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Back to "Education Law Notes - Term 2 2022"


NSW Education Standards Authority flexes its muscles

Mr Thomas was a casual teacher on a temporary contract at a NSW public school in the first half of 2020. Mr Thomas had performance-related concerns raised with him during his time at the school and was put on a performance improvement plan.  He resigned in July 2020 before that plan concluded. During his contract, Mr Thomas made complaints to the NSW Department of Education, SafeWork and the NSW Anti-Discrimination Board, alleging bullying, harassment, and discrimination on the grounds of his sexuality and his performance management. In making these complaints, he threatened to contact media outlets to voice the contents of his complaints.

Mr Thomas contacted The Australian and “” on 22 June 2020 and a journalist with The Australian interviewed him in July 2020.  Sometime after the interview, Mr Thomas said that he did not want to ”proceed with the story”. This email was followed up weeks later with a text message to the journalist stating that he had subsequently been offered employment as a solicitor and therefore asked that the story not run.

However, The Australian published an article on 12 August 2020 that was unfavourable to Mr Thomas, referring to past child pornography charges against him. On the same day, the NSW Department of Education contacted Mr Thomas requiring him to show cause as to why his current teaching accreditation should not be withdrawn and why his name should not be featured on the Department of Education’s confidential list of persons not to be employed (NTBE List)

On 13 January 2021, NESA suspended Mr Thomas’ teacher accreditation under section 24A(1)(a) of the Teacher Accreditation Act 2004. He requested an internal review of the suspension. After an unsuccessful review, Mr Thomas took the matter to the NSW Civil and Administrative Tribunal (NCAT).

The Tribunal found that the suspension of Mr Thomas’s accreditation was ‘disproportionate’ to his conduct and made other findings concerning misconduct and its meaning. NESA appealed.


In considering the meaning of misconduct, NCAT had to determine whether Mr Thomas was placed on the NTBE List because he had engaged in improper, unacceptable behaviour or actions considered wrong or was placed on the list without good cause and justification.

As a principle of statutory interpretation, misconduct had to be given its ordinary meaning. According to the Oxford English Dictionary, misconduct is “improper, unacceptable, or wrong conduct or behaviour”.

Critically, in circumstances of misconduct, NESA needs to identify and justify the reason(s) for someone being placed on the NTBE List and whether such grounds would be characterised as improper, unacceptable, or wrong. This leaves the question, did the teacher do something wrong, inappropriate, or unacceptable?

What does this mean?

The proper approach to determining misconduct of an accredited teacher involves:

  • identifying the reason and justification for placing the teacher on the NTBE List; and
  • determining whether any misconduct would adversely affect a teacher’s professional standing, integrity or suitability to teach – the Professional Teaching Standards assist in this.

The NCAT Appeal Panel found that:

  • Mr Thomas’ actions at the School constituted misconduct;
  • his complaints to The Australian breached his confidentiality obligations and was an attempt to cause harm to the reputation of the Department of Education;
  • he showed disregard for professional reflection and the performance-related concerns addressed with him; and
  • he neglected to maintain and ensure a safe learning environment for students.

The Appeal Panel found that Mr Thomas’ inclusion on the NTBE List was due to misconduct within the definition in the Act as his conduct was of a nature that reflected adversely on his professional standing. The appeal was allowed and Mr Thomas’ suspension was found to be appropriate.

This decision is an important reminder for all school leaders to ensure that your school’s processes include adequate recording, reporting and implementation strategies to assist in determining teacher standards and investigating alleged misconduct.

If you need assistance in dealing with teacher registration, please contact David Ford or Stephanie McLuckie.

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