Kaley v ACT Teacher Quality Institute (Occupational Discipline) - [2024] ACAT 45

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KALEY v ACT TEACHER QUALITY INSTITUTE (Occupational Discipline) [2024] ACAT 45

OR 4/2023
Catchwords: OCCUPATIONAL REGULATION – Review of decision to refuse full registration and grant provisional registration under the ACT Teacher Quality Institute Act 2010 – effect of prior tribunal proceedings – effect of failure to provide notice of proposed decision – power under section 68(3) of the ACT Civil and Administrative Tribunal Act 2008 to substitute decision under review or remit the matter for reconsideration – adoption of policy by decision-maker – influence of policy on Tribunal – effect of legislative amendment on interpretation of current provisions – effect of legislative amendment on decision under review – power of Tribunal to stay effect of decision under review
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 53, 68
ACT Teacher Quality Institute Amendment Act 2019 (repealed) cl 6
ACT Teacher Quality Institute Amendment Act 2023 (repealed) cl 4, 5, 10, 11
ACT Teacher Quality Institute Act 2010 ss 3, 9, 13, 15, 18E (2), 27, 28, 30(2), 30(3), 32, 33(1)(a), 33(1)(b), 33(1)(g), 36, 37, 48, 51, 76, 77, 90, 97, 159, sch 1
ACT Teacher Quality Institute Act 2010 (R21) s 33
Fair Work Act 2009 (Cth) s 61
Legislation Act 2001 s 84

Subordinate

Legislation cited: ACT Teacher Quality Institute Amendment Regulation 2013 (No 1) (repealed)
ACT Teacher Quality Institute Regulation 2010 ss 3, 7, 8(1), 8(2), 9, 10A, 11(2), 12, 12A, 13, 15
Education Services (Teachers) Award 2020 (Cth) s 14

Cases cited:Abbey v Mack [2010] ACTSC 140
Ambrose v Commonwealth of Australia [2021] FCAFC 88
Australian Securities and Investments Commission v Donald [2003] FCAFC 318
Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority & Ors [2015] ACAT 67
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Crook v ACT Firearms Registrar [2016] ACAT 62
Din v Minister for Immigration and Multicultural Affairs [1997] FCA 780
Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Esber v Commonwealth [1992] HCA 20
Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929
Lau v Registrar, Domestic Animals ACT 2000 [2018] ACAT 119
MelbourneCity Council v Telstra [2020] FCAFC 200
Minister for Home Affairs v G [2019] FCAFC 79
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
Nathanson v Minister for Home Affairs [2022] HCA 26
Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35
Nikac v Minister of Immigration, Local Government and Ethnic Affairs [1988] FCA 400
Peacock v Repatriation Commission [2007] FCAFC 156
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Sladic & Anor v Act Planning and Land Authority; Charter Hall Retail Reit & Ors v Act Planning and Land Authority [2018] ACAT 38
Twist v Randwick Municipal Council [1976] HCA 58

List of

Texts/Papers cited: Groves, Weeks, and Aronson, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2022)

Tribunal: Senior Member D Stewart

Date of Orders:  28 June 2024
Date of Reasons for Decision:           28 June 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 4/2023
BETWEEN:
NARENDRA KALEY
Applicant

AND:

ACT TEACHER QUALITY INSTITUTE
Respondent

TRIBUNAL:Senior Member D Stewart
DATE:28 June 2024

ORDER

The Tribunal orders that:

The decision made by the respondent, in relation to the applicant’s application for full registration made on 6 March 2023 (Registration Application), is set aside and remitted for reconsideration.

The Tribunal directs that:

Within 28 days of the date of this order, the applicant is to provide to the respondent any further evidence that the applicant considers is relevant to the respondent’s proper reconsideration of the Registration Application.
Within 28 days of expiry of the period in order 2. above, the respondent is to reconsider the applicant’s Registration Application and give the applicant written notice that either:
(a)the respondent is satisfied on reasonable grounds that the applicant is eligible for full registration pursuant to the ACT Teachers Quality Institute Act 2010 (ATQI Act) section 32(1) and that he is fully registered as a teacher pursuant to ATQI Act section 36(1)(a); or
(b)pursuant to ATQI Act section 30(3), the respondent requires the applicant to give the respondent additional information that it reasonably needs to decide the Registration Application, which the applicant must give within 28 days after the day the request is made; or
(c)pursuant to ATQI Act section 36(6)(a), the respondent proposes to refuse the applicant’s Registration Application or decide the applicant's Registration Application under ATQI Act section 36(2) and:
(i)provide the applicant with written reasons for the proposed refusal or decision pursuant to ATQI Act section 36(6)(b)(i); and
(ii)notify the applicant that he may make written comments on the proposed refusal or decision to the respondent before the end of 28 days after the day the notice is given to him pursuant to ATQI Act section 36(6)(b)(ii) (Notice of Proposed Decision).
If the respondent gives the applicant a Notice of Proposed Decision and receives written comments on the proposed refusal or decision from the applicant before expiry of the stated period, the respondent must:
(a)consider the applicant’s comments pursuant to ATQI Act section 36(6)(c); and
(b)within 28 days of receiving written comments from the applicant under direction 3(c)(ii) above, either refuse or decide the registration application.
The respondent is to renew the applicant's provisional registration if the term of the provisional registration ends before reconsideration of the Registration Application is completed.
………………………………..
Senior Member D Stewart

REASONS FOR DECISION

Introduction

The applicant, Mr Kaley, is a teacher. Teaching in the ACT generally requires registration under the ACT Teacher Quality Institute Act 2010 (ATQI Act). The applicant has provisional registration under that Act. On 6 March 2023, the applicant applied for full registration. That application was refused by the decision-maker, a delegate of the ACT Teacher Quality Institute (ATQI), and the applicant seeks review of that refusal.
The respondent concedes that the decision to refuse the applicant’s application for full registration was done in breach of a requirement under the ATQI Act, and requests that the decision be remitted to the ATQI to be reassessed. The applicant, however, contends that there is no need for any reassessment as he is eligible for full registration, and asks the Tribunal to make orders to that effect.
As I discuss below, I agree with the respondent’s position that there has been a breach of a requirement under the ATQI Act in the refusal to grant full registration; that the applicant has not demonstrated that he is eligible for full registration; and that the appropriate order in those circumstances is to remit the matter back to the ATQI for reconsideration. It is appropriate that I also make orders directing that reconsideration.
A further issue that arose in the initial hearing into this matter was the applicant’s eligibility for provisional registration. Subsequent amendment of the ATQI Act has changed those eligibility requirements. Given the relevance of the applicant’s registration and capacity to teach while the reconsideration of his application for full registration proceeds, I also discuss the effect of these legislative changes below.

Legislative background

Full registration

It is, with some exceptions, an offence under section 28 of the ATQI Act to teach in a school in the ACT without being an approved teacher.[1] An approved teacher is either registered, or holds a permit issued under that Act.[2] ‘Registration’ relevantly refers to either full or provisional registration.[3]
[1] See ATQI Act s 27
[2] ATQI Act s 9 – A permit can be issued where a person does not hold the relevant teaching qualifications for provisional registration but has been offered a teaching position in a school where a suitable registered teacher is not available
[3] See ATQI Act s 3 (definition of ‘registration’)
Under section 30(2), an application for full registration must include the details prescribed by regulation and documents or information needed to satisfy the eligibility requirements under, relevantly, section 32. The ATQI may, in writing, require the applicant to give additional information it reasonably needs to decide the application. The applicant must provide be provided within 28 days, after which the application can be refused, or an application made for additional time to provide the information.[4]
[4] ATQI Act s 30(3)
Section 32 sets out the eligibility criteria which must be met for a person to be granted full registration:
32 Eligibility for full registration
(1)A person is eligible for full registration as a teacher if the institute is satisfied on reasonable grounds that––
(a)the person—
(i)holds provisional registration; or
(ii)is an early childhood teacher; or
(iii)previously held full registration; and
(b)in the 5-year period before the day the application is made the person taught for the period prescribed by regulation; and
(c)if the person is an early childhood teacher or previously held full registration—the person—
(i)has a teaching qualification prescribed by regulation for section 33 (1) (a); and
(ii)meets the oral and written English language communication requirements prescribed by regulation for section 33 (1) (b); and
(d)the person holds working with vulnerable people registration; and
(e)the person—
(i)is an Australian citizen; or
(ii)is a New Zealand citizen; or
(iii)holds a visa allowing them to engage in work in the ACT for the duration of the visa under the Migration Act 1958 (Cwlth); and
Example
a permanent resident of Australia
(f)if the person has provisional registration or a permit to teach that is subject to 1 or more conditions––the person has fulfilled each condition; and
(g)the person meets any requirements prescribed by regulation for full registration; and
Examples
1compliance with an approved code of practice
2compliance with any nationally recognised standard of professional practice
(h)the person’s registration or permit to teach has not been cancelled in the ACT or by a corresponding registering authority other than in accordance with a request by the person.
(2)However, a person who would be eligible under subsection (1) but for the cancellation of the person’s registration or permit to teach, is eligible to be fully registered as a teacher if the institute is satisfied on reasonable grounds, after considering the reason for the cancellation and anything relevant that the person has done since the cancellation, that the person should be fully registered.
(3)The institute may make guidelines about the registration of people under subsection (2).
(4)A guideline is a notifiable instrument.
It is accepted by the parties that the applicant had generally met these criteria other than the requirement under section 32(1)(g); that the person meets any requirements prescribed by regulation for full registration.
Section 97 of the ATQI Act provides for the ATQI to determine standards for that Act. Under section 97(2), a determination of a standard is a notifiable instrument, meaning that it must be notified under the Legislation Act 2001.[5]
[5] The current version of the ATQI Act also states, in section 97(3), that a notifiable instrument may apply, adopt, or incorporate a law or instrument as in force from time to time. In my view, it is clear that the reference to “notifiable instrument” in section 97(3) is intended to refer to determinations of standards under section 97(1). I also do not consider the insertion of this express power to incorporate an instrument as in force from time to time as affecting the legal effect of the Standards Determination as described below.
The ACT Teacher Quality Institute Regulation 2010 (ATQI Regulations) section 9 prescribes a period of 180 days teaching in Australia or New Zealand, or its equivalent,for the purposes of section 32(1)(b) of the ATQI Act.. The ATQI may be satisfied about the period of teaching if it receives a certificate from the principal of a school where the considered person has been teaching, or anyone else the ATQI is satisfied can satisfactorily assess the matter.[6] The contextual effect of this provision is discussed further below.
[6] ATQI Regulations s 9(4).
Section 10A of the ATQI Regulations states:
10A Eligibility for full registration––other requirements––Act, s 32 (1) (g)
The prescribed requirements are demonstrated abilities, knowledge and skills required by a standard for full registration.
‘Standard’ is defined in the ATQI Regulations’ dictionary[7] to mean “a standard determined under the [ATQI Act], section 97 (Determination of standards)”.
[7] ATQI Regulations s 3 (definition of ‘standard’)
There is only one notifiable instrument made under the ATQI Act which is relevant to the determination of a standard under section 97: the ACT Teacher Quality Institute (Australian Professional Standards for Teachers) Determination 2013 (No 1) (Standards Determination).
The Standards Determination relevantly states:
3        Determination
The institute determines the attached Australian Professional Standards for Teachers as standards for the Act.
4        Standards for full registration
For the ACT Teacher Quality Institute Regulation 2010, section 8 (1) (b) and section 10A the standards set out in the table in the attached Australian Professional Standards for Teachers in the column titled ‘Proficient’ are required.
5        Standards for provisional registration
For the ACT Teacher Quality Institute Regulation 2010, section 11 (1) (b) and section 12A the standards set out in the table in the attached Australian Professional Standards for Teachers in the column titled ‘Graduate’ are required.
There are also standards for certification under section 18E(2) which are discussed below.[8]
[8] I note that the Standards Determination s 6 refers to standards for the purposes of the ATQI Regulations s 18C(2). I believe the correct reference, certainly to the current version of the regulations, should be to s 18E(2). This error does not affect the validity of the Standards Determination or its application to decision under review.
What follows, as “attached” to the notifiable instrument, is a document entitled Australian Professional Standards for Teachers, dated February 2011, by the Australian Institute for Teaching and School Leadership (AITSL). That document includes a table, spread over pages 8 to 19, with rows for each focus area of what are described as different standards, and columns for each level of capability: “Graduate”, “Proficient”, “Highly Accomplished” or “Lead”. Each cell of the table describes what is required to meet the relevant focus area of the standard to the requisite level of capability.
For example, the first page heading is described as “Standard–1 - Know students and how they learn”. That “Standard” is then broken down into six focus areas, the second of which is “1.2 Understand how students learn”. For the “Graduate” level, the cell states:
Demonstrate knowledge and understanding of research into how students learn and the implications for teaching.
The “Proficient” level states:
Structure teaching programs using research and collegial advice about how students learn.
Meeting the standard of each focus area at the “Proficient” level generally requires either a more advanced understanding, or the application of that understanding in practice. It is the respondent’s position that to be granted full registration, the applicant must be able to satisfy the ATQI on reasonable grounds that they meet the “Proficient” level requirements for each focus area set out in the table described above.
Provisional registration
The eligibility for full registration can be contrasted with eligibility for provisional registration set out in section 33 of the ATQI Act as it was at the time of the initial hearing of this matter:
33 Eligibility for provisional registration
(1)A person is eligible for provisional registration as a teacher if the institute is satisfied on reasonable grounds that––
(a)the person holds a teaching qualification prescribed under section 32 (1) (a), but in the 5-year period before the day the application is made has not taught for the period prescribed by regulation for section 32 (1) (b); and
(b)the person has the oral and written English language communication requirements prescribed by regulation; and
(c)the person holds working with vulnerable people registration; and
(d)the person is an Australian or New Zealand citizen, has permanent resident status, or has a valid work visa allowing the person to work in Australia; and
(e)if the person has a permit to teach that is subject to 1 or more conditions––the person has fulfilled each condition; and
(f)the person meets any requirements prescribed by regulation for provisional registration; and
(g)the person’s registration or permit to teach has not been cancelled in the ACT or by a corresponding registering authority other than in accordance with a request by the person.
(2)However, a person who would be eligible under subsection (1) but for the cancellation of the person’s registration or permit to teach, is eligible to be provisionally registered as a teacher if the institute is satisfied on reasonable grounds, after considering the reason for the cancellation and anything relevant that the person has done since the cancellation, that the person should be provisionally registered.
(3)The institute may make guidelines about the registration of people under subsection (2).
(4)A guideline is a notifiable instrument.[9]
[9] ATQI Act as at 22 November 2023
Four elements of these criteria were prescribed in the ATQI Regulations, so that to be eligible for provisional registration the ATQI had to be satisfied that an applicant had:[10]
(a)A teaching qualification as prescribed for section 32(1)(a) – namely, an accredited pre-service teacher education program, or an equivalent course provided by a registered higher education provider;[11]
(b)Taught for the period prescribed for section 32(1)(b) – relevantly, for a person applying for full registration, 180 days of teaching;[12]
(c)Met English language communication requirements prescribed for section 33(1)(b) – namely, they undertook their teaching qualification in English, or undertook specified English language communication tests or their equivalent;[13] and
(d)Met prescribed requirements for section 32(1)(f) – namely “demonstrated abilities, knowledge and skills required by a standard for provisional registration”.[14]
[10] ATQI Regulations as at 22 November 2023
[11] ATQI Regulations s 7
[12] ATQI Regulations s 9
[13] ATQI Regulations s 12
[14] ATQI Regulations s 10A
Again, it is the respondent’s position that the standard for provisional registration refers to the Standards Determination. To be granted provisional registration, the applicant must be able to satisfy the ATQI on reasonable grounds that they meet the “Graduate” level requirements for each focus area set out in the table described above. It is not disputed that the applicant met these requirements at the time of the initial hearing and currently. Amendments to the provisions relating to provisional registration for the purposes of section 32(1)(b) and which limited the period of teaching permitted to retain eligibility for provisional registration are discussed further below.
Role of the ATQI

Under section 36, if a person is eligible for full registration, the ATQI must fully register the person. Section 36(2) allows the ATQI to provisionally register a person who applies for full registration if the person is not eligible for full registration but is eligible for provisional registration. Section 36(6) provides for notice to be given before a decision is made to not fully register a person:
(6) However, the institute may refuse an application, or decide an application under subsection (2), ... only if—
(a)the institute has given the person written notice of the proposed refusal or decision; and
(b)the notice states––
(i)the reasons for the proposed refusal or decision; and
(ii)that written comments on the proposed refusal or decision, may be made to the institute before the end of a stated period of at least 14 days after the day the notice is given to the person; and
(c)the institute has considered any comments made by the person before the end of the stated period.
Section 37 provides for a process where the person seeking registration can apply to the ATQI for more time to respond to the notice.
Right of review
A decision to provisionally register an applicant who applied for full registration is a reviewable decision.[15] Under section 90 of the ATQI Act, a person who applied for full registration may apply to the ACT Civil and Administrative Tribunal for review of the decision. The ATQI Act is therefore an authorising law for the purposes of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), enabling the tribunal to carry out a review of the decision. Under section 68 of the ACAT Act:
[15] ATQI Act sch 1 item 3
(2) The tribunal may exercise any function given by an Act to the entity for making the decision.
(3) The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

Background

The applicant has been provisionally registered as a teacher since 1 February 2017. He first applied for full registration in 2022. That application was refused by the ATQI on 28 September 2022. The applicant sought review of that refusal in tribunal proceedings OR 14 of 2022 (the earlier proceedings). On 19 February 2023, while that review was being decided, the applicant emailed the ATQI to renew his teacher registration. The ATQI responded that the applicant was no longer able to renew his provisional registration but could make a new application. On 6 March 2023, the applicant submitted an application for full registration using an ATQI online application form. It is the ATQI’s response to this application which is the subject of this review.
In response to an email query from the applicant, on 17 March 2023, the ATQI outlined the eligibility requirements for full registration, and referred to the still impending decision in the earlier proceedings, stating:
On 3 February 2023 you presented to the ACT Administrative Appeals Tribunal [sic], demonstrating you were unable to provide evidence of meeting requirements prescribed by regulation for full registration (S 32 (1) (g)). I acknowledge your belief that this eligibility requirement does not relate to you. Senior member Beacroft will be handing down her decision about this matter at 2.00pm 31 March 2023. Informed by Senior Member Beacroft’s decision, [ATQI] will make a decision on your application for registration as outlined in s 36 (1) and s 36 (2) of the [ATQI Act].
On 31 March 2023, despite there being a delay in the handing down of the decision in the earlier proceedings, the ATQI emailed the applicant advising him that his application for registration had been approved as provisional. It is this decision which is formally the decision under review (the decision) in these proceedings. Subsequent emails from ATQI on 3 April 2023 and 13 April 2023 indicated that the decision was based on the ATQI’s understanding that the applicant’s eligibility for full registration had not changed since his earlier application had been refused. The ATQI therefore continued to not be satisfied that the applicant met the eligibility requirements for full registration and was awaiting the decision of the Tribunal in the earlier proceedings. An application for review was filed by the applicant on 17 April 2023, nominating the decisions for review as set out in the emails of 3 and 13 April 2023.
On 24 May 2023, the Tribunal delivered its decision in the earlier proceedings. The Tribunal upheld the decision of the ATQI to refuse the earlier application for full registration. On 25 May 2023, the ATQI wrote to the applicant, stating that, following the decision of the Tribunal in the earlier proceedings, the applicant’s registration remained as provisional.
Applicant’s submissions
The applicant provided only brief written submissions which referred to a variety of legislative and associated sources and submissions that he had made on previous occasions. These were filled out in greater detail during the hearing. I have attempted to summarise those submissions, as I understand them, below.
The applicant submitted that he was entitled to full registration as a consequence of having graduated with the relevant higher education degree and having taught in classrooms for over 180 days.[16] There was, in the applicant’s submission, no need for him to be assessed against the Proficient level as set out in the Standards Determination before being granted full registration.
[16] Applicant’s written submissions at [17]
The applicant submitted that applying for an assessment of whether you met the Proficient level, what the applicant described as applying for proficiency, was different to applying for full registration. It was only when applying for proficiency that you were required to provide ATQI with a portfolio demonstrating that you had achieved the requisite standard. When applying for full registration, there was no need for a principal’s report or assessment panel process in demonstrating that, as a teacher, you had met any relevant standard. The only role for a principal’s recommendation was in certifying that an applicant had taught for the prescribed period as set out in section 9 of the ATQI Regulations.
As part of the justification for his interpretation of the teacher registration process, the applicant pointed to the history of the ATQI legislative scheme, and, in particular, the changing role of prior experience and English language skills for full registration as a teacher.
As set out above, section 32(1)(a) of the ATQI Act currently provides, as a requirement for full registration, that a person either holds provisional registration, is an early childhood teacher, or previously held full registration. That version of section 32(1)(a) was substituted by the ACT Teacher Quality Institute Amendment Act 2019 (2019 Amendments) on 29 August 2019. Prior to that amendment, section 32(1)(a) of the ATQI Act read:
(1) A person is eligible for full registration as a teacher if the institute is satisfied on reasonable grounds that––
(a)either––
(i)the person holds a teaching qualification prescribed by regulation for registration; or
(ii)the person’s education, demonstrated abilities, experience, knowledge and skills establish that the person meets the requirements for professional practice prescribed by regulation for full registration;
Therefore, there were two ways to get full registration prior to the 2019 Amendments – either through holding a teacher qualification, or through establishing that you otherwise meet the requirements prescribed by regulation. The ATQI Regulations, prior to the 2019 Amendments, included the following requirements for professional practice in section 8, for the purposes of section 32(1)(a)(ii):
8 Eligibility for full registration—experience, skills, etc—Act, s 32 (1) (a) (ii)
(1)The following requirements are prescribed:
(a)either—
(i)satisfactory completion of 1 year of teaching at a school; or
(ii)experience that the institute is satisfied is equivalent to satisfactory completion of 1 year of teaching at a school;
(b)demonstrated abilities, knowledge and skills required by a standard for full registration.
(2)The institute may be satisfied about a matter mentioned in subsection (1) if the institute receives a certificate from 1 or more of the following entities certifying that the entity is satisfied about the matter:
(a)the principal of a school where the person has been teaching;
(b)the provider of an accredited pre-service teacher education program;
(c)someone else that the institute is satisfied can provide satisfactory assessment of the matter.
It is this section of the ATQI Regulations which is referred to in the Standards Determination – first introduced in 2013 – which provides for the same standards to be prescribed for both sections 8(1)(b) and 10A of the ATQI Regulation.
The applicant contrasted this version of section 8(1) of the ATQI Regulations with section 10A. The reference to certification by the school principal is only mentioned where the person seeking full registration has not completed their teaching qualification. This, he claimed, demonstrated that a principal of the school only had a role in the registration process where the standard was being assessed for the purpose of section 8(1)(b) in the absence of a relevant teaching qualification.
The applicant also pointed to the dispensation provided to persons who do not have a teaching qualification in the English language competency requirements. Section 13 of the ATQI Regulations, for example, provides for a person to be given a permit to teach in circumstances where they do not hold qualifications undertaken in English in one of the prescribed countries, but the ATQI is satisfied that there “is an exceptional demonstrated need by a school to employ the person because of the person’s particular specialist knowledge or skills.” The applicant submitted that, again, this suggested that there was a role for the school to play only in circumstances where the person seeking the capacity to teach had not undertaken a relevant degree.
Respondent’s submissions
The respondent submitted that the order sought by the applicant be refused on the basis that the applicant had not satisfied the ATQI, or the Tribunal, that he had met the proficient level in the Standards Determination.
The respondent pointed to the Teacher Registration and Permit to Teach Policy (ATQI Registration Policy) published by the ATQI and the ACT Government, which provides that teachers would be granted full registration only if they meet eligibility requirements including that they “are able to demonstrate through a[n] [ATQI] approved school-based assessment that they meet the Proficient level of the [Standard Determination]”. Progression from provisional to full registration involves demonstrating that they have:
completed a school-based assessment process against the Proficient level of the [Standards Determination], which includes collecting evidence of preparation, reflection and annotation of work against the Standards, and a recommendation for Full registration from their current Principal.
As the applicant had not met this requirement to complete a school-based assessment process, they had not satisfied the ATQI that they meet “any requirements prescribed by regulation for full registration” as required under section 32(1)(g) of the ATQI Act.
However, the respondent acknowledges that the ATQI made two errors in making the decision under review. The respondent submits that the decision under review was comprised of two emails. The first, on 3 April 2023, stated both that the applicant’s eligibility for full registration was under review, and that the ATQI did not “believe that [the applicant] meet the eligibility requirements for full registration” before granting provisional registration pending the Tribunal’s decision in earlier proceedings. The second, on 13 April 2023, reiterated the ATQI’s belief that the applicant did not meet the eligibility requirements for full registration.
In doing so, the ATQI did not meet the requirements set out in what are now section 36(6)(a) and (b) to provide a written notice setting out the reasons for a proposed refusal to fully register the applicant, and provide at least 14 days for the applicant to provide any written comments in response, and the requirement in section 36(6)(c) for the ATQI to then consider any response.[17] The respondent conceded that failure to comply with these requirements meant that the ATQI’s decision to refuse the applicant’s application for full registration was invalid.
[17] The requirements were set out in s 36(4) at the time of the hearing. See ATQI Act s 36(4) as at 22 November 2023
The respondent also acknowledged that the applicant’s provisional registration was also invalid, as he had not applied for provisional registration and that he was not eligible for provisional registration given he had taught more than 180 days in the five-year period prior to his application.
In those circumstances, the respondent submitted that the preferable decision is that:
the decision to refuse the Registration Application be set aside and that the matter be remitted for reconsideration by the decision-maker (ie the [ATQI]) in accordance with any direction or recommendation by the Tribunal per s 68(3)(c) of the [ACAT Act]; and
the decision to provisionally register the applicant as a teacher be set aside, as the applicant is not eligible for provisional registration pursuant to the [ATQI Act].

Consideration

Effect of earlier proceedings

The decision of the Tribunal in the earlier proceedings (the earlier Tribunal) confirmed the ATQI’s decision to refuse the earlier application for full registration. The earlier Tribunal’s reasons indicate that they accepted the legislation framework and the requirement to meet the standards as set out in the Standards Determination, as the respondent submitted in this review. The earlier Tribunal also briefly discussed the policy adopted by the ATQI of basing their decisions on a recommendation, at the school workplace level, about the teacher meeting all the relevant standards. That policy, and the framework on which it was based, was “consistent with and supports the purposes of the Act, the regulations, the notified standards, and the functions of the respondent”.[18] The details of that policy are set out below.
[18] Transcript of proceedings in OR 14/2022 dated 24 May 2023, page 7, lines 33-35
The earlier proceedings relate not only to the same, if subsequently amended legislation, but also the same parties and decisions involving much of the same evidence. While the Tribunal is not bound to follow previous decisions of the tribunal, I would be very hesitant to depart from the decision of the earlier Tribunal in the absence of clear error. As discussed below, I do not consider there to be any error in the decision of the earlier Tribunal. I also note that the decision in the earlier proceedings has also been appealed, with the decision on appeal still pending.
I agree with the earlier Tribunal’s conclusions on the role of the Standards Determination, and generally agree on the appropriate role of the ATQI’s policy of relying on a school-based assessment. The earlier Tribunal did not have to consider the appropriate role of that policy in circumstances where a decision is being remitted back to the decision-maker, as is the circumstances of this case. I have also had the benefit of more extensive submissions, from the applicant, as to the implications that may be drawn from the legislative framework around the appropriate role of the school-based assessment process. I therefore consider the ATQI’s policy, and its application in the circumstances of this case, in detail below.
Consequences of absence of notice
The Tribunal, in exercising the power to review a decision, must reach a state of satisfaction as to the correct or preferable decision. Even though the respondent concedes that there has been an error made in the making of the decision, it is still a matter for the Tribunal to be satisfied that the error has been made, and, importantly, as to the consequences that follow.[19]
[19] A concession does not permit the Tribunal “to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it”: Peacock v Repatriation Commission [2007] FCAFC 156 per Downes, Lander and Buchanan JJ at [23]
As section 36(4) of the ATQI Act (now section 36(6)) then requires, before refusing the applicant’s application for full registration and provisionally registering him, the respondent should have provided the applicant with notice about the proposed reasons for that refusal, and an opportunity to respond to those reasons. This was not done. The procedural fairness afforded by the requirements, to give notice and an opportunity to make submissions, provided for in section 36(4), is generally accepted as a requirement for any subsequent decision to be valid.[20] There is nothing in the legislative scheme that would suggest that it was intended that a failure to provide notice should not result in the invalidity of the decision.[21] It is that invalidity, even if it does not deprive this Tribunal of jurisdiction,[22] which the respondent argued should lead to the matter being remitted back to the ATQI for reconsideration after sufficient notice was provided.
[20] See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
[21] See Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
[22] See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
In this case, it could be argued that there was little “practical injustice”[23] in failing to provide the applicant with the required notice in circumstances where the application was merely a repetition of an earlier application. The application for full registration had been provided in the context where an earlier decision of the ATQI to reject an application by the applicant for full registration was still awaiting review by the tribunal. As set out above, the correspondence between the ATQI and the applicant indicated that the applicant was granted provisional registration on 3 April 2023, at least in part due to concerns raised by the earlier Tribunal about the applicant’s eligibility to teach while awaiting the decision on his first application. The email stated that the applicant’s eligibility for full registration was under review, but I regard this to be a reference to the review before the earlier Tribunal. This was confirmed on 13 April 2023, where the ATQI stated that it “does not believe you meet the eligibility requirements at this time”. Reasons for the decision were not provided until 20 April 2023, where the ATQI, after quoting from ATQI Regulations section 10A and the requirement that an applicant must demonstrate the abilities, knowledge, and skills required by a standard for full registration, stated:
This requirement is demonstrated through a recommendation report from a principal following a presentation of evidence highlighting that you have met the proficient level of the Australian Professional Standards for Teachers (APST). Noting that you have been unable to provide this element to ACAT, [A]TQI has assumed that you remain unable to provide evidence with our application for full registration … If you have a copy of a principal report demonstrating you have met the standard for full registration, please provide that as soon as possible.
[23] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6

Then, after the decision of the earlier Tribunal was handed down, in an email sent 25 May 2023, the ATQI again stated that the applicant’s registration remained as provisional.
The ATQI was therefore acting on the assumption that the applicant would have nothing to add to the application and the material that he had provided to the earlier Tribunal, or at least nothing that the ATQI considered would have been material to their decision whether to grant full registration. However, while this may have been a reasonable assumption, an obligation to afford procedural fairness is not displaced merely by an expectation of what might have been provided by a person if offered an opportunity to participate. The lack of any legislative restriction on the submission of multiple applications for full registration may allow the ATQI to adopt a similar position to evidence already considered in refusing application. However, the ATQI is still required to provide an applicant with the opportunity to provide new evidence, and possibly new submissions on why previously presented evidence should be judged differently by the ATQI. Any requirement that the breach of procedural fairness be material before invalidating the decision[24] was met in this case by the potential for the applicant to provide additional material which could have made a difference to the decision-maker.
[24] See Nathanson v Minister for Home Affairs [2022] HCA 26
The respondent, rightly in my view, did not attempt to argue that the decision to grant provisional registration should not be taken to be a rejection of the application for full registration – the requirement to give notice also applies to a decision under section 36(2) of the ATQI Act to grant provisional registration in lieu of full registration. They also did not argue that any breach of procedural fairness was displaced or excused by the representations from the earlier Tribunal concerning the applicant’s ongoing ability to teach while a decision was delayed. There was also no submission that the requirements in section 36(4), (or what is now section 36(6)) to invite written comments from the applicant, does not extend to providing additional documentary evidence not already considered by the ATQI.
The respondent also did not raise any argument over whether the tribunal process could correct or cure any defect in procedural fairness.[25] In my view, there is insufficient indication that the availability of tribunal review is intended to be the exclusive remedy for any breach of notice requirements under section 36(6). I also consider it inappropriate, for the reasons set out below, that the Tribunal engage in the process of considering any new material that the applicant may wish to present in deciding whether they should be granted full registration.
[25] Twist v Randwick Municipal Council [1976] HCA 58; Ambrose v Commonwealth of Australia [2021] FCAFC 88; cf Mark Aronson, Matthew Groves, and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2022) at 475-476.
There remains the question whether the limited opportunity presented by the letter of 20 April 2023 could be sufficient. In my view, the earlier email of 3 April 2023, at least when combined with 13 April 2023, constituted a decision to not grant full registration, in breach of the requirement to give notice in what was then section 36(4). While it may have been possible for the ATQI to have reversed that decision, the breach of procedural fairness had already occurred. I also regard the limitation of any additional material to a principal’s recommendation to be an inappropriate limitation of the obligation in section 36(4) to invite written comments.
I therefore agree that the respondent failed to provide the applicant with written notice of the proposed refusal or decision, in breach of section 36(4) as at the time of the decision. As a consequence, the decision under review of the ATQI to refuse the application for full registration was invalid.
Substitution or remittal
What follows from the invalidity of the decision under review? As set out above, section 68(3) of the ACAT Act requires the tribunal, in reviewing a decision, to either:
(a)     confirm the decision; or
(b)     vary the decision; or
(c)     set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
Neither party argued that it was appropriate for the Tribunal to confirm or to vary the decision. The applicant submitted that the decision should be set aside and substituted with a decision to grant full registration. However, as indicated above, this was primarily based on his interpretation of the legislation that an assessment of whether he met the standards was not required for eligibility for full registration. The applicant provided a few examples of where his approach to teaching differed from that reflected in feedback he received on his teaching portfolio. He also provided the Tribunal with that teaching portfolio and additional material, which he claimed was relevant to an assessment of whether he met the standards. However, the applicant did not attempt to go through that material to establish that he had the demonstrated abilities, knowledge, and skills to meet the Proficient level in the Standards Determination.
The respondent submitted that the appropriate order was to set aside the decision and remit the matter for reconsideration by the ATQI. In its further submissions, the respondent referred to the decision in Sladic & Anor v Act Planning and Land Authority; Charter Hall Retail Reit & Ors v Act Planning and Land Authority,[26] where it was stated:
Ordinarily, if a Tribunal conducting merits review concludes that a necessary procedural requirement for the original decision has not been met, and the requirement cannot be addressed through the hearing process, the Tribunal will set aside the reviewable decision and remit the matter to the original decision-maker with a direction that the necessary steps be undertaken and a decision be made afresh.[27]
[26] [2018] ACAT 38
[27] [2018] ACAT 38 at [178]
In this matter, the procedural error involved the failure to issue a notice inviting the applicant to submit written comments on the proposed decision. As discussed above, in relation to whether there has been a breach of procedural fairness, it might be argued that requirement has been addressed by the opportunity for the applicant to make submissions on review. However, it is not just the opportunity to make submissions that has been lost, but also the opportunity for the ATQI to consider whether the submissions, including potential further evidence, lead to a different conclusion. Where the decision under review involves the consideration of extensive evidence relevant to the meeting of standards – the assessment of which requires the application of expertise and experience – the reconsideration by the decision-maker will be important. In the absence of extensive submissions and evidence from expert or qualified witnesses, the Tribunal is not in a position to evaluate whether the applicant has met the relevant standard so as to be eligible for full registration.
The other factor weighing in favour of remittal is the appropriate role of policy in the decision by the ATQI. Although neither party made this submission, one option on review may have been for this Tribunal to apply the policy generally adopted by the ATQI of requiring a recommendation of the principal of the school where the applicant was teaching. In the absence of such a recommendation, I could decide that the applicant had not met the requirements for full registration. For the reasons set out below, I do not regard that as an appropriate course. The suitability of the policy adopted by the ATQI and its appropriate application to the circumstances of this case are also relevant to the conduct of the ATQI in any reconsideration upon remittal.
Adoption of policy by ATQI
As described above, in its reasons of 20 April 2023 for not granting the applicant full registration, the respondent referred to the need to provide a recommendation report from a principal. It was the recommendation report which the ATQI generally relied upon to be satisfied that the applicant had the demonstrated abilities, knowledge, and skills as required for full registration.
The role of a recommendation report from a principal is not provided for in the Standards Determination. Instead, it is set out in a series of documents which the respondent submits was appropriately relied on by the ATQI in deciding whether to grant full registration.
The first such document is the Australian Institute for Teaching and School Leadership Framework for Teacher Registration in Australia, 2011 (AITSL Framework). This document sets out elements of a “nationally consistent framework for the registration of teachers in all states and territories”.[28] Under that framework, establishing the evidence of the performance required for the transition to full registration “should be based on a recommendation at the school/workplace level about the teacher”.[29] The assessment process is described as:
The evidence presented by a teacher seeking full registration will be assessed by a nominated person or persons recognised by the regulatory authority (this will usually include the principal and or people holding leadership positions within the school or other educational setting).[30]
[28] AITSL Framework, page 3
[29] AITSL Framework, page 4
[30] AITSL Framework, page 11
The AISTL Framework provides that the teacher regulatory authority, in this case ATQI, will “prescribe the format for submission of evidence by a provisionally registered teacher and for the reporting of the assessment”.[31] It further provides, importantly, that the “process for achieving full teacher registration should be flexible to accommodate different contexts and experience”.
[31] AITSL Framework, page 11
The second document relied upon by the respondent in setting out the ATQI policy for consideration of an application for full registration is the ATQI Registration Policy. That policy is expressed as setting “out the framework for the registration and permit to teach requirements of the [ATQI... under the [ATQI Act]”. Under that policy, to be granted full registration teachers must, among other eligibility requirements, show they are “able to demonstrate through a[n] [ATQI] approved school-based assessment that they meet the Proficient level of the [Standards Determination]”.
Under the heading “progression to full registration”, the ATQI Registration Policy states “provisionally registered teachers wishing to progress to Full registration must demonstrate that they have”, among other things:
completed a school-based assessment process against the Proficient level of the [Standards DeterminaIn] ... which includes collecting evidence of preparation, reflection and annotation of work against the Standards, and a recommendation for Full registration from their current Principal.
The full details of the assessment process and procedure is then stated by the ATQI Registration Policy to be provided in two ATQI documents. However, the respondent conceded that these two documents were not available at the time of the decision or provided to the Tribunal. The ATQI Registration Policy also provides for reconsideration by the ATQI of a refusal to register or grant provisional registration where full registration was sought.
Neither the AITSL Framework nor the ATQI Registration Policy is referred to in the correspondence from the ATQI to the applicant in relation to his current application. In its letter of 25 May 2023, which notified the applicant that his status remained provisional following the decision of the earlier Tribunal, the ATQI states:
[a]n essential part of moving to full registration is to undertake the school-based process and be recommended for full registration by a school-based Principal and Professional Guidance Panel.
Various resources are then identified, including the Moving from Provisional to Full Registration Handbook (ATQI Handbook) and the Moving from Provisional to Full Registration Principal’s Recommendation Report (Principal’s Report).
The ATQI Handbook, dated 2022, is expressed to be a “guide for provisionally registered teachers and Professional Guidance Panels in the ACT”. It outlines the role and actions of the Professional Guidance Panel, which “assists” a provisionally registered teacher to “demonstrate achievement of the proficient level of the Standards and move to full registration”.[32] The panel must include the school principal or their delegate, a mentor, and a supervisor. The principal is responsible for the final recommendation for full registration and the completion of the Principal’s Report Form.[33] The ATQI Handbook states:
For [ATQI] to approve a teacher for full registration, [ATQI] must be satisfied that they meet the Standards at the proficient level or above. The [Principal’s Report] must provide detailed commentary of how the evidence and written annotations [provided by an applicant for full registration] demonstrate each specific descriptor at the proficient level of the Standards.
[32] ATQI Handbook, page 2
[33] ATQI Handbook, page 2
Where a teacher has not demonstrated achievement of all seven standards at the “Proficient” level, the panel “will complete the Principal’s Report identifying the Standards/descriptors that have been assessed and those for further development and re-assessment”.[34]
[34] ATQI Handbook, page 15
The letter of 25 May 2023 describes the Principal’s Report form as “a prescribed form for notifying [A]TQI of a teacher’s readiness to progress to full registration. Please note that this is a new form, and old versions should not be used”. It is not clear how that temporal reference applies to the applicant in this case.
Given I have decided that the decision was invalid due to the failure to give notice, there is no need to determine whether the use of policy by the ATQI in this matter was in error. What remains, however, is whether it is appropriate for the ATQI to adopt that policy in any reconsideration of the application. That gives rise to at least two issues:
(a)Whether it is appropriate in this case for the ATQI to use the policy in this way.
(b)What influence, if any, should the policy have on the Tribunal’s decision in this case?
The use of policy by the ATQI may also raise issues of whether an applicant was adequately informed about the use of the policy and given an opportunity to make submissions on its appropriateness to their application. As discussed below, this issue does not arise in this case.
Appropriate use of policy
As set out above, the applicant submitted that the ATQI’s policy of requiring a principal’s report was contrary to the legislative scheme. The 2019 Amendment's removal of references to the principal’s certificate in section 8(2) of the ATQI Regulations meant that there was no longer a role for the principal in assessing a person’s eligibility for full registration.
In their submissions, the respondent cited Gleeson CJ’s decision in Neat Domestic Trading Pty Ltd v AWB Ltd[35] (Neat) at paragraph 24 in support of their use of policy:
There is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations. The policy, and its application, must be measured against those requirements, having regard to the matter presented for decision, and the information and arguments, if any, advanced for or against a particular outcome.
[35] [2003] HCA 35
The policy in question in Neat involved a blanket approach to rejecting an application – in that case to export wheat – on the basis that any application would, in the decision-maker’s view, be inconsistent with the objectives of the legislation in question. Gleeson CJ accepted that the applicant had not put forward any reason for why the policy should not be applied in their case.[36] Inherent to this position is the requirement to reconsider the application of policy where individual circumstances warrant. Thus, adoption of a policy must not prevent consideration of arguments to the contrary, and as suggested in Drake v Minister for Immigration and Ethnic Affairs (No 2)[37] , the decision-maker must remain:
free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision‑maker] will make in the circumstances of a given case.[38]
[36] [2003] HCA 35 at [26]
[37] [1979] AATA 179
[38] [1979] AATA 179, page 9; See also Minister for Home Affairs v G [2019] FCAFC 79 at [59]
The question of whether the ATQI’s use of policy was appropriate is therefore a matter of two issues: the consistency of the policy with the legislative framework, and whether the use of the policy by the ATQI unduly prevented their consideration of the circumstances of the applicant’s case.
Consistency of the policy with the ATQI Act and Regulations.
The ATQI is established as a statutory authority by the ATQI Act. The Act does not set out any requirements relating to the expertise or experience of ATQI staff, in contrast with the ATQI Board,[39] and the role of an expert committee in accreditation of education programs.[40] ATQI has a range of functions, from registering individual teachers, to determining standards for the teaching profession within a framework of nationally recognised professional standards and accrediting education programs for teachers. Importantly, the standards set out in the Standards Determination themselves refer to the ways in which an applicant interacts with their students, colleagues, and within the school environment. A school-based assessment is particularly well-suited to assess these elements of the standards. Evidence involved in demonstrating achievement of the relevant standards can also include observation and reflections by peers within a school-based structure, aimed at continuous professional learning and development. Also relevant is the resources required for the ATQI to conduct its own assessment, against the relevant standard, of each teacher who applies for or renews their registration.
[39] ATQI Act s 15.
[40] ATQI Act s 77.
However, there are other elements of the ATQI Act and ATQI Regulations which suggest a more limited reliance on a school-based assessment in assessing eligibility for full registration. There is an explicit provision for delegation of the ATQI’s functions in section 13, which does not include being able to delegate to teachers or principals not otherwise associated with the ATQI. At the time the decision under review was made, a refusal to grant full registration could result in a teacher losing registration altogether; a consequence supporting an interpretation which holds the ATQI to account in the making of its decisions and opportunities for review. The other functions of the ATQI complement the development of expertise in the evaluation and improvement of teaching within the ATQI.[41]
[41] For a discussion on the factors to be considered in considering whether legislation supports a reliance on agents see Din v Minister for Immigration & Multicultural Affairs [1997] FCA 780
The ATQI Act also provides for the ATQI to make guidelines relating to various functions under the Act, including the full (section 33(3)) and provisional (section 32(3)) registration of teachers. Such guidelines are notifiable instruments. There are currently no guidelines notified on the ACT Legislation Register, and no repealed guidelines are available. The ATQI Registration Policy or other related documents are not registered as guidelines.

The ATQI Act only refers to one form of guideline, for the accreditation of education programs, which must be applied by the ATQI.[42] Otherwise, it can be implied that the ATQI would at least have to consider the application of any applicable guidelines, subject to procedural fairness requirements before any departure. The label of ‘guidelines’, their registration as notifiable but not disallowable instruments, and generally non-binding nature, suggest that any guidelines are limited to guiding, but not necessarily determining, the decisions of the ATQI. Their availability also suggests that the role of other policies by the ATQI, which are not registered as guidelines, would be at least similarly limited.
[42] ATQI Act s 76.
The current ATQI Regulations include only one reference to certification by a school principal. Section 9 of the ATQI Regulations prescribes, for the purposes of section 32(1)(b) of the ATQI Act, that an applicant for full registration must have taught for at least 180 days in Australia or New Zealand, or its equivalent, in the five-year period before the application. Under section 9(4), a principal's certificate can be used by the ATQI to be satisfied that a person has taught for that prescribed period.
Prior to the 2019 Amendments, there were two other references in the ATQI Regulations to certification by a school principal in sections 8(2) and 11(2). Those sections provided for certification by a school principal as a way of establishing both completion of one year of teaching or equivalent experience, and the applicant’s demonstrated abilities, knowledge, and skills. For example, section 11 provided:
(1) The prescribed requirements are—
(a)either—
(i)180 days of teaching at a school; or
(ii)experience that the institute is satisfied is equivalent to satisfactory completion of 1 year of teaching at a school; and
(b)demonstrated abilities, knowledge and skills required by a standard for provisional registration.
(2) The institute may be satisfied about a matter mentioned in subsection (1) if the institute receives a certificate from 1 or more of the following entities certifying that the entity is satisfied about the matter:
(a)the principal of a school where the person has been teaching;
(b)the provider of an accredited education program of pre-service teacher education;
(c)someone else that the institute is satisfied can provide satisfactory assessment of the matter.
Sections 8 and 11 prescribed requirements for registration where the applicant did not hold a relevant teaching qualification. Where an applicant did hold the relevant teaching qualification, there was no need to assess them against a relevant standard. It was only where an applicant did not hold the relevant teaching qualification that their experience and demonstrated abilities, knowledge, and skills needed to be assessed, and one way in which that might be demonstrated was through certification by the school principal.
It is not clear whether sections 8(2) and 11(2), and their provision for a certificate from a relevant entity, were intended to expand the sources of relevant evidence on which the ATQI could be satisfied, or exhaustive in requiring the ATQI to form its opinion based on the certification. It is clear, however, that a principal’s certificate was sufficient to demonstrate achievement of the relevant standard.
The prescribed eligibility requirements in what are now sections 10A and 12A of the ATQI Regulation – that all teachers seeking provisional or full registration demonstrate the abilities, knowledge, and skills required by a relevant standard – were not introduced until the ACT Teacher Quality Institute Amendment Regulation 2013(No 1) (2013 Amendment). Prior to the notification of the Standards Determination on 31 October 2013, there was no standard in place for the purposes of section 8 and 11 of the ATQI Regulation.
The explanatory statement accompanying the 2013 Amendment, in outlining section 10A, states:
The clause also adds a new section 10A which makes a specific link to the Standards as an additional eligibility requirement for full registration. The standards relevant for this purpose, the Australian Professional Standards for Teachers, have been formally determined by the Institute under section 97 of the Act to be standards for the purposes of the Act.
The requirement in section 12A, that a teacher demonstrate the abilities, knowledge, and skills required for eligibility for provisional registration, was outlined in the same terms (including mistakenly referring to full registration).
The explanatory statement also suggests that the intention of the 2013 Amendment, in adopting the “Graduate” level of the Standards Determination, was to make compliance with those standards mandatory in the accreditation of teacher education courses, though I note that the criteria for accreditation of education programs in section 76(a)(iv) of the ATQI Act, in 2013 and currently, requires “that any nationally recognised standards for the accreditation of education programs are met” without making it explicit that the Standards Determination is a compulsory part of that process.
The 2013 Amendment also introduced certification of fully registered teachers as “Highly Accomplished” or “Lead” teachers, as described in the Standards Determination. This includes the ability of ATQI to make guidelines for the assessment and certification of such teachers, complementing its power to make guidelines for full and provisional registration, described above. As the explanatory statement states:
In the ACT, the Graduate Teacher and Proficient Teacher levels of the Standards are mandatory in the accreditation of teacher education courses and in the teacher registration processes. Progression to the Highly Accomplished Teacher and Lead Teacher levels of the Standards is voluntary, but a formal certification process is required against the Standards …
To ensure consistency in decision making and to protect the integrity of the Standards certification process, the [ATQI] will be the certifying authority for the purposes of the Standards in the ACT. Certification against higher levels of the Standards will be conducted annually by the [ATQI].
Therefore, the 2013 Amendment was intended to introduce the requirement that an applicant meet the respective standard as a distinct criterium for eligibility. There is also apparent recognition that demonstrating compliance with the respective standard may involve different approaches, either through graduation from an accredited course which, in turn, has met the standards in accreditation and renewal of the course, or in providing evidence in seeking accreditation for full registration. While there is some duplication, in that the same standard for full registration is applied to both sections 8(1)(b) and 10A – and hence an applicant for full registration without a teaching qualification would have to meet the same standard twice – this was only due to the way the Standards Determination was expressed.
The absence of any reference to certification by the principal or other means by which achievement under the standard might be assessed, contrasts with the express reference to certification in the existing sections at the time. Their exclusion suggests that certification was, in itself, perhaps neither necessary nor sufficient for the ATQI to reach a conclusion on an applicant’s meeting of the relevant standard. The duplication of having to meet the standard in both sections 8(1)(b) and 10A also supports the view that the role of certification is intended to be different in each case.
The express provision for certification in sections 8(2) and 11(2) of the ATQI Regulation was removed in the 2019 Amendments. One of the intents of these amendments was to remove alternatives to applicants for provisional or full registration having a relevant teaching qualification. The explanatory statement accompanying the Bill which became the 2019 Amendments stated:
The provisions in the [A]TQI Act for people to be eligible for registration with partial or no teaching qualifications have not been applied in the history of the [A]TQI Act. The [ATQI] has never drawn on these provisions to grant full or provisional registration to a person who is without a completed teaching qualification. It is appropriate to remove these provisions from the Act given that after the passage of a transition period they have not been required and have the potential to weaken the teaching profession.
It was on this basis that the various references to being eligible for either full or provisional registration in the absence of a teaching qualification were removed from the ATQI Act and ATQI Regulations. Their removal does not support the applicant’s contention that the Standards Determination is no longer applicable to applicants seeking full registration. The omission of section 8(1)(b) does not remove the requirement in section 10A to meet the standard. However, there is also no apparent intention in the 2019 Amendments to change the role certification may play in demonstrating that an applicant meets the relevant standard.
In my view, this history of the role of a principal’s certificate in assessing whether an applicant meets the relevant standard does not suggest that adoption of a policy requiring the equivalent of certification from a principal is inconsistent with the ATQI Act and ATQI Regulations. The omission of section 8, and the removal of references to a principal’s certificate, does not in itself suggest that a principal or school-based assessment should have no role in a decision on whether an applicant has met the relevant standard. Similarly, the continued role of a certificate in section 9 is not sufficient to indicate that a principal’s certificate is only available for that purpose. However, the history and current provisions do suggest that reliance on a form of principal’s certification, including the recommendation of the principal following a school-based assessment process, should not in itself be determinative of whether an applicant is eligible for full registration.
Whether use of the policy by the ATQI unduly fetters their discretion to consider the circumstances of the applicant's case
As described above, the ATQI Registration Policy provides for a possible reconsideration by the ATQI of a refusal to grant full registration. In the previous application between the parties, the ATQI had provided that reconsideration through an evaluation of the applicant’s teaching portfolio by another qualified teacher who had not participated in the school-based assessment. The ATQI’s decision, which was the subject of that previous application, had accepted that the applicant met the required standard in the Standards Determination if either the principal’s report, or second evaluator, had reached that conclusion. However, as there remained individual standards that neither the principal’s report nor second evaluation considered had been met, the ATQI was not satisfied that the applicant was eligible for full registration.
I do not have to express any opinion on whether the process adopted by the ATQI in the previous application was necessary or sufficient in deciding the applicant’s previous application. I also do not have to consider whether such a process involving a second evaluation should have been provided before the decision under review was made in this case. However, the process adopted in the previous application demonstrates that it is possible for the ATQI to be satisfied that an applicant meets the relevant standards even without a recommendation from the principal following a school-based assessment process. It demonstrates that the ATQI was willing to depart from the policy of acting on the recommendation of the principal’s report to consider an independent evaluation of the evidence provided by the applicant.
In my view, the role of the principal’s report, or second evaluation in the case of a reconsideration, is properly a form of evidence which can be considered by the ATQI in deciding whether to grant full registration. A policy that generally requires such a recommendation as part of the evidence to be considered by the ATQI would therefore not be inconsistent with the requirements under the ATQI Act and ATQI Regulations. However, as the discussion of the role of the principal’s certification described above suggests, the ATQI cannot in all cases rely solely on the views of others in considering whether the applicant meets the relevant standards. The ATQI must be open to considering whether an applicant may meet the standards despite the absence of a principal’s recommendation. Whether the circumstances warrant consideration by an independent third party or by ATQI staff or other delegate with appropriate expertise or experience is a matter to be determined in the individual case.
Effect of policy on Tribunal
A tribunal reviewing the decision of a government agency may generally have regard to lawful policies used by the agency.[43] However, a tribunal can depart from policy in deciding the correct or preferable decision, where there are cogent reasons to do so in any particular case.[44]
[43] See Nikac v Minister of Immigration, Local Government and Ethnic Affairs [1988] FCA 400
[44] See Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
As discussed above, in my view, any application of policy by the ATQI must take into account the views of the applicant. It is not sufficient to rely exclusively on a principal’s report following a school-based assessment in circumstances where the applicant is able to provide evidence that demonstrates that they have met the relevant standard.
Even if I accept that policy as generally applicable in decisions by the ATQI, I would have considered it open to this Tribunal to consider the applicant’s eligibility in the absence of a recommendation, in circumstances where there was evidence that the applicant met the relevant standard. In this case, however, the applicant has not demonstrated that the evidence they have provided to the Tribunal demonstrates that they have met the relevant standard. In circumstances where the applicant bares an onus to establish that the decision under review should not be accepted as correct or preferable, it is not appropriate for this Tribunal to undertake for itself an evaluation of the evidence provided by the applicant. That would particularly be the case where the respondent has not had the opportunity to make submissions on that matter as a result of the way the applicant’s case was put, and the concessions made by the respondent about the jurisdictional errors made in the decision under review.
It does, however, reinforce the appropriateness of ensuring that any reconsideration by the respondent after remittal is based on a consideration of the evidence provided by the applicant, and not merely by the adoption of a policy requiring a principal’s recommendation.
Respondent’s submission as to the scope of remittal and possible directions
After the initial hearing, I invited further submissions on the scope of any possible remittal, and any directions that may be given on how any reconsideration may be carried out. The applicant’s submissions largely repeated his initial submissions and did not address what form any remittal might take.
The respondent submitted that, although the basis of the remittal was a failure to provide adequate notice under section 36(6) of the ATQI Act, the decision under review was a decision to grant provisional registration under section 36(2), which in turn is based on the conclusion that the applicant was not eligible for full registration. In those circumstances, it is appropriate that the remittal provide for another opportunity for the applicant’s application for full registration to be considered by the ATQI. Hence, the respondent submitted that the applicant should be given the opportunity to provide any further evidence in support of their application for full registration within 28 days of the Tribunal’s decision. This opportunity would enable that evidence, along with that already submitted by the applicant as part of his submissions in this matter, to be considered by the ATQI as provided for under section 36, and for any notice requirements under section 36(6) to then be followed should they arise. I agree with those submissions.
The respondent’s submitted course of remittal includes consideration by the ATQI of the principal’s recommendation, provided by the applicant as part of his earlier application as well as provided to this Tribunal. I agree that this recommendation, and the accompanying report on which it is based, is appropriately evidence that may be required and considered by the ATQI. Inherent in the respondent’s submissions that other evidence may be provided by the applicant and considered by the respondent, is that the principal’s report will not be relied upon by the respondent as the determinant of its decision, in the presence of contentions by the applicant that there is a reason why other evidence that he meets the relevant standard should be accepted. As indicated above, in my view, this approach to the principal’s report is required in this case for a lawful decision. I therefore agree with the respondent’s submissions on that basis.
I will therefore make orders and directions largely in the terms put forward by the respondent, as set out below.
Relevance of the Fair Work Act 2009 (Cth)
At the hearing, the applicant raised the possible impact of the Fair Work Act 2009 (Cth) (FWA) on his eligibility for full registration. Orders were made for the applicant to provide further submissions on this point. The applicant provided further submissions on 18 September 2023.
In those further submissions, the applicant reiterated that he was contesting the application of the Standards Determination on two main bases – that he should not be required to establish his compliance with that standard through a school‑based assessment, given references to a principal’s report were relevantly deleted from the ATQI Act in 2019, and that he had already been assessed as suitable through his educational record. The further submissions then refer to Modern Award 077, otherwise known as the Education Services (Teachers) Award 2020 (the Award). The submission claims that the assessment by the ATQI is inconsistent with the classification provisions of this award.[45]
[45] Applicant’s further submissions dated 18 September 2023, page 3
As the respondent submitted in response, Mr Kaley has not established that the Award is applicable to him as an employee, nor that it in any way binds the ATQI. The Tribunal may also be limited in whether it can consider any potential inconsistency between the Award and its operation under Commonwealth legislation and the ATQI Act, so far as questions of validity may arise.[46] However, in my view, the terms of the Award do not support the applicant in any event.
[46] The respondent refers to the decision in Crook v ACT Firearms Registrar [2016] ACAT 62, where the Tribunal was held to not have the power to declare the invalidity of legislation
The Award acts, along with the National Employment Standards set out in section 61 of the FWA, to set out the minimum conditions for employment for employees in, relevantly, the school education industry. The Award includes, in section 14, how employees may be classified upon appointment and after promotion, which affects their wages, allowances and other conditions. “Level 1” applies to “Graduate” teachers and all other teachers holding provisional or conditional accreditation or registration. The applicant, in his submissions, suggests that he is classified as “Level 1”. “Level 2” applies to a “Teacher with proficient accreditation/registration or equivalent”.[47]
[47] See the table in section 14.1 of the Award

‘Proficient accreditation’ is defined for the purposes of the Award as:
Proficient accreditation means accreditation as a proficient teacher that meets the requirements for full registration by a body which oversees accreditation and recognition of teachers’ professional capacity in any State or Territory. A reference to full registration is a reference to proficient accreditation.
Leaving aside the inherent circularity in this definition, it is reasonably clear that it recognises the role of bodies such as the ATQI in assessing eligibility for full registration. This is reinforced by section 14.5, which sets out how an employee may establish that they meet that standard of accreditation if they work in a State or Territory where there is no requirement for accreditation or registration as a proficient teacher. In that case, section 14.5 sets out a process for the employer to assess whether the teacher meets the Australian Professional Standards for Teachers established by the AITSL (which is annexed to the Standards Determination) in what might broadly be described as the equivalent of the process followed by the ATQI in accrediting teachers for full registration in the Territory. The applicant submits that, given section 14.5 does not apply to him, the process described in that section should also not apply to him, and hence he should not have to submit to an assessment by his employer – the equivalent to a report by the school principal – as to whether he meets the relevant standards.
In interpreting the Award this way, the applicant is misinterpreting the intent of providing for an assessment by the employer in section 14.5. That section in no way limits the process in which an assessment might be carried out by a body such as the ATQI in accrediting teachers for full registration. Even if the Award was considered relevant, perhaps as part of the context in which the operation of the ATQI Act and ATQI Regulations might be interpreted, it would not support the applicant’s interpretation of the legislative requirements for full registration in the Territory.
Provisional registration
The decision under review was a decision made under section 36(1) of the ATQI Act on the applicant’s application for full registration, to provisionally register the applicant. As provided in section 36(2), that decision could be made where the applicant was not eligible for full registration but was eligible for provisional registration. In reviewing this decision, the tribunal “may exercise any function given by an Act to the entity for making the decision.”[48] Here, that function includes whether to grant provisional registration where the applicant is not eligible for full registration. Where it is correct or preferable to do so, the Tribunal could maintain the provisional registration of the applicant.[49]
[48] ACAT Act s 68
[49] For a discussion of how the Tribunal is limited to the decision under review in exercising any functions otherwise available to the decision-maker see Australian Securities and Investments Commission v Donald [2003] FCAFC 318; Lau v Registrar, Domestic Animals ACT 2000 [2018] ACAT 119
As set out above, the respondent conceded that they had also erred at the time of the decision under review in granting the applicant provisional registration. Under the legislation as it stood at that time, there was a limit on the period in which a teacher could be provisionally registered. The respondent, in granting the applicant provisional registration in the decision under review, was perhaps acting under an interpretation of those provisions as limiting the period for which a person’s provisional registration could be renewed without requiring a new application. The respondent, in its submissions and at the hearing in this matter, conceded that this was an incorrect interpretation of the ATQI Act and ATQI Regulations. I agree that concession was properly made.
At the time of the decision under review, eligibility for provisional registration included section 33(1)(a), which stated:
the person holds a teaching qualification prescribed under section 32 (1) (a), but in the 5-year period before the day the application is made has not taught for the period prescribed by regulation for section 32 (1) (b) …[50]
[50] ATQI Act as at 6 March 2023
Section 32(1)(b) requires, for full registration, a person to have taught for the period prescribed for the purposes of that section. The period prescribed by regulation for section 32(1)(b) was set out in section 9(1) of the ATQI Regulations:
(1) In the 5 year period before the application is made, the prescribed period is––
(a)for a person applying for full registration under the Act, section 30 (Application for registration or permit to teach)––
(i)180 days of teaching at a school in Australia or New Zealand; or
(ii)a period of teaching that the institute is satisfied is equivalent to satisfactory completion of 180 days of teaching at a school in Australia or New Zealand; or
(b)for a person applying for renewal of full registration under the Act, section 51 (Renewal of registration)––
(i)100 days of teaching at a school in Australia or New Zealand, including 20 days of teaching in the 12 month period before the day the application is made; or
(ii)a period of teaching calculated on a pro rata basis at the rate of 20 days of teaching for each year in the 5 year period before the day the application is made; or
(iii)a period of teaching that the institute is satisfied is equivalent to satisfactory completion of 100 days of teaching at a school in Australia or New Zealand.
The relevant effect of these provisions is that an applicant for full registration must have taught for at least 180 days. But, after a person has taught for 180 days as set out in section 9(1)(a)(i), they are also no longer eligible for provisional registration. Therefore, the ATQI did not have the power to provisionally register the applicant under section 36(2), which requires eligibility for provisional registration.
The 180-day limit may also have the effect of limiting when a teacher can have their provisional registration renewed. Section 48 of the ATQI Act provides that a provisional registration is issued for a period prescribed by regulations and may, in exceptional circumstances, be renewed for a further period prescribed by regulation. The regulations provide that provisional registration is issued for a period of one year, but in exceptional circumstances, may be renewed annually for up to four years, and an additional fifth year if the exceptional circumstances still exist.
Section 51 provides for the renewal of all forms of teacher registration, including provisional registration. The ATQI must be satisfied, before renewing the teacher’s provisional registration, that they are eligible for provisional registration. The apparent effect of sections 48 and 51 is to effectively limit provisional registration to one year, with any further renewal depending on the existence of exceptional circumstances justifying renewal, and the teacher having taught for less than 180 days. Even if the 180-day period applies to teaching in any one calendar year, so that a teacher’s provisional registration can be renewed if they do not teach for more than 180-days in the preceding year (and I do not suggest that as the correct interpretation of the provisions), given the applicant taught for more than 180-days in the year prior to at least one of his renewals, and in the year prior to this application for full registration, he was ineligible for provisional registration.
The difficulty with this interpretation is that it is contrary to both policy and practice of the ATQI at the time of the decision under review. As described above, prior to the decision on the previous application for full registration, the applicant’s provisional registration had been renewed on five occasions, despite his having taught for more than 180 days. It also suggests that eligibility for full registration will, in general, be based on whether a teacher with provisional registration meets the standard for full registration in their first year of teaching. Even if it is accepted that not meeting the standards for full registration might be considered an exceptional circumstance justifying renewal, the requirement to have taught for less than 180-days limits the ability to renew provisional registration in any event. A teacher who has taught for more than 180-days but does not meet the requirements for full registration after their first year will then have to rely upon a permit to teach in order to continue teaching.
If this interpretation is correct, and teachers generally are intended under the legislation to attain full registration within their first year of teaching, then this might have implications for the expected standards and the process of accreditation required. It possibly supports greater weight being given to the standards achieved by the teacher in their educational qualification or placing less reliance on the process of feedback and reflection reflected in the school‑based assessment process as set out in the respondent's policy.
However, I do not have to form a concluded view on either the effect of the 180‑day period to renewals, or how this might affect the correct or preferable approach to be taken to assessment of eligibility for full registration, due to the effect of the amendments to the ATQI Act and ATQI Regulations which were introduced and enacted soon after the initial hearing in this matter.
Amendment of the ATQI Act
The ACT Teacher Quality Institute Amendment Act 2023 (2023 Amendments) commenced on 30 September 2023. Relevantly, the 2023 Amendments generally remove restrictions on provisional registration based on the period of teaching. Eligibility for provisional registration is amended by removing the requirement that a teacher has taught for less than the prescribed period.[51] Provisional registration no longer needs to be renewed annually, with the circumstances and period of renewal set by the ATQI as appropriate.[52] The ATQI Regulations are amended to more clearly distinguish the period of teaching required when applying for full registration, from when renewing registration for full registration.[53]
[51] 2023 Amendments cl 4
[52] 2023 Amendments cl 5
[53] 2023 Amendments cl 10, 11
Importantly, the 2023 Amendments validate the issue and renewal of prior registrations. Section 159 was inserted into the ATQI Act as follows:
159 Provisional and full registrations—validation of issue and renewal
(1)This section applies to the following done or purported to be done before the commencement day:
(a)the provisional registration of a person, despite the person not satisfying the eligibility requirement under the old law, section 33 (1) (a), to the extent it related to not having taught for the period prescribed for section 32 (1) (b);
(b)the renewal of a person’s provisional registration for longer than the maximum period prescribed for the old law, section 48 (2);
(c)the renewal of a person’s full registration, despite the person not satisfying the eligibility requirement for section 32 (1) (b).
(2)The registration of the person is taken to be, and always have been, valid as if the issue or renewal of the registration had been validly done.
(3)To remove any doubt, anything done or omitted to be done before the commencement day in reliance on the person being registered, either by the person or in relation to the person, is taken to be, and always have been, validly done or omitted to be done.
The applicant in this case had been granted provisional registration, despite not satisfying the eligibility requirements in section 33(1)(a), due to having taught for more than the period prescribed in section 32(1)(b) (as the law stood prior to the 2023 Amendments). The effect of section 159 is to validate the applicant’s provisional registration.
It is well accepted that, in the absence of contra indications, this Tribunal is to apply the law as it applies at the time of the Tribunal’s decision.[54] The 2023 Amendments to the ATQI Act therefore apply to this review. This means that any concerns that might have been raised by the applicant having exceeded the period of teaching for eligibility for provisional registration no longer applies. Similarly, any implications that might arise from the limited time in which full registration might be sought, or for the renewal process, need not be considered further.
[54] In circumstances where the amendment to the legislation is for the benefit of the applicant no question of accrued right generally arises, see Legislation Act 2001 s 84; Esber v Commonwealth [1992] HCA 20; Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority & Ors [2015] ACAT 67
The respondent, in their submissions of 25 October 2023, also pointed to the explanatory statement accompanying the 2023 Amendments as support for the use of the school-based assessment process. The explanatory statement, in setting out the background to the 2023 Amendments, provides:
There are two categories of teacher registration in the ACT – provisional registration and full registration.
Provisional registration acknowledges that teachers e.g. teachers who have recently graduated, or teachers who have had a break from teaching, may not have taught long enough or whose experience is not recent, to meet the proficient standard detailed in the Standards. They are capable teachers who meet the graduate standard of the Australian Professional Standards for Teachers (the Standards).
Full registration acknowledges that a teacher has provided evidence that their knowledge and skills enable them to meet the proficient level of the Standards. In order to move to full registration, a teacher must be recommended by a professional guidance panel consisting of the teacher’s principal or delegate, their mentor and their supervisor. The teacher must demonstrate to this panel via 6-10 pieces of evidence and classroom observations that they meet all seven of the Standards at the proficient level.
The intent of the categories of provisional and full registration is to allow teachers time to develop their skills and knowledge at the provisional level and to encourage them to move from meeting the graduate Standards to meeting the proficient Standards within a reasonable timeframe.
The 2023 Amendments are not directly addressed to the role of a school-based assessment process. They do not amend the role of the Standards Determination, amend reference to the principal's certification in section 9(2) of the ATQI Regulation; or remove the potential role of notification of guidelines that might be applicable to the registration process. The description of the practical operation of the registration process in the explanatory statement is provided as background, rather than an attempt to describe the legal requirements of that process.
The respondent, in submissions made at the hearing on 22 November 2023, also pointed to the cases of Gill v Donald Humberstone & Co Ltd,[55] and Melbourne City Council v Telstra,[56] as support for the proposition that regulations should be interpreted in light of their intended application to “practical people skilled in the particular trade or industry”, rather than by “meticulous comparison of the language of [its] various provisions”.[57]
[55] [1963] 1 WLR 929
[56] [2020] FCAFC 200
[57] [2020] FCAFC 200 at [154]
I have attempted to act consistently with this general principle in this decision. As my analysis of the provisions suggests, the adoption of referencing the school‑based assessment process by the ATQI is generally consistent with the ATQI Act and ATQI Regulations. The nature of the standards to be applied, and the circumstances in which they are assessed, indicate the relevance and potentially conclusive weight to be applied to that school-based assessment. However, in my view, the ATQI Act and ATQI Regulations also require a willingness to depart from that process, and to consider the views of an applicant for full registration as to why they have met the relevant standard.
Stay on provisional registration
The question of the applicant’s eligibility for provisional registration also arose due to interim orders made at the conclusion of the main hearing in this matter. Those orders sought to, in effect, maintain the applicant’s provisional registration until a final decision was made. I made that order in response to the respondent’s submissions that the grant of provisional registration may have been invalid and that, without further order from the Tribunal, an issue may have arisen over whether the applicant could continue to teach while awaiting a decision in this matter. I made interim orders under section 53 of the ACAT Act to maintain the applicant's provisional registration and invited further submissions from the respondent on this matter.
Section 53 of the ACAT Act provides as follows:
53 Interim orders
(1)This section applies if, at any stage before an application is finalised in the tribunal—
(a)a party to an application applies to the tribunal for an order under this section; and
(b)the tribunal is satisfied that, if an order under this section were not made, the party applying for the order would be disadvantaged or suffer harm.
(2)The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.
Note The tribunal must observe natural justice and procedural fairness (see s 7).
(3)An interim order remains in force until—
(a)the tribunal orders otherwise; or
(b)the application is finalised in the tribunal.
(4)The tribunal may, on application by a party while an interim order is in force—
(a)vary the order; or
(b)revoke the order.
The respondent’s submissions referred to the decision in Abbey v Mack,[58] where Cowdrey J stated that an “order made under s 53 must be made subject to the overriding limit of ACAT’s jurisdiction”. Where there is no statutory power to grant or renew the applicant’s provisional registration, the Tribunal, as subject to the same jurisdictional limits of the ATQI, was not able maintain that provisional registration until finalisation of the matter.
[58] [2010] ACTSC 140
It could be argued that the Tribunal’s power under section 53 to issue interim orders is not dependent on whether the effect of those orders could have been validly done by the decision-maker, either under the powers which are the subject of review by the Tribunal or generally. The Tribunal’s jurisdiction in this matter is enlivened by the application for review of the ATQI’s decision.[59] The validity of the decision under review will of course be relevant to the correct or preferable decision of the Tribunal that is reflected in the orders made by the Tribunal under section 68(2) or 68(3). However, those sections are not expressed as a limitation on the orders that can be made by the Tribunal under section 53. It would be inconsistent with the interim nature of the orders under section 53 that they depend upon a determination of the validity of exercises of power which are the subject of the review. In any event, given the amendments to the legislation described above, the question of the invalidity of the applicant’s provisional registration no longer arises.
[59] See s 90 of the ATQI Act and s 9 of the ACAT Act
The question remains, however, whether it is appropriate to make orders that the applicant’s provisional registration be maintained while his application for full registration is considered. If the applicant was required to renew their provisional registration, and it may relevantly be part of a consideration of renewal that he has not successfully been granted full registration within what was considered a reasonable time period, it would have been appropriate, in my view, that he maintain his provisional registration while his application for full registration is being reconsidered.

The 2023 Amendments have allowed renewal of provisional registration beyond a limited time period in which full registration should be sought. Renewal, however, remains generally for a one-year term.[60] Unlike full registration and a permit to teach, provisional registration “may be renewed in circumstances, and for the period, the institute is satisfied on reasonable grounds as appropriate”.[61] An example of in what circumstances it may be appropriate to renew is included:
because of maternity leave, severe illness or other personal reasons a teacher is not able to gain the requisite teaching experience to achieve full registration within the prescribed period.
[60] See s 15 of the ATQI Regulations
[61] ATQI Act s 47(3)
It is noted that there is no longer a prescribed period in which full registration is to be achieved. However, the apparent intent of the amendments, as reflected in the explanatory statement, is to preserve the need for teachers to move to full registration within an appropriate time period. The length of time a teacher has been provisionally registered may therefore be relevant to the renewal, and period of renewal, of provisional registration.
The applicant is currently provisionally registered. Section 51(7) provides that, where a teacher applies to renew a registration under that section, the registration remains in force until the application is decided. There is no explicit provision for the effect on provisional registration of an application for full registration. It may be implicit that such an application would also maintain provisional registration while the application for full registration is decided. If not, it is certainly within the powers of the ATQI to renew provisional registration while the applicant’s eligibility for full registration is being reconsidered, and I will so direct.

Orders

The Tribunal orders that:
(a)the decision made by the respondent, in relation to the applicant’s application for full registration made on 6 March 2023 (Registration Application), is set aside and remitted for reconsideration.
The Tribunal directs that:
(a)Within 28 days of the date of this order, the applicant is to provide to the respondent any further evidence that the applicant considers is relevant to the respondent’s proper reconsideration of the Registration Application.
(b)Within 28 days of expiry of the period in order 2. above, the respondent is to reconsider the applicant’s Registration Application and give the applicant written notice that either:
(i)the respondent is satisfied on reasonable grounds that the applicant is eligible for full registration pursuant to the ACT Teachers Quality Institute Act 2010 (ATQI Act) section 32(1) and that he is fully registered as a teacher pursuant to ATQI Act section 36(1)(a); or
(ii)pursuant to ATQI Act section 30(3), the respondent requires the applicant to give the respondent additional information that it reasonably needs to decide the Registration Application, which the applicant must give within 28 days after the day the request is made; or
(iii)pursuant to ATQI Act section 36(6)(a), the respondent proposes to refuse the applicant’s Registration Application or decide the applicant's Registration Application under ATQI Act section 36(2) and:
(a)provide the applicant with written reasons for the proposed refusal or decision pursuant to ATQI Act section 36(6)(b)(i); and
(b)notify the applicant that he may make written comments on the proposed refusal or decision to the respondent before the end of 28 days after the day the notice is given to him pursuant to ATQI Act section 36(6)(b)(ii) (Notice of Proposed Decision).
(c)If the respondent gives the applicant a Notice of Proposed Decision and receives written comments on the proposed refusal or decision from the applicant before expiry of the stated period, the respondent must:
(i)consider the applicant’s comments pursuant to ATQI Act section 36(6)(c); and
(ii)within 28 days of receiving written comments from the applicant under direction 3(c)(ii) above, either refuse or decide the registration application.
(d)The respondent is to renew the applicant's provisional registration if the term of the provisional registration ends before reconsideration of the Registration Application is completed.

………………………………..

Senior Member D Stewart

Date(s) of hearing:	22 November 2023
Applicant	In person
Counsel for the Respondent:	Mr J A Larkings
Solicitors for the Respondent:	ACT Government Solicitor