Rikkone v NSW Ombudsman and TAFE NSW

Materials considered.

1. In considering the application I have had regard to the following materials. 1. Provided by Ms Rikkone: 1. Administrative review application and attachment. 2. Bundle of documents filed on 7 August 2023. 3. Statutory declaration of Ms Rikkone verifying attached submissions of 31 August 2023 filed on 7 September 2023. 4. Ms Rikkone's written submissions of 6 September 2023 filed on 7 September 2023. The submissions in (d) substantially duplicate part of the submissions in (c). 1. One-page submissions dated 4 September 2023 provided by TAFE. 2. Submissions from the Ombudsman dated 7 September 2023 which noted that the Ombudsman had not received the applicant's submissions. In this regard I note that an email on the Tribunal file timed at 12:41pm on 7 September 2023 from the Ombudsman's Legal Unit to the applicant contradicts this and says: Apologies Ms Rikkone, The NSW Ombudsman did receive both your submissions.

Should the application be determined without a hearing?

1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case both parties have indicated their agreement to the application being determined on the papers and the Tribunal has made an order dispensing with a hearing. Having reviewed all the materials I agree that this is matter that can be determined in the absence of the parties by considering the materials lodged by them. I will proceed to do so.

Jurisdiction

1. The first issue to determine is whether the Tribunal has jurisdiction to determine Ms Rikkone's application. Both NSW TAFE and the NSW Ombudsman argue that the Tribunal does not have jurisdiction.
2. I agree with the note to the directions of Principal Member Simon made on 2 August 2023 that there are two possible sources of jurisdiction that might apply in the circumstances, both of which were briefly explained in that note. These are the Tribunal's jurisdiction under the Administrative Decisions Review Act 1987 (NSW) (the ADR Act) and that found in the Anti-Discrimination Act 1977 (NSW) (the AD Act).
3. I will consider them separately.

Does the Tribunal have Administrative Review Jurisdiction?

1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) relevantly provides that: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note. See section 8 of the Administrative Decisions Review Act 1997. … (6) An administrative review application is an application made to the Tribunal for an administrative review decision. Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
2. Section 9 the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) Act then provides the circumstances in which the Tribunal has administrative review jurisdiction. It relevantly provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
3. "Enabling legislation" is defined in s 4: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
4. The jurisdictional questions confronting the Tribunal, when seeking to exercise its administrative review jurisdiction in this case, are the same as those set out in the note to the directions made on 2 August 2023. With respect to each decision identified by Ms Rikkone they are: 1. What is the decision that Ms Rikkone seeks to review? 2. Is there enabling legislation which allows for administrative review applications to be made with respect to the decisions or which otherwise enables the Tribunal to exercise its functions with respect to those decisions?
5. Further, if the enabling legislation allows for a decision to be administratively reviewed, then (unless the enabling legislation provides to the contrary) the applicant must seek an internal review of the decision in accordance with s 53 of the ADR Act before applying to the Tribunal for administrative review. Section 55(3) and (4) relevantly provide: (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

What administratively reviewable decision of NSW TAFE is Ms Rikkone seeking to review?

1. The applicant has not specifically identified any decision of TAFE in her application or submissions. In the letter from the Ombudsman, which was attached to her application, a series of complaints she made about NSW TAFE (see par 2 above) were identified as the subject of her complaint.
2. In her online complaint to the Ombudsman, dated 21 February 2023 (a Tuesday), which displayed a real sense of grievance Ms Rikkone wrote, verbatim: Dear Sir/Madam, please advise on the situation which is still unresolved (for years) I went to TAFE Ultimo on Friday and realised nothing from Maritime Engineering had been credited and I was simply withdrawn from the course, which made zero all the work I had been doing. toxic organisational culture which facilitates racism and lack of respect towards history harassment assessments are not standardised credits for previous studies has not been transferred exam delayed with assessment, assessment was checked same teacher I had post traumatic treatment in Brookvale (consequently closed department) no reply for email or complaints teacher had licence suspended due to death of woman on board previous courses has not been credited previous ampa assessment has not been forwarded for 2 years industry is filled with alcohol and drugs culture of blame and harassment, cover ups lack of support misogyny bullying and intimidation, ignoring inability to look for employment due to inability to follow through deformation of the name wrong study materials (using wrong name or purpose of maneuver, including plagiarizing Butakov maneuver naming Williamson turn), compelling students to buy Indian book by Ghandi which was over 30% mistakes Where I can receive credits for my studies please?
3. Ms Rikkone has not produced any document from TAFE which sets out or demonstrates any of the matters about which she complains. There is no letter or notice from TAFE identifying any decision affecting her. There is no correspondence between herself and TAFE in which she seeks to have a specific decision made or action taken.
4. The definition of an administratively reviewable decision in s 7 the ADT Act includes a refusal by an administrator to make an order or determination, or to do an act of thing: see s 6(a) and (g), that is administratively reviewable. Aside from Ms Rikkone assertion that the situation had been going on for years, there is nothing in the evidence that suggests that she had been aware of the problem with her course credits prior to her attending TAFE on the Friday before she made the complaint. In those circumstances it is not possible to conclude that TAFE has been refusing to decide about her course credits.
5. Ms Rikkone has not pointed to any specific provision of any Act which provides that a decision made by TAFE is an administratively reviewable decision, including decisions with respect to course credits. TAFE asserts that Ms Rikkone has "no reasonable legal position … to support her assertion as to NCAT being the correct jurisdiction for her complaint."
6. I have reviewed the Technical and Further Education Commission Act 1990 (NSW) (the TAFE Act). It contains no provision giving this Tribunal administrative review jurisdiction with respect to any decisions made under it.
7. In those circumstances I conclude that it is not possible to identify any specific decision of TAFE that Ms Rikkone is seeking to review, let alone one over which this Tribunal has administrative review jurisdiction.

What administratively reviewable decision of the Ombudsman is Ms Rikkone seeking to review?

1. The decision of the Ombudsman that Ms Rikkone wishes to administratively review is the internal review decision, made on 23 June 2003, confirming the earlier decision not to investigate her complaints about TAFE.
2. The power to make that decision is to be found in s 13(2) of the Ombudsman Act 1974 (NSW). There is no provision in the Ombudsman Act allowing for any decision made under it to be the subject of administrative review by the Tribunal. Section 35A allows the Ombudsman and the Tribunal to come to arrangements about the cross-referral of matters within their respective jurisdictions. It does not give the Tribunal power to review the Ombudsman's decisions.
3. In Ali Samandi v Ombudsman NSW [2020] NSWCATAD 184 Senior Member Nadia Isenberg was asked to administratively review a decision by the Ombudsman not to investigate a compliant. She said at [11]-[12]: The Tribunal's jurisdiction is not 'at large'. It does not have a general power to review administrative decisions. Its jurisdiction and the powers it may exercise must be found in a statute: Herbert v Workers Compensation Commission [2016] NSWCATAD 28 at [34]. The Ombudsman Act does not confer jurisdiction on the Tribunal to review decisions in relation to the Ombudsman's discretion to investigate a complaint. There is no other statutory basis on which the Tribunal might review the Ombudsman's decision. The Tribunal has no discretion to embark upon a review where there is no jurisdiction to do so.
4. I agree with that conclusion. There is no administratively reviewable decision, made by the Ombudsman that has been identified by Ms Rikkone.

Does the Tribunal have jurisdiction with respect to Ms Rikkone's discrimination complaints?

1. As I understand her submissions, Ms Rikkone's complaints of discrimination based on age, sex, and race, in education, are made against TAFE, not the Ombudsman. She acknowledges in her submission that she has not made a formal complaint about discrimination to the President of the Anti-Discrimination Board under Subdivision 2, of Division 1 of Part 9 of the AD Act.
2. Such a complaint is an essential pre-requisite to the Tribunal having jurisdiction to hear that complaint. In Majoor v Macquarie University [2022] NSWCATAP 213 the Appeal Panel explained, at [25]: The only way a person can have a complaint under the Anti-Discrimination Act heard by the Tribunal is to first complain to the President of the Anti-Discrimination Board. If the President refers a complaint under particular provisions of that Act it becomes the subject of proceedings: s 95. While it is common for the Tribunal to direct a complainant to file some form of pleading, the subject of the Tribunal's inquiry is the complaint. That is clear from the fact that it is the complaint that is referred to the Tribunal and that the Tribunal has power to amend the complaint: Anti-Discrimination Act, s 96.
3. A person such as Ms Rikkone cannot simply file an application with the Tribunal making allegations of discrimination under the AD Act in order to have a complaint heard. For the Tribunal to have jurisdiction, a complaint must first be made to the President of the Anti-Discrimination Board and that complaint must then be referred to the Tribunal in accordance with s 95. Only then does the Tribunal have jurisdiction to consider the complaint. This includes, where the complaint is referred to the Tribunal under s 93A, jurisdiction to consider whether leave should be granted under s 96 for the complaint to be the subject of proceedings.
4. In the present case there has been no complaint made to the President of the Anti-Discrimination Board and no referral to the Tribunal. In those circumstances there is no complaint before the Tribunal that the Tribunal has jurisdiction to hear.

Conclusion

1. I conclude that the Tribunal does not have jurisdiction to hear the application and complaint made by Ms Rikkone.
2. I will dismiss her application on the basis that it is misconceived and lacking in substance under s 55(1)(b) of the NCAT ACT.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2023