Valaire v NSW Education Standards Authority

[2019] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Valaire v NSW Education Standards Authority [2019] NSWCATAD 16
Hearing dates:	On the papers
Date of orders:	11 January 2019
Decision date:	11 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – no reviewable decision – no point of principle
Legislation Cited:	Administrative Decisions Review Act 1997 Children (Education and Care Services) National Law Children (Education and Care Services National Law Application) Act 2010 Civil and Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	Olga Valaire (Applicant) NSW Education Standards Authority (First Respondent) NSW Department of Education (Second Respondent)
Representation:	Counsel: C Ronalds AO SC & S Swami (First Respondent)   Solicitors: O Valaire (Self Represented)(Applicant) NSW Education Standards Authority (First Respondent) Wotton & Kearney (Second Respondent)
File Number(s):	2018/00257685
Publication restriction:	Nil

REASONS FOR DECISION

1. On 22 August 2018 the applicant, Olga Valaire, made an application to the Tribunal. In her statement accompanying the application Ms Valaire stated, in summary, that her son Julian had studied Russian for the Higher School Certificate (HSC) in 2017. Julian received a mark of 84% for Russian Continuers in the HSC but this mark was scaled down to a ranking of 41 which gave him an ATAR result of 66.

2. Ms Valaire stated that when Julian had enrolled in the Russian Continuers course, the information available on the NSW Education Standards Authority (NESA) website was that a Continuers course was developed for non-native speakers of the language. They therefore expected that Julian would compete against students with a similar background to him. They found, however, that most students undertaking Russian Continuers were from Russian speaking countries and had had the majority of their previous education conducted in Russian.

3. Ms Valaire believes that Julian’s results should have been scaled against those of other non-native speakers and not those who were fluent in Russian. If this had occurred, Julian’s ATAR would have been higher. Ms Valaire states that it was not until they contacted NESA following receipt of Julian’s ATAR result that they were advised there were no entry requirements for the Russian Continuers course. She was informed that this was because there is only one Russian course available in NSW and all students are eligible for the Continuers course.

4. Ms Valaire has written to and received responses from NESA and the Department of Education about her complaints concerning the HSC Russian course and what she believes to be the injustice caused to her son in terms of the ATAR he received for his 2017 HSC results. She believes that they were misled by the information on the NESA website.

5. Ms Valaire has also written to the Ombudsman with her concerns. The Ombudsman did not find there was any wrongful conduct or that the Department of Education or NESA has acted unlawfully or unreasonably. The Ombudsman supported action that was being taken by NESA to improve the clarity of the information about Continuer language courses on its website.

Tribunal’s jurisdiction

6. The respondents have sought orders dismissing Ms Valaire’s application on the basis that Ms Valaire has failed to identify a decision which is capable of being reviewed by the Tribunal.

7. The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator (see s 30 Civil and Administrative Tribunal Act 2013). Section 55 of that Act makes plain that the Tribunal only has jurisdiction to review “an administratively reviewable decision”.

8. An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be “a decision of an administrator over which the Tribunal has administrative review jurisdiction”. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision”.

9. At issue therefore is whether there is a decision, or decisions, which have been made under an Act of the NSW Parliament which provides that an application may be made to the Tribunal for a review of that decision or those decisions.

What is the decision under review?

10. In a submission received on 10 October 2018 Ms Valaire identified the following as being the decisions under review:

• A decision of NESA dated 8 March 2018; and

• A decision of the Department of Education dated 27 April 2018.

11. Ms Valaire stated that the relevant decisions were made under the Children (Education and Care Services National Law Application) Act 2010 and the Children (Education and Care Services) National Law.

12. The decision of NESA dated 8 March 2018 referred to by Ms Valaire was a response by NESA to an email Ms Valaire had sent to the Minister for Education about her concerns about the eligibility of students undertaking the Russian Continuers course and the scaling of HSC courses. The decision of the Department of Education dated 27 April 2018 referred to by Ms Valaire was made in response to Ms Valaire’s request for a review of a decision made on 26 February 2018 by the Department of Education in response to her complaint about the eligibility rules for Russian Continuers and the ATAR received by Julian.

13. The decisions which can be reviewed by the Tribunal under the Children (Education and Care Services) National Law are set out in ss 192 and 193 of that Act and relate to decisions determining a person’s applicability to provide educational and care services to children. The Act does not relate to any of the matters about which Ms Valaire complains.

14. It is apparent that no decision has been made by either respondent under Children (Education and Care Services National Law Application) Act 2010 and the Children (Education and Care Services) National Law. These Acts therefore do not confer any jurisdiction on the Tribunal to review the matters raised by Ms Valaire.

15. I have considered whether there is any other basis not identified by Ms Valaire upon which any decisions could be said to have been made by the respondents on the issues of concern to Ms Valaire and which are reviewable by the Tribunal.

16. In relation to the decision which Ms Valaire states was made by NESA on 8 March 2018, the letter sent to her does no more than explain the way in which NESA determines the eligibility criteria for students studying the Russian Continuers course in NSW. The letter also states that NESA is not involved in any matters relating to the scaling of HSC marks or determination of ATAR ranks. The letter in fact does not purport to make any decision about any matter and the information contained in the letter is not something which can be subject to any review by the Tribunal.

17. Similarly, in relation to the decision of the Department of Education dated 27 April 2018, there is no decision contained in the letter which is capable of review by the Tribunal. The Department of Education has made no decision on eligibility for the Russian Continuers course. Nor does it make any decision about a student’s ATAR. The calculation of an ATAR for NSW HSC students is undertaken by a private company, the University Admissions Centre.

18. In summary, the application made by Ms Valaire does not disclose any decision which is capable of being reviewed by the Tribunal under the Administrative Decisions Review Act. The Tribunal therefore does not have jurisdiction to deal with the application and it must be dismissed.

19. The respondents also have raised issues concerning Ms Valaire’s standing to bring the application and the delay in making the application, but these are not matters which need to be considered.

Order

1. The application is dismissed.

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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

Amendments

18 January 2019 - Representation corrected.

07 March 2019 - Coversheet representation corrected: senior counsel for first respondent added, "Legal Services" removed from Second Respondent.

15 May 2019 - Coversheet representation corrected. Department of Education replaced by Wotton & Kearney. Wotton & Kearney removed from first respondent, replaced by NSW Education Standards Authority.

Decision last updated: 15 May 2019