Plaintiff v First Defendant

STATUTES - Operation and effect of statutes - Interpretation - Education and Training Reform Act 2006 ss 1.1.1, 1.2.1, 2.4.60, 2.4.61, 2.4.68.

1 Mr Paul, the first defendant, is a teacher at a public high school. The school uses a system that allows teachers to enter students' academic results online. Mr Paul's employment was terminated after his login details were used to make unauthorised changes to the academic results of 16 students. On appeal, the Disciplinary Appeals Board ('the Board'), the second defendant, reinstated his employment.[1] The Secretary to the Department of Education and Training ('the Secretary'), the plaintiff, now seeks judicial review of the Board's decision.

2 For the reasons that follow, the Secretary's application for judicial review is dismissed.

3 Mr Paul is an experienced teacher who taught mathematics and science to students in Years 7 to 11 at a public school. The school uses a system called Compass, which allows teachers to enter students' academic results online. The Secretary alleged that, in June 2017, a person using Mr Paul's account logged in to Compass and made unauthorised changes to the academic results of 16 students.

4 On 22 January 2018, the Department of Education and Training ('the Department') terminated Mr Paul's employment on the ground that he committed an act of misconduct under s 2.4.60(1)(b) of the Education and Training Reform Act 2006 ('the ETRA'). Mr Paul appealed to the Board. The Board's factual findings, and other facts that are not in dispute, included the following.[2]

5 Between 23 June 2017 and 30 June 2017, the academic results of 16 students were downgraded on Compass. Mr Paul had not taught any of the affected students, save for two students in one subject that he taught for one class per week in conjunction with another teacher. At the time of these incidents, a teacher at the school could access Compass to view and edit a student's academic results, whether or not that student was in the teacher's class. Two Department policies prohibit teachers from disclosing their Compass login details.

6 A forensic investigation by Compass revealed that a person using Mr Paul's unique user identification and password made the alterations. There was no evidence of any security breaches or hacking of the Compass software. Mr Paul denied that he made the alterations but accepted that they were made using his login details. He did not explain how another person could have used his login details to access Compass.[3]

7 Before the Board, the Secretary argued that Mr Paul had a motive to target two of the affected students and at least two of the three teachers whose students were affected.

8 In June 2016, Mr Paul met with the father of a student in his Year 8 mathematics class ('Student A'). The father claimed that Mr Paul's assessment of Student A's academic performance was incorrect as it showed that, based on her assessment level, Student A had not made any progress since Year 7. Mr Paul stood by his assessment. Due to the length of time that had passed between the two events, the Board rejected the Secretary's submission that Mr Paul's meeting with the father of Student A in June 2016 was the motivation behind the alterations to the academic results in June 2017.

9 In May 2017, the parents of another student ('Student B') made a complaint alleging inappropriate conduct on the part of Mr Paul. The school investigated and eventually upheld the complaint. It issued a written warning to Mr Paul on 20 June 2017, three days before the first date of the alterations to the academic results. Student B was one of the 16 students whose academic results were downgraded. The Board found that the complaint and the written warning issued to Mr Paul provided a motive for Mr Paul to alter the academic results.

10 In an effort to lift academic standards at the school, the Principal and the school's leadership team put pressure on Mr Paul to improve his performance. The Mathematics Domain Leader, Teacher F, also put pressure on Mr Paul with respect to the development of his mathematics curriculum. Teacher F's students were among those whose grades were downgraded. The Board found that the pressure put on Mr Paul, especially by Teacher F, was a motive for Mr Paul to downgrade the academic results of Teacher F's students.

11 Mr Paul was also under pressure for not cooperating with a young mathematics teacher ('Teacher E'). Teacher E had developed a new Year 7 mathematics program. She gave evidence that, when she introduced the program, Mr Paul did not support her. She complained to the Assistant Principal and Teacher F, among others. The results of several of Teacher E's students were downgraded. The Board found that these circumstances could also have provided a further motive for Mr Paul to alter the academic results.

12 On 12 July 2018, the Board made its decision. It was satisfied on the balance of probabilities that Mr Paul had sufficient motive to alter the academic results and that he did in fact make the alterations. Further, it found that the alterations were unauthorised.

13 The Board determined that the alterations constituted an act of misconduct within the meaning of ETRA s 2.4.60(1)(b) and cl 11.1.7(i) of Ministerial Order No. 199. It also determined that Mr Paul would still have committed an act of misconduct had he disclosed his login details for Compass to another person. As such, the Board affirmed the Secretary's decision that Mr Paul had engaged in misconduct. It therefore dismissed the appeal 'on the question of culpability'.[4]

14 The Board noted that it had given particular weight to the 'adverse effect' that Mr Paul's conduct had had on the school. It said that 'staff may feel let down' and that the school had incurred considerable expense and spent much time investigating Mr Paul's misconduct.[5]

15 Referring to Mr Paul's answers in cross-examination by counsel for the Secretary, the Board found that Mr Paul was 'a teacher with integrity and principles'. It observed that Mr Paul 'was prepared to defend his professional opinion' with respect to the complaint about his assessment of Student A in June 2016.[6] Moreover, the Board noted the lack of any evidence that Mr Paul 'was cavalier in his attitude to the assessment of students'. It accepted Mr Paul's evidence 'that he kept data to support his assessments and that he was never required to change an assessment because it had no data to support it'.[7]

16 The Board stated that the information about Mr Paul's 'positive attitude' to student assessment, evidenced by his handling of the incident involving Student A's father in June 2016, was not available to the Secretary at the time the decision was made to terminate his employment.[8]

17 As to the appropriate disposition, the Board said that it 'has the right to differ from the decision made by the Secretary as to penalty'.[9] It considered termination of Mr Paul's employment to be 'excessive',[10] reinstated Mr Paul's employment with a reprimand and directed that his classification be reduced from range 2.6 to range 2.1.[11]

18 The Secretary seeks judicial review of the Board's decision. On 11 September 2019, the Secretary filed a further amended originating motion for judicial review.

19 The Secretary, Mr Paul and the Board have each filed written submissions and appeared in oral argument in this proceeding.

(a) Was the Board's decision legally unreasonable or illogical so as to constitute jurisdictional error?

(b) Did the Board misconstrue its statutory task under ETRA ss 2.4.60, 2.4.61 and 2.4.68 such that there was a constructive failure to exercise jurisdiction?

Was the Board's decision legally unreasonable or illogical?

21 By ground 1 of the further amended originating motion for judicial review, the Secretary contends:

[The Board's] decision that termination of [Mr Paul's] employment was excessive is vitiated by jurisdictional error constituted by unreasonableness or illogicality in so far as it was:

(a) a decision that no reasonable or logical decision-maker could have reached;

(b) a decision lacking an evident and intelligible justification; or

(c) the product of irrational and selective treatment of the evidence, and not findings or inferences made on logical grounds.

22 The Secretary has given the following particulars to this ground:

1. [Mr Paul], a classroom teacher, altered the semester reports of 16 students at the College where he worked;

1. the alterations were made with motive insofar as they related to:
   1. the semester report of a student who had complained about [Mr Paul's] conduct in the recent past; and
   2. the semester reports prepared by two teachers who were, directly or indirectly, bringing deficiencies in [Mr Paul's] performance in the workplace to the attention of the College's leadership team (the Conduct).

1. The findings on the Conduct ... necessarily involved the rejection of [Mr Paul's] denial that he engaged in the Conduct and implicitly acknowledged that [Mr Paul's] denial of the Conduct was dishonest.

1. [The Board] found the Conduct amounted to misconduct within the meaning of s 2.4.60(1)(b) of the [ETRA] ...

1. [The Board] said it gave 'particular weight to the adverse effect that [Mr Paul's] misconduct has had on the College' ...

E. Notwithstanding the findings and conclusions above, [the Board]:

1. found [Mr Paul] to be 'a teacher with integrity and principles' based on a single incident that occurred 12 months before the Conduct; and
2. found there was 'no evidence that [Mr Paul] was cavalier in his attitude to the assessment of students' ...

1. The unreasonableness and illogicality was material to [the Board's] determination that termination was excessive in the circumstances of the case as it was based in material part on the conclusions in E. above ...

23 The Secretary draws attention to the Board's findings that Mr Paul was 'a teacher with integrity and principles' and that there was no evidence that he 'was cavalier in his attitude to the assessment of students'. She submits that these findings, which she says formed the basis of the Board's decision to reinstate Mr Paul, were either not open on the evidence or not logically connected to the evidence. According to the Secretary, these findings lack an intelligible justification, amount to an illogical and selective treatment of the evidence and have no logical foundation.

24 The Secretary also points out that, while the Board did not consider that the evidence relating to Student A was relevant to motive, it nonetheless treated that evidence by itself as relevant to the assessment of him as 'a teacher with integrity and principles' and to his professional obligations. The Secretary argues that the alterations to the academic results in June 2017 constitute more recent and relevant evidence of Mr Paul's attitude to student assessment, and, contrary to the Board's findings, show a 'cavalier' attitude to assessment.

25 The Secretary submits that there was no evidence that could properly support the reinstatement of Mr Paul's employment. She highlights that Mr Paul had denied his engagement in the misconduct and had refused to take responsibility for or explain his conduct, and thus failed to recognise the gravity and impropriety of his conduct. According to the Secretary, the evidence showed that Mr Paul had engaged in misconduct that went to the heart of his professional obligations. In all the circumstances, the Secretary contends, the decision to reinstate Mr Paul was unreasonable and infected by jurisdictional error.

26 Mr Paul submits that the Board's decision that the termination of his employment was excessive does not lack an evident and intelligible justification. The Board considered it significant that this occasion was the first time that Mr Paul was found to have committed misconduct and, in particular, the first time that he had engaged in inappropriate or unsatisfactory behaviour with respect to student assessment. Mr Paul also says that it was open to the Board to find that he had acted with integrity in resisting pressure from Student A's father in June 2016.

27 Mr Paul says that it was open to the Board also to conclude that he was 'a teacher with integrity and principles'. That conclusion was based on the Board's observations of Mr Paul in cross-examination, his evidence about the incident involving Student A's father in June 2016 and the fact that he was an experienced teacher. Further, as the Board found, Mr Paul had not engaged in any prior conduct similar in nature and seriousness to the misconduct in this case, even taking into account his past performance issues. As such, Mr Paul argued, there was nothing unreasonable or irrational in the Board's conclusion that termination was excessive. The same goes for the Board's finding that there was no evidence of a cavalier attitude on Mr Paul's part to student assessment.

28 Mr Paul submits that the Board's decision was not irrational or illogical. He contends that it cannot be said that there was only one conclusion open on the evidence or that there is no logical connection between the Board's findings, conclusion and decision. He also argues that the Board properly took into account the misconduct in question and the effect it had on the school and its staff, and that its findings were based on the whole of the evidence and the submissions made to the Board. These matters were also reflected in the reprimand of Mr Paul and the reduction in his classification.

29 Mr Paul addressed two more matters. One was the Secretary's submission that the Board treated the incident involving Students A's father in 2016 as the only evidence relevant to assessing Mr Paul's attitude towards student assessment. The other was the Secretary's submission that there was no evidence that could properly support the reinstatement of Mr Paul's employment. Mr Paul submits that these submissions amount to an impermissible challenge to the merits of the Board's decision as they impugn the weight given by the Board to the evidence. Mr Paul emphasised that the Court must construe the relevant power under the ETRA by reference to its terms, scope, purpose and objects.

30 The Board's submissions are directed to explaining its role and decision-making process in the present case.

31 In particular, the Board has drawn attention to the following matters, which are apparent from its reasons for decision:

(a) The Board gave weight to the adverse effect of Mr Paul's conduct on the school, the loss of reputation, the effect on staff and the expense of investigating his conduct.

(b) The Board had access to additional material that the Secretary did not have when the Secretary made the decision to terminate Mr Paul's employment.

(c) The Board identified that it was open to it to affirm the Secretary's finding but also to make its own determination as to the appropriate outcome under ETRA s 2.4.61(1).

(d) The Board found that Mr Paul was a 'teacher with integrity and principles' on the basis that he was 'prepared to defend his professional opinion' about the assessment of a student 'in the face of pressure from a parent who was also a member of the [school council]' and whom the Principal described as 'difficult'.

(e) The Board found that there was no evidence that Mr Paul 'was cavalier in his attitude to the assessment of students', and accepted 'that he kept data to support his assessment and that he was never required to change an assessment because it had no data to support it.'

(f) The Board noted that the information about Mr Paul's attitude to student assessment and the fact that he was willing to stand by his assessments and support them with data was not available to the Secretary when the decision was made to terminate Mr Paul's employment.

32 Rule 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') gives this Court jurisdiction to grant any relief or remedy in the nature of certiorari, among other remedies, by way of judgment or order and in a proceeding commenced under the Rules.

33 The principles relevant to the exercise of this Court's jurisdiction on a judicial review are well established.[12] That jurisdiction is supervisory, not appellate. The Court does not substitute its own decision for that of the inferior court or tribunal below. It examines whether the decision below was made within jurisdiction and according to law, not whether the decision was fair or correct. The Court is therefore not concerned with the merits of the decision. In examining a tribunal's decision on a question of jurisdictional fact, the Court should give weight to the special experience of the tribunal in determining such facts.[13]

Applicable principles - Legal unreasonableness

34 The Secretary submits, in essence, that the Board's decision is vitiated by jurisdictional error on the ground that it is legally unreasonable and irrational. It is useful to state several principles that are not in dispute and that govern the disposition of this proceeding.

35 First, at least in the context of judicial review of administrative decision, there is no single formula that aids in the determination of whether a decision is unreasonable.[14] In Attorney-General (NSW) v Quin,[15] Brennan J held that a decision will be unreasonable, and certiorari will therefore issue, where the decision is 'so unreasonable that no reasonable repository of the power could have taken the impugned decision or action'.[16] A court must look at whether 'the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power.'[17]

36 Second, there is considerable overlap between the ground of unreasonableness and the ground of illogicality or irrationality. A decision will not be illogical or irrational if a logical or rational person could reach the same decision on the material available to the decision-maker.[18] However, a decision may be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion. Another instance is where the decision was simply not open on the evidence or where there is no logical connection between the evidence and the decision-maker's inferences or conclusions.[19]

37 Third, the test for unreasonableness is necessarily stringent, and a court will not lightly interfere with the exercise of a statutory power involving an area of discretion.[20] This stringency is all the more pronounced where, as in the present case, Parliament has not stipulated any factors to which the decision-maker should have regard in the exercise of its statutory power.[21] Moreover, the statutory power in this case concerns a substantive, rather than procedural, decision made by a body chosen by Parliament for its expertise and experience.[22]

38 Fourth, where the decision-maker has given reasons for its decision, 'the court must be wary of turning a review of those reasons upon proper principles of judicial review into a reconsideration of the merits of the decision.'[23] In other words, 'a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker'.[24]

39 Fifth, a court should not view legal unreasonableness as a ground of review that stands apart from the traditional grounds of review established at common law. Rather, legal unreasonableness encompasses and extends beyond such grounds.[25] It may take the form of 'a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process'.[26] A court may describe a decision as unreasonable if the decision lacks an evident and intelligible justification.[27]

40 Ground 1 challenges the Board's decision that the termination of Mr Paul's employment was excessive, on the basis that the decision was legally unreasonable or irrational. However, based on the evidence before the Board and its findings, I reject the submission that the decision lacked an evident and intelligible justification.

41 It was open to the Board to find that Mr Paul was 'a teacher with integrity and principles'. That finding was based on Mr Paul's evidence before the Board.[28] During cross-examination, Mr Paul gave evidence that he had refused to change Student A's assessment level after the interview with Student A's father in June 2016.[29] He said that her assessment level was based on test results, class work and in-class performance.[30] He also explained his approach to assessing students generally.[31] This undisputed evidence provided an adequate foundation for the Board to make a finding with respect to Mr Paul's character. Further, as the Board found, Mr Paul had no history of inappropriate behaviour similar to the kind of misconduct in this case - a finding that the Secretary did not impeach.[32] Taken together, these matters had a reasonable and logical connection to the decision to reinstate Mr Paul's employment.

42 The Board's observation about the lack of evidence that Mr Paul was cavalier in his attitude to student assessment should also be read in context. In its written submissions to the Board, the Secretary noted that Mr Paul had shown 'a cavalier attitude to student assessment' after the incident involving Student A's father in June 2016.[33] However, the Secretary later withdrew this submission.[34] The Board accepted Mr Paul's evidence that he kept data to support his assessments and that he was never required to change an assessment without supporting data.[35] Owing partly to the fact that Mr Paul was self-represented, this information was not available to the Secretary at the time of the decision to terminate his employment.[36]

43 Further, I reject the Secretary's submission that, in circumstances where Mr Paul did not express contrition and denied his misconduct, there was no evidence to justify the reinstatement of Mr Paul's employment. In deciding to reinstate Mr Paul's employment, the Board weighed up several relevant considerations, including his character, his approach to student assessment and the consequences of his conduct on the school, which necessarily includes the student body. The Board made findings of fact with respect to each of these matters and reached what was in all the circumstances a reasonable conclusion. The weight given to each piece of evidence was wholly a matter for the Board, having regard to the legislative framework within which it was operating. It is not for this Court in a judicial review proceeding to interfere with the exercise of that discretion.

44 The Board is a specialist tribunal that hears and determine appeals of decisions made by the Secretary in relation to teachers and others in the teaching service. Here, it comprised of a school principal and a lawyer.[37] It is appropriate to give weight to the Board's experience and expertise, which it brings to bear in the weighing of evidence, its findings of fact based on that evidence and its conclusion. This is not a case where it can only be said that one conclusion was available on the evidence and that that was not the conclusion reached. As the Secretary conceded, termination of employment was not the only conclusion open to the Board. Nor is this a case where there was no evidence on which the decision-maker could make its decision, or one in which the evidence before the decision-maker had no logical connection to the conclusion.

Did the Board misconstrue its statutory task under ETRA ss 2.4.60, 2.4.61 and 2.4.68 such that there was a constructive failure to exercise jurisdiction?

46 Ground 2 of the further amended originating motion states:

The Second Defendant's determination that termination of the First Defendant's employment was excessive is vitiated by jurisdictional error constituted by a constructive failure to exercise jurisdiction insofar as the Second Defendant misconstrued its statutory task under sections 2.4.60, 2.4.61 and 2.4.68 of the [ETRA].

The Second Defendant approached its jurisdiction under s 2.4.68 of the [ETRA] in respect of an appeal against an action taken under s 2.4.61 as a question of penalty, and did not consider the protective purposes of actions which may be taken under s 2.4.61 following findings of misconduct under s 2.4.60.

48 The Secretary submits that the primary purpose of disciplinary proceedings is protective, not punitive.[38] The rationale for the power to take action under ETRA s 2.4.61 may be understood as a means of ensuring that the standard of the teaching profession is maintained at a level that protects the public (including public school students) and teachers.[39] As such, the Secretary contends that the Board erred in assessing the impact of its orders on Mr Paul personally. According to the Secretary, while the Board appears to have given some consideration to the relationship between his misconduct and his membership of the profession, its reasons fail to disclose that protection is an important aspect of the disciplinary function under the ETRA.

49 The Secretary further submits that the Board took an erroneously narrow approach to the question of disposition and therefore constructively failed to exercise jurisdiction. She argues that the Board treated the question of disposition as one of punishment to be determined by reference to the teacher's moral culpability and character, abstracted from the protective purpose of disciplinary proceedings. The Secretary says that the Board approached the task on the basis that the purpose of the disposition was to punish Mr Paul and that it did not consider that termination was warranted. The Secretary refers to the Board's use of the word 'penalty' in describing the action taken against Mr Paul under ETRA s 2.4.61 and what it describes as a failure to appreciate that Mr Paul's character is relevant only to the question of risk to the public as well as general or specific deterrence.

50 Mr Paul submits that there is no evidence that the Board did not understand its disciplinary function or the nature and purpose of its powers under the ETRA. Mr Paul said that the Board's statement that it gave particular weight to the effect of his misconduct on the school and its staff, and its consideration of the incident involving Student A's father in June 2016 and Mr Paul's character, disclosed an understanding of the protective purposes of the ETRA.

51 Mr Paul argues that his attitude towards student assessment, as discussed by the Board, was relevant to the determination of a proportionate disciplinary sanction and to the assessment of the level of risk that he posed to the public and the profession. He contends that the protective purpose of a disciplinary proceeding and the principles relevant to the imposition of sanctions under the ETRA are interrelated, especially with respect to the role of specific deterrence.

52 Mr Paul submits that the Board's use of the word 'penalty' in describing the action taken against Mr Paul under ETRA s 2.4.61 was not inappropriate in the circumstances. First, it was a shorthand way of distinguishing between the two substantive decisions that the Board had to make on the appeal. Second, the Court has used this word in considering s 2.4.61 in the past,[40] and it has been commonly used in other disciplinary contexts. Third, its use in this context did not indicate that the Board improperly focused on the punitive aspect of the action rather than on the protection and maintenance of professional standards.

53 The Board points out that an appeal to it is in the nature of a de novo hearing with respect to all matters of fact and the exercise of the Board's discretion as to outcome. It says that the ETRA gives the Board a wide discretion in assessing penalty, limited only by the purpose of the legislation.

54 The provisions of the ETRA, like all statutory provisions, fall to be construed by reference to their text, context and purpose.[41] The task of statutory construction, however, must begin with a consideration of the text, as this is the surest guide to legislative intention.[42] The meaning of the text may require contextual considerations, including the general purpose and policy of a provision, in particular the mischief it seeks to remedy.[43]

55 Ordinarily, but not always, words are given their natural and ordinary meaning:

the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[44]

56 A construction that promotes the object or purpose underlying an Act is preferable to one that does not.[45] Headings to sections within an Act form part of that Act.[46]

57 It is convenient now to turn to the text of the statute.

58 ETRA s 1.1.1 states that its 'main purpose' is 'to reform the law relating to education and training in Victoria by providing for a high standard of education and training for all Victorians'. In particular, the ETRA makes provision for 'the recognition and regulation of the teaching profession and the maintenance of standards of professional practice for that profession' and for 'the employment in the teaching service of Government school teachers and other persons'.[47]

59 ETRA s 1.2.1 lists several principles to which Parliament had regard in enacting the ETRA, including:

(b) all Victorians, irrespective of the education and training institution they attend, where they live or their social or economic status, should have access to a high quality education that -

(i) realises their learning potential and maximises their education and training achievement;

(ii) promotes enthusiasm for lifelong learning;

(iii) allows parents to take an active part in their child's education and training;

...

(f) a parent of a student and the student has a right to access information about the student's achievement.

60 The ETRA pt 2.4 div 10 concerns teacher misconduct. Section 2.4.60 sets out the circumstances in which the Secretary, after investigation, may take action against an employee under that division. It provides:

Grounds for action

(1) The Secretary, after investigation, may take action under this Division against an employee who -

(a) conducts himself or herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise; or

(b) commits an act of misconduct; or

(c) during his or her period of service is convicted or found guilty of a criminal offence punishable by imprisonment or a fine; or

(d) is negligent or incompetent in the discharge of his or her duties; or

(e) contravenes a provision of this Act or a Ministerial Order made for the purposes of this Chapter; or

(f) contravenes a requirement by or under any Act that corporal punishment not be administered to any Government school student; or

(g) without reasonable excuse, contravenes or fails to comply with a lawful direction given to the employee by a person with authority to give the direction; or

(h) without permission and without reasonable excuse, is absent from his or her duties; or

(i) is unfit on account of character or conduct to discharge his or her duties.

(2) In considering the fitness of an employee to discharge his or her duties, consideration may be given to any relevant matters including his or her character and any conduct in which he or she has engaged (whether before or after becoming an employee).

61 Section 2.4.61 lists the actions that the Secretary may take against an employee if she is satisfied that there are one or more grounds under pt 2.4 div 10 to do so. It provides:

Action against employee

(1) If the Secretary is satisfied on an inquiry under this Division that there are one or more grounds under this Division for taking action against an employee, the Secretary may take one or more of the following actions against the employee -

(a) a reprimand;

(b) a fine not exceeding 50 penalty units;

(c) a reduction in classification;

(d) termination of employment.

(2) The Secretary, by notice in writing, must advise the employee of -

(a) the determination of the Secretary on the inquiry; and

(b) if the Secretary takes action under subsection (1), the right to appeal to a Disciplinary Appeals Board.

62 Section 2.4.68 gives an employee the right to appeal against a determination of the Secretary under pt 2.4 div 10:

Appeal

(1) An employee may appeal to a Disciplinary Appeals Board against a determination of the Secretary to take action against the employee under Division 9A or 10.

(2) A notice of appeal must be lodged with the senior chairperson of the Disciplinary Appeals Boards within 14 days after the date on which the employee is given notice in writing of the determination of the Secretary.

(3) A notice of appeal must -

(a) be in writing; and

(b) be in the prescribed form.

(4) A Disciplinary Appeals Board may permit an appeal to be instituted out of time if it considers that special circumstances exist.

(5) An appeal must be conducted as a re-hearing.

(6) A Disciplinary Appeals Board must hear and determine the appeal and may -

(a) allow the appeal in whole or in part and vary the decision of the Secretary; or

(b) dismiss the appeal.

63 The Secretary submits that, in deciding on the appropriate action to take, the Board placed undue emphasis on the impact of its orders on Mr Paul.

64 The impact of the Board's orders on Mr Paul was but one consideration that it took into account in reaching its conclusion. The other considerations, as discussed above, include Mr Paul's character, his approach to student assessment and the financial and reputational consequences of his conduct on the school.[48] The Board also took into account whether nor Mr Paul had previously engaged in similar misconduct. The Board was not required to expressly state that it considered the effect of the conduct on the public. Given the above, it was evident that it did, and specifically that it considered the impact on the school community. The Board's reasons do not indicate that it failed to take into account the protective purpose of disciplinary proceedings.

65 Although the Board reinstated Mr Paul, the further actions it took were serious, namely, to reprimand Mr Paul and to reduce his classification.

66 It remains to address the Secretary's submission that the Board's use of the word 'penalty' in describing the action taken against Mr Paul under ETRA s 2.4.61 suggests that the Board treated the question of disposition as one of punishment to be determined by reference to Mr Paul's moral culpability and character. This submission is without substance.

67 The Board used the word 'penalty' as a shorthand to describe the action that may be taken against an employee who has committed misconduct. This step is logically distinct from the question of whether the employee is blameworthy in the first place, which the Board described as 'the question of culpability'.[49] The Board's use of the word 'penalty', while different to the word used in under ETRA s 2.4.61, reflected its understanding of this distinction. Moreover, the Board set out, in relevant part, the provisions of s 2.4.61 and referred to the 'actions' that may be taken under that provision.[50] Its subsequent use of the word 'penalty' does not reveal a narrow approach to the question of disposition or, more broadly, a failure to take into account the protective purpose of disciplinary proceedings.

68 For these reasons, there was no constructive failure by the Board to exercise jurisdiction. Ground 2 is dismissed.

69 The Secretary's application for judicial review is dismissed.

70 I will hear the parties on the question of costs.

[1] The Board is a body established under the Education and Training Reform Act 2006. See Education and Training Reform Act 2006 s 2.4.72.

[2] Saji Paul v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 12 July 2018 at Melbourne, [17]-[19], [66]-[89].

[12] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[13] R v Marshall; Ex parte Baronor Nominees Pty Ltd [1986] VicRp 2; [1986] VR 19 at 32-3 (Brooking J, Murphy and Southwell JJ agreeing). See, eg, Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 1) [1930] ArgusLawRp 1; (1930) 42 CLR 527, 548-9 (Isaacs J dissenting).

[14] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, 5 [10] (Allsop CJ) ('This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary.') ('Stretton').

[15] (1990) 170 CLR 1.

[16] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J). Brennan J reframed the well-known test of unreasonableness adopted in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 ('Wednesbury'). In Torosidis v Department of Education and Training [2019] VSC 93 ('Torosidis'), this Court observed (at [94]) that, while the unreasonableness of an administrative decision today remains a continuing species of error warranting the quashing of that decision, the Wednesbury standard for identifying unreasonableness in such decision-making no longer retains its former prominence.

[17] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, 428 [80] (Nettle and Gordon JJ) ('SZVFW'), citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 363 [67] (Hayne, Kiefel and Bell JJ) ('Li').

[18] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, 649 [135] (Crennan and Bell JJ).

[20] SZVFW [2018] HCA 30; (2018) 357 ALR 408, 411 [11] (Kiefel CJ).

[21] Li [2013] HCA 18; (2013) 249 CLR 332, 363 [66] (Hayne, Kiefel and Bell JJ).

[22] Stretton [2016] FCAFC 11; (2016) 237 FCR 1, 8-9 [21] (Allsop CJ).

[23] Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; (2019) 365 ALR 202, 211 [36] (Griffiths J, Gleeson J agreeing).

[24] Li [2013] HCA 18; (2013) 249 CLR 332, 363 [66] (Hayne, Kiefel and Bell JJ), quoted in SZVFW [2018] HCA 30; (2018) 357 ALR 408, 423 [58] (Gageler J).

[25] Li [2013] HCA 18; (2013) 249 CLR 332, 365 [72] (Hayne, Kiefel and Bell JJ) ('The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness').

[26] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, 445 [44] (Allsop CJ, Robertson and Mortimer JJ).

[27] Li [2013] HCA 18; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ).

[28] Saji Paul v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 12 July 2018 at Melbourne, [96].

[29] Transcript, Saji Paul v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 12 July 2018 at Melbourne, 139-43, 147-8.

[32] Saji Paul v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 12 July 2018 at Melbourne, [101]. The Secretary did not impeach this finding.

[33] Secretary's Submissions to the Board dated 6 April 2018, [63.2].

[34] Saji Paul v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 12 July 2018 at Melbourne, [98].

[37] The third member of the Board did not participate in the whole of the proceeding as they left early. Their name does not appear on the Board's reasons.

[38] The Secretary refers to Health Care Complaints v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, 637-8 (Gleeson CJ, Meagher and Handley JJA).

[39] The Secretary cites the purpose of the ETRA, as set out in s 1.1.1 and particularly s 1.1.1(2)(f); the principles set out in s 1.2.1; the grounds for action listed in s 2.4.60; and the nature of the 'action' that may be taken against an employee in s 2.4.61.

[40] See Torosidis [2019] VSC 93 [83], [104]-[105], [148].

[41] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan, Kiefel JJ); Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[42] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan, Kiefel JJ).

[44] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

[45] Interpretation of Legislation Act 1984 s 35.

[46] Ibid s 36(2A).

[47] Education and Training Reform Act 2006 s 1.1.1(2)(f)-(g).

[48] Saji Paul v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 12 July 2018 at Melbourne, [94].