"AK" v Director-General, Det

[2008] NSWSC 1202

CITATION:	AK v Director-General, DET [2008] NSWSC 1202
HEARING DATE(S):	20 August 2008
JUDGMENT DATE :	14 November 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The summons filed 20 August 2008 is dismissed. (2) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	JUDICIAL REVIEW - Investigation, student teacher
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Commission for Children and Young People Act 1998 Department of Education and Training Code of Conduct Procedures 2004 Ombudsman Act 1974 Public Sector Employment and Management Act 2002 Supreme Court Act 1970 Teaching Service Act 1980 Teaching Service Act and Education (School Administrative and Support Staff) Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; (1981) 35 ALR 151; (1981) 55 ALJR 434; (1981) 81 ATC 4292; (1981) 11 ATR 949 Martin v Kelly [2008] NSWSC 577 NSW v Lepore (2003) 195 ALR 412 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
PARTIES:	AK (Plaintiff) Director-General, Department of Education and Training (Defendant)
FILE NUMBER(S):	SC 30052/2008
COUNSEL:	D Dickinson (Plaintiff) S B Benson (Defendant)
SOLICITORS:	Denis W Edwards (Plaintiff) Employee Performan & Conduct Directorate, Department of Education and Training (Defendant)
LOWER COURT DATE OF DECISION:	5 March 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 14 NOVEMBER 2008

30052/2008 - “AK” v MICHAEL COUTTS-TROTTER,
DIRECTOR GENERAL DEPARTMENT
OF EDUCATION AND TRAINING

JUDGMENT (Judicial review: investigation, student teacher)

1 HER HONOUR: The main issue to be decided in whether the Director General of the Department of Education or his delegate is empowered to investigate conduct of a student teacher after the employment relationship had come to an end.

2 The student teacher is seeking to have, by amended summons filed 20 August 2008, firstly, a declaration that the purported decision of the defendant made on or about 5 March 2008 under delegation from the defendant by his Director Employee Performance and Conduct that the plaintiff had committed a breach or breaches of the Department of Education and Training’s Code of Conduct is invalid in that the defendant failed to afford procedural fairness to the plaintiff in that the plaintiff was not given a reasonable opportunity to present her case; secondly, a declaration that the purported decision is invalid in so far as the alleged events said to amount to instances of misconduct related to events occurring after the employment relationship had ceased to exist; thirdly, in the alternative, a declaration that the defendant is not entitled to make findings that the plaintiff has committed a breach or breaches of the Department of Education and Training’s Code of Conduct with respect to conduct occurring after the employment relationship had ceased to exist; fourthly, a declaration that the decision is invalid in that the defendant had no jurisdiction to embark on an inquiry or investigation concerning the plaintiff’s conduct when the plaintiff was not then in the defendant’s employ; fifthly, in the alternative, a declaration that the defendant was not authorised to conduct employment proceedings within the meaning of the Children and Young Persons (Care and Protection) Act 1998 as at the time the proceedings were commenced the plaintiff was not engaged in employment within the meaning of that Act; sixthly, a declaration that the plaintiff or a member of the public might reasonably apprehend that the defendant’s delegate the Director Employee Performance and Conduct might not bring an impartial and unprejudiced mind to the resolution of whether the plaintiff had committed the alleged breaches of the Department of Education and Training’s Code of Conduct; seventhly , an order that the determination of the defendant that the plaintiff had committed a breach of the Department of Education and Training’s Code of Conduct be quashed; eighthly, an order that the defendant be prohibited from determining the allegations that the plaintiff had committed breaches of the Department of Education and Training’s Code of Conduct or any other alleged breaches of the code; ninthly, an order that the Departmental proceedings in relation to the allegations that the plaintiff had committed breaches of the Department of Education and Training’s Code of Conduct be permanently stayed; or tenthly, in the alternative an order that any further determination of the alleged breaches of the Department of Education and Training’s Code of Conduct be dealt with by the Director General or his delegate other than his Director Employee Performance and Conduct according to law.

3 The plaintiff is “AK”. The defendant is the Director-General, Department of Education and Training. AK relied on the affidavit of Denis William Edwards filed 9 May 2008. The Department of Education and Training relied on the affidavits of James Burnett affirmed 23 June 2008 and Jane Thorpe affirmed 23 June 2008.

Background

4 The plaintiff is a student teacher. She is 22 years of age. On successful completion of her course she will become qualified to teach in State and private schools within New South Wales. It is a requirement of her course that she complete a professional experience placement at a private or State school in each of the three years of the course. In 2005 the plaintiff completed her first professional practice teaching placement.

5 On 22 May 2006, the plaintiff commenced her second placement at a State school administered by the defendant completing that placement on 23 June 2006. After the plaintiff had concluded this placement the Employee Performance and Conduct Unit (“EPAC”), part of the Department of Education and Training, received an allegation concerning the plaintiff and her relationship with a student at the school. EPAC commenced an investigation into the allegation as employment proceedings within the meaning of the Commission for Children and Young People Act 1998. On 24 August 2006, the chief investigator of EPAC advised the plaintiff in general terms of the allegation and of the proceedings.

6 EPAC also informed the Dean of the College that the plaintiff was the subject of an investigation by the Joint Investigation Response Team (“JIRT”). EPAC requested that her practical training in New South Wales Government schools be suspended pending the outcome of the JIRT investigation. As a result of the advice given by EPAC to the College and the time it has taken EPAC and others to complete their investigations, the College has been unable to secure a professional practice teaching placement for the plaintiff to complete her degree either in the State system or elsewhere.

7 An unfavourable finding resulting from this investigation will most likely result in the plaintiff being unable to complete her degree and will have a prejudicial effect on her right to work.

Judicial review generally

8 The plaintiff relies upon s 69 of Supreme Court Act 1970. In Martin v Kelly [2008] NSWSC 577 Johnson J at [13]-[24] made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are:

“13. The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”


14. This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15. The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16. The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

Relief in the Nature of Certiorari

17. Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

18. The face of the record includes the reasons expressed by the LAB for its ultimate determination: s.69(4) Supreme Court Act 1970 .

19. In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
20. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]:

“Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
21. Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].
22. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.
23. Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184.”

The investigation

9 On 29 June 2006, the principal of the school contacted the duty officer of EPAC to notify them that allegations had been made against the plaintiff. It was specifically alleged that a staff member of the school had some concerns about the plaintiff and how familiar she was with a Year 10 student. The staff member reported that two weeks prior she had heard the student talking to other students and from what she could see and hear it was her impression that there was something of a sexual nature possibly occurring between the student and the plaintiff.

10 On 3 July 2006, the matter was allocated to James Burnett, a senior investigator of EPAC. By this time a report had been made to the Department of Community Services (“DOCS”) helpline about the risk of harm to the student. On 31 July 2006, Mr Burnett provided DOCS with the written report for their consideration by way of update. On 15 August 2006, clearance was given by DOCS for EPAC to investigate the allegations.

11 The allegations were investigated in accordance with the Responding to allegations against Employees in the Area of Child Protection procedures. The plaintiff was a deemed employee given that she was undertaking practical training.

12 On 24 August 2006, Mr Burnett telephoned the plaintiff and informed her that an allegation had been raised involving her inappropriate interaction with a student and that she would receive a letter officially notifying her. He discussed the investigation process with her and indicated the support available through counsellors at EPAC. A short time later Mr Burnett received a telephone call from the plaintiff’s mother. He explained the investigative process and advised her that he would request a counsellor to ring her daughter within 24 hours. He then made a referral to senior counsellor who spoke to the plaintiff on that day.

13 On 28 August 2006, Mr Burnett contacted the Newcastle Joint Investigative Response Team who were handling the matter and he was advised that EPAC were clear to conduct interviews.

14 Mr Burnett deposed that in the event that external agencies such as the Police, DOCS or the JIRT are involved in investigation of allegations, it is the practice of the Department of Education and Training to seek the consent of those external agencies or await their clearance before investigations are commenced so as to avoid prejudicing any investigation.

15 On 30 August 2006, Mr Burnett conducted interviews. On 15 September 2006, during a telephone conversation with the student’s mother, Mr Burnett was advised that she had discovered text messages on her daughter’s phone, which indicated that there was a sexual relationship between the student and the plaintiff. The student’s mother has provided statements. The student has also provided statements; one where she denied the relationship, then later where she admitted it.

16 On 24 July 2007, a letter was forwarded to the plaintiff from the Chief Investigator. It relevantly stated:

“As you are aware, allegations about your conduct are being investigated by R/Principal Investigator, Jim Burnett, Employee Performance and Conduct United (EPAC).
I am now providing you with an opportunity to respond to the following allegations, if you wish to do so.
The allegations are that during 2006, while attending the XXXX as a student and while undertaking professional practice teaching experience at XXXX school, from 22 May 2006 to 23 June 2006, you engaged in misconduct by developing and continuing an inappropriate personal relationship, including a sexual relationship with a year 10 female student, …, as evidenced by the following:”

The allegations

“1. Sending sexually suggestive and intimate text messages to XXXX’s mobile phone including but not limited to the following, which stated words to the effect of:
…
2. On one occasion sending sexually suggestive and intimate text messages to XXXX’s mobile phone similar in nature to those detailed in 1. above, while XXXX was travelling by bus with other XXXX school students to, and, or, from Oz Tag, during school sports time;
3. On numerous occasions contacting XXXX on her mobile phone to arrange meetings with her, without the knowledge of or consent of XXXX’s mother;
4. On more than one occasion picking XXXX in your car from XXXX school to take her to XXXX Shopping Centre for coffee and to XXXX McDonalds without the knowledge or consent of XXXX’s mother, or the knowledge or consent of the Principal;
5. ….
6. On more than one occasion picking up XXXX and XXXX in your car from XXXX School after school, without the knowledge or consent of XXXX’s mother, or the knowledge or consent of the Principal;
….
10. Buying train tickets for XXXX so she could watch you play hockey in XXXX.
….
12. In or around June or July 2006, giving XXXX a Billabong cap and jewellery;
13. On numerous occasions climbing through XXXX’s bedroom window;
14. While XXXX’s mother was in hospital, in early August 2006, lying on top of XXXX, who was lying on her bed in her home, with your arms around XXXX, cuddling her;
….
16. While at XXXX’s house, on Monday 21 August 2006 (XXXX’s 16th birthday):
…
c. giving to her, a ‘KISS’ T-shirt, silver bracelet and a ring as birthday gifts;
d. giving her a birthday card with the caption, ‘For your birthday I wanted to make you something really special: but you already are !’ and writing, ‘Happy Sixteenth XXXX!! I hope you enjoy your special day you deserve to’ and signing as ‘XXXX’ with a heart symbol and the letters ‘xxxooo’;
17. Giving XXXX a photo of yourself;
18. On Wednesday 27 September 2006, at about 11 pm, lying with XXXX in her bed at her home:
a. without your top on;
b. with your arm around XXXX, who was also not wearing a top;
c. with your clothing and XXXX’s clothing lying on the bedroom floor.”

17 There were further particulars given in that letter that I have not produced. On 16 August 2007, the plaintiff responded to the allegations. Allegations 1 to 20 were denied and allegation 21 was admitted.

18 In summary, the plaintiff’s period of employment at the school was from 22 May 2006 until 23 June 2006. On 29 June 2006, after the plaintiff had completed her placement, the principal of the school notified the Employment Performance and Conduct Unit of the allegations. Hence, the investigation commenced after the plaintiff’s placement had concluded. It appears that allegations 1, 2, 3, 4 and 6 occurred during the plaintiff’s placement at the school. Allegations 10, 12, 13, 14, 16, 17 and 18 seem to refer to a period of time after the plaintiff’s placement had concluded.

The decision

19 On 5 March 2008, the Director, Employee Performance and Conduct wrote to the plaintiff’s solicitor (“the decision”). The letter reads:

“All the information obtained, including your response on your client’s behalf, has been carefully considered.
With reference to the letter of allegations dated 24 July 2007, I am of the opinion that the following sustained conduct constitutes breaches of the Department of Education and Training Code of Conduct Procedures (2004):
Allegations 1 a-f, 2, 3, 4, 6, 10, 12, 13, 14, 16 c, 16 d, 17, 18 a-c.
I am now writing to provide your client with an opportunity to make a submission, within fourteen (14) days of the date of this letter, to show cause why her name should not be placed on the list of people not to be employed in any capacity in NSW government schools or TAFE NSW institutes, without reference to the Director, Staffing Services. The reason for inclusion of a name on the list is not given on the list. The list is readily accessible to principals of NSW government schools and TAFE NSW institute directors. Your client can seek a review of that decision at any stage by writing to the Director, Staffing Services.
Please find enclosed a copy of the investigation report and those documents on which the investigation report has relied to establish breaches of the Code of Conduct Procedures in this matter.
This matter has been reported to the Office of the NSW Ombudsman, which will assess whether or not the allegations were properly investigated and appropriate action taken.
Having completed these employment proceedings, I am required to consider whether the allegations amount to reportable conduct. See Responding to Allegations against Employees in the Area of Child Protections 2004, Section 8.
Accordingly, I have decided that they are allegations of reportable conduct.
This being the case, in line with employers’ responsibilities, as required by legislation, your client’s name has been referred to the Commission for Children and Young People, as Category One. See attachment, Information about Reporting to the Commission for Children and Young People , for further detail.
…”

20 As it turns out, at this stage, the plaintiff’s name has not as yet been placed on the list of people not to be employed in any capacity in New South Wales Government schools or TAFE’s, nor has her name been referred to the Commission for Children and Young People. The defendant says that it does not consider that the investigation has been finalised.

The statutory framework

21 The defendant has a responsibility to provide a safe educational environment for children and young people who attend Government schools in New South Wales - see NSW v Lepore (2003) 195 ALR 412.

22 The Teaching Service Act 1980 sets out the general functions of the Director General.

23 Section 7 reads:

“General functions

(1) The Director-General has the following functions:


(a) to classify the schools in which members of the Teaching Service are employed,

(b) to determine the staff positions in the Teaching Service (including the teaching positions in schools),

(c) to determine the method of classifying and grading officers employed in the Teaching Service,

(d) to determine the qualifications required for appointment to the Teaching Service,

(e) to prepare and maintain a list of persons who the Director-General determines are not to be employed in the Teaching Service,

(f) to maintain discipline in the Teaching Service.

(2) Subsection (1) does not limit the functions that are conferred or imposed on the Director-General by or under this Act.”

24 Hence, s 7(1)(e) expressly specifies that one of the functions of the Director General was “to prepare and maintain a list of persons who the Director-General determines are not to be employed in the Teaching Service”.

25 To assist in discharging that responsibility the defendant has promulgated a policy entitled “Responding to Allegations against Employees in the Area of Child Protection” dated 23 April 2004 (referred to earlier in this judgment). The purpose of this policy is to guide the Director General in responding to allegations of a child protection nature made against employees and persons “deemed” to be employees including tertiary students training in schools.

26 The policy procedures also reflect the legislative and inter-agency requirements imposed on the defendant to report to the Department of Community Services; the NSW Ombudsman; the Commission for Children and Young People (“CCYP”) and the Independent Commission Against Corruption (“ICAC”) in certain circumstances.

27 The policy notes that the defendant has a responsibility to:

(a) Investigate allegations of a child protection nature specifically related to the actions of an employee and ensure appropriate action was taken in relation to the finding;
(b) Ensure that procedural fairness applied in situations where a decision was to be taken which could have a detrimental effect on the rights, interests or legitimate expectations of an individual.

28 The plaintiff conceded that firstly, she was an employee while she was undertaking practical training at the school; and secondly, that the defendant had a duty to report the matter to the Police and DOCS by referring the matter as it did to JIRT and leaving that body to investigate the matter. On 23 June 2006, she completed her training and she says that thereafter she was no longer employed by the Department. The plaintiff submitted that, as she was no longer employed by the Department, the defendant has no power to initiate employment proceedings.

Whether the defendant has jurisdiction to commence investigation

29 The main point the plaintiff makes is that an examination of the Teaching Service Act discloses no basis for deeming the plaintiff to be a member of the teaching service or for that matter a public servant. The plaintiff submitted that the defendant has no more right to investigate conduct that occurred after the employment relationship had come to an end than it would have of a member of the public who had never been employed by it.

30 The defendant is empowered to investigate allegations of employee misconduct under various enactments under which employees are engaged to perform work for the Department and pursuant to the terms of those enactments – see Public Sector Employment and Management Act 2002, Teaching Service Act and Education (School Administrative and Support Staff) Act 1987. In the case of certain employees the defendant can take disciplinary action against the employee even if the employee has retired or resigned. An example of this is contained in s 93P of the Teaching Service Act. It reads:

“(1) An allegation that an officer has engaged in misconduct may be dealt with under this Part, and disciplinary action may be taken with respect to the officer, even though the officer has retired or resigned.

(2) The taking of disciplinary action (other than a fine) with respect to the former officer does not affect the former officer’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation.

(3) …

(4) A reference in this section to the resignation of an officer is a reference to a resignation that has been accepted by the Director-General.”

31 The plaintiff submitted that other employees within the teaching service are not subject to the initiation or continuance of disciplinary action after they have left the employment because they are no longer employees.

32 The plaintiff submitted that the defendant is not empowered under the Teaching Service Act to investigate allegations of misconduct against her apart from commencing the relevant employment proceedings as defined under the provisions of the Commission for Children and Young People Act 1998 and so far as is it relevant the Ombudsman Act 1974 – s 25C.

33 The plaintiff submitted that it is the fundamental object of statutory instruction to ascertain the intention of Parliament by reference to the language of the Act viewed as a whole. In performing that task the courts look to the operation of the statute according to its terms and legitimate aids to construction – see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; (1981) 35 ALR 151; (1981) 55 ALJR 434; (1981) 81 ATC 4292 and (1981) 11 ATR 949. In doing so effect is normally given to the natural and ordinary sense of the language read in its context.

34 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court stated that the primary objection of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (at 381-382). Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other” (at 382). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.

35 The defendant submitted that it has statutory authority to prepare and maintain a list of persons who are not to be employed in the Teaching Service – see s 7(1)(e) of the Teaching Service Act. The defendant says that the inference arising from that statutory provision is clear. It is to enable the defendant to be proactive in considering the suitability of particular persons for future employment which necessarily extends to non-employees.

The Commission for Children and Young People Act

36 Section 4(1) of the Commission for Children and Young People Act provides for the establishment of a Commission for Children and Young People (“the Commission”). Pursuant to s 11(i) of the Act one of the principal functions of the Commission is “to participate in and monitor background checking for child-related employment in accordance with Division 3 of Part 7”. Hence, it is necessary to consider Part 7 of the Act in detail.

37 Part 7 is headed “Child-related employment”. It contains three Divisions. Division 1 contains ss 31 to 33. The object of Part 7 is to protect children by prohibiting certain persons from being involved in child-related employment, and by means of background checking for child-related employment administered by the Commission and other agencies – s 31(a) and (b).

38 Section 32 states that the welfare of children and, in particular, protecting them from child abuse, is to be paramount consideration in that employment screening.

39 Section 33 is a definition section. It defines “employment” and “relevant employment proceedings” and “reportable conduct” as:

“ employment means (subject to the regulations):

(a) performance of work under a contract of employment, or

(b) performance of work as a self-employed person or as a subcontractor, or

(c) performance of work as a volunteer for an organisation, or

(d) undertaking practical training as part of an educational or vocational course, or

(e) performance of work as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer of a religion or other member of a religious organisation, or

(f) performance of the duties of an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998.

…

relevant employment proceedings means: proceedings (including disciplinary proceedings), in this State or elsewhere, against an employee by the employer or by a professional or other body that supervises the professional conduct of the employee, being proceedings involving:

(a) reportable conduct by the employee, or

(b) an act of violence committed by the employee in the course of employment and in the presence of a child.”

40 The words “employee” and “employment” are given an extended meaning for the purposes of the Act. An employee is defined as any person engaged in employment. The plaintiff concedes that she was an employee for the purpose of Part 7 and that her practical training with the defendant constituted relevant employment for the purposes of the Commission for Children and Young People.

41 Reportable conduct means “any sexual offence, or sexual misconduct, committed against, with or in the presence of a child, or … any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child…”

42 Section 34 sets out the nature of background checking. Background checking is defined as “any or all of the following procedures with respect to a person who is employed or who has applied to be employed in child-related employment.” Background checking involves the employer or those acting on the employers behalf to check for any relevant criminal record of the person, for any relevant apprehended violence orders made against the person, for any child protection prohibition orders made against the person or for any relevant employment proceedings completed against the person – s 34(a). The process also involves an estimate being made of the risk to children involved in that child-related employment arising from anything disclosed by such a check, having regard to all the circumstances of the case, including any risk arising from the particular workplace; and the disclosure of the results of any such check or estimate of risk to any person who determines whether the person is to be employed or continue to be employed in that child-related employment (or to a person who advises or makes recommendations on the matter) – s 34(c) and (d).

43 Section 37 imposes an obligation on employers in primary child related employment to undertake a background check on any person the employer desires to employ in that employment.

44 Section 39 requires an employer to notify the Commission of the name and other identifying particulars of any employee against whom “relevant employment proceedings” have been completed by the employer, other than proceedings in which a finding is made that the alleged reportable conduct, or the alleged commission of an act of violence, did not occur, or in which a finding is made that the allegations in respect of which the proceedings were brought were vexatious or misconceived – s 39(a) and (b).

45 The plaintiff submitted that the duty under s 39 should be read narrowly so as to preclude investigations into a former employee’s conduct notwithstanding the relevant misconduct may have had a nexus to the said employment.

46 According to the plaintiff, the definition of employee as “any person is engaged in employment” refers to the persons present as opposed to past status – it has a temporal connotation. Similarly, the definition of employment is a reference to an existing and not a past state. The plaintiff submitted that Parliament, had it intended to do so, could have made provision for such proceedings to be commenced or maintained against former “employees” – see s 93P of the Teaching Service Act, and it did not do so. The plaintiff further submitted that the defendant therefore had no right to investigate the conduct of the plaintiff at that time as an employment proceeding. The plaintiff says that the defendant had a duty to report the matter to the Police and to DOCS by referring the matter as it did to the Newcastle JIRT and leaving that body to investigate the matter.

47 The defendant says that such a construction would appropriately attract labels such as “absurd”, “extraordinary”, “capricious”, or “irrational”. The defendant submitted that such a construction is clearly contrary to the legislative intention expressed in ss 31 and 32 and ought to be rejected.

48 Under Part 7, the CCYP is given the function of employment screening of persons for child related employment and notification of relevant matters designed to assist that process. The objects of Part 7 are set out in s 31 which are to protect children by means of employment screening for child related employment. While the definition of employee may have a temporal connection, I do not read the definition of employment related proceedings to be so constricted. The wording contained in definition of relevant employment proceedings does not mean that proceedings can only be taken while the employee is in employment. Section 33 is couched in wide terms. Relevant employment proceedings are proceedings in this State or elsewhere against an employee, the employer or other body that supervises professional conduct of the employee, being proceedings involving reportable conduct by the employer. What is being investigated is relevant employment proceedings and if a finding is made that the reportable conduct occurred, then the employer has to notify the Commissioner of the employee’s name and other identifying particulars.

49 To limit the interpretation of relevant employment proceedings as set out in s 33 in the way the plaintiff contends is wrong. If an employee could only be investigated when he or she was an employee and for conduct that occurred during the period of employment, this would severely compromise employment screening. The paramount purpose of the screening is the welfare of the children and in particular protecting them from child abuse. When the sections are read together and in harmony, the definition of relevant employment proceedings is clear.

Can the defendant investigate alleged acts that occurred after the employment relationship ceased?

50 The plaintiff submitted that the question to be considered is, does the defendant in the circumstances have any power to initiate employment proceedings with respect to the plaintiff when she is no longer in the defendant’s employ? The plaintiff says the defendant does not as the statute does not on any view provide for it. It is not uncommon for the law to impose upon employees post-employment obligations that continue to be owed to their employer well after the employment relationship had otherwise come to an end. The court will be mindful in this regard of the implied duty of fidelity owed by employees to employers protecting the employers from the misuse of confidential information by former employees acquired in the course of their employment.

51 In this case, the essence of allegation was that the plaintiff engaged in misconduct by developing and continuing an inappropriate sexual relationship both during and subsequent to the practical teaching assignment period. The defendant submitted that it had a real interest in ascertaining whether that allegation had any substance.

52 The defendant submitted that given the nature of the teacher/student relationship, it is a question of fact whether the alleged conduct could be construed as a misconduct and relevant to the assessment of whether the plaintiff was a suitable person for possible future employment as a teacher. The defendant submitted that this contention should be rejected.

53 As stated previously, to limit the interpretation of relevant employment proceedings in s 33 in the way the plaintiff contends is wrong. The wording of s 33 is not so constricted. If an employee could only be investigated when he or she was an employee and for conduct limited to that which occurred during the period of employment, this would severely compromise employment screening. However, the conduct must be relevant. Further incidents that occurred after the period of employment had concluded fall within the definition of relevant employment proceedings. The paramount purpose of the screening is the welfare of the children and in particular protecting them from child abuse.

Apprehension of bias

54 The plaintiff submitted that, having regard to the terms in which the Director of EPAC informed the plaintiff of her decision in her letter dated 5 March 2008 and her later letter dated 15 April 2008, that she should not have any further role to play in the determination of these employment proceedings. Counsel for the defendant gave an undertaking to the Court, without any admission of apprehended bias on the part of the present decision maker, to substitute that decision maker with another senior officer duly authorised within the Department to complete the procedure and the decision making as to whether or not the plaintiff ought to be placed on the list of people not to be employed in any capacity in NSW government schools or TAFE NSW institutes and the supplementary issue as to whether or not it is a requirement of the Department to notify the Commission for Children and Young People under s 39 of the Commission for Children and Young People Act. In the light of this undertaking, it is not necessary for this court to deal with the submission and appeal grounds of alleged apprehended bias.

55 The defendant is entitled to conduct the relevant employment proceedings. The conduct that can be taken into account is not limited solely to the period of employment, nor do the employment proceedings have to be carried out prior to the employment relationship coming to an end.

56 So far as there is a complaint about procedural fairness, the plaintiff has been provided with details of the allegations made against her and has been given an opportunity to respond. She has been afforded procedural fairness to date. The plaintiff’s claim fails. The summons filed 20 August 2008 is dismissed.

57 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The Court orders

(1) The summons filed 20 August 2008 is dismissed.

(2) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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