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RDF v State of Queensland (Education Queensland)[2018] QCAT 254

RDF v State of Queensland (Education Queensland)[2018] QCAT 254

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RDF v State of Queensland (Education Queensland) [2018] QCAT 254

PARTIES:

RDF 

(applicant)

v

STATE OF QUEENSLAND (EDUCATION QUEENSLAND)

(respondent)

APPLICATION NO/S:

ADL030-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

7 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Traves

ORDERS:

  1. The Application for an interim order filed on 11 July 2018 is dismissed.
  2. Until further order:
  1. (a)
    the publication of any information relevant to this proceeding or related proceedings that may identify the applicant, her family, the school or staff at the school, is prohibited;
  2. (b)
    the Reasons in this proceeding shall be published in de-identified format.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for an interim order or injunction following referral of discrimination complaint pursuant to s 58 or s 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where enrolment application for child accepted by school in error – where child did not meet the minimum age requirements for enrolment – where respondent repealed decision to enrol – where applicant submitted this constituted direct discrimination on the basis of age – where applicant made complaint of age discrimination to the Anti-Discrimination Commission Queensland which was referred – where application for an interim order or injunction pursuant to s 58 or s 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Acts Interpretation Act 1954 (Qld), s 24AA

Anti-Discrimination Act 1991 (Qld), s 43, s 106, s 191

Education (General Provisions) Act 1989 (Qld), s 12,
s 434

Education (General Provisions) Regulation 2017 (Qld), reg 17

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 59, s 66, s 203

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Hashish v Minister for Education of Qld [1997] QCA 13

Malaxetxebarria v State of Queensland [2007] QCA 132

Minister for Immigration & Multicultural Affairs v Bhardwaj [2001] HCA 11

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

REPRESENTATION:

 

Applicant:

Father of RDF

Respondent:

P Tyquin, senior lawyer at Crown Law

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Introduction

  1. [1]
    RDF is a four-year-old girl. She commenced preparatory year this year. When she did so, she was below the legal age to start school. Her parents applied to enrol her in the preparatory year at their local school; and the school, by oversight, enrolled her.
  2. [2]
    In April 2018 the school became aware of its oversight.
  3. [3]
    A decision was made repealing her enrolment on the basis she did not meet the minimum age requirement for the preparatory year. RDF’s parents opposed that decision and filed a complaint with the Anti-Discrimination Commission Queensland (‘Anti-Discrimination Commission’) claiming the decision constituted unlawful discrimination against RDF on the basis she had been treated less favourably than other preparatory students due to her age. Since April, she has remained at school while the legal process, referred to below, has taken its course.
  4. [4]
    RDF’s father has applied to the Tribunal on her behalf for an interim order or injunction to prevent the State of Queensland (Education Queensland) (‘State of Queensland’) from taking steps to remove or exclude RDF from a state primary school on the basis she does not meet the minimum age requirement. Alternatively, if a decision has already been made to repeal her enrolment, an interim order is sought reinstating her enrolment until the discrimination complaint is determined.
  5. [5]
    RDF’s father originally brought an application for an interim order on 10 May 2018 under section 144(1) of the Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’) (the first application). However, this application was dismissed on 9 July 2018 on the basis the Tribunal had no power to make an order under that provision once the matter had been referred to the Tribunal.[1] The matter had been referred to the Tribunal on 2 July 2018. 
  6. [6]
    RDF’s father then brought an application for an interim order or injunction under s 58 or s 59 of the QCAT Act (the second application). It is that application which I have to decide.
  7. [7]
    Preliminary orders preserving the status quo were made by the Tribunal on 11 May 2018 and again on 9 July 2018 until the second application could be properly determined.

Background to the application

  1. [8]
    RDF’s enrolment application was accepted by the then Acting Principal of the school for RDF to attend the preparatory year in 2018. However, RDF did not meet the minimum age requirements for enrolment. The respondent submits that RDF’s enrolment was accepted in error and that it was not appreciated at the time that she was too young for enrolment in 2018.
  2. [9]
    RDF commenced school at the beginning of 2018 and has now completed the first semester. In April 2018 the Department of Education identified that RDF was not eligible for enrolment in the preparatory year because she did not meet the minimum age requirements under reg 17 of the Education (General Provisions) Regulation 2017 (Qld) (‘EGP Regulation’).
  3. [10]
    The current Acting Principal in turn notified RDF’s parents that the previous Acting Principal had made an error in accepting the enrolment application and proceeded to cancel RDF’s enrolment.
  4. [11]
    On 3 May 2018 the Acting Principal handed a letter to RDF’s parents which stated that due to age requirements, he had ‘no choice but to repeal the decision to enrol RDF’. The letter advised that RDF was to cease attendance on 4 May 2018, though this was later extended to 11 May 2018.
  5. [12]
    On 10 May 2018 RDF’s father made a complaint of age discrimination on RDF’s behalf to the Anti-Discrimination Commission. That same date, RDF’s father lodged the application for an interim order with the Tribunal on RDF’s behalf. This application was made under s 144(1) of the Anti-Discrimination Act which permits a complainant, at any time before their complaint is referred by the Anti-Discrimination Commission to the Tribunal, to apply to the Tribunal for an order prohibiting certain actions. RDF’s father sought an order preventing the State of Queensland from removing RDF from the school until the complaint to the Anti-Discrimination Commission was resolved.
  6. [13]
    On 11 May 2018 the Tribunal made an initial interim order to the effect that until the application for an interim order was determined, the State of Queensland was not to repeal RDF’s enrolment, or if a decision to repeal the enrolment had been made, from taking any steps to remove or exclude her from the school. As this order was made on an urgent basis, submissions had not yet been invited from the State of Queensland.
  7. [14]
    On 11 May 2018 the Tribunal directed the parties to file evidence and submissions relating to the application for an interim order, and they have since done so.
  8. [15]
    On 15 June 2018 the parties’ representatives attended a conciliation conference at the Anti-Discrimination Commission. The matter was not resolved. On 2 July 2018 the Tribunal received a referral of the complaint from the Anti-Discrimination Commission. This referral will enable the Tribunal to hear and decide the complaint under Part 2 of Chapter 7 of the Anti-Discrimination Act.
  9. [16]
    On 9 July 2018 the Tribunal made an Order dismissing the application for an interim order under s 144 of the Anti-Discrimination Act.
  10. [17]
    On 9 July 2018 the Tribunal made directions requiring the applicant to file any application for interim orders with relevant evidence and submissions by 12 July 2018 and made an Order in the following terms:

Until further order, the State of Queensland is prohibited from taking any steps to repeal the enrolment of RDF from [the school], or if a notice or decision repealing the enrolment has been issued or made, the State of Queensland is prohibited from taking any steps to remove or exclude RDF from [the school] or otherwise implement or give effect to the purported repeal of the enrolment.

  1. [18]
    The purpose of this Order was to preserve the status quo until the application for an interim order could be determined by the Tribunal.
  2. [19]
    On 11 July 2018 RDF’s father made an application for interim orders under s 58 and s 59 of the QCAT Act. It is that application which I have to decide.

The question before the Tribunal and summary

  1. [20]
    The question for the Tribunal is whether an interim order or injunction should be made, in effect, keeping RDF at school. Whether an interim order, in particular an injunction, to that effect is made depends upon the nature of the relief ultimately sought and whether the order is in aid of that relief.[2] As the High Court held in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd:[3]

…an injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong. So to say, is simply to emphasise that the function of courts is to do justice according to law.[4]

  1. [21]
    Here, presumably, the relief sought is an order under s 209 of the Anti-Discrimination Act, on the basis the decision to repeal the decision to enrol RDF was unlawful discrimination. The available orders under s 209 do not appear to enable the Tribunal to order that RDF be re-enrolled. That aside, for the reasons below, the better view is that the original decision to enrol RDF was invalid and of no effect because the respondent did not have the power to make the decision or, that it was validly repealed. Further, that there is no arguable case that the decision to repeal the original decision to enrol RDF was made in contravention of the Anti-Discrimination Act.
  2. [22]
    I turn to set out my reasons.

The power to make an interim order under s 58 or s 59 of the QCAT Act

  1. [23]
    The original complaint to the Anti-Discrimination Commission dated 10 May 2018 asserts that RDF may have a case under the Anti-Discrimination Act as the Department was seeking to cancel RDF’s enrolment solely based on age. Further, that while it would have been legal to refuse RDF’s initial enrolment, there was no provision in the Act that allowed them to terminate RDF’s enrolment at this late stage.[5]
  2. [24]
    The application before me seeks an order in the following terms:

That the Respondent is prohibited from taking any steps to remove or exclude RDF from [the school] or otherwise implement or give effect to the purported repeal of the enrolment until the Applicant’s discrimination complaint dated 10 May 2018 has been heard and determined by the Queensland Civil and Administrative Tribunal or until further order.

  1. [25]
    The relevant provisions of the QCAT Act are as follows:

58 INTERIM ORDERS

  1. (1)
    Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example–
  1. (a)
    to protect a party’s position for the duration of the proceeding; or
  2. (b)
    to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.

Example: See also section 22 (3) for the tribunal’s power to stay the operation of a reviewable decision while it is being reviewed by the tribunal.

…

(6) In this section—

"interim order" means an order that has effect for the duration of a proceeding or a shorter period.

59 INJUNCTIONS

(1) The tribunal may, by order, grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so.

…

(9) In this section—

"interim injunction" means an injunction that has effect for the duration of a proceeding or a shorter period.

  1. [26]
    It has been held in relation to an equivalent power to make interim injunctions conferred on VCAT that the power of the Tribunal to make an interim order does not enlarge the Tribunal’s jurisdiction, but operates in aid of whatever jurisdiction the Tribunal already has.[6]
  2. [27]
    The power in s 58 to make an interim order may be exercised if the Tribunal considers it appropriate “in the interests of justice”. The power in s 59 to order an interim injunction can be exercised if it is “just and convenient” to do so. However, these powers must be considered and exercised in the context of the law. An interim order cannot be made “in the interests of justice”, nor can it be “just and convenient” to order an interim injunction, if there is no basis for final relief. Such an order, as I have said, must go in aid of a substantive right.[7]

What is the relevant decision?

  1. [28]
    The issue arises as to the status of the decision in relation to RDF’s enrolment.
  2. [29]
    The decision to enrol RDF was, in my view, made on the basis of an error of jurisdictional fact, namely that RDF complied with the minimum age requirement. As a consequence, on one view, the decision lacks legal foundation and is properly regarded, in law, as no decision at all.[8]
  3. [30]
    This was the view taken by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj:[9]

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.

….

As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.[10]

  1. [31]
    There is some difference in approach where the administrative decision is not patently invalid. However that is not the case here.
  2. [32]
    In my view, it is clear that the original decision was invalid because the fact on which the power to enrol was based, namely the child will be at least 5 years and 6 months[11] on 31 December in the year of proposed attendance at the school, did not exist. Further, there is nothing in the scheme of the Education Act which suggests the legislative intention was that such a decision is to be treated as having effect, even though it was not made in accordance with the requirements of the Education Act.[12]
  3. [33]
    Whether, in the circumstances, the Tribunal has jurisdiction to proceed on the basis that the decision is invalid is unclear. For the reasons below, it is not necessary for me to determine the point. That is so because, whatever the validity of the original decision, I have decided that it has been repealed.
  4. [34]
    It appears from the material filed in the Tribunal that the Minister made a decision prior to 3 May 2018 that RDF’s enrolment should be terminated. On 3 May 2018 a meeting took place between RDF’s parents, Mr Gerchow, Lead Principal, Metropolitan Region, Ipswich office and Mr Mills, Assistant Regional Director, Metropolitan Region, Ipswich office. At that meeting RDF’s parents were advised that the Minister had determined that RDF’s enrolment was to be terminated and they were also handed a letter to that effect. The letter outlined the statutory age requirements for enrolment and stated that, as RDF did not meet the criteria, that the Principal ‘…had no choice but to repeal the decision to enrol RDF. This means that she is no longer enrolled at [the school] and, therefore, must cease attendance on 4 May 2018.’
  5. [35]
    Due to questions raised by RDF’s parents at the meeting, the date the repeal was to take effect was extended to 11 May 2018.
  6. [36]
    The Respondent argues the decision was validly repealed pursuant to the power in s 24AA of the Acts Interpretation Act 1954 (Qld) which provides as follows:

24AA POWER TO MAKE INSTRUMENT OR DECISION INCLUDES POWER TO AMEND OR REPEAL

If an Act authorises or requires the making of an instrument or decision:

(a) the power includes power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

  1. [37]
    I do not regard the decision to repeal the earlier decision to enrol as a decision to exclude a student. A student may be excluded on the grounds set out in s 292 or s 299 of the Education Act. That is not what occurred here.
  2. [38]
    The decision to repeal the decision made under s 156 of the Education Act to select RDF for enrolment is, in effect, a decision not to select RDF for enrolment. The later decision was authorised by s 24AA of the Acts Interpretation Act. It is noted that, even without the statutory power in s 24AA, it is arguable that an implied power to revoke exists as a necessary and beneficial incident of the express power conferred on the respondent.[13]
  3. [39]
    There was a suggestion by the applicant that because the decision had been made by the respondent to enrol RDF and because she had attended school thereafter, the respondent was prevented from changing its decision. It has been held that the doctrine of estoppel cannot apply to prevent an administrator from “rescinding” an ultra vires decision, that is one infected by jurisdictional error.[14] If it were otherwise, it would “threaten to undermine the rule of law because it would permit public authorities to extend their powers simply by making representations beyond power”.[15] It is clear from my reasons above the decision to enrol was in my view beyond jurisdiction and, as a consequence, the doctrine of estoppel cannot apply.
  4. [40]
    The issue then is whether the decision to repeal the earlier decision to enrol is a decision contrary to the Anti-Discrimination Act.

The claim of unlawful discrimination

  1. [41]
    The applicant argues that the proposal to exclude RDF from school constitutes direct discrimination on the basis of age and that there is no scope for the application of any of the statutory exemptions.
  2. [42]
    Section 38 provides that:

38 DISCRIMINATION BY EDUCATIONAL AUTHORITY IN PROSPECTIVE STUDENT AREA

An educational authority must not discriminate:

(a) in failing to accept a person’s application for admission as a student; or

(b) in the way in which a person’s application is processed; or

(c) in the arrangements made for, or the criteria used in, deciding who should be offered admission as a student; or

(d) in the terms on which a person is admitted as a student.

  1. [43]
    Section 39 provides:

39  DISCRIMINATION BY EDUCATIONAL AUTHORITY IN STUDENT AREA

An educational authority must not discriminate:

(a) in any variation of the terms of a student’s enrolment; or

(b) by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or

(c) by excluding a student; or

(d) by treating a student unfavourably in any way in connection with the student’s training or instruction.

  1. [44]
    Section 10 of the Anti-Discrimination Act provides that direct discrimination on the basis of an attribute happens if a person treats a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. Here the relevant attribute is “age”.[16]
  2. [45]
    Section 40 provides that it is not unlawful to discriminate in the education area if an exemption in sections 41 to 44 or part 5 applies. Section 43 and s 106 (in part 5) were raised as potentially relevant.
  3. [46]
    Section 43 provides:

43  AGE-BASED ADMISSION SCHEME

An educational authority may select students for an education program on the basis of an admission scheme that has a minimum qualifying age.

  1. [47]
    The exemption in s 43 clearly applies when students are initially selected for an education program. This exemption would clearly have applied to the original decision, had it been taken, not to select RDF for the relevant education program, namely, the preparatory year program at the relevant school.
  2. [48]
    The applicants argue, in effect, that it does not necessarily follow that a student, once selected, can be excluded based on age. They argue that, even if the decision is seen as the repeal of the decision to select RDF for an education program, it is a separate exercise of discretion and cannot be said to be an act in the selection of students.
  3. [49]
    The respondents argue that the exemption in s 43 applies. “Educational authority” is defined to mean “a person or body administering an educational institution”. This would include the Principal of RDF’s school. The admission scheme in this case is that prescribed by regulation 17 which sets out the minimum age for enrolment at school. The respondent argues that the decision to select RDF for an education program was capable of being, and was, repealed pursuant to s 24AA of the Acts Interpretation Act. Accordingly, it is argued, the exercise of the discretion to repeal is subject to the exemption in s 43.
  4. [50]
    The issue, in my view, is whether s 43 applies to a decision to repeal an earlier decision to enrol. In the words of s 43, is the decision to repeal the original decision to select a student for an education program, a decision to “select students” for an education program on the basis of an admission scheme that has a minimum qualifying age.
  5. [51]
    In my opinion it is. A power to select a student on the basis of age necessarily includes the power not to select a student if the age criteria is not satisfied. That is, the power to select, which necessarily involves a choice, logically must include the power not to select. The exemption in s 43 therefore applies to decisions made both ways: that is, to select or not select. To find otherwise would lead to an absurdity: a decision to select on the basis of age would have the protection of s 43, whereas a decision not to do so would not. The contrary view is that, where a student is wrongly enrolled by reason of a mistake about his or her age, it would be unlawful discrimination to give effect to the statutory requirement for a student to be of a particular age. That is, in my view, unlikely to have been the legislative intention.
  6. [52]
    The decision made to enrol was a decision which could be repealed or amended, in other words, it could be revisited.[17] The decision to repeal was, accordingly, a decision to select (or not select) within s 43. The power to make a decision to select is not confined to the time an original application for enrolment is made. Further, a statutory power to perform a function, here to select students for an education program, may be exercised as the occasion requires.[18]
  7. [53]
    The decision to repeal was made when the invalidity of the original decision to enrol was discovered. However described, it was a decision which revisited the issue of whether RDF was legally entitled to be enrolled, or, to use the words of s 43, whether she satisfied the criteria for selection in the preparatory year education program. The answer to that was that she did not and, on that basis, the original decision was repealed.
  8. [54]
    It is noted that the respondent could, in the alternative, have amended its decision from a decision to select RDF for the preparatory year program to a decision not to. In my view, nothing turns on this. Either way, the decision to select or not select based on age was encompassed by s 43 and therefore not unlawful discrimination.
  9. [55]
    Accordingly, the decision to repeal the original decision to enrol falls within s 43 and, hence, is not contrary to the Anti-Discrimination Act.
  10. [56]
    The applicant also raised the exemption in s 106. Section 106 relevantly provides:

106  ACTS DONE IN COMPLIANCE WITH LEGISLATION ETC.

(1) A person may do an act that is necessary to comply with, or is specifically authorised by:

(a) an existing provision of another Act; or

…

(2) In this section:

"existing provision" means a provision in existence at the commencement of this section.

  1. [57]
    The applicant submitted that s 106 was not applicable because it only excused acts done in compliance with laws in existence at the time of commencement of s 106 and that regulation 17,[19] upon which the respondent relied, was not in existence at that time.
  2. [58]
    Regulation 17 of the Education (General Provisions) Regulation 2017 (Qld) provides:

17  AGE FOR ENROLMENT IN PREPARATORY YEAR

(1) The principal of a State school, or non-State school, may enrol a child in the preparatory year at the school only if the child will be at least 5 years and 6 months on 31 December in the proposed year of attendance at the school.

Example: A child who turns 5 on or before 30 June in a year will be at least 5 years and 6 months on 31 December in that year.

(2) However, the principal may enrol a child in the preparatory year at the school if—

(a) the child will be at least 5 years and 5 months on 31 December in the proposed year of attendance at the school; and

Example: A child who turns 5 on or before 31 July in a year will be at least 5 years and 5 months on 31 December in that year.

(b) the principal is satisfied the child is ready for education in the preparatory year, considering the child’s attributes.

(3) Also, the principal may enrol a child in the preparatory year at the school, regardless of the child’s age, if the principal is satisfied the child—

(a) had started education in another State or country that is equivalent to the preparatory year; and

(b) is ready for education in the preparatory year, considering the child’s attributes.

(4) This section applies subject to chapter 8 of the Act.

  1. [59]
    The respondent did not contend to the contrary. That said, the Tribunal is not bound by parties’ submissions as to the law.
  2. [60]
    I do not agree with the applicant concerning the operation, relevantly, of s 106. In my view, the relevant provision is s 12 of the Education Act. It is this provision that authorises the Minister to provide programs of instruction and education at State educational institutions based on age.
  3. [61]
    When s 106 of the Anti-Discrimination Act commenced on 30 June 1992, s 12 of the Education Act provided relevantly:

12 PROVISION OF STATE EDUCATION

(1) For each student attending a State educational institution… there shall be provided a program of instruction in such subjects and of such duration as the Minister approves that—

(a) has regard to the age, ability, aptitude and development of the student concerned;

….

  1. [62]
    In my view, s 106 applies so that the decision to repeal RDF’s enrolment on the basis of her age was not unlawful discrimination due to s 12 of the Education Act which, in its current form, is in substantially similar terms to the provision when enacted. A similar approach to s 12 in applying the s 106 exemption was taken by the Queensland Court of Appeal in Malaxetxebarria v State of Queensland.[20]
  2. [63]
    Further, it was held by the Queensland Court of Appeal in Hashish v Minister for Education of Qld[21] that a decision to exclude a student based on age was exempt by s 106 not only on the basis of the Education Act but also due to ss 34, 35, 39 and 40 of the Constitution Act 1867 (Qld).
  3. [64]
    As McPherson JA said:[22]

The purpose of this initial digression is to show that the respondent Minister has a duty not to apply funds that have been appropriated by Parliament to education for any purpose or purposes not authorised by the Education Act. The point may be thought sufficiently obvious not to warrant such extensive discussion; but the question was not presented in precisely that form on appeal. In my opinion, the question whether the respondent’s action in excluding the applicant from the School was, or is, in terms of s.106(1)(c) of the Anti-Discrimination Act, an act “necessary to comply with an existing provision of another Act” must be determined in the context not only of the Education Act itself but of the constitutional framework under which the Minister establishes, maintains and carries on schools pursuant to that Act. If it is outside the statutory power of the Minister to permit the applicant to remain at Narbethong School, then the exclusion of the applicant is in terms of s.106(1)(c) “necessary to comply with ... an existing provision of” that Act.

This was essentially the form in which the respondent’s submissions were presented on appeal, to which I would add only that in s.106(1)(c) of the Anti-Discrimination Act the “existing provision of any other Act” is here capable of referring not only to the Education Act itself but also to the Constitution Act 1867 (Qld.). As appears from the reasons for judgment of Lukin J. (with whom Cooper C.J. agreed) in Alliance Assurance Co. v. Goodwyn [1916] St.R.Qd. 225, at 251-255, the constitutional principle rests ultimately on the provisions of ss. 18, 19, and 34 to 40, and principally ss. 34 and 39, of the Constitution Act. In the words of Shand J., with whom Real and Chubb JJ. agreed in that case, “by virtue of the provisions of the Constitution Act, no part of the public revenue can legally be appropriated to or used for any purpose to which it has not been appropriated by Parliament ...” ([1916] St.R.Qd. 225, at 272). 22

Permitting the applicant to remain at a State school which he is not authorised by the Education Act to attend unavoidably involves the use by the Minister of public revenue for a purpose to which it has not been appropriated by Parliament. The critical provisions of ss.34, 35, 39 and 40 of the Constitution Act are still in the form, or substantially in the form, in which they were considered by the Court in 1916. They are, within the meaning of s.106(1)(c) of the Anti-Discrimination Act, existing provisions of another Act with which it is necessary for the Minister to comply in administering the Education Act and carrying on State schools under it. I therefore find myself unable to accept the submission of Mr Garde Q.C. that there is no provision in another Act on which s.106(1)(c) is capable of operating.

  1. [65]
    Accordingly, I find that there is no arguable case that the decision to repeal the original decision to enrol contravenes the Anti-Discrimination Act. The respondent acted lawfully in taking RDF’s age into account when it reconsidered her enrolment status and made the decision to repeal her enrolment.
  2. [66]
    I turn now to consider whether, given my findings, I should grant an interim order. 

Whether an interim injunction under s 59 of the QCAT Act should be granted

  1. [67]
    The Tribunal’s power to grant an injunction under s 59 of the QCAT Act is comparable to the power at common law exercised by the courts. Accordingly, the Tribunal applies common law principles relevant in determining whether it would be ‘just and convenient’ to grant an injunction.
  2. [68]
    The usual approach is to consider whether or not there is a serious question to be tried and whether the balance of convenience favours the granting of the interlocutory relief sought.[23] These requirements are not entirely separate and must be considered together.[24]

Serious question to be tried

  1. [69]
    For the reasons above, I do not find there exists a serious question to be tried. The original decision was clearly invalid and was subsequently repealed pursuant to s 24AA of the Acts Interpretation Act. The decision to repeal was itself exempt by s 43 of the Anti-Discrimination Act, or alternatively, was authorised by the Education Act and Constitution Act therefore exempt by s 106 of the Anti-Discrimination Act.
  2. [70]
    In the absence of a serious question to be tried, an interim injunction should not be granted.

Balance of convenience

  1. [71]
    Balance of convenience is not viewed in isolation. It must be addressed in the context of the substantive legal issues in dispute.
  2. [72]
    It is, of course, regrettable that RDF’s enrolment is to be disrupted until she can resume her education at the commencement of the school year in 2019. I also accept that it would be convenient for RDF and her parents if she were able to continue to attend the school for the duration of this year. I am not persuaded, however, that it would necessarily be against RDF’s interests, educationally and socially, for her to commence school next year with other children of her age and stage of development.
  3. [73]
    Accordingly, in all of the circumstances, I dismiss the application for an interim injunction.

Whether justification exists for an interim order under s 58 of the QCAT Act

  1. [74]
    As to whether I should make an interim order under s 58 of the QCAT Act on the basis it is ‘in the interests of justice’, justice must mean in accordance with the law. Although it is tempting to consider what is just from the perspective only of RDF, there are broader considerations at play.
  2. [75]
    In my view, it would be contrary to the interests of justice to make an interim order, in effect, sanctioning an unlawful enrolment. Age requirements are set by the legislature and apply to all prospective students equally. It would not be just to permit a person who had been wrongfully enrolled to remain enrolled on the basis of an interim order when the substantive application before the Tribunal, that is, that the decision to repeal the decision to enrol RDF is unlawful discrimination, does not demonstrate an arguable case.
  3. [76]
    Accordingly, in all of the circumstances, I dismiss the application for an interim order.

Conclusion 

  1. [77]
    There is no basis for granting an interim order or injunction under s 58 or s 59, respectively, of the QCAT Act.
  2. [78]
    The application for an interim order or injunction is therefore dismissed.
  3. [79]
    A non-publication order is made under s 191 of the Anti-Discrimination Act and s 66 of the QCAT Act to preserve the anonymity of RDF. This order is necessary to protect the privacy of RDF.
  4. [80]
    Accordingly, the publication of any information that may identify RDF, her family, the school or staff at the school is prohibited.
  5. [81]
    The names of the applicant and any other parties relevant to the proceeding shall be de-identified.

Footnotes

[1] RDF v State of Queensland (Education Queensland) [2018] QCAT 220.

[2] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [58], [105].             

[3] Ibid.

[4] Ibid, [60].

[5] Complaint Form dated 10 May 2018, 5.

[6] Herald and Weekly Times Pty Ltd v Victoria (2006) 25 VAR 124, [27].

[7] Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

[8] Minister for Immigration & Multicultural Affairs v Bhardwaj [2001] HCA 11, [51].

[9] (2002) 209 CLR 597

[10] Ibid, [51]-[53]; see also Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661, 671.

[11] Or at least 5 years and 5 months if the principal is satisfied the child is ready for education in the preparatory year, considering the child’s attributes: reg 17(2) Education (General Provisions) Regulation 2017 (Qld).

[12] Minister for Immigration & Multicultural Affairs v Bhardwaj [2001] HCA 11, [54].

[13] Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219, 225, per Beaumont J that where a decision has proceeded on a wrong factual basis it is appropriate, proper and necessary that the decision-maker withdraw his or her decision; Rootkin v Kent CC [1981] 1 WLR 1186.

[14] Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.

[15] Orr, R and Briese, R, Don’t think twice? Can Administrative Decision Makers change their Mind?, [2002] AIAdminLaw F 14.

[16] Anti-Discrimination Act, s 7(f).

[17] Acts Interpretation Act, s 24AA.

[18] Acts Interpretation Act, s 23(1).

[19] Education (General Provisions) Regulation 2017 (Qld)

[20] Malaxetxebarria v State of Queensland [2007] QCA 132.

[21] [1997] QCA 13.

[22] Ibid, 19-22.

[23] The issue of whether damages would otherwise be an adequate remedy is sometimes considered in determining where the balance of convenience lies: 

[24] Bradto Pty Ltd v Victoria (2006) 15 VR 65, [35].

Close

Editorial Notes

  • Published Case Name:

    RDF v State of Queensland (Education Queensland)

  • Shortened Case Name:

    RDF v State of Queensland (Education Queensland)

  • MNC:

    [2018] QCAT 254

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    07 Aug 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
4 citations
Jump To
Cite 1 - (2001) 208 CLR 199
Cite 2 - (2001) 208 CLR 199
Cite 3 - (2001) 208 CLR 199
Cite 4 - (2001) 208 CLR 199
Australian Alliance Assurance Co Ltd v Goodwyn [1916] St R Qd 225
2 citations
Jump To
Cite 1 - [1916] St R Qd 225
Cite 2 - [1916] St R Qd 225
Bradto v Victoria (2006) 15 VR 65
1 citation
Jump To
Cite 1 - (2006) 15 VR 65
Comptroller - General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219
1 citation
Jump To
Cite 1 - (1991) 32 FCR 219
Comptroller General of customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661
1 citation
Jump To
Cite 1 - (1991) 103 ALR 661
Hashish v The Minister for Education of Queensland[1998] 2 Qd R 18; [1997] QCA 13
3 citations
Jump To
Cite 1 - [1997] QCA 13
Cite 2 - [1997] QCA 13
Cite 3 - [1997] QCA 13
Herald and Weekly Times Pty Ltd v Victoria (2006) 25 VAR 124
1 citation
Jump To
Cite 1 - (2006) 25 VAR 124
KRM v The Queen [2001] HCA 11
3 citations
Jump To
Cite 1 - [2001] HCA 11
Cite 2 - [2001] HCA 11
Cite 3 - [2001] HCA 11
Local Government and Ethnic Affairs v Kurtovic [2002] AIAdminLaw F 14
1 citation
Jump To
Cite 1 - [2002] AIAdminLaw F 14
Malaxetxebarria v State of Queensland [2007] QCA 132
2 citations
Jump To
Cite 1 - [2007] QCA 132
Cite 2 - [2007] QCA 132
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
2 citations
Jump To
Cite 1 - (1990) 21 FCR 193
Cite 2 - (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
2 citations
Jump To
Cite 1 - (2002) 209 CLR 597
Cite 2 - (2002) 209 CLR 597
RDF v Queensland [2018] QCAT 220
1 citation
Jump To
Cite 1 - [2018] QCAT 220
Rootkin v Kent County Council [1981] 1 WLR 1186
1 citation
Jump To
Cite 1 - [1981] 1 WLR 1186

Cases Citing

Case NameFull CitationFrequency
Bongain Pty Ltd v Benowa Gardens Pty Ltd [2023] QCAT 572 citations
Thomas v The Star Entertainment Qld Limited & Ors [2025] QCAT 1732 citations
1

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