O'Chin v Queensland College of Teachers
[2010] QCAT 559
•8 November 2010
| CITATION: | O’Chin v Queensland College of Teachers [2010] QCAT 559 | |
| PARTIES: | Ms Hope O’Chin | |
| v | ||
| Queensland College of Teachers | ||
| APPLICATION NUMBER: | OCR150-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 1 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe (presiding), Julie Cowdroy, Beverley Day |
| DELIVERED ON: | 8 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The proceeding is dismissed and the decision of the respondent is affirmed. 2. Each party is to bear the party’s own costs of the proceeding. |
| CATCHWORDS : | TEACHERS – registration – where applicant let registration lapse – where applicant applied for full registration – where applicant had no recent teaching experience - where respondent granted provisional registration – whether recency requirements should be applied – whether grounds to waive compliance with recency requirements Education (Queensland College of Teachers) Act 2005 ss 8, 29 Education (Queensland College of Teachers) Regulation 2005 ss 6, 11 Acts Interpretation Act 1954 ss 14A, 14B Queensland Civil and Administrative Tribunal Act ss 24, 100, 102 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self-represented |
| RESPONDENT: | Mr A Johnson of counsel, instructed by the Queensland College of Teachers |
REASONS FOR DECISION
Until 1 July 2005, Ms O’Chin held full registration status as a teacher in Queensland. Upon an application for re-registration, the Queensland College of Teachers (“the College”) granted Ms O’Chin provisional registration. Ms O’Chin wants this tribunal to review that decision and substitute the following decision:
a)Her full registration is reinstated;
b)That the College pay Ms O’Chin’s costs of this proceeding;
c)That Ms O’Chin receive a formal apology from the College;
d)The costs of filing an application for registration be credited to Ms O’Chin’s full registration;
e)The tribunal consider whether the College should pay Ms O’Chin compensation for lost income.
f)The Ms O’Chin receive acknowledgement for her qualitative contributions to education, training and employment.
The issues
The registration of teachers is governed by the Education (Queensland College of Teachers) Act 2005 (“the Act”). Section 8 sets out the criteria for full registration. Relevantly, it provides:
A person is eligible for full registration if the college is reasonably satisfied—
(a) either—(i) the person has attained the qualifications and experience for full registration prescribed under a regulation; or
(ii) the person’s education, demonstrated abilities, experience, knowledge and skills establish that the person meets the requirements under the professional standards for full registration; and
(b) the person is suitable to teach; and
….
(d) the person meets any other requirements for professional practice for full registration prescribed under a regulation
The College concedes that Ms O’Chin has the relevant qualifications. The issue is whether she has the relevant experience.
Ms O’Chin’s statement of claim raised many matters as specific issues but, at the hearing, she reduced these concerns to three:
a)QCT’s blatant disregard of the Privacy Act 1988.
b)That QCT’s policies and procedures are in disregard of the Act.
c)QCT’s discriminatory conduct.
Because of the nature of Ms O’Chin’s suggested order, it will also be necessary to decide whether the Tribunal has power to make the orders sought.
Does Ms O’Chin have the relevant experience?
Section 6(1) of the Education (Queensland College of Teachers) Regulation 2005 (“the Regulation”) defines “experience” as:
a)Successful completion of 1 year of teaching at a school; or
b)Other experience the college is satisfied is the equivalent of successful completion of 1 year of teaching at a school.
Ms O’Chin points out that she has more than satisfied those requirements, as she was teaching in Queensland for a number of years.
The College has provided the tribunal with a copy of internal policy guideline 1.5 which provides, in a roundabout way, a definition for the experience component of eligibility for full registration as “taught for at least one year in the previous five years in a setting accepted for the purpose of gaining full registration in Queensland as outlined in Internal Policy Guideline 4.14(i) and have evidence of the teaching experience.” (“the recency requirement”). That policy is consistent with the provision of section 11 of the regulation which relates to the recency requirements of teachers renewing their registration.
QCT argued that section 6 of the regulations should be interpreted as requiring the “recent” successful completion of one year’s duty as a teacher and “recently” should be interpreted as requiring completion within a reasonable period such as five years immediately preceding the application. The argument runs thus:
a)Section 14A of the Acts Interpretation Act 1954 requires that the proposed interpretation is the one that best achieves the purposes of the Act. The purposes of the Act, set out in section 3(1), to uphold the standards of the teaching profession, to maintain public confidence and to protect the public by ensuring that education is provided in a professional and competent way by approved teachers.
b)Section 14B of the Acts Interpretation Act 1954 allows the use of extrinsic evidence to provide an interpretation if the provision is ambiguous or obscure, the ordinary meaning leads to a result that is manifestly absurd or unreasonable or to confirm the interpretation conveyed by the ordinary meaning of the provision.
c)The inclusion of the recency requirement best achieves the purpose of the Act because, in the second reading of the Act[1], the Minister for Education and Minister for the Arts said:
“In relation to the matter of recency of practice requirements, which the member raised, if he looks at section 30 he will see an obligation on the college to establish a framework for continuing professional development. It will do that in consultation with stakeholders. Once that is established, the college will also determine policies that will apply to the recency of practice requirements and these policies will be incorporated into a regulation. In essence, the recency of practice provision will require the applicant to demonstrate that they have maintained an adequate connection with the profession. The minimum amount of teaching practice required will be one year, whether full time or part time, in the five years preceding the renewal application. The precise details of that will be set out in a regulation.”
d)The recency requirement is central to the expressed objects.
e)The second reading speech makes it clear that it was always intended that the regulations would deal with recency. Its omission was inadvertent within the terms of section 14B of the Acts Interpretation Act 1954.
f)Without the recency requirement, an absurdity is created because:
i) pursuant to section 29 of the Act, a teacher cannot renew full registration without recency of practice;
ii) if a teacher cannot renew registration because of a lack of recency, s/he can apply for registration under section 8 of the Act and, therefore, avoid the recency requirement.
[1] Hansard 25 October 2005 at page 3466
10. There is no justification for having recourse to the second reading speech to determine the objects of the Act unless and until the interpretation of the objects falls within the provisions of section 14B of the Acts Interpretation Act 1954. The tribunal does not consider that the terms of section 3 of the Act are ambiguous, obscure or lead to a manifestly absurd or unreasonable result. Recourse to the second reading speech is not necessary to confirm the ordinary meaning of the provision.
11. The terms of section 8 of the Act and section 6 of the Regulation are not ambiguous or obscure. Unless the ordinary meaning of the provision leads to a manifestly absurd or unreasonable result, there can be no justification for implying the recency requirement into section 6 of the regulation.
12. The tribunal does not accept that the omission of the recency requirement from section 6 of the regulation was inadvertent. The requirements for renewal of registration set out in section 29 of the Act are extensive. Recency of practice is referred to expressly. If a teacher does not meet the recency of practice requirements, section 29(3) states that QCT must renew the registration subject to a returning to teaching condition. It is inconceivable that Parliament would be so specific in relation to renewal of registration and simply “forget” the requirement for a person returning to teach.
13. Nor does the tribunal accept that the regime of returning to teach necessarily creates an absurd result as suggested by QCT. It seems clear that, while Parliament thought that experience was important to a teacher returning to work, it was not necessarily a pre-requisite. Later on in the second reading speech, this exchange takes place:
Mr COPELAND: I have a quick question regarding the recency of practice for teachers. A number of members talked about one in five. It is not specifically referred to here, but it will come under this clause. A number of members have talked about women in particular who leave the teaching profession to start a family. Does the minister have any idea how many registered teachers there are who will not meet that recency of practice requirement?
Mr WELFORD: We do not have precise numbers, and the numbers change all the time as people make the decision whether to come back into the profession. To the extent that I can give a response to that question, I am happy to take it on notice and make some further inquiries. I am not sure whether we know precisely how many will be affected by this. I think the starting point is that we decide what the principles ought to be for maintaining broad competency and ensure that those principles are fairly and consistency applied to everyone. Whether it is 200 or 200,000 is probably not the issue.
14. As QCT has conceded, a court or tribunal should be slow to interfere with the words of the legislation. The tribunal is satisfied that Parliament intended that, in relation to teachers returning to work after an absence, the recency requirements are a policy to be applied fairly and consistently.
15. There is really no dispute that Ms O’Chin does not meet the recency requirement as she has not engaged in any teaching since 2000. Ms O’Chin argues that compliance with the policy should be waived because:
a)She has extensive teaching experience throughout her career;
b)She has been involved in curriculum development at a high level. Many of the curriculum standards she developed, particularly for indigenous children, are still in use today;
c)She let her registration lapse because of financial disadvantage, injury from a motor vehicle accident and personal hardship and the application of the policy takes no account of those circumstances;
d)She has recently engaged in postgraduate study and is currently enrolled in Doctorate program at Queensland University of Technology.
16. The tribunal acknowledges Ms O’Chin’s extensive experience and her very fine work in the promotion of indigenous education. That, in itself, cannot be a reason to waive the application of the policy. The tribunal also acknowledges the impressive references and letters of support. Unfortunately, those references deal with Ms O’Chin’s work in earlier decades and do not deal with her recent activities.
17. The tribunal has no real evidence of Ms O’Chin’s disadvantage. She provided a copy of a recent Centrelink statement but this does not address the period 2005 to date. Ms O’Chin did not provide copies of medical reports and she could not name her treating orthopaedic surgeon. She did not apply for a waiver of fees due to personal hardship pursuant to section 38 of the regulation.
18. Ms O’Chin told the tribunal in evidence in chief that she had completed a master’s degree at the University of Queensland. In fact, she has completed only two of the required subjects. They were completed in 1987.
19. Ms O’Chin also told the tribunal that she is enrolled in a doctoral program at the Queensland University of Technology but her application for renewal of registration notes that she is currently not enrolled. The confirmation of enrolment dated 15 January 2003 notes that Ms O’Chin was required to complete a prerequisite subject; there is no evidence that Ms O’Chin completed this subject.
20. The tribunal is satisfied that the further study undertaken by Ms O’Chin does not justify a waiver of compliance with the recency requirements. Therefore, the tribunal is satisfied that Ms O’Chin does not meet the experience requirements for full registration.
The Privacy Act 1988
21. Ms O’Chin argued that QCT’s obligations pursuant to this Act – to keep her employment records and to use them properly in the assessment of her application, - should have meant that certain information in her records should have been available and assessed without subjecting her to questions she found embarrassing and offensive. In a perfect world that may be so but the transition from one administrative regime to another is never without its problems. The oversight cannot be a ground for waiving compliance with the recency requirement.
22. The tribunal notes that the Act specifically states that the Criminal Law (Rehabilitation of Offenders) Act 1986 does not apply.
The College policy is in contradiction to the Act
23. The essence of Ms O’Chin’s argument is that the recency requirements are not part of the legislation. Ms O’Chin took much comfort from the QCT’s argument that the legislation was lacking and that the tribunal should imply the recency requirements into it.
24. As the tribunal has already determined, while the legislative framework is not ideal, the policy is not inconsistent with the Act. It explains and refines the need for experience in a way that was contemplated by Parliament while still allowing for the exercise of discretion.
The College was discriminatory in the application of the policy
25. Ms O’Chin called Ms Liz Bond as a witness. Ms Bond is the Coordinator of the Aboriginal & Torres Strait Islander Unit of the Anti-Discrimination Commission Queensland. Ms Bond informed the tribunal that she appeared on her own behalf and not as a representative of the Commission. She read a prepared statement to the tribunal. The tribunal found Ms Bond’s insights and contribution of assistance.
26. Ms O’Chin told the tribunal that she wanted Ms Bond to give evidence in her capacity as a representative of the Commission. As Ms Bond declined to do so, Ms O’Chin did not have any questions.
27. Both Ms Bond and Ms O’Chin spoke of the difficulties, both historical and current, that Aboriginal people face in accessing educational opportunities in Queensland. The tribunal acknowledges those difficulties but, given that the tribunal is constituted as an occupation regulation tribunal and not an anti-discrimination tribunal, it can only give weight to those matters to the extent that they impact upon the application of the policy.
28. Ms O’Chin has not provided any evidence of discrimination against her in the application of the policy. While the tribunal acknowledges that discrimination can be subtle and indirect, there is simply no justification for setting aside the QCT decision on this basis.
Does the tribunal have the power to make the orders sought by Ms O’Chin?
29. Section 24 of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) sets out the jurisdiction of the tribunal. It may:
a)confirm or amend the decision;
b)set aside the decision and substitute its own decision;
c)set aside the decision and return the matter for reconsideration to the decision maker.
30. The tribunal’s power in this proceeding is limited to dealing with Ms O’Chin’s provisional registration. It therefore follows that the tribunal has no power to order an apology or compensation for lost income. Those remedies may have been available by agreement during the compulsory conference, such is the flexibility of that process under section 69 of the QCAT Act.
31. Ms O’Chin also seeks an order for costs. Section 100 of the QCAT Act provides that, generally speaking, each party should bear its own costs of the proceeding. The matters to which the tribunal may have regard in considering whether to order costs are set out in section 102 of the QCAT Act. Other than a vague assertion that an order for costs would be in the interests of justice, Ms O’Chin has not provided the tribunal with any reasons for departing from the general position.
Conclusion
32. The requirement that a teacher seeking full registration have recent teaching experience is a policy to be applied fairly and consistently. It should not be elevated to the status of a regulation unless and until Parliament so decides.
33. Ms O’Chin does not have recent teaching experience.
34. Ms O’Chin has not given the tribunal any good reason why compliance with the policy should be waived.
35. The decision of the QCT – to grant provisional registration – is confirmed.
36. Each party is to bear the party’s own costs of the proceeding.
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