Clothier v The Teachers' Registration Board of South Australia
[2004] SASC 216
•28 July 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CLOTHIER v THE TEACHERS' REGISTRATION BOARD OF SOUTH AUSTRALIA
Judgment of The Full Court
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
28 July 2004
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE
Appeal from an order of a District Court judge dismissing an appeal against the refusal of the Teachers' Registration Board of South Australia to register the appellant as a teacher - discretionary powers of the Teachers' Registration Board to register teachers under ss 61 and 63 of the Education Act 1972 - scope and purpose of the discretion - whether the Board correctly exercised the discretion - appeal dismissed.
Education Act 1972 ss 55, 60, 61 and 63; Education (Teachers Registration) Regulations 1996 Reg 6, referred to.
The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] 144 CLR 13; O'Sullivan v Farrer (1989) 168 CLR 210, applied.
CLOTHIER v THE TEACHERS' REGISTRATION BOARD OF SOUTH AUSTRALIA
[2004] SASC 216
Full Court: Mullighan, Nyland and Anderson JJ
MULLIGHAN J: I agree that the appeal should be dismissed for the reasons given by Nyland J.
NYLAND J: This is an appeal from an order of a District Court judge sitting in the Administrative and Disciplinary division of the District Court of South Australia, dismissing an appeal against the refusal of the Teachers’ Registration Board of South Australia (the respondent to this appeal but hereinafter referred to as “the Board”), to register the appellant as a teacher pursuant to the provisions of the Education Act 1972.
Background:
The appellant lodged an application for registration as a teacher with the Board on 3 August 2000. He had already obtained an undergraduate degree in Applied Science (Chemistry) from the University of South Australia in 1994 and a Graduate Certificate in Information Technology from the Northern Territory University in 1998. At the time of lodging his application for registration he was studying for a Graduate Diploma in Education at the University of Adelaide. He indicated his intention to complete that course in December 2000.
The appellant failed two subjects, namely, Curriculum and Methodology for the Adult Learner and Australian Educational Issues, as a result of which he did not receive his Graduate Diploma in Education. The appellant was offered supplementaries in both subjects which were to be completed by 5 October 2001, but he did not complete them at that time, or at any time since. Accordingly, no Certificate of Registration was issued.
Despite his lack of registration, Mr Clothier applied for, and asserts that he was offered, a position at the Roxby Downs Area School teaching chemistry and information technology - areas in which he felt he had relevant qualifications. Following a change of principal at the school, however, the offer was withdrawn due to his non-registration.
On 19 June 2002, the Board wrote to the appellant and said inter alia:
“I refer to your letter dated 7 June 2002 concerning your application for registration as a teacher. I note that you applied for registration on 3 August 2000. At that time, your Graduate Certificate in Education had not been awarded, as you were not due to finish the course until the end of that academic year.
Section 61(1)(b) of the Education Act requires that you hold prescribed qualifications and have had prescribed experience as a teacher, or that you have obtained qualifications and have had experience as a teacher adequate in the opinion of the Board for the purposes of registration. Regulation 6 of the Education (Teachers Registration) Regulations sets out the requirements for Section 61(b)(i) of the Education Act, and refers to approved qualifications. Your course at the University of Adelaide, the Graduate Diploma in Education, is such an approved course.
The usual process of the Board is that the applicant advises of completion of the award with evidence. The University further assists the student by notifying the Board once the student has been awarded the qualification. Provided all other requirements have been met, the registration process can be completed. As the Board did not receive evidence from you and/or the University, of completion of the award, your application for registration has not progressed.
It appears, from your letter, that you are now seeking to have the question of your registration determined by the Board, and I have therefore referred the matter to the Board for determination as to whether or not you should be registered.”
On 23 August 2002, the matter came on for hearing before the Board. The appellant did not dispute that he had still not completed his Graduate Diploma in Education but submitted that the Board should exercise its discretion in his favour and register him as teacher pursuant to s 61 of the Education Act 1972.
In the course of that hearing, the appellant referred to the critical shortage of teachers in his fields in country areas. He maintained that the Methodology course could be completed by internet externally from the University of Adelaide and the Australian Education Issues subject could be completed within a period of about two or three weeks at the end of the year.
Discussion at the hearing related to the Board’s discretion under the Education Act to admit applicants to the Register of Teachers, despite the fact that their qualifications for one reason or another fell short of those prescribed by the Act. The appellant submitted to the Board that it had a broad and unconstrained discretion, and that notwithstanding his incomplete qualifications the Board should exercise that discretion in his favour and admit him to the Register of Teachers. The Board accepted that it had a discretion, but considered that the appellant had failed to meet the requirements of the Act and therefore declined to exercise its discretion in his favour, recommending instead that he complete his qualifications.
The appellant thereafter appealed to the District Court. That appeal was dismissed by the District Court judge. The appellant then appealed to this Court seeking an order that the Board’s decision be quashed and an order that the matter be remitted to the Board for further hearing with a direction that the Board exercise its discretion in his favour.
Grounds of appeal:
The appellant’s grounds of appeal are that the District Court judge erred in law in that he -
“(a)Failed to find that the Board had failed to exercise its discretion pursuant to s 61(2) of the Education Act 1972 to admit the appellant to the South Australian Register of Teachers by way of provisional registration.
(b) Failed to find that the Board had failed to exercise its discretion pursuant to s 63 of the Act to grant to the appellant an authority to teach on whatever conditions it thought fit.
(c)Failed to direct the Board that it ought to exercise its discretion pursuant to s 63 in favour of the appellant in his circumstances.
(d)Accepted the contention of the respondent that the discretion and function of the Board pursuant to both s 61(2) and s 63 is limited to determining equivalence of qualifications and experience to those prescribed by s 61(1) of the Act in relation to an applicant for registration.”
The legislation:
The scheme for the registration of teachers is set out in Part 4 of the Education Act 1972 (the Act), which details the constitution and function of the Board, and the basis of, and requirement for, registration in significant detail. The Board is comprised of appointees nominated by a broad range of educational institutions as set out in s 55(1). Its function is set out in s 60(1) in the following terms:
“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.”
The “competency” required by Parliament is defined in terms of prescribed qualification and prescribed experience. The Board’s authority to register suitably ‘competent’ persons is to be found in s 61 of the Act. Section 61 provides that:
“(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 he may teach; or
(b) restricting the kind, level or grade of instruction that he may provide.”
The “prescribed qualifications” and “prescribed experience” required by s 61(1)(b) are set out in Regulation 6 of the Education (Teachers Registration) Regulations 1996 which provides that:
“(1)For the purposes of section 61(1)(b)(i) of the Act, 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 three years’ full-time duration or part-time equivalent duration; and
(ii)includes a practical student teaching component; or
(b) -
(i)an approved non-teacher education degree, diploma or other 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 postgraduate 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.”
The qualifications held by the appellant, once completed, would fall within Regulation 6(b), that is, he would hold an “approved non-teacher education degree” in the form of a Bachelor of Science degree, plus a Graduate Diploma in Education which is an “approved postgraduate degree”. There is no dispute between the parties that, were the appellant to complete his Graduate Diploma in Education, he would satisfy the qualifications required by Regulation 6(1).
Regulation 6(2) sets out the experience required by s 61(1) and provides that:
“For the purposes of section 61(1)(b)(i) of the Act, the experience required for registration as a teacher is one year’s full-time (or part-time equivalent of 200 days’) satisfactory service as a teacher in a Government or registered non-Government school.”
At the time of graduation, a new graduate is unable to meet the requirements of s 61(1)(b)(i) as to teaching experience. He/she is, however, pursuant to this section, able to apply to the Board for provisional registration under s 61(2), in order to gain the practical teaching experience required by Regulation 6(2). Having completed one year of service and having fully satisfied the prescribed qualifications and experience, the graduate can then apply to the Board for full registration under s 61(1). The appellant does not, however, come within the provisions of s 61(1)(b)(i) due to his lack of experience, and he did not seek to contend otherwise before this court.
In summary, aside a person fulfilling both the prescribed qualifications and prescribed experience under s 61(1)(b)(i), the Board has a discretion to grant registration in two ways:
(1)Under s 61(1)(b)(ii), to fit and proper persons who have obtained qualifications and had experience which the Board considers adequate.
(2)Under s 61(2), provisional registration can be granted even if the applicant does not have the qualifications and experience required for registration under s 61(1).
Additionally, ‘conditional’ provisional registration can be granted under s 61(4).
The appellant sought to persuade the Court that the discretions available to the Board under ss 61(2) and (4) were exercisable in his favour, and that the Board had misdirected itself in not so finding .
The exercise of the discretion:
The discretion afforded the Board under the legislation is expressed without conditions, and is thus unfettered. The High Court in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd[1] (at 50) stated that:
“The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute.”
[1] [1979] 144 CLR 13
More recently, in O’Sullivan v Farrer[2] (at 216), the Court stated that:
“Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.”
[2] (1989) 168 CLR 210
As there is nothing in the legislation indicating specifically what the Board must or must not take into account in exercising the discretion, it is necessary to look to the purpose and scope of the Act in order to find the limits of the discretion. In carrying out this exercise, the Board looked to s 60 of the Act, which requires it to safeguard the public interest by ensuring that teaching is undertaken only by “competent” persons.
The appellant argued before the Board that the discretion should be interpreted broadly, and regard given to pragmatic considerations such as supply and demand, which he described as “forces beyond merely the benchmarks”. He submitted that the shortage of teachers in his fields was a matter of public record, and that the rigid application of requirements and policies regarding registration may be disadvantaging students “on the ground”. The Board found, however, that “to follow his argument to its logical conclusion would mean fluctuating standards and in the Boards view this was not what was in the mind of Parliament in enacting Part IV of the Education Act”.
The Board, in its reasons for decision, took the view that s 61(1) of the Education Act set out the minimum requirements which Parliament considered necessary to maintain the necessary level of “competence” of teachers in this State. It found that the requirements of qualification and experience laid down in s 61(1)(b)(i) were the minimum standard or “benchmark” against which its discretion to register teachers must be exercised, and that the benchmark or minimum standard required by legislation “is not to be deviated from lightly, except in determining what may be “equivalent” as permitted by the Regulations.” As already noted, the appellant did not hold the prescribed qualifications or have the prescribed experience in accordance with Regulation 6 of the Education (Teachers Registration) Regulations 1996 for registration under s 61(1)(b)(i), and he did not attempt to submit otherwise on this appeal.
Section 61(1)(b)(ii):
Although this section was not the subject of complaint in this appeal, it is useful to examine the discretion contained therein in order to appreciate the Board’s approach to the legislation as a whole. In its reasons for decision, the Board stated:
“In considering [the appellant’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 arbitrary or needs-based exercise.”
The Board agreed with the submission put by counsel assisting that s 61(1)(b)(ii) is not a method by which those who have not been able to satisfy s 61(1)(b)(i) may be admitted, but rather a device by which the Board may admit those who hold the “equivalent” qualifications or experience - for example, those who have obtained overseas qualifications which may be considered “equivalent” although they do not fulfil the “prescribed” requirements.
The District Court judge accepted the submissions that this section involved balancing and weighing up the experience and qualifications of the teacher involved, and asking whether they established something that was equivalent to what Parliament has defined as “competent”. On appeal, Mr Walters QC, who appeared for the respondent, also submitted that the discretion contained in s 61(1)(b)(ii), exercised in the context of the Act and Regulations, must involve assessing whether the qualifications and experience held by an applicant are comparable to the standards set by the legislation.
Section 61(2):
The appellant’s main complaint on appeal was that the District Court judge failed to find that the Board’s discretion under s 61(2) was different in nature and scope from that under s 61(1)(b)(ii). It was submitted on behalf of the appellant that the District Court judge accepted that the Board had a discretion vested in it by s 61(2), but had erred in upholding the decision of the Board, which confined the operation of this discretion to a function whereby it entered into an equivalence process. In its reasons for decision, the Board accepted that the wording of s 61(2) suggested a broader discretion than that contained in s 61(1)(b)(i), but found that it was still required, in exercising its discretion, to keep in mind its duty to comply with the standards set by Parliament with relation to competence. It stated:
“Section 61(1) sets the standards for that which Parliament considers the minimum requirement of ‘competence’. Graduate teachers who have the prescribed qualification, 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 [the appellant’s] matter is not one where the Board would consider it appropriate to do so.”
Mr Colton, who appeared for the appellant on the hearing of this appeal, submitted that upon its ordinary interpretation, s 61(2) was available for the Board to consider the situation of the appellant, despite his deficiency in qualifications and experience. He submitted that the effect of what the Board had done, which was followed by the District Court judge, was to confine the operation of s 61(2) to a function whereby there was no exercise of the discretion permitted in any way beyond the usual practice of applying the sub-section to the situation of a new graduate. Mr Colton submitted that if Parliament intended to confine the operation of the sub-section in that way, it would have said in specific terms that a new graduate, or a person in the position of a new graduate, would be required to have provisional registration in order to obtain the one year’s experience necessary for full registration.
Mr Walter argued, however, that as the discretion has to be interpreted in the context of the legislation, the minimum standard or benchmark of s 61(1) had to be borne in mind, and that whilst the discretion allowed the Board to deviate from that standard, to exercise the discretion properly it had to keep in mind what that standard was. If an applicant for registration failed to meet the requirements of s 61(1) but could point to exceptional or extraneous factors which would justify the exercise of the discretion in his/her favour, keeping in mind the benchmark, then the Board could grant registration. Mr Walter submitted that the appellant had failed to reached the benchmark, and had not put anything before the Court that would justify the exercise of the discretion in his favour. Accordingly the Board directed itself correctly in failing to deviate from its policy of equivalence.
Mr Colton further suggested that the appellant had qualifications beyond his educational qualifications that the Board could and should have considered, namely, his Degree in Applied Science and a Graduate Certificate in Information Technology. In this regard, however, it should be noted that a non-teacher education degree (in this case the Science degree) is a necessary prescribed qualification, in addition to a one-year post-graduate teacher education degree, in order to fulfil the requirements under s 61(1)(b)(i). The only “exceptional” qualification that the appellant had, therefore, would appear to be his Graduate Certificate. Furthermore, despite having failed the two remaining subjects of his teacher education degree in 2000, and having been given an opportunity for supplementary exams in 2001, the appellant had still failed to the date hereof to complete those requirements, some three years on.
The District Court judge said that he accepted the submissions of counsel assisting the Board that the Board had approached its legal task in determining the application of the appellant on a proper basis. He said he did not believe that “it had, nor could it, exercise in favour of the appellant because he simply did not have the prescribed qualifications or experience”.
This statement, however, is at odds with the use of the discretion outlined above. Were the Board to direct itself in this way, it would nullify the discretion with which Parliament has invested it in ss 61(1) and (2). I do not believe, however, that the Board fell into error by directing itself in those terms. As far as s 61(2) was concerned, the Board found that in exercise of its discretion it had to consider the prescribed minimum standard, as set out in s 61(1), and had to be confident that a provisionally registered person would be a competent teacher with sufficient qualifications and experience. It found that applicants likely to fall within this category might include graduate teachers, but also others on whose behalf an equivalence process might be entered into, such as those possessing a minor shortfall in long-held qualifications, but lengthy experience as a teacher elsewhere. The Board described these cases as “exceptional”.
In my view, in assessing the appellant’s application for registration, the Board recognised that it had a discretion, but keeping in mind the benchmark set by Parliament, found that he had not reached the minimum standard required, and that there were no factors individual to him which could be described as “exceptional” which would justify the exercise of the discretion in his favour.
Section 63:
The second and third grounds of the appeal complain that the Board failed to exercise its discretion pursuant to s 63 to grant the appellant an authority to teach. Section 63 provides relevantly that:
“(1)No person shall, without the authority in writing of the Board –
(a) accept or undertake employment in a Government or registered non-Government School –
(i)as a teacher; or
(ii)as administrator of the school or as an administrator or supervisor of any course of instruction in pre-school, primary or secondary education provided at the school;
unless that person is registered as a teacher.
Penalty: One hundred dollars.
(2)The Board may grant an authority under subsection (1):
(a) in respect of any specified person; or
(b) in respect of persons of a specified class; or
(c) in respect of any person holding office in any specified kindergartens or schools.”
In relation to this section, the Board acknowledged that the appellant’s concerns relating to the welfare of students affected by teacher shortages in country areas or particular subjects was not fanciful, and was a matter which required consideration from time to time. The Board maintained, however, that any decision to grant an “authority” to teach was made “with the legislative minimum standard or ‘benchmark’ in mind and only in the context of temporary written authorisations pursuant to s 63(1) to which a set of guidelines applies”.
The Board pointed out that a set of guidelines had been developed in the context of such authorisations, and that matters relevant to the decision to grant an authority would include a written application from an employer requesting an authority, evidence that no registered teacher was available for the position, and certification that the particular person had appropriate abilities and was fit to be teaching at the school in question. The appellant did not address any of these criteria at the hearing before the Board, and had not made an application to the Board pursuant to s 63. The District Court judge found, however, that the Board had addressed its powers pursuant to that section and did not in fact have the power to make any order under it.
The appellant’s principal complaint on appeal related to the failure of the Board to grant him provisional registration under s 61(2) and little was said with respect to s 63. It was, however, submitted on his behalf that the Board could and should have used its power under s 63 to grant him an “exemption” to teach certain subjects. He argued that the Board could have prescribed conditions confining his teaching to areas which it was satisfied were within his professional competence and thus have safely granted him an authority to teach, whilst having regard to the standards of competency required.
Mr Walter submitted that s 63, as was the case with s 61(2), had to be interpreted in the context of the policy of the Statute and the guidelines for competency which have already been discussed. Mr Walter further submitted that s 63 did not contemplate registration but rather authorisation in exceptional circumstances, bearing in mind the minimum standards of competency required by Parliament, and that consequently it was not available to the appellant, who was seeking to have the question of his registration determined by the Board. Mr Walter submitted, in any event, that the authority to teach under s 63 was specific to a particular school or organisation, and was not an authority to teach generally, as that was provided for by provisional registration.
In the course of argument, reference was made to the applicant’s employment at Roxby Downs. Counsel for the appellant acknowledged that the position with regards to his application to Roxby Downs school was “somewhat clouded” and that staff at the school “would normally have put in front of him the application form for exemption under s 63 if they had wanted to appoint him to the position”. It was undisputed that the original offer of employment had been withdrawn following a change of principal at the school. The appellant was therefore not in possession of any offer of employment which could have provided the Board with grounds to consider granting him an authority to teach under s 63.
In my opinion, the District Court judge correctly found that the Board did not have the power to make any order pursuant to s 63 as the appellant had not made an application pursuant to that section.
The Teachers’ Registration Board is a specialist tribunal, made up of members with a wide range of experience, and exercising the powers afforded it. As the District Court judge said in his reasons for decision (at para 21):
“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.”
In my opinion, the appeal should be dismissed.
ANDERSON J: I agree with the reasons given by Nyland J and I agree that the appeal should be dismissed.
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