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Palmer v Department of Education and Training [2017] QCAT 446 (12 December 2017)

Last Updated: 21 December 2017

CITATION:	Palmer v Department of Education and Training [2017] QCAT 446
PARTIES:	Kirsti Palmer (Applicant)
	v
	Department of Education and Training (Respondent)
APPLICATION NUMBER:	GAR218-17
MATTER TYPE:	General administrative review matters
HEARING DATE:	5 December 2017
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
DELIVERED ON:	12 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	The application is dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – absence of jurisdiction – application dismissed on basis it is lacking in substance EDUCATION – SCHOOLS – GOVERNMENT SCHOOLS – OTHER MATTERS – where no review decision under the  Education (General Provisions) Act 2006  (Qld)  Education (General Provisions) Act 2006  (Qld),  s 155 ,  s 171 ,  s 172 ,  s 390 ,  s 391 ,  s 392 ,  s 393 ,  s 394 , Schedule 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 47
APPEARANCES:
APPLICANT:	Ms Palmer appeared for herself
RESPONDENT:	Ms C Scott of Crown Law

REASONS FOR DECISION

[1] Ms Palmer is the mother of a child seeking enrolment at the Brisbane State High School. In her application lodged with the Tribunal, she seeks to review a decision made by the school’s executive principal as to whether the requirements for enrolment as set out in the school’s Enrolment Management Plan were met.
[2] The Department of Education and Training (the Department) considers that the Tribunal has no jurisdiction to hear the review application, and has made an interlocutory application to have the review application dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). The absence of jurisdiction is grounds for dismissing a review application due to it lacking in substance.
[3] The Tribunal’s review jurisdiction is set out in s 17 of the QCAT Act as follows:

(1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

(2) For this Act, a decision mentioned in subsection (1) is a
"reviewable decision" and the entity that made or is taken to have made the decision is the "decision-maker" for the reviewable decision.

[4] Under s 18, the Tribunal may exercise its review jurisdiction if a person has applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.
[5] The legislative scheme for the enrolment of students at State schools, including Brisbane State High School, is set out in the  Education (General Provisions) Act 2006  (Qld) (the EGPA). Applications for enrolment at State schools are to be made in accordance with  s 155.  The principal is then required to make a decision on the enrolment application under either  s 171  or s 172, depending on whether the person resides in the school catchment area. Those sections provide as follows:

171 Applicant for enrolment – residing in catchment area

(1) This section applies if—

(a) a State school’s principal receives an application, under  section 155  , for the enrolment of a person at the school; and

(b) there is an effective enrolment management plan for the school; and

(c) the person’s principal place of residence is in the school’s catchment area stated in the effective enrolment management plan.

(2) Subject to this Act, the person is entitled to be enrolled at the school.

172 Applicant for enrolment – residing outside catchment area

(1) This section applies if—

(a) a State school’s principal receives an application, under  section 155  , for the enrolment of a person at the school; and

(b) there is an effective enrolment management plan for the school; and

(c) the person’s principal place of residence is outside the school’s catchment area stated in the effective enrolment management plan; and

(d) the school’s enrolment capacity for persons whose principal place of residence is outside the catchment area, stated in the effective enrolment management plan, is not satisfied.

(2) Subject to this Act, the person is entitled to be enrolled at the school if the person satisfies the requirements for enrolment stated in the effective enrolment management plan.

[6] In the present case, an application to enrol her child was made by Ms Palmer. On 9 June 2017, the principal of Brisbane State High School wrote to Ms Palmer expressing the “preliminary view” that her child was not eligible to enrol at the school. She was invited respond to the preliminary view by making further written submissions within seven school days.
[7] Ms Palmer made further written submissions. On 16 June 2017, the principal wrote to Ms Palmer advising that he was unable to offer her child a place at the school. He advised that there was no internal review of this decision.
[8] Ms Palmer made a complaint about this decision to the Department. On 6 July 2017, the Director-General wrote to Ms Palmer advising that “principals make the final decision with regard to enrolments” and that he was unable to intervene.
[9] The definition of “information notice” is set out in Schedule 4 of the EGPA as follows:

"information notice" , for a decision, is a notice stating the following—

(a) the decision;

(b) the reasons for the decision;

(c) that the person to whom the notice is given may have the decision reviewed within 30 school days;

(d) how the person may have the decision reviewed.

[10] Despite Ms Palmer’s written submissions to the Tribunal to the contrary, it is clear that neither the letter dated 9 June 2017 nor the letter dated 16 June 2017 fall within the definition of information notice. In particular, neither letter advised that Ms Palmer may have the decision reviewed within 30 school days as required in paragraph (c).
[11] It is also clear that neither  s 171  nor  s 172  on their face require that an information notice be issued upon deciding an application for enrolment.
[12] Under  s 393  and  s 394  of the EGPA, the Tribunal only has power to review a “review decision”. That term is defined in s 392 to mean a decision made by the chief executive after receiving an application for review made pursuant to  s 391.  Under  s 390 , an application for review can only be made by a person who is given, or is entitled to be given, an information notice for a decision. As Ms Palmer was not given, and was not entitled to be given, an information notice, she does not have a right of review to the Tribunal in relation to the decision to refuse her child enrolment at Brisbane State High School.
[13] For completeness, it is clear that the letter dated 6 July 2017 is not a review decision, as it did not review the decision of the executive principal. On the contrary, it advised that the executive principal’s decision was final.
[14] At the conclusion of the oral hearing before the Tribunal, Ms Palmer conceded that she had not received an information notice. She submitted that the Tribunal has a general jurisdiction to review administrative decisions made by State bodies. As noted above, the Tribunal’s review jurisdiction under s 17 of the QCAT is dependent upon a conferral of jurisdiction on the Tribunal by an enabling Act. For the reasons already outlined, there has been no such conferral of jurisdiction in respect of enrolment decisions made under  s 171  and  s 172  of the EGPA.
[15] The Tribunal does not have jurisdiction to hear Ms Palmer’s application, and the application is dismissed under s 47 of the QCAT Act due to it lacking substance.