for a period or periods of up to 3 years, and (b) may be dismissed at any time. (6) The Secretary may not terminate the employment of a temporary employee for reasons other than for misconduct unless the employee: (a) is given at least 4 weeks notice of the proposed termination, or (b) is paid, at or before the termination, an amount equal to 4 weeks pay. 1. The Teaching Service Act does not confer jurisdiction on this Tribunal in respect of any matter. The Tribunal is referred to in the Teaching Service Act, s 93V. That provision, however, obliges the Tribunal to notify the Respondent of applications made to the Tribunal under other legislation. Evidence and Submissions The Respondent's Evidence and Submissions 1. The Respondent, as the moving party on the dismissal application, made written and oral submissions. The Respondent attached to her written submissions nine annexures of documents showing the Applicant's engagement and terms of employment and the letters sent to the Applicant from the PES concerning the investigation into his conduct. None of that material was the subject of any objection; much of it was replicated in the attachments to the Applicant's submissions. 2. The Respondent submitted that the Tribunal did not have jurisdiction to review the decision dated 3 September 2022. There were three principal bases for that submission: 1. Firstly, the Respondent submitted that the decision dated 3 September 2022 was made pursuant to the Respondent's power under the Teaching Service Act, s 50. The Tribunal has no jurisdiction to review decisions made under that provision, and the Applicant did not make any submission to the contrary; 2. Secondly, concerning the fact that the Applicant had been approved to teach as a 'limited casual' on 8 September 2022, the Respondent submitted that decisions regarding approvals to teach are internal decisions for which there is no enabling legislation that confers upon the Tribunal any power to review; and 3. Lastly, the Respondent submitted that, even if there was an administratively reviewable decision to which the Tribunal's jurisdiction was enlivened under the Teacher Accreditation Act, s 27, the proper respondent would be NESA. Specifically, the Respondent submitted that neither she nor the Department of Education had made any decision regarding the Applicant's accreditation under the Teaching Service Act and that NESA is the only body authorised to make decisions under the Teacher Accreditation Act. The Applicant's Evidence and Submissions 1. The application for review filed on 28 September 2022 attached the following three documents: 1. the letter from PES dated 3 September 2022; 2. a letter from the Department of Education's Human Resources Directorate, Recruitment and Employment, dated 3 June 2019 which advised the Applicant that he was eligible for employment as a teacher with the NSW Department of Education and noting that the Applicant had been granted proficient accreditation by NESA commencing from 1 January 2018; and 3. a letter from the Department of Education's School Workforce Directorate, New Teachers and Programs, dated 8 September 2022. That letter advised the Applicant that he had been granted "limited casual approval" to teach and that such approval would expire 12 months from the date of that letter. This letter also noted that the Applicant's NESA accreditation status was "proficient" and commenced on 1 January 2018. 1. In answering the Respondent's application for dismissal, the Applicant provided written submissions addressing the question of the Tribunal's jurisdiction to hear the application and a background outline. Along with his written submissions, the Applicant provided the following: 1. a document entitled "Contradiction to the Allegation" in which he addressed the allegations of misconduct made against him, some of which were sustained and some of which were not sustained; and 2. 22 annexures comprising documents referred to by the Applicant in his written submissions or the Contradiction to the Allegation document. 1. In summary, the Applicant submitted that: 1. the 'limited casual approval' means that he cannot gain full-time employment and is instead limited to teaching casual days. Consequently, he cannot apply for permanent positions and must re-apply to obtain full approval. In his written submissions, he further stated: [5] … The drop in status to 'limited casual' is a disciplinary decision with no avenue for appeal or internal review at DET. 1. NESA reviews teacher accreditation based on any "relevant decisions". In his written submissions, the Applicant recognises that NESA has not changed his accreditation. Indeed, there is no evidence in the material before the Tribunal that NESA intends to revoke or suspend the Applicant's accreditation. Had NESA intended to do so, it would be required to notify the Applicant of its intention, pursuant to the Teacher Accreditation Act, s 24C. Instead, the Applicant refers the Tribunal to a Professional Development Progress Report, Annexure G to his submissions, to assert that "NESA has advised that accreditation will be refused in December 2022". However, the document he refers to does not provide any such advice. That document shows that the Applicant has met the accreditation requirements for the calendar year ending 31 December 2022. 2. without obtaining full-time work and sign-off from the principals at the schools where he works, he will not be able to maintain the requirements for accreditation. While I cannot determine whether that concern is justified, such concern does not invoke the administrative review jurisdiction of the Tribunal. 3. the Respondent is required to report relevant decisions, including disciplinary decisions, to NESA pursuant to the Teacher Accreditation Act, s 42B. The thrust of his submission is that the Respondent's failure to report the PES decision to NESA ensures he cannot challenge a decision. In his oral submissions made on 6 December 2022, the Applicant informed the Tribunal that notification to NESA of the PES decision had been made on the morning of 6 December 2022. 1. The Applicant does not identify the basis of the Tribunal's jurisdiction to review a decision or act of the Respondent under the Teacher Accreditation Act, s 42B. The Teacher Accreditation Act, s 27, does not create a right of review concerning actions taken under s 42B. The fact that a respondent may be authorised to carry out some functions conferred on it by legislation to which an administratively reviewable decision may arise does not mean that every decision it makes is subject to the administrative review jurisdiction of the Tribunal. As the Tribunal observed in White v Sutherland Shire Council [2019] NSWCATAD 100 at [8]: "The CAT Act sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": s 29(2)(b) CAT Act. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation." [emphasis in original] 1. The Applicant concluded his written submissions with the following points: 26. These allegations have had an adverse effect on the Applicant's standing as a teacher through the way that they have been worded and documented relying on hearsay statements. There are mistakes in students interviews and mistakes in final PES report which could lead to another adverse effect in relation to the Office of the Children's Guardian dated 8th September 2022. Annexure H. 27. In these circumstances under section 63 of the Administrative Decisions Review Act (1)b, the Applicant seeks a review of the factual material and a correct and preferrable decision presented considering the "written and unwritten law". The Applicant does not agree that the application is misconceived. 28. The real issue is that the Department of Education has issued conditions that are not reasonable making administrative error in reporting. 1. Nothing in the above paragraphs of the Applicant's written submissions discloses a basis upon which the jurisdiction of the Tribunal could be enlivened. In particular, there is no enabling legislation conferring upon the Tribunal power to review; 1. errors asserted to be contained in a PES report, or 2. conditions placed upon the Applicant in respect of his employment with the Department of Education, or Consideration 1. The Applicant has failed to identify the legislative basis upon which the Tribunal has jurisdiction to review the decision of 3 September 2022. 2. The Respondent's correctly submitted that the decision dated 3 September 2022 is not a decision the Tribunal has had conferred upon it a power to review. 3. The Respondent's submission that the Tribunal has no power to review the decision to grant approval to the Applicant to teach on a 'limited casual' basis is correct. No enabling legislation confers jurisdiction upon the Tribunal to review that decision. 4. While the Teacher Accreditation Act, s 27 does confer a power of review on the Tribunal, the extent of that power is expressly defined and concerns decisions of NESA only. The Applicant did not identify any decision within that provision that would enliven the Tribunal's jurisdiction. 5. I cannot identify any other legislation which might confer jurisdiction on the Tribunal to review the decision of the Respondent, the subject of the application for review. 6. Accordingly, the application for review must be dismissed as the Tribunal considers it misconceived or otherwise lacking in substance. Confidentiality 1. After the hearing, the Respondent applied to the Tribunal for orders for confidentiality. Specifically, the Respondent sought orders that the names of students, staff or schools at which the Applicant worked be prohibited from publication or, alternatively, that the publication of evidence given before the Tribunal be prohibited so far as it may identify the names of those students, staff or schools. 2. In an email to the Tribunal, the Applicant opposed the making of confidentiality orders that provide for non-publication and non-disclosure of the names of the staff and schools at which he worked at the time of the allegations unless his name was also anonymised. 3. I am satisfied, having regard to the subject matter and the fact that the students are children, that disclosure of the names of the students, staff and schools at which the Applicant worked should be prohibited pursuant to the Civil and Administrative Tribunal Act, s 64(1)(a). Furthermore, access to documents lodged with the Tribunal that disclose that information is also restricted to the parties, and its publication is prohibited pursuant to the Civil and Administrative Tribunal Act, s 64(1)(c). 4. In aid of the orders I intend to make pursuant to the Civil and Administrative Tribunal Act, ss 64(1)(b) and 64(1)(c), I have determined that the Applicant's name should be anonymised in these reasons; hence the Tribunal has assigned to him the acronym FTM. Orders 1. I make the following orders: 1. The application for review is dismissed pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b). 2. Disclosure of the name of the applicant and the names of the students, staff and schools at which the applicant worked at the time of the allegations should be prohibited pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a). 3. Access to documents lodged with the Tribunal that disclose the name of the applicant and the names of the students, staff and schools at which the applicant worked at the time of the allegations is restricted to the parties, and the publication of those documents is prohibited pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c). 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: 31 March 2023