Mulhall v NSW Education Standards Authority

[2025] NSWCATAD 70

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mulhall v NSW Education Standards Authority [2025] NSWCATAD 70

Hearing dates:

4 February 2025

Date of orders:

25 March 2025

Decision date:

25 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Ledda, Senior Member

Decision:

The decision of the Respondent to revoke the Applicant’s accreditation under the Teacher Accreditation Act 2004 (NSW) is affirmed.

Catchwords:

ADMINISTRATIVE LAW — administrative review of revocation of teacher accreditation under Teacher Accreditation Act 2004 (NSW) — failure to meet professional teaching standards — allegations of bias and unfairness concerning Teacher Improvement Program

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Board of Studies, Teaching and Educational Standards Act 2013

Civil and Administrative Tribunal Act 2013 (NSW)

Education Standards Authority Act 2013 (NSW)

Institute of Teachers Act 2004 (NSW)

Interpretation Act 1987 (NSW)

Teacher Accreditation Act 2004 (NSW)

Teacher Accreditation Amendment Act 2014 (NSW)

Teaching Service Act 1980 (NSW)

Cases Cited:

Cantwell v NSW Education Standards Authority [2024] NSWCATAD 282

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Collins v Department of Fair Trading [2019] NSWCATAP 199

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Kent v Secretary, Department of Education [2019] NSWIRComm 1001

Kioa v West (1985) 159 CLR 550

Lavers v NSW Education Standards Authority [2023] NSWCATAD 170

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Meacham v Commissioner of Police [2020] NSWCATAP 107

Mulhall v Secretary in respect of the Department of Education [2024] NSWIRComm 1049

NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181

Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

Texts Cited:

Australian Professional Standards for Teachers, Revised edition: January 2018

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022)

NSW Teacher Accreditation Manual published by the Respondent (

Category:

Principal judgment

Parties:

Patricia Rose Mulhall (Applicant)
NSW Education Standards Authority (Respondent)

Representation:

Counsel:
D Fuller (Respondent)

Solicitors:
Applicant (self-represented)
Lander & Rogers (Respondent)

File Number(s):

2024/00177853

Publication restriction:

None

REASONS FOR DECISION

Overview

1. The current proceedings concern an administrative review application (the Review Application) made to the Tribunal by Patricia Mulhall (the Applicant). The Review Application seeks a review of a decision of the NSW Education Standards Authority (the Respondent) to revoke the Applicant’s accreditation as a teacher under the Teacher Accreditation Act 2004 (NSW) (TA Act).

2. After considering the evidence and submissions of both parties, I have decided for the following reasons that the correct and preferable decision is to revoke the Applicant’s accreditation. Accordingly, the order of the Tribunal will be to affirm the Respondent’s decision.

Statutory regime concerning teacher accreditation

3. Before 2004, teachers were not required to be accredited before they could teach in NSW schools. However, the Institute of Teachers Act 2004 (NSW) introduced an accreditation scheme for teachers. The scheme was originally limited to “new scheme teachers”. Broadly speaking, these were teachers who were first employed as teachers, or returned to teaching, after the commencement of Pt 4, Div 3 of the Act (as originally enacted). It is not in dispute that the Applicant was not originally caught by the scheme because she was first employed as a teacher before 2004.

4. The Institute of Teachers Act 2004 (NSW) was renamed as the “Teacher Accreditation Act 2004” by Sch 4[2] to the Board of Studies, Teaching and Educational Standards Act 2013 (NSW) (as originally enacted). Additional amendments were made to the TA Act in 2014 by the Teacher Accreditation Amendment Act 2014 (NSW) (2014 Amendment Act). These amendments included teachers who were not new scheme teachers in the accreditation scheme. Section 28, as inserted by the 2014 Amendment Act, made it an offence for a person to teach in a school unless the person is accredited. In the case of teachers who were not then currently required to be accredited, the now repealed s 28(4) provided that the requirement to be accredited would not apply to those teachers until a later date appointed by proclamation of the Governor. The Governor appointed 1 January 2018 in a proclamation dated 22 November 2017. It is not in dispute that the Appellant is now required to be accredited if she wishes to teach in NSW schools.

5. Section 4 of the TA Act provides as follows:

4 Protection of children paramount

This Act must be administered by applying the principle that, in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person are paramount.

6. The functions of the Respondent under the TA Act concerning teacher accreditation must be interpreted and applied having regard to this interpretative imperative. In Kent v Secretary, Department of Education [2019] NSWIRComm 1001 at [88], Commissioner Murphy said concerning the imperative in s 5A of the Teaching Service Act 1980 (NSW) (the TS Act) requiring the protection of children to be the paramount consideration in taking action under that Act:

“That imperative extends to the protection of children from having the quality of their school education compromised by being exposed to teachers who do not meet the level of performance required by the Department of a proficient classroom teacher.”

In my view, the interpretative imperative in s 4 of the TA Act (as suggested by the section heading) should be approached in the same way: cf Cantwell v NSW Education Standards Authority [2024] NSWCATAD 282 (Cantwell) at [43]. The requirement for teacher accreditation, which is underpinned by approved professional teaching standards, can only be properly understood with this in mind.

7. However, it is important to recall that s 4 requires paramountcy and not exclusivity. I think that it goes too far to say, as it was in Lavers v NSW Education Standards Authority [2023] NSWCATAD 170 (Lavers) at [42] and Cantwell at [46], that the Tribunal in an administrative review of a decision under the TA Act should not be concerned with the rehabilitation or other concerns of the teacher. The use of properly administered teaching improvement programs aimed at teacher “rehabilitation” is not necessarily inconsistent with protecting student welfare; such programs can often promote student welfare.

8. Section 19 of the TA Act enables the Minister administering the Act to approve professional teaching standards in relation to different levels of accreditation for the purposes of mandatory accreditation under Pt 4, Div 3 of the Act, including accreditation at proficient teacher level. This was the accreditation level of the Applicant before her accreditation was revoked. The applicable standards for present purposes are those specified in the Australian Professional Standards for Teachers, Revised edition: January 2018 (2018 Standards).

9. Section 93J of the TS Act enables the Secretary of the Department to take disciplinary action against an officer if the Secretary is satisfied the officer’s performance continues to be unsatisfactory following the completion of a performance improvement program. An officer is defined to mean a person employed in the Teaching Service other than as a temporary employee: TS Act, s 4 (1). There is no dispute that the Applicant was such an officer.

10. The term disciplinary action is defined in s 93B(1) of the TS Act to include directing an officer to resign, or to be allowed to resign, from the Teaching Service within a specified time. The Department must inform the Respondent of any decision it makes to dismiss a person from employment as an officer for a reason for which the accreditation of a person may be revoked: TA Act, s 42B.

11. The Respondent, which is constituted under the Education Standards Authority Act 2013 (NSW) (ESA Act), has various functions under the TA Act. The Respondent may delegate those functions, including to a member of staff of the Respondent: ESA Act, s 12B.

12. One of the functions of the Respondent is to assess a person’s suitability to teach, including on the basis of a ground on which the Respondent may revoke the person’s accreditation: TA Act, s 35(f). For this purpose, the Authority may obtain relevant information from, and disclose relevant information to, a school: TA Act, s 7.

13. Section 24 of the TA Act enables the Respondent to revoke a teacher’s accreditation. It provides as follows:

24 Revocation of accreditation

(1) The Authority may revoke the accreditation of a person on any of the following grounds—

(a) the Authority is satisfied that the person is a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012,

(b) the person is found guilty of an offence punishable by imprisonment for 12 months or more,

(c) the person is found guilty of an offence under this Act,

(d) the person is found guilty more than once during the period of 5 years immediately before the revocation of any other type of offence that, in the opinion of the Authority, involves an act or conduct that is of a nature that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach,

(e) the person has—

(i) been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or

(ii) been included in the list of persons maintained by the Secretary under section 7 (1) (e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service,

because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach,

(f) the Authority is satisfied that the person has failed to comply with any condition to which the person’s accreditation is subject,

(g) the Authority is satisfied that the person has failed to comply with any of the requirements of the professional teaching standards that apply to the person,

(h) the Authority has made an assessment the person is not suitable to teach under Division 4.

14. The use of “on any of the following grounds” in the introductory words to s 24(1) of the TA Act suggests the grounds for revocation are limited to those set out in the subsection. The Respondent relies on the grounds in s 24(1)(f) and (g) to support its revocation of the Applicant’s accreditation.

15. In addition, the use of “may” in the introductory words to s 24(1) of the TA Act indicates that the subsection confers a discretion to revoke: Interpretation Act 1987 (NSW), s 9(1). However, the discretion is not at large. It must be exercised having regard to the principle stated in s 4. It must also be exercised having regard to the following criteria set out in s 24B:

24B Criteria for determining revocation or suspension of accreditation on general grounds

The Authority is to take account of the following matters (where appropriate) when determining whether to revoke a person’s accreditation under section 24 or suspend a person’s accreditation under section 24A or 25 (4)—

(a) the nature and seriousness of the conduct concerned,

(b) the frequency of the conduct concerned,

(c) the recency of the conduct concerned,

(d) any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(1)(c)).

16. Section 24(1)(f) of the TA Act permits the revocation of a person’s accreditation on the ground of a failure to comply with a condition of the accreditation. Section 23A(2) of the TA Act provides that the accreditation of a person is subject to such conditions as may be specified in the rules of the Authority. The rules of the Authority are the rules it makes pursuant to s 25 of the ESA Act: TA Act, s 3(1) (definition of “rules of the Authority”). Section 1 of the NSW Teacher Accreditation Manual published on the Respondent’s website (the TA Manual) states that one of the conditions of accreditation is that a teacher must meet the requirements of the professional teaching standards for the relevant level of accreditation: Under the heading “Context”, the TA Manual states it constitutes rules under s 25 of the ESA Act. I note that the TA Manual in force during the TIP (that is the October 2022 version) is in the same terms.

17. Section 27(1) of the TA Act enables a person whose accreditation is revoked by the Respondent to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision to revoke.

18. Section 55(3) of the ADR Act provides that a person cannot make an administrative review application to the Tribunal about a decision of an administrator unless the person has duly applied for an internal review of the decision and the review is taken to have been finalised under section 53 (9) of that Act. An internal review must be conducted by an individual within the organisation other than the original decision-maker: ADR Act, s 53(3). The decision of the internal reviewer is taken to be the decision of the administrator: ADR Act, s 53(8).

Materials before Tribunal

19. At the hearing, the Applicant indicated that she relies on the following material:

1. The document entitled “Witness Statement of Patricia Mulhall in the Mulhall vs NESA NSW NCAT Tribunal RE:2024/00177853”, which was handed up at the hearing and marked for identification as “AH 1” (Applicant’s Witness Statement). This document replaces previous witness statements lodged by the Applicant. The Respondent did not object to it being handed up on this basis. The Applicant’s Witness Statement contains the Applicant’s written submissions in support of her case.

2. The document entitled “The Patch—Marking Criteria” and marked for identification as “AH 2”. This is a copy of a document that all parties agree was previously lodged by the Applicant but could not be located on the file during the hearing.

3. The bundle of documents entitled “Evidence for Patricia Mulhall” received by the Tribunal on 14 January 2025 (Applicant’s Evidence).

20. At the hearing, counsel for the Respondent indicated that the Respondent relies on the following material:

1. The documents contained in 2 volumes of documents each entitled “Documents under Section 58 of the Administrative Decisions Review Act 1997 (NSW)” received by the Tribunal on 20 June 2024 (Section 58 Documents).

The Section 58 Documents, which have consecutive page numbering despite being divided into volumes, were lodged by the Respondent pursuant to its obligation to do so under s 58 of the ADR Act.

The Applicant also relies on documents contained in the Section 58 Documents

2. The document entitled “Respondent’s Outline of Submissions” dated 20 September 2024 (Respondent’s Written Submissions).

3. The document entitled “Statement of Natali Fry” dated 20 September 2024 (Fry Original Statement), which includes several annexures. Annexure NF-2 is a copy of the 2018 Standards. Annexure NF-3 is a copy of the TA Manual in force at the relevant time (that is, the October 2022 version).

4. The document entitled “Reply Statement of Natali Fry” dated 21 January 2025 (Fry Reply Statement).

5. The document entitled “Statement of Paul Daniell” dated 19 September 2024 (Daniell Original Statement).

6. The document entitled “Reply Statement of Paul Daniell” dated 22 January 2025 (Daniell Reply Statement).

7. The document entitled “Aide memoire of updated evidence filed by the Applicant with page references” received by the Tribunal on 23 January 2025.

Background to current proceedings

21. It is necessary to set out the background to the current proceedings in some detail because the Respondent contends that the process implemented for assessing her professional competence as a teacher was unfair.

22. The Applicant began teaching in NSW public schools in the late 1990s, although she spent some years teaching in schools outside of NSW after she began teaching.

23. The Applicant was appointed as a teacher at Jindabyne Central School (the School) on 26 April 2022. The School is a government primary and secondary school operated by the Department of Education (the Department). The Applicant taught principally in the Technical and Applied Studies learning area.

24. The Applicant had two head teachers for Science and TAS during the relevant periods: Ms Belshaw (the Head Teacher) and Ms West who later became a Deputy Principal (the School Deputy Principal). The Applicant seems to have had a good relationship with the School Deputy Principal. However, the Applicant seems to have had an uneasy relationship with the Head Teacher. Indeed, the Head Teacher lodged a formal complaint about the Applicant’s conduct concerning lollies that the Head Teacher was alleged to have placed on the Applicant’s desk: see generally Applicant’s Evidence at pp 25PM−32PM. The Head Teacher alleged that the Applicant had returned them to her in the staff room in what the Head Teacher considered to be an aggressive manner. The Applicant alleges she returned the lollies because of a medical condition. The Department appears to have upheld the complaint: Applicant’s Evidence at p 31PM.

25. In 2022, the then relieving School Principal, expressed concerns about the Applicant’s teaching performance in Term 3 of 2022. These concerns resulted in the Applicant being placed on a Performance and Development Plan (PDP). The PDP was devised and then implemented after discussions with, and feedback from, the Applicant.

26. The PDP sought to provide the Applicant with support in relation to meeting standards 2, 3, 4 and 5 of the 2018 Standards (the teaching standards in issue). The failure to meet the teaching standards in issue was also the basis for the revocation of the Applicant’s accreditation. The standards are as follows:

1. Standard 2: Know the content and how to teach it.

2. Standard 3: Plan for and implement effective teaching and learning.

3. Standard 4: Create and maintain supportive and safe learning environments.

4. Standard 5: Assess, provide feedback and report on student learning.

27. The PDP was provided initially for 3 weeks, with a further 2 weeks added subsequently. The PDP included support meetings, lesson observations and mentoring by the School Principal, the Head Teacher and the School Deputy Principal: Section 58 Documents at pp 19−38.

28. After the end of the PDP, the School continued to have concerns about whether the Applicant was meeting the teaching standards in issue. The Applicant was then placed on a Teacher Improvement Program (TIP) with respect to the teaching standards in issue.

29. The TIP included lesson observations, reviews of lesson plans, and reviews of other documentation including assessment documentation, learning programs and student work samples. These assessments of the Applicant’s teaching capabilities are referred to in the documentation as observations. I will refer to them in these reasons as the TIP observations. The TIP was initially conducted over with a 5-week schedule, commencing in February 2023. Adjustments were subsequent made to the period to allow for missed TIP observations and the Applicant’s absence because of illness. All up, the duration of the TIP was around 10 weeks.

27. The Applicant points to evidence that the School Principal told her that the maximum period for a TIP was 12 weeks, and the period could not be extended beyond this: Section 58 Documents, Minutes of review meeting on 26 April 2023, p 284. This appears to be Departmental policy based on what is stated in s 5.1 of the Teacher Improvement Program Brochure lodged with the Tribunal by the Applicant as part of her evidence (TIP Brochure): Applicant’s Evidence at p 5PM.

28. The following is a brief summary of the TIP observations:

1. The TIP had originally scheduled 29 TIP observations.

2. However, 4 of the scheduled TIP observations were not carried out: 2 because the Applicant was on leave and 2 for other reasons.

3. Consequently, 25 TIP observations were actually carried out.

4. The 25 TIP observations consisted of a mixture of the following kinds of assessments:

1. 11 for Lesson Plans (which involved assessments of the Applicant’s lesson planning);

2. 9 for Lesson Observations (which involved assessments of the Applicant’s performance in the classroom);

3. 2 for Teaching and Learning Program observations (which involved assessments of teaching and learning programs, including teacher registration and annotation linked to faculty scope and sequence);

4. 1 for Work Samples (which involved an assessment of the Applicant’s feedback on student work samples).

5. 2 for Assessment Documentation (which involved assessments of the Applicant’s assessment documentation inclusive of task outline, link to assessment scope and sequence, marking criteria and guidelines).

5. 17 of the 25 TIP observations were carried out by the following teachers at the School:

1. 8 by the Head Teacher;

2. 6 by the School Principal;

3. 3 by the School Deputy Principal.

6. 8 of the 25 TIP observations were carried out by the following external teachers:

1. 6 by Ms Mawhood, EPMI: Deputy Principal Performance. EPMI is an acronym used in the Department for Employee Performance Management and Improvement;

2. 2 by Mr Wolter, Deputy Principal, Jerrabomberra High School.

7. The Applicant’s performance was assessed as being unsatisfactory in 24 of the 25 TIP observations. Ms Mawhood assessed the Applicant as satisfactory in only 1 of the 6 TIP observations she carried out. This TIP observation concerned a Lesson Observation. The other 8 Lesson Observations were all assessed as unsatisfactory, including two others carried out by Ms Mawhood and 1 carried out by Mr Wolter.

32. The TIP observations involved a written feedback document given to the Applicant by the observer. The Applicant signed each of these feedback documents. The feedback was also discussed with the Applicant at meetings held at the School. These meetings were minuted by a person other than a participant in the TIP. The Applicant had an entitlement for a support person in these meetings. At the hearing, the Applicant indicated the support person was usually someone from her union.

33. After the TIP concluded, the Applicant was provided with a copy of a proposed “Principal’s Report at the Completion of the Teacher Improvement Program” (Principal’s Report) prepared by the School Principal dated 29 May 2023: Section 58 Documents at pp 457−472. In accordance with Departmental policy, such reports must be submitted to the Director Educational Leadership and Professional and Ethical Standards (PES) of the Department. The Report recommended that the Applicant’s performance was assessed as not meeting the required level. The Applicant was informed that she had 14 days to prepare a response before it was submitted to PES: Section 58 Documents, Minutes of Meeting on 29 May 2023 at p 477.

34. The Applicant provided a response to the Principal’s Report on 8 June 2023 (Applicant’s Principal’s Report Response): Section 58 Documents at pp 481−485. The Applicant disagreed with the Principal’s characterisation of her performance and gave reasons as to why the characterisation was wrong. The School Principal replied to the Applicant’s Principal’s Report Response (the Principal’s Reply): Section 58 Documents at pp 486−488.

35. After considering the Applicant’s Principal’s Report Response, the School Principal submitted both the Principal’s Report, the Applicant’s Principal’s Report Response and the Principal’s Reply to the submission to PES: Section 58 Documents at pp 457−488. An external review of the Principal’s Report was then carried out by Ms Pfeffer, Principal, Employee Performance Management and Improvement of the Department: Section 58 Documents at pp 511−521. In her report (the PES Review Report) dated 28 August 2023, Ms Pfeffer decided that the Principal’s recommendation should be upheld.

36. The Director, Employee Performance, PES (the PES Director) wrote a letter to the Applicant dated 4 September 2023: Section 58 Documents at pp 523−525. It advised the Applicant that the PES Director was considering taking disciplinary action. The Applicant was given with 14 days to make a submission and provide additional information. The Applicant made a submission in response: Section 58 Documents at pp 527−535. Again, the Applicant disagreed with statements in the PES Review Report and indicated that she thought the implementation of the TIP was procedurally fair.

37. After considering the Applicant’s response, the PES Director wrote to the Applicant on 28 September 2023 to inform the Applicant that the Director had decided to take disciplinary action under s 93J of the TS Act: Section 58 Documents at pp 537−539. The Applicant was directed to resign or face dismissal for failing to act on a lawful direction after being found unsatisfactory following an improvement program. The letter stated that 16 October 2023 was to be the Applicant’s last day of service. The letter also advised the Applicant that she would not be permitted to seek or accept permanent re-employment or undertake casual teaching with the Department. The Applicant subsequently resigned her employment.

38. The Applicant filed an application in the NSW Industrial Relations Commission on 20 May 2024 claiming unfair dismissal in respect of the termination of her employment. Her application was dismissed by the Commission because it was not brought within time: Mulhall v Secretary in respect of the Department of Education [2024] NSWIRComm 1049.

39. PES, as required by s 42B of the TA Act, advised the Respondent on 24 October 2023 that the Applicant had been directed to resign: Section 58 Documents at p 540.

40. In a letter dated 21 January 2024, the Executive Director, School and Teaching Standards (STS Executive Director) of the Respondent wrote to the Applicant indicating the Respondent intended to revoke the Applicant’s accreditation under section 24(1)(g) of the TA Act and inviting the Applicant to make submissions as to why her accreditation should not be revoked: Section 58 Documents at pp 546−547. In her submissions, the Respondent alleged that the School Principal and the Head Teacher engaged in unethical behaviour and were biased: Section 58 Documents at pp 548−551. The Applicant also submitted that she experienced emotional stress during the TIP.

41. After considering the submissions, the STS Executive Director wrote a letter dated 6 February 2024 in which the Executive Director informed the Applicant that the Respondent had revoked her accreditation (the Original Revocation Decision): Section 58 Documents at pp 556−557. The Applicant was also informed of her entitlement to seek an internal review of the Original Revocation Decision.

42. On 21 February 2024, the Applicant sought an internal review of the Original Revocation Decision: Section 58 Documents at pp 558−567. Ms Natali Fry, who is an inspector for the Respondent, was given the task of reviewing the material concerning the Applicant and provided the Applicant with the opportunity to provide additional material: Section 58 Documents at pp 574−575. Ms Fry prepared a report in which she recommended that the Original Revocation Decision should be affirmed: Fry Original Statement at [33]–[39]. Ms Fry’s recommendation was endorsed by a Senior Inspector and also by the Director, Regulation of Schooling of the Respondent: Section 58 Documents at p 1.

43. Mr Paul Daniell, who is the Deputy Chief Executive Officer of the Respondent, was the internal reviewer. Mr Daniell also reviewed the material concerning the Applicant having regard to Ms Fry’s report and recommendation. In a decision dated 12 March 2024, Mr Daniell affirmed the Original Revocation Decision (Affirmed Revocation Decision): Section 58 Documents at pp 2−14.

44. The Applicant applied to the Tribunal on 8 March 2024 for an administrative review of the Affirmed Revocation Decision.

45. I note that the application form used by the Appellant to commence the current proceedings appears to be an external appeal form. Nevertheless, both the Tribunal and the Respondent have treated the Review Application as an administrative review application. Section 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) requires the Tribunal to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Given this duty and that the Applicant is self-represented, it is appropriate to focus on the substance of the Review Application rather than its form. It is abundantly clear that the Applicant is seeking an administrative review of the Affirmed Revocation Decision despite the form she initially used to commence the proceedings.

Evidence concerning the internal review process

46. It is useful to set out the evidence of Ms Fry and Mr Daniell concerning the internal review process in which they participated.

47. Before doing so, it should be noted that the evidence of both Ms Fry and Mr Daniell refer to a monitoring folder kept in Microsoft Teams by the Applicant while she was employed at the School (Teams Monitoring Folder). Such folders appear to be repositories provided by the Department for its teachers to store information, including information about lessons and assessments. The Applicant submits that the contents of the Teams Monitoring Folder are important for assessing her competency as a teacher and that the Respondent failed to take its contents into account.

Ms Fry’s evidence

48. Ms Fry is the Inspector, School Registrations Unit, Regulation of Schooling, with the Respondent. Ms Fry commenced in the role in July 2017. Ms Fry also holds an appointment as an Inspector under s 13 of the ESA Act. He role involves leading the planning and implementation of the Respondent’s regulatory programs for non-government schools, the government and non-government schooling systems, course providers for overseas students and home-schooling families.

49. Ms Fry’s role also includes conducting internal reviews of the Respondent’s teacher accreditation decisions and preparing reports in connection with such reviews. Ms Fry prepared such a report as the designated inspector for the internal review of the Original Revocation Decision.

50. Ms Fry has provided 2 statements for the current proceedings. The Applicant did not seek to cross-examine Ms Fry about either statement. Consequently, the Respondent submits that I should give Ms Fry’s evidence significant weight because it is essentially unchallenged.

51. Ms Fry’s evidence is important because her draft report provided the basis for Mr Daniell’s internal review decision.

52. In the Fry Original Statement, Ms Fry states the following:

1. Ms Fry looked at the following documents when preparing her draft report:

1. the TIP documents, including meeting documentation and weekly documentation (for example, lesson observations); and

2. documents relating to the end of the TIP, the Applicant’s continued failure to meet the teaching standards in issue, including:

1. the Principal’s Report; and

2. final meeting minutes and the Applicant’s Principal’s Report Response; and

3. the Principal’s Reply; and

3. a review of the TIP by a principal who was not involved in the original decision on the TIP; and

4. the show cause letter to the Applicant and her response to the letter and the final penalty letter from the Department directing the Applicant to resign or face dismissal; and

5. the notification from the Department advising the Respondent of the Applicant’s dismissal; and

6. the Respondent’s notice of intention to revoke the Applicant’s accreditation; and

7. the Applicant’s response to the notice of intention to revoke her accreditation; and

8. the coversheets and material associated with approvals of the Original Revocation Decision; and

9. the letter advising Ms Mulhall of the decision to revoke her accreditation; and

10. correspondence exchanged between the Applicant and the Respondent about the internal review, including the Applicant’s application for the internal review.

2. Ms Fry also looked at the additional documents provided by the Applicant: see Section 58 Documents pp 576−580.

3. Ms Fry says the documents were the supporting documents she sent to the internal reviewer, Mr Daniell, along with her draft internal review report.

4. Ms Fry assessed whether procedural fairness had been afforded to the Applicant and whether the evidence available of the Applicant’s teaching practice demonstrated that her practice did or did not meet the teaching standards in issue.

5. Ms Fry did not rely solely on the Department’s assessment as to whether the Applicant was meeting the teaching standards in issue. She says she reviewed all the documents provided and considered the additional documentation provided by the Applicant.

6. Ms Fry’s review identified that the Applicant did not meet the teaching standards in issue. She also states she formed the opinion that: (1) the processes that had been implemented leading up to the Original Revocation Decision had been procedurally fair; and (2) the available evidence supported the making of the Original Revocation Decision.

7. Ms Fry’s draft report and the supporting documents were sent to Mr Daniell for his review, but he made no changes to the report. The draft report recommended that the Applicant’s accreditation should be revoked in accordance with sections 24(1)(f) and 24(1)(g) of the TS Act and the Original Revocation Decision should be affirmed.

53. The Fry Original Statement canvasses Ms Fry’s own analysis of the assessments for some of the TIP observations. The assessments she chooses are focused on documents provided by the Applicant during the TIP, such as lesson plans and assessment tasks set for students, that Ms Fry would be capable of assessing without seeing the Applicant in the classroom. Ms Fry agrees with all the assessments that indicate unsatisfactory performance by the Applicant and gives detailed reasons why she agrees. I find Ms Fry’s independent assessments both useful and persuasive. She is an experienced teacher who is well-versed in assessing teacher performance for the Respondent.

54. Finally, the Fry Original Statement deals with subsequent submissions made, and evidence provided, by the Applicant. Ms Fry indicates that none of them would alter her conclusions. In particular, Ms Fry notes that she took into account the fact that the Applicant was stressed by the TIP and needed to take some leave during the TIP. Ms Fry also states that the Respondent was wrong to suggest that the Respondent had direct access to the Teams Monitoring Folder. In any event, Ms Fry states that the Folder would be unlikely to alter her conclusions given the extensive amount of other material she reviewed.

55. The Fry Reply Statement addresses the evidence provided by the Applicant in the Applicant’s Evidence and the Applicant’s Witness Statement. Ms Fry states that nothing in this material causes her to alter her conclusions. Indeed, she states the evidence (particularly documentation concerning assessment tasks) support her original decision. Again, Ms Fry provides detailed reasons why she finds the documentation deficient.

Mr Daniell’s evidence

56. Mr Daniell is, as mentioned previously, the Deputy Chief Executive Officer of the Respondent. He commenced in that role at the beginning of 2022. As the Deputy Chief Executive Officer, Mr Daniell has 2 broad roles: (1) to coordinate strategic policy and organisational work across all of the Respondent’s divisions; and (2) to deputise for and lead priority projects for the Chief Executive Officer. His role includes conducting internal reviews.

57. Mr Daniell conducted the internal review of the Original Revocation Decision. Mr Daniell affirmed the Original Revocation Decision, after taking into account Ms Fry’s report, for the following reasons:

1. Mr Daniell found that the Applicant was offered multiple opportunities during the TIP process to engage with the teaching standards in issue identified as requiring improvement and to adjust her teaching practice to demonstrate proficient practice.

2. In relation to whether the Applicant met the teaching standards in issue, Mr Daniell found:

1. Standard 2: The Applicant was unable to independently demonstrate her compliance with the Standard as evidenced by 11 lesson plans that were found to be unsatisfactory.

2. Standard 3: The Applicant’s ability to plan and implement effective teaching and learning in the lessons taught was not further developed during the TIP and the advice and feedback provided to her was not taken on board.

3. Standard 4: The reviews documentation provided evidence that the Applicant did not regularly establish clear transitions between activities within the lesson. Although improvement strategies were provided, there was no evidence of the Applicant achieving a proficient standard.

4. Standard 5: The evidence identified that the Applicant was unable to follow and adhere to the School’s established assessment and reporting requirements.

3. Mr Daniell concluded, based on the documentation he reviewed, that the processes implemented leading to the Original Revocation Decision were procedurally fair. He also concluded that the Applicant’s assertion that she had demonstrated her teaching met the teaching standards in issue was not supported by the evidence she provided.

4. After considering the evidence and considering the factors of section 24B of the TA Act, Mr Daniell said he was satisfied that the accreditation of the Applicant should be revoked in accordance with sections 24(1)(f) and 24(1)(g) of the TA Act and s 1 of the TA Manual.

58. Mr Daniel also provided 2 statements for the current proceedings.

59. In the Daniell Original Statement, Mr Daniell states the following:

1. Mr Daniell says he always reviews the supporting documents before making a decision on an Internal Review. Although he does not necessarily read every word of every document, he makes himself familiar with the contents of every document and look for things pertinent to his decision.

2. Mr Daniell has no record of having contacted Ms Fry concerning her draft report.

3. Mr Daniell says that he determined that the evidence showed the Applicant had that Ms Mulhall had not met the relevant teacher stands. He also determined that the Applicant had been afforded procedural fairness by the Respondent in its decision to revoke her accreditation.

4. Mr Daniell points to the following features of the Applicant’s case:

1. Mr Daniell did not have access to the Teams Monitoring Folder despite the Applicant’s assertion to the contrary. He says this is software that is administered by the Department. In any event, he does not believe it would have made a difference to his decision even if he had been given access to the Folder.

2. Mr Daniell says he considered carefully whether the documents available to him demonstrated any bias on the part of any individual involved in the processes of assessing the Applicant’s but did not consider that they did so. He says that some of the incident’s to which the Applicant point may involve a misunderstanding on the part of the Applicant.

1. Mr Daniell does not consider that the additional medical notes provide by the Applicant after his decision indicates that she had was unfit to be assessed. He points to the fact that the Applicant did not avail herself of the offers of support that had been provided to her.

2. Mr Daniell does not agree that the TIP imposed an unreasonable workload on the Applicant.

5. Mr Daniell says he affirms his internal review decision for the following reasons:

“(a) There is no evidence of an actual bias against [the Applicant] that resulted in procedural unfairness, particularly not by a collection of individuals all of whom were allegedly biased in assessing her performance against the standards;

(b) Despite [the Applicant] disputing the facts of some events (as she has recorded subsequently) from the Department (as were recorded at the time), there is no real evidence that these discrepancies are either in any or all cases as claimed by [the Applicant] nor where they may be, nor is there evidence they were intentional by the Department. Therefore, there is no evidence that these discrepancies indicate bias or procedural unfairness. Nor are these discrepancies of sufficient scope and nature in my mind that they fundamentally alter the assessment of her performance against the Standards;

(c) [The Applicant] was provided every opportunity by the Department and [the Respondent] in their processes for her to provide any additional information to be included as part of any decision;

(d) [The Applicant] has not provided evidence that she had a mental health condition before the performance processes commenced, around which the Department ought to have made reasonable adjustments to support her performance in the role, and in any event the evidence indicates the School and the Department attempted to support her in relation to her health; and

(e) The information recorded and available regarding [the Applicant’s] teaching practice when considered holistically remains that [the Applicant] does not meet the Standards.”

60. In the Daniell Reply Statement, which was also prepared after the lodgement of the Applicant’s Evidence, Mr Daniell states the evidence does not change his view that the Applicant’s accreditation should be revoked. In particular, he notes the following:

1. The new material in the form of teaching and learning materials presented by the Applicant provide evidence of only a limited part of the expected “chain of logic” inherent in a teacher’s professional practice.

2. Although the Applicant’s Witness Statement includes a little more specificity as to the bias alleged by the Applicant, Mr Daniell continues to assess that the totality of the evidence presented by the Applicant does not demonstrate bias on the part of any individual involved in assessing the Applicant’s performance and therefore does not alter his judgment regarding the fairness of the process afforded to the Applicant.

3. The “It Takes Two” document supplied by the Applicant contains details about the classroom materials used for only one activity that was part of the TIP. Again, he states that classroom teaching materials are a necessary but limited part of the expectation of professional teaching practice and this one example does not alter his views.

4. In relation to the TIP Brochure, Mr Daniell says that Respondent’s role is not to assess the Department’s process or whether or not the actual experience of the Applicant during the TIP accords with the Department’s policy. These matters are only relevant to the extent they might have a bearing on whether the Applicant was afforded procedural fairness. Mr Daniell continues to believe assess that the Applicant was afforded procedural fairness.

5. Mr Daniell does not consider that the limited additional material (which includes assessment tasks with associated grading rubrics and some recipes) provided by the School in compliance with a summons is of little evidential value compared with the other material he previously reviewed.

61. Mr Daniell, unlike Ms Fry, was cross-examined by the Applicant at the hearing. His oral evidence included the following:

1. Mr Daniell outlined the steps involved before a teacher’s accreditation can be revoked by the Respondent. He indicated that the Respondent only became involved in this case after the Applicant ceased to be an employee and the Respondent was notified that this had happened. Before this, performance issues were managed first by the School and then by the Department.

2. Mr Daniell says he looked at all the information before him up until that point and made his own independent assessment as to whether the material was sufficient to justify revoking the Applicant’s accreditation.

3. Mr Daniell conceded that he did not look at the Teams Monitoring Folder even though one of the criticisms made of the Applicant was that she did not keep the Folder up to date. Mr Daniell stated that the Folder would need to be provided by the Department as the Respondent did not have access to the Department’s electronic systems. However, he conceded that the Respondent had power to require access to be given. He said he did not seek access because it was not clear from the Applicant’s submissions that it was necessary. Nevertheless, in his view the material before him (looked at holistically) was sufficient to justify the decision to revoke accreditation even in the absence of the Folder.

4. When questioned about whether he addressed the Applicant’s allegations of bias, Mr Daniell indicated that he took those allegations into account when assessing the material before him. He pointed to what he said about them in his internal review report. He stated that he did not consider the material before him substantiated the allegations.

5. The Applicant put it to Mr Daniell that the School Principal was wrong when she said in the Principal’s Report that the Applicant had failed to provide HSC trials exams back to students. He stated that he did not consider that, even if this was incorrect, it was sufficient on its own to alter his view that the material generally was sufficient to justify revocation. He also stated that he did not think that the absence of some of the minutes of meetings concerning the Applicant’s performance was decisive because attending a meeting is not evidence of compliance with 2018 Standards.

6. The Applicant also put to Mr Daniell that her use of YouTube videos in lessons was not inappropriate. In the Principal’s Report, the School Principal stated that the Applicant continued to use YouTube videos despite being counselled not to do so because the videos were not from credible sources: Section 58 Document at p 501. Mr Daniell agreed with the Principal that only material created by a credible source should be used in lessons.

Jurisdiction and role of Tribunal

62. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation enables a person to make an application to the Tribunal for an administrative review under the ADR Act of the decision: ADR Act, s 9; NCAT Act, s 30(1). As mentioned above, s 55(3) of the ADR Act requires the person to apply for and obtain a finalised internal review of the decision before making such an application.

63. Section 27 of the TA Act enabled the Applicant to apply to the Tribunal for an administrative review of the Respondent’s decision to revoke the Applicant’s accreditation. The Applicant lodged her Review Application after applying for and obtaining a finalised internal review of the decision. I am therefore satisfied that the Tribunal has jurisdiction to consider the Review Application.

64. The role of the Tribunal in an administrative review is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal is not limited to the material before the decision-maker whose decision is under review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [37]−[38], [45]−[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). The Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the decision-maker who made the decision: ADR Act, s 63(2). This results in the Tribunal effectively standing in the shoes of the decision-maker: Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [98]; NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 at [86].

65. The Tribunal in an administrative review is not bound by the rules of evidence: NCAT Act, s 38(2). Even so, it must base its findings on logically probative material, and not on mere suspicion or speculation: Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [54]. In addition, it must consider the matter afresh, with neither party having an onus of proof except for a practical onus on the party who asserts a fact to prove its existence: Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47]; Meacham at [83].

66. Under s 63(3) of the ADR Act, the Tribunal may determine an administrative review application by:

1. affirming the decision of the administrator under review; or

2. varying the decision; or

3. setting the decision aside and making a decision in substitution; or

4. setting the decision aside and remitting it to the administrator for reconsideration in accordance with any directions or recommendations of the Tribunal.

Applicant’s case

67. The Applicant asks the Tribunal to set aside the Affirmed Revocation Decision. The following is a summary of submissions drawn from the Applicant’s Witness Statement and oral submissions made at the hearing:

1. Lack of transparency

The Applicant points to various episodes at the School, including before the TIP, as evidence that there was a lack of transparency. In particular, she points to the following:

1. The Applicant submits that she had a very uncomfortable relationship with the Head Teacher, which she traces back to a meeting in 2022 to discuss her concerns about a lack of the support given by the Head Teacher and the School Deputy Principal (who was then job sharing the Head Teacher role).

2. The Applicant refers to the complaint made against her by the Head Teacher, which further soured their relationship.

3. The Applicant says the School Principal “insisted” that the Head Teacher remain as the Applicant’s Head Teacher, even during the TIP. The Applicant accuses the School Principal of targeting her at the behest of the Head Teacher. The Applicant says she was forced to sign the PDP.

4. The Applicant says the School Principal portrayed the TIP as harmless observations and feedback designed to refine the Applicant’s teaching skills. The Applicant says the School Principal gave her no indication the lesson observers would then determine if the Applicant would keep her job and career.

5. The Applicant claims the School Principal did not comply with the summons issued in the current proceedings for documents in the Teams Monitory Folder. She says she has not been provided with the documentation she needs.

2. Personal bias and misinformation given in the TIP

The Applicant alleges that the School Principal was biased against her. The Applicant submits that she found the School Principal’s feedback particularly skewed and aimed at finding any fault with her lessons. The Applicant submits the Principal’s Report contained several inaccuracies. For example, she points to the Report asserting that the Applicant did not return trial HSC exams to the students despite emails from the School Deputy Principal suggesting otherwise.

The Applicant also submits that it was inappropriate for the Head Teacher to be involved in the TIP because she had made disparaging comments and formal complaints about the Applicant. She alleges the Head Teacher was biased against her.

The Applicant also submits that there were several inaccuracies in the PES Review Report. For example, the Applicant submits that the Report was incorrect to suggest that she was absent or on sick leave wherever possible.

3. Unfairness in the TIP

The Applicant submits that the TIP was unfair because it was limited to 10 weeks in duration. The work she had to do, and the meetings she had to attend, to complete the TIP were considerable and caused her stress. Also, the 10-week program did not provide sufficient time for her to address the TIP observers’ concerns (with which she still disagrees) about her performance. This was exacerbated by the need for the TIP to be paused while she took leave to address her mental health.

Respondent’s case

68. The Applicant asks the Tribunal to affirm the Affirmed Revocation Decision. The following is a summary of submissions drawn from the Respondent’s Written Submissions and oral submissions made at the hearing:

1. The Tribunal must be satisfied of the following two requirements to find that the correct and preferable decision is to revoke the Applicant’s accreditation:

1. one of the grounds in s 24(1) of the TA Act is made out; and

2. it is appropriate to revoke the Applicant’s accreditation having regard to the matters in s 24B of the TA Act and the protection of children as the paramount consideration.

2. In relation to the first requirement, the Respondent relies on the grounds in both s 24(1)(f) and (g) of the TA Act. Accreditation Act. It is submitted that:

1. both grounds turn on whether the Tribunal can be satisfied that the Applicant has failed to comply with one or more of the teaching standards in issue; and

2. it is appropriate for the Tribunal to give substantial weight to the independent professional opinions of the experienced teachers who have reviewed the extensive documentation about the Applicant and then concluded it demonstrated she did not meet the teaching standards in issue; and

3. the Tribunal should be satisfied that the grounds have been made out despite the evidence and submissions of the Applicant mentioned in (3) below.

3. The Applicant’s evidence and submissions do not address the substance of the underlying contemporaneous assessments of her performance. In particular, the Respondent submits the following:

1. The claim of lack of transparency and unfairness is not made out particularly as at the very least the potential effect of the TIP was explained to the Applicant by her union representative.

2. The claim of bias made against the School Principal and Head Teacher is not made out by the contemporaneous documentation, particularly the minutes of meetings.

3. The claim of various inaccuracies and misinformation in the Principal’s Report is not made out because the examples given appear to be areas of disagreement as to the characterisation or proper assessment of events. In any event, they do not have any bearing on the observations of the Applicant’s performance during the TIP.

4. The claim that the Applicant had to spend additional time of about 10 hours completing work for the TIP is not made out because it does not take into account the reduction in her teaching load and the support offered to her.

5. The claim that the process was unfair because it occasioned stress to the Applicant is not made out because: (1) she was offered support but it was rejected by her; and (2) the TIP was paused to allow her to take leave for her mental health; and (3) she was asked about her health after her leave and she indicated it was OK.

4. In relation to the second requirement, the Respondent submits revocation is appropriate for the following reasons:

1. Initially, the Respondent referred to both Cantwell and Lavers as authority for the proposition that the Tribunal should not be concerned with the rehabilitation or other concerns of the teacher. However, in its oral submissions, the Respondent conceded that the statements to this effect in both cases may be going too far. I have already indicated, at [7] above, why I consider these statements go too far.

2. The Applicant’s failure to meet the teaching standards in issue involve standards that are fundamental to a teacher’s capacity to deliver a high-quality and effective education to students in an environment that protects their wellbeing. The standards are ones that students, parents and community members are entitled to expect of any teacher. It is submitted the nature and seriousness of the failure is a relevant consideration in favour revocation for the purposes of s 24B(a) of the TA Act.

3. The failure was also frequent and recent for the purposes of s 24B(b) and (c) of the TA Act.

4. The Applicant’s submissions do not suggest that she has taken any steps to address the shortcomings identified in her performance, for example by further education or mentoring.

Threshold question: is the TIP reliable?

What the Tribunal can decide

69. The Respondent relies principally on the results of the TIP to support its revocation of the Applicant’s accreditation. In response, the Applicant submits the TIP cannot be relied on for this purpose because:

1. the Applicant alleges there was personal bias against her by two of the TIP observers (namely, the School Principal and the Head Teacher); and

2. the Applicant alleges the TIP was unfair.

70. These allegations raise a threshold question: what weight (if any) should be given to the TIP as evidence about the Applicant’s competence as a teacher? A proper understanding of the limits of the Tribunal’s role in the current proceedings is vital to answering this question.

71. Section 27(1) of the TA Act limits the role of the Tribunal in the current proceedings to reviewing the decision of the Respondent to revoke the Applicant’s accreditation. Accordingly, the role of the Tribunal is neither to review the decision to place the Applicant on the DPD or TIP nor to review the decision of the Department to require the Applicant to resign her employment. These were decisions made by persons other than the Respondent and they are not decisions about revoking the Applicant’s accreditation.

72. Moreover, the role of the Tribunal is not simply to find error on the part of the decision-maker over whose decisions it has administrative review jurisdiction, let alone by any other person. As Judge Kingham said in Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [12] in relation to the exercise of QCAT’s comparable administrative review jurisdiction:

“QCAT stands in the shoes of the Board and is asked to exercise the Board’s powers and discretions. There is no presumption that the Board’s decision was correct and Mrs Kehl need not demonstrate any error in the Board’s process for making the decision or the reasons it gave for doing so. QCAT does not have to find a legal or factual error in order to make a different decision. It is enough for QCAT to conclude that another decision is the correct and preferable decision.”

73. The Tribunal must make its own independent decision based on the material currently before it, including material that was not before the decision-maker whose decision under review.

74. I do not consider it useful for the Tribunal to approach the Review Application by asking itself whether the Respondent made an error by relying on the TIP. This is especially so where, as in the current proceedings, there is material before the Tribunal in addition to the material before the decision-maker. The focus in the the current proceedings must be what the Tribunal considers to be the correct and preferable decision having regard to the material currently before it.

75. With this focus in mind, evidence of bias and unfairness can nevertheless be relevant to the Tribunal’s deliberations to the extent each affects the TIP’s reliability as a measure of the Applicant’s competence as a teacher. If the TIP is unreliable, then its results would be insufficient to support a decision to revoke the Applicant’s accreditation. However, if the TIP is reliable, then the issue would be whether its results are sufficiently probative to support a decision to revoke the Applicant’s accreditation.

73. I will approach the Applicant’s allegations on this basis.

Legal principles

77. At general law, certain decision-makers are required to afford procedural fairness to persons whose interests may be adversely affected by their decisions: Kioa v West (1985) 159 CLR 550 at 584 (Mason J). Procedural fairness is comprised of two rules: (1) the hearing rule; and (2) the bias rule: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) at [8.12]. The hearing rule requires a decision-maker both to warn a person of the risk of an adverse decision against them and give the person a reasonable opportunity to be heard before the decision is made: Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [101]. The bias rule prevents the decision-maker from making a decision if the decision-maker is affected by actual or apprehended bias: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [5]−[6].

78. As mentioned, it is not the role of the Tribunal in the current proceedings to review the decisions of persons other than the Respondent because the Tribunal does not have jurisdiction to do so. For instance, it would be beyond the Tribunal’s remit to set aside or remake decisions of the Department concerning the TIP because of a denial of procedural fairness. Nevertheless, in my view the rules of procedural fairness can still provide a useful guide for assessing whether the Applicant’s allegations of bias and unfairness affect the reliability of the TIP.

79. Not every denial of procedural fairness necessarily points to unreliability. However, it seems to me that two scenarios covered by the rules of procedural fairness offer useful guides in assessing the reliability of the TIP.

80. Firstly, the involvement of biased TIP observers might affect the reliability of their observations. At general law, a decision made when there is actual or apprehended bias will make a decision void regardless of the effect the bias might have had on the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [1] and [6]. However, in the present context where procedural fairness is being used as a guide to reliability rather than as an independent review ground, I think a distinction needs to be drawn between actual and apprehended bias.

81. Actual bias requires proof of “a pre-existing state of mind which disables the decision-maker from undertaking or renders [the decision-maker] unwilling to undertake any or any proper evaluation of the materials before [the decision-maker] which are relevant to the decision to be made”: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 (French J). A finding of actual bias should not be made lightly and requires cogent evidence: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] (McColl JA).

82. Apprehended bias is different. The test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”: Ebner at [6]. The purpose of the “double might” in the test is to stress that the apprehended bias rule is concerned as much to preserve the public appearance of independence and impartiality on the part of the decision-maker as it is to preserve the actuality: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [18] (Kiefel CJ and Gageler J). The test involves one of objective possibility rather than probability: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59]

83. In my view, the Applicant needs to point to cogent evidence of actual bias on the part of the School Principal or Head Teacher (or both) to cast sufficient doubt on the reliability of their observations. The reliability of their observations would not necessarily be called into question if only apprehended bias were involved. This is because the apprehended bias test is focused on the objective possibility of partiality rather than on its actuality. Consequently, a decision-maker who satisfies the apprehended bias test may nevertheless be able to make reliable decisions if the decisions are unaffected by actual bias.

84. Secondly, a failure to provide the Applicant with appropriate opportunities to make representations concerning the TIP and its administration, or to take those representations into account, might affect the TIP’s reliability. This is because relevant material that could have affected the results may not have been presented or considered. An absence of such relevant material carries the risk that the results may not provide an accurate and complete picture of the Applicant’s performance.

85. I now turn to the consider whether the Applicant’s allegations of bias and unfairness affect the reliability of the TIP.

Is the TIP unreliable because some of the TIP observers were biased?

86. The Applicant points to minutes of a meeting she had with the School Principal to show that the Applicant raised the issue of bias early on and it was ignored: Applicant’s Evidence at pp 23PM−24PM. I do not understand the Respondent to deny that this meeting occurred or that the Applicant had expressed her concerns about bias. The Applicant alleges that the Head Teacher commonly made derogatory comments about her in the staff room. I have already noted that the Head Teacher made a formal complaint against the Applicant some time before the TIP commenced. The Applicant also alleges that both the School Principal and Head Teacher were simply using the TIP to get rid of her.

87. At the hearing, I expressed some disquiet about the Head Teacher being an observer for the TIP because she had made a formal complaint against the Applicant. I suggested this could arguably give rise to an apprehension of bias even if there was no actual bias. Given my disquiet, I asked Mr Fuller, who appeared as counsel for the Respondent, for submissions about the issue of the Head Teacher’s bias. Mr Fuller made the following oral submissions on behalf of the Respondent:

1. The complaint related to a discrete incident and was upheld. Moreover, the complaint was finalised 4 months before the TIP commenced.

2. The Head Teacher was only one of several observers for the TIP and there was virtual unanimity among the observers concerning the Applicant’s unsatisfactory assessments during the TIP. The Head Teacher was the observer in only 8 of the 25 assessments.

3. Consequently, it would make no difference to the general consensus of the TIP observers even if the Head Teacher’s observations were discounted.

4. The written material in the Section 58 Documents disclosed no evidence of bias during the TIP. The Respondent points to email responses from the Head Teacher it submits are cast in professional terms in response to sometimes intemperate emails from the Applicant.

5. It was appropriate for the Head Teacher to be involved in the TIP in respect to one of the teachers under her jurisdiction.

6. The School Principal rather than the Head Teacher was ultimately responsible for the TIP.

88. For the reasons I have already given, I consider that the Applicant needs to point to cogent evidence showing actual bias by the School Principal and Head Teacher because an apprehension of basis would not necessarily cast doubt on the reliability of the TIP.

89. I can see no cogent evidence of actual bias based on the material before me. The minutes of meetings, TIP observation feedback reports and exchanges of emails (to the extent they involve the School Principal and Head Teacher) appear to me to show that they sought to conduct themselves in a professional manner given the seriousness of the task at hand. As evidence of bias on the part of the School Principal, the Applicant points to various statements in the Principal’s Report that she says are incorrect. Even assuming the statements are incorrect, they are at best very indirect evidence, rather than cogent evidence, of actual bias.

90. In any event, I note that neither the School Principal nor the Head Teacher were called to gave evidence by either party. Accordingly, I would be reluctant to make findings of actual bias against them because they could potentially have grave professional consequences. It would be unfair to make such findings without first affording each of them with an opportunity to be heard. It seems to me that the Applicant’s allegations largely reflect her apprehensions of bias. To my mind, this is insufficient in the absence of cogent evidence of actual bias to cast doubt on the reliability of the TIP.

91. Even if I am wrong about the insufficiency of apprehended bias as a basis for challenging the reliability of the TIP, bias of this kind (assuming it could be made out in this case) would in my view be relevant only for the TIP observations of the Head Teacher because she had formally complained about the Applicant. The overwhelming consensus among the other TIP observers was that the Applicant’s performance in the observed assessments was unsatisfactory. In addition, some of the observations of the Head Teacher were based on written material rather than observations of the Applicant in a classroom environment. As previously mentioned, Ms Fry has independently assessed the feedback and agreed with it. Consequently, I do not consider that the overall reliability of the TIP is compromised.

Is the TIP unreliable because it was unfair?

92. The Applicant’s Written Statement appears to rely on what seems to be an amalgam of the following claims in support of the allegation that the TIP was unfair:

1. The Applicant says there was a lack of transparency that predated the TIP, including in relation to the handling of the Head Teacher’s formal complaint against her and the Applicant’s placement on the DPD.

2. The Applicant says that the School Principal portrayed the TIP as harmless observations and feedback designed to refine her teaching skills and the School Principal gave her no indication the TIP observers would then determine if she would keep her job or career.

3. The Applicant says that both the Principal’s Report and the PES Review Report contain misleading or incorrect statements about the Applicant and her performance during the TIP.

4. The Applicant says the TIP was unfair because it was limited to 10 weeks in duration and the work she had to do, and the meetings she had to attend, to complete the TIP were considerable and caused her stress. Also, she says the 10-week program did not provide sufficient time for her to address the observers’ concerns (with which she still disagrees) about her performance. This was exacerbated by the need for the TIP to be paused while she took leave to address her mental health.

93. I will address each of these 4 claims in turn.

94. In relation to the first claim, pre-TIP conduct is of limited relevance to the issue of the reliability of the TIP. At most, it is relevant to the issue of bias. I have already found that there is insufficient evidence to demonstrate bias.

95. In relation to the second claim, the following material before me indicates that the Applicant was made aware of the purpose and significance of the TIP:

1. The minutes of an initial meeting held on 20 February 2023 on the TIP indicate that the Applicant was informed about the purpose of the TIP: Section 58 documents at pp 133−40. This meeting was attended by the School Principal, the Head Teacher, the Applicant and her support person and the minute taker.

2. The Applicant herself concedes that her union made her aware of the potential consequences of an unsatisfactory TIP: Applicant’s Written Statement at p 2.

3. Section 5.8.2 of the TIP Brochure (a copy of which is in the Applicant’s Evidence) includes the following statement:

“If a teacher does not demonstrate satisfactory and sustained improvement, the disciplinary outcomes available to the decision maker include directing or allowing the teacher to resign or dismissing the teacher from the Teaching Service. The teacher may also be placed on the Not to be employed list. The outcome may require reporting to NSW Education Standards Authority (NESA) as part of legislative requirements.”

4. Although the Applicant does not say whether she was given the TIP Brochure by the School, I think it is reasonable to infer that she was given the Brochure just before the initial meeting. In this regard, I note that the checklist for the first meeting, which the Applicant signed to verify its completion, includes an entry that was ticked as completed to the effect: “The staff member was given a copy of the relevant improvement program procedure”: Section 58 Documents at pp 130−131.

96. In relation to the third claim, I accept that both the Principal’s Report and the PES Review Report are steps required for the TIP process. Indeed, both steps are mentioned in s 5.8 of the TIP Brochure: Applicant’s Evidence at pp 7PM−8PM.

97. It may be that the Principal’s Report did include some incorrect statements. In particular, the Report does state that the Applicant did not return HSC trial exams to her students: Section 58 documents at p 460. The Applicant points to email exchanges with the Deputy School Principal that might be read as suggesting otherwise: Applicant’s Evidence at pp 18PM−22PM.

98. There are, however, other suggestions of incorrect statements that seem to me to involve a misunderstanding by the Applicant. For example, the Applicant quotes “Ms Mulhall was absent or on sick leave wherever possible” from the PES Review Report: Applicant’s Witness Statement at p 6. In fact, the entire sentence is: “There are occasions when Ms Mulhall was absent on sick leave and wherever possible, support that was missed was discussed at Review meetings and rescheduled”: Section 58 Documents at p 518. The Applicant’s omission of “and” before “wherever possible”, together with the omission of the end of the sentence, gives the sentence a different meaning. Read in its entirety, the sentence was not suggesting the Applicant was a malingerer.

99. Even accepting that there are some incorrect statements in either Report, I do not think that they ultimately affect the reliability of the observations made for the purposes of the TIP. These observations, which are documented by Feedback Reports prepared by the observers concerned and were reviewed and signed by the Applicant, stand on their own regardless of whatever characterisations are given to them by the Principal’s or PES Review Reports.

100. The fourth claim is essentially a claim that the TIP process is inherently unfair. I do not doubt that the Applicant’s claim that she was placed under considerable stress by the TIP. Most teachers are likely to suffer stress while participating in a TIP.

101. I am satisfied that attempts were made to provide the Applicant with appropriate support. The most obvious example being to allow the Applicant to take some leave during the TIP to address mental health issues. Indeed, she was asked about her health in the next meeting after she returned from leave. The Applicant replied that she was feeling “Okay” and did not raise any issues about her health or her capacity to continue with the TIP: Section 58 Documents at p 414. In my view, the stress occasioned by a TIP is not necessarily an indicium of its unreliability. Indeed, the ability of a teacher to perform while under stress is likely to be a relevant indicium in assessing the teacher’s capacity to meet professional teaching standards.

102. The 10-week period for the TIP, which the Applicant claims was too short, seems to accord with Departmental policy as expressed in s 5.1 of the TIP Brochure: Applicant’s Evidence at p 5PM. Accordingly, the claim that this period was too short is really a criticism of the policy. It is not the role of the Tribunal in the current proceedings to review that policy because it is not a decision of the Respondent concerning accreditation. In any event, the period seems to me to be a reasonable timeframe that allows for a significant assessment period when balanced against the need to deal with performance concerns expeditiously.

103. Before leaving the issue of the fairness of the TIP, it is important to note the steps followed in the TIP process for the Applicant:

1. Initial meetings were conducted with the Applicant to discuss the TIP, decide its scope and devise a schedule for assessments: Section 58 Documents at pp 130−161.

2. The Applicant received written feedback about each TIP observation from the observer in a Feedback Report. She was also given an opportunity to respond to this feedback on the completed Report. She availed herself of this opportunity on several occasions. Moreover, she signed the form to indicate she had been informed. The Applicant also participated, with a support person, in weekly meetings to discuss the feedback with a support person: Section 58 Documents at pp 162−452.

3. Support was offered to the Applicant throughout the TIP, although it appears that the Applicant sometimes declined to take it up. She was also asked about her health at various meetings about the TIP, including as mentioned when she returned for leave: Section 58 Documents at pp 414 and 441.

4. The Applicant participated in a final meeting at the conclusion of the TIP to discuss the results of the TIP and the next steps: Section 58 Documents at pp 474−480.

5. The Applicant was given an opportunity to make submissions about the Principal’s Report before it was finalised and submitted to PES: Section 58 Documents at pp 504−509.

104. These steps appear to be consistent with the procedural steps outlined in the TIP Brochure. In my view, the steps provide significant safeguards aimed at providing a teacher involved in a TIP with appropriate information about, and real input concerning the administration of, the TIP. Accordingly, using the hearing rule for procedural fairness as a guide, the TIP is not unreliable because it was unfairly administered.

Finding

105. For these reasons, I find that the TIP and, consequently, its results are reliable evidence for the purpose of deciding whether the Applicant meets the teaching standards in issue.

Does the Applicant fail to meet the teaching standards in issue?

106. The TIP results, which I have found to be reliable evidence, are central to deciding whether the Applicant has failed to meet the teaching standards in issue. However, these results are not the only evidence before the Tribunal. The Applicant has also produced additional material in the current proceedings that must also be considered.

The TIP results

107. I have already summarised the results of the 25 TIP observations (at [31] above) in broad terms. As mentioned, the Applicant’s performance was found to be unsatisfactory in 24 of the 25 TIP observations. In other words, 96 percent of the TIP observations involved findings of unsatisfactory performance by the Applicant. Even excluding the Head Teacher’s 8 TIP observations, 16 of the other 17 TIP observations (or 94.1 percent) involved findings of unsatisfactory performance. The consensus of the TIP observers was therefore overwhelming in one direction, namely, that the Applicant’s performance in the assessments was unsatisfactory.

108. The following table provides more information about the completed TIP observations by reference to: (1) the date, type of assessment and its observer; (2) the assessment result and some of the reasons given by the observer for the result; and (3) the pages location of material about the assessment concerned in the Section 58 Documents:

Date, type and observer	Assessment result	Location
1	22/02/2023 Lesson Plan Ms Mawhood	Unsatisfactory The observer noted a failure to articulate the lesson objectives and reliance on a video by a person with inappropriate qualifications.	169−172
2	24/2/2024 Lesson Observation Ms Mawhood	Unsatisfactory The observer noted that it was not apparent that a class roll was marked. It was also noted that there was limited student engagement, the lesson was dominated by the Applicant and concluded before its completion.	176−179
3	27/2/2024 Assessment Documentation Head Teacher	Unsatisfactory The observer expressed serious concerns about the marking criteria used by the Applicant.	180−185
4	27/2/2023 Lesson Plan Head Teacher	Unsatisfactory The observer considered that the Applicant did not provide sufficient links to materials for students to access or sufficiently explain the success criteria to them.	197−200
5	28/2/2023 Lesson Plan School Principal	Unsatisfactory The observer thought that the Applicant was unclear about how feedback would be provided.	212−214
6	1/3/2023 Lesson Observation Head Teacher	Unsatisfactory The observer noted that the class roll had not been marked. The observer also that the Applicant had difficulty managing student behaviours.	217−220
7	6/3/2023 Lesson Observation Deputy School Principal	Unsatisfactory The observer was critical of the pacing of the lesson and indicated that there was a need to explain expectations to assist students to complete their tasks.	345−349
8	7/3/2023 Lesson Plan Ms Mawhood	Unsatisfactory The observer was critical of the pacing of the lesson, including lesson closure. The Applicant disputed some of what the observer stated.	342−344
9	8/3/2023 Teaching and Learning Program Head Teacher	Unsatisfactory The observer found that the Applicant had deviated from the program	314−317
10	9/3/2023 Lesson Observation Ms Mawhood	Unsatisfactory The observer was critical of time management and the Applicant’s monitoring and management of equipment.	255−257
11	9/3/2023 Lesson Plan School Principal	Unsatisfactory The observer noted that more detail was needed on required prior learning and it was necessary to ensure that there was sufficient time allowed to complete the lesson tasks.	258−260
12	13/3/2023 Lesson Observation School Principal	Unsatisfactory The observer was critical of the Applicant’s student management techniques.	350−353
13	13/3/2023 Lesson Plan Head Teacher	Unsatisfactory The observer noted that the plan needed to have appropriate linkages to required prior learning and time allocations appropriate for the period.	267−270
14	26/4/2023 Lesson Plan Head Teacher	Unsatisfactory The observer indicated the plan had not been submitted within time.	288−290
15	1/5/2023 Work Samples Head Teacher	Unsatisfactory The observer suggested that the Applicant needed to be consistent in terms of feedback detail provided to each student.	294−297
16	2/5/2023 Lesson Plan Mr Wolter	Unsatisfactory The observer noted that the Applicant needed to elaborate the link between each learning activity to the lesson purpose and to clearly outline how she might manage off-task behaviour in the lesson.	298−301
17	4/5/2023 Lesson Observation Mr Wolter	Unsatisfactory The observer noted that the Applicant’s highly verbal approach to her lesson delivery caused student disengagement.	319−322
18	5/5/2023 Teaching and Learning Program Head Teacher	Unsatisfactory The observer noted that the program was not submitted by the Applicant. In her response, the Applicant indicated that she did not propose to do so because she considered that the observer would “trash it” because the observer wanted her to fail.	323−325
19	11/5/2023 Lesson Plan Deputy School Principal	Unsatisfactory The observer was critical of the time allocations and sequencing. It was also noted that the students needed a clear outline of what was expected of them.	358−361
20	12/5/2023 Assessment Documentation School Principal	Unsatisfactory The observer suggested that there needed to be clearer linkages between task activities and outcomes and marking criteria.	448−452
21	15/5/2023 Lesson Observation Deputy School Principal	Unsatisfactory The observer indicated that the Applicant failed to regularly check in with students during the lesson to see if they needed help and to provide a clear outline of what was expected of them. The Applicant disputes these observations.	406−409
22	15/5/2023 Lesson Plan School Principal	Unsatisfactory The observer noted that a plan was not submitted by the Applicant.	410−412
23	17/5/2023 Lesson Observation School Principal	Unsatisfactory The observer noted that the discussion left the observer unsure at times and would have been confusing for students.	424−428
24	19/5/2023 Lesson Plan Ms Mawhood	Unsatisfactory The observer noted that the plan was provided well outside the time frame. It was also noted that the plan required better lesson timing and organisation of materials.	429−436
25	23/5/2023 Lesson Observation Ms Mawhood	Satisfactory The observer noted that the Applicant was well prepared for the lesson and that she maintained timing and circulated around the classroom to provide support to students as required.	437−439

109. Ms Fry provided her own analysis of some of these unsatisfactory assessments: Original Fry Statement at [45]−[59]. In essence, she agreed with the feedback provided and, in some cases, added some additional observations in support of the unsatisfactory assessment. I find Ms Fry’s confirmatory assessments both useful and persuasive, particularly because the Applicant did not seek to challenge Ms Fry’s evidence (unlike Mr Daniell’s evidence) on cross-examination. In my view, Ms Fry’s evidence lends further credence to the unsatisfactory TIP observations

Additional material provided by Applicant

110. The Applicant seeks to rely on the following material lodged by her with the Tribunal some of which was not before the internal reviewer.

1. The TIP Brochure to which I referred earlier: Applicant’s Evidence at pp 1PM–12PM.

2. Consultation notes from her general practitioner concerning her medical condition from March to June 2023: Applicant’s Evidence at pp 14PM–16PM.

3. Email correspondence from the School Principal in which the Applicant’s complaint about the Head Teacher’s participation in the TIP is acknowledged: Applicant’s Evidence at p 17PM. The Applicant has also provided a copy of minutes of a meeting with the School Principal concerning her complaint about the Head Teacher, which also indicates she was unhappy about the Principal’s participation: Applicant’s Evidence at pp 23PM–24PM.

4. Email correspondence that predates the TIP between the Applicant, the Head Teacher and Deputy School Principal concerning the use of the Teams Monitoring Folder and the completion of a rubric: Applicant’s Evidence at pp 18PM–22PM.

5. Material (including minutes of meetings) concerning the Head Teacher’s complaint in 2022 against the Applicant: Applicant’s Evidence at pp 25PM–32PM.

6. A letter to the ACT Teacher Quality Institute in which the Applicant acknowledges that she failed to inform the Institute about the TIP: Applicant’s Evidence at p 33PM.

7. The PES Review Report mentioned above and the Applicant’s reply to it, both of which are also included in the Section 58 Documents: Applicant’s Evidence at pp 34PM–50PM.

8. Email exchanges between the Applicant, the Head Teacher and the Deputy Principal concerning the PDP in 2022: Applicant’s Evidence at pp 51PM–52PM.

9. An order of the Tribunal concerning a summons to produce documents issued to the School: Applicant’s Evidence at pp 53PM–54PM. The Applicant alleges the summons was not complied with.

10. Positive feedback on a lesson observation by the School Principal in 2022 for the purposes of the PDP: Applicant’s Evidence at pp 55PM–56PM.

11. Copies of various assessment task registers (called student sign off sheets) during 2022−2023 indicating tasks that were assessed and returned to students: Applicant’s Evidence at pp 57PM–66PM.

12. Examples of stages 4, 5 and 6 registered teacher programs that the Applicant claims to have undertaken: Applicant’s Evidence at pp 67PM–204PM.

13. Examples of stages 5 and 6 assessment tasks set by the Applicant: at pp 205PM–268PM.

14. The document entitled “The Patch - Marking Criteria” mentioned above that was handed up at the hearing and marked for identification as AH 2. These kinds of documents are sometimes called rubrics. The document appears for “The Patch” mentioned in the feedback report for the TIP observation by the Head Teacher conducted on 27 February 2023.

111. I have already dealt with the material above concerning the Applicant’s allegations of bias, her mental health and the implementation of the TIP process having regard to the TIP Brochure. It is not necessary for me to repeat what I have already said about these issues.

112. I do not think that the remaining material advances the Applicant’s case.

113. The material about participation in teacher programs and the use of student sign off sheets does not of itself demonstrate professional competency in the face of the TIP results. In any event, as Ms Fry notes, that there are gaps in the student sign off sheets and it is not clear from the supplied teacher programs about the extent to which the Applicant was compliant: Fry Reply Statement at [7]−[10].

114. The positive feedback disclosed by the pre-TIP observation by the School Principal for the purposes of the PDP is of limited value in the face of the consensus of the TIP observers concerning her performance as a teacher. Indeed, much of the pre-TIP material relied on by the Applicant is of little assistance in assessing her performance during the TIP except to the extent that it might disclose bias. As I have indicated, I do not think that the TIP’s reliability is relevantly affected by bias.

115. I also do not find that the rubric or assessment tasks provided to be sufficient to counter the TIP results. This includes the provision of the blank “It Takes Two” document: Applicant’s Evidence at pp 92PM–114PM. At most they provide some limited examples about assessment criteria and material the Applicant may have used. In addition, Ms Fry’s evidence (whose reasoning I accept) is that some of these assessment tasks were not appropriately delivered to ensure learning outcomes were met: Fry Reply Statement at [10].

116. Finally, I should refer to the potential evidence from the Teams Monitoring Folder. The Applicant submits that the contents of the Folder, which she was unable to access and that the Respondent did not seek to obtain, was relevant evidence that should have been taken into account. A failure to keep monitoring folders up to date appears to be one of the reasons given for the Applicant’s placement in the PDP: Minutes of meeting on 16 November 2022, Section 58 Documents at p 30. That said, it seems to me unlikely that its contents (to the extent it has not already been provided in response to the Applicant’s summons) would be sufficient to counter the overwhelming consensus about the Applicant’s unsatisfactory performance revealed by the TIP.

Findings

117. It is perhaps trite to say that teaching is a professional discipline requiring expertise gained by tertiary studies, training and classroom experience. Most, if not all, members of the Tribunal do not have the expertise required to be a teacher. It is therefore necessary for the Tribunal to rely on the evidence of persons with relevant teaching expertise to decide whether a teacher meets professional teaching standards. Nevertheless, the Tribunal must be satisfied that this evidence is both reliable and probative.

118. I have found that the results of the TIP are reliable. This is so even if the observations of the Head Teacher are given less weight than those of the other observers. All the observers are undoubtedly well-qualified teachers and include two external observers. Moreover, the evidence of Ms Fry, who the Applicant did not seek to cross-examine, is significant. Ms Fry’s area of expertise is the assessment of teacher performance. Her evidence provides independent re-assessments of several observations that confirm, sometimes with additional reasons, the original feedback.

119. Having examined the TIP material before me in some detail, I am satisfied of the accuracy of the internal reviewer’s summary of the ways in which the Applicant has failed to meet the teaching standards in issue: Section 58 Documents at pp 10−12. I note, in particular, the following common themes from the feedback for the TIP observations by reference to each of the standards:

1. Standard 2: Know the content and how to teach it

A common theme of the feedback is a failure to link lessons with the syllabus in a logical order. Another common theme is a failure to address particular student needs.

2. Standard 3: Plan for and implement effective teaching and learning

A common theme of the feedback is a failure to appropriately plan lessons, including by allowing sufficient time for tasks to be completed within the allotted lesson time. Another theme is the use of resources such as YouTube videos of questionable provenance despite being counselled not to do so. I note that, based on the Applicant’s cross-examination of Mr Daniells, she continues to consider the use of such material appropriate. As noted above, she put to Mr Daniell that the use of such material was not inappropriate, but Mr Daniell disagreed.

3. Standard 4: Create and maintain supportive and safe learning environments

A common theme of the feedback is a failure to address inappropriate student behaviour effectively. Another theme is that students were often disengaged during lessons.

4. Standard 5: Assess, provide feedback and report on student learning

A common theme of the feedback, and perhaps the most significant theme, is a failure to implement assessment strategies in keeping with the School’s established assessment and reporting requirements. Another theme is a failure to provide meaningful feedback to students.

120. I consider the results of the TIP to be sufficient evidence on their own to demonstrate that the Applicant does not meet the teaching standards in issue.

121. For the reasons given above, I do not consider that the additional material relied on by the Applicant is sufficient to counter these results. Also, I note again that the Applicant makes various criticisms about the accuracy of various statements in the Principal’s Report and the PES Review Report. Even accepting these criticisms to be valid, they do not detract from the probative value of the results themselves even if those reports mischaracterise some of them. Moreover, my view about the inherent probative value of the TIP results themselves is reinforced Ms Fry’s evidence about them.

Conclusion: the correct and preferable decision

122. The Applicant says that she has not worked since October 2023 as a teacher or in any other position despite trying to obtain alternative employment. She feels that both her age and lack of experience in other roles have impeded her quest for employment. I am sympathetic to the Applicant’s plight. However, the role of the Tribunal is confined to deciding the correct and preferable decision concerning the Applicant’s accreditation.

123. For the reasons given above, I am satisfied that the evidence before the Tribunal supports a finding that the Applicant does not meet the teaching standards in issue. As previously mentioned, the combination of the grounds in s 24(1)(f) and (g) of the TA Act confer a discretion to revoke a teacher’s accreditation on this basis.

124. However, in exercising this discretion, s 24B of the TA Act requires the Respondent (and, on an administrative review, the Tribunal) to take certain matters into account. In its application to the current proceedings, these matters are as follows:

1. Nature and seriousness of conduct

Section 24B(a) refers to the nature and seriousness of the conduct concerned. In relation to a failure to meet professional teaching standards, I agree with what was said by the Tribunal in Cantwell at [43],

“In the present case the Applicant was found to have failed to comply with four of the seven Standards. The relevant Standards relate both to the Applicant’s teaching skills and to his capacity to create and maintain a supportive and safe learning environment. I consider these requirements to be fundamental to a teacher’s capacity to deliver a high-quality and effective education to students in an environment that protects their wellbeing, such that they, their parents and other members of the community are entitled to expect of any teacher. In Kent v Secretary, Department of Education [2019] NSWIRComm 1001 to which the Applicant referred, the Commissioner said that the protection of children extends to the protection of children from having the quality of their school education compromised by being exposed to teachers who do not meet the level of performance required by the Department of a proficient classroom teacher. For that reason, the Applicant’s non-compliance with the Standards is inherently serious: see s 24B(1)(a) of the Accreditation Act.”

The Applicant’s failure to meet the teaching standards in issue is also inherently serious because the lack of appropriate teaching skills may detrimentally affect the wellbeing of students, as well as being inconsistent with community and parental expectations.

2. Frequency and recency of conduct

Section 24B(b) and (c) refer, respectively, to the frequency and recency of the conduct concerned. The TIP observations, which were conducted in 2023, provide significant evidence that the Applicant both frequently and recently failed to meet the teaching standards in issue. In addition, concerns about the Applicant’s performance arose before the TIP as evidenced by her placement in the PDP in 2022, which then occasioned her placement in the TIP in 2023.

3. Other matters required by procedures and guidelines

Section 24B(d) refers to any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in s 20(1)(c)). However, the Respondent has not referred me to any other matter that is required to be taken into account by these procedures and guidelines.

125. In addition to the matters referred to in s 24B of the TA Act which all point in favour of revoking the Applicant’s accreditation, s 4 requires the Respondent (and, on an administrative review, the Tribunal) to exercise the discretion to revoke by applying the principle that, in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person are paramount. The welfare and wellbeing of children and young persons are necessarily promoted if persons are precluded from teaching if they do not have the appropriate skill sets to do so. This also points in favour of revoking the Applicant’s accreditation.

126. It follows that the correct and preferable decision is to revoke the Applicant’s accreditation under the TA Act. Accordingly, the Respondent’s decision to revoke her accreditation decision must be affirmed.

Order

127. The order of the Tribunal is that the decision of the Respondent to revoke the Applicant’s accreditation under the Teacher Accreditation Act 2004 (NSW) is affirmed.

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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: 25 March 2025