Taylor v Minister for Education
[2021] VSC 23
•1 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03014
| JULIAN TAYLOR | Plaintiff |
| v | |
| MINISTER FOR EDUCATION | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 December 2020 Further written submissions received from the defendant on 18 December 2020, and from the plaintiff on 28 December 2020, 4 January 2021, and 10 January 2021 |
DATE OF JUDGMENT: | 1 February 2021 |
CASE MAY BE CITED AS: | Taylor v Minister for Education |
MEDIUM NEUTRAL CITATION: | [2021] VSC 23 |
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ADMINISTRATIVE LAW – Judicial review – Plaintiff alleging misconduct by a registered teacher and by an employee of the Victorian Institute of Teaching – Plaintiff seeking orders in the nature of mandamus to compel defendant Minister to investigate alleged misconduct – Application by Minister for summary dismissal of proceeding – Whether Minister has any power or duty to investigate or to direct an investigation – Whether Minister’s responsibility to Parliament enforceable in judicial review proceeding – No real prospect that plaintiff will obtain orders sought – Civil Procedure Act 2010 (Vic), ss 62, 63 – Education and Training Reform Act 2006 (Vic), Pt 2.6 – Public Administration Act 2004 (Vic), s 85.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms F Batten | Matthew Hocking, Victorian Government Solicitor |
HER HONOUR:
In November 2005, Julian Taylor applied to the Victorian Institute of Teaching (VIT) for registration as a teacher. His application was provisionally granted early the following year and he maintained his registration until 2015. He was first registered under the Victorian Institute of Teaching Act 2001 (Vic) (VIT Act) and then, from July 2007, under Part 2.6 of the Education and Training Reform Act 2006 (Vic) (Education Act). As a registered teacher, Mr Taylor was permitted to teach in Victorian schools, and he was employed as a teacher at a number of schools in Victoria while registered.
In June 2015, the principal of a school at which Mr Taylor had been teaching notified the VIT of concerns about his identity. Following an investigation, the VIT referred to a formal hearing allegations that Mr Taylor had fraudulently and by false representation obtained registration to teach, by completing his applications in a false name, failing to disclose his previous names, failing to disclose findings of guilt and convictions, and providing a false identity document in support of his application. In August 2015, a hearing panel of the VIT found that Mr Taylor had obtained his registration by misrepresentation, and determined to cancel his registration from 31 August 2015.
Mr Taylor was also charged with a number of criminal offences related to his registration and work as a teacher. In August 2018, he was found guilty of four charges of using a false document, one charge of perjury, seven charges of obtaining a financial advantage by deception, and one charge of making, using or supplying identification information. He was sentenced to two years and 11 months’ imprisonment. An appeal against both conviction and sentence was dismissed.[1]
[1]Taylor v R (2019) 59 VR 163.
Mr Taylor is aggrieved about the VIT panel’s decision to cancel his registration, which was made following a formal hearing that took place in his absence, after his application to adjourn the hearing was refused. An application to the Victorian Civil and Administrative Tribunal seeking merits review of the decision was recently struck out, after Mr Taylor’s application for an extension of time was refused.[2] He has also commenced a judicial review proceeding in this Court, which was stayed until the determination of his Tribunal proceeding.[3]
[2]Taylor v Victorian Institute of Teaching (Review and Regulation) [2020] VCAT 1359. Mr Taylor has commenced a proceeding in this Court seeking leave to appeal the Tribunal’s orders: S ECI 2020 04794.
[3]Taylor v Victorian Institute of Teaching [2020] VSC 780.
In this proceeding, Mr Taylor seeks an order compelling the Honourable James Merlino, the Minister for Education, to investigate the fitness to teach of Mr Taylor’s former wife, Khaleda Barr, and to examine and respond to evidence provided by Mr Taylor about that matter. He also seeks an order compelling the Minister to investigate his claims of discrimination and victimisation against Ms Barr and Stewart Williams, a compliance officer with the VIT. Alternatively, he seeks a direction that the Minister give reasons for not conducting an investigation into the conduct of Ms Barr and Mr Williams based on the information provided by Mr Taylor. His originating motion sets out 23 points of law in support of his claim.
Before commencing the proceeding, Mr Taylor had complained to both the VIT and the Minister that Ms Barr had provided false evidence to the VIT, was of bad character, and was unfit to be a teacher. He also complained that Mr Williams had colluded with Ms Barr to conceal her prior knowledge of Mr Taylor’s criminal history. The VIT responded on behalf of the Minister, declining to investigate the complaints, which prompted Mr Taylor to bring this proceeding against the Minister.
The Minister has applied for summary dismissal of the proceeding, on the following grounds:[4]
1. The Originating Motion does not identify any duty owed by the Minister. The orders sought in the Originating Motion are not available in the absence of a duty owed by the Minister.
2. Division 11 of Part 2.6 of the Education and Training Reform Act 2006 (Vic) deals with the investigation of a complaint involving the continued fitness to teach of a registered teacher. The Minister does not owe any duty under the Education and Training Reform Act 2006 (Vic) to investigate the Plaintiff’s complaint against Ms Khaleda Barr.
3. The registration of teachers, and the cancellation of teaching registration, are governed by Part 2.6 of the Education and Training Reform Act 2006 (Vic). The Minister does not owe any duty under the Education and Training Reform Act 2006 (Vic) to investigate the Plaintiff’s complaints of discrimination and victimisation against Mr Stewart Williams or Ms Khaleda Barr in relation to the cancellation of the Plaintiff’s teaching registration.
4. The 23 points of law in the Originating Motion relied on as the grounds for relief do not identify any alleged error of law on the part of the Minister that could form the basis of any relief against the Minister under Order 56 of the Rules.
[4]Minister’s summons filed 14 September 2020.
For the reasons that follow, Mr Taylor has no real prospect of obtaining the orders he seeks against the Minister. The proceeding will be summarily dismissed.
Summary dismissal
The Minister’s summary dismissal application is made under ss 62 and 63 of the Civil Procedure Act 2010 (Vic). Section 63 enables the Court to summarily dismiss a claim that has no real prospect of success, in order to facilitate the just, efficient, timely and cost-effective resolution of the issues in dispute.[5] The power is to be exercised with caution and only where it is clear that there is no real question to be tried; it should not be exercised where the plaintiff has a real as opposed to fanciful chance of success.[6] The power will be exercised more readily in a case involving a pure question of law than where there is a dispute question of fact.[7]
[5]Civil Procedure Act 2010 (Vic), s 7; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, [42] (Neave JA).
[6]Lysaght Building Solutions, [35] (Warren CJ and Nettle JA).
[7]Mutton v Baker [2014] VSCA 43, [19].
The relief sought by Mr Taylor in this case is an order compelling the Minister to investigate the alleged conduct of Ms Barr and Mr Williams, or alternatively to provide reasons for not doing so. I accept the Minister’s submission that this amounts to a request for orders in the nature of mandamus – a judicial command to the Minister that he investigate or give reasons for not investigating the allegations.
I also accept the Minister’s submission that relief in the nature of mandamus could only be granted if the Minister had a public duty to investigate Ms Barr’s fitness to teach and Mr Williams’ conduct as a VIT employee, or to provide reasons for not doing so. The relevant principles were recently summarised by Garde J in Singleton v Victorian Building Authority:[8]
Mandamus is a discretionary remedy and may only issue to command the fulfilment of a public duty which remains unperformed. Where an officer purports to have performed a public duty, but what is done amounts in law to no performance because of a misconception of duty, or involves a failure to comply with a requirement essential to the valid performance of the duty, the officer may be ordered to execute the duty according to law. Mandamus is also available where a public officer wrongly refuses jurisdiction, or if there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right.
In deciding whether to grant mandamus, it is fundamental to consider the nature of the public duty sought to be enforced. If the duty is a legal duty, and amounts to an obligation to act imposed by law, it is generally mandatory. If the public duty refers to the functions of an office, the manner of performance of the functions is generally regarded as discretionary. This is because the courts are reticent to intervene where there are competing policy objectives and limited resources. Determining the presence, nature and scope of a function of office is a contextual inquiry. In general, mandamus will not command the performance of duty in a particular way if there is a discretion as to how the duty is to be performed.
[8][2019] VSC 416, [48]-[49] (citations omitted).
The Minister submitted that he has no duties of the kind that Mr Taylor seeks to enforce in this proceeding.
Duty to investigate fitness to teach?
The VIT was first established under the VIT Act, and is continued in operation by s 2.6.2(1) of the Education Act. Section 2.6.2(2) provides that the VIT is a body corporate with perpetual succession, may sue and be sued in its corporate name, and may do and suffer all acts and things that a body corporate may by law do and suffer. The VIT’s functions include recognising and regulating all members of the teaching profession, granting registration or permission to teach in Victorian schools, maintaining a register of teachers who are registered to teach in schools in Victoria, and investigating the conduct, competence and fitness to teach of registered teachers.[9]
[9]Education and Training Reform Act 2006 (Vic) (Education Act), s 2.6.3(1)(a), (e), (g), (i).
The VIT is governed by the Council of the Victorian Institute of Teaching, which is responsible for the management of the VIT’s affairs and may exercise its powers.[10] The Council consists of up to 14 members, of whom 13 are to be appointed by the Governor in Council on the recommendation of the Minister, and one is the Secretary to the Department of Education and Training, or the Secretary’s nominee.[11] The VIT is a ‘public entity’ for the purposes of the Public Administration Act 2004 (Vic).[12]
[10]Education Act, s 2.6.6(1)-(2).
[11]Education Act, s 2.6.6(3)-(4).
[12]Public Administration Act 2004 (Vic), s 5.
Section 2.6.5 of the Education Act requires the VIT to ‘give due regard to any advice given by the Minister in relation to the exercise of its powers and the performance of its functions’. The Minister has power to issue ‘policies, guidelines, advice and directions to education or training institutions’ in Victoria.[13] While an institution governed by the Education Act is generally obliged to comply with any policy, guideline or advice issued by the Minister that relates to its operations, the VIT is only required to give due regard to any advice given by the Minister in relation to the exercise of its powers and the performance of its functions.[14] In other words, the Minister does not have power to direct the VIT, either generally, or in relation to the exercise of a specific power, or the performance of a particular function.
[13]Education Act, s 5.2.1(2)(b).
[14]Education Act, s 5.2.1(3), (6).
Beyond the power to give advice under s 2.6.5, the Minister’s powers under Pt 2.6 of the Education Act are limited. Relevantly, the Minister may:
(a) recommend persons for appointment by the Governor in Council to the Council and to the pool of persons who may be appointed to a hearing panel;[15]
[15]Education Act, ss 2.6.6(3)-(4), 2.6.6A-2.6.6B, 2.6.35F.
(b) recommend a member of the Council for appointment as Chairperson of the Council,[16] and nominate another member for appointment as Deputy Chairperson of the Council;[17]
[16]Education Act, s 2.6.6(5).
[17]Education Act, s 2.6.6C.
(c) approve the VIT’s strategic plan and annual business plan;[18]
(d) approve qualifications, criteria and standards for the registration and renewal of teachers;[19] and
(e) fix fees payable under Pt 2.6.[20]
[18]Education Act, s 2.6.3(1)(n).
[19]Education Act, s 2.6.3(2).
[20]Education Act, s 2.6.77.
Mr Taylor appeared to concede that the Education Act did not give the Minister a power or duty to investigate the fitness to teach of a registered teacher. He accepted that ‘if you follow what is in the Act then there is no reason for the Minister to get involved’.[21] He did not direct my attention to any provision of the Education Act that gives the Minister a public duty that might be enforced by an order in the nature of mandamus.[22]
[21]Transcript 55:20-22.
[22]Transcript 54:25-56:31.
Mr Taylor’s argument was instead based on the Minister’s constitutional responsibility for matters within the education portfolio. He submitted as follows:
(a) Mr Merlino is the Minister for Education, with responsibility for the Education Act.
(b) The Minister is accountable to Parliament (and thus to the people of Victoria) for the administration, performance and operation of the departments, administrative offices and public entities within his portfolio, including the VIT.
(c) The Minister is accountable to Parliament (and thus to the people of Victoria) for the administration of the Education Act, including Pt 2.6.
(d) Under s 85 of the Public Administration Act, the Council of the VIT is accountable to the Minister for the exercise of its functions, and the Minister is responsible to Parliament (and to the people of Victoria) in respect of the exercise by the VIT of its functions.
(e) The Minister is therefore responsible for the conduct of the VIT under the Education Act, and must investigate Ms Barr’s fitness to teach.
The Minister submitted that this argument misconstrued the Public Administration Act, and fundamentally misunderstood the role of the Supreme Court in relation to a Minister’s accountability to Parliament under s 85(2). I accept this submission.
Section 85 of the Public Administration Act provides:
Accountability
(1) The board of a public entity is accountable to the Minister responsible for the entity for the exercise of its functions.
(2) The Minister responsible for a public entity is responsible to the Parliament in respect of—
(a) the exercise by the public entity of its functions;
(b) the exercise by the Minister of his or her powers in relation to the public entity including—
(i) the power to appoint directors or remove them from office, or recommend the appointment or removal from office of directors;
(ii) the power to give directions to the public entity or request information from it;
(iii) the power to control or affect its operations;
(iv) the power to initiate a review of the public entity's management systems, structures or processes.
It may be accepted that the Minister is responsible to the Parliament of Victoria for the exercise by the VIT of its functions, including its function of investigating the fitness to teach of registered teachers. However, the responsibility of a Minister to Parliament is a form of political control, exercised by Parliament alone, based on parliamentary political value judgments.[23] The Court has no role to play in this form of political control.[24]
[23]The accountability of Ministers to Parliament is the essence of the Westminster system of responsible government: see Egan v Willis (1998)195 CLR 424, [42] (Gaudron, Gummow and Hayne JJ).
[24]Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 225 FCR 97, [67]-[68].
The Court’s judicial review jurisdiction is to determine the lawfulness of an exercise of administrative power conferred by the legislature on the executive.[25] As discussed, that jurisdiction extends to compelling the performance of certain public legal duties, by an order in the nature of mandamus. In this case, Parliament has given the Minister no power or duty to investigate a teacher’s fitness to teach, or to direct the VIT to do so. There is therefore no real prospect of Mr Taylor obtaining the orders that he seeks against the Minister, compelling the Minister to investigate his complaints about Ms Barr’s fitness to teach.
[25]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J); Seafish Tasmania, [67].
Duty to investigate alleged misconduct by VIT employee?
Mr Williams was employed by the VIT, under s 2.6.65(1) of the Education Act. Because the VIT is a public entity under the Public Administration Act, Mr Williams was a ‘public sector employee’ for the purposes of the Public Administration Act, although he was not employed under that Act.[26]
[26]Public Administration Act, s 4(1) – definition of ‘public sector employee’.
Employees of the VIT are subject to the Victorian Institute of Teaching Enterprise Agreement 2016 (2016 Agreement), an agreement made under the Fair Work Act 2009 (Cth). Clause 21 of the 2016 Agreement establishes procedures for dealing with alleged misconduct of an employee, which is defined to include a contravention of the Public Administration Act or a binding code of conduct that applies to the employee, and improper conduct in an official capacity. Where an allegation of misconduct is made against an employee, the VIT may take any action set out in cl 21.8.1, including determining that an investigation is required under cl 21.9. Clause 21.11 provides for the VIT to determine a discipline outcome, having regard to the findings and recommendations of the investigator, any response of the employee, and any prior discipline outcomes. The possible discipline outcomes range from no action to termination of employment. The 2016 Agreement gives no role to the Minister in relation to alleged misconduct by a VIT employee.
As Mr Taylor pointed out, the 2016 Agreement did not apply at the time the VIT took action against him, having commenced operation in April 2018. It replaced the Victorian Institute of Teaching Enterprise Agreement 2012 (2012 Agreement), which applied from 1 July 2013. Clause 19 of the 2012 Agreement is relevantly identical to cl 21 of the 2016 Agreement and, until April 2018, set out the procedures for dealing with allegations of misconduct against a VIT employee such as Mr Williams.
The Education Act confers no power or duty on the Minister to investigate allegations of misconduct against an employee of the VIT. The scheme of the Education Act is, as set out at [15] above, to establish the VIT as an independent entity that is not subject to Ministerial direction. The independence of the VIT in relation to employment matters is reinforced by s 13A(4) of the Public Administration Act, which makes it clear that the powers of a Department Head in relation to a public entity such as the VIT do not include the power to direct or control the public entity in the performance of its statutory functions. This excludes any possibility of the Minister directing or controlling the VIT in the exercise of its employment powers indirectly, through the Secretary to the Department.
Mr Taylor filed voluminous material in response to the Minister’s supplementary submissions addressing the question whether the Minister had any power, duty or function to investigate the allegations made by Mr Taylor against Mr Williams.[27] I have read and considered that material carefully, as well as reviewing the submissions made by Mr Taylor during the hearing, and the material he had filed beforehand.[28] Much of it reiterated his grievances against Ms Barr, Mr Williams, and the VIT, or was otherwise beside the point.
[27]Affidavit of Julian Taylor dated 27 December 2020 (not affirmed) with exhibits A to E; affidavit of Julian Taylor dated 4 January 2021 (not affirmed) with exhibits A to C; affidavit of Julian Taylor dated 10 January 2021 (not affirmed) with exhibits A and B.
[28]Mr Taylor relied on two affidavits dated 14 July 2020, filed with his originating motion, as well as affidavits dated 10 September 2020, 13 September 2020, 9 November 2020 and 11 November 2020. Mr Taylor did not have ready access to a witness and was not able to affirm any of his affidavits. I have received them and the documents exhibited to them as submissions.
Mr Taylor’s additional material did not identify any statutory power, duty, or function conferred on the Minister to investigate alleged misconduct by a VIT employee, or to direct the VIT to do so. Again, his argument focused on the Minister’s political accountability for the performance by VIT of its functions and the competence and integrity of its employees. For the reasons given at [21] above, the Court has no jurisdiction to enforce a Minister’s responsibility to Parliament.
There is therefore no real prospect of Mr Taylor obtaining an order compelling the Minister to investigate the allegations he makes against Mr Williams.
Duty to give reasons?
Because the Minister has no public legal duty to investigate Mr Taylor’s allegations against Ms Barr and Mr Williams, he has no duty to provide reasons for not doing so. There is no express statutory duty for the Minister to provide reasons for exercising his limited powers under Pt 2.6 of the Education Act. Even if the Minister did have a duty of the kind claimed by Mr Taylor, there is no general duty at common law to provide reasons for an administrative decision.[29]
[29]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
Disposition
The proceeding will be summarily dismissed, pursuant to s 63 of the Civil Procedure Act. I will hear the parties on the question of the costs of the proceeding.
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