Laura Wilson and Department of Education and Early Childhood Development

[2009] AATA 782

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 782

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3728

GENERAL ADMINISTRATIVE DIVISION		)
Re		Laura Wilson

Applicant

And Department of Education and Early Childhood Development

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date12 October 2009

PlaceMelbourne

Decision The Tribunal has jurisdiction to review the decision.

..............................................

Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – Mutual Recognition Act – whether the Tribunal has jurisdiction – application to have Tasmanian qualifications as a kindergarten teacher recognised in Victoria – the Tribunal has jurisdiction to review the decision

Children’s Services Act 1996 (Vic)

Children’s Services Regulations 2009 (Vic) regs 5, 60 and 62

Education and Training Reform Act 2006 (Vic) s 1.1.3

Mutual Recognition (Victoria) Act 1998 (Vic)

Mutual Recognition Act 1992 (Cth) ss 4, 17, 29 and 34

Teachers Registration Act 2000 (Tas) ss 5, 6 and 12

REASONS FOR DECISION

12 October 2009 Mr G. L. McDonald, Deputy President

1.      The applicant applied to the respondent to be registered as a kindergarten teacher in Victoria and to have her Tasmanian qualifications as a kindergarten teacher recognised in Victoria.  The application was made under the provisions of the Mutual Recognition Act 1992 (Cth) (“the Act”).  That Act has been adopted by the Victorian Parliament (Mutual Recognition (Victoria) Act 1998 (Vic)).  The respondent rejected her application on the basis that there is no ‘registration’ process in Victoria for kindergarten teachers and therefore the Act did not apply. The applicant has applied to this Tribunal for a review of the respondent’s decision. The respondent maintains that the Tribunal has no jurisdiction to hear and determine the application. This is an interlocutory hearing to decide the issue of jurisdiction.

2. The Tribunal has decided it does have jurisdiction to consider the application under s 34 of the Act.

3.      It is accepted by the respondent and the material before the Tribunal establishes, that the applicant has a Bachelor of Education degree, specialising in early childhood education, from the University of Tasmania awarded on 13 December 2008.  It is also accepted that the applicant is registered to teach at kindergartens in Tasmania.

4. Section 17(1) of the Act is as follows:

(1)The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:

(a)to be registered in the second State for the equivalent occupation; and

(b)pending such registration, to carry on the equivalent occupation in the second State.

5. What amounts to an equivalent occupation is dealt with in s 29 of the Act, which is as follows:

(1)An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

(2)Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.

6. The respondent argues that the Act applies to the registration of a person and not the registration of qualifications. It argues that kindergarten teaching in Victoria is governed by the Children’s Services Act 1996 (Vic) and regulations.  That Act does not require registration of the staff providing children’s services but as the respondent asserts it “makes provision for … regulations to regulate the qualifications of staff members.”[1]

[1] Respondent’s Submissions on Jurisdiction, paragraph 10.

7.      The starting point is to examine the legislation in Tasmania.  The Teachers Registration Act 2000 (Tas) provides a comprehensive scheme for the registration of teachers in that state. Section 5 establishes a Teachers Registration Board which is authorised to register teachers (s 6(a)). Only those who meet the qualifications set out in s 12 are eligible for registration. An applicant must satisfy two criteria before he/she can be registered vis have an appropriate academic and/or experiential background and be of good character (s 12(1)).

8.      In Victoria the Children’s Services Act governs the services offered to children prior to them commencing school.  It applies to services offered for a fee to four or more children aged under 13 years and who are not at school.  ‘School’ is defined in the Education and Training Reform Act 2006 (Vic) to refer to children over the age of six years attending school.  In Victoria early childhood teachers are not required to be registered but are required to hold nominated qualifications.

9.      Regulation 5 of the Children’s Services Regulations 2009 (Vic) defines ‘qualified staff member’ by reference to two broad categories – a teacher staff member and a carer member.  A teaching staff member is further defined relevantly in this case as a staff member with a childhood teaching degree or above (reg 5).  The regulations deal with requirements for family day care services as well as educational centres.  Regulation 60(a) relevantly provides that a person caring for or educating children (except for day care services) must hold a Certificate III in Children’s services.

10.     Regulation 62 provides that the Secretary may declare a qualification or training to be equivalent or superior qualification for the purpose of reg 60.  The Secretary has made declarations under reg 60 for some Tasmanian qualifications but they do not extend to include the qualifications held by the applicant.[2]  The applicant’s Tasmanian qualification has not been approved.  An undated letter sent to the applicant from the respondent advised:

To be eligible for employment as an early childhood teacher in a Victorian kindergarten that receives funding from the Victorian Government, you must have completed an early childhood teaching qualification at degree level or above that has been approved by the Secretary of the Department of Education and Early Childhood Development or a course of study that is assessed as substantially equivalent or superior. …

[2] Victorian Government Gazette No S 275 of 11 August 2009.

11. From the above it is evident that the Victorian Children’s Services Act and Children’s Services Regulations mandate the qualifications necessary to undertake kindergarten teaching but do not require kindergarten teachers to be registered in the formal sense as provided for in Tasmania.  However, that does not end the matter.

12.     From the above it is also apparent that Tasmania and Victoria have differing legislation governing the care and/or education of children in their last year before attending, and first year at, school respectively.  This results in differing requirements being applied to people in the applicant’s position who want to teach in kindergartens.  It is not the differences in legislation which will necessarily lead to an applicant not being able to take advantage of the mutual recognition principles.  Regard must be had to the substance.

Does The Mutual Recognition Act Apply?

13. The Act defines ‘registration’ broadly in s 4(1) as follows:

“registration” includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation …

14.     The qualifying words upon which the respondent relies in rejecting the application are ‘of a person’.  It submits that there is no equivalent registration provision in Victoria which would extend to the applicant as such.  The minimum qualifications provision in reg 60 referred to above deals with ‘qualifications’ and not registration.  However, without that qualification a person is not authorised to educate children under six years of age in Victoria.  A proprietor of a children’s education service is prohibited from employing a person not appropriately authorised by his/her qualification to educate children.  In the absence of any other factor it is the qualification which provides authorisation of the person.  It would be, in the Tribunal’s view, to take too narrow a view, of legislation designed to have a wide ambit, to conclude that the regulation authorises a qualification, but not the person holding the qualification, if otherwise equivalence is found to exist in respect of the person’s occupation between the first and second states.

15. The Tribunal has regard to ss 29(1) and (2) of the Act which contemplate the imposition of conditions to ensure equivalence is maintained in circumstances where there may be some differences in the functionality of the occupation. That may be a matter which it is necessary to consider at the hearing of the substantive case.

16. The purpose of this hearing is not to determine whether equivalence exists under the Act but to determine whether the Tribunal has jurisdiction. The Tribunal is satisfied that jurisdiction exists. The matter should be set down for a conciliation conference.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G. L. McDonald, Deputy President

Signed:         .....................................................................................
  D De Andrade          Personal Assistant

Date of Hearing  5 October 2009
Date of Decision  12 October 2009
Representative for the Applicant     Mr K. Wilson
Counsel for the Respondent           Mr G. Hill

Solicitor for the Respondent            Ms N. Maugueret,

Victorian Government Solicitor's Office