Gabriel v Technical and Further Education Commission

[2022] NSWCATAD 378

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gabriel v Technical and Further Education Commission [2022] NSWCATAD 378

Hearing dates:

16 November 2022

Date of orders:

16 November 2022

Decision date:

29 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The application is dismissed for want of jurisdiction.

Catchwords:

ADMINISTRATIVE LAW – jurisdiction

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Category:

Principal judgment

Parties:

Alan Gabriel (Applicant)
Technical and Further Education Commission (Respondent)

Representation:

Solicitors:
Self-represented (Appellant)
Minter Ellison (Respondent)

File Number(s):

2022/00287930

Publication restriction:

Nil

Reasons for Decision

Introduction

1. The Applicant, Mr Alan Gabriel, lodged an administrative review application seeking review of a decision made by an officer of the Technical and Further Education Commission (“TAFE”). The decision (“the March 2021 decision”) was to exclude the Applicant from the whole or any part of a TAFE facility for a period of 60 days.

Background

2. The Applicant is a former student of TAFE. In March 2021, the Manager TAFE Services found that the Applicant had committed various breaches of TAFE’s Student Conduct and Discipline Policy and the penalty imposed was exclusion from the whole or any part of a TAFE facility for a period of 60 days. The Applicant was advised that he had the right to request an internal appeal of the March 2021 decision by 29 March 2021.

3. On 29 March 2021, the Applicant notified TAFE that he disagreed with the decision and would be lodging a complaint with the Anti-Discrimination Board of New South Wales. He lodged that complaint and subsequently commenced proceedings against TAFE in the Tribunal in relation to the same allegations. Those proceedings were dismissed.

4. In September 2022, the Applicant sent an email to the Manager TAFE Services seeking an internal review of the March 2021 decision. The Manager refused the internal review request. The Applicant lodged an administrative review application commencing these proceedings.

The Tribunal's jurisdiction

5. The jurisdiction of the Tribunal is set out in section 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”). Section 28 provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the CAT Act or any other legislation.

6. Section 30 of the CAT Act relevantly provides:

(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note—

See section 9 of the Administrative Decisions Review Act 1997.

7. Section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides:

1. When administrative review jurisdiction is conferred

2. The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)   in the exercise of functions conferred or imposed by or under the legislation, or

(b)   in the exercise of any other functions of the administrator identified by the legislation.

1. If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

2. A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:

(a)   a decision made by a person to whom the function of making the decision has been delegated,

(b)   if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c)   a decision made by any other person authorised to exercise the function of making the decision.

1. ...

   8. Section 4 of the ADR Act states:

4 Definitions

1. In this Act:

…

enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:

(a)   provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b)   otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

Is the March 2021 decision an administratively reviewable decision?

9. In determining whether the Decision is an administratively reviewable decision under the ADR Act, it is necessary to identify the legislation under which the Decision was made.

10. TAFE contends that the March 2021 decision was made in the exercise of power given under the Technical and Further Education Commission Act 1990 (NSW) (“the TAFE Act”).

11. Pursuant to section 7 of the TAFE Act, TAFE’s miscellaneous functions include imposing penalties for breaches of discipline by students of TAFE establishments. An authorised member of staff may exercise those functions: section 8 of the TAFE Act.

12. The exercise of the imposing penalties for breaches of discipline function is governed by TAFE's Student Conduct and Discipline Policy (“the Policy”) and Student Conduct and Discipline Procedure Manual (“the Procedure Manual”).

13. Pursuant to clause 4.3 of the Policy, a breach of student conduct is subject to disciplinary action by TAFE. This may result in the imposition of penalties, including exclusion from study. Further information about the procedure to manage disciplinary action, impose penalties and the appeal process is set out in the Procedure Manual.

14. Pursuant to clause 7.2.2(a) of the Procedure Manual, formal disciplinary action may include exclusion of the student from the whole or any part of a TAFE facility for a period of greater than 30 days.

15. TAFE submits the Tribunal only has jurisdiction if enabling legislation provides for applications to be made to the Tribunal for administrative review of a decision. In this case, the likely enabling legislation is the TAFE Act. However, there are no provisions in the TAFE Act that provide for applications to be made to the Tribunal or authorise the Tribunal to administratively review the relevant decisions.

Consideration and findings

16. The March 2021 decision was made under section 7 of the TAFE Act. Pursuant to section 9 of the ADR Act, the Tribunal only has administrative review jurisdiction to review the March 2021 decision if the TAFE Act or some other legislation provides that applications may be made to the Tribunal for an administrative review of the decision.

17. Neither party has identified any legislation that provides the Tribunal with the jurisdiction to review the March 2021 decision. I am not otherwise aware of any legislation that provides that jurisdiction. Accordingly, I am satisfied that the March 2021 decision is not an administratively reviewable decision, and the Tribunal has no administrative review jurisdiction over that decision. The Application should therefore be dismissed.

Order

1. The application is dismissed for want of jurisdiction.

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

Decision last updated: 29 November 2022