YASMIN COOLEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 105

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 105

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/5530

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YASMIN COOLEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Senior Member A K Britton

Date 12 February 2010

Place Sydney

Decision  The Tribunal does not have jurisdiction to hear the application.

......................[SGD]...................

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – powers of the Administrative Appeals Tribunal under the Higher Education Support Act 2003 – jurisdiction

Administrative Appeals Tribunal Act 1975 – s 25
Higher Education Support Act 2003 – ss 203.1, 206.1

The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48

REASONS FOR DECISION

1.      Ms Yasmin Cooley was enrolled in the Australian Catholic University in a Masters degree in education. The University awarded Ms Cooley fail grades in six of the subjects she studied in 2008. She contends that there was no proper basis for that decision, and furthermore, that when she challenged that decision she was subjected to bullying, harassment and discrimination by staff of the University.  

2.      Ms Cooley has applied to the Administrative Appeals Tribunal for review of the decision to award her fail grades. A preliminary issue arises for determination before the merits of that decision can be considered — namely, whether this Tribunal has jurisdiction to deal with Ms Cooley’s application.

3.      The statute establishing this Tribunal, the Administrative Appeals Tribunal Act 1975 Act (the Tribunal Act), circumscribes its jurisdiction. The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal has a duty to decline to hear such cases: The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48.

4. Section 25(1) of the Tribunal Act provides that an Act may provide that applications may be made to the Tribunal:

(a)  for review of decisions made in the exercise of powers conferred by that enactment; or

(b)  for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

5.      The Secretary’s representative advised the Tribunal that the Higher Education Support Act 2003 (the Act) is the only enactment conferring power on the Tribunal to review decisions made by a tertiary education provider, such as the Australian Catholic University, in respect of students. I have also been unable to locate any other relevant enactment.

What decisions are reviewable under the Act?

6.      Some decisions made under the Act are reviewable by the Tribunal: s 203.1. These are set out in a Table contained in s 206.1 of the Act.  The Table lists eight classes of reviewable decisions. Of these, only three relate to decisions made by a tertiary education provider, namely decisions:

·     Not to repay a person’s HECS–HELP contribution in respect of units consisting of work experience: s 36.22

·     To refuse to recredit a person’s “Student Learning Entitlement”: s 79.1

·     To refuse to recredit a person’s FEE –HELP balance: s 104-25(1)

7.      None of these types of decisions relate to the assessment or grading of a student’s academic performance or the awarding of a fail grade.  It follows that the Act does not confer jurisdiction on this Tribunal to review the decision the subject of Ms Cooley’s application.

8.      Given that there is no other enactment which confers power on this Tribunal to review decisions of this type, I must refuse to entertain Ms Cooley’s application for review.

Recommendation   

9.      There are some inaccuracies in the information provided to Ms Cooley about her rights of review.  For example, the University provided her with written advice to the effect that the offending decision was reviewable by the AAT. Good administrative practice demands that a person whose interests are affected by a decision be provided with clear, accurate and timely information about any avenues of review.

10.     I recommend that the University review the information it provides to students about the avenues for review of decisions it makes.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:         .................................[SGD].............................................
  Associate to Senior Member Britton

Date of Hearing:  10 February 2010
Date of Decision:   12 February 2010
The Applicant appeared in person.

Solicitor for the Respondent:     Department of Education, Employment and Workplace Relations