Albaf v NSW Education Standards Authority

Medium Neutral Citation: Albaf v NSW Education Standards Authority [2026] NSWSC 880

Hearing dates: 11 and 19 June 2026

Date of orders: 24 July 2026

Decision date: 24 July 2026

Jurisdiction: Common Law

Before: Schmidt AJ

Decision: 1. Sheikh Albaf’s case must succeed.
2. The parties should confer and provide proposed orders, including as to costs, within 14 days. In the event of any disagreement, together with short written submissions.

Catchwords: 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
ADMINISTRATIVE LAW — judicial review — whether Committee’s reasoning legally unreasonable — established
STATUTORY INTERPRETATION — proper construction of Education Act 1990 (NSW), ss 47, 59 and 107 — proper construction of “fit and proper person” in Education Act — to be interpreted in light of meaning of community and family values — Education Act, s 6

Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 49, 50, 63
Crimes Act 1900 (NSW), s 93Z
Criminal Code Act 1995 (Cth), ss 80.2A, 80.2B, 474.17
Education Act 1990 (NSW), ss 3, 4, 5, 6, 19, 20A, 38, 47, 47A, 53A, 54A, 55, 56, 57, 59, 63A, 107, 108
Education Standards Authority Act 2013 (NSW), ss 3, 5, 7, 8, 12, 12A, 12B, 13, 14, 25
Fair Work Act 2009 (Cth), ss 770, 772
Interpretation Act 1987 (NSW), ss 48, 49, 52
Multicultural NSW Act 2000 (NSW), ss 3, 22
Privacy and Personal Information Protection Act 1998 (NSW), ss 17, 18
Supreme Court Act 1970 (NSW), s 69
Work Health and Safety Act 2011 (NSW), s 19
Uniform Civil Procedure Rules 2005 (NSW), rr 42, 59.9

Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Amante v R [2020] NSWCCA 34
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72
Austral Monsoon Industries Pty Ltd v Pittwater Council (2009) 75 NSWLR 169; [2009] NSWCA 154
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Commonwealth of Australia v McLean (Court of Appeal (NSW), 31 December 1996, unrep)
Holland v Jones (1917) 23 CLR 149; [1917] HCA 26
Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669; (2025) 341 IR 105
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v SSVJ (2026) 315 FCR 435; [2026] FCAFC 45
Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
Public Service Board v Osmond (1986) 156 CLR 656; [1986] HCA 7
RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Texts Cited: Benjamin N Cardozo, The Nature of the Judicial Process (New Haven; Yale University Press, 1921)
NSW Registered and Accredited Individual Non-government Schools Manual (February 2026), Part B

Category: Principal judgment

Parties: Abdulghani Albaf (Plaintiff)
NSW Education Standards Authority (First Defendant)
Minister for Education and Early Learning (Second Defendant)

Representation: Counsel:
T Brennan SC / P Farrell (Plaintiff)
G Johnson (Defendants)
Solicitors:
SBA Lawyers (Plaintiff)
Lander & Rogers (Defendants)

File Number(s): 2026/77398

JUDGMENT

1. In December 2025, after the terrorist attack at Bondi Beach, the Authority received media enquiries about opinions which Sheikh Albaf, the Principal of New Madinah College, had posted on Facebook and Instagram. There is no issue in these proceedings that while he was lawfully entitled to have and express his political opinions, he did err, given the way in which he expressed those opinions.

2. Both the Authority and the College had earlier investigated some of the Sheikh’s posts. They having first come to the Authority’s attention when the Commonwealth Department of Education advised that it was investigating the College’s compliance with the requirement that its principal be fit and proper.

3. The Authority having by its NSW Registered and Accredited Individual Non-government Schools Manual (February 2026), advised non-government schools about their obligations in relation to ensuring that recognised persons are fit and proper and how that is assessed by the Authority: Part B2 School management and operation.

4. The College had co-operated with the Commonwealth’s investigation, with the result that it, the Department and the Authority were all satisfied that the Sheikh remained a fit and proper person. That being a requirement imposed by s 47 of the Education Act 1990 (NSW).

5. The media’s enquiries triggered further investigations, as well as the Authority briefing the Minister, who asked to be kept updated about its investigations. Noting that the Sheikh’s “recent and hateful posts” had contradicted the College’s earlier advice about his current values. It was Senior Inspector Prideaux who undertook the Authority’s investigation, but she did not speak to the Sheikh.

6. The Authority advised the College and Sheikh Albaf about the concerns which had arisen about his posts and whether he was a fit and proper person. They being, sufficient to cause it to investigate the College’s compliance with its registration requirements. On 19 December, asking the College to provide it with specified information which an Inspector would assess and report to the Committee about. It then determining whether the Sheikh was a fit and proper person. The possibility of the College’s registration being cancelled, also being raised. The Sheikh was also invited to respond.

7. In January 2026, the College issued Sheikh Albaf with a show cause notice. With the result that it concluded, after it considered his response, that he remained a fit and proper person and that it had no reason to terminate his employment. But it had concerns which had resulted in him being placed on 6 months’ probation.

8. Conclusions which the Sheikh does not challenge.

9. The College then responded to the Authority. In February 2026, its Registration and Accreditation Committee considered the Senior Inspector’s report. It attached various documents, including the Sheikh’s posts; the advice provided by the College about the outcome of its investigation; and the response the Sheikh had provided to its show cause notice, which had persuaded it that he remained a fit and proper person, despite the tenor of his posts.

“1. An order pursuant to s 66 of the Supreme Court Act 1970 that the First Defendant be restrained until the final hearing or further order from acting upon, giving effect to, further communicating, or taking any further step in reliance upon the Determination, including but not limited to communicating the Determination to any person or body for the purpose of procuring or encouraging the Plaintiff’s removal as principal of New Madinah College.

2. An order pursuant to s 66 of the Supreme Court Act 1970 that the First and Second Defendants be restrained until the final hearing or further order from making any recommendation to cancel, not renew, or reduce the period of, or impose conditions on, the registration of New Madinah College under ss 53A, 55, 57A or 59 of the Education Act 1990 (NSW) in reliance upon the Determination.

3. These orders operate subject to the Plaintiff continuing to be stood down from his role as principal of New Madinah College.

4. Notes that the term ‘Determination’ means the determination of the First Defendant’s Registration and Accreditation Committee made on 17 February 2026 that Plaintiff is not a fit and proper person for the purposes of s 47(1)(b) of the Education Act 1990 (NSW).”

Conclusion

17. Sheikh Albaf contends not only that in arriving at the challenged determination, various statutory requirements were not observed, but that he has also been denied the procedural fairness he was entitled to receive before the Committee made that determination.

18. I am satisfied that the evidence does establish that there has been such error in the process that the challenged determination must be set aside. Even though not all of what Sheikh Albaf has advanced about the proper construction of the statutory schemes can be accepted.

19. That is because the evidence does establish that the Sheikh was denied the procedural fairness he was entitled to receive, before the Committee made and published its determination that he was not a fit and proper person. It having adopted an approach which needs to be revisited, if justice is to be done.

20. It is the Committee which has the delegated authority to exercise the relevant decision-making power, not the Minister, the Authority, its CEO or other staff members. It thus had to ensure that it gave both the Sheikh and the College the procedural fairness to which they were entitled, given what it had to decide. The Committee’s function having to be exercised independently and impartially, without direction or interference by others.

21. The Committee should thus have given Sheikh Albaf notice of any adverse material it proposed to consider, as well as an opportunity to respond to it, before it made its decision that he was not a fit and proper person. It also had to give proper consideration to all the relevant information which came before it, including that which came from the College and the Sheikh.

22. The Authority had Senior Inspector Prideaux investigate and provide the Committee with a report. It adopted her views, essentially that the College was wrong in concluding that Sheikh Albaf was a fit and proper person. Given her adverse findings, the Committee had to ensure that it did not act on her report, without giving the College and Sheikh Albaf procedural fairness.

23. Had that occurred, it must be accepted, given what the report contains, they would undoubtedly have drawn relevant matters to the Committee’s attention. Matters which may have influenced the decision which it arrived at.

24. Not only did the Committee have Senior Inspector Prideaux’s report to consider before its meeting, she also addressed it at the meeting where it made its determination. A meeting also attended and addressed by the CEO, in the presence of other Authority staff, who all remained while the Committee discussed and made its decision.

25. That seems to be an unusual approach for an administrative decision-maker to adopt. Although perhaps not of itself one which may permit the Committee’s decision to be called into question: Interpretation Act (NSW), s 52(1)(e).

The merits of the challenged determination

37. There is no issue between the parties that the merits of the challenged determination do not arise to be considered in these proceedings. That is because the Authority is a government agency established under the Authority Act and the Education Act does not provide for the merits of all of its decisions to be challenged.

38. In any event, any such challenge will not come before this Court: Education Act, s 107 and Administrative Decisions Review Act 1997 (NSW). Any available administrative review having to be pursued before the NSW Civil and Administrative Tribunal, in accordance with s 63 of the Administrative Decisions Review Act. In which event NCAT would have to determine what the correct and preferable decision is, having regard to the material put before it, exercising all of the Authority’s functions under the Education Act.

39. Section 108 of the Education Act then permitting NCAT to:

“(a) confirm the recommendation, direction or decision, or

…

(b) in the case of an application for the administrative review of a recommendation of the Authority or other person or body—make a different recommendation to the Minister concerning the subject-matter of the application”

40. It follows that because I have concluded the Committee’s determination must be set aside, it will have to revisit its determination in light of all the relevant information it receives. Having provided the procedural fairness to which both Sheikh Albaf and the College are entitled.

41. It was not disputed that if the result of its further decision-making process is a recommendation to the Minister that the College’s registration be cancelled, because Sheikh Albaf is not a fit and proper person, both he and the College will have a right to pursue a review of that decision under s 107(1)(c) of the Education Act.

Issues

42. There was no issue between the parties about a number of other relevant matters, including:

43. Sheikh Albaf has standing to bring these proceedings, given his interest in the challenged determination, putting as it does his employment at the College and other non-government schools at risk, given the requirements of s 47 of the Education Act;

44. The Authority’s investigation followed the enquiries it received from the media about Sheikh Albaf, after the December 2025 Bondi Beach atrocity. Judicial notice may be taken of the considerable community concern which resulted, it having involved two armed shooters who shot, killed and injured many victims, including children, in an unprovoked attack during a Jewish Hannukah celebration at the beach: Holland v Jones (1917) 23 CLR 149 at 153; [1917] HCA 26. These facts being so generally known that every ordinary person may be reasonably presumed to be aware of them, as discussed in Amante v R [2020] NSWCCA 34 at [66];

45. As a result, the Authority consulted with both the Acting Minister and the Minister, including about the process which it has pursued. With the result that the Minister’s views about Sheikh Albaf were known to Authority staff, before the Committee made its challenged determination;

46. That Senior Inspector Prideaux had investigated the Sheikh’s social media posts and provided her report, which was not disclosed to either the College or Sheikh Albaf, before the Committee made its challenged determination. Her conclusion being that the College was wrong in the view it had formed after its investigation, that the Sheikh remained a fit and proper person, despite the tenor and content of his social media posts;

47. The decision about whether the Sheikh was a fit and proper person had to be made by both the College and the Committee in the context that the Fair Work Act 2009 (Cth) in part 6-4 contains provisions which give effect, or further effect, to certain international agreements relating to discrimination and termination of employment, which apply to Sheikh Albaf and the College. Employees and employers there having their ordinary meanings: s 770;

48. Section 772 pertinently providing that an employer must not terminate an employee’s employment for reasons, or for reasons which include, matters such as religion and “political opinion”, a term which is not defined in the Fair Work Ac**t;

49. Sheikh Albaf had relied on these provisions to explain why he remained a fit and proper person, despite the terms in which he had expressed his political opinions;

50. The meaning of the term “political opinion” having recently been considered in Lattouf v Australian Broadcasting Corporation *(* [2025] FCA 669 at [104]-[110]; (2025) 341 IR 105, which has not been challenged on appeal and is here relevant, given what Sheikh Albaf posted and had advanced in his response to the College;

(a) It was concluded that the expression “political opinion” in s 772(1) of the Fair Work Act “encompasses the opinion of an employee about the policies or actions of the government of a country or its armed forces”. It also encompassing opinions held “about the policies or actions of the government of Israel and its armed forces and may extend to the way media organisations report about such policies or actions, in the context of the Israel/Gaza war”: at [110]; (b) it was not disputed that holding an opinion that opposes the Israeli military campaign in Gaza is a “political opinion”: at [112]; (c) it was concluded that:

(i) holding an opinion supportive of Palestinians’ human rights, which it was believed were being violated by the Israeli government and its armed forces, was also a political opinion: at [113]; (ii) as was an opinion that media organisations should report about the Israel/Gaza war accurately and impartially, given the beliefs included that the media was attempting to deflect attention from atrocities perpetrated by the Israeli armed forces: at [114]-[115]; (iii) as was an opinion that media reports claiming that demonstrators’ chants were antisemitic were unverified, given the context of the opinion that the media should report on the Israel/Gaza war accurately and impartially: at [116]; and

(d) further, “the protection for employees under s 772(1) against termination of employment for reasons including ‘political opinion’ encompasses not only the holding of a political opinion but also the expression of a political opinion.”: at [129].

43. While initially disputed, the Authority and the Minister properly conceded at the hearing that Sheikh Albaf had been entitled to procedural fairness. Whether he had received it, remained in issue. But there was no issue about the long settled principles, which include:

44. The common law usually implies, as a matter of statutory interpretation, a condition that a power conferred by statute on the executive branch of Government be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [97]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [11]-[15]; Kioa v West (1985) 159 CLR 550 at 584, 619; [1985] HCA 81; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576; [1992] HCA 10;

45. What is required depending on the process pursued, in light of the statutory framework within which the decision-maker exercises statutory power: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25]-[26];

46. The nature of the inquiry, the subject-matter and the rules under which the decision-maker is acting, all having to be considered. Procedural fairness being a flexible obligation requiring the adoption of fair procedures which are appropriate and adapted to the circumstances of the particular case. This ensures that statutory power is exercised fairly, in accordance with procedures that are fair to the individual being considered, in light of the statutory requirements; the interests of the individual; and the interests and purposes, whether public or private, which the relevant statute seeks to advance or protect, or permits to be taken into account as legitimate considerations: Kioa at 584-585;

47. The fundamental proposition being that “whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”: Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37];

48. The rules of procedural fairness applying to a decision-making process in which the party liable to be directly affected by the decision, is to be given the opportunity of being heard. That ordinarily requiring “the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at [32], applying Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; [1994] FCA 1074;

“GROUND 1: The Determination of the First Defendant’s Registration and Accreditation Committee of 17 February 2026 is affected by jurisdictional error and beyond the scope of power conferred by the Education Act 1990 NSW.

GROUND 1A: The Determination was purportedly made by the First Defendant’s Registration and Accreditation Committee when that committee was not authorised to make it.

GROUND 2: The Determination of the First Defendant’s Registration and Accreditation Committee that the Plaintiff is not a fit and proper person was affected by jurisdictional error because it was made for an improper purpose.

GROUND 3: Alternatively to Grounds 1 and 2, the 17 February 2026 determination of NESA’s Registration and Accreditation Committee that the Plaintiff is not a fit and proper person was affected by jurisdictional error because it failed to take into account relevant considerations.

GROUND 4: The Determination of the First Defendant’s Registration and Accreditation Committee was affected by jurisdictional error due to a failure to afford the Plaintiff procedural fairness.

GROUND 5: The First Defendant’s determination was affected by jurisdictional error due to reasoning and findings that were irrational and illogical.

GROUND 6: The First Defendant’s Determination was affected by fraud.”

45. During the course of the hearing, it was announced that Ground 3 and finally also Ground 6 were not pressed.

The parties’ cases

46. Sheikh Albaf relied on his own affidavit, as well as the affidavits of his solicitor Mr Blanks, which both exhibited various documents. By arrangement, the Sheikh also called oral evidence from Mr Barghachoun, the College Chairman, so that he could be cross-examined.

47. The Authority and the Minister relied on the affidavit of Senior Inspector Prideaux, who was cross-examined. Her report attached various documents which are not all in evidence. The Authority did not call evidence from Mr Martin or from Ms Mahesh, to whom the Senior Inspector reported and who had advised the College of the Committee’s challenged determination.

48. The evidence establishes that not only were the College and Sheikh Albaf legally advised, so was the Authority. But the Committee was not, when it came to make its challenged determination.

49. There is no real issue about the process which has been pursued to this point. Sheikh Albaf relies on it to help establish the errors into which he claims the Authority, the Committee and the Minister fell, breaching not only the requirements of procedural fairness, but aspects of the statutory schemes.

50. That there have been any such errors is disputed.

51. Sheikh Albaf’s claims include that the Committee was not empowered to make the challenged determination. Nor to require the College to publicise it, with resulting damage to him. Further, that the Minister and the Authority also fell into error, which resulted in him having been denied the procedural fairness he was entitled to receive, with the result that justice requires that the challenged decision be set aside.

52. Fundamentally, Sheikh Albaf contends that what has been impermissibly ignored is his lawful right to express his political opinions, as he did. That precluding the College from terminating his employment for having done so: Fair Work Act 2009 (Cth), s 772. And the Minister and the Authority from pressuring it to do so. That this is what the Committee and the Minister have done or sought to do, is denied.

53. The Sheikh does accept that he should not have used intemperate language, as he did in some of his posts. But his case, nevertheless, is that the political opinions which he published were incapable of providing a foundation for the conclusion that he was no longer a fit and proper person, despite the language he had used, given the proper construction of the Education Act and what the Fair Work Act provided.

54. Sheikh Albaf relies on there being no reference to these matters in the correspondence sent to the College after the Committee made its challenged determination, or the reasons later given for its challenged determination.

55. On his case, the Committee had failed to give required consideration to what he had relied on. That being established by the reasons including that he had not displayed any remorse. That not according with what he had advanced and the College had considered and accepted. With the result that it had concluded that he not only remained a fit and proper person, but that it had no basis on which it could terminate Sheikh Albaf’s employment.

The circumstances in which the challenged determination arose to be made

62. To resolve all that is in issue between the parties, it is necessary to bear in mind the undoubtedly difficult time which confronted the entire community, when the Minister, Authority and the Committee had to undertake their tasks. A time when there was very great, ongoing community concern about the awful death and injury which it appeared terrorists had caused to many members of the community enjoying the beach on a sunny weekend afternoon, including defenceless children and visitors, who all ought to have been safe there. They having fired their weapons not only at those participating in a peaceful Jewish religious celebration, but also at others in their vicinity.

63. There is no question that one of the results of this despicable conduct was that existing community concerns about the pursuit of violence in the community, especially as the result of antisemitism, were heightened. Needless violence for any reason always being abhorrent to the community’s values. What had motivated such violence was still a matter of considerable speculation, as well as investigation and ongoing media reports.

64. This was a time when many members of the community were expressing their opinions on social media. Opinions which were not entirely agreed, despite the widespread condemnation of the terrorist attack. And which were not all expressed in temperate terms.

65. The community’s ongoing concern became so great, as more became known, that the Australian Government responded to widespread calls for the establishment of a Royal Commission, which still continues to pursue its important enquiries: The Royal Commission on Antisemitism and Social Cohesion.

66. This difficult context did not alter the course which the Committee had to pursue, the Authority having decided that consideration had to be given to what the Sheikh had posted and whether he remained a fit and proper person. That being what its consideration of a recommendation that the College’s registration be cancelled depended on. His fitness having been a matter the Authority already had cause to consider and been satisfied about earlier in 2025. But concerns having again arisen because of further social media posts which had been drawn to its attention.

67. Sheikh Albaf, those who operate the College, the members of the school community, the Minister and all those who the Authority employs are all members of the community and equally entitled to hold and express their own political opinions.

68. Political opinions members of the Committee or anyone held, could not influence the administrative function which its members were required to undertake in February 2026. It then having to exercise that function independently, uninfluenced by irrelevant considerations, on the relevant information it had to consider.

69. There is no issue that in considering what the Sheikh had posted, the Committee had to take into account that like all members of the community, the Sheikh had the right to hold and express his political opinions about Israel and the war which still continues in the Middle East.

Jones v Dunkel inferences

79. This rule is concerned with a party’s unexplained failure to call evidence where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence.

80. Its operation was explained in RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270. Such an “inference is open where there is an unexplained failure to call evidence as to a matter which calls for explanation from a person whom it could reasonably be expected would be called to give such evidence. The rule in such a case permits evidence in relation to that matter to be given greater weight, and an inference or inferences to be more readily drawn, when the party who might have called evidence to the contrary has chosen not to do so”: at [160].

81. The rule typically applying “to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default”: Commonwealth of Australia v McLean (Court of Appeal (NSW), 31 December 1996, unrep), cited in RHG Mortgage Corporation Ltd.

82. The three relevant considerations are: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained: at [75]-[96].

83. I am satisfied that such inferences must be drawn against the Authority and the Minister. They not having called Mr Martin despite his involvement in the course which has been pursued and challenged. And it not having been sought to be established that he was not available.

84. But I have not reached the same conclusion in relation to Ms Mahesh, despite her attendance at the Committee’s meeting and the letters she authored. They speaking for themselves.

Credit

85. Senior Inspector Prideaux’s affidavit disclosed that she had no knowledge of some relevant matters. But given her evidence in cross-examination, it must be accepted that the Authority’s staff present at the meeting when the Committee made its challenged determination were aware of the outcome the Minister sought, that Sheikh Albaf not return to the school. That supports the case he advanced.

86. There was a challenge to one aspect of the Senior Inspector’s evidence, about which I am satisfied little turns. Her explanation about how she came to make an error in her report about an aspect of the procedure pursued when the College sought an extension of time, I am satisfied, also not being a proper basis on which to make any adverse credit finding.

The applicable principles establish the Committee’s error

87. There was no issue that Senior Inspector Prideaux’s report was credible, relevant and significant information which the Committee had to consider. It adopted her adverse findings at its meeting with but little discussion or reference to what the College and Sheikh Albaf had advanced in the material the Committee also had to consider. Without having disclosed the report to the College or Sheikh Albaf, or giving them an opportunity to respond.

88. The course so pursued provides a relatively simple answer to what lies in issue between the parties, given the applicable principles earlier explained. They, it must be accepted, driving the necessary conclusion that the report should have been disclosed to the College and Sheikh Albaf, before the Committee’s challenged determination was made, so that they could address the adverse findings it contained.

89. The need to disclose that report, in order to accord procedural fairness, not being based on answering a causal question as to whether it did, in fact, play a part in influencing the determination. Although the evidence clearly establishes that it did. But rather, on ensuring that fair procedures were applied in the exercise of the Committee’s decision-making function: Veal at [19].

90. The Committee’s error was that not even the nub of Senior Inspector Prideaux’s adverse conclusions was disclosed to the College or Sheikh Albaf, before it considered and adopted her views when it made its challenged determination.

91. Contrary to the written submission, that would not have involved the Committee having to provide a running commentary on what it thought about the evidence it had to consider: SZBEL at [48]. The Inspector’s conclusions were only one part, albeit obviously an important one, of the information which the Committee had to consider.

92. The applicable principles of procedural fairness thus requiring that her report be disclosed before the Committee adopted her views. Which it should be noted again, were essentially that the College had been wrong in concluding that Sheikh Albaf remained a fit and proper person.

93. Procedural fairness did not permit the course which the Committee pursued. It also requiring the College and the Sheikh to be heard about the adverse conclusions the Senior Inspector had arrived at. It being apparent that there are matters to which they could have drawn the Committee’s attention, to urge it to conclude that the Inspector’s views were not fairly open, given all that it had to consider.

94. Despite this, unlike the College, the Committee came to its determination with neither Senior Inspector Prideaux nor it having spoken to the Sheikh. It also not having obtained from him or the College any response to her findings and the views which she had formed. On the Sheikh’s case, views which were in part factually incorrect.

“The College

8. The College is also concerned with respect to your Social Media Posts. While some of the posts appear to be political, the College is concerned by the content of some of the posts including, but not limited to:

(a) Referring to the state of Israel as a ‘Zionist terrorist’ state and as devils;

(b) Referring to Israel as ‘Devil Masters’ on 31 July 2025;

(c) Referring to supporters of Zionism as the state of Israel as either clueless or propogandists on 29 July 2025;

(d) Posting ‘Ya Allah, destroy the Zionist State of Israel’ on 24 October 2025.

9. The above posts may be interpreted to be offensive, harmful, divisive and extremist, if not anti-Semitic. The College is also concerned by the fact that the Social Media Posts were made on a public form accessible to members of the public and at a time you were employed by the College.

10. Furthermore, the Social Media Posts were made after previous social posts made by you led to an investigation by the DET and NESA in 2025 and which resulted in in the College issuing you a direction to refrain from making further similar posts.

11. It is the College’s responsibility to ensure that you remain fit and proper pursuant to relevant Commonwealth and NSW legislation and regulations. As principal, you are expected by the College and by the DET and NESA to uphold the highest standards of professional conduct and responsibility both in your capacity as principal and in in public forums including social media in accordance with the College’s social media policy.

12. Your conduct in relation to the Social Media Posts may amount to misconduct, breach of your employment contract, breach of College’s policies and breach of the relevant legislation. As a result of the Posts, the College has been exposed to regulatory scrutiny, adverse media exposure and reputational risk.

13. As part of the College’s response to NESA and the Commonwealth DET, and to afford you procedural fairness, the College will provide you with an opportunity to show cause why disciplinary action should not be taken against you. Specifically, you are invited to address the following:

The circumstances in which the Posts were made;

Whether you consider that the Posts demonstrate a deliberate pattern of immoral or unethical behaviour;

Whether you consider the Social Media Posts to be either racist, anti-Semitic, divisive or offensive;

Any justification, explanation or context, for the posts in light of your position as Principal;

Your justification, if any, for making the Posts having regard to the previous social media posts;

Any mitigating factors or clarifications you wish to place on record;

Any steps you have taken, or propose to take to address the College’s concerns and prevent similar concerns from arising again in the future;

Whether you consider yourself to remain suitable and fit and proper for the role of principal of the College in light of the proposed actions by NESA and the Commonwealth DET; and

Any other information you believe is relevant for the College to consider.

14. Please provide your response to the above in writing by 5:00pm 10****th February 2026. We anticipate that following this response you will also be invited to a formal interview with a delegation of the board on 13/02/2024. If you have engaged legal representation in relation to this matter, please provide us with the details of who you have engaged.

15. Your response to this Show Cause Notice will be considered in determining what disciplinary action the College will take against you.

16. In the interim, we remind you of your obligations pursuant to the undertaking signed by you on 29 January 2026.

17. This Notice is issued without prejudice to any other rights and remedies available to the College under applicable rules and law.”

98. It must be accepted that this notice was incapable of putting Sheikh Albaf on notice of the Senior Inspector’s conclusions, or their basis. What she had to consider included his response to the School’s notice and the result of the College’s own investigations, which were then both unknown.

99. The principles I have explained, applied to these facts well establish, I am satisfied, that the Committee erred when it failed to give Sheikh Albaf the procedural fairness to which he was entitled.

Senior Inspector Prideaux’s report was adverse

100. That the report was adverse was also disputed.

101. It is long settled that the law recognises the importance of “the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it”: Kioa at 587.

102. The Senior Inspector’s report identified that the College had expanded its Board to include responsible persons with expertise in schooling and education. It also explained the investigation pursued into Sheikh Albaf’s social media posts. The Senior Inspector explaining the information which had been obtained in the two investigations undertaken in relation to the College in 2025, referring to both requirements of the Education Act and the Authority’s Non-government Schools Manual.

103. Senior Inspector Prideaux observed that where necessary, the Authority has “the authority to assess fit and proper related circumstances, including … whether a responsible person is fit and proper”. She identified that in making such an assessment and determination about an individual, the Authority considers whether:

104. “there is a pattern of deliberate behaviour

105. they have engaged in immoral or unethical behaviour

106. there has been any remorse or a reasonable attempt to rectify the conduct

107. the nature and seriousness, frequency and recency of the conduct

108. the proprietor’s determination of the conduct

109. any explanation for the conduct

110. the responsible person’s subsequent conduct and actions.”

111. They not being definitive and the Authority’s Manual providing guidance on fit and proper matters.

112. Sheikh Albaf also complains that this had not been disclosed in the letter which the Authority had sent to the College and him, notifying them of the investigation. Had it been, he would have addressed the matters identified. The result of the approach the Authority adopted, having also denied him procedural fairness.

113. What the Senior Inspector did not refer to was that the Manual expressly recognised that even if a responsible person had been convicted of a criminal offence, that would not necessarily mean that they were not fit and proper: B2.1. Even though her report did not suggest that Sheikh Albaf had breached any law, criminal or civil.

114. Her conclusions turning on the view that his posts had involved immoral and unethical behaviour. But without explanation of how that conclusion was available when it was the right to express his political opinions which the Sheikh had exercised in his posts. Albeit, he accepted, in inappropriate terms.

“Through the School Representative the proprietor noted the serious nature of the investigation, intending to fully cooperate with NESA to investigate the concerns, and emphasised that it categorically rejects all forms of anti-semitism, racism, hatred and discrimination. The proprietor also stated that ‘honestly held political opinions’ are unlikely to breach the fit and proper requirements of engaging in a deliberate pattern of immoral or unethical behaviour.

In addition, the proprietor indicated its assessment of the social media posts was that they ‘are not obscene, defamatory, discriminatory or hateful to another person or religion’ and they are primarily directed at a foreign government **(**Israel) and a political ideology **(**Zionism), not towards any particular race.

The proprietor does, however, consider the posts inappropriate and not fitting of the principal given his standing in the community. As such the proprietor proposed to issue a disciplinary notice to the principal by 2 February 2026, on his return from leave overseas, requiring a response from the principal by 9 February 2026. The proprietor intended to then conduct an internal investigation to determine if further disciplinary actions are necessary. Also proposed was the provision of a written undertaking from the principal that he would not engage in any further similar social media commentary while employed at the school and that he would participate in additional relevant training.

The response indicated that the proprietor did not intend to temporarily remove the principal from his role while the investigation is underway and noted its obligations under the Fair Work Act 2009 (Cth) (Fair Work Act) to afford the principal procedural fairness when making an employment decision.”

117. Senior Inspector Prideaux also noted that after a meeting with the Authority on 21 January, the College had advised on 22 January that the “principal had voluntarily offered to temporarily stand aside until the matter was finalised”. The College having then provided a copy of its communication of this to the school community. Sheikh Albaf later also provided the undertakings the Authority had sought, that he would refrain from making any further similar social media comments while he remains employed by the school.

118. The attachments to the report included Sheikh Albaf’s response to the show cause notice the College had given him, as well as the spreadsheet by which he had explained his social media posts. But it did not quote from or explain either.

119. The Senior Inspector then explained:

“The outcome of the school’s investigation was that the school’s proprietor determined there was insufficient evidence to determine that the principal, Sheikh Abdulghani Albaf, is not a fit and proper person.

The school did determine that the conduct of the principal falls short of what is expected of a principal and has resolved to take immediate disciplinary action by placing the principal on probation for a 6-month period.

The school proposed that during this 6-month probation period, compliance with policies, undertakings and governance documents will be closely monitored and reviewed by the school. It also proposed that should the principal breach any undertaking or policy during this period, the school will take further appropriate disciplinary action. The school indicated the principal will be required to undertake professional counselling in relation to the matter.

Further, to ensure sustained compliance and understanding, the school resolved that mandatory training be provided to all responsible persons, including the principal, in relation to:

1. governance obligations of Approved Authorities
2. regulatory expectations of NESA
3. ethical leadership and professional conduct
4. social media use and reputational risk
5. decision making under heightened scrutiny.

The school put forward to NESA that it has ‘conducted a thorough investigation, acted independently and with procedural fairness, made evidence based findings, proposed to implement extensive governance, policy, training and monitoring measures and taken all reasonable steps to mitigate regulatory, reputational and operational risk’.

The school further submitted that ‘the actions taken to date, in conjunction with the proposed disciplinary actions and further strengthening of the College’s governance documents provide sufficient assurance to NESA that the Principal remains suitable for his role, that the College is compliant with all laws and regulations and that no further action by NESA is warranted’.

Finally, the school stated it is ‘willing and prepared to work with NESA to address any further concerns NESA may have. The College welcomes any comments, suggestions or feedback NESA may have and looks forward to having an open dialogue and collaborative approach with NESA’.”

120. Senior Inspector Prideaux then turned to her analysis. Beginning by noting that her investigation had centred on establishing whether there was evidence that:

“(a) the school’s principal, Sheikh Abdulghani Albaf, is not a fit and proper person

(b) the school’s current documented policies and procedures relevant to the focus of the investigation comply with the requirements for registration

(c) the school is implementing its documented fit and proper person related policies and procedures that are the focus of the investigation

(d) any current non-compliance exists for either (b) or (c) or both, meaning that the school’s enacted policies and procedures are currently systemically non-compliant.”

121. The report gave no explanation of what was required of a fit and proper person under the Education Act. Amongst the matters which the Senior Inspector did note were that:

122. it was apparent that the College was not aware of the Sheikh’s posts, until notified by the Authority;

123. it had acted swiftly to have them removed or edited;

124. it was engaging constructively to ensure compliance and investigate the principal’s conduct and fit and proper status;

125. it had acknowledged the work and positive impact that the principal had, since commencing at the school;

126. it had not substantially deviated from its initial conclusions, in its final advice, having pursued a procedurally fair process, within stringent timeframes;

127. but it had not investigated whether the “sentiment of the personal social media posts had permeated into the principal’s conduct while performing his professional duties”;

128. it intended to retain the Sheikh in his employment and would address its disciplinary concerns by probation and a range of educative and monitoring strategies; and

129. it had concluded that “while the conduct of the principal was inappropriate, it:

130. occurred on personal social media accounts outside of school hours

131. was not directed at students, staff, parents, or the school community

132. has not been subject to an unlawful finding by any authority

133. has not been found to constitute hate speech, extremism, or incitement to violence

134. has not been alleged or evidenced that it has harmed students, staff, or the school community.”

135. The Senior Inspector then noted that in “cases where NESA is not satisfied that a determination has been made appropriately, NESA has the authority to make its own determination.”

136. Still the Senior Inspector did not explain why what had persuaded the College, did not establish Sheikh Albaf remained a fit and proper person. That depending not only on what he had written in his posts, but also on how he had acted. Including by acknowledging his mistakes and how he addressed them.

137. The Senior Inspector then explained the College’s code of conduct and social media policy, noting that the Code required that staff:

“▪ uphold the reputation of the College

▪ comply with the College’s policies and procedures

▪ act responsibly

▪ be accountable for their actions and decisions.”

125. And that its policy required responsible persons to:

“▪ protect their reputation and that of the school

▪ make it clear that any views expressed on a personal account are not those of the school’s

▪ to have regard to the school’s anti-discrimination, racism, anti-semitic, harassment and bullying policies.”

126. And that it required that responsible persons do not:

“▪ engage in any activity that reflects poorly on the school

▪ post material that is defamatory, threatening or hateful to another person, group, religion or entity

▪ act in a way which may or is likely to have an adverse effect on the school or its reputation.”

127. Senior Inspector Prideaux then noted that a connection was easily made between the Sheikh’s accounts and his position at the College, and that his posts did not make clear that his views were not those of the school, which its media usage policy required. With the result her conclusion that his conduct was not consistent with the College’s policies, he having contravened both its Code of Conduct and the personal usage policy.

128. The Senior Inspector then turned to the College’s registration. Explaining with my emphasis:

129. her concern about the College’s “compliance with the registration requirement fit and proper and its implementation of policies and procedures for being assured that its responsible persons remain fit and proper. The school’s responsibilities extend beyond obtaining an annual fit and proper statutory declaration from each responsible person”;

130. her conclusion that the College had not monitored the principal’s compliance with the Code and the social media policy, despite the first 2025 investigations;

131. “As a result the principal admits he continued to express his opinions of a similar nature and theme via social media throughout 2025. Those posts contain implicit, if not explicit, violent and/or hate related commentary on social media in breach of the school’s newly developed policies. Further, posts continued to be published despite the school providing, and the principal and all responsible persons completing, governance training in 2025 and after the principal acknowledged and signed the school’s Code of Conduct and Social Media – Personal Usage Policy”; and

132. the College had acknowledged that it had to take proactive steps to manage both actual and perceived regulatory risk and explained its proposals.

133. After repeating matters she had identified at the outset needed to be considered, the Senior Inspector found, again with my emphasis:

“(1) Sheikh Abdulghani Albaf does not dispute that the social media posts at TABs 2 and 6 were made by him on his personal social media accounts

(2) the principal continued to make social media posts throughout 2025 despite similar posts being the subject of investigation by government agencies in early 2025

(3) the nature, tone and language used in some of the principal’s social media posts is serious in that it could be considered to implicitly, if not explicitly, contain violent and/or hate themed content

(4) since January 2026, no further social media posts have been made by the principal that raise concerns

(5) the principal complied with requests from the school during the period of investigation

(6) the principal defended his comments and provided context for the social media posts

(7) the principal acknowledges that his public commentary may attract heightened scrutiny given his position

(8) the principal has contravened the school’s code of conduct and social media policy

(9) the principal’s explanation of the conduct does not sufficiently accept the seriousness of the concerns raised

(10) the principal has not demonstrated remorse for his conduct other than to accept that some language used may have been confronting to members of the broader public when viewed without context

(11) there is a pattern of frequent and recent behaviour demonstrated through regular social media posts and commentary made prior to and during his employment as principal, including following the first related investigation in 2025, subsequent training completed in or around March 2025, and installation of new school policies and codes of conduct addressing social media usage

(12) the school strengthened its policies and procedures in relation to the code of conduct, social media usage and implemented social media training for responsible persons as a reasonable attempt to rectify the conduct

(13) the subsequent conduct and actions of Sheikh Abdulghani Albaf during 2025 is evidence of the proprietor’s remediation actions proving unsuccessful

(14) the school’s governance policies and procedures relating to the code of conduct and social media usage was not monitored or enforced by the school’s governing body during 2025, thereby nullifying its implementation

(15) the proprietor’s determination followed a procedurally fair process for the principal

(16) the proprietor’s explanation of the principal’s conduct closely reflects the principal's explanation

(17) the proprietor’s apparent understanding of its role in monitoring the personal social media activity of the principal in the context of the previous investigation did not align to that of NESA’s expectation.”

130. Further, that:

“In summary, the conduct of Sheikh Abdulghani Albaf may demonstrate a deliberate pattern of immoral or unethical behaviour that is inappropriate for a responsible person and principal of a school whose primary role at the school is to provide a quality educational program and safe and supportive environment for students.

There is evidence that the school has the required documented policies and procedures to comply with the requirements for registration which are the focus of this investigation and that these policies require further revision.

There is evidence that the school may not be implementing, monitoring or enforcing its documented policies and procedures in areas that are the focus of the investigation.

The evidence is provided for the RAC to determine whether Sheikh Abdulghani Albaf is a fit and proper person, and to consider whether any current non-compliance with school registration requirements exists, and to consider whether the school’s enacted policies and procedures are currently systemically non-compliant.”

131. The Senior Inspector then recommended that the Committee:

“(1) Consider the investigation report and information provided in the associated materials at TAB 1 to TAB 21.

(2) Approve one of the following options:

(a) Option 1 – Accept the school’s determination that Sheikh Abdulghani Albaf is a fit and proper person.

(b) Option 2 – Determine that Sheikh Abdulghani Albaf is not a fit and proper person and provide reasons for the decision.

(c) Option 3 – In lieu of Option 1 or Option 2, consider alternative decisions that are consistent with the relevant legislation.

(3) If Option 1 is approved, appropriate consequential conditions will be proposed for the Committee’s consideration out of session.”

132. The report concluded:

“The school and principal will be notified of the Committee’s fit and proper determination.

Should the Committee find that the principal is not fit and proper, the proprietor will be provided with the opportunity to act in response to that finding.

If NESA is not satisfied with the school’s response and it is determined that the school is not complying with the registration requirements, a recommendation to cancel the school’s registration may be presented for the Committee’s consideration.”

133. It follows that the Senior Inspector’s conclusion that the Sheikh’s posts were immoral or unethical rested on her view that their nature, tone and language implicitly, if not explicitly, contained violent and/or hate themed content.

134. But she did not explain why the Sheikh’s case — that his posts reflected the lawful expression of his political beliefs, although they were admittedly not all expressed in appropriate language — could not be accepted. The oblique reference to what he had advanced being confined to “the principal defended his comments and provided context for the social media posts”.

135. It follows that it must be accepted that had the College and the Sheikh been given the opportunity to address the Committee about the Senior Inspector’s conclusions, they would have had relevant matters to advance.

136. It should also be noted that despite the Senior Inspector’s observation that the College had pursued a procedurally fair process, she did not suggest that the course she or the Committee was pursuing was or had to be procedurally fair.

137. The proper inference is that this was not given any consideration, with the result that it was also overlooked by the Committee.

138. Given the contents of the report, it must be accepted that it was adverse to both the College and Sheikh Albaf. With the result that it ought to have been disclosed and they given an opportunity to respond, before the challenged determination was made by the Committee which adopted her views, with hardly any discussion.

139. That would have enabled the Committee to consider what Sheikh Albaf contends were deficiencies in the report. Some of which, it should be observed, may have a basis and could conceivably have been accepted by the Committee, had they been drawn to its attention.

The proper construction of the Education Act

140. Sheikh Albaf also attacks the process which the Authority, the Committee and the Minister have and are pursuing. Contending that it is not one provided for by the Education Act and contrary to the Authority Act, and so cannot be further pursued as it has been thus far.

141. I am not satisfied that this can be entirely accepted.

142. There was no issue about the applicable principles of statutory construction. They, in short, include that the sections in issue must be construed by beginning with their text while, at the same time, having regard to their context and purpose. Context having to be considered at this first stage and not some later stage, as well as in its widest sense: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].

143. Crucial to the case Sheikh Albaf advances is the contention that the Education Act intends that he have a right to pursue a merits review of any determination that he is no longer a fit and proper person. With the result that the Committee was not entitled, as it did, to consider that question separately from its consideration of whether it should recommend the cancellation of the College’s registration to the Minister, given what ss 47, 59 and 107 provide.

144. I am not persuaded that this reflects the proper construction of the Education Act. Despite the undoubtedly difficult consequences that may have for a responsible person of a non-government school found by the Committee not to be a fit and proper person, which does not result in a recommendation that the school’s registration be cancelled.

145. But that, I consider, accords with the Education Act not providing for the administrative review of all decisions that a responsible person is not a fit and proper person. That is because despite the undoubted importance of a recognised person being and remaining a fit and proper person, that being one of the requirements for registration of a non-government school under the Act:

146. this accords with not every determination that a recognised person is not a fit and proper person necessarily resulting in a recommendation that a registered non-government school’s registration be cancelled; and

147. it only being decisions to recommend that such registration be refused, that it not be renewed or that it be cancelled, for which administrative review is provided by s 107(1)(a)-(c).

The regulatory system

146. It is s 20A of the Education Act which specifies the Authority’s functions under that Act. They include “(b) to provide advice and make recommendations to the Minister about the registration of non-government schools under Part 7,” and (r) to advise the Minister in relation to the matters including “(vi) any matter in relation to which the Minister requests the Authority’s advice.”

147. Functions of the Authority are also specified in s 12 of the Authority Act. They include functions under the education and teaching legislation in relation to the registration and accreditation of schools and reporting and advising on matters relating to its functions: ss 12(2)(f) and 12(2)(i).

148. The role and functions of the Authority’s Board are specified in s 7(1) of the Authority Act, in terms which need not be quoted.

149. The appointment of inspectors for the purposes of the education and teaching legislation is regulated by s 13. They are also given powers of inspection, including for the purposes of obtaining documents for purposes connected with the administration of the education and teaching legislation: s 14(2)(b).

150. Non-government schools are regulated by Part 7 of the Education Act. It permits their registration: s 38. Conditions of registration being specified in s 47. The Minister may also impose conditions on registration: s 53A.

151. Before the registration of a non-government school is to expire, the Authority has to make a written recommendation to the Minister as to whether or not the registration should be renewed: s 55(1). That requires it to consider whether conditions of registration are being complied with. They include that recognised persons be fit and proper persons: s 47(1)(c). And it may give a school notice that specified matters must be addressed, before renewal is recommended: s 55(3).

152. Registration may also be cancelled by the Minister, on the recommendation of the Authority, if satisfied that the requirements for, or the conditions of the school’s registration are not being complied with: s 59.

153. Responsible persons are also required to notify the school and Authority of matters specified in s 63A(1), namely if he or she:

“(a) is convicted of an offence punishable by imprisonment for 12 months or more, or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(c) if the person is a corporation—is the subject of a winding up order or has had a controller or administrator appointed”

154. Notice that a responsible person has become mentally incapacitated must also be given to the Authority: s 63A(2).

155. Section 25 of the Authority Act empowers the Authority to make rules, “not inconsistent with the education and teaching legislation, for or with respect to the exercise of any of its functions or any other matter that is required or permitted to be prescribed under that legislation by the rules.”

156. Presumably this is the power under which the Authority created its Manual, only part of which is in evidence. It provides guidelines with respect to the requirements it has imposed for registration of non-government schools: s 25(2). There is no issue that they cannot be used to interpret the legislation and may not be inconsistent with the education and teaching legislation: s 25(1).

157. As I have explained, the process which is still being pursued by the Committee is a staged one. The evidence establishes that at various times the Minister has been involved, with the result that the Minister’s aim was known by Authority staff to have been that Sheikh Albaf not return to the College, before the Committee made its challenged decision.

Sections 47, 59 and 107 of the Education Act

158. Section 47 is the pivotal provision on which registration of a non-government school under Part 7 of the Education Act depends. It provides, pertinently:

“47 Registration requirements for non-government schools

(1) For the purposes of this Act, the requirements for the registration of a non-government school are as follows—

…

(b) each responsible person for the school, and any other person or body having similar functions in relation to the school as those of such a responsible person, is a fit and proper person or body,

(b1) policies and procedures for the proper governance of the school are in place,

(c) any refusal to register, or cancellation of registration, of the school or any other school under section 56 or 59 occurring during the period of 5 years immediately before the application for registration is made has not been largely attributable to the actions of a responsible person or proposed responsible person for the school, or any other person or body having similar functions in relation to the management or operation of the school to those of a responsible person,

…

(2) In deciding whether the requirements for registration will be or are being complied with at or in relation to a non-government school, the Authority or the Minister is to have regard to matters relating to the quality of student learning. Such matters include, but are not limited to, the following—

(a) the standard of teaching of courses of study provided at the school,

(b) student engagement in learning at the school,

(c) any matters identified in a risk assessment conducted by the Authority in relation to the school.

(3) The rules of the Authority may specify matters, in addition to but not inconsistent with the matters referred to in subsection (2), that the Minister may have regard to in determining whether the requirements for registration will be or are being complied with at or in relation to a non-government school.”

159. A school’s failure to comply with the requirements of s 47 does not give rise to any civil cause of action on the part of a parent: s 47A. But it will be relevant on an application for renewal of the school’s registration, or if the question of the cancellation of its registration should arise.

160. “Responsible person for a school” is defined in s 3 to mean:

“(a) the proprietor of the school and, if the proprietor is a corporation, each director or person concerned in the management of the school, or

(b) a member of the governing body of the school, or

(c) the principal of the school.”

161. “Fit and proper person” is not defined. Unlike other statutory regimes which impose such a requirement, it also does not specify the matters which have to be taken into account, when consideration has to be given to whether a responsible person is fit and proper.

162. The result is that the meaning of the term has to be gleaned from its statutory context.

163. Subdivision 3 of Part 7 deals with continuing registration of non-government schools. Renewal applications may be made, considered by the Authority and granted by the Minister, only if that is recommended by the Authority: ss 54A to 57. Registration may then continue for a maximum period of 5 years: s 57(2).

164. If the Minister is not satisfied that the requirements for, or the conditions of, registration are being complied with at the non-government school, the period of registration may also be reduced: s 57A(2). That also depends on a recommendation by the Authority: s 57A(1).

165. As does cancellation of a non-government school’s registration: s 59. It provides:

“59 Cancellation of registration

(1) The Minister may, on the recommendation of the Authority, cancel the registration of a non-government school by written notice given to the proprietor or principal of the school or, in the case of a school that is a member of a system of non-government schools, to the approved authority for the system.

(2) The Minister may not do so unless the Minister is satisfied that the requirements for, or the conditions of, registration are not being complied with at the non-government school.

(3) The Minister may not cancel the registration of a non-government school under this section unless written notice of the Authority’s recommendation has been given to the proprietor or principal of the school or, in the case of a school that is a member of a system of non-government schools, to the approved authority for the system and—

(a) 30 days have elapsed since the giving of that notice, during which time no application has been made to the Tribunal for an administrative review of the Authority’s recommendation, or

(b) the Tribunal has determined an application for an administrative review (made within those 30 days) of the recommendation and the Minister has considered any contrary recommendation of the Tribunal and the reasons for it, or

(c) any such application for an administrative review of the recommendation has been withdrawn.”

166. It follows that consistently with s 5 of the Authority Act, to which I will return, neither s 47 nor s 59 empower the Minister to direct the Authority to find that a particular responsible person is or is not a fit and proper person. Nor to recommend that a school’s renewal be cancelled because he or she no longer remains such a person. The Minister having no power to consider cancellation, unless that is recommended by the Authority.

167. This is supported by s 48 of the Interpretation Act 198**7 (NSW), which provides:

“48 Exercise of statutory functions

(1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.

(2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.”

168. What the Parliament has recognised by the mechanisms it has created in the Education Act is that various decisions, which will have an impact on the education of children in schools, are so complex and important that they should not be made by a single individual. What they depend on undoubtedly being matters about which reasonable minds can differ, given what this statutory scheme regulates. That being reflected in the principles and objects specified in ss 4 to 6 of the Education Ac**t.

169. Section 47 does not expressly empower the Authority or the Minister to determine whether a principal is a fit and proper person. But necessarily, when registration is sought, on renewal and if consideration has to be given to the cancellation of a school’s registration, that may arise to be considered, given what s 47(1) requires.

170. The Act does not empower the Authority to consider or determine whether a responsible person is a fit and proper person, in any other circumstances.

171. Cancellation is only for the Minister to determine, if a recommendation is made by the Authority or its delegate, on being satisfied that the requirements for, or the conditions of, registration imposed by s 47 are not being complied with. Even when the reason is a concern that a recognised person is no longer a fit and proper person, the requirements of s 47(2) will then also have to be taken into account.

172. This may result in cancellation of registration not following, even though the responsible person is no longer fit and proper. That being left, finally, to the Minister’s discretion, if a cancellation recommendation is made. In which event s 107(1)(c) permits administrative review of the recommendation, including, it is not in issue, in relation to a decision that a recognised person is not a fit and proper person.

Fit and proper

173. Because the term “fit and proper person” is not defined in the Education Act, there is no issue that it must take its meaning from its statutory context: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; [1990] HCA 33. As there explained, in some statutory contexts, character or reputation may be sufficient to ground a finding that a person is not a fit and proper person. A person’s conduct may also be relevant.

174. There was thus also no issue that Sheikh Albaf’s social media posts were relevant to the assessment of whether he remained a fit and proper person. Even though he posted them on his personal accounts and not on a College account.

175. The pivot of the construction of the Education Act which Sheikh Albaf advanced was that s 47(1)(b) did not make relevant to the assessment of whether a responsible person was a fit and proper person, “the mere expression of personal political opinions, even if extreme or radical”. Despite which he accepted that the College had been correct to be concerned about the language he had used.

176. That acceptance accords with the scheme of the Education Act. It being concerned with the education of children. Which obviously results not only from what those who teach them say, but also from what they do.

177. That it was the Sheikh’s political opinions about which he had posted, undoubtedly had to be taken into account when the Committee determining whether he was fit and proper. As did the language he had used.

178. This reflecting the approach in Hughes & Vale Pty Ltd v New South Wales *(*No 2) (1955) 93 CLR 127; [1955] HCA 28, a case concerned with the licensing provisions of the State Transport *(*Co-ordination) Act 1931-1951 (NSW), it was held at 156-157 that:

“The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances: R. v. Hyde Justices.”

179. It follows that in construing the meaning of the term “fit and proper person” in the Education Act, it embraces not only their character, but also their conduct. Including when they exercise their right to express their political opinions. All of which had to be considered by the Committee, when it made its challenged determination, given what the Sheikh had posted.

180. That approach is supported by the principles on which the Education Act is based, as well as its principal objects and those which the Parliament expects all those concerned in the administration of the Act and involved in the education for children of school-age in the State to have regard to. Those persons include those who work in non-government schools, the Minister, those the Authority employs, including members of the Committee, its CEO and staff when exercising functions under the Act.

181. It follows that those provisions also casts light on what a “fit and proper person” means in this statutory context.

182. Sections 4-6 providing, with my emphasis:

“4 Principles on which this Act is based

In enacting this Act, Parliament has had regard to the following principles—

(a) every child has the right to receive an education,

(b) the education of a child is primarily the responsibility of the child’s parents,

(c) it is the duty of the State to ensure that every child receives an education of the highest quality,

(d) the principal responsibility of the State in the education of children is the provision of public education.

5 Principal objects of this Act

The principal objects of this Act are as follows—

(a) to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for candidates for the Record of School Achievement and the Higher School Certificate,

(b) to provide for the establishment and operation of government schools,

(c) to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales,

(d) to allow children to be educated at home,

(e) to provide for the grant of Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them.

6 Objects for administration of this Act or of education

(1) It is the intention of Parliament that every person concerned in the administration of this Act or of education for children of school-age in New South Wales is to have regard (as far as is practicable or appropriate) to the following objects—

(a) assisting each child to achieve his or her educational potential,

(b) promotion of a high standard of education in government schools which is provided free of charge for instruction and without discrimination on the ground of sex, race or religion,

(c) encouraging innovation and diversity within and among schools,

(d) provision of an education for children that gives them access to opportunities for further study, work or training,

(e) mitigating educational disadvantages arising from the child’s gender or from geographic, economic, social, cultural, lingual or other causes,

(f) provision of an education for Aboriginal children that has regard to their special needs,

(g) development of an understanding of Aboriginal history and culture by all children,

(h) provision of an education for children from non-English speaking backgrounds that has regard to their special needs,

(i) recognition of the special problems of rural communities, particularly small and isolated communities,

(j) provision of opportunities to children with special abilities,

(k) provision of special educational assistance to children with disabilities,

(l) development of a teaching staff that is skilled, dedicated and professional,

(m) provision of opportunities for parents to participate in the education of their children,

(m1) provision of opportunities for Aboriginal families, kinship groups, representative organisations and communities to participate in significant decisions under this Act relating to the education of their children,

(n) provision of an education for children that promotes family and community values.

(1A) It is the intention of Parliament that the provision of courses of study required by this Act for the Higher School Certificate has the following objects—

(a) to provide a curriculum structure that encourages students to complete secondary education,

(b) to foster the intellectual, social and moral development of students**,** in particular by developing—

(i) their knowledge, skills, understanding and attitudes in the fields of study they choose, and

(ii) their capacity to manage their own learning, and

(iii) their desire to continue learning in formal or informal settings after school, and

(iv) their capacity to work with others, and

(v) their respect for the cultural diversity of Australian society,

(c) to provide a flexible structure within which students can prepare for—

(i) further education and training, and

(ii) employment, and

(iii) full and active participation as members of the community,

(d) to provide formal assessment and certification of students’ achievements,

(e) to provide a context within which schools also have the opportunity to foster the physical and spiritual development of students.

(2) This section does not limit the operation of any other provision of this Act.

183. Given these provisions, it may be accepted that the requirement for recognised persons to be “fit and proper” does not exclude the exercise of their right to have and express their political opinions. But they do have an impact on how such opinions may be expressed.

184. So much was accepted by Sheikh Albaf.

185. This reflecting that the education which responsible persons are engaged to help provide at a non-government school to its students, who may be young, vulnerable children, must not only be high quality. The Act also requiring that it be directed to the promotion of family and community values; the children’s social, moral and physical development; the development of their capacity to work with others; and their ability to respect the cultural diversity of Australian society.

186. Necessarily, in this statutory context, a fit and proper person will by both their words and deeds pay attention to those principles and objectives. As will the Minister, those the Authority employs and members of the Committee, when exercising its functions.

Family and community values

187. The term “family and community values” is also not defined in the Education Act. But its use in s 6 makes it relevant to the consideration of whether the words or deeds of the principal of a registered non-government school reveals that he or she is, or is not, a fit and proper person.

188. The parties did not address the meaning of the term, but it is of relevance to the proper construction of the term “fit and proper person” and so must be considered. It being obvious that community values are of considerable importance to the fostering of the intellectual, social and moral development of all students, including those who attend registered non-government schools. So that they are not only helped to develop the capacity to work with others, but to fully and actively participate as functioning members of the community, understanding and embracing its values.

189. The meaning of the term “community values” has been judicially considered, that shedding light on the meaning of the term “family and community values”.

190. It having been recognised that community values can change over time as society changes, with the result, it must be accepted, that what family and community values are, may be contestable: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12]. But as also observed in Andrew, community values have been accepted to be associated with morality, which also develops “silently and unconsciously from one age to another”, thereby shaping law: Benjamin N Cardozo, The Nature of the Judicial Process (New Haven; Yale University Press, 1921) at 104-5.

191. Thus, it was pertinently concluded in Andrews:

“13 The values or morality of a civil society underpin or inform, at different levels and in different degrees of abstraction, law at all levels including interpretation of legal (including statutory) rules, evaluative assessment of standards (legal and factual) and discretionary judgments. To the extent that values are expressed by Parliament, they are interpreted and given limits and contours by the courts. Parliament may prescribe relevant factors to be taken into account, but community values are not the monopoly of Parliament. Ultimately they belong to civil society itself, to be ascertained or discerned by courts, whether by interpretation of statute or by the expression of the general law, when the application of judicial power requires it: cf Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27 at 42. Such does not obtain only in homogeneous or static societies. Diverse, tolerant and democratic societies governed by law and justice must, even more so, reflect the binding coherence of shared values and assumptions. Difficulty from time to time in accurate contemporaneous expression of such values and assumptions lessens not the need for the values or assumptions to be recognised or applied.

14 In a broad evaluative judgment based necessarily upon community values, the task should be expressed broadly and not by precise rules, lest particular rules or duties expressed by reference to one age's values come to distort later evaluative assessments by the imposition of the earlier age's rules and values.”

192. These observations may also shed some light on the term “immoral or unethical behaviour”, which is used in the Manual and was used by the Senior Inspector and the Committee, in its reasoning, to which I will return. But that term is not defined in the Manual, nor is it used in the Education Act. That its meaning is identical to “family and community values” is not apparent.

193. That underscores the importance of account being taken of the statutory concepts, whenever any decision about whether a responsible person is a fit and proper person is made.

194. The reference to family and community values in s 6 of the Education Act driving as it does attention being paid to prevailing community standards of what is right and appropriate, when decisions are made under the Act. The decision-maker then effectively “speaking for the feeling and judgment of fair and reasonable members of the community”: Andrew at [16].

195. In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 10; [1981] HCA 50, it was observed that “[c]ourts necessarily reflect community values and beliefs”. That arising to be considered in that case in the context of a claimed responsibility by members of an Aboriginal tribal group to ensure that relics on particular sites, of which they claimed to be custodians, were protected and whether this conferred claimed rights on them, to restrain an alleged criminal breach of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.).

196. The adoption of the concept of family and community values in the Education Act, I consider, also requires that the requirement that a recognised person be fit and proper to be approached from the perspective of fair and reasonable members of the community. And not idiosyncratically, or in accordance with individually held beliefs.

197. That the decision maker’s consideration must thus be undertaken in the context that fair and reasonable members of the community recognise that community members have the right to have and express political opinions, given the statutory arrangements I have explained, was not in issue.

198. Nor was that account will also have to be taken of how such opinions have been expressed.

199. That common position properly reflecting that fit and proper persons do not exercise their rights at the expense of students’ safety, or the achievement of the aims of the Education Act. Important as they both undoubtedly are to our cohesive society and the education of its students, which their families and the community value. Such education being intended to help equip them to also become fair and reasonable members of the community.

200. This helps explain why Sheikh Albaf also accepted that a fit and proper person would not express or pursue his or her political beliefs by embracing or advocating the pursuit of violence. Because that would not accord with family and community values and may also be contrary to Australia’s criminal laws.

“(a) all individuals in New South Wales, irrespective of their linguistic, religious and ancestral backgrounds, should demonstrate a unified commitment to Australia, its interests and future,

(b) all individuals in New South Wales should recognise the importance of shared values governed by the rule of law within a democratic framework,

(c) the people of New South Wales are of different linguistic, religious and ancestral backgrounds who, either individually or in community with other members of their respective groups, are free to profess, practise and maintain their own linguistic, religious and ancestral heritage,

(d) all individuals and institutions should respect and make provision for the culture, language and religion of others within an Australian legal and institutional framework where English is the common language,

(e) all individuals in New South Wales should have the greatest possible opportunity to—

(i) contribute to, and participate in, all aspects of public life in which they may legally participate, and

(ii) make use of, and participate in, relevant activities and programs provided or administered by the Government of New South Wales,

(f) all institutions of New South Wales should recognise the linguistic and cultural assets in the population of New South Wales as a valuable resource and promote this resource to maximise the development of the State.”

204. These principles do not give rise to and cannot be taken into account in any civil cause of action: s 22. But they help shed light on the values which the law recognises the community has embraced.

205. These laws balancing many important things:

206. criminal laws which aim to protect community members by deterring people from departing from the rules the community has chosen to live by. And to punish those who do, not only when they pursue violence, but also when they pursue hate speech: Criminal Code Act 1995 (Cth), ss 80.2A and 80.2B; Crimes Act 1900 (NSW), s 93Z. Such laws limiting important rights which other laws protect, such as freedom of expression;

207. civil laws which aim not only to protect people’s rights and freedoms to pursue their beliefs and express their opinions. But to balance them with other important concerns, including in relation to safety and the education of children;

208. Statutory laws and our still developing common law, continuing to reflect the community’s ongoing embrace of fundamental notions of fairness, which underpins the requirements of procedural fairness in decision-making which binds members of the Committee; and

209. that community members are free to disagree with each other. Including about their religious beliefs and political opinions. But that they will exercise care in how they express and pursue such disagreement.

210. By its objects and principles, the Education Act reflects an expectation that recognised persons in non-government schools will have regard to such family and community values. It having been amended in 2017 to require those who lead and are responsible for the operation of non-government schools — which seek to be and remain registered under the Act, in order that they can participate in the education of children in this State — be fit and proper persons.

211. It is in that statutory context that the Senior Inspector had to undertake her investigation and the Committee had to undertake its consideration of whether Sheikh Albaf was a fit and proper person, having afforded him the procedural fairness which the law required he be given.

NSW Registered and Accredited Individual Non-government Schools Manual

208. It should be noted that the Manual does not refer to considerations such as this. Nor did the Senior Inspector’s report or the reasons which the Committee adopted.

209. Even though the February 2026 version of the Manual explains some aspects of both the Education and Authority Acts. Registration requirements are dealt with in Part B. Part B2.1 refers to responsible persons, and any other person or body performing a similar role, having to be fit and proper. It identifies the matters which the Authority will consider to be:

“▪ debts to a government

▪ a record of satisfactory financial management, considering whether they have been bankrupt, insolvent, subject to court orders or associated with an organisation placed under external administration

▪ been convicted of, or charged with, an offence, including in relation to children, dishonesty or violence

▪ engaged in a deliberate pattern of immoral or unethical behaviour

▪ engaged in hate speech.”

210. The Manual does not explain what may constitute “immoral or unethical behaviour”. Nor is that a term used in the Education Act. Nor is hate speech explained.

211. The Manual does explain that conviction or engaging in any of the identified behaviours does not necessarily mean that a responsible person is not fit and proper. But that breaching laws that “fall short of constituting criminal offences” will give rise to consideration of whether “they were trivial and unintentional.”

212. Further, that “there may be occasions when non-criminal breaches of law may indicate the existence of serious behaviour”. In which event, consideration will be given to whether:

“▪ there is a pattern of behaviour

▪ they have engaged in immoral or unethical behaviour

▪ there has been sufficient remorse or a reasonable attempt to rectify the conduct

▪ the responsible person has repeatedly and deliberately set up corporate ventures which then fail.”

213. What is also absent from Part B2.1 is any reference to the objects or principles specified in ss 4 or 6 of the Education Act. Given the considerable discretion which the Manual explains is exercised when consideration is given to whether a responsible person is a fit and proper person, despite this omission, their provisions cannot be overlooked when that function is exercised.

214. It is difficult for example, to conceive that it would be open to the Committee to conclude that a person was not fit and proper, because he or she had engaged in immoral or unethical behaviour, if the behaviour did not offend family and community values. Attention having to be paid to this concept in the administration of the Education Act: s 6.

What the Education Act does not provide

215. In resolving what is in issue, it is also pertinent to note what the Education Act does not do.

216. Firstly, the Education Act does not establish a mechanism by which responsible persons of non-government schools can establish that they are fit and proper persons. Nor the process by which that may be determined by the Authority. Some light on which is shed by Part B2 of the Manual, which requires the person to provide a statutory declaration, to specified effect: B2.1:

“Fit and proper statutory declarations

Declarations must include a response about whether the person has ever:

▪ been convicted of an offence

▪ become bankrupt, insolvent or been placed under external administration

▪ been convicted of, or charged with, an offence, including in relation to children, dishonesty or violence

▪ been determined not to be fit and proper

▪ engaged in a deliberate pattern of immoral or unethical behaviour

▪ been a responsible person for a proposed or existing non-government school whose registration was refused or cancelled.

The proprietor must maintain a copy of each responsible person’s declaration for 7 years, including after they cease being a responsible person.”

217. Sheikh Albaf provided such a declaration.

218. Second, the Education Act does not empower the Minister to direct the Authority about the result of its assessment of whether a recognised person is fit and proper.

219. Third, the Education Act also does not specify the process which must be pursued when a recommendation to cancel the registration of a non-government school is being considered by the Authority. Even when consideration has to be given to whether a school’s recognised person continues to be a fit and proper person, as s 47 requires he or she does.

220. By way of contrast, the Education Act and the Authority Act do regulate the process by which the Minister may decide that such a school’s registration should be cancelled: Education Act, s 59 and Authority Act, s 5.

221. The result is that the process pursued when consideration has to be given to the cancellation of a non-government school’s registration, because the requirement that recognised persons be fit and proper may no longer be complied with, is for the Authority to determine. It only being if a recommendation is made to cancel the school’s registration, that this arises for the Minister to consider.

222. Given relevant delegations to the Committee, its decision-making process when it has to consider whether a recognised person is a fit and proper person, is for it to determine consistently with applicable law.

223. Fourth, the Education Act does not provide for a merits review of every decision about whether a recognised person is fit and proper. Section 107 of the Education Act only providing for administrative review of recommendations by the Authority to the Minister either to refuse registration of a non-government school, to not renew its registration, or to cancel its registration: s 107(1)(a)-(c).

224. Fifth, the Education Act does not empower the employment or termination of employment of recognised persons of non-government schools to be directed by the Authority or the Minister. Although no doubt non-government schools do pay regard to the requirements of the Education Act, when negotiating such contracts, choosing who to contract with and deciding whether such employment should be terminated.

225. Sixth, the Education Act does not give the Minister any role in controlling or directing the contents of any recommendation which the Authority, or the Committee on delegation, may make in respect of registration, renewal or cancellation of a non-government school’s registration, because a responsible person is not a fit and proper person: Authority Act, s 5.

The relevant delegations

226. Whether the Committee had the delegated function it exercised when it made the challenged determination is also in issue.

227. Section 12B of the Authority Act regulates the delegation, to an authorised person or body, of any of the Authority’s functions under the education and teaching legislation, other than the power of delegation: s 12B(1). The Committee could thus not subdelegate its functions to Senior Inspector Prideaux or the Authority’s CEO.

228. An authorised person is defined in s 12B(2) to include:

“…

(c) a member of staff of the Authority,

(d) a committee of the Board or subcommittee of a committee,

(e) a member of any such committee or subcommittee

…”

229. Education and teaching legislation being defined in s 3 to mean “the following Acts and the regulations and other instruments made under those Acts—

(a) this Act,

(b) Education Act 1990,

(c) Teacher Accreditation Act 2004.”

230. Section 49 of the Interpretation Act is also relevant, given the disputed delegation of the Authority’s functions to the Committee. It providing:

“49 Delegation of functions

(1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.

(2) A delegation—

(a) may be general or limited,

(b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and

(c) may be revoked, wholly or partly, by the delegator.

(3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.

(4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function.

(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.

(6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.

(7) If—

(a) the exercise of a function by a person or body is, by virtue of an Act or instrument, dependent on the opinion, belief or state of mind of the person or body in relation to any matter, and

(b) the person or body has delegated the function to some other person or body,

the function may be exercised by the delegate on the opinion, belief or state of mind of the delegate in relation to any such matter.

(8) If a function is delegated by or to a particular officer or the holder of a particular office—

(a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and

(b) the person for the time being occupying or acting in the office concerned is taken to be the delegator or delegate (as the case requires).

(9) A function that has been delegated may, notwithstanding the delegation, be exercised by the delegator.

(10) This section applies to a sub-delegation of a function in the same way as it applies to a delegation of a function, but only in so far as the Act or instrument that authorises the delegation of the function also authorises the sub-delegation of the function.”

231. The instrument of delegation, relevantly, includes:

232. It must be accepted that these delegations permit the Committee to exercise the function of making a recommendation to the Minister about the cancellation of a non-government school’s registration: Education Act, s 59.

The disputed process

233. There is no issue that the Committee’s challenged determination and the process being pursued, can be reviewed by this Court.

234. The evidence established that the challenged determination was made by the Committee, not by Senior Inspector Prideaux or the Authority’s CEO. It was made as part of the Committee’s consideration of whether a recommendation should be made to the Minister, to cancel the College’s registration. A consideration which it intends to continue, once the College responds to the Authority’s advice that the Committee has concluded that Sheikh Albaf is not a fit and proper person.

235. The Sheikh complains that this staged process was not only impermissibly influenced by the Minister, but also impermissibly pursued in order to pressure or influence the College to terminate his employment. Which the Fair Work Act constrains it from doing.

236. In Bond, it was a decision about whether a person was fit and proper to hold a commercial television licence which arose for consideration, in the context of another statutory scheme. That was found to involve an administrative decision about a “question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue”: at 335.

237. In this case, the Committee had a similar decision to make about whether Sheikh Albaf remained a fit and proper person, given the requirements of the Education Act. But the Sheikh contends that it could not be made separately from a consideration of whether a recommendation should be made to the Minister about the cancellation of the College’s registration.

238. I am not persuaded that this accords with the statutory scheme. Nor is that supported by what was decided in Bond.

239. In Bond, the concept of a decision was explained to extend to “the making of a report or recommendation before a decision is made in the exercise of a power”: at 336. One “which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”: at 337.

240. Likewise in this case, a decision about whether Sheikh Albaf remains a fit and proper person, as s 47(1) requires, is one necessarily made before a decision about recommending to the Minister the cancellation of the College’s registration can be made by the Committee. It also having to consider the matters specified in s 47(2) of the Education Act, when making such a decision.

241. In Bond, it was also recognised that there can be an error of law in the making of such a decision, because of the procedures pursued, which can then arise for consideration on a review such as this: at 343. This, again, is a similar situation. Sheikh Albaf contending that the Committee has already fallen into various error, given the process it has pursued to date in arriving at its challenged determination.

“• the need to prioritise the safety, protection and wellbeing of students

• legislative requirements, including recent Commonwealth and NSW legislative changes regarding hate speech

• resulting amendments to the NSW school registration and accreditation manuals regarding code of conduct and fit and proper requirements

• legal advice, which indicates a decision of the Committee may later be challenged.”

3. Before its meeting, the Committee had been provided with Senior Inspector Prideaux’s report, which attached the College’s advice and the response Sheikh Albaf had provided to the College’s show cause notice. It was taken as read and then addressed by Senior Inspector Prideaux at the meeting;
4. Senior Inspector Prideaux also advised the Committee about the “next steps” which it would need to consider at a future meeting. Depending on which of the three options she outlined in her report the Committee decided to pursue;
5. Mr Shergold then shared Ms Carrigan’s “feedback”, noted to be:

“• repeated issues regarding the conduct of the principal

• lack of remorse displayed by the principal

• failure of the school to implement appropriate disciplinary measures and/or monitor the ongoing conduct of the principal

• failure of the school’s investigation report to demonstrate an adequate understanding of the serious nature of the behaviour

• impact of the social media posts on the school and school community

• the need to prioritise the safety, protection and wellbeing of students.”

6. Mr Shergold then invited questions, but the Minutes record that Committee members “found the information thorough and had none”;
7. The Committee then voted, approving Option 2, it seems without discussion. That resulting in the finding that Sheikh Abdulghani Albaf is not a fit and proper person. The Minutes recording that its reasons were:

“• prioritising the safety, protection, and wellbeing of students

• the principal’s ongoing pattern of behaviour exhibited in social media postings identified in the report

• lack of remorse displayed by the principal

• while the principal’s conduct may not meet the criminal threshold, the role of a principal in a NSW school is to set an appropriate ethical and moral tone for school community

• the principal’s public commentary was of a concerning and hateful tone.”

8. The Committee also having noted its concern about the school’s management of the fit and proper registration requirement, specifically:

“• the failure of the school’s investigation report to demonstrate an adequate understanding of the serious nature and ongoing pattern of the behaviour

• its lack of confidence in the school’s capacity to monitor and address behaviour, in accordance with previous assurances made by the school.”

9. The Committee also agreed that the Authority would include a request for the school to inform the schooling community about its determination.

10. The problem which the Minutes reveal, Sheikh Albaf contends, was that the Committee failed to consider, as it had to, his claimed right to express his political opinions and the matters which had persuaded the College that he remained a fit and proper person. Despite its concerns about the language he had used in his posts, concerns which he had accepted.

11. This being confirmed by the reasons which Mr Martin later produced, as well as by the statement of reasons which the members of the Committee finally adopted. The Authority’s resulting advice to the College requiring:

“• a written response from the College outlining the actions(s) it intends to take to ensure it is compliant with the registration requirement that responsible persons are fit and proper (section B2.1 of the NSW Registered and Accredited Non-government Schools Manual); and

• that the school provide a copy of this letter to its parent community informing them of the determination.”

248. I consider that this establishes that part of the challenged process was the opportunity which the Authority gave the College, to respond to the Committee’s determination that the Sheikh is no longer a fit and proper person. In order that its response can be taken into account, when a decision about whether to recommend to the Minister the cancellation of its registration is made.

249. Despite no response having been invited from the Sheikh, I am not persuaded that this staged process is precluded by the proper construction of the legislative scheme. Concerned as Part 7 of the Education Act is with the registration of non-government schools, rather than with the rights of those who might be employed or appointed to be a school’s recognised persons. It being s 47 which imposes on schools the obligation that its recognised persons be a fit and proper. It is not imposed on the individuals.

250. That also being reflected in the limited rights of administrative review provided by s 107(1), of decisions which the Authority is empowered to make under the Act. They are only provided in respect of decisions about recommendations for the refusal of a non-government school’s registration, or its renewal or cancellation. And not for determinations about whether a particular recognised person is, or is not, a fit and proper person.

251. It follows that a right to have such a determination administratively reviewed is only provided by the Education Act when it is the basis of a decision to recommend the refusal of the school’s registration, its renewal or cancellation to the Minister: s 107(1)(a)-(c).

What has the Minister’s involvement in the process been?

252. Sheikh Albaf also complains that the result of the process pursued by the Minister, the Authority and the Committee to date is that the requirements of the Education Act and the Authority Act have been impermissibly departed from, to his detriment, given the Minister’s involvement. Relying on s 5 of the Authority Act.

253. The evidence establishing that the Committee was wrongly pressured to make its challenged determination. Those involved in the process and present when the determination was made, all having been aware of the Minister’s aim that the Sheikh does not return to the College. The necessary implication being that this wrongly influenced the Committee’s decision, Senior Inspector Prideaux also having been aware, as she was, of the Minister’s aim, as she admitted in her evidence.

254. The Sheikh also relies on no reference having been made in Senior Inspector Prideaux’s report, the notes of the meeting, the minutes, or in the Committee’s reasons, to what those present at the meeting knew about the Minister’s aim.

255. It was accepted that if the evidence established that some agenda or purpose had been pursued, with the result that the Committee did not properly turn its own mind to the exercise of its functions, then there would have been a departure from the course it was required by the Education Act to pursue.

256. That would also appear to establish a breach of s 5 of the Authority Act.

257. But it was contended that the evidence established that the Committee had independently applied itself to the information it had to consider, in making its challenged determination.

258. The functions of the Minister are specified in s 19 of the Education Act. They include “(c) to exercise the functions in connection with registration, and financial assistance to non-government schools, that are conferred or imposed on the Minister under Part 7”. As well as any other function conferred or imposed on the Minister under the Act: s 19(g).

259. Section 5 of the Authority Act provides:

“5 Role of Minister

The Authority is subject to the control and direction of the Minister in the exercise of its functions, except in relation to—

(a) the contents of any advice, report or recommendation it makes to the Minister or any other person or body, or

(b) its functions under Part 8 of the Education Act 1990.”

260. There is no question that these requirements must operate together with those of the Education Act. In the case of any recommendation the Committee might make about the cancellation of a non-government school’s registration, the Minister not being entitled to control or direct the contents of any recommendation. It must follow that the Minster can also not control or direct what the decision to make the recommendation rests on.

261. It is relevant that Senior Inspector Prideaux’s evidence confirmed that before the Committee met, she and other staff were aware of the Minister’s concerns about Sheikh Albaf; directions which had been given by the Minister’s office about the process being pursued; and that the Minister did not want Sheikh Albaf at the College when students commenced in 2026.

262. The Minister is undoubtedly entitled to have, and to draw to the Authority’s attention, the basis of a concern about whether a particular recognised person remains a fit and proper person, that being an ongoing requirement for a school’s registration. So that this may be investigated and considered by the Authority, whose responsibility it is to consider making a recommendation to the Minister, if it is concluded that the person does not remain a fit and proper person. That enabling a view to be formed, as a result, that the school is not complying with the requirements of its registration and cancellation should be recommended.

263. There can also be no criticism of the Minister’s involvement in the process which the decision-maker is pursuing, about which legitimate concerns might arise. For example, it the Minster identified that the requirement to provide procedural fairness was not being observed by the Committee. That falling within what s 5 permits.

264. But the Minister has no role to play in the contents of any recommendation which the Authority or the Committee might make as the result of the Committee’s consideration of an investigation into such matters.

265. The course which Mr Martin had pursued in January 2026, which resulted in the Sheikh standing down voluntarily, at his suggestion accords, it has to be accepted, with the pursuit of the Minister’s known aim. As does Ms Prideaux’s evidence, that she could not explain any rational basis for requiring the College to have responded to what the Authority had raised about Sheikh Albaf in December 2025, while the relevant people were away on summer holidays.

266. The evidence also establishes that:

267. After being advised about the Authority’s investigation by an 18 December 2025 briefing note, the Acting Minister handwrote:

“I note in the school’s response to the initial concerns, they said this does not reflect the principal’s current values. This is directly contradicted by the recent offensive and hateful posts. Please keep me updated on your investigations.”

2. The Authority’s “school rego team” was minded to agree to the extension which the College sought in December. It was the Authority’s media manager who then consulted the Deputy Premier’s office. With the result the advice that the extension should not be granted because “[t]his has been going on for too long”;

3. The result was that Ms Mahesh advised that the extension was refused, the Authority having to progress the matter “without delay”;

4. It was in a phone conversation on 16 January that Mr Martin advised Mr Barghachoun that there was a lot of political pressure; that Sheikh Albaf should stand down voluntarily; and that he could be reinstated when the matter “went to sleep”. He being “pretty adamant” that the College’s registration would be cancelled, if the Sheikh did not do so. No evidence was called from Mr Martin to challenge this;

5. The result was that the Sheikh agreed to stand down voluntarily in the interests of the College on 22 January;

6. After the Authority received the College’s February response, the Acting Minister was again briefed, approval being sought for proposed correspondence;

7. In cross-examination, Ms Prideaux also agreed that Ms Kirkby said at the Committee meeting that the Minister did not want the principal at the school when the students resumed on 2 February; that this had already been communicated to her superiors; that it had also been discussed before the meeting; and that she was aware of this, before she prepared her report; but that she had not mentioned it there.

8. The real question which arises on all of this evidence is whether the independence which the Committee had to maintain in its decision-making, given what s 5 of the Authority Act provides, was achieved.

9. It expressly providing that the Authority is not subject to the control and direction of the Minister in relation to the contents of any recommendation it may make to the Minister.

10. It follows that communications which the Minister and/or the Minister’s office purport to give, in order to control, direct or influence the making or contents of such a recommendation by those who have to exercise the decision-making function, is not within power.

11. The Minister must thus take care to ensure that any views he or she may form about a particular recognised person, are not conveyed in such a way that the requirements of s 5 of the Authority Act are undermined.

12. Even if the Committee becomes aware of such views, it must ensure that it make its decision independently, not taking the Minister’s views into account in arriving at its decisions, because they are not relevant to the function it is exercising.

The Committee’s statement of reasons

274. The Education Act does not impose any obligation on either the Minister or the Authority to give reasons for decisions which they make, including in relation to the cancellation of a non-government school’s registration.

275. There is no general duty at common law on an administrative decision-maker such as the Committee to give reasons for a decision*: Public Service Board v Osmond* (1986) 156 CLR 656 at 662; [1986] HCA 7. Even though it is recognised that the absence of reasons may make it very difficult for an aggrieved person to establish a ground for judicial review of an administrative decision: Austral Monsoon Industries Pty Ltd v Pittwater Council (2009) 75 NSWLR 169; [2009] NSWCA 154 at [98].

276. Various legislative requirements have addressed this difficulty. Section 49(1) of the Administrative Decisions Review Act, for example, provides that if an administrator makes an “administratively reviewable decision”, an interested person may make a written request to the administrator for a statement of reasons. Subject to limited exceptions, the administrator must comply with the request within 28 days: Administrative Decisions Review Act, ss 49(2)-(4), 50.

277. No such request has been made, there as yet being no recommendation about the cancellation of the College’s registration, which would enliven the right to a review under s 107 of the Education Act.

278. Another avenue which can result in reasons being given is an order made under r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW), which the parties agreed would be adhered to. With the result that no order needed to be made by the Court requiring the Committee to provide its reasons for the challenged determination.

279. The circumstances in which a decision-maker may be required to produce a statement of reasons under the Rule was explained in Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 at [68]-[71]. That depends on the relief sought: r 59.4. The exercise of the discretion to require reasons depending on the assessment of whether, a statement of reasons being “likely to assist the applicant in pursuing his or her case”: at [70].

280. The Authority properly recognised that this was such a case.

281. It was finally not suggested that anyone other than the actual decision-maker could give such reasons. Despite it being Mr Martin, rather than the Committee, who first provided what purported to be its reasons. There is no provision of the legislative scheme which empowers the Authority’s CEO to provide reasons for a decision the Committee has made. He was not even one of its members and the Committee cannot delegate any of its functions to him.

“I, Paul Martin, CEO of the NSW Education Standards Authority (NESA) set out the following determination regarding whether Sheikh Abdulghani Albaf is a fit and proper person under section 47(1)(b) of the Education Act 1990 (NSW) (Education Act) and the reasons for that determination.”

285. Apart from this, the reasons the Committee eventually provided are relevantly indistinguishable. It must thus be accepted that the Committee simply adopted the reasons Mr Martin had created. They not having been the Committee’s own creation.

286. This is relied on by Sheikh Albaf to help establish the errors into which he complains the Committee fell.

287. It is long settled that an administrative decision-maker’s reasons must not “be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6.

288. But it seems to me that the way in which they were produced in this case, cannot be ignored.

289. The circumstances do raise the obvious concern that had the production of the Committee’s reasons been undertaken by its members, as it should have been, some better light might have been shed on why it accepted the conclusions Senior Inspector Prideaux had arrived at. As well as why it could not accept what the College and the Sheikh had advanced, to persuade it that he remained a fit and proper person, given his acceptance that he had erred in expressing himself as he did.

290. As the Manual reveals, it will not be every error of judgment which will result in a person no longer being a fit and proper person. Why the Committee was unable to accept that the Sheikh’s errors had not resulted in him remaining a fit and proper person, thus ought to have been disclosed.

291. The Committee’s reasons explained the background and that:

“12 On 17 February 2026, the RAC met via Microsoft Teams to determine whether it considered in light of the information obtained that Sheikh Albaf was a fit and proper person. The RAC determined that he was not for the reasons outlined in the meeting minutes from the 17 February meeting and this statement of reasons.”

292. At [33], the Inspector’s findings were explained:

“33. The Inspector’s analysis of all available information and documentation as accepted by the RAC found that:

(a) Sheikh Albaf does not dispute that the social media posts were made by him on his personal social media accounts;

(b) Sheikh Albaf continued to make social media posts throughout 2025 despite similar posts being the subject of investigation by government agencies in early 2025;

(c) the nature, tone and language used in some of the social media posts is serious in that it could be considered to implicitly, if not explicitly, contain violent and/or hate themed content;

(d) since January 2026, no further social media posts have been made by Sheikh Albaf that raise concerns;

(e) Sheikh Albaf complied with requests from the school during the period of investigation;

(f) Sheikh Albaf defended his comments and provided context for the social media posts;

(g) Sheikh Albaf acknowledges that his public commentary may attract heightened scrutiny given his position;

(h) Sheikh Albaf has contravened the school’s code of conduct and social media policy;

(i) Sheikh Albaf’s explanation of the conduct does not sufficiently accept the seriousness of the concerns raised;

(j) Sheikh Albaf has not demonstrated remorse for his conduct other than to accept that some language used may have been confronting to members of the broader public when viewed without context;

(k) there is a pattern of frequent and recent behaviour demonstrated through regular social media posts and commentary made prior to and during Sheikh Albaf’s employment as principal, including following the first related investigation in 2025, subsequent training completed in or around March 2025, and installation of new school policies and codes of conduct addressing social media usage;

(l) the school strengthened its policies and procedures in relation to the code of conduct, social media usage and implemented social media training for responsible persons as a reasonable attempt to rectify the conduct;

(m) the subsequent conduct and actions of Sheikh Albaf during 2025 is evidence of the proprietor’s remediation actions being unsuccessful;

(n) the school’s governance policies and procedures relating to the code of conduct and social media usage were not monitored or enforced by the school’s governing body during 2025, thereby nullifying its implementation;

(o) the proprietor’s determination followed a procedurally fair process for the principal;

(p) the proprietor’s explanation of the conduct closely reflects Sheikh Albaf’s explanation; and

(q) the proprietor’s apparent understanding of its role in monitoring the personal social media activity of the principal in the context of the previous investigation did not align to that of NESA’s expectation.”

293. The Committee then immediately said at [34]:

“Therefore, after carefully considering the background outlined in paragraphs 1 - 13 above, and the material outlined in paragraph 14, the determination was made that Sheikh Abdulghani Albaf is not a fit and proper person for the following reasons:

(a) prioritising the safety, protection, and wellbeing of students;

(b) the principal’s ongoing pattern of behaviour exhibited in social media postings identified in the report;

(c) lack of remorse displayed by the principal;

(d) while the principal’s conduct may not meet the criminal threshold, the role of a principal in a NSW school is required to set an appropriate ethical and moral tone for school community; and

(e) the principal’s public commentary was of a concerning and hateful tone.”

294. The Senior Inspector’s findings were not all that the Committee had to consider in arriving at its conclusions. But it did not further explain what the Sheikh and College had advanced, or why that could not be accepted.

295. This accords, the Sheikh complains, with the Committee not having engaged as it had to, with what had persuaded the College that he still remained a fit and proper person, or the College’s explanation of its conclusions.

296. That the Committee itself considered whether the Sheikh’s actions had reflected remorse, I accept, is not apparent. It certainly did not explain why what he did, having been put on notice of the concerns which the College and the Authority both had, was incapable of establishing remorse.

297. The case finally pressed by the Authority and the Minister was that the Committee had accepted that the Sheikh had the right to hold and express his political opinions. And that its conclusion that he was not a fit and proper person rested on the language in which he had expressed them.

298. Still the difficulty remains that the reasons the Committee adopted shed limited light on why the case the Sheikh had advanced — that although the language he had used in some of his posts was inappropriate, he still remained a fit and proper person, as the College had accepted — was rejected. Nor why it was concluded he had no remorse for what he had accepted, had involved error.

299. That is not answered by the further submission, that “it would represent no unreasonable or irrational consideration” of his posts, that they “did constitute or had the potential to give rise to an impression of hate-themed or violent invocation”.

Ground 1 – Did the Committee go beyond the scope of its power?

300. The process by which the Committee arrived at the challenged determination, that Sheikh Albaf was not a fit and proper person, was also claimed to have been beyond its power.

301. Given the statutory schemes I have explained, while the process was not procedurally fair, that the Committee went beyond power in determining that Sheikh Albaf did not remain a fit and proper person, before finalising its consideration of whether a recommendation should be made to the Minister for the cancellation of the College’s registration, is not established by the proper construction of the Education Act.

302. Despite the result of the view which the Authority undoubtedly formed and communicated, being that if the College terminates the Sheikh’s employment, it is unlikely that any other registered non-government school could employ or appoint him to be a responsible person.

303. That the result of the construction of the Education Act which I favour is as the Sheikh contended — that there may have been, in his circumstances, a breach of the Privacy and Personal Information Protection Act 1998 (NSW) when a press release was issued by the Authority about him — in my view does not alter the construction which the provisions of the Education Act drive.

304. Implicit in the Authority’s advice to the College, it must be accepted, is that if Sheikh Albaf does not return to the position of principal from which he is still voluntarily stood down, it will not need to give consideration to a recommendation about the cancellation of its registration.

305. The Sheikh not resuming the position of principal could potentially be the result of his resignation, of him accepting appointment to another position in which he would not be a recognised person, or by his dismissal by the College from his position as its principal.

306. Despite this, that the staged process which the Committee is pursuing is beyond the scope of its power, as was Sheikh Albaf’s case, may not be accepted.

307. I am not persuaded that the Education Act intends that every decision that a responsible person does or does not remain a fit and proper person, will enliven the right to an administrative review under s 107. Given the limited rights of administrative review for which it actually provides.

308. Section 107 reflects that it is non-government schools’ registration with which the Education Act is concerned in Part 7. Not the rights of those a school employs or appoints to be its responsible persons. It being a requirement by the school’s registration that they be a fit and proper persons: s 47. Administrative review thus being provided only if recommendations are made in relation to the school’s registration, renewal or cancellation of registration: s 107.

Ground 1A – the challenged delegation

326. In issue was what had been delegated to the Committee and whether the challenged determination fell within its delegated power.

327. I am satisfied that this ground must fail, given what I have earlier explained about the delegation.

328. A decision about whether the College’s principal remains a fit and proper person is a relevant consideration in the exercise of the s 59 function delegated to the Committee, given the requirements of s 47.

329. A decision about such a matter being one which may be made as part of the exercise of the delegated function, given the nature of the function which the Committee has to exercise under the Education Act.

Ground 2 – Was the determination made for an improper purpose?

330. The improper purpose which Sheikh Albaf claims was pursued was to pressure the College into terminating his employment. That being evidenced by the Committee’s knowledge that the result of the College’s investigation had been the conclusion that there was insufficient evidence to establish that he was not a fit and proper person, even though some of the language he had used was inappropriate. With the result that there were no grounds to terminate his employment, although he had accepted the probation the College had imposed as fair, as the Committee knew.

331. The information the Committee had to consider was Senior Inspector Prideaux’s report; the documents which evidenced the course which the College and Sheikh Albaf had pursued, which explained why the conclusion urged by Sheikh Albaf had been accepted by the College; and the outcome, the probation he accepted, he having accepted its criticism of the language he had used in his posts.

332. The evidence, I am satisfied, establishes that what the Committee had to consider at this stage of the process it is pursuing, is whether or not it agreed with the College that Sheikh Albaf remained a fit and proper person as he had to be, given how he had exercised his undoubted right to express his political opinions.

333. That process also admits of the possibility that information can come forward for the College, which satisfies either the Authority or the Minister that the responsible person is not a fit and proper person, and yet the school’s registration should not be cancelled. Or that conditions should be imposed on its registration.

334. That the Committee has given the College the opportunity to be heard further, before it concludes its consideration of whether a recommendation should be made to the Minister, is, I consider, procedurally fair and not open to criticism under this statutory scheme. Notwithstanding that it raises the obvious possibility that the College may now consider whether the Sheikh’s employment should be terminated.

335. Despite the Committee being aware that the College has already concluded that it had no basis to terminate the Sheikh’s employment, given what he had posted, I am not persuaded that the claimed improper purpose has been established. That depending on the opportunity which has been given to the College to respond to the challenged determination, before a decision about a recommendation to the Minister for cancellation of its licence is made.

336. The Committee had to determine for itself whether it agreed that the Sheikh remained a fit and proper person irrespective of the potential outcome for him, if it determined that he was not.

337. That is because under the Education Act, the inevitable result of a view formed by the Committee that a principal is no longer a fit and proper person being, as it is, that the non-government school which employs him or her, will then have to give consideration to how that might affect its registration.

Ground 3 – Failure to take into account relevant considerations

343. This ground was abandoned.

Ground 4 – Denial of procedural fairness?

344. The Act does not impose any obligation on a responsible person for a school to establish that he or she is a fit and proper person. The requirement imposed being that non-government schools seeking or registered under the Act only employ or appoint such persons as their recognised persons.

345. But the Authority’s processes require a non-government school’s responsible persons to provide a statutory declaration about relevant matters. Not only on school registration, but also when renewals are sought. That explains why the Authority provided Sheikh Albaf with an opportunity to respond to the concerns it raised with the College, which he did not take up. He having been content to rely on what he had successfully advanced in response to the College’s show cause letter.

346. Whether procedural fairness was required to be given by the Committee when a concern about whether the principal remained a fit and proper person arises depends on the requirements of the Education Act: National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 326; [1984] HCA 29.

347. The relevant test is that discussed in Kioa at 619:

“If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505). When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.”

348. The Legislature being more likely to intend the exercise of a statutory power of an executive, administrative or quasi-judicial nature to be so conditioned, if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected: at 620.

349. I have explained the statutory scheme.

350. While an obligation to provide procedural fairness was initially denied, at the final hearing it was contended that the staged process which the Committee was pursuing had built into it the required procedural fairness. It being accepted that a determination that a responsible person was no longer a fit and proper person having serious consequences for that person, given the statutory scheme.

351. Still, it was not conceded that procedural fairness required that Senior Inspector Prideaux’s report be disclosed to Sheikh Albaf, before the Committee made its challenged determination. That being because, it was submitted, the report had been part of an investigatory process pursued by the Authority at a time when the school’s show cause notice had disclosed the concerns which it had to the Sheikh.

352. The view pressed being that the Senior Inspector’s averse conclusions did not have to be disclosed because they were an outcome the Sheikh could reasonably have expected, despite the conclusions which the College had arrived at.

353. As I have explained, I am not able to accept this approach, given the statutory regime and the well settled requirements of procedural fairness, which I am satisfied it attracts.

354. In Bond, it was Deane J who explained the obligations of statutory decision-makers to act in accordance with the requirements of “natural justice”. That is, with fairness and detachment, adhering to the requirements of procedural fairness in the process they pursue: at 365-366.

355. With the result that administrative decisions cannot be “based on considerations which were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds”, nor on “unreasoned prejudice”: Bond at 366.

356. The same requirements I am satisfied apply to the Committee, given the legislative scheme under which it makes its decisions, that turning on its construction which I have explained: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [25]-[27].

357. It being recognised as “a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That ordinarily requiring the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”: (2006) 228 CLR 152; [2006] HCA 63 at [32], citing (1994) 49 FCR 576 at 590-591; [1994] FCA 1074.

Ground 5 – Was the Committee’s reasoning illogical or irrational?

365. This ground is more difficult to resolve.

366. The Committee’s determination also being challenged on the basis of legal unreasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [65]-[76]. This ground does not raise the merits of the Committee’s decision. It there being explained that a decision-maker’s discretion resides “within the bounds of legal reasonableness”: at [66]. Further, that judicial review does not permit the Court to determine how a discretion should be exercised. But the decision-maker may not act on a wrong principle or take irrelevant matters into consideration: at [75], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42; [1986] HCA 40.

367. A decision based on no evidence displays jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 646; [2010] HCA 16 at [124]. It being explained at [135]:

“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the ‘practice of homosexuality’ in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

368. A decision will be unreasonable if it “lacks an evident and intelligible justification”. Which may be established when no reasonable person could have arrived at the decision, “although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10].

369. The test for unreasonableness is necessarily stringent because “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”: at [11].

370. This requires a consideration of whether the relevant state of satisfaction was not only available to the Committee on the material it had to consider, but was arrived at by a process of reasoning that conforms to basic notions of rationality. Decision-making authority conferred by statute having to be exercised according to law and reason, within limits set by the subject matter, scope and purposes of the statute: Minister for Immigration and Multicultural Affairs v SSVJ (2026) 315 FCR 435; [2026] FCAFC 45 at [20].

371. Sheikh Albaf’s social media posts were not private. The College’s social media policy required that he make clear that any views he expressed were not those of the College. That had not been done despite the tone he used. Which the Committee concluded was of violence and hate, with the result that his behaviour was immoral and unethical and he was not a fit and proper person.

372. The Authority and the Minister contended that while Sheikh Albaf had defended his posts, what he had posted had provided a proper basis for the Committee’s acceptance that implicitly, if not explicitly, they contained violence and/or hate themed content. That he had no remorse according with his pattern of frequent, immoral behaviour.

373. The Authority’s concern about his posts having arisen after what had been examined in its first 2025 investigation into his earlier social media posts, and the steps which the College had later taken to ensure his compliance with its policy.

374. The reasons the Committee gave reflecting that its focus in considering whether Sheikh Albaf was a fit and proper person was not on whether he had engaged in protected political speech, but rather on the welfare, safety and protection of students. That being consistent with the context in which the Education Act requires that a principal be a fit and proper person, given the role he or she plays in the registration requirements imposed on non-government schools and the education they provide their students.

375. The Committee considered that the principal had to set the ethical and moral tone for the school. But it also had to consider what had persuaded the College that he remained a fit and proper person, despite the inappropriate language he had used. The evidence does not reflect that this was considered as it had to be. Nor do its reasons explain why that could not be accepted.

Ground 6 – Was the Committee’s reasoning affected by fraud?

383. This ground was also abandoned.

Costs

384. The usual order under the Uniform Civil Procedure Rules is that costs follow the event: r 42. In this case, that is an order in favour of Sheikh Albaf.

Orders

385. Sheikh Albaf’s case must succeed.

386. The parties should confer and provide proposed orders, including as to costs, within 14 days. In the event of any disagreement, together with short written submissions.

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Amendments

28 July 2026

At Paragraph 192, "used by the Senior Inspector of", the "of" was changed to "and".