Brissenden v Victorian Institute of Teaching
[2024] VSC 580
•20 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 02753
| ELSA KATE BRISSENDEN | Plaintiff |
| v | |
| VICTORIAN INSTITUTE OF TEACHING | Defendant |
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JUDGE: | O'Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2024 |
DATE OF JUDGMENT: | 20 September 2024 |
CASE MAY BE CITED AS: | Brissenden v Victorian Institute of Teaching |
MEDIUM NEUTRAL CITATION: | [2024] VSC 580 |
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JUDICIAL REVIEW – Plaintiff registered teacher employed at a primary school – Incident or incidents involving the plaintiff – Principal referred plaintiff for psychiatric assessment – Assessing psychiatrist of the opinion that the plaintiff is in an acutely disturbed mental state and that the plaintiff is provisionally unfit for work until there is further clarification – Treating psychologist of the opinion that the plaintiff is fit to work and no risk – Plaintiff suspended from primary school on the basis of psychiatrist’s opinion – Plaintiff thereafter employed at an independent school – Department notification to defendant regulator of teacher registrations – Preliminary assessment of Department’s notification – Defendant imposed interim suspension thereafter continued essentially monthly – Defendant served notice of investigation – Steps taken in the course of investigation or in respect of continuations of suspension – Whether ‘preliminary investigation’ is a statutory precondition to the imposition of an interim suspension – Plaintiff contends continued suspensions thereafter ‘infected’ – Whether plaintiff denied procedural fairness in respect of preliminary assessment and suspensions – Defendant materially failed to afford procedural fairness – Whether defendant could form a reasonable belief that the plaintiff continued to pose an unacceptable risk of harm to children and that suspension was necessary to protect children – Education and Training Reform Act 2006 (Vic), Part 2.6, Div 8A, ss 2.6.28, 2.6.28A, 2.6.28D, 2.6.28E, 2.6.28F and 2.6.28G, Div 10, ss 2.6.30 and 2.6.30A, Div 10A, ss 2.6.31 and 2.6.32 and Divs 12, 13 and 14 considered – Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, Byrne v Marles (2008) 19 VR 612, Foster v Secretary to the DEECD (2008) 30 VAR 243, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Nathanson v Minister for Home Affairs (2022) 276 CLR 80 and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 considered – Decisions of the defendant quashed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | E Levine and H Crosthwaite | Umeya Chaudhuri, Australian Education Union (Victorian Branch) |
| For the Defendant | RA Kornhauser | Katherine Bowles, Victorian Institute of Teaching |
HIS HONOUR:
A. Introduction
The defendant registered the plaintiff as a teacher in 2019.
Broadly speaking, the statutory functions of the defendant include the registration of teachers; investigating the conduct, competence and fitness to teach of registered teachers; and the imposition of sanctions, where appropriate.[1]
[1]Education and Training Reform Act 2006 (Vic) (‘Act’) Part 2.6.
In late 2022, the plaintiff was employed as a teacher at a primary school in Melbourne.
There were said to be one or more incidents, and the school principal stood the plaintiff down and referred them for assessment by Dr Remy Glowinski, consultant psychiatrist.
The plaintiff attended Dr Glowinski on 18 November 2022. Dr Glowinski subsequently provided a report entitled ‘PSYCHIATRIC FITNESS FOR DUTY ASSESSMENT’.[2]
[2]Exhibit P1: Revised court book (‘RCB’) 239-248.
Under the heading ‘Employer Perspective’, the report recorded various allegations made in respect of the plaintiff. Under the heading ‘Mental State Examination’, it was stated that the plaintiff was ‘an extremely difficult interview subject’ and was ‘hostile’ and ‘highly agitated’ in interview. In Dr Glowinski’s opinion, the plaintiff’s judgement was ‘significantly impaired secondary to an acutely disturbed acute mental state’.
Dr Glowinski recorded various further aspects of the plaintiff’s presentation under the headings ‘Employee Perspective’, ‘Current Symptoms’, ‘Current Functioning’ and ‘Current Treatment’. Dr Glowinski thereafter recorded as follows –
INFORMATION FROM OTHER SOURCES
60.I read a letter of support written by treating psychologist Dr [sic: Mr] Charles Veevers dated 10 November 2022. The psychologist wrote that there nothing [sic] concerning about Ms Brissenden’s mental state. They supported a prompt return to work.
61.I spoke with Dr [sic: Mr] Veevers on 24 November 2022. He expressed that he hadn’t identified any concerns about Ms Brissenden’s work capacity. He stated that he had noted some grandiosity and agitation but didn’t think these symptoms to be severe enough to suggest hypomania or bipolar disorder. He was certain that substance intoxication was not a factor. He was surprised to hear about how she’d engaged with the assessment. The psychologist said that Ms Brissenden did not have a history of being dysfunctional or severely psychiatrically disturbed.
SUMMARY AND OPINION
62.Ms Brissenden was a very difficult interview subject and her demeanour and behaviour during the interview severely restricted my capacity to obtain a full history. Her agitated, irritable, and hostile behaviour was highly unusual for this type of assessment. She evaded questions about anything that she deemed irrelevant. She was unable to provide details about her psychiatric history. She insisted that everyone else was to blame, including universities and past employers. There appeared grossly impaired self-reflective capacity, insight, and judgement.
63.Ms Brissenden’s behaviour during assessment was consistent with the employer’s report of her conduct in the workplace.
64.Ms Brissenden denied all allegations of misconduct and blamed the employer for her current difficulties. She expressed a view that things could have been handled better and that she should still be working.
DIAGNOSIS
65.Ms Brissenden presented during cross-sectional assessment in an acutely disturbed psychiatric state. It is difficult in the circumstances to make definitive comments about longitudinal diagnosis. Of the several possibilities that come to mind, the most likely is a hypomanic episode as part of a bipolar mood disorder. Acute adjustment symptoms on top of background personal pathology seems less likely given the relative acuity of her psychiatric disturbance. Acute substance intoxication is a possibility, as is an organic mood disturbance.
IMPACT OF SYMPTOMS ON WORK FUNCTIONING
66.Ms Brissenden s presentation during interview was so disturbed that it is hard to conceive of her engaging in work and behaving professionally with colleagues and students. Her speech was so rapid as to be almost unintelligible. Her emotional and behavioural self-control was evidently very poor.[3]
[3]RCB 246-247. I should note that while the report of Dr Glowinski refers to ‘Ms Brissenden’, I understand that it is the plaintiff’s preference that, where necessary, they be referred to as ‘Mx Brissenden’.
Dr Glowinski considered the plaintiff to be ‘provisionally unfit for all work, particularly student-facing duties, until there is further clarification about her psychiatric state and a period of treatment’. In that connection, Dr Glowinski recommended that his assessment be communicated to the plaintiff with a support person present. He also recommended –
(a) at least three months of treatment, including referral to a treating psychiatrist;
(b) the plaintiff not fully return to work until a report answering certain questions is obtained from treating professionals; and
(c) the plaintiff undergo further independent psychiatric assessment when there is ‘a supportive report at hand from a treating doctor or psychiatrist’.[4]
[4]RCB 247-248.
It is not clear whether the plaintiff undertook any of the treatment recommended by Dr Glowinski.
On 30 November 2022, the school principal wrote to the plaintiff referring to aspects of the report of Dr Glowinski and advising that the plaintiff would not be allowed to return to duty until assessed as being fit to do so by Dr Glowinski.[5]
[5]RCB 237-238.
On 6 December 2022, the plaintiff was notified by an officer of the Department of Education and Training (’Department’) that they would not be able to undertake employment with the Department until the Executive Director, Schools Human Resources Division, was satisfied that further employment was appropriate.[6]
[6]RCB 249-250.
Little is known about events during the period of months that followed.
On 22 March 2023, pursuant to s 2.6.30 of the Education and Training Reform Act 2006 (Vic) (‘Act’), an officer of the Department notified the Chief Executive Officer of the defendant that the Department had required the plaintiff to undergo an independent medical examination and that the plaintiff had been found ‘provisionally unfit for all work, particularly student facing duties’. The notification attached a copy of the report of Dr Glowinski, together with three letters addressed to the plaintiff. [7]
[7]RCB 233-250.
The plaintiff was not advised of the notification and did not hear from the defendant in the period 22 March 2023 to 26 June 2023.[8]
[8]RCB 161.
Although it was originally a matter of controversy, it came to be confirmed and accepted that in the period 22 March 2023 to 21 June 2023 the defendant undertook a preliminary assessment of the Department’s notification pursuant to the provisions of Div 10A of Part 2.6 of the Act.
More will need to be said about the preliminary assessment, which led to a report dated 21 June 2023 being submitted by the investigator to the Chief Executive Officer of the defendant.[9] For present purposes, however, it is sufficient to observe that on 26 June 2023 the Chief Executive Officer accepted a recommendation that, pursuant to s 2.6.28 of the Act, the plaintiff’s registration as a teacher should be suspended on an interim basis.
[9]Exhibit D2: Preliminary Assessment Report (‘PAR’).
By that point, the plaintiff was teaching children at an independent school in Melbourne.[10] The investigator seems not to have made any inquiry of the plaintiff, or the independent school, during the period in which the preliminary assessment was being undertaken.
[10]RCB 27, 199-209.
By letter emailed on 27 June 2023, the defendant notified the plaintiff that their registration as a teacher would be suspended on an interim basis because, it was said, the Chief Executive Officer of the defendant reasonably believed that –
· You pose an unacceptable risk of harm to children; and
· The suspension of your registration is necessary to protect children.[11]
[11]RCB 32-33.
Among other things, the effect of the interim suspension was that the plaintiff could not undertake the duties of a teacher at any school in Victoria.
The letter also advised that an investigation would be commenced into the circumstances that led to the suspension of the plaintiff’s registration, and purported to attach a Notice of Investigation. In fact, no such notice was attached.
The letter did attach a Notice of Interim Suspension of Registration dated 26 July 2023 (‘Interim suspension decision’) that stated, relevantly, as follows –
Decision
3.I have decided to suspend your registration on an interim basis because I reasonably believe that you pose an unacceptable risk of harm to children, and the suspension of your registration is necessary to protect children.
4. The interim suspension of your registration takes effect on Tuesday, 27 June 2023 at 5:00pm.
Information in which the Institute has based its decision
5. You are employed as a teacher at … Primary School (the School).
6. The Institute received information from the Department of Education which indicated that you undertook an independent medical examination on 18 November 2022 with Dr Remy Glowinski, Clinical Psychiatrist.
7. On 24 November 2022, Dr Glowinski provided a report to the Department which determined that you were provisionally unfit for all work, including undertaking the duties of a teacher.
8. The Institute has received no further information or evidence to suggest that you have subsequently been reassessed and found fit to undertake the duties of a teacher.
Reasons for decision
Unacceptable risk of harm to children
9. The Institute has determined that you pose an unacceptable risk of harm to children for the following reasons:
a. On 24 November 2022, it was determined by Dr Glowinski that you were provisionally unfit to undertake the duties of a teacher due to a psychological condition.
b.This demonstrates that there is a risk that you may be unable or unwilling to comply with the Victorian Teaching Profession’s Code of Conduct that requires you, amongst other things, to
i.Maintain a safe learning environment (Principle 1.1);
ii. Communicate effectively and appropriately with learners (Principle 1.1);
iii. Protect learners from intimidation, embarrassment, humiliation and harm (Principle 1.2)
iv. Seek to ensure that they have the physical, mental and emotional capacity to carry out your professional responsibilities (Principle 1.3);
v. Complete your duties in a responsible and thorough manner (Principle 3.1);
vi. Comply with various legal requirements including the principle of negligence which includes duty of care; laws preventing discrimination, harassment and vilification; occupational health and safety (Principle 3.2); and
vii. Be aware of the child safe standards, reportable conduct, the United Nations Convention on the Rights of the Child, and any other relevant legislation, policies or regulations that pertain to the role of a teacher in child safety and wellbeing (Principle 3.2).
10. Based on the available information, I hold a reasonable belief that you pose an unacceptable risk of harm to children for the following reasons:
a. The information before the Institute suggests that you are suffering from an impairment that seriously detrimentally affects your ability to perform the duties of a teacher.
b. The Institute acknowledges that you may be taking steps to seek treatment in relation to your impairment. However, the Institute is yet to receive information which demonstrates that you are fit to teach.
Necessary to protect children
11.The Institute has also determined that it is necessary to suspend your registration as a teacher on an interim basis in order to protect children. The reasons for this assessment are as follows:
a. If you were to continue to hold registration as a teacher, you are able to continue to work as a teacher in any Victorian school where you will have responsibility and care for children. This means that there is a risk that you may undertake the duties of a teacher while you have an impairment and you have been deemed provisionally unfit to undertake the duties of a teacher due to a psychological condition. The suspension of your registration on an interim basis would mitigate this risk whilst working as a teacher.
b. If you were to continue to hold registration as a teacher, you could also use your registration in lieu of a Working with Children clearance under the Worker Screening Act 2020 (Vic) to engage in child related work where you will have responsibility and care for children. This creates further risks due to your impairment. The suspension of your registration on an interim basis would also mitigate the risk whilst engaging in other child related work.
Review of the basis for the suspension
12. Section 2.6.28E(1) of the Act states that the Institute must review the basis for the interim suspension of a person’s registration within 30 days after the suspension takes effect and within 30 days of that review and every successive review in order to determine whether or not to continue that suspension.
13. When conducting the review, the Institute:
a.must take into account any submissions made by the teacher; and
b. may take into account any other matter it considers relevant in determining whether or not to continue the suspension.
14. Section 2.6.28E(4) of the Act states that the Institute may continue the interim suspension of a person’s registration if the Institute reasonably believes that the person continues to pose an unacceptable risk of harm to children; and the suspension is necessary to protect children.
15. Section 2.6.28G of the Act states that the Institute must revoke the suspension of a person’s registration if the Institute no longer reasonably believes that the person continues to pose an unacceptable risk of harm to children; and the suspension is necessary to protect children.
16. The Institute anticipates that it will review the basis of the interim suspension of your registration on 25 July 2023.
Right to make submissions
17.Any person whose registration is suspended on an interim basis may make written submissions to the Institute at any time regarding the continuation of the interim suspension of their registration.
18. If you wish to make submissions about the Institute’s decision to suspend your registration as a teacher on an interim basis, please send your submissions to the Institute electronically using the details provided below:
Legal Manager (Regulation)
Victorian Institute of Teaching
19. To facilitate the review of the basis of the interim suspension of your registration, you are encouraged to provide the Institute with any submissions or information by 18 July 2023.
20. Please be advised that providing submissions after this date may alter the date on which the interim suspension is reviewed.[12]
[12]RCB 34-36 (citations omitted).
It will be evident that the notice –
(a) tends to suggest that the Interim suspension decision was based largely if not entirely on the report of Dr Glowinski; and
(b) does not refer to the preliminary assessment, or the preliminary assessment report.
The plaintiff seems to have spoken with the appointed investigator on 27 June 2023.[13]
[13]RCB 173.
By letter dated 29 June 2022 (which presumably should correctly have been dated 29 June 2023),[14] Mr Charles J Veevers, registered psychologist, wrote to the investigator concerning the plaintiff’s fitness for and safety to work. He said that he had worked as a clinical psychologist for 25 years and had known the plaintiff in his professional capacity for 11 years. He referred to the events which had led to the plaintiff being asked to undertake a psychiatric assessment and expressed his views in respect of those events and their cause. Mr Veevers thereafter stated –
In my view Ms Brissenden is an intelligent, thoughtful, hardworking individual who in all the time I’ve worked with her never once did it cross my mind that she would be either unfit for work or unsafe to work with, including working with children. Over the many sessions I have worked with Ms Brissenden on a range of issues and concerns have been presented and worked through, none of which have even remotely related to fitness for work or safety to work. Over the years Ms Brissenden has worked in a range of jobs, including working with children, and until this incident I had never heard of any complaints or concerns raised about her fitness to work or her safety to work. In respect of this I have asked Ms Brissenden if she had ever been warned or if there had ever been a complaint of this nature made against her and she assured me there had not, and I have no reason to doubt her. Indeed the event that occurred and resulted in the assessment had in itself no element of her being unsafe to work either with colleagues or children. It appears that the school acted cautiously at the time with concern for Ms Brissenden after witnessing the level of distress the incident caused her.[15]
[14]Ibid.
[15]Ibid.
Mr Veevers expressed the opinion that the plaintiff is ‘intelligent and strong minded’, and ‘can be pedantic’ and prosecute their case with intensity when feeling unfairly wronged or misunderstood. He said that this could be ‘misinterpreted’. While he considered such a trait to be ‘at times confronting’, he did not believe that it constituted a danger to anyone. He expressed the opinion that the plaintiff ‘is currently fit to work and does not pose a risk to anyone’s safety’. He thereafter said –
I hope my opinion will assist you in making your decision. Please feel free to contact me if you wish to discuss this matter any further.[16]
[16]RCB 174.
The plaintiff emailed the investigator on 30 June 2023 referring to the letter of Mr Veevers, and attaching a letter from their general practitioner which stated that the plaintiff was ‘physically well’. Among other things, the plaintiff stated that they had ‘never put any child at risk of harm whilst undertaking the duties of a teacher and … never will’. In that connection, the plaintiff requested that the interim suspension be revoked ‘so that my current employment and livelihood is not unjustly impacted by this decision’ and thereafter stated that they had been looking forward to teaching in term 3.[17]
[17]RCB 157-159.
On 10 July 2023, the investigator wrote to the plaintiff referring to the Interim suspension decision and stated that the defendant was ‘investigating whether your ability to practise as a registered teacher is seriously detrimentally affected or likely to be seriously detrimentally affected because of an impairment’.[18] In that regard, the investigator referred to s 2.6.33B(5) of the Act and requested that the plaintiff advise whether they would agree to undergo a health assessment. The letter said that if the plaintiff refused to undergo a health assessment, the defendant ‘may refer the matter to a hearing by a medical panel’. In that connection, the letter stated –
Note: If you do not respond to this notice within 28 days, by 7 August 2023, I may make a recommendation to the Institute that this matter be referred to a hearing by a medical panel for determination (as discussed above).[19]
[18]RCB 285-287.
[19]RCB 287 (emphasis in original).
On 27 July 2023, the Chief Executive Officer of the defendant determined that the interim suspension should be continued. In that regard, by way of the First Notice of Determination to Continue Interim Suspension of Registration dated 27 July 2023 (‘First continuation decision’), the Chief Executive Officer acknowledged the letter of Mr Veevers, and the plaintiff’s submissions, and noted that the plaintiff had been asked to undergo a health assessment.[20] Among other things, the First continuation decision stated –
[20]RCB 38-42.
a. The information before the Institute suggests that you may be suffering from an impairment that seriously detrimentally affects your ability to perform the duties of a teacher.
b. Although the Institute acknowledges that you have provided a report from your psychologist that deems you currently fit to teach, the information provided does not address the following:
i. Whether you have an impairment and whether you are currently being treated for an impairment.
ii. There are differences of opinion between the diagnosis provided by Dr Glowinski’s [sic] and by Mr Veevers and therefore the Institute is not sufficiently satisfied of the extent of your possible impairment.[21]
[21]RCB 41.
On 2 August 2023, Mr Veevers wrote to the investigator concerning the First continuation decision. Mr Veevers took issue with the above statements and responded as follows –
… it is my view that Ms Brissenden is not suffering from a condition that places children in an unprotected or unsafe position. … it is my view that Ms Brissenden is not suffering from a condition that seriously detrimentally affects her ability to perform the duties of a teacher. Indeed I have not diagnosed Ms Brissenden with a serious mental health condition, and I don’t have any reason to doubt her judgement in relation to children’s safety and wellbeing.
… apart from the IME report in which Dr Glowinski made a hypothesis or provisional diagnosis, to my knowledge Ms Brissenden has never been diagnosed with a severe mental disorder, or any condition, or impairment that might be considered a reason for being deemed unfit for work, as a teacher or in any other role for which she is qualified, or for working safely with children. In eleven years of consultation with Ms Brissenden there has, to my knowledge, been no incident that suggested that children had been placed in any danger whatsoever.
… there are differences of opinion between the two reports [ie, that of Dr Glowinski and the earlier letter of Mr Veevers], however I have not made a formal diagnosis of a mental health disorder, and I believe from my reading of Dr Glowinski’s IME report that he too has only suggested what he believes the most likely diagnosis is on the basis of his assessment. …[22]
[22]RCB 175.
In Mr Veevers’ opinion, the plaintiff was ‘fit to work and [did] not pose a risk to anyone’s safety’.[23]
[23]RCB 176.
By letter addressed to the investigator dated 7 August 2023, Michael McIver, Manager of the Industrial Department of the Victorian Branch of the Australian Education Union confirmed, among other things, that –
(a) he acted on behalf of the plaintiff;
(b) the decision to suspend the plaintiff had been made without any notice to them or any opportunity to respond to the matters relevant to that decision;
(c) although the Interim suspension decision had referred to a ‘Notice of Investigation’, no such notice had, in fact, been enclosed;
(d) the First continuation decision was ‘a template document that, in large part, rehashes material from the [Interim] Suspension Decision’;
(e) the investigator had been provided with the two reports of Mr Veevers (dated 29 June 2023 and 2 August 2023, respectively);
(f) Federal Court and High Court authority emphasised the importance of giving genuine consideration to the human consequences of decision making;
(g) in circumstances in which no notice of investigation had been served, it was not clear that the defendant was empowered to request that the plaintiff undergo a health assessment and so should reconsider its request;
(h) the plaintiff would be prepared to undergo a health assessment with either of two named psychiatrists; and
(i) however, the evidence already before the defendant was ‘more than sufficient to satisfy you that [Mx] Brissenden’s ability to practise as a registered teacher is not seriously detrimentally affected’.[24]
[24]RCB 161-166.
The following day, 8 August 2023, the investigator responded by emailing a letter to Mr McIver enclosing a ‘Notice of Investigation’ and extending time for the plaintiff to respond to the request to undergo a health assessment for a further 28 days, to 4 September 2023.[25]
[25]RCB 306-309.
On 24 August 2023, the defendant again determined that the interim suspension should be continued and issued the Second Notice of Determination to Continue Interim Suspension of Registration (‘Second continuation decision’).[26] The Second continuation decision stated, among other things, that the defendant had determined that the plaintiff continued to pose an unacceptable risk of harm to children. In that connection, it stated –
[26]RCB 44-50.
a. You were referred to an IME with Dr Glowinski as a result of serious concerns raised by your employer in relation to your behaviour as a teacher, including your interactions with students, parents, colleagues and leadership. Dr Glowinski found your behaviour during the IME to be consistent with those concerns. The Institute is concerned that these behaviours, which include crying, screaming and banging your head, indicate that you may be unable to emotionally self-regulate and, if displayed in the classroom, may place students at risk of emotional and psychological harm.
b. Dr Glowinski found that you presented in an acutely disturbed psychiatric state. He found your presentation during the interview to be so disturbed that it was hard to conceive of you engage [sic: engaging] in work and behaving professionally with colleagues and students. Dr Glowinski suggested a likely diagnosis on the basis of his assessment which was that you likely had “a hypomania episode as part of a bipolar mood disorder … Acute substance intoxication is a possibility, as is an organic mood disturbance”. He concluded that you were provisionally unfit for all work, pending further psychiatric assessment and treatment. This is a serious provisional diagnosis which demonstrates that you may be suffering from an impairment which significantly detrimentally affects, or is likely to significantly detrimentally affect, your ability to perform the duties of a teacher.
c. The Institute accepts that it is Mr Veevers’ opinion that you are not suffering from any diagnosed mental health condition. It also accepts that Mr Veevers is a clinical psychologist of significant experience with an extensive history of engagement with you. However, Dr Glowinski’s report of your behaviour at the IME is extremely serious and is consistent with the observations of your employer with respect to your behaviour at the School. In light of the concerns expressed by your employer and Dr Glowinski’s observations and assessment, the evidence of Mr Veevers is, in itself, insufficient to allay the Institute’s serious concerns regarding a possible psychiatric diagnosis. The Institute requires that you undertake further psychiatric assessment (and, if appropriate, treatment) as recommended by Dr Glowinski.
d. For this purposes, the Institute has requested you to undergo a health assessment.
e. This information demonstrates that there is a risk that you may be unable or unwilling to comply with the Victorian Teaching Profession’s Codes of Conduct …[27]
[27]RCB 48-49 (emphasis added).
A pattern thereafter developed, the substance of which came to be seen in many of the months which followed –
(a) Mr McIver responded by letter dated 4 September 2023 which advanced various submissions;[28] and
(b) a further continuation decision was made by the defendant on 21 September 2023 (‘Third continuation decision’) in which, among other things, reference was made to the fact that submissions had been made, and otherwise restating much of that which had gone before with little or no alteration.[29]
[28]RCB 310-312.
[29]RCB 52-58.
In that regard, the defendant has since made further continuation decisions, essentially monthly. To the date of trial, 15 such decisions had been made.[30]
[30]In that regard, see Fourth Notice of Determination to Continue Interim Suspension of Registration dated 20 October 2023 (RCB 60-67), Fifth Notice of Determination to Continue Interim Suspension of Registration dated 16 November 2023 (RCB 71-78), Sixth Notice of Determination to Continue Interim Suspension of Registration dated 15 December 2023 (RCB 80-87), Seventh Notice of Determination to Continue Interim Suspension of Registration dated 12 January 2024 (RCB 89-96), Eighth Notice of Determination to Continue Interim Suspension of Registration dated 9 February 2024 (RCB 100-107), Ninth Notice of Determination to Continue Interim Suspension of Registration dated 8 March 2024 (RCB 109-116), Tenth Notice of Determination to Continue Interim Suspension of Registration dated 4 April 2024 (RCB 119-126), Eleventh Notice of Determination to Continue Interim Suspension of Registration dated 2 May 2024 (RCB 128-136), Twelfth Notice of Determination to Continue Interim Suspension of Registration dated 30 May 2024 (RCB 138-146), Thirteenth Notice of Determination to Continue Interim Suspension of Registration dated 28 June 2024 (RCB 255-263), Fourteenth Notice of Determination to Continue Interim Suspension of Registration dated 26 July 2024 (RCB 185-194) and Fifteenth Notice of Determination to Continue Interim Suspension of Registration dated 22 August 2024 (RCB 216-225).
In respect of the proposed health assessment, although Mr McIver provided the names of two psychiatrists on 7 August 2023, the defendant seems to have been still considering that proposal nearly 6 weeks later, on 21 September 2023.[31]
[31]RCB 56.
Roughly 3 weeks after that, on 9 October 2023, the investigator wrote to Mr McIver to notify him that the defendant would make inquiries with the two psychiatrists ‘to ascertain whether they are willing and able to undertake the required assessment’.[32] The investigator’s letters to those psychiatrists are each dated a further 9 days later, on 18 October 2023.[33]
[32]RCB 313.
[33]RCB 314-317.
On 17 November 2023, the investigator wrote to Mr McIver to advise that one of the proposed psychiatrists no longer did ‘fitness for duty assessments’ and the other had not responded. Among other things, the investigator requested that the plaintiff nominate ‘two alternative independent medical assessment providers’.[34] That letter attached notice of a further continuation decision made on 16 November 2023 (‘Fifth continuation decision’).[35]
[34]RCB 69.
[35]See RCB 71-78.
It is not clear what, if anything, relevantly occurred between that date and 9 February 2024, although Mr McIver seems to have raised concerns in relation to the provisions of the Health Records Act 2001 (Vic) and the collection of the plaintiff’s ‘health information’.[36]
[36]See RCB 84, 98.
In any event, on 9 February 2024 the investigator wrote as follows –
The Institute has repeated, on a number of occasions, its request to refer Ms Brissenden for an independent medical examination. As you are aware, the Institute is awaiting:
a. Written consent from Ms Brissenden to undergo an independent medical examination;
b. Written consent from Ms Brissenden to release her medical information for the purposes of the independent medical examination; and
c. Nomination, in writing, of two alternative independent medical assessment providers, noting that her previously selected providers are variously unable to perform the assessment or uncontactable.
The Institute has not received a response from you, and in an effort to expedite the matter, invites you to meet with two representatives of the Institute online or in person. We request a response to this invitation within 7 days. If a response is not received, the matter will be listed for a Medical Panel Hearing.[37]
[37]RCB 98-99 (emphasis in original).
That letter did not refer to, but may have enclosed, the Eighth Notice of Determination to Continue Interim Suspension of Registration, also dated 9 February 2024 (‘Eighth continuation decision’).[38]
[38]See RCB 100-107.
That letter provoked a detailed response from Mr McIver on 19 February 2024. Among other things, he said that it would be ‘useful to have a meeting’ and that while he had been asserting the plaintiff’s rights in respect of the collection of health information, it should not be considered that the plaintiff was failing to cooperate with the defendant or refusing to attend a medical assessment.[39]
[39]RCB 320-324.
There seems then to have been a further delay before the investigator responded by letter on 5 April 2024, in which she proposed certain dates and times in April to meet with Mr McIver and the plaintiff.[40]
[40]RCB 118.
Further time then passed until 5 May 2024, when Mr McIver proposed certain times and dates in May on which he and the plaintiff would be available to meet.[41]
[41]RCB 338.
For the most part, the proposed dates passed without response from the defendant, as the investigator to that point seems to have left and been replaced by another investigator who responded on 29 May 2024 proposing dates in June.[42]
[42]RCB 337-338.
Shortly thereafter, the plaintiff commenced these proceedings by originating motion.
In that setting, there was some further correspondence between Mr McIver and the investigator, including in relation to arranging a meeting on 20 June 2024.[43]
[43]See RCB 326-338.
On 19 June 2024, Mr McIver suggested Dr Deepinder Miller for the proposed health assessment, and the investigator responded the same day indicating the agreement of the defendant. In the same exchange of correspondence, Mr McIver and the investigator agreed to cancel their scheduled meeting as it appears they believed it was unnecessary given the agreement reached in relation to Dr Miller.[44]
[44]RCB 335-338.
During the hearing, I was told that it had been arranged that the plaintiff would attend Dr Miller for assessment on 23 September 2024.[45]
[45]Transcript (‘T’) T30-31
More broadly, counsel for the defendant acknowledged that the ‘process’ had ‘dragged on for a significant period of time’, but said that the defendant had sought to ‘work collaboratively’ with the plaintiff.[46]
[46]T28-30.
Whatever else might be said about that submission –
(a) the relevant provisions of the Act strictly require that if an ‘interim’ suspension is imposed, it must be reviewed at least every 30 days thereafter;[47]
[47]Act (n 1) ss 2.6.28A, 2.6.28E.
(b) if the person concerned makes submissions about any continuation of the suspension, the defendant ‘must’ take those submissions into account in determining whether or not to continue the suspension;[48]
[48]Act (n 1) ss 2.6.28D, 2.6.28E(2).
(c) if the defendant no longer has the reasonable belief required by the provisions of the Act, the suspension ‘must’ be revoked;[49]
[49]Ibid s 2.6.28G(1).
(d) further, upon imposition of an interim suspension, the defendant ‘must’ investigate ‘as soon as practicable’ thereafter;[50]
[50]Ibid s 2.6.33A(2).
(e) in that regard, an investigator may require a person to give stated information, attend before the investigator and answer questions, and may ask the person being investigated to undergo a health assessment ‘within 28 days after receiving the notice’;[51]
(f) such an investigation ‘must be conducted as quickly as practicable having regard to the nature of the matter being investigated’;[52] and
(g) the defendant must, at intervals of not more than 3 months, report to the person being investigated concerning the ‘progress of the investigation’.[53]
[51]Act (n 1) s 2.6.33C(a)-(b).
[52]Ibid s 2.6.33D(1).
[53]Ibid s 2.6.33D(2)(b).
In contrast to the expedition contemplated by the statutory scheme –
(a) the Department notified the defendant on 22 March 2023, and the basis for that notification seems largely to have been the report of Dr Glowinski obtained in November 2022;[54]
[54]RCB 233.
(b) the defendant thereafter conducted a ‘preliminary assessment’[55] – but did not notify the plaintiff of it, or of the outcome;[56]
[55]PAR (n 9).
[56]See, eg, T18. See also Act (n 1) ss 2.6.31(2)(a), 2.6.32(2)(a). It is not evident that the defendant held any of the states of reasonable belief referred to in s 2.6.31(3).
(c) an interim suspension was imposed by the defendant on 27 June 2023, based almost if not entirely upon the report of Dr Glowinski, and the covering letter stated that an investigation would be conducted – although no notice of investigation was attached;
(d) on 10 July 2023, the defendant asked the plaintiff if they would undergo a health assessment;
(e) no such health assessment was, in fact, arranged until very recently, and that is for an assessment by Dr Miller on 23 September 2024 – which is more than one year and two months after the defendant made its initial request;
(f) in the meantime, notwithstanding the opinions of Mr Veevers, and other material provided by the plaintiff, the ‘interim’ suspension has been ‘continued’ on some 15 occasions;
(g) in that regard, counsel for the defendant acknowledged that the defendant ‘has remade the decision on each occasion with largely the same evidence’ because, it was said, ‘no further evidence has been adduced’;[57]
[57]T28. As to the submission that ‘no further evidence has been adduced’, the plaintiff has, of course, ‘adduced’ the two letters from Mr Veevers dated 29 June 2023 and 2 August 2023, and other material, and the defendant has not sought to ‘adduce’ any ‘further evidence’ from the plaintiff, Mr Veevers or, for that matter, Dr Glowinski.
(h) as to the investigation, formal notice was served on 8 August 2023 and, among other things, it stated –
Please note that the purpose of the investigation will be to gather evidence to either prove or disprove the allegations that you may lack the fitness to hold a teaching registration. You will be provided with an opportunity to participate in a recorded … interview or an opportunity to respond to more detailed allegations in writing.[58]
[58]RCB 306-7.
(i) it is not apparent that the plaintiff was ever asked to participate in a recorded interview, or given an opportunity to respond to more detailed written allegations;
(j) notwithstanding the terms of the notice of investigation, and the suggestion in written submissions that the investigation is ‘ongoing’,[59] when asked what was actually being done, counsel for the defendant said that the ‘next’ and ‘key’ step was the assessment by Dr Miller arranged to take place on 23 September 2024;[60]
(k) it follows that barely anything has been done by the defendant in respect of the investigation for more than a year – albeit that the Act requires that such an investigation be commenced as soon as practicable after suspending the person’s registration and thereafter conducted expeditiously;[61] and
(l) the material in evidence does not refer to or suggest that any three monthly reports have ever been given to the plaintiff concerning the progress of the investigation.[62]
[59]RCB 384 [13].
[60]T105-6.
[61]Act (n 1) ss 2.6.33A, 2.6.33D.
[62]Cf Act (n 1) s 2.6.33D(2).
In short, even if the best of intentions were presently to be accepted (about which I express no view), events have unfolded in an extraordinarily languid manner that, in several respects, seem to have been at significant variance from the applicable provisions of the Act.
B. The proceeding
As I have noted, on 31 May 2024 the plaintiff commenced proceedings by originating motion seeking judicial review.
To the extent required, the plaintiff sought an order extending time. By consent, Daly AsJ made such an order on 7 August 2024.
In light of the fact that continuation decisions have continued to be made, Daly AsJ granted leave to the plaintiff to amend their originating motion. Such leave was further granted during the hearing on 5 September 2024, and subsequently.
In that context, the plaintiff presently relies upon a second further amended originating motion for judicial review in which the grounds relied upon are articulated as follows –
Initial suspension decision
No lawful preliminary assessment
1.Section 2.6.31 of the Education and Training Reform Act 2006 (Vic) required the defendant to conduct a lawful “preliminary assessment” as a statutory pre-condition to the lawful exercise of power under s 2.6.28 of the Education and Training Reform Act 2006 (Vic).
2. The defendant did not conduct a lawful “preliminary assessment” prior to purporting to make the initial suspension decision because there was a requirement that, in conducting a lawful “preliminary assessment”, the defendant comply with the obligation in s 2.6.31(2) of the Education and Training Reform Act 2006 (Vic) to give notice to the plaintiff and provide them with procedural fairness. The defendant failed to comply with the obligation in s 2.6.31(2) of the Education and Training Reform Act 2006 (Vic) to give notice to the plaintiff and to provide them with procedural fairness.
3. In the absence of a lawful “preliminary assessment” having been conducted, the defendant did not have the power to make the initial suspension decision.
4. As a consequence, the initial suspension decision was infected with jurisdictional error and/or unlawful.
Continuation decisions
8. Further, given that the defendant did not have the power to make the initial suspension decision, the defendant also did not have the power pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) to determine to “continue” any suspension (as there was, at law, no decision to suspend and no suspension to “continue”).
9. As a consequence, the continuation decisions were infected with jurisdictional error and/or unlawful.
27 July 2023 continuation decision
9A.Further and/or in the alternative to paragraphs 8 to 9 above, in making the 27 July 2023 continuation decision, the defendant committed jurisdictional error by failing to provide the plaintiff with procedural fairness. The defendant failed to provide the plaintiff with a copy of the Institute’s internal briefing “Preliminary Assessment Report” dated 21 June 2023 (Preliminary Assessment Report) and/or the information contained therein that was adverse to Mx Brissenden, as well as the annexures referred to in the Preliminary Assessment Report (contained in UC-5 to the Affidavit of Umeya Chaudhuri dated 4 September 2024) containing information that was adverse to Mx Brissenden, prior to making the 27 July 2023 continuation decision.
9B.As a consequence, the 27 July 2023 continuation decision was infected with jurisdictional error and/or unlawful.
4 April 2024 continuation decision
Failure to provide procedural fairness
10. Further and/or in the alternative to paragraphs 8 to 9B above, in making the 4 April 2024 continuation decision, the defendant erred by failing to provide the plaintiff with procedural fairness. At paragraphs 16 to 17 of the 4 April 2024 continuation decision, the defendant referred to information adverse to the plaintiff that the defendant relied on in purporting to exercise power pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic). The defendant was required, but failed, to provide particulars of that adverse information to the plaintiff and give them an opportunity to comment on it prior to making the 4 April 2024 continuation decision.
No suspension to continue as at 4 April 2024
10A.Further and/or in the alternative to paragraphs 8 to 9 above, by reason of paragraphs 9A and 9B above, the defendant did not on 4 April 2024 have the power to determine to “continue” any suspension pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) in circumstances where the 27 July 2023 continuation decision was infected with jurisdictional error (and there was, at law, no suspension to “continue” on 4 April 2024).
11.As a consequence, the 4 April 2024 continuation decision was infected with jurisdictional error and/or unlawful.
2 May 2024 continuation decision
No suspension to continue as at 2 May 2024
12. Further and/or in the alternative to paragraphs 8 to 9 above, by reason of paragraphs 10 and 11 above, the defendant did not on 2 May 2024 have the power to determine to “continue” any suspension pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) in circumstances where the 4 April 2024 continuation decision was infected with jurisdictional error (and there was, at law, no suspension to “continue” on 2 May 2024).
13.As a consequence, the 2 May 2024 continuation decision was infected with jurisdictional error and/or unlawful.
30 May 2024 continuation decision
No suspension to continue as at 30 May 2024
14. Further and/or in the alternative to paragraphs 8 to 9 above, by reason of paragraphs
109A to 13 above, the defendant did not on 30 May 2024 have the power to determine to “continue” any suspension pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) in circumstances where the 4 April 2024 continuation decision and/or the 2 May 2024 continuation decision was infected with jurisdictional error (and there was, at law, no suspension to “continue” on 30 May 2024).15. As a consequence, the 30 May 2024 continuation decision was infected with jurisdictional error and/or unlawful.
Error regarding state of reasonable belief
16. Further and/or in the alternative to paragraphs 8 to 9 and 14 to 15 above, in making the 30 May 2024 continuation decision, the defendant erred in purporting to reach a state of reasonable belief that the plaintiff continued to pose an unacceptable risk of harm to children and that the suspension was necessary to protect children.
17. As a consequence, the 30 May 2024 continuation decision was infected with jurisdictional error and/or unlawful.
28 June 2024 continuation decision
No suspension to continue as at 28 June 2024
18. Further and/or in the alternative to paragraphs 8 to 9 above, by reason of paragraphs
109A to 17 above, the defendant did not on 28 June 2024 have the power to determine to “continue” any suspension pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) in circumstances where the 27 July 2023 continuation decision, 4 April 2024 continuation decision and/or the 2 May 2024 continuation decision and/or the 30 May 2024 continuation decision was infected with jurisdictional error (and there was, at law, no suspension to “continue” on 28 June 2024).19. As a consequence, the 28 June 2024 continuation decision was infected with jurisdictional error and/or unlawful.
Error regarding state of reasonable belief
20. Further and/or in the alternative to paragraphs 8 to 9 and 18 to 19 above, in making the 28 June 2024 continuation decision, the defendant erred in purporting to reach a state of reasonable belief that the plaintiff continued to pose an unacceptable risk of harm to children and that the suspension was necessary to protect children.
21. As a consequence, the 28 June 2024 continuation decision was infected with jurisdictional error and/or unlawful.
26 July 2024 continuation decision
No suspension to continue as at 26 July 2024
22. Further and/or in the alternative to paragraphs 8 to 9 above, by reason of paragraphs
109A to 21 above, the defendant did not on 26 July 2024 have the power to determine to “continue” any suspension pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) in circumstances where the 27 July 2024 continuation decision, the 4 April 2024 continuation decision and/or the 2 May 2024 continuation decision and/or the 30 May 2024 continuation decision and/or the 28 June 2024 continuation decision was infected with jurisdictional error (and there was, at law, no suspension to “continue” on 26 July 2024).23.As a consequence, the 26 July 2024 continuation decision was infected with jurisdictional error and/or unlawful.
Error regarding state of reasonable belief
24. Further and/or in the alternative to paragraphs 8 to 9 and 22 to 23 above, in making the 26 July 2024 continuation decision, the defendant erred in purporting to reach a state of reasonable belief that the plaintiff continued to pose an unacceptable risk of harm to children and that the suspension was necessary to protect children.
25. As a consequence, the 26 July 2024 continuation decision was infected with jurisdictional error and/or unlawful.
Failure to take into account mandatory relevant consideration
26. Further and/or in the alternative to paragraphs 8 to 9, 22 to 23 and 24 to 25 above, in making the 26 July 2024 continuation decision, by failing to consider the plaintiff’s submission dated 23 July 2024 the defendant erred by failing to take into account mandatory relevant consideration and/or contravened s 2.6.28E(2) of the ETR Act.
27. As a consequence, the 26 July 2024 continuation decision was infected with jurisdictional error and/or unlawful.
22 August 2024 continuation decision
No suspension to continue as at 22 August 2024
28. Further and/or in the alternative to paragraphs 8 to 9 above, by reason of paragraphs
109A to 27 above, the defendant did not on 22 August 2024 have the power to determine to “continue” any suspension pursuant to s 2.6.28E of the Education and Training Reform Act 2006 (Vic) in circumstances where the 27 July 2023 continuation decision, the 4 April 2024 continuation decision and/or the 2 May 2024 continuation decision and/or the 30 May 2024 continuation decision and/or the 28 June 2024 continuation decision and/or the 26 July 2024 continuation decision was infected with jurisdictional error (and there was, at law, no suspension to “continue” on 22 August 2024).29. As a consequence, the 22 August 2024 continuation decision was infected with jurisdictional error and/or unlawful.
Error regarding state of reasonable belief
30. Further and/or in the alternative to paragraphs 8 to 9 and 28 to 29 above, in making the 22 August 2024 continuation decision, the defendant erred in purporting to reach a state of reasonable belief that the plaintiff continued to pose an unacceptable risk of harm to children and that the suspension was necessary to protect children.
31. As a consequence, the 22 August 2024 continuation decision was infected with jurisdictional error and/or unlawful.
For the most part, the grounds were addressed by the parties in lengthy (and helpful) written submissions.
In oral argument, counsel for the plaintiff condensed the various grounds and associated arguments into seven contested issues, namely –
(1) whether the conduct of a ‘lawful preliminary assessment’ is a statutory precondition to the exercise of the power to suspend;
(2) whether, in failing to conduct a preliminary assessment that satisfied the obligation of procedural fairness, the defendant failed to conduct a lawful preliminary assessment;
(3) whether, in failing to produce the ‘preliminary assessment report’ prior to the First continuation decision dated 27 July 2023, the defendant denied the plaintiff procedural fairness;
(4) whether, in light of the above claimed error or errors, the interim suspension decision and/or all subsequent continuation decisions were thereafter ‘infected’ and unlawful;
(5) whether the defendant denied the plaintiff procedural fairness in respect of the Tenth Notice of Determination to continue Interim Suspension of Registration dated 4 April 2024 (‘Tenth continuation decision’);[63]
(6) whether the defendant erred in failing to form a reasonable belief in respect of the Twelfth Notice of Determination to continue Interim Suspension of Registration dated 30 May 2024 (‘Twelfth continuation decision’)[64] as well as the three further continuation decisions made thereafter;[65] and
(7) whether the defendant erred in failing to take account of certain submissions advanced by Mr McIver on behalf of the plaintiff prior to the Fourteenth Notice of Determination to continue Interim Suspension of Registration dated 26 July 2024 (‘Fourteenth continuation decision’).[66]
[63]RCB 119-126.
[64]RCB 138-146.
[65]RCB 255-263, 185-194, 216-225.
[66]T31-34.
The argument of the defendant was not tailored directly to the seven issues identified orally by counsel for the plaintiff. However, the defendant’s stance in respect of each of those issues was clear enough.
In that connection, counsel for the defendant variously submitted that –
(a) it was always the defendant’s case that a preliminary assessment had been undertaken, but a ‘forensic decision’ had been taken ‘not to put [the report] into evidence’;[67]
[67]T14-15. In that regard, counsel later described the preliminary assessment report as a ‘confidential internal document’: T17. See also T18-19.
(b) regardless of whether or how a preliminary assessment was undertaken, it was not a statutory precondition to the exercise of the defendant’s power to suspend the plaintiff’s registration;[68]
[68]T88.
(c) procedural fairness did not require that the preliminary assessment report be produced in connection with the preliminary assessment or the suspension of the plaintiff’s registration;[69]
[69]T17.
(d) in particular, the report did not need to be provided so long as ‘the substance of the report was communicated in the decision and in subsequent decisions’;[70]
[70]T115.
(e) that said, not everything in the preliminary assessment report made its way into the Interim suspension decision;[71]
[71]T114.
(f) if there was a defect in the process of preliminary assessment, that would not invalidate any subsequent decision of the defendant to impose a suspension;[72]
[72]T94-95.
(g) as to suspension, the system was ‘suspend first, investigate and provide procedural fairness later’;[73]
[73]T92.
(h) procedural fairness did not require the plaintiff to be heard prior to an interim suspension decision being made as there is a right to make submissions in relation to an interim suspension ‘after it has been made’, and those provisions constitute a ‘comprehensive code … for the requirements for procedural fairness in respect of an interim [suspension] decision’;[74]
[74]T95, T98, T101. Counsel later described the process as ‘fundamentally ... a reactive opportunity to respond’: T108.
(i) such a construction could mean that a suspended teacher might never be heard in advance about the precise basis for each such decision, but the alternative was ‘procedurally unworkable’;[75]
[75]T103-105.
(j) in that connection, a decision to continue suspension involves ‘remaking [the decision] on each occasion’, and it was not for the plaintiff to displace any previous decision;[76]
[76]T27-28.
(k) it followed that any error in respect of an earlier decision could be ‘cured’ by a subsequent decision;[77]
[77]T112.
(l) however, it was accepted that if the defendant was required to give the plaintiff the preliminary assessment report, that would affect ‘every decision’;[78]
[78]T113.
(m) it was not said that the Interim suspension decision was made in urgent circumstances;[79]
[79]T99.
(n) even if there had been a denial of procedural fairness, it was not material as –
… when Mx Brissenden subsequently had the opportunity to make submissions and present evidence, the decisionmaker did consider those and came to the same conclusion.[80]
[80]T111. See also T116-117.
(o) as to the health assessment, there had been an ‘extended period of back and forth’[81];
(p) as to the asserted failures to form a reasonable belief, counsel was content to rely upon the defendant’s written submissions;[82] and
(q) the submissions which the plaintiff said the defendant had failed to take into account were matters of law and any failure would not entitle the plaintiff to relief.[83]
[81]T21.
[82]T119-120.
[83]T120-121.
As to relief –
(a) counsel for the plaintiff confirmed that it was sought that the relevant decision or decisions be quashed and remitted to the decision maker to be determined according to law;[84] and
(b) among other things, counsel for the defendant contended that there would be no utility in remitting the matter back to defendant to remake the decision if ‘the decision is inevitably going to be the same’.[85]
[84]T132.
[85]T122.
In that context, both parties referred to the plaintiff’s appointment with Dr Miller on 23 September 2024. Counsel for the defendant did not submit that any present consequence of that should be that relief is refused.[86] However, it was clear enough that both parties were seeking that the proceeding be determined as soon as practicable, if possible.[87]
[86]T122-123.
[87]See T122-123, T132-134.
C. The relevant statutory provisions
As I have earlier noted, Part 2.6 of the Act concerns the defendant.
In that regard –
(a) Division 3 concerns the registration of teachers; and
(b) Division 8 concerns the suspension of registration.
Division 8A is entitled ‘Interim suspension of registration’ and was inserted into the Act in 2016.[88] Division 8A contains the following presently relevant provisions –
[88]Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016 (Vic).
2.6.28Institute may suspend registration where unacceptable risk of harm to children
(1)The Institute may suspend any or all registrations held by a person under this Part if the Institute reasonably believes that—
(a)the person poses an unacceptable risk of harm to children; and
(b) the suspension is necessary to protect children.
(2)A suspension under this Division takes effect on the day the person is served with a written notice under section 2.6.28A or, if any later day is specified in the notice, on that day.
2.6.28A Notice of interim suspension of registration
If the Institute decides to suspend a person's registration under this Division it must serve a written notice on the person containing the following—
(a)that the person's registration is suspended;
(b) the date on which the suspension takes effect (which must be no earlier that the date that the notice is served);
(c) the reasons for the suspension and the information on which the Institute has based its decision;
(d) the date on which the Institute will review the basis of the suspension.
(e) that the Institute must under section 2.6.28E review the basis for the suspension at least every 30 days after the date of the first review;
(f) that the person may make written submissions to the Institute at any time regarding the continuation of the suspension.
2.6.28B Institute must notify persons of interim suspension
(1) The Institute must serve a written notice on any person employing the person subject to a suspension under this Division as a teacher or an early childhood teacher containing the following—
(a)that the employed person's registration is suspended;
(b) the date on which the suspension takes effect.
(2) A notice under subsection (1) must be served on the same day a notice is served on the employed person under section 2.6.28A or, if it is not reasonably possible to do so, as soon as practicable after that day.
(3) The validity of a suspension under this Division is not affected by any failure to serve a notice under subsection (1).
(4) The Institute must give a copy of a notice served under subsection 2.6.28A to the Secretary within the meaning of the Worker Screening Act 2020.
…
2.6.28DPerson subject to interim suspension may make submissions to Institute
A person whose registration is suspended under this Division may make written submissions to the Institute at any time regarding the continuation of the suspension.
2.6.28E Periodic review of interim suspension
(1) The Institute must review the basis for the suspension of a person's registration under this Division within 30 days after the suspension takes effect and within 30 days after that review and every successive review in order to determine whether or not to continue that suspension.
(2) The Institute must take into account any submission provided under section 2.6.28D in determining whether or not to continue the suspension.
(3) The Institute may take into account any matter it considers to be relevant in determining whether or not to continue the suspension.
(4) The Institute may determine to continue the suspension if it reasonably believes that—
(a)the person continues to pose an unacceptable risk of harm to children; and
(b) the suspension is necessary to protect children.
2.6.28F Notice of determination to continue interim suspension
If the Institute determines to continue the suspension of the person's registration it must serve a written notice on the person containing the following—
(a) that the person's registration continues to be suspended;
(b) the reasons for continuing the suspension and the information on which the Institute based its decision;
(c) the date on which the Institute will next review the suspension;
(d) that the person may make written submissions to the Institute at any time regarding the continuation of the suspension.
2.6.28G Revocation of interim suspension
(1) The Institute must revoke the suspension of a person's registration under this Division if the Institute no longer reasonably believes that—
(a) the person poses an unacceptable risk of harm to children; and
(b) the suspension is necessary to protect children.
(2)The revocation of the suspension of a person's registration under this section does not affect an investigation conducted under this Part that has commenced in relation to the person.
Division 10 is entitled ‘Notifications and complaints about registered teachers’ and was substituted into the Act by amendment in 2021.[89]
[89]Education and Training Reform Amendment (Miscellaneous) Act 2021 (Vic).
The same amending Act inserted Division 10A, entitled ‘Preliminary assessments’. Division 10A contains the following presently relevant provisions –
2.6.31 Institute to conduct preliminary assessment
(1)The Institute must conduct a preliminary assessment of a notification or complaint.
(2) The Institute, by written notice, must advise the following that the Institute is conducting a preliminary assessment—
(a)the registered teacher who is the subject of the notification or complaint;
(b) the person or body that made the notification or complaint.
(3) Despite subsection (2), the Institute is not required to give written notice under subsection (2) if the Institute reasonably believes that doing so may—
(a)seriously prejudice any investigation of the notification or complaint; or
(b) place at risk a person's health or safety; or
(c) place a person at risk of harassment or intimidation.
(4)For the purposes of conducting a preliminary assessment under subsection (1), the Institute, in writing, may require the following to provide further information within a specified period—
(a)the registered teacher who is the subject of the notification or complaint;
(b) the person or body that made the notification or complaint;
(c) any person who may have information relevant to the notification or complaint.
(5) The Institute may use any information obtained in the course of conducting a preliminary assessment for the purposes of—
(a)considering the notification or complaint; or
(b) conducting an investigation under Division 11; or
(c) performing its functions under this Part.
2.6.32 Outcome of preliminary assessment
(1)On completing a preliminary assessment of a notification or complaint, the Institute may—
(a)decide to conduct an investigation under Division 11; or
(b) decide to take any other action required or authorised to be taken under this Part; or
(c) decide to take no further action if the Institute is satisfied that—
(i) the notification or complaint is vexatious, frivolous, misconceived or lacking in substance; or
(ii) the person or body that made the notification or complaint has not responded, or has responded inadequately, to a requirement for further information under section 2.6.31(2); or
(iii) the employer or another person has already dealt adequately with the subject matter of the notification or complaint.
(2) The Institute, by written notice, must advise the following of the outcome of a preliminary assessment—
(a) the registered teacher who is the subject of the notification or complaint;
(b) the person or body that made the notification or complaint;
(c) the employer of the registered teacher, unless the Institute decides to take no further action under subsection (1)(c).
(3)Despite subsection (2), the Institute is not required to give written notice under subsection (2) if the Institute reasonably believes that doing so may—
(a)seriously prejudice any investigation of the notification or complaint; or
(b) place at risk a person's health or safety; or
(c)place a person at risk of harassment or intimidation.
In addition –
(a) Division 11 concerns the conduct of investigations, including investigations following suspension;
(b) Division 11A is entitled ‘Health assessments’;
(c) Division 12 concerns hearing panel hearings, particularly informal hearings, medical panel hearings and formal hearings; and
(d) Division 13 contains general provisions relating to investigations, hearings and determinations.
For completeness, Division 14 contains provisions which entitle a person to apply to the Victorian Civil and Administrative Tribunal for review of a determination refusing a person’s application for registration, or a determination cancelling or suspending a person’s registration.
D. Issue 1: ‘Statutory precondition’
The plaintiff contends that a ‘lawful’ preliminary assessment was a statutory precondition to the exercise by the defendant of the power to impose an interim suspension upon their registration.
As I have noted, the defendant produced the relevant preliminary assessment report very shortly prior to trial.[90] Indeed, the signed version of that report came to be produced during oral argument.[91]
[90]Exhibit P2: Fifth affidavit of Umeya Chaudhuri affirmed 4 September 2024, [10].
[91]PAR (n 9).
There was an issue concerning the belated production of that report. Several contentions were exchanged. Among other things, counsel for the defendant sought to defend the ‘forensic decision’ not to produce the report as an appropriate course to adopt in respect of a ‘confidential internal document’.[92]
[92]T15-19.
The preliminary assessment report is marked neither ‘confidential’ nor ‘internal’. More importantly, however –
(a) unless the defendant held one of several reasonable beliefs identified in ss 2.6.31(3) and 2.6.32(3) of the Act (of which, in each case, there was no evidence) –
(i) s 2.6.31(2)(a) of the Act required that the plaintiff be notified, in writing, that the defendant was conducting a preliminary assessment of a notification or complaint – which did not occur; and
(ii) s 2.6.32(2)(a) of the Act required that the plaintiff be notified, in writing, ‘of the outcome of a preliminary assessment’ – which also did not occur;
(b) in the circumstances, it was hardly surprising that when the present proceedings were commenced, a key part of the plaintiff’s first complaint was that the Act required the defendant to conduct a preliminary assessment of a notification or complaint and no such preliminary assessment had evidently been conducted;
(c) a complete answer to that contention would always have been to produce the preliminary assessment report – which is what ultimately occurred;
(d) instead, in affidavits sworn by an investigator who had not conducted the preliminary assessment as well as in written submissions, the defendant variously sought to assert that a preliminary assessment had been undertaken, but without actually producing the report, until that stance became unsustainable – which, it seems to me, was always inevitable.
I should not be taken to endorse the defendant’s various actions and apparent beliefs in respect of the preliminary assessment report prior to ultimately, and correctly, producing it. After all, at the very least, unless it formed one or more reasonable beliefs, of which there was no evidence that it had, the defendant had always been required by the Act to notify the plaintiff that such an assessment was being conducted, and of its outcome. Nothing further need presently be said about the matter.
In light of the sequence of events to which I have referred, the focus of the plaintiff’s argument pivoted at the commencement of the trial and came to be that no ‘lawful’ preliminary assessment had been undertaken, and that such an assessment was a ‘statutory precondition’ to an exercise by the defendant of the power to impose an interim suspension.
In emphasis, the focus of the argument – on both sides – fell upon the contention that the preliminary assessment was a ‘statutory precondition’.
The other part of the argument – that the particular preliminary assessment had not been ‘lawful’ – was developed by the plaintiff with reference to the claimed denial of procedural fairness in respect of that assessment, as well as the associated failure of the defendant to notify the plaintiff that the assessment was being conducted. Those contentions are more conveniently dealt with in connection with issues 2, 3, 4 and 5 (in part E below).
In the context described, much of the argument came to focus upon whether preliminary assessment of a notification or complaint pursuant to the provisions of Div 10A is (and so in the present case was) a ‘statutory precondition’ to the exercise of the interim suspension power pursuant to s 2.6.28 of Div 8A.
In address, counsel for the plaintiff said that reliance was primarily placed upon the statutory text,[93] and also described the issue as ‘one of [statutory] construction’.[94]
[93]T34.
[94]T41.
In that connection, counsel for the plaintiff emphasised that –
(a) the defendant was notified by the Department, and so was required by s 2.6.31(1) to conduct a preliminary investigation;
(b) section 2.6.32(1) states, relevantly –
On completing a preliminary assessment of a notification or complaint, the Institute may –
(a) decide to conduct an investigation under Division 11; or
(b) decide to take any other action required or authorised to be taken under this Part; or
(c) decide to take no further action …
(c) such language ‘has to be given some work to do’ and, it was said, ‘makes plain’ that preliminary assessment of such a notification is ‘a gateway to the [I]nstitute deciding to take any other action … [including] suspending registration under s 2.6.28’;[95]
(d) ‘swift’ action could still be taken despite the requirement for a preliminary assessment in which the person concerned was afforded an opportunity to be heard;[96] and
(e) in the present case, the defendant had acted consistently with the submissions advanced by the plaintiff.[97]
[95]T36-39. See also T42.
[96]T38-40.
[97]T41.
By contrast, counsel for the defendant emphasised the statutory structure, aspects of the statutory language and various extrinsic materials. In respect of the latter, counsel referred to material which indicates that the regime of interim suspension contemplated that ‘swift and immediate’ action may need to be taken.[98]
[98]T89-94. See also, RCB 390-392.
It is, of course, permissible to refer to extrinsic materials in order to consider whether a construction would promote the purpose or object underlying the Act.[99] That said, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ stated that –
… the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[100]
[99]Interpretation of Legislation Act 1984 (Vic), s 35.
[100](2009) 239 CLR 27 [47] (citations omitted). See also R v A2 (2019) 269 CLR 507 [32]-[37] (Kiefel CJ and Keane J) and [124] (Bell and Gageler JJ).
In the present instance, s 2.6.28(1), which is in Div 8A of the Act entitled ‘Interim suspension of registration’, states clearly the reasonable belief upon which the defendant may act to suspend a person’s registration. There is no other stated gateway or limitation.
It makes sense that such a reasonable belief should be sufficient to sponsor such action. It also makes sense that there should not be any other fetter or ‘gateway’ to such action, particularly when none is there stated.
Division 10A, entitled ‘Preliminary assessments’, was introduced by the Education and Training Reform Amendment (Miscellaneous) Act 2021 (Vic). That Act introduced and made various amendments to the Act, including a minor amendment to s 2.6.28G(2), which is within Div 8A.[101] However, no substantive amendment was effected to any part of Div 8A.
[101]See, Education and Training Reform Amendment (Miscellaneous) Act 2021 (Vic), s 20.
In respect of notifications and complaints, however, a new Div 10 was substituted, and Div 10A was inserted. By the latter, the defendant was required to conduct a preliminary assessment of notifications or complaints.
As I have earlier noted, one step which the defendant can take following preliminary assessment is to decide to take no further action if satisfied of one or more matters. In the present instance, both parties relied upon that feature for different reasons.
To me, however, the answer to the present issue lies primarily in the statutory language and structure to which I have already referred, particularly the language and structure of s 2.6.32(1).
In that regard, it may be acknowledged that –
(a) s 2.6.32(1)(b) provides that upon completion of a preliminary assessment the defendant may ‘decide to take any other action required or authorised to be taken under this Part’; and
(b) such ‘other action’ can include interim suspension under s 2.6.28(1).
However, in the circumstances described, it is hard to imagine that a provision stated in such general terms in Div 10A – and without specific reference to any particular provision within Div 8A – could be intended to have the effect of imposing a further limitation upon the circumstances in which an interim suspension could be imposed. If that had been the parliamentary intention, it is much more likely that specific amendments would have been effected to provisions within Div 8A. After all, the amending Act did make a minor amendment to one section within Div 8A; and if the suggested intention were sought to be given effect to, there is no reason why the parliament should have stopped there.
Further, the language used in s 2.6.32(1) is not suggestive of any kind of rigid ‘gateway’ by which the imposition of an interim suspension pursuant to a different provision in a different division of the Act is sought to be limited or restricted.
In that regard –
(a) the word ‘may’, in the chapeau, is indicative of broad choice rather than limitation;
(b) as I have noted, there is no specific mention of either Div 8A or s 2.6.28 in the body of s 2.6.32(1)(b); and
(c) the language ‘other action required or authorised to be taken under this Part’ tends to reference ‘authorisation’ elsewhere in Part 2.6, and does not suggest that s 2.6.32(1)(b), itself, should be taken to impose any limitation upon whether such action is ‘required or authorised to be taken’.
In addition, the preceding sub-section – s 2.6.32(1)(a) – refers, specifically, to the potential for the defendant to decide to conduct an investigation under Div 11. Division 11 is, of course, also within Part 2.6 of the Act.
It makes sense that the statute would specifically point to the potential for that step to be taken following preliminary assessment. However, in doing so, it might well then come to be said, or thought, that no other step within Part 2.6 could be taken by the defendant following a preliminary assessment. That seems to me to explain the purpose and operation of s 2.6.32(1)(b); that is, to confirm that other steps authorised within Part 2.6 of the Act may be taken following a preliminary assessment; not merely an investigation under Div 11.
In the circumstances, as was broadly observed in Byrne, and at least where notice is or should be given under s 2.6.31(2), it seems to me that the present statutory scheme implies an expectation that the teacher will be afforded an opportunity to be heard prior to the defendant making its statutory determination in respect of a notification or complaint.
I should say that to the extent that the defendant might have sought to emphasise urgency and other practical considerations as relevant, I do not accept that such matters should lead to any different interpretation of the scheme.
In particular, it will be evident from what I have said that the conduct of a preliminary assessment is not a statutory precondition to the imposition of an interim suspension. If, in whatever circumstances, the defendant comes to the statutory belief identified in s 2.6.28(1), an interim suspension may urgently be imposed.
Further, the present burden of notifications and complaints is unknown, and there is no provision which dictates that a preliminary assessment must be completed within a certain period, or even ‘expeditiously’.[142]
[142]Cf Act (n 1) s 2.6.33D.
In that regard, if the present instance is any sort of guide, it is relevant to note that –
(a) on 22 March 2023, the Department notified the defendant and, among other things, provided a copy of the report of Dr Glowinski dated 24 November 2022;[143]
[143]RCB 233-250.
(b) the investigator called the Department in April 2023 with a view to obtaining further information concerning the nature of the alleged conduct involving the plaintiff at the school. A Departmental officer, who is unlikely to have had personal knowledge of the events concerned, replied briefly by email to the effect that it was the officer’s ‘understanding’ that the plaintiff’s ‘high absenteeism and behaviour, such as screaming, crying, yelling and banging her head at work’ had led to the examination conducted by Dr Glowinski;[144]
[144]PAR (n 9) pp 4-5 [15]-[16]; RCB 252-253.
(c) similarly, in May 2023, the investigator emailed the Department to ask whether the plaintiff had ‘provided updated evidence’, and a different Departmental officer responded by email to confirm that no further information had been provided and also noted that the plaintiff was ‘no longer an employee of the department’;[145]
[145]RCB 251-252.
(d) the investigator did not contact the plaintiff, or require that the plaintiff provide any information for the purposes of the preliminary assessment;
(e) little else seems to have comprised the substance of the preliminary assessment, other than to prepare the report dated 21 June 2023; and
(f) counsel for the defendant ultimately did not seek to contend that the plaintiff’s case was an urgent one.[146]
[146]T98-99.
In the circumstances, it is not obvious that affording procedural fairness to a teacher in the position of the plaintiff could be likely to impose any significant practical burden upon the defendant.
Finally, a submission of the present kind was considered by Nettle JA in Byrne, and his Honour acknowledged that in that instance it had ‘some force’. However, with reference to the scheme there under consideration, his Honour stated –
One may also doubt that recognition of the solicitor’s right to be heard at that stage would result in the sorts of inefficiencies which the commissioner fears. The content of natural justice is variable according to the circumstances of the case and, in the ordinary case, it should not require much more than the commissioner inviting the solicitor to respond to the complaint and specifying a relatively short period of time (perhaps no more than a week after giving notice) in which any such response should be provided. In other kinds of cases, for example in cases of real urgency, or where the giving of notice would likely lead to the destruction of evidence or something of that nature, the content of natural justice might be reduced; in some cases perhaps even to the point of effectively abrogating it altogether. All in all, there should be few cases in which there is much of a problem.[147]
[147]Byrne (n 113) [89] (citations omitted).
From what I have said, it should be apparent that in cases such as the present a teacher should be afforded an opportunity to be heard concerning a notification or complaint before the preliminary assessment is completed and its disposition is determined.
In this case, of course, that did not occur. Indeed, prima facie –
(a) contrary to s 2.6.31(2)(a), the defendant did not notify the plaintiff in writing that it was conducting a preliminary assessment; and
(b) contrary to s 2.6.32(2)(a), the defendant did not notify the plaintiff in writing of the outcome of the preliminary assessment.
That said, the defendant sought to suggest that it had been ‘open’ to it to determine not to give any such notice, presumably under ss 2.6.31(3) and 2.6.32(3).[148]
[148]RCB 393-394 [59]
The short answer to that contention, however, is that there is no evidence that the defendant ever formed any of the reasonable beliefs identified in those sections. Indeed, it was implicit in the submission made that no such beliefs were actually formed. In that respect, the submission that such determinations were ‘open’ serves only to highlight two further respects in which the defendant seems not to have paid attention to the applicable statutory scheme.
To some extent, the failures of the defendant to notify the plaintiff of the conduct of the preliminary assessment, and perhaps its outcome, were relied upon as distinct contentions of illegality that should stand to invalidate the process. Whether or not that is so need not be finally determined, as in the present case the breaches to which I have referred seem to me to be wrapped up in the overall failure of the defendant to afford the plaintiff procedural fairness in connection with the process of preliminary assessment.
From that point, the substance of the issue becomes whether that denial of procedural fairness is ‘material’. That issue is, however, more conveniently considered after considering the other submissions of the parties concerning denials of procedural fairness.
In that regard, the plaintiff claimed to have been denied procedural fairness in respect of the First continuation decision dated 27 July 2023[149] and the Tenth continuation decision dated 4 April 2024.[150] The plaintiff also contended that the initial illegality ‘infected’ all ‘continuation’ decisions.
[149]RCB 38-42.
[150]RCB 119-126.
Those contentions gave rise to a debate between the parties concerning the scheme of review and any continuation of a suspension.
I have earlier extracted the relevant provisions of Div 8A, particularly ss 2.6.28D, 2.6.28E, 2.6.28F and 2.6.28G.
Plainly, the stringency of the scheme of initial interim suspension and regular successive reviews thereafter carries within it an acknowledgement of the seriousness of imposing and continuing to impose such a suspension. Among other things, the ‘basis’ for the suspension must be reviewed within every 30 days.[151]
[151]Act (n 1) s 2.6.28E(1).
Further –
(a) the defendant must notify the plaintiff in writing of the reasons for either making or continuing the suspension, as well as the information relied upon by it when doing so;[152]
(b) the defendant must also notify the plaintiff in writing of the date on which it will ‘review the basis’ of the suspension, or continuation of the suspension, and that the plaintiff may make written submissions to the defendant ‘at any time’ regarding the continuation of the suspension;[153] and
(c) the plaintiff is entitled to make written submissions to the defendant ‘at any time’ regarding the continuation of the suspension.[154]
[152]Act (n 1) ss 2.6.28A(c), 2.6.28F(b).
[153]Act (n 1) ss 2.6.28A(d) & (f), 2.6.28F(c) & (d).
[154]Act (n 1) s 2.6.28D.
In the present instance, the plaintiff came to submit that the denial of procedural fairness in respect of the preliminary assessment, and associated breaches of statutory provisions in respect of notice, meant that there could be no subsequent exercise of the power to suspend the plaintiff, or to ‘continue’ the suspension. In that regard, it was said that if the initial suspension is ‘legally a nullity and void’ there is ‘no power’ to continue a suspension because ‘there’s nothing to continue’.[155]
[155]T57-59.
It seems to me, however, that the statutory language permits of the prospect, at least theoretically, that each decision may be made upon a different or slightly differing ‘basis’. After all, it is the ‘basis’ for the suspension which is reviewed on each occasion, and it is upon that review that the defendant may determine to continue the suspension if it reaches the required state of reasonable belief, even if the basis for that belief is different to the basis relied upon for a previous continuation decision.
In that regard, the scheme of provisions contemplates that circumstances may change, and within relatively short periods of time. Among other things, as I have noted, the teacher may make written submissions regarding any continuation of the suspension ‘at any time’[156] and the defendant must revoke the suspension if it no longer holds the required state of reasonable belief.[157]
[156]Act (n 1) s 2.6.28D.
[157]Act (n 1) s 2.6.28G(1).
It is, however, unnecessary to express any final view in respect of this issue, as, in the present case, it would only arise if the initial denial of procedural fairness were not of continuing effect; which is a matter to which I will shortly come.
The further claimed denials of procedural fairness also gave rise to a debate concerning the structure and substance of the provisions by which procedural fairness is afforded within the process of review and continuation of a suspension.
In that regard, there was no contention that the defendant was not required to afford the plaintiff natural justice; the contention of the defendant was that the provisions concerned amounted to a ‘comprehensive code’[158] in which a teacher is to be afforded no more than ‘a reactive opportunity to respond’.[159] That is, a teacher is afforded the opportunity to make submissions directed to a suspension decision which has already been made, and not to the identified basis of a decision that is yet to be made.
[158]T101.
[159]T108.
That submission led to a consideration of the prospect that the defendant could become aware of ‘information’ relevant to the continuation of a suspension, but, if the defendant’s submission were correct, not give, or need to give, a teacher any notice of that information prior to it forming part of the ‘basis’ for a decision to continue the suspension.[160]
[160]See T101-108.
In short, if the defendant is correct, and the opportunity afforded is wholly and only ‘reactive’, there is significant potential for there to be a mismatch between the precise ‘basis’ upon which the defendant might come to determine that the suspension should be continued and any submissions of the plaintiff.
However, such a mismatch seems to me to be contrary to the premise of the relevant statutory provisions. In that regard, as I have noted, a teacher must be given written notice of –
(a) the reasons for the suspension;
(b) the information on which the defendant has ‘based’ its decision;
(c) the date on which the defendant will review the ‘basis’ for the suspension; and
(d) the right of the teacher to ‘make written submissions … at any time regarding the continuation of the suspension’.[161]
[161]See generally Act (n 1) ss 2.6.28A, 2.6.28D, 2.6.28F.
That is, the provisions do not conceive of any such mismatch: the teacher is to be told the reasons and ‘basis’ for the decision; and the teacher is thereafter able to make submissions ‘at any time’ with a view to the suspension being revoked or not continued.
It follows that the plain language of the Act does not conceive of or expressly condone any such mismatch. Indeed, any suggestion of condoning a potential mismatch seems to me to be contrary to the evident stringency of the provisions concerned, as well as the specific right of the teacher to make submissions regarding the continuation of a suspension. Plainly, that right is intended to be meaningful, and that will not be so if the teacher is not informed of the information on which any suspension is based and on which any continued suspension may be based.
It follows, in my view, that it cannot be accepted that the requirements of procedural fairness specified in the statutory scheme are wholly codified. Nor can it be accepted that, in relation to the continuation of a suspension, procedural fairness cannot require that a teacher be advised of the information on which a continuation decision is and may come to be based. To the contrary, the premise evident in the statutory provisions is that there should be no mismatch.
It follows that, if the defendant should become aware of information relevant to the continuation of a suspension, procedural fairness should require that the teacher is at some appropriate point informed of that information in order to give effect to their statutory right to make written submissions at any time regarding a continuation of the suspension.
I should note that the defendant submitted that such a requirement was ‘procedurally unworkable’.[162] However, as Nettle JA noted in Byrne, the content of natural justice is variable according to the circumstances of the particular case and ‘there should be few cases in which there is much of a problem’.[163]
[162]T104-105.
[163]Byrne (n 113) [89].
In that regard, in the present instance, notwithstanding the lengthy period involved, as well as the number of occasions on which the defendant has determined to continue the suspension, the sum total of the material assembled by the defendant from sources other than the plaintiff seems to have been very limited.
In particular –
(a) when the Department notified the defendant on 22 March 2023, it seems to have provided the defendant with a copy of the report of Dr Glowinski together with a few items of correspondence;[164]
[164]RCB 233-250.
(b) as I have earlier noted, the investigator contacted a Departmental officer once in April 2023 and again in May 2023 – both of which elicited brief responses by email;[165]
(c) the investigator produced the preliminary assessment report dated 21 June 2023, which was the basis for the Initial suspension decision;[166] and
(d) the only other information subsequently assembled by the investigator was a few pages of emails and other documents first referred to in the notice relating to the making of the Tenth continuation decision on 4 April 2024 and which, in the present proceedings, was referred to as the ‘February information’.[167]
[165]RCB 251-253.
[166]RCB 34-36.
[167]See RCB 119-126 [16]-[17], 264-277.
In short, the material assembled by the investigative efforts of the investigator seem to have been of very modest dimensions. It follows that there is good reason to believe that the observations of Nettle JA in Byrne should apply equally to the present context.
In the circumstances, I do not accept that it would have been ‘procedurally unworkable’ for the defendant to have provided any of that material, or the substance of it, to the plaintiff in order that they might have been able to make submissions or provide evidence directed to the decisions under consideration that plainly stood to affect their interests.
In addition, counsel for the defendant fairly and responsibly acknowledged that if an erroneous failure to provide the plaintiff with a copy of the preliminary assessment report (or a fair and complete summary of its effect) continued to have ‘practical operative effect’, that could be taken to have affected ‘every decision’. In that regard, counsel stated –
… if the first decision was affected in such a way that [it] had not been cured, that would continue to have operative effect, and then … obviously couldn’t stand.[168]
[168]T113.
For reasons which will shortly be evident in connection with the issue of materiality, the failure of the defendant to provide the plaintiff with a copy of the preliminary assessment report, or a fair and complete summary of its effect, in the various notices, had a practical operative effect upon the Initial suspension decision and every continuation decision thereafter. At no point in that process did any of those notices stand to ‘cure’ the fundamental denial of procedural fairness suffered by the plaintiff at the outset and continued thereafter.
In that context, little might presently be thought to turn upon whether the defendant’s failures to afford procedural fairness and associated breaches of statutory requirements were such that the various steps and decisions taken by the defendant were void or simply unlawful.[169]
[169]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [91]-[93], [100]; Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 623, [24]-[38].
That said, the statutory language in respect of the giving of notice relating to preliminary assessment, interim suspension and continuation of suspension is clear, mandatory (‘must’) and, in each instance, suggestive of a rule.
Counsel for the defendant sought to contrast the various notice requirements, specifically those relating to preliminary assessment and those concerning suspension. In that regard, it was suggested to be of significance that the latter requirement is ‘absolute’, whereas, in respect of the former, the defendant was said to have retained ‘a discretion’.[170]
[170]RCB 393-394 [58]-[60].
In truth, however, both requirements are in mandatory form. The difference is that there is no requirement of notice in respect of a preliminary assessment if any one of three states of reasonable belief are held. That is, the requirement is not avoided by any exercise of discretion, but by the forming by the defendant of one or more specific states of mind.
In my view, if anything, that serves to underline the deliberation with which the legislature has specified that notice of preliminary assessment ‘must’ be given unless any such state of mind is formed.
More broadly, a breach of the requirements to which I have referred, as well as associated breaches of the obligation of the defendant to afford the plaintiff procedural fairness, could be taken to undermine the procedural safeguards evidently in place for the benefit of persons in the position of the plaintiff, in order that important decisions of that kind are not made without the persons affected being afforded an opportunity to be heard.
In that regard, compliance with such safeguards might be said to be an essential and indispensable condition of the defendant’s exercise of its functions such that actions in breach should be invalid.
Further, it is not obvious that if non-compliance with the relevant requirements of the statute were to mean that the decisions of the defendant were found to be legally ineffective, any significant public inconvenience would follow.
It follows that if anything were to turn upon the issue I would be more inclined to the view that the relevant actions and associated decisions of the defendant should be considered to have been jurisdictional errors that rendered those actions and decisions void ab initio.[171]
[171]Cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, [77], [173], [208].
However, it seems to me that the position ultimately adopted by the defendant in argument means that, in the present case, whichever way the issue is approached, the breaches and denial of procedural fairness were such that, subject to the issue of materiality, the operative decisions ‘obviously couldn’t stand’.
That brings me to the submissions of the parties directed to ‘materiality’.
In that connection, the plaintiff referred to relevant recent decisions of the High Court of Australia.
In Nathanson v Minister for Home Affairs,[172] Kiefel CJ, Keane and Gleeson JJ stated –
[32]As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
[33]There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on the assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.[173]
[172](2022) 276 CLR 80 (‘Nathanson’) (emphasis in original; citations omitted).
[173]Nathanson (n 172) [32]-[33] (emphasis in original; citations omitted). See also [55]-[56] (Gageler J), [63], [76]-[77] (Gordon J).
More recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[174] Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ stated –
[14]The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Thought the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
[15]What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
[16]In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality would have been met (and curial relief will be justified subject to any issue of utility or discretion).[175]
[174](2024) 98 ALJR 610 (‘LPDT’).
[175]Ibid [14]-[16] (emphasis in original; citations omitted).
Counsel for the plaintiff identified that the preliminary assessment report, in particular, contained matters that had not been put to the plaintiff, and submitted that the Court should eschew what was described as being the ‘narrow approach’ urged by the defendant.[176]
[176]T128-131.
For his part, counsel for the defendant submitted that –
What the objective and historical facts show, in my submission, is that when Mx Brissenden subsequently had the opportunity to make submissions and present evidence, the decisionmaker did consider those [submissions] and came to the same conclusion. So there is, in my submission, an identified basis upon which this Court, without speculating or stepping into the shoes of the decisionmaker, can be satisfied what the outcome of the decision would have been had the same error not been made.[177]
[177]T111.
In the present instance, there are significant parts of the preliminary assessment report that were not referred to in any notice to the plaintiff and, of course, the preliminary assessment report itself was not provided to the plaintiff until immediately prior to the trial.
In that connection, on its first page, the preliminary assessment report describes the alleged conduct of the plaintiff as follows –
Whilst undertaking the duties of a teacher on 19 October 2022 at … Primary School, Ms Elsa Brissenden demonstrated strange behaviour such as screaming, crying, yelling and banging her head.[178]
[178]PAR (n 9) 1.
The preliminary assessment report thereafter refers to –
(a) the contact made with the Department in April 2023, as well as the brief email received in response;[179] and
(b) certain ‘conduct’ which, it is said, is contrary to the Victorian Teaching Profession’s Code of Conduct, including the need to ‘[p]rotect learners from intimidation, embarrassment, humiliation and harm’.[180]
[179]PAR (n 9) 4-5 [15]-[16].
[180]Ibid 5-6.
That said, the report later states that it is ‘unclear from the information provided by the Department whether Ms Brissenden’s behaviour has resulted in harm to children to date’.[181]
[181]Ibid 10 [35b].
In short, the preliminary assessment report includes a degree of prevarication in respect of what would seem to be an issue of real substance: namely, whether the plaintiff had ever behaved in a potentially harmful manner in the presence of students. That issue, it seems to me, must go to whether the plaintiff could reasonably be thought to present any real risk of harm to students.
Further, no dates, times or places relating to the behaviour apparently relied upon seem ever to have been discerned, or recorded.
In that connection, the preliminary assessment report also refers extensively to the report of Dr Glowinski, particularly that part of his report in which he purports to record the ‘EMPLOYER PERSPECTIVE’.[182]
[182]PAR (n 9) 3-4. Cf RCB 240-241.
That account refers to ‘unusual behaviours including crying, screaming, placing her head in her arms and banging her head’, and later ‘erratic’ behaviour in the classroom and complaints relating to the plaintiff’s emotions when speaking with parents. However, none of that makes it any clearer whether any of the ‘unusual behaviours’ took place in the classroom, or ever resulted in harm to any student. Again, no dates, times or places are identified.
I should say that the provenance of the lengthy ‘perspective’ of the employer appearing in the report of Dr Glowinski is mysterious. No source is identified. Early in his report Dr Glowinski states that his report is based in his interview with the plaintiff, as well as a small number of documents. However, neither the interview with the plaintiff nor any of the documents referred to seem likely to have contained the ‘EMPLOYER PERSPECTIVE’ recorded so extensively in Dr Glowinski’s report and, in turn, in the preliminary assessment report.[183]
[183]RCB 239-241.
In any event, there is further prevarication in the preliminary assessment report concerning whether the plaintiff is suffering from a ‘psychological condition’.
In referring to the opinions expressed in Dr Glowinski’s report dated 24 November 2022, the preliminary assessment report notes that –
(a) Dr Glowinski’s assessment was ‘cross-sectional’ (ie, based upon one consultation);
(b) no definitive diagnosis had been proffered; and
(c) Dr Glowinski’s opinion was that the plaintiff was ‘provisionally unfit for work … until there is further clarification’.[184]
[184]PAR (n 9) 4 [11], [13b], [13]d. See also PAR 1: ‘Dr Glowinski opined that … it was difficult to make definitive comments about a longitudinal diagnosis’.
Nonetheless, later in the preliminary assessment report, reference is made to the plaintiff’s ‘current psychological condition’ (ie in June 2023) and, repeatedly thereafter, to the plaintiff’s ‘psychological condition’.
Those references occur in the course of a consideration of a sequence of ‘factors’ by reference to which it comes to be stated that –
(a) it is ‘likely’ that the plaintiff ‘would engage in conduct that may pose [a risk] to the safety and wellbeing of students’;
(b) if the plaintiff were to undertake ‘child related work’ it is ‘likely to have a major impact on the safety and wellbeing of students’; and
(c) the ‘inherent risk rating’ in respect of the plaintiff is therefore assessed to be ‘high’.[185]
[185]Ibid 9 (emphasis in original).
That multifactorial analysis does not appear in the report of Dr Glowinski and seems to be based in the views and calculations of the investigator. The expertise of the investigator is unknown.
The degree of prevarication apparent in the preliminary assessment report is not as evident in the notices subsequently given to the plaintiff, and the ‘inherent risk rating’ is not referred to at all. For example, in the initial suspension notice dated 26 June 2023, it is stated that –
(a) ‘[o]n 24 November 2022, it was determined by Dr Glowinski that you were provisionally unfit to undertake the duties of a teacher due to a psychological condition’;[186]
(b) ‘… you are suffering from an impairment that seriously detrimentally affects your ability to perform the duties of a teacher’;[187] and
(c) ‘… you have been deemed provisionally unfit to undertake the duties of a teacher due to a psychological condition’.[188]
[186]RCB 34 [9a].
[187]RCB 35 [10a].
[188]RCB 35 [11a].
While the plaintiff bears the onus of establishing that they were deprived of the possibility of a successful outcome, the threshold is not demanding or onerous and, of course, I cannot assume the function of the decision-maker.
In the present circumstances, however, I would readily infer that, if fairly put on notice of the matters to which I have referred, the plaintiff might have been able to make appropriate submissions, or proffered the opinions of Mr Veevers, treating psychologist, or, perhaps, a psychiatrist, that could have been directed to the prevarication and other features to which I have referred. With a defendant acting with an open mind, that could realistically have led to a different outcome. Put another way, I cannot conclude ‘affirmatively’ that the outcome would inevitably have been the same.
A similar position obtains in respect of the ‘February information’, which was also only provided to the plaintiff in the context of the present proceedings.
The ‘February information’ was, however, referred to in the notice relating to the Tenth continuation decision dated 4 April 2024, as follows –
On 13 February 2024, the Institute received further information from the Department in relation to the alleged incidents that occurred at the School [and] which led to the School referring you to an IME. The Department provided the Institute with copies of email correspondence between you and the Principal including meeting notes and call notes.[189]
[189]RCB 120-121.
The notice thereafter referred to points extracted from the ‘February information’, but not any points relating to the ‘incidents that occurred at the School’.
Notwithstanding the form of the notice by which the Tenth continuation decision was advised, the only document in the ‘February information’ that might be said to relate to the alleged conduct appears to be a note of a meeting in October 2022 that may or may not have been attended by the plaintiff. The plaintiff’s name does not appear among the list of attendees at the meeting, although the notes do purport to record, in bullet point form, some statements which might have originated from the plaintiff. Among the bullet points, is ‘cry, yell, throwing self around, grabbing face, hit the table’. It is, however, unclear whether any of that occurred in the meeting concerned, or elsewhere. As with other references to the alleged conduct, no date, time or place is specified.[190]
[190]RCB 277.
I should add that later on the same page there is a note of a telephone discussion, apparently between the school principal and the plaintiff. However, that includes no reference to any ‘incidents’ at the school.[191]
[191]Ibid.
In short, the meaning of a significant part of the ‘February information’ may be said to be quite uncertain and, again, that is rather papered over by the vague and arguably misleading reference in the relevant notice to ‘incidents at the School’.
This seems to me to be another area in which the plaintiff might have been able to make appropriate submissions or to have proffered expert opinions that could have clarified the position, potentially to their advantage, and so might realistically have led to a different outcome with a defendant acting with an open mind.
In short, I am satisfied that the defendant has materially denied procedural fairness to the plaintiff in respect of both the preliminary assessment report and the ‘February information’.
It follows, in my view, that the substance of the plaintiff’s complaints in respect of material denials of procedural fairness must be accepted. The decisions concerned were unlawfully made and must be quashed.
F. Issues 6 & 7: Other claimed errors
In the circumstances as they have emerged, there is, in my view, much to be said for the complaint of the plaintiff that, by May 2024, and thereafter, the subsisting facts could not have been sufficient to induce in the defendant the required reasonable beliefs.[192]
[192]Cf George v Rockett (1990) 170 CLR 104 and Guo v Commonwealth (2017) 258 FCR 31.
Among other things –
(a) the opinion of Dr Glowinski was provided in November 2022, was expressly provisional until further clarification was obtained and it appears that no effort has since been made by the defendant to contact Dr Glowinski in order to determine whether any part of that opinion could be considered to be applicable in and after May 2024;
(b) following the termination of their employment with the Department, the plaintiff began working at an independent school and appears to have been doing so at the time of the Interim suspension decision. There was no suggestion that anything untoward had occurred in that employment and, again, no effort appears to have been made by the defendant to contact that school in order to determine whether anything relevant had occurred in that employment; and
(c) similarly, some eight months after the report of Dr Glowinski, Mr Veevers, treating psychologist, reported that, in his opinion, the plaintiff did not pose a risk to anyone’s safety and, indeed, was fit to work.[193]
[193] RCB 173-176.
That said, in light of my conclusions in respect of the plaintiff’s procedural fairness complaints, it is unnecessary to reach any final view in respect of that issue, as well as the further issue in respect of the defendant’s consideration of certain submissions advanced by Mr McIver prior to the making of the Fourteenth continuation decision dated 26 July 2024.
G. Conclusion
The defendant materially denied procedural fairness to the plaintiff.
The defendant advanced submissions in relation to relief, although, for the most part, those submissions were much like the submissions advanced in respect of the issue of materiality; which have been rejected.
In argument, counsel for the plaintiff confirmed that the relief sought was that the preliminary assessment and subsequent decisions of the defendant to suspend the registration of the plaintiff should be quashed and any present issue should be re-determined according to law, if necessary.
Subject to the submissions of respective counsel, I would propose to make appropriate orders to that effect.
I will hear from counsel in relation to the form of such orders as well as any remaining issues, including costs.
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