Edwards v Teachers Registration Board of South Australia - [2013] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EDWARDS v TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA
[2013] SADC 18
Judgment of His Honour Judge Tilmouth
25 February 2013
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
The Teachers Registration Board granted the applicant who is deaf, a provisional licence to teach on conditions that before commencing employment at any school she make the principal or the school aware of her disability and that she ensure she has such assistance and equipment provided in order to adequately and safely carry out her duties.
Held 1: It is doubtful whether the 'fit and proper person' criteria for registration encompasses physical impairment or disability.
2: The Teachers Registration and Standards Act 2004 (SA) deals with the question of serious impairment by reason of illness or disability as that affects the eligibility for the grant of a licence in s 22.
3: Sections 21 and 22 of the Teachers Registration and Standards Act must be read together so that a disability becomes relevant to the grant of a licence when the applicant's capacity to teach is seriously impaired by an illness or disability and affects the applicant's behaviour or competence as a teacher.
4: The Board fell into error by failing to make a determination on this question.
5: Matter remitted to the Board for rehearing, on conditions.
Teachers Registration and Standards Act 2004 s 4, s 5, s 6, s , s 21, s 22, s 23(1), s 38(1), s 39, s 49(1); Equal Opportunity Act 1984 (SA) s 73; Hughes and Vale Pty Ltd v The State of New South Wales [No 2] (1955) 93 CLR 127; Sobey v Commercial & Private Agents Board (1979) 22 SASR 70; Education Act 1972-1981 (SA) s 61, 73; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Work Health and Safety Act 2012 (SA); Occupational Health Safety and Welfare Act 1986 s 19(2), s 28(b); District Court Act 1991 (SA) s 42E(3), 42F, 42G; Moore v The Registrar of the Medical Board (No 2) (2002) 219 LSJS 448, referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Craig v South Australia (1995) 184 CLR 163; Bond and Others v Australian Broadcasting Tribunal (1990) 170 CLR 321, applied.
Wright v Teachers Registration Board of South Australia (1983) 111 LSJS 177; Chiropractic and Osteopathy Board of SA v Forte [2012] SAHPT 2; SHA unreported decision of the Teacher's Registration Board of South Australia 18 September 2007, distinguished.

EDWARDS v TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA
[2013] SADC 18
Introduction

Leigh-Anne Edwards, a teacher, appeals against a decision of the Teachers Registration Board of South Australia (the Board) to impose conditions on her provisional registration as a teacher.
As she is profoundly deaf, the Board required that before commencing employment at any school she must ensure the school or Principal are made aware she is hearing impaired. It also required her to ensure that such assistance and equipment is provided as is necessary to enable her to adequately and safely carry out her duty of care to students. Those conditions were endorsed on her licence in short form ‘must inform employer of condition and undertaking relating to the grant of provisional registration’. On appeal she claims that such conditions were unjustified on the evidence, unauthorised by the Teachers Registration and Standards Act 2004 (the TR&S Act) and discriminatory within the meaning of the Equal Opportunity Act 1984 (SA).
The structure of the Act
The Board is established by s 5 of the TR&S Act. It is empowered by s 23(1) to grant an applicant registration as a teacher. It is entrusted under s 6 with the administration of the TR&S Act, amongst other things. The Board is further empowered by s 24(1) to impose discretionary conditions of registration, including ‘conditions requiring … supervision’: s 24(1)(b). It was not contended in this matter that the above conditions fell outside the ambit of s 24. The right of appeal to the Administrative and Disciplinary Division of this court is conferred by s 49(1) of the TR&S Act.
Eligibility for teacher registration
The criteria necessary for registration are those set out in s 22(1) & (2) of the TR&S Act, which provide as follows:
22—Application for registration
(1)     An application for registration as a teacher must—
(a)be made to the Teachers Registration Board in the manner and form prescribed by regulation or approved by the Board; and
(b)     be accompanied by the fee prescribed by regulation.
(2)     An applicant for registration must—
(a)consent to the conduct by the Teachers Registration Board of a criminal record check relating to the applicant; and
(b)if the Board so requires for the purpose of determining whether the applicant's capacity to teach is seriously impaired by an illness or disability affecting the applicant's behaviour or competence as a teacher—
(i)submit to a medical examination by a medical practitioner selected by the applicant from a panel of medical practitioners nominated by the Board; and
(ii)provide, or authorise the medical practitioner to provide, a report on the results of the medical examination to the Board; and
(c)provide the Board with any information required by the Board for the purposes of determining the application, verified, if the Board so requires, by statutory declaration.
…
In this particular case the Board expressly found Mrs Edwards satisfied the professional qualification requirements specified in s 21(1)(a) & (b)(1).[1] Indeed it specifically held:[2]
… there is no issue with the applicant’s honesty, knowledge or good character … She was an impressive witness whose passion to pursue her teaching career was communicated well through the interpreters.
A provisional registration was granted only because Mrs Edwards had not achieved the prescribed hours of teaching to allow her to gain unqualified registration.
[1] AB 7.5
[2] AB 14.3-.5
As a consequence of these conclusions the Board proceeded in its deliberations to deal with what it identified as the only ‘outstanding matter’ to consider, namely whether she was a ‘fit and proper person to be a registered teacher’ within the meaning of s 21(1)(c) of the TR&S Act.[3] It reasoned this question ‘concerns her fitness, rather than any matter of propriety’.[4] Ultimately the Board posed for itself the following issue for determination:[5]
The issue for the Board is therefore whether the applicant’s physical impairment of deafness will effect or inhibit her ‘ability’ to carry out all the duties and responsibilities expected of a teacher in a school or pre-school, including the ability to effectively discharge her duty of care towards students in her care.
[3]    AB 7.8
[4]    AB 7.9
[5]    AB 14.3-.4, emphasis supplied by the Board
The ‘fit and proper person’ criteria
These words are of long standing use, particularly in the context of licensing, vocational and professional occupational statutes. As the High Court noted long ago in Hughes and Vale Pty Ltd v The State of New South Wales [No 2]:[6]
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"—Coke.
The italicised reference to ‘ability’ in the quoted passage from the reasons of the Board stems from Hughes and Vale, often referred to as laying down the three characteristics of honesty, knowledge and ability.
[6] (1955) 93 CLR 127 at 157 per Dixon CJ, McTiernan and Webb JJ
In the High Court’s decision of Bond and Others v Australian Broadcasting Tribunal,[7] Mason CJ (Brennan and Deane JJ agreeing) said:
A licensee which is a fit and proper person in the context of s. 88(2)(b)(i) must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.
[7] (1990) 170 CLR 321 at 349
In this State the oft cited statement of Walters J in Sobey v Commercial & Private Agents Board also applies to understanding the ambit of the ‘fit and proper person’ criteria:[8]
… in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
The issue in Sobey was the applicant’s criminal record.
[8] (1979) 22 SASR 70 at 76 (footnote omitted)
The notion of ‘ability’ as coming within the ‘fit and proper person’ criteria, was discussed in Wright v Teachers Registration Board of South Australia,[9] with reference to the Education Act 1972-1981 (SA), in which the qualification for registration as a teacher also included the ‘fit and proper person’ criteria (s 61(1)(a)). Section 60(1) of the Education Act additionally provided:
60. (1) 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.
There is no direct equivalent to this provision in the TR&S Act. The first reference to competency is indirect, that contained in s 4:
[9] (1983) 111 LSJS 177 refer also to Clothier v Teachers Registration Board of South Australia [2003] SADC 21
Part 2—Object of Act
4—Object of Act
The object of this Act is to establish and maintain a teacher registration system and professional standards for teachers to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children.
Otherwise ss 22(a)(b), 24(1)(f), 28(1) and 28(5) refer to competence in the context of illness or disability. No section directly charges the Board with the responsibility over competency in the way that s 60(1) of the Education Act formerly did.
The issue in Wright was in fact one of competency, on which the applicant failed. Judge Wilson examined the expression ‘fit and proper person’ in the context of s 60(1) of the Education Act in this way:[10]
Before I turn to a consideration of the evidence that was adduced during the hearing of this appeal, I propose to deal with an important question of statutory interpretation which arises when considering the first of the primary facts to be proved, i.e. when considering the meaning of the expression “a fit and proper person”.
There is no definition of “a fit and proper person” in the Act. I realize that the meaning of that expression is not capable of being stated with any degree of precision (see Sobey v. Commercial Agents Board 22 S.A.S.R. 70 per Walters J. at p.76). That expression must, however, be interpreted in the light of the Act as a whole and paying particular heed to s.60, which deals inter alia with the functions of the Teachers Registration Board.
…
It is consistent with the intent and meaning of the Act to say that a person who is registered as a teacher is held out as a person who is authorised to teach and who is capable of performing teaching duties and accepting teaching responsibilities. Persons registered under the Act are intended to be persons who, by reason of their honesty, knowledge and ability and by reason of their good character can safely be entrusted with the responsibilities and duties pertaining to the work of a teacher. The public is entitled to expect a teacher to be of good character and to possess sufficient competence to enable him to discharge the functions of a teacher. As one of the objects of the legislation is to ensure that education is undertaken only by competent persons, the Board (or, in the event of an appeal, the Court) has a duty not to make a finding in favour of an applicant for registration (or an appellant) on the question of fitness and propriety unless he is worthy of such public confidence and can prove such matters of probity and competence.
…
In considering the question of the fitness and propriety of the appellant to be registered as a teacher within the meaning of s 61(1) of the Act and in the light of the authorities referred to, I am of the opinion that this Court is required to have regard to the appellant’s competence.
There is no definition of a “competent person” in the Act or the Regulations. I am not prepared to hold either that “a competent person” in the context of the teaching profession means excellent or that it means so capable that he never makes a mistake or leaves himself open to criticism. In my judgment, it means a person who, on a fair assessment of the requirements of the teaching profession, the factors involved, the circumstances subsisting, and the problems encountered is able reasonably to perform teaching duties and to accept teaching responsibilities.
[10] P 181-182
It can be seen from an examination of these cases that none of them touch upon physical incapacity as bearing upon or coming within the rubric of ‘fit and proper person’. Rather they relate to the character, honesty, probity or capacity to perform the requisite role, for reasons other than physical disability. As Toohey and Gaudron JJ explained in Australian Broadcasting Tribunal v Bond,[11] fitness and propriety in the sense of conduct, character or reputation is usually at stake:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[11] (1990) 170 CLR 321 at 380
Counsel were unable to identify any authority directly in point, although two cases were mentioned in the course of argument. The first was a decision of the Health Practitioners Tribunal of South Australia in Chiropractic and Osteopathy Board of SA v Forte.[12]In that case a blind chiropractor whilst treating a patient who convulsed and lost consciousness, took at least nine minutes before ringing an ambulance. He was charged with unprofessional conduct. Part of the penalty imposed was a condition that he no longer practise alone. That case was however a disciplinary proceeding, which attracts different considerations to applications for recognition in a particular calling. Likewise conditions imposed for disciplinary reasons on teachers are separately outlined by s 35(2)(c)(i) of the TR&S Act, once a proper cause for disciplinary action is first established.
[12] [2012] SAHPT 2
The second decision referred to by counsel was one by the Board itself in SHA.[13]This also related to a blind person. The Board subjected the applicant to practically similar conditions to those imposed here. That determination was not however subject to an appeal and the capacity of the Board to impose such conditions does not appear to have been questioned. In point of fact his advocate advised the Board he ‘would be accepting conditions’.[14] It follows that these two cases Forte and SHA, as well as Wright, are distinguishable.
[13] 18 September 2007
[14] At p 11
It was submitted by counsel for Mrs Edwards that the case law does not support the proposition that physical impairment or disability fall within the ambit ‘fit and proper person’ criteria. On that he might well be on safe ground in light of the above authorities, for it is doubtful they established that proposition. However for reasons to emerge, it is not necessary to finally resolve that question.
On behalf of the Board it was contended the power to impose conditions on account of physical incapacity arise from the objectives contained in s 4 of the TR&S Act and the requirement to have ‘the best interests of children as [the Board’s] primary consideration’: s 7. Both contentions must be rejected for reasons which follow.
TR&S Act to be read as a whole
It is to be noticed that s 22(2) of the TR&S Act specifically provides for circumstances of teacher impairment or disability pre-registration. It is trite law that statutes must be read and construed as a whole and a court construing statutory provisions, must strive to give meaning to every word: Project Blue Sky Inc v Australian Broadcasting Authority.[15] The application of these fundamental principles of statutory construction means that ss 21 and 22 of the TR&S Act are to be read together. It emerges therefrom it was Parliament’s intention for issues of impairment or disability at the stage of teacher registration, are to be determined in accordance with s 22(2) of the TS&R Act. It must follow from this analysis that ineligibility for registration, or for the purpose of imposing conditions of a grant, arise only once the Board forms the view that the ‘applicant’s capacity to teach is seriously impaired by an illness or disability affecting the applicant’s behaviour or competence as a teacher …’. That conclusion is reinforced by reference to the parallel provision in s 38(1) of the TR&S Act, which provides for questions of impairment of teaching capacity arising after registration, in exactly the same terms as s 22(2).
[15] (1998) 194 CLR 355 at [69] & [71]
Section 22(2) has a facultative role to play as well. It permits the Board of its own motion, to submit an applicant to compulsory medical examination for the purposes of investigating the ‘capacity to teach’. However it would not necessarily be the case that a finding of serious impairment could be made only if such an examination took place, providing of course adequate evidence was otherwise adduced by the parties sufficient to sustain such a finding. Furthermore, should an issue subsequently arise as to any teacher’s capacity to teach, a Principal or school becomes obliged to report that matter to the Board pursuant to s 39 of the TR&S Act, as a consequence of which a Board inquiry might follow into whether that capacity is ‘seriously impaired’ under s 38(1).
Reasons of the Board
The evidence of Mrs Edwards before the Board was given by means of AUSLAN sign language. She has been bilaterally deaf since the age of 17 months, a consequence of contracting measles.[16] She received a left cochlear implant at the Flinders Medical Centre on 20 February 2012. She studied at the Flinders University obtaining a Bachelor of Applied Science (Disability Studies) in 2008 and a Masters of Teaching (Special Education) in 2011.[17] Her worthy ambition is to work in classrooms teaching AUSLAN to children with disabilities.
[16] AB 67
[17] AB 53

The Board noted she had undertaken supervised teaching as part of her course work at Klemzig Primary School for the hearing impaired. She took responsibility for teaching under supervision there and at the Brighton Primary School of Special Education where some of her students were hearing impaired or had other disabilities.
It was submitted by counsel assisting the Board that employers ought to be alerted to Mrs Edwards’ disability to ensure appropriate support is provided to enable her to effectively teach and to ensure student interests were protected.[18] In his submission conditions of the license were required for that very purpose.
[18] AB 13.6
The Board observed that Mrs Edwards did not deny she required support in her role as a teacher. She had specifically mentioned an electronic white board, needing a mobile phone and using larger computer screens in some situations such as staff meetings, as well as the use of an interpreter. These it considered ‘may seem minimal in terms of cost and equipment but are still necessary for the applicant to practice her profession safely and to ensure her students are protected’.[19]
[19] AB 15.5
The Board proceeded to analyse the issues it had to determine as being whether Mrs Edwards’:[20]
… physical impairment of deafness will affect or inhibit her “ability” to carry out all the duties and responsibilities expected of a teacher in a school or pre-school, including the ability to effectively discharge her duty of care towards students in her care.
[20] AB 14.4, emphasis supplied by the Board
The following central findings were then made:[21]
… the existence of a serious impairment such as deafness and the evidence that the applicant does need some special assistance or adaptations to the workplace requires the Board to ensure that any prospective employer is aware of the applicant’s disability so that her needs can be considered and the needs of any students in her care assured in so far as that is possible.
The Board must ensure that the obligations arising under s 7 of the Act (the welfare and best interests of any student in the applicant’s care) and under s 4 of the said Act (the public interest in there being a register of teachers who are competent educators and able to attend to the duty of care owed by teachers towards students) are met.
After a full consideration of this matter under the said Act, the Board is of the view that the applicant is a “fit and proper” person to be admitted to the Register of Teachers on a provisional basis but with a condition made under s 24 of the said Act to ensure that the Applicant can practise “safely and adequately” as a teacher in the particular school context.
[21] AB 16.5-.9
It is clear that the primary focus of the Board’s enquiry was upon the ‘special assistance’ Mrs Edwards required in the performance of her teaching functions. There was however no determination of whether her ‘capacity to teach was seriously impaired by an illness or disability’ or how such a disability impacted upon her ‘behaviour or competence as a teacher’ as required by s 22(2)(b) of the TR&S Act. Indeed it is clear from the transcript that the Board never turned its mind to s 22. Nor did counsel assisting. Mrs Edwards herself was unrepresented. There was no evidence before the Board specifically addressing those questions. Ordinarily one might expect expert evidence of an occupational health and safety nature to be adduced in that respect.
The Board appears to have reasoned that simply because the need for assistance was apparent, her capacity to teach was necessarily seriously impaired. Although it was correct for the Board to bear steadily in mind, as it did, the purposes of the TR&S Act and the welfare of child students pursuant to s 7, it remained in order to properly exercise its jurisdiction, to embark upon and determine the s 22(2) inquiry. This was ‘an essential’ preliminary step to take, before the consequent question of registration and conditions of registration arose: Bond and Others v Australian Broadcasting Tribunal.[22]
[22] Above at 339 and 340
Otherwise obligations between employer and employee as to safety, supervision and equipment are governed by the Work Health and Safety Act 2012 (SA) and its predecessor the Occupational Health Safety and Welfare Act 1986 (SA). Section 19(2) of the former assigns the primary duty or care of an employer to ensure ‘the health and safety of other persons is not put at risk from work carried out’. Section 28(b) thereof requires Mrs Edwards as an employee, to ‘take reasonable care that … her acts or omissions do not adversely affect the health and safety of other persons’ in the workplace’.
Putting aside the question whether or not the ‘fit and proper person’ criteria encompasses physical impairment, it is inescapable that the Board asked itself the wrong question, based solely upon the need for supervision and equipment. The question for the Board to determine was whether the applicant’s ‘capacity to teach is seriously impaired by any illness or disability effecting [her] behaviour or competence as a teacher’. The Board made no finding of serious impairment in those terms are as to the effect thereof.
That being the case there was plainly an error of law. A Tribunal falls into error in the exercise of jurisdiction when it identifies a wrong issue or asks itself a wrong question: Craig v South Australia.[23] There is therefore ‘cogent reason’ to interfere: s 42E(3) District Court Act 1991 (SA).
[23] (1995) 184 CLR 163
The fact of the matter is in any case that the hearing impairment would of necessity come to the notice of potential employers in the application and interview process. There was evidence before the Board to that very effect.[24] Hence the condition requiring Mrs Edwards to notify a school or Principal of her hearing impairment is unnecessary and serves no utility. Such a condition also has the capacity to unnecessarily stigmatise disabled persons. Moreover the following condition that she ensure ‘all necessary assistance and equipment has been and will be provided’ is beyond her capacity or ability to control. It is the employers’ responsibility to deal with those aspects of her employment, once having resolved to employ her.
[24] AB 11.9 – 12.1
Equal Opportunity Act
In the course of its determination the Board correctly noted that it was unlawful for it ‘as a Qualifying Authority’ to:[25]
… confer an authorisation … that is needed for … the practice of a profession … to discriminate against a person (such as the applicant) on the ground of impairment …
contrary to s 73 of the Equal Opportunity Act. This section provides:
[25] AB 15.5-16.2
73—Discrimination by qualifying bodies
(1) It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of disability—
(a)by refusing or failing to confer or renew that authorisation or qualification; or
(b)in the terms or conditions on which it confers the authorisation or qualification; or
(c)by withdrawing the authorisation or qualification, or varying the terms or conditions on which it is held.
(2) This section does not apply to discrimination against a person on the ground of disability where, in consequence of that disability, the person is not, or would not be, able to practise the profession, or carry on or engage in the trade or occupation, adequately or safely.
Having turned its mind to this provision, the Board formed the view that the proposed conditions complied with s 73(2), since they were imposed to ‘ensure that the applicant can practise “safely and adequately” as a teacher in a particular school context’.[26] It is apparent therefore that the Board turned its mind to the application of s 73 of the Equal Opportunity Act and acknowledged the discriminatory effect of the conditions. However it held that the exemption contained within s 73(2) thereof applied, on the same view that ‘the existence of a serious impairment such as deafness and the evidence that the applicant does need some special assistance or adaptations to the work place’, without having first made the necessary antecedent findings that she was seriously impaired or that her capacity to teach affected her ‘behaviour or competence as a teacher’: s 22(2)(b) TR&S Act.
[26] AB 16.9
Conclusion and Orders
Both parties accepted in the circumstances of this case that if error were established, the appropriate course was to remit: s 42F(c) District Court Act. There will accordingly be an order allowing the appeal and remitting the matter for reconsideration by the Board in accordance with these reasons. In light of the above conclusions and since the court has formed the view that the endorsement on the licence of the fact of disability is unnecessary, there will be a direction under s 42F(3) of the District Court Act that the rehearing be confined to a determination as to what other conditions are necessary, if any.
So far as costs is concerned, s 42G(2) of the District Court Act provides ‘no order for costs is to be made unless the court considers such an order to be necessary in the interests of justice’. Indeed it has been suggested a favourable cost order is only to be made when some ‘unusual or out of the ordinary feature of the contest determines that one party in the interests of justice is entitled to an order for costs’: Moore v The Registrar of the Medical Board (No 2).[27]Whether that be so or not, whilst it is not difficult to have sympathy for Mrs Edwards because she has incurred the burden of legal costs of this appeal and potentially for a rehearing, the Board was confronted with a difficult task in largely unchartered waters, without the benefit of a contradictory position to that put forward by counsel assisting. In those circumstances the usual order that there be no costs of the appeal is made in this case, albeit somewhat reluctantly.
[27] (2002) 219 LSJS 448 at 452