CC v Department of Education and Training

[2018] QCAT 307

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

CC v Department of Education and Training [2018] QCAT 307

PARTIES:

STUDENT CC
(applicant)

v

DEPARTMENT OF EDUCATION AND TRAINING

(respondent)

APPLICATION NO/S:

GAR383-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   The application is dismissed as misconceived and lacking in substance.

2.   The publication of any information that could identify student CC or the school is prohibited.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where decision to permanently exclude student – whether ‘reviewable decision’ – where no external review by Tribunal – where periodic internal review available – where Tribunal did not have power in its review jurisdiction  – where application misconceived and lacking in substance

Education (General Provisions) Act 2006 (Qld), s 297,
s 315, s 390, s 391, s 392, s 393, s 394, Schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 47, s 66

Gupta v Department of Education and Training [2017] QCAT 450

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

What is this Application about?

1. Student CC applied to the Tribunal to review his permanent exclusion as a student of his High School. The Department of Education and Training applied to strike out Student CC’s application on the basis that it is lacking in substance because it does not seek review of a ‘reviewable decision’.

2. Student CC is a minor, raising an issue about his capacity to proceed with his application. Student CC was legally represented for most of his application, including preparing his application and submissions.

3. However, it is unnecessary for me to decide the point because I am satisfied that his application cannot proceed in any event.

4. Because Student CC is a minor, I will also make a Non-Publication Order to protect his identity and the school from where he was excluded.[1] Accordingly, these proceedings will be published in a de-identified format.  

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

   Does the Tribunal have jurisdiction?

5. The Tribunal can only review a ‘reviewable decision’.[2] The Tribunal’s jurisdiction to review must therefore be conferred upon it by an enabling Act to review a decision made under that Act.[3]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(2).

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1).

6. The enabling Act here is the Education (General Provisions) Act 2006 (Qld).

7. In Gupta v Department of Education and Training,[4] Member Cranwell succinctly explained the Tribunal’s review jurisdiction under that Act:

   Under s 393 and s 394 of the [Act], the Tribunal only has power to review a “review decision”. That term is defined in s 392 to mean a decision made by the chief executive officer after receiving an application for review made pursuant to s 391. Under s 390, an application for review can only be made by person who is given, or is entitled to be given, an information notice for a decision…[5]

   [4][2017] QCAT 450.

   [5][2017] QCAT 450, [12].

8. Letters confirming his exclusion were sent to Student CC on 28 June 2017 and

   
   

   9 November 2017. Student CC submitted that the letter of 28 June 2017 was an information notice. The Act defines ‘Information notice’ for a decision as a notice stating:

   (a)     the decision;

   (b)     the reasons for the decision;

   (c)     that the person to whom the notice is given may have the decision reviewed within 30 days; and

   (d)     how the person may have the decision reviewed.[6]

   [6]Education (General Provisions) Act 2006 (Qld), Schedule 4.

9. Neither the letter to Student CC dated 28 July 2017 nor the letter to Student CC dated 9 November 2017 falls within this definition. In particular, the letters do not advise that Student CC may have the decision reviewed within 30 days. Rather, they advise him that he may make a submission as part of a periodic review.

10. Making a submission as part of a periodic review is separate and distinct from a general right to apply for internal review that generates an information notice leading to a right to apply for external review by the Tribunal. Periodic review provides an automatic right of review each calendar year.[7]  

    [7]Education (General Provisions) Act 2006 (Qld), s 315(2).

11. Because Student CC was not given, and was not entitled to be given, an information notice, he does not have a right of review to the Tribunal for his permanent exclusion. Student CC was excluded pursuant to section 297 of the Act. The Act does not provide for an information notice to be issued for decisions made pursuant to section 297. Instead, it confers a right to periodic review under section 315.

12. Because the Tribunal has no basis upon which to review the decision, the application is dismissed as misconceived and lacking in substance.[8]

    [8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.