ADMINISTRATIVE LAW — judicial review — Education Act 1990 (NSW) and Education Standards Authority Act 2013 (NSW) — determination of NSW Education Standards Authority Committee — principal of registered non-government school — social media posts expressing political opinions — where Committee determined principal not a fit and proper person
ADMINISTRATIVE LAW — judicial review — where principal entitled to procedural fairness — whether Committee provided procedural fairness — Committee considered Inspector’s adverse findings without disclosure to school or principal, who were denied opportunity to be heard — role of Minister — Education Standards Authority Act, s 5 — procedural fairness required and denied
ADMINISTRATIVE LAW — judicial review — whether Committee went beyond the scope of its powers — Education Act 1990 (NSW) — not established
ADMINISTRATIVE LAW — judicial review — whether Committee had delegated power to make challenged determination — relevant delegation established
Quick Take
1Where an administrative decision-maker relies on an inspector's adverse report that is credible, relevant and significant to the determination, procedural fairness requires disclosure of that report (or at minimum the nub of its adverse conclusions) to the affected person before the determination is made — the fact that the person responded to a separate show cause notice from a third party does not cure the deficiency.
2The term 'fit and proper person' in s 47 of the Education Act 1990 (NSW) must be construed by reference to the statutory context including s 6's reference to 'family and community values', embracing both character and conduct including how political opinions are expressed, but the lawful right to hold and express political opinions (protected by s 772 of the Fair Work Act 2009 (Cth)) must be taken into account.
3Under s 5 of the Education Standards Authority Act 2013 (NSW), the Minister may not control or direct the contents of any recommendation the Authority makes; where evidence establishes that the Committee was aware of the Minister's desired outcome before making its determination, the Committee must ensure its decision is made independently and uninfluenced by that irrelevant consideration.
