CITATION: Gale v Randall (authorised person) [1999] NSWADT 123 DIVISION: General APPLICANT: Marianne Gale RESPONDENT: Robert Randall (authorised person) FILE NUMBER: 993243 HEARING DATES: 11/23/1999 SUBMISSIONS CLOSED: 11/23/1999 DATE OF DECISION: 30 November 1999 N Hennessy - Deputy President BEFORE: PRIMARY LEGISLATION: Education Act 1990 APPLICATION: Review of decision to refuse to register a child for home schooling - MATTER FOR DECISION: Preliminary matters: issue of identity of correct respondent and jurisdiction Applicant: No appearance REPRESENTATION: Respondent: A Anastasi, solicitor, Crown Solicitor's Office ORDERS: 1. The application for review is dismissed. Background and issues 1 This decision concerns two preliminary issues which arose at the first Directions Hearing in this matter. The first issue is the identity of the correct respondent. The second issue is whether the applicant, Ms Gale, may apply to the Tribunal for a review of the decision in question even though she has not requested an internal review. 2 Ms Gale applied to the Minister for Education pursuant to s 71(1) of the Education Act 1900 (the Act) for registration of a child for home schooling. Section 71(2) of the Act provides that as soon as practicable after such an application is made, the Minister is to obtain advice on the application from an "authorised person." 3 An "authorised person" is defined in the Act to mean: ". . . a Board inspector, or any other person, authorised in writing by the Minister to exercise the functions of an authorised person for the purposes of the provision in this Division in which the expression occurs." 4 Under s 107(1)(d) of, the Act, the Tribunal has jurisdiction to review a recommendation of an authorised person that the Minister refuse to register a child for home schooling. 5 This matter was set down for a Directions Hearing on 23 November 1999. Ms Gale advised the registry that she did not intend to appear without an assurance that the Tribunal would hear her appeal. Mr Anastasi from the Crown Solicitor's Office appeared on behalf of the respondent. Findings of fact 6 The respondent's file shows that P Hewitt, an authorised person for home schooling, prepared a document on 20 July 1999 recommending that registration for home schooling in relation to Ms Gale's son not be approved. This document was then referred to Robert Randall, another authorised person, who approved the recommendation and made other recommendations including that the applicant be advised of the decision and be provided with a copy of the authorised persons' reports which outline the reasons for the decision. 7 Ms Gale received a letter from Richard Roddan, Senior Administrative Officer with the Office of the Board of Studies, on 3 August 1999. That letter enclosed Mr Hewitt's report and advised Ms Gale that she has the right, under s 53 of the Administrative Decisions Tribunal Act 1997, (ADT Act) to seek an internal review of the decision. Ms Gale refused to make such an application claiming that she is "not entitled to apply for an internal review" under s 55(2) of the ADT Act and that the matter should proceed to a hearing. Legislation and decisions 8 Ms Gale maintains that the correct respondent in these proceedings is P Hewitt, authorised person. The respondent has submitted that the correct respondent is Robert Randall, authorised person. 9 Section 67(2)(b) of the ADT Act states that: "The parties to proceedings before the Tribunal for a review of a reviewable decision are: (b) the administrator who made the decision." 10 Section 7 of the ADT Act defines an administrator as "the person or body that makes (or is taken to have made) the decision under the enactment concerned." In this case "the decision" is the recommendation of an authorised person that the Minister refuse to register a child for home schooling. 11 It appears from the respondent's file that two authorised persons, Mr Hewitt and Mr Randall, have made a recommendation to refuse to register Ms Gale's child for home schooling. However the file makes it clear that Mr Hewitt drafted his recommendation on 20 July 1999 and subsequently referred it to Mr Randall who "approved" the recommendation on 26 August 1999. On the basis of the content of Mr Randall's memorandum I find that he was exercising independent discretion in making his recommendation and was not acting under the direction of Mr Hewitt. Although the paper work suggests that two decisions have been made, in fact Mr Randall made the final and operative recommendation. Consequently he is the "administrator" and is the correct respondent in these proceedings. 12 Nevertheless it is not surprising that Ms Gale identified the respondent as Mr Hewitt because it was his recommendation that was enclosed in the letter to her dated 3 August 1999. Mr Anastasi advised that the respondent intends to modify its procedures so that an applicant can be in no doubt about who has made the decision. 13 The second issue is whether Ms Gale must apply for an internal review of the administrator's decision before she is entitled to lodge an application for review of the decision with the Tribunal. Ms Gale's submission was that she was "not entitled to apply for an internal review." Section 55(1)(b) of the ADT states that: A person may apply to the Tribunal for a review of a reviewable decision only if: (b) an internal review is taken to have been finalised under section 53(9) 14 Section 53(9) provides that an internal review is taken to be finalised if the applicant is notified of the outcome of the review or the applicant is not notified of the outcome of the review within 14 days after the application is lodged, or such other period as the administrator and person agree on. 15 However, a person is not prevented from making an application in respect of a reviewable decision that has not been the subject of an internal review if the Tribunal is satisfied that the person was not at any time entitled to apply for an internal review of the decision (Section 55(2)(a) ADT Act). 16 Ms Gale submits that she is not entitled to apply for internal review because: ". . . there is no legislated agency or body to apply to for any such review. Authorised persons for home schooling are responsible to the Minister for Education only. When acting as an authorised person for home schooling, they are not acting within, as part of or on behalf of any government agency or body." 17 While I accept that an authorised person must make an independent decision, the fact that they are not acting as part of any government agency or body is not relevant. 18 Section 53(3) of the ADT Act sets out who is to deal with an application for internal review. That section states that: An application for an internal review of a decision is to be dealt with by an individual (other than the administrator) who is directed to do so by the administrator. The individual directed to deal with an application must be, as far as is practicable, an individual: (a) who was not substantially involved in the process of making the decision under review, and (b) who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed, and (c) who is otherwise suitably qualified to deal with the issues raised by the application (italics added) 19 An "authorised person" can be a Board inspector or any other person authorised in writing. They need not be an employee of the Office of the Board of Studies. The person conducting the internal review only needs to be an employee of the same agency within which the administrator is employed if that is practicable. In relation to the Education Act 1900 , it will clearly not always be practicable for the person conducting an internal review to be an employee of the Office of the Board of Studies. 20 Section 53(11)(b) states that "The regulations may exclude any class of reviewable decisions from the application of this section." The Administrative Decisions Tribunal (General) Regulation 1998, Cl 6A prescribes certain decisions which are excluded from internal review under s 53 of the ADT Act. The decision under review in these proceedings is not among them. Conclusion and orders 21 Section 55 of the ADT Act states that a person may only apply to the Tribunal for a review of a reviewable decision if an internal review of the decision has been, or is taken to have been, completed. The registry should not have accepted Ms Gale's application. In these circumstances I must dismiss the application because, pursuant to s 55(2)(a) of the ADT Act, I am not satisfied that Ms Gale was not entitled to apply for an internal review of the decision. Mr Anastasi, on behalf of the respondent, advised that if Ms Gale wishes to make an application for an internal review, the administrator would not object on the basis that it is out of time. Consequently, if Ms Gale wishes to do so, she should lodge an application for internal review with the administrator as soon as possible. The internal review decision will then replace the original decision and if Ms Gale is aggrieved by that decision she may apply to the Tribunal for it to be reviewed. 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.