NSW LEGISLATIVE COUNCIL

GENERAL PURPOSE STANDING COMMITTEE NO 3

INQUIRY INTO STUDENTS WITH DISABILITY OR SPECIAL NEEDS IN NEW SOUTH WALES SCHOOLS

THIS SUBMISSION FOCUSES ON PART (D):

Complaint and review mechanisms within the school systems in the New South Wales
public schools.

SUPPLEMENTARY SUBMISSION TO SUBMISSION NO. 172

Further to my submission No. 172 I would like to provide the following further information and
documentary evidence in support of my claims:

Below is a copy of the original letter sent to me by Mr. Refshauge dated 4 August 2003 with reference
RML 03/5996. This letter is on letterhead and it is dated and signed. This letter advises that an
investigation would be commenced and that I would be contacted by Mr. CC. This letter was on letter
head, dated and signed.

Deputy Premier
Minister For Education and Training
Minister for Aboriginal AFFAIRS

REF: RML 03/5996

Dear Mrs C*******

I refer to your letter dated 24 June 2003, regarding lodgement of a formal complaint about
the manner in which matters surrounding the Selective Schools application for your children
have been dealt with by the Department of Education and Training.

I have advised Mr CC, R/Director of Student Assessment and School Accountability that your
formal complaint should be dealt with in accordance with the Departments Responding go
Suggestions, Complaints and Allegations procedures. This document is available on the
Department Web site at www.det.nsw.edu.au/complaints/.

A copy has also been enclosed. Mr C***** will proceed to set the process in place and will
contact you in due course to advise you of progress.

Yours sincerely

Signed

Mr Refshauge
Deputy Premier
Minister for Education and Training
Minister for Aboriginal Affairs
4 August 2003
Below are copies of emails that were received under FOI:

23 August 2004-hand written file note from Chief Legal officer JM (typed copy)

Spoke to BW. MP thinks it is a good idea to do a file review for the operative period and to
write to Mrs C*******advising that the matter is considered to be finalised. I said that I would
send a confirming email to B**, MP and DW.

24 August 2004-Email from JM to RW, DW, MP B**

I refer to our discussion yesterday and confirm that from my perspective, and I know there are
many others, the only issue remaining outstanding is the “CC investigation” referred to in the
letter to Mrs C*******from the Minister dated 4 August 2004.

As you know I flagged this with Mrs C******* in my letter dated 2 July 2004 which said “My
preliminary enquiries indicate it was intended that the terms of the resolution of the
Administrative Decision’s Tribunal proceedings cover all outstanding issues between you and
the Department including the complaint to be investigated by Mr C******”. I undertook to
write to her again on this point once it had been sorted out.

I confirm the suggestion that I made yesterday for a file review to be undertaken in relation
to the period between the Ministers letter of 4 August 2003 and his letter of 19 December
2003 stating “….the Department now considers these matters closed. All future
correspondence on these issues will be filed without response unless it relates to matters not
previously raised.” It may be that the file review will establish that the issues complained of
were examined and that no further action was found to be warranted for example.

In terms of finally closing off my FOI file, unless I hear from you to the contrary, I will write to
Mrs C*******, referring to my letter dated 2 July and advising that I have referred that issue
to Mr DW, Director Educational Management. I will formally send a copy of that letter and of
relevant earlier correspondence to DW, which will no doubt be passed on to you.

Below is a copy of a copy of a letter that is said to be from the Minister Mr Refshauge that was
produced under a Freedom of Information request in 2005/06, after I also requested documentation
in relation to what had transpired during the period between the Ministers letter of 4 August and
the letter referred to in the email by the Chief legal officer dated 19 December 2003. This copy is
not on Departmental letterhead, it is not dated and it is not signed.

RML 03/5996

Dear Mrs C.

I refer to your letter dated 24 June requesting that matters you raised in previous
correspondence be investigated and that a meeting be arranged to discuss these matters.

These matters have been extensively investigated in the course of responding to previous
correspondence with the following reference numbers: RMLS 03/1496, 03/4279, 02/4414,
02/6021, 02/6023, 02/8396, 02/10014, FOI 02/207 and FOI 03/010.
 Your concerns were also investigated by the NSW Ombudsman’s office.

I understand Mr. BW the Leader of the Selective Schools Unit contacted you on 30 June to
organise a meeting with you. I urge you to contact him and nominate a suitable time to
attend such a meeting so that the processing of your applications may be explained to you in
detail.

Mr W. can be contacted on 9………..

Yours sincerely
NOT SIGNED
Andrew Refshauge MP
Deputy Premier
Minister for Education and Training
Minister for Aboriginal Affairs

The copy of this letter is addressed to me and has the exact same reference number (RML 03/5996)
as the letter from the Minister to me dated 4 August 2003 ordering an investigation and refers to
being a response to the exact same letter from me. This unsigned and undated copy of letter was
never received by me.

The original letter from Mr. Refshauge to me dated 4 August 2003 appears to have been changed
and the different version of the original letter (the original ordered an investigation) was provided
under FOI.

All the references with regard to responses in the unsigned and undated letter were dated before I
actually made the complaint to the Minister and before I received the letter from the Minister dated
4 August 2003 stating that an investigation would be commenced and that I would be contacted by
Mr. CC.

All other letters received under FOI from the Department are complete copies of original letters on
letter head, with a date and signed.

Below is a copy of the letter as received under a Freedom of Information request dated 19
December 2003 referred to in the email from the Chief Legal officer dated 24 August 2004 as set out
above. This letter was a letter addressed to Mr. Brogden. It was not directed to me. This letter was
not received by me from Mr. Brogden until 11 March 2004 after I chased Mr Brogden for a response
to the representations he had made to the Education Minister on my behalf.

Mr JH B Brogden MP
Member for Pittwater
Parliament House
SYDNEY NSW 2000

Dear Mr Brogden

RML 03/10994

I refer to your further representations dated 16 October 2003. (Ref 133/03) on behalf of Mrs
C of …………………, regarding the placement of children in selective high schools.
 The issues raised in Mrs C………. correspondence have been the subject of numerous
Ministerial responses, as well as two Freedom of Information requests, an Ombudsman’s
Investigation and an Administrative Decisions Tribunal hearing.

Furthermore, as a result of the Administrative Decisions Tribunal hearing, I understand that

the Department of Education and Training offered Mrs C……….the opportunity to view the
test papers relevant to her children’s opportunity class and selective high school applications.
A meeting was held on 27 August 2003 where Mrs C.......... was given access to these
normally secure test materials.

Mrs C.......... was offered a further opportunity to have a full and personal explanation of the
way her children’s scores were derived for selective high school and opportunity class
placement. To date, she has not availed herself of this opportunity.

Extensive enquiries have now been completed by both the Department of Education and
Training and an external agency. Following these enquiries, the Department now considers
the matter closed. All future correspondence on these issues will be filed without response
unless it relates to matters not previously raised.

I trust this information helps to clarify the situation for you.

Yours sincerely

Signed

Andrew Refshauge MP
Deputy Premier
Minister for Education and Training
Minister for Aboriginal Affairs
19 December 2003

The letter to Mr. Brogden indicates, amongst other things, that the Ombudsman investigated the
matter when internal emails as set out in my original submission clearly state that this was not the
case.

I continued to correspond with the DET seeking protection for my children and an investigation into
my allegations I received the following from EPAC:

Copy of a letter from Jane Thorpe Educational Measurement Directorate dated 7 May 2007. Letter
does not have a reference number. I also have other letters from the Legal Services Department of
the Department of Education that do not have a Departmental reference numbers noted.

Employee Performance and Conduct

Department of Education and Training

Dear Mr & Mrs C..........

I refer to your letter dated 8 April 2007 to the Director of Audit. This matter has
been referred to me as the officer responsible for investigation matters and for the
complaints policy. I apologise for the delay in responding.
 I note your request for a formal review of the decision not to investigate your
allegations of bias and victimization and also a review of the decision to deem you
vexatious.

I have now had an opportunity to review the general substance of your concerns.

You letter indicates that you believe that your allegations have not been investigated
by the Department and that a letter signed by a previous Minister on 4 August 2003
ordered an investigation.

I can advise you that Minister Refshauge's letter indicated that your complaint
would be dealt with under the Responding to Suggestions, Complaints and
Allegations procedures. This does not automatically imply that a complaint gives
rise to an investigation. The investigation process is only used for a small
proportion of complaints of corrupt conduct or serious maladministration and the
determination about the appropriate process is made by a delegated departmental
officer, not the complainant.

Departmental records indicate that your complaint was dealt with by the
Department and that a meeting was held with Mrs C and your children on 27 August
2003. At that meeting you were able to view tests items and were provided with
explanations about the basis for outcomes of tests.

I note that you made a further complaint on 27 July 2006 and that Mr CB then
assistant Director of Audit advised you that you had not provided sufficient
information to enable the Department to investigate that complaint.

I endorse Mr CB’s decision not to undertake an investigation and do not believe that
it would be appropriate to undertake further action with respect to that
complaint. Documentation would indicate that departmental officers have made
considerable efforts to try to address your concerns.

In relation to your concern about being deemed a vexatious litigant. I understand

that this was a recommendation only with respect to that particular complaint. This
would not prevent you communicating with the Department about new and different
issues. I am, however, prepared to place your correspondence on file, indication
your concern about the recommendation.

I hope this advice is of some assistance.

Yours sincerely

Jane Thorpe
Director
Employee Performance and Conduct
7 May 2007

In the internal emails as set out in my original submission from the Department of Education the
Legal Services Directorate and Audit Directorate clearly state that the Minister for Education Mr
Refshauge ordered an investigation and this investigation did not happen. As set out below:
 24 June 2004 - Chief legal officer spoke to BW: His recollection was that there was no
investigation as such.

5 July 2004 - Chief Legal officer email to JM to RW, DW, MP: The only thing still
outstanding at this stage from my perspective is the CC “investigation”

6 August 2004 – Email from Chief Legal Officer JM to Audit Directorate C B: There is another
ministerial reply not long before that however, which indicated that CC would investigate
her “complaint” and get back to her. It appears this did not happen. She brought
proceedings in the Administrative Decisions Tribunal concerning one of her FOI requests and
it seems likely the discussions around that drew attention away from the promised
investigation.

13 August 2004-hand written file note by Chief Legal Officer JM (typed copy): Spoke to CB.
He is waiting to hear back from Selective Schools Unit. It is likely that Audit will not
investigate further.

The following links refer to matters brought before the Administrative Decisions Tribunal with regard
to documentation relating to complaints.

1. Challita v NSW Ombudsman [2008] NSWADT 238 (25 August 2008):

http://www.austlii.edu.au/au/cases/nsw/NSWADT/2008/238.html

2. Challita v NSW Department of Education and Training [2009] NSWADT 116:

http://www.austlii.edu.au/au/cases/nsw/NSWADT/2009/116.html

I would be prepared to give evidence in this matter.

Jolanda Challita