Rachelle and Victorian Institute of Teaching

[2023] AATA 2722

Rachelle and Victorian Institute of Teaching [2023] AATA 2722 (25 August 2023)

Division:GENERAL DIVISION

File Number:          2022/7062

Re:Georgina Rachelle

APPLICANT

AndVictorian Institute of Teaching

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:25 August 2023

Place:Melbourne

The Tribunal sets aside the decision of the Victorian Institute of Teaching dated 28 July 2022 to not reinstate the applicant’s registration and substitutes a decision to reinstate the applicant’s cancelled registration under s 32(2) of the TTMR Act.

....................[sgd]....................................................

Deputy President Britten-Jones

CATCHWORDS

Trans-Tasman Mutual Recognition Act 1997 (Cth) - applicant's Victorian registration as a teacher cancelled under s 32(1) - drink driving convictions in New Zealand and various charges in Australia withdrawn, dismissed on appeal or recorded without conviction - failure to comply with statutory reporting obligations - whether appropriate in the circumstances to reinstate registration under s 32(2) - decision under review set aside and substituted

LEGISLATION

Trans-Tasman Mutual Recognition Act 1997 (Cth)

Education and Training Reform Act 2006 (Vic)

CASES

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Kardash v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2022] VCAT 60

Shi v Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

Explanatory Memorandum, Education and Training Reform Amendment Bill 2009 (Vic)

REASONS FOR DECISION

Deputy President Britten-Jones

25 August 2023

Introduction

1. The applicant (Ms Rachelle) was trained as a school teacher and wishes to regain her registration with the respondent (the Victorian Institute of Teaching or VIT). The application is made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) (the TTMR Act) because the applicant’s registration to teach in New Zealand was cancelled by the New Zealand Teachers Disciplinary Tribunal after it found that the applicant had failed to disclose two criminal convictions. The New Zealand decision was then relied upon by the Victorian Institute of Teaching to cancel Ms Rachelle’s registration as a teacher in Victoria under the TTMR Act.

2. The issue for the Tribunal is whether it is appropriate to reinstate Ms Rachelle’s registration with the Victorian Institute of Teaching.

3. The TTMR Act provides at s 32(1) that if a person’s registration in an occupation in New Zealand is cancelled on disciplinary grounds then the person’s registration in the equivalent occupation in an Australian jurisdiction is also cancelled. Section 32(2) provides that the local registration authority of the Australian jurisdiction (in this case, the Victorian Institute of Teaching) may reinstate any cancelled registration ‘if it thinks appropriate in the circumstances’. The decision under review is the decision of the Victorian Institute of Teaching dated 28 July 2022 to refuse to reinstate Ms Rachelle’s registration. 

4. The issue as to whether it is appropriate to reinstate the cancelled registration will be informed by the Education and Training Reform Act2006 (Vic) (the ETR Act) which is the Victorian legislation by which the Victorian Institute of Teaching registers and regulates teachers.

   The cancellation of Ms Rachelle’s teacher registration in New Zealand

5. The documentary evidence before the Tribunal establishes the following facts relating to events in New Zealand.

6. A document from the Education Council of New Zealand dated 13 August 2015 records that Ms Rachelle applied to be registered to teach in New Zealand based upon a declared registration as a teacher in Australia.

7. On 17 July 2019 the New Zealand Teachers Disciplinary Tribunal decided under the Education Act 1989 (New Zealand) to censure Ms Rachelle and to cancel her registration as a teacher in New Zealand. The New Zealand Tribunal relied upon two offences of drink driving committed by Ms Rachelle:

   (a)On 2 August 2016, Ms Rachelle was convicted of drink driving and sentenced to 50 hours of community work, six months’ supervision and disqualification from driving for eight months; and

   (b)On 26 October 2017, Ms Rachelle was convicted of drink driving and sentenced to 100 hours of community work, intensive supervision for one year and indefinite disqualification from driving or holding a driver’s licence.

8. The New Zealand Tribunal described the offending in its reasons as follows:

   [19] We can briefly recite the facts behind each of the respondent’s convictions. Starting with that referred to the Tribunal, the summary of facts records that Mr (sic) Rachelle, at about 5:15pm on 9 June 2017, was stopped on Waenga Drive in Cromwell while driving a Nissan vehicle. The police officer, while speaking to the respondent, noticed “a strong smell of alcoholic liquor” and the respondent “appeared to be affected by alcohol”. The respondent underwent breath testing procedures and returned the result described at the beginning of the decision. In light of her high reading, the respondent’s vehicle was impounded for 28 days.

   [20] The offending in 2016 was somewhat more serious. The respondent drove to the Cromwell Police Station on Sunday 17 July 2016 “to inquire about an incident”. A “strong smell of alcohol filled the Cromwell police station”. The respondent left the station, got into her vehicle and “drove a short distance to the Cromwell New World on Murray Terrace, Cromwell”. She was stopped by police as she got out of her vehicle and then refused to undergo a breath screening test, “stating that she was not driving on a road and that the officer was not wearing a hat”. This was despite the fact that the officer was in full uniform and driving a marked police vehicle. While initially refusing to accompany the officer, the respondent “eventually returned” to the station. A blood sample was requested after Ms Rachelle “was unable to complete two evidential breath screening tests”. The summary described the respondent as “very belligerent and obstructive throughout the entire procedure”. Analysis of the respondent’s blood sample provided the high reading described earlier in this decision. The summary described the respondent as “an Australian national driving on a Victoria driver’s licence”.

9. Aggravating features found by the New Zealand Tribunal were the level of alcohol involved, that the two convictions were recorded within 11 months of each other, and that Ms Rachelle breached her statutory obligation to disclose her convictions to the Teaching Council.

10. The New Zealand Tribunal found:

    [37] We are of the view that Ms Rachelle’s commission of a second drink-driving offence within a year of the first strongly suggests that she has a harmful relationship with alcohol and poor self-regulation. The combination of sentences imposed in the District Court in 2016 and 2017 are instructive in this regard. Supervision and intensive supervision comprise rehabilitative sentencing options. Clearly, on each occasion the Court considered that some form of intervention was required to curtail Ms Rachelle’s harmful use of alcohol and to reduce her risk of reoffending. Following her 2017 conviction, the respondent was referred to the Community Alcohol and Drug Services (CADS). We were provided with a letter written by CADS to the Department of Corrections, which was responsible for supervising her sentence. The letter explained that CADS intended to discharge Ms Rachelle from its programme because she declined to accept she has a harmful relationship with alcohol. The letter stated:

    [This] is the second occasion that your client has been referred, by your agency, to CADS. During the interview your client made it fully clear that she did not consider her alcohol use to be a problem, even in light of having a second EBA conviction within an 18 month period. Due to her present unwillingness to work on her alcohol use, there is little that CADS can offer to Ms Rachelle at this stage.

    [38] The respondent’s refusal to participate in treatment necessitates a finding that she lacks insight and continues to pose a risk of re-offending. The fact that Ms Rachelle attributed her apprehension in 2017 to an apparent conspiracy between police and a private business indicates a preparedness to deflect responsibility for her actions to others. Ms Rachelle’s submission that the Council bears part of the responsibility because of the way it dealt with her registration is a further example of her willingness to blame others for the way she behaved. Whatever degree of frustration it caused her, there is no obvious link between the delay in achieving registration and the respondent’s decision to drive while intoxicated.

    [39] Of additional concern is that Ms Rachelle alluded to a preparedness to drive while intoxicated when told us that “if I was the slightest bit over I was pulled up [by police]”. This admission gives us little confidence that Ms Rachelle appreciates her responsibility, as a teacher, to model lawful behaviour. This undermines her fitness to teach.

    …

    [42] … Ms Rachelle has exhibited a … complete lack of insight and no ownership of her predicament. Ms Rachelle’s challenge to the legitimacy of this proceeding left us with the distinct impression that she has little appreciation why breaking the law is perceived by the profession as a serious matter, which calls into question her ability to model appropriate behaviour for those she might teach in future.

    [43] Given the respondent’s lack of insight and poor judgement, we have come to a different view to the CAC regarding penalty. We conclude that censure and cancellation are the only means by which to achieve the purposes of maintaining professional standards and preserving the public’s confidence in the teaching profession. Simply put, given the respondent’s lack of engagement, there is no viable, less restrictive alternative.

    [44] Our view that no penalty short of cancellation will meet the disciplinary purposes we have identified is amplified by the fact that the respondent conducted herself in an entirely unprofessional way during this proceeding. Ms Rachelle’s pre-hearing dealings with the CAC, which we set out earlier in this decision, prompted Ms Mok to submit:

    [The] respondent’s conduct in the course of the Committee process and the present Tribunal proceedings is also relevant, and reflects adversely on her fitness to be a teacher.

    …

    [55] The belligerent and unprofessional way in which the respondent conducted herself in this proceeding cannot be disregarded. It is behaviour of a type that reinforces our conclusion that she lacks professional judgement and is therefore not fit to teach. We emphasise that we have not decided to impose a more severe penalty to punish Ms Rachelle’s poor behaviour in this proceeding. Rather, the way in which she behaved had a direct bearing on our assessment of her character. It means that we cannot step back from cancellation.

11. Ms Rachelle filed an appeal which was dismissed by the New Zealand District Court on 11 November 2020. The Judge on appeal said:

    [54] I consider the driving with excess blood alcohol to be of a moderate to high gravity of offending of its kind. Two convictions within a short space of time indicate that she may have a problem with alcohol, particularly given the lack of insight shown. This type of offending sets a very poor example for children. The convictions and her blasé attitude towards them adversely reflect on her fitness as a teacher.[1]

    [1] T8, 67.

12. Ms Rachelle made an application for leave to appeal to the Court of Appeal of New Zealand, but it was declined on 12 August 2021.

    Conduct in Australia

13. The documentary evidence before the Tribunal establishes the following facts relating to events in Australia.

14. On 2 December 2010, Ms Rachelle wrote to the Victorian Institute of Teaching and provided a statutory declaration with respect to an incident in 2006. The letter explained that Ms Rachelle was working on the checkout of a Safeway store and had used her 5% staff discount to assist pensioner customers who were short a couple of dollars once all the groceries had been scanned. She did not receive any financial gain for her actions which she saw as acts of kindness. She was charged with financial gain by deception. She pleaded guilty but the judge accepted that Safeway did not suffer any financial harm. The judge did not record a conviction but ordered her to donate $200 which she did. When filling out the teaching registration form requiring disclosure of convictions she wrote ‘no’ because her conviction had not been recorded.

15. Ms Rachelle was first registered as a teacher in Victoria on 7 February 2011.

16. On 26 August 2019 Ms Rachelle submitted an application to the Victorian Institute of Teaching to renew her registration in Victoria for the 2019/2020 period. The New Zealand drink driving convictions were not disclosed in this application. On 30 July 2020, Ms Rachelle submitted an application to renew her teaching registration for the 2020/2021 period. The New Zealand drink driving convictions were not disclosed in this application. Further, she was required to disclose in that application if she had ever held a registration as a teacher overseas, if that registration had been cancelled for any reason, if she had been found guilty of a criminal offence in Victoria or elsewhere, if she had resided in a country other than Australia in the past two years for a period of 12 months or more and if she had resided in a country other than Australia during the last 10 years. She did not answer yes to any of these questions.

17. On 26 April 2021 Ms Rachelle was charged with three counts of making threats to kill and one count of using a carriage service to menace (the Hollyoak charges). These charges arose from allegations made by Ms Rachelle’s sister of conduct said to have taken place between December 2018 and April 2021. On 4 May 2021, the Victorian Institute of Teaching was notified of the Hollyoak charges by Victoria Police. On 29 July 2021, Ms Rachelle entered a plea of guilty to the Hollyoak charges and was convicted and fined an aggregate of $1000. The Hollyoak charges were later dismissed on appeal on 25 November 2021. After hearing evidence from Ms Rachelle, her sister and her mother, the Judge took the view that the case concerned heated, colourful words between family members, but this fell short of proving the charges. Prior to that dismissal the Victorian Institute of Teaching had written to Ms Rachelle on 4 August 2021 with respect to the Hollyoak charges expressing its concerns. Ms Rachelle telephoned the Victorian Institute of Teaching on 7 October 2021 and said she was appealing the conviction and explained that the court proceedings related to a fall out with her sister who had slept with her husband in 2018. 

18. On 22 November 2021, Ms Rachelle was charged with four counts of contravening a family violence intervention order, one charge of using a carriage service to harass, and one charge of persistent contravention of family violence intervention order (the Finelli charges). Those charges arose from further allegations made by the sister of Ms Rachelle with respect to conduct said to have taken place between August and November 2021. On 23 November 2021, the Victorian Institute of Teaching was notified of the Finelli charges by Victoria Police. On 8 July 2022 Ms Rachelle appeared in the Magistrates Court at which time the four charges of contravention of a family violence intervention order and the single charge of use of a carrier service to harass were withdrawn. With respect to the charge of persistent contravention of a family violence intervention order, a finding of guilt was entered against Ms Rachelle without conviction and she was fined $500.

19. On 16 March 2022, the Victorian Institute of Teaching wrote to Ms Rachelle notifying her that since the 4 August 2021 letter, the Institute had been made aware of the Finelli charges and of the convictions in New Zealand and the subsequent cancellation of her registration to teach in New Zealand. Ms Rachelle was asked to provide a response as to each of these matters by 1 April 2022.

20. On 5 April 2022, the Victorian Institute of Teaching cancelled Ms Rachelle’s registration under s 32(1) of the TTMR Act, having been made aware of the cancellation in New Zealand. Ms Rachelle provided submissions seeking reinstatement dated 11 April 2022.

21. On 28 July 2022, the Victorian Institute of Teaching provided its reasons for the decision to not reinstate.

    Evidence from Ms Rachelle

22. Ms Rachelle represented herself before the Tribunal. She gave oral evidence and also relied upon her handwritten material dated 11 April 2022 and 19 January 2023.

23. Ms Rachelle explained how as a checkout operator for Safeway in 2006 she used her staff discount card for elderly customers who were short a small amount of money when paying for their groceries. In her first application to the Victorian Institute of Teaching in 2010 she did not disclose the Safeway incident because the question she was required to answer was whether she had ever been convicted of a criminal offence and the answer to that was ‘no’.

24. She obtained her registration to teach in Victoria and taught at schools including Scotch College and Star of the Sea. She taught for a few years and then went to New Zealand where she initially worked for New Zealand Ski in Queenstown and then later for Air New Zealand. She applied in New Zealand for registration as a teacher but she thought that her registration was not recognised and she never followed it through because she had other employment. Upon being shown the record from the Education Council of New Zealand dated 13 August 2015 she accepted that her registration may have been processed but she said that she never worked as a teacher in New Zealand and she never received any confirmation of registration.

25. Whilst in New Zealand Ms Rachelle was subjected to domestic violence by her husband which resulted in her being hospitalised. Her husband was eventually convicted. With respect to her drink driving charges in 2016 and 2017 she said that she drove because she was trying to escape from her husband who was on drugs and coming at her with an axe. She said that she did not disclose these convictions to the New Zealand Teaching Council because she considered that she was never ‘enrolled’ and was not teaching. She explained that her convictions came after the date of the registration application document. She was working at the time at Air New Zealand who were aware of the drink driving incidents and were concerned about her safety from her husband.

26. Ms Rachelle was in New Zealand for about eight years from May 2013 to Anzac Day 2021.  Prior to leaving New Zealand she found out from her ex-partner that he had slept with her sister. She described her sister as a psychopath and provided the Tribunal with a record from a mental health service showing that her sister had been admitted to a psychiatric unit for a fortnight from 25 July 2020.

27. In relation to the Hollyoak charges, there was a re-hearing on 25 November 2021 at which the County Court Judge allowed the appeal and dismissed the charges. Under cross examination, Ms Rachelle said that she did make some threats because her sister had slept with her partner and had ruined her life. She said that it was a normal reaction but that the charges are not relevant because they were struck out.

28. In relation to the Finelli charges, they were withdrawn except for one charge of contravention of a family violence intervention order for the period 29 August 2021 to 9 September 2021.  Ms Rachelle accepted that she did breach that order but only by speaking to her mother.

29. Ms Rachelle accepted under cross examination that she did not disclose her New Zealand drink driving convictions in her July 2020 application for registration to teach in Victoria. She accepted that she was in New Zealand for 8 years but explained that she was shuffling back and forth between Australia and New Zealand. She said that she is a good and experienced teacher and that as a victim of domestic violence she can teach kids how to stand up for themselves. She has no impairments and provided a medical certificate dated 13 December 2021 that she has no mental health issues.

    Consideration

1. The Victorian Institute of Teaching contends that it is inappropriate to reinstate Ms Rachelle’s registration because she is not fit to teach. It relies on the definition in the ETR Act of fitness to teach which means whether the character, reputation and conduct of a person are such that the person should be allowed to teach in a school. They note that an applicant’s registration may be refused under s 2.6.9(2) of the ETR Act on the following grounds:

   (a)that the character of the applicant is such that it would not be in the public interest to allow the applicant to teach in a school;

   …

   (c)that the applicant has engaged in category C conduct and—

   (i)the ability of the applicant to teach in a school is likely to be affected because of the conduct engaged in; or

   (ii)it is not in the public interest to allow the applicant to teach in a school because of the conduct engaged in;

   (d)that the applicant has previously held a right to teach (being the equivalent of registration as a teacher under this Act), or been employed as a teacher, in a school in another State or Territory or another country and that right or employment has been cancelled or suspended and not restored because of conduct which, if committed within Victoria, would entitle the Institute to suspend or cancel the registration;

   …

   (f)that the applicant has not produced evidence which satisfies the Institute of his or her suitability to teach.

2. The Victorian Institute of Teaching submit that it is open to me to rely on allegedly criminal conduct which is not the subject of a conviction or a finding of guilt. Reference is made to

   
   

   s 1.1.3C(1)(d) of the ETR Act which provides that Category C conduct includes conduct that forms the basis of a non-conviction charge. There is a helpful analysis of the legal framework relating to Category C conduct in Kardash v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2022] VCAT 60.[2]

   [2] See from [38].

3. In considering the weight to be given to Category C conduct I would consider all of the circumstances including whether there is probative evidence that establishes on the balance of probabilities the alleged conduct or any other relevant conduct.

4. The fitness to teach definition in the ETR Act is based on general ‘fit and proper’ common law principles.[3] The High Court considered the meaning of ‘fit and proper person’ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where Toohey and Gaudron JJ said at 380:

   The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

   [3] Explanatory Memorandum, Education and Training Reform Amendment Bill 2009 (Vic) cl 11.

5. Toohey and Gaudron JJ said later in their reasons:

   The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[4]

   [4] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388.

6. The High Court in Shi[5] considered s 303(1)(f) of the Migration Act 1958 (Cth) and said:

   The ground in s 303(1)(f) involves the Tribunal in considerations of a different kind. The ordinary meaning of a person's "integrity" is plain enough. The expression "fit and proper" is one traditionally used with reference to an office or vocation, "fit" being referable to a person's honesty, knowledge and ability.

   [5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [148]-[149].

7. I will consider below the conduct which the Victorian Institute of Teaching relies upon to impugn Ms Rachelle’s fitness to teach.

   The drink driving convictions in 2016 and 2017

8. The drink driving convictions were considered by the New Zealand Disciplinary Tribunal and I adopt their findings set out above subject to the following.  I accept Ms Rachelle’s evidence that she never taught in New Zealand and was not aware that her application for registration as a teacher in New Zealand had been accepted. The Victorian Institute of Teaching provided no documentary evidence of actual registration in New Zealand except for the Education Council New Zealand document dated 13 August 2015 (Exhibit 2) which appears to be preliminary to any registration. This provides an explanation for her not giving notice to the Teaching Council when she was convicted in 2016 and 2017 because she was not teaching and not even aware that she was registered. I also note that more than six years have now passed since the most recent offence of drink driving and there is no evidence of any other driving offences in New Zealand or Australia since then. The New Zealand Teachers Disciplinary Tribunal reasons dated 17 July 2019 recorded the content of an email from Ms Rachelle dated 25 February 2019 which stated that she had her full licence back so I assume that she has been driving from then without any further incidents. When considering whether Ms Rachelle is fit to teach, I place minimal weight on the New Zealand drink driving convictions which have little relevance to her ability to teach.

9. As to whether there is any other evidence that Ms Rachelle has a drinking problem, Ms Rachelle strongly denied an allegation previously made that she was drunk when on the phone to the Victorian Institute of Teaching. She explained any perceived slurring of words as arising from the fact that she has had her teeth removed and she was taking medication at the time because she twice contracted COVID-19 during the period 20 September 2021 to 8 March 2022. In any event, this allegation was not pursued by the Victorian Institute of Teaching at the hearing before me.

   The behaviour of Ms Rachelle before the New Zealand Tribunal

10. The New Zealand Tribunal was very unimpressed by Ms Rachelle’s conduct at the hearing which they described as belligerent and entirely unprofessional. I did not have the same experience with Ms Rachelle at the hearing before me. She was clearly upset and became frustrated at times, but she behaved respectfully. Nevertheless, I take into account the findings of the New Zealand Tribunal with respect to her conduct but I give it little weight because it was some time ago now and because I have had the benefit of seeing Ms Rachelle in person before me.

    The failure to disclose

11. Ms Rachelle failed to disclose the 2016 and 2017 New Zealand drink driving convictions when applying to renew her teaching registration on 26 August 2019 and on 30 July 2020.  She also failed to disclose that her registration as a teacher in New Zealand had been cancelled on 17 July 2019 or that she had even lived in New Zealand. There is no doubt that the information provided to the Victorian Institute of Teaching was misleading and not truthful because of this nondisclosure. There is no excuse for this conduct. Ms Rachelle’s deception regarding the New Zealand cancellation continued from July 2019 throughout all of 2020 and 2021 and only came to an end, not through any admission of Ms Rachelle, but rather because the New Zealand Teaching Council informed the Victorian Institute of Teaching on 8 March 2022 of the cancellation in New Zealand. The Victoria Institute of Teaching submits that her past conduct and her conduct at the hearing demonstrated an unwillingness to comply with disclosure requirements of the registration scheme. There is some merit in that submission and her conduct raises some concern about her honesty.  This is a factor that weighs against Ms Rachelle in her application to reinstate her registration, but I do not consider it rises to the level of demonstrating that she is not fit to teach.

    The Hollyoak charges

12. The Hollyoak charges were dismissed entirely on appeal. Leave to appeal was granted because of exceptional circumstances that the guilty plea occurred over the phone during the COVID-19 pandemic. This provides a satisfactory explanation for the existence of the guilty plea. The Victorian Institute of Teaching contends that I should still place some weight on the alleged conduct because the conduct giving rise to the charge of make threat to kill on the Hollyoak brief constituted category C conduct. I reject that contention. After leave to appeal was granted by the County Court Judge there was a de novo hearing at which evidence was heard from Ms Rachelle, her sister and her mother. The case was then dismissed. The only evidence that remains is from Ms Rachelle who said that she threatened her sister because she slept with her partner and ruined her life. However, there is no probative evidence which would enable me to make findings of fact that the conduct was serious. The Judge took the view that the case concerned heated, colourful words between family members and did not amount to a threat to kill. Because these charges were dismissed and absent any other probative evidence, I give them no weight.

    The Finelli charges

13. The Finelli charges were withdrawn except for one charge of contravention of a family violence intervention order. The other five charges dealing with alleged contraventions of the family violence intervention order on 29 August 2021 and 9 September 2021 were all withdrawn. There was no evidence about the circumstances of the withdrawals and it is not clear what facts can be relied upon. There is a preliminary brief from Victoria Police containing a statement of alleged facts made by the sister but no other evidence except from Ms Rachelle who said that the contravention related to her contacting her mother. The facts are not clear but I accept the evidence of Ms Rachelle in that regard and conclude that there is no probative evidence of the conduct alleged in the Finelli charges. The contravention of the intervention order is a matter that weighs against Ms Rachelle but I give it little weight given that the penalty imposed was a fine without conviction which suggests that it was not serious. 

    Conclusion as to fitness to teach

14. In deciding if it is appropriate to reinstate Ms Rachelle’s registration I need to determine whether Ms Rachelle’s character, reputation and conduct are such that she should be allowed to teach in a school. That question is to be answered by reference to all the evidence before the Tribunal as at the date of my decision. The question for the determination of the Tribunal is whether the decision to refuse reinstatement was the correct or preferable one on the material before the Tribunal.[6]

    [6] Shi v Migration Agents Registration Authority [2008] HCA 31 at [96] to [98].

15. The criminal convictions relied upon by the Victorian Institute of Teaching are for drink driving offences in 2016 and 2017 and for one charge of persistent contravention of a family violence intervention order in 2021. Whilst these convictions do not reflect well on her character, I note that there have been no further alcohol related offences and that the 2021 offending related to a dispute with her sister for which no conviction was recorded which suggests it was not very serious. I take into account that at the time of the drink driving offending she was in an abusive relationship. In my view the evidence does not suggest that she will reoffend in the same way. I give very little weight to these past offences when considering Ms Rachelle’s fitness to teach. I also note that the criminal offending had no connection to her teaching and it was never suggested that any of her conduct caused harm or had any impact on students or other teachers.

16. Ms Rachelle’s honesty has been questioned because of her failure to disclose her offending. I accept the submission of the Victorian Institute of Teaching that this reflects a continued and persistent attitude because the first example of this was when Ms Rachelle sought registration in Victoria in 2010, then again in New Zealand and most seriously when she applied for renewal of her registration in Victoria for the 2019/2020 and 2020/2021 years. This behaviour weighs against her fitness to teach because teachers should be honest and set a good example of honesty for their students. Ms Rachelle contends that any misconduct in her private life should not be given any weight in considering her fitness to teach but I reject that contention. 

17. There was little evidence before the Tribunal of the behaviour of Ms Rachelle as a teacher.  I was not provided with any references or other evidence from third parties as to Ms Rachelle’s years as a teacher in Victoria. She referred to her years at university and ‘6 years in the field (mostly private schools)’. She never taught whilst in New Zealand. She mentioned in her oral evidence that she taught at Scotch College and Star of the Sea in Melbourne. She said that any disqualification ‘should be based on my merit and qualifications, at the very least a supervised report of me in an actual classroom setting’.  She referred to her ‘capable skills as an educator’ and that the events relied upon by the Victorian Institute of Teaching ‘happened all outside working hours and never not once has ever put my students/subjects in danger or made a disadvantage of. When I’m working, I have always made a professional approach and maintained a positive influence to better whomever I teach’. There was no evidence about her performance in the classroom that contradicts her self-assessment of being a good teacher. In the absence of any evidence of poor performance in the classroom I am prepared to accept her evidence that she was a capable and professional teacher who had a positive influence on her students.

18. It follows that there is probative evidence of Ms Rachelle’s fitness to teach and that her character, reputation and conduct are such that she should be allowed to teach. In my opinion, this positive evidence is not outweighed by the countervailing factors arising from her past criminal conduct and her failings to properly disclose matters at various times.

    Decision of the Tribunal

19. I conclude that it is appropriate in the circumstances to reinstate Ms Rachelle’s registration. I set aside the decision of the Victorian Institute of Teaching dated 28 July 2022 to not reinstate her registration and substitute a decision to reinstate her cancelled registration under s 32(2) the TTMR Act.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.......................[sgd].................................................

Associate

Dated: 25 August 2023

Date of hearing:	3 April 2023
Applicant:	Self-represented
Counsel for the Respondent:	Maria Cananzi