Clothier v Teachers Registration Board of SA No. Dcaat-02-561

CLOTHIER v TEACHERS REGISTRATION BOARD OF SA
[2003] SADC 21
Judge Lowrie
Administrative and Disciplinary Division

This is an appeal by Mr Andrew Clothier following the refusal of the Teachers Registration Board of South Australia to register him as a teacher pursuant to the provisions of section 61(1) of the Education Act 1972. The appellant in his written grounds of appeal outlined why he believed the Board erred in its finding against him and sought orders as follows:
“3.The following Order is sought by the applicant:
(1) That the Court do quash the decision of the Board as advised to the applicant by letter dated 23^rd September 2002 on the ground that the Board erred in law and that the published Reasons for Decision are wrong in law.
(2) That the Court do remit the matter to the Board for further hearing or consideration with direction that the Board do exercise its discretion pursuant to Section. 61(2) or grant an authority pursuant to Section. 63(2) in favour of the applicant being registered as a teacher subject to such provisions or conditions that the Board thinks fit given the applicant’s qualifications and experience.”
The appeal came on for hearing before me on 29 January 2003, Mr Colton appeared for Mr Clothier and Ms McLean for the respondent Board.
On 23 August 2002, the Board, comprising some 13 persons, heard Mr Clothier’s initial application for registration as a teacher. Mr Clothier appeared in person. Ms McLean appeared to assist the Board. Mr Clothier made detailed submissions on the reasons why the Board should exercise its discretion and register him as a teacher pursuant to section 61.
Mr Clothier lodged his application for registration as a teacher on 3 August 2000. At that time he was studying for a Graduate Diploma in Education at the University of Adelaide. He had already obtained an Undergraduate Degree in Applied Science (Chemistry) (University of South Australia) in 1994 and a Graduate Certificate of Information Technology. There was no dispute that at that time he had not completed his Graduate Diploma in Education. The submissions of Mr Clothier before the Board were, notwithstanding those incomplete qualifications, he should be admitted to the Register of Teachers because the Board has a broad discretion to admit to the register those whose qualifications for one reason or another fell short of those prescribed by the Act, and, consequently urged that the Board exercise its discretion and register him as a teacher.
Ms McLean contended that any discretion, which exists under section 61, or indeed for that matter section 63, had to be viewed within certain limits, namely, the intention of Parliament in so far as it could be ascertained from the legislation. Ms McLean pointed out section 61 sets a minimum standard or a benchmark for admission to the register. That is contained in section 61(1)(b)(i) where the person “holds prescribed qualifications and has had prescribed experience as a teacher”. The qualifications and experience referred to in section 61 are prescribed in regulation 6 of the Education (Teachers Registration) Regulations (1996) where it provides:
“(1)For the purposes of Section 61(1)(b)(i) the qualifications required for registration as a teacher are as follows:
(a) An approved teacher education degree, diploma or other qualification awarded on satisfactory completion of a tertiary course of pre-service teacher education in pre-primary, primary or secondary education that -
(i)is of at least 3 years full-time duration or part-time equivalent and
(ii)includes a practical student teaching component; or
(b) -
(i)an approved non-teacher education degree, diploma or qualification awarded on satisfactory completion of a tertiary course that is of at least three years full-time duration or part-time equivalent duration; and
(ii)an approved post-graduate degree, diploma or other qualification awarded on satisfactory completion of a tertiary course of pre-service teacher education in pre-primary, primary or secondary education that -
(A)is of at least one year’s full-time duration or part-time equivalent duration, and
(B)includes a practical student teaching component.”
Ms McLean pointed out that whereas Mr Clothier had in fact some qualifications, under section 61(1)(b), he did not have the relevant prescribed teaching experience to satisfy regulation 6(2). Mr Clothier accepted this contention. However, Mr Clothier submitted that section 61(1)(b)(i) provided the Board with a discretion to register a teacher, and, that is a discretion which should have been exercised in his favour and, consequently, the Board erred in coming to its conclusion that he could not be registered.
When the matter came on before me Mr Colton advised me of a number of factual matters which no doubt were known to the Board. Prior to the hearing of his application Mr Clothier had applied and been appointed to the Roxby Downs School and after commencing that employment his background qualifications were made known and that employment then ceased. Mr Colton said there was no doubt about his engineering qualifications and that he had completed all but two subjects of his diploma of teaching - “so he was almost there but not quite”, but, he was “close enough” and that entitled the Board to assist him and authorise him to be a teacher albeit on some form of conditional basis. He submitted the Board could have considered both section 61(2) and section 63 and his application should have been successful by the Board exercising its discretion in his favour.
Mr Colton was quite forceful in his suggestion that the Board had erred in not exercising its discretion in favour of his client, bearing in mind the factual qualifications of the appellant aided perhaps by the factual background.
Ms McLean replied by outlining, in her opinion, the statutory interpretation of sections 61 and 63 considering the legislative scheme for the registration of teachers as set out in Part 2, Division 2 of the Education Act 1972. It is apparent that the primary purpose of registration is to establish, maintain and operate a system of registration to ensure that competent persons become teachers. The Board is not set up to examine whether applicants are competent. The Board is obliged to follow and enforce the criteria as Parliament has prescribed in section 61(1)(b). That criteria is expressed as follows:
“(i).... holds prescribed qualifications and has had prescribed experience as a teacher; or
(ii).... has obtained qualifications and has had experience as a teacher adequate, in the opinion of the Board, for the purpose of registration.”
Mr Clothier admitted that he did not have the relevant year’s teaching experience.
Ms McLean quite cogently pointed out in reply to my question concerning “prescribed qualifications”:
“I think that is where the board exercises its discretion. He has obtained qualifications, not prescribed ones, and has had experience teaching which in the opinion of the board is not adequate for the purposes of registration. What is the board to do? It has parliament saying ‘These criteria you can be registered as of right if you fit them proper and you have paid the fee’. That’s considered to be competency by parliament.
The board has then a discretion when somebody comes to it with qualifications and experience which are not prescribed. It would be my submission that the board can’t ignore the standards that have been set by parliament, and that (ii) is clearly a question of balancing and weighing up the experience and qualifications of the teacher who is before it, and saying ‘Do they establish something that is equivalent to what parliament has said is competent?’. That’s that exercise.
Clearly, Mr Clothier doesn’t fit within that category, because he doesn’t have a year’s teaching experience, and he doesn’t have the qualifications.”
Ms McLean contended that there were no possible grounds to interfere with this decision.
Ms McLean replied to the suggestion of the use by the Board of the provisions of section 63. This section enables the Board to grant authority only in respect of a specified person or in respect of persons of a specified class. It does not give the Board the option to grant registration. As Ms McLean pointed out, Mr Clothier is a person who has not finished his requisite teaching qualification and that is the measure of competency. Consequently, there was no error on the part of the Board and no other material before the Board, which it could in any way used as a basis for the exercise of its discretion.
When one considers the legislature for the scheme for registration of teachers under Part 4 of the Act, Parliament has set out the detailed structure for the registration of teachers and the basis for registration. The Board comprised 13 members. One only has to look at section 55(1) to appreciate the substantive and breadth of qualified persons on that Board. When parliament has dealt with the basis of registration the primary aim and functions of the Board is to ensure that “only competent persons” undertake education positions. Section 61 provides as follows:
“Qualifications for registration
61.(1) A person who proves to the satisfaction of the Board -
(a)that he is a fit and proper person to be registered under this Part; and
(b) that -
(i)he holds prescribed qualifications and has had prescribed experience as a teacher; or
(ii)he has obtained qualifications and has had experience as a teacher adequate, in the opinion of the Board, for the purpose of registration,
shall upon payment of the prescribed fee, be registered as a teacher.
(2)The Board may provisionally register any applicant for registration notwithstanding that he does not have the qualifications and experience required for registration under subsection (1).
(3)Provisional registration shall, subject to this Part, be effective for such period not exceeding five years as may be determined by the Board.
(4)The Board may grant registration, or provisional registration, of a teacher subject to conditions -
(a)restricting the subjects that he may teach; or
(b)restricting the kind, level or grade of instruction that he may provide.”
For a person to be registered as a teacher they must hold the prescribed qualification, and, have experience, or, has obtained qualifications and has had experience as a teacher adequate in the opinion of the Board.
Parliament has provided two prerequisite areas for registration, namely, prescribed qualifications and prescribed experience.
There can be no argument that in the case of Mr Clothier he neither had the prescribed qualifications or the prescribed experience.
I accept that the Board has a discretion in section 61(2) as follows:
“The Board may provisionally register any applicant for registration notwithstanding that he does not have the qualifications and experience required for registration under subsection (1).”
Provisional registration may be restricted to subjects and/or level of teaching experience. This is an area where the Board is given some discretion.
The Board considered all the material before it at some length as appears from its detailed reasons in refusing to register the appellant. The Board’s decision was:
· “In considering Mr Clothier’s application pursuant to Section 61(1)(b)(i) that Mr Clothier does not have either prescribed qualifications or prescribed experience or the equivalent of either as required. He does not meet the requirements of this Section or the Regulations.
· In considering Mr Clothier’s application pursuant to Section 61(1)(b)(ii) the Board takes the view that the Board has a discretion which must be exercised whilst holding the minimum standard or ‘benchmark’ of Section 61(1)(b)(i) in mind. Again this section is about both qualifications and experience and involves an ‘equivalence’ exercise rather than an arbitrary or needs-based exercise. Mr Clothier does not have equivalent qualifications. He is below the ‘benchmark’ and again, he does not have requisite equivalent experience to consider which might make up for the defect in his current ‘less than’ qualifications.
· In considering Mr Clothier’s application pursuant to Section 61(2) the Board accepts that the wording of this section suggests a broader discretion than that to be exercised in Section 61(1)(b). However, again the Board, in the exercise of its discretion, must keep in mind that the function of the Board is to establish, maintain and operate a system of registration of teachers with a view to safeguarding the public interest in pre-school, primary and secondary education by ensuring that it is undertaken only by competent persons. (Section 60).
Section 61(1) sets the standards for that which Parliament considers the minimum requirement of “competence”. Graduate teachers who have the prescribed qualifications, but not the prescribed experience, fall within this category as may others where an equivalence process can be entered into - such as where a minor shortfall in long-held qualifications may be accompanied by lengthy experience as a teacher elsewhere. Such cases are those which the Board would describe as “exceptional”. In the exercise of the discretion, the Board must consider not only the prescribed minimum standard, but be confident a provisionally registered person will be a competent teacher with sufficient qualifications and experience. Although this section contains other safeguards for providing conditions on provisional registration Mr Clothier’s matter is not one where the Board would consider it appropriate to do so.”
I accept the submissions of Ms McLean that the Board approached its legal task in determining the application of Mr Clothier on a proper basis. I do not believe that it had nor could it exercise its discretion in favour of the appellant because he simply did not have the prescribed qualifications or experience. These are the areas focused on in the legislation. The Board addressed its powers pursuant to section 63. I do not believe the Board had any power to make any order under section 63. That was not available for consideration on this application. The only basis for registration by Mr Clothier was in 63(1). As I said, I believe that the Board came to a correct decision.
This matter concerns the use of a statutory discretion. The rights to in any way interfere with that process on appeal are limited, particularly as in this case one appreciates the wide ambit of experience of the Board members. If the exercise of discretion has been applied in a legal and regular manner it cannot in any way be questioned at an appellate level. The transcript shows the Board acted competently in its conduct of this matter. The manner and reasoning of its decision cannot be questioned.
Consequently the appeal is dismissed.
I make an order that the appellant pay the respondent’s costs to be taxed or agreed.

[2003] SADC 21

14 February 2003