FHR v Secretary, Department of Education

[2022] NSWCATAD 77

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FHR v Secretary, Department of Education [2022] NSWCATAD 77

Hearing dates:

On the papers

Date of orders:

09 March 2022

Decision date:

09 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

1. Application dismissed for lack of jurisdiction.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act the name of the Applicant and their child the subject of the application is not to be published or disclosed.

Catchwords:

ADMINISTRATIVE REVIEW – jurisdiction – dismissal

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Education Act 1990

Cases Cited:

White v Sutherland Shire Council [2019] NSWCATAD 100

Category:

Procedural rulings

Parties:

FHS by his tutor FHR (Applicant)
Department of Education (Respondent)

Representation:

Applicant: self-represented (by his tutor)
Respondent: Legal Services, Department of Education

File Number(s):

2021/328631

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act the name of the Applicant and their child the subject of the application is not to be published or disclosed.

REASONS FOR DECISION

Background

1. In 2021 FHS was a student at an inner west public school. On 12 May 2021 he received a 3 day suspension for “Serious acts of harassment and intimidation including the use of an implement as a weapon”. His parents appealed the decision to suspend their son but the decision was upheld. That decision was, itself, reviewed and it was determined that the suspension was warranted. FHS, by his mother, FHR his tutor (the Applicant), now seeks review by this Tribunal.

2. The Respondent applied for summary dismissal of the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act). The issue is whether the Tribunal has jurisdiction to conduct the administrative review the Applicant seeks.

3. The parties agreed that the matter could be determined on the papers.

Legislative scheme

4. Section 28 of the CAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it under that Act “or any other legislation”. Relevantly, the Tribunal has an administrative review jurisdiction over decisions of an administrator in the circumstances provided for by the Administrative Decisions Review Act 1997 (ADR Act): s. 30(1) CAT Act. Section 9(1) of the ADR Act, in turn, provides that administrative review jurisdiction is conferred under enabling legislation and s 4(1) defines "enabling legislation" as that which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters. A decision over which the Tribunal has administrative review jurisdiction is an "administratively reviewable decision": s 7(1) ADR Act and s 30(3) CAT Act. For the purposes of this matter the “enabling legislation” is the Education Act 1990 (the Act).

Consideration

5. The only issue before the Tribunal is whether it has jurisdiction to conduct an administrative review of the Respondent’s decision to suspend FHS.

What is the decision sought to be reviewed?

6. On 12 May 2021 the Principal of the school wrote to FHS’s parents (the parents) in the following terms:

This is to inform you that we have given your son, [FHS] in [class] from [the school], a suspension, consistent with the procedures of the Department of Education and the school's discipline code.

…

[FHS] has been suspended for:

Serious acts of harassment and intimidation including the use of an implement as a weapon.

[FHS] will be suspended for 3 days from Wednesday 12 May. He will return to school on Monday 17 May, pending a positive resolution meeting at 8.30am on this day.

7. The letter set out steps which the school would then take and how it proposed to engage with the parents. The letter informed the parents of their appeal rights if they considered correct procedures had not been followed or if the decision was unfair. The parents availed themselves of this appeal mechanism and the appeal was considered under the Respondent’s Suspension and Expulsion of School Students Policy - Procedures 2011 (the Policy), a copy of which was provided by the Respondent. The Policy records that the legislative basis for suspension (and expulsion) from schools is s 35 of the Act, which provides:

35 DISCIPLINE IN GOVERNMENT SCHOOLS

(1) The Minister may control and regulate student discipline in government schools.

(1A) Subsection (1) extends to the conduct of a student that significantly affects, or is likely to significantly affect, the health or safety of students or staff of any school, regardless of whether that conduct occurs on or outside school premises or within or outside school hours.

(2) The Minister may prepare guidelines for the adoption by government schools of fair discipline codes that provide for the control and regulation of student discipline in those schools (except for the suspension or expulsion of students).

(2A) The guidelines and codes must not permit corporal punishment of students attending government schools.

(2B) The guidelines and codes may permit other reasonable forms of punishment or correction of those students, including requiring students to perform any reasonable work or service for the school.

(3) The Minister may, on the recommendation of the Secretary, expel a child of any age from a government school. The Secretary may suspend any child from a government school.

…

8. Section 119 of the Act provides that the Secretary may delegate to any person the exercise of any of their functions under this Act. The Policy records that the Secretary’s power to suspend a student has been delegated to school Principals. Although a copy of the instrument of delegation was not provided by the Respondent, I am satisfied that the Principal was empowered under s 35(3) of the Act to issue a suspension.

What decisions are reviewable by the Tribunal?

9. The jurisdiction of the Tribunal is not at large and its administrative review jurisdiction is dependent on the existence of enabling legislation that provides for applications to be made to the Tribunal for administrative review of decisions. Accordingly, the Tribunal only has jurisdiction if the enabling legislation, in this case, the Act, provides that the decision which the Applicant seeks to have reviewed is an administratively reviewable decision which may be determined by the Tribunal.

10. As I observed in in White v Sutherland Shire Council [2019] NSWCATAD 100 (White) at [8]:

Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation.

What decisions are reviewable under the Act?

11. Section 107 of the Act sets out the decisions made under the Act which may be administratively reviewed by the Tribunal:

107 APPLICATIONS FOR ADMINISTRATIVE REVIEWS OF CERTAIN DECISIONS

(1) An application may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

…

(i) a non-attendance direction given by the Minister under section 26HA that results in the student being directed not to attend school for more than a total of 20 school days in a 12 month-period.

12. For completeness, I observe that s 26HA of the Act in turn provides:

26HA NON-ATTENDANCE DIRECTIONS

(1) The Minister may, by notice in writing, direct a student not to attend school during a specified period (a "non-attendance direction"). A non-attendance direction may specify a particular school or schools or any school.

(2) The Minister may give a non-attendance direction to a student only if—

(a) the Minister believes on reasonable grounds that—

(i) there is a significant risk that the student will engage in serious violent conduct, or

(ii) …, and

(b) the Minister believes on reasonable grounds that issuing the non-attendance direction is necessary to protect the health or safety of the students or staff of any school.

…

(4) In subsection (2)(a)(i),"serious violent conduct" means conduct constituting any of the following offences (regardless of whether the student cannot, or might not, be held to be criminally responsible for the conduct)—

(a) an offence involving—

(i) loss of a person's life or serious risk of loss of a person's life, or

(ii) serious physical or psychological injury to a person or serious risk of such injury to a person, or

(iii) serious damage to property in circumstances endangering the safety of any person,

13. There was no submission by the Respondent in relation to the difference between a “non-attendance direction” and a “suspension”. I observe however that there was no evidence that the type of notice issued in respect of FHS was other than a “suspension” under s 35(3) of the Act. It is clear that the conduct which led to the notice was not such as to attract s 26HA of the Act. Further, there was no evidence that the notice resulted in FHS being directed not to attend school for more than a total of 20 school days in a 12 month-period such as to attract s 107(1)(a)(i) of the Act. FHS was suspended under s 35(3) of the Act. As I have observed, s 107 of the Act sets out the only matters in respect of which the Tribunal has jurisdiction; decisions under s 35(3) of the Act are not reviewable by the Tribunal. Therefore, this matter does not fall within the Tribunal's jurisdiction. Accordingly, the Application for Review is dismissed.

ORDER

1. The Application is dismissed for lack of jurisdiction.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act, the name of the Applicant and their child the subject of the application is not to be published or disclosed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

10 March 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act the name of the applicant and the subject child have been anonymised.

11 March 2022 - Further anonymisations

Decision last updated: 11 March 2022