Secretary to the Department of Education and Training v Paul

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2019 0125

SECRETARY TO THE DEPARTMENT OF EDUCATION AND TRAINING	Applicant
v
SAJI PAUL	First Respondent
and
DISCIPLINARY APPEALS BOARD	Second Respondent

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JUDGES:	TATE, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2020
DATE OF JUDGMENT:	12 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 280
JUDGMENT APPEALED FROM:	[2019] VSC 670 (Ierodiaconou AsJ)

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ADMINISTRATIVE LAW – Judicial review – Decision of Disciplinary Appeals Board to reinstate teacher following dismissal for misconduct and instead to reprimand him and reduce his classification – Whether jurisdictional error committed – Legal unreasonableness – Whether Board misconstrued its statutory functions under Education Training Reform Act 2006 – Minister for Immigration and Citizenship v Li (2013) 249 CLR 333, Minister for Immigration and Border Protection vSZVFW (2018) 264 CLR 541, considered – Education Training Reform Act 2006 ss 1.2.1, 2.4.60, 2.4.61, 2.4.28.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Harris QC with Ms E Latif	Victorian Government Solicitor
For the First Respondent	Mr D McCredden
For the Second Respondent	Dr L Hilly	Piper Alderman

TATE JA
NIALL JA:

TABLE OF CONTENTS

Introduction and summary.............................................................................

1

The misconduct allegations............................................................................

2

The statutory scheme ......................................................................................

11

Paul’s appeal to the Board ............................................................................

15

Exchange of ‘Board Books’..................................................................................

15

The hearing before the Board...............................................................................

22

The Board’s reasons.........................................................................................

32

The primary judge’s reasons...........................................................................

39

Grounds of appeal............................................................................................

43

Was the primary judge correct in determining that the Board’s decision was not legally unreasonable? — Ground 1................................................

44

The test for unreasonableness..............................................................................

44

Is there an evident and intelligible justification for the Board’s decision?.........

46

Did the Board misconstrue its statutory functions? — Ground 2............

56

Conclusion.........................................................................................................

60

Introduction and summary

Mr Saji Paul (‘Paul’) was a classroom teacher at a Government school who made unauthorised changes to the online academic records of 16 students in June 2017. He had taught at the same school for about 10 years. On 22 January 2018, Paul’s employment was terminated by the Regional Director of the Department of Education and Training whom the Secretary to the Department of Education and Training (‘the Secretary’) had appointed as her delegate (‘the delegate’) to inquire into the allegations that Paul had engaged in making unauthorised changes to student records. The delegate based his decision to terminate Paul’s employment upon an investigation undertaken by the Principal of the school who was the Nominated Investigator. Paul appealed against his termination to the Disciplinary Appeals Board (‘the Board’). The Board reinstated Paul’s employment and took action against him by reducing his classification from the highest tier of Classroom Teacher Range 2 under the relevant Enterprise Agreement (range 2.6) to the lowest tier (range 2.1) and directed that he be reprimanded (‘the Board’s decision’).[1]
[1]Paul v Secretary, Department of Education and Training (Disciplinary Appeals Board, 12 July 2018) (‘Board’s reasons’).

The Secretary sought judicial review of the Board’s decision on the grounds that it was legally unreasonable and that the Board had misconstrued its statutory functions. Ierodiaconou AsJ dismissed the application for judicial review.[2] The Secretary now seeks leave to appeal.
[2]Secretary, Department of Education and Training v Paul [2019] VSC 670 (‘Reasons’).

For the reasons below, we would grant leave to appeal but dismiss the appeal.[3]
[3]In what follows, for convenience, we refer simply to ‘the appeal’ and to ‘grounds of appeal’.

In our view, there is an evident and intelligible justification for the Board’s decision. There had been no similar conduct by Paul in the ten years he had been with the school and the evidence that the Board accepted demonstrated that he had otherwise acted to protect the integrity of student assessments. The Board’s decision was to take serious and significant corrective action against Paul after arriving at conclusions about his character. This was consistent with the Board’s protective function. The primary judge was correct to dismiss the proceeding.

The misconduct allegations

In 2007 Paul commenced at the school as a classroom teacher of mathematics and science to students from Years 7 to 11. Each teacher was given a unique user identification (‘user ID’) and password to gain access to a web-based system, Compass, that allowed teachers to enter student academic results online. A person with a valid user ID and password could gain entry to the Compass system on any device that could access the internet. It could be accessed remotely (that is, outside the school grounds). At the relevant time, a teacher at the school could access Compass to obtain online academic results of students, whether or not they taught them, and could adjust student results.[4]
[4]Teachers cannot now adjust the results of students they do not teach.

Teachers at the school were strictly forbidden from disclosing their user ID and password to others. This was also a breach of the Training and Password Policy (‘password policy’) of the Department of Education and Training (‘the Department’) which relevantly provided:

·Users must not share their user ID and password with a third party.
·Users must not write down their password and leave in a place where it could be easily found.
·Users must take care when typing their passwords if they are being observed.
·Users must change their password if they suspect that someone else knows it.[5]

[5]Department of Education and Training, Password Policy (Policy No ICT PAG/1504, June 2017) cl 5.1. It was also a breach of the Department of Education and Early Childhood Development Information Policy and a breach of that Department’s Information, Communications and Technology Resources Acceptable Use Policy.

On 27 July 2017, after receiving a letter of complaint from a parent, C,[6] concerning discrepancies in the report of his daughter, A, the Principal of the school, Mr G,[7] wrote to the Regional Director recommending the commencement of an inquiry.[8] The Principal was nominated by the delegate, J, to inquire into allegations made against Paul. On 30 October 2017, the Principal gave Paul written notice of misconduct allegations against him (‘the Notice’).
[6]Unnecessary identifying information was redacted on all the materials before the Court, pursuant to an order by Ierodiaconou AsJ. Letters were substituted, ‘A’, ‘B’, ‘C’ and so on. In the passages extracted below, where appropriate, an apostrophe has been inserted to indicate the possessive case.
[7]The Board’s reasons make it clear that ‘Mr G’ is the Principal.
[8]Ultimately student A was withdrawn from the school by her family.

The Notice alleged that Paul had engaged in misconduct within the meaning of s 2.4.60(1)(b) of the Education and Training Reform Act 2006 (‘the Act’)[9] by ‘altering student records on Compass without authority or reasonable justification’.
[9]See [22] below.

The Particulars in support of the Notice began by referring to an email that had been brought to the Principal’s attention by the Assistant Principal, on 24 July 2017, soon after the publication of the semester 1 reports. The email was from C and expressed concerns he had about the reports of his daughter, A, and referred to an earlier incident in 2016 of what also appeared to be discrepancies in A’s report. That incident allegedly involved Paul changing the assessment for A’s literacy skills and, when challenged by C, having no robust data in support of the change. The Notice began:

It appears to me that there are grounds under section 2.4.60 of the Education and Training Reform Act 2006 for taking action against you under section 2.4.61 of the Education and Training Reform Act 2006.
Pursuant to section 2.4.65 of the Education and Training Reform Act 2006, I now provide you with the opportunity to respond in writing to the following alleged grounds for action:
1. Committing acts of misconduct: Section 2.4.60(1)(b)
1.1You have committed acts of misconduct by altering student records on Compass without authority or reasonable justification.

Particulars
(a)On Monday 24^th July 2017 shortly after the publication of semester 1 reports H, the Assistant Principal brought to my attention a letter received by e-mail from C detailing concerns around what appeared to be discrepancies in his daughter A’s report (refer attachment 3) Mr C’s letter refers to his taking issue in the past with reports issued by the school which did not align with feedback given against student progress. This comment does in fact have reference to yourself as A’s maths teacher in 2016 when you made a judgement that A was operating below level but when challenged by Mr C had no credible or defensible data upon which to defend the judgement that you had made.
(b)As a result of receiving this letter of complaint I requested that the company ‘Compass’ through which the schools reporting processes are managed look into why the results reported on varied from the results originally entered by A’s English teacher AE. AE had taken a screen shot of her reports data entered and it was clear that A’s report did not reflect those assessments but rather suggested that A was six months behind where she should be with regards to her Literacy progress. ...
(c)Compass was able to confirm that Year 9 student A’s year 9 Literacy Report was changed by yourself on both the 23/6/2017 and again on the 30/6/2017 at 3:40 pm shortly before reports closed ... As you do not teach [A] for any subject it is deeply concerning that you would interfere with another teachers assessment of a student.

The past incident alleged in para (a) of the Particulars became known by the Board as ‘the 2016 incident’. It was relied upon by the Secretary in her written submissions[10] and in her opening address before the Board[11] as supporting in effect a ‘course of conduct’ allegation in respect of the misconduct with which Paul was charged in the Notice, and as demonstrating his lack of professionalism. However, in the face of conflicting evidence, the Secretary ultimately withdrew her allegation about Paul’s cavalier behaviour in respect of the 2016 incident.[12] The Board determined that what had been informally alleged against Paul in respect of the 2016 incident[13] was not made out. Where there was an inconsistency between the evidence of Paul, and the evidence of the Principal, in respect of the 2016 incident, the Board preferred the evidence of Paul. The Board’s rejection of the veracity of what was alleged against Paul in respect of the 2016 incident loomed large in its decision.
[10]See [38] below.
[11]See [54] below.
[12]See [74] below.
[13]The 2016 incident was not part of the allegation of ‘misconduct’ in the Notice (which was confined to what took place in 2017) nor had it been part of any other complaint or inquiry under the Act.

The Notice went on to allege that Paul tampered with the records of 15 other students as well as A. Paul did not teach the 16 students whose records were altered, with the exception of two students in one subject that Paul taught for one class per week in conjunction with another teacher.[14] While the records of A had been tampered with on 23 and 30 June 2017, it was unclear on what dates the records of the other students had been accessed and altered without authorisation. The bulk of the records were restored to their original entries by 19 September 2017. Particulars of the alterations Paul was found to have made were only available in respect of three students, namely, those whose parents had printed hard copies of the assessments before the operation that restored the data.[15] These alterations would also have lowered the performance results of three teachers who taught those students. The Notice continued:
[14]Board’s reasons [22].
[15]However, as far as the school was aware, the alterations were all to the effect that academic achievement was altered to decrease the assessment results.
(d)Compass were also able to confirm that you also tampered with the reports of 15 additional students as a wider check conducted by the Compass reporting team identified on Monday 24^th July 2017...
(e)On Tuesday 19^th September Compass were able to confirm that the majority of the changes that you had made across various fields of individual student reports had been restored to their original entry. ...
(f)The data restore conducted by Compass made it possible to compare the reports produced by the students teachers as compared to the changes made to those reports by yourself between the 23^rd/6/2017 and the 30^th/6/2017. These changes are identifiable and attributed to you as the last person having made changes to those students’ reports.
(g)The specific nature of the changes alleged to have been made by you were only identifiable in the instances where parents had printed hard copies of the reports prior to compass conducting the data restore which was a digital reversion.
(h)Of the 16 students that you do not teach and whose reports did you alter, three parents had retained hard copies against which the specifics of the changes made by yourself are clearly identifiable and summarised below.
·     In relation to year 9 student, [A] It has been identified that you changed [A’s] Key Capability Assessment in English from level 9 as assessed by her teacher [AE] to 8.5. It was also identifiable that you changed [A’s] English assessments for Literacy in the areas of Reading and Viewing, Speaking and Listening and Writing all to end of year 8 assessment. [AE] had assessed [A] as being at year 10, year 9 and year 10 respectively for those three areas. It is also evident that you have changed [A’s] work habits in the areas of Effort and Classroom behaviour from Consistently to Usually. It was also evident that you altered the year 9 Numeracy report compiled by [A’s]teacher [F]. Specifically you altered [F’s] assessment of [A’s] Critical and Creative thinking from end of year 9 to end of year 8. You also changed [F’s] assessments of [A] in the areas of Measurement and Geometry and Number and Algebra from end of year 9 standard to mid and end of year 8 respectively. ...
·     In relation to year 9 student [O], it has been identified that you changed the Skills and Knowledge assessment made by teacher [F] against ‘Finding the area of simple shapes and compound shapes from High to Medium. …
·     In relation to year 9 student [P] it has been identified that you changed teacher [F’s] assessment of [P’s] work habits from consistently high against effort, behaviour and organisation to sometimes, sometimes and usually respectively. It was also evident that you changed [F’s] skills and knowledge assessments from High to Medium in the areas of ‘Finding perimeter of simple shapes and composite shapes’, ‘Finding the area of simple shapes and compound shapes’ and solving problems involving simple interest’. …
I have attached copies of all documents currently relied upon.
Before I report to the Regional Director you may provide for my consideration a response in writing in relation to the alleged grounds within 14 days of the date of service of this notice. I again invite you to provide me the names of any person who you believe should be interviewed as part of my investigation. As I have previously advised you, you should indicate what relevance they have to the investigation, I will then determine who, if any, of those people I will interview.
...
Nominated Investigator

As the Notice describes, the Principal offered Paul an opportunity to respond. In response to the Notice, Paul denied that he had made the unauthorised changes to students’ reports, expressed shock and sadness that the changes had occurred from his account, apologised for any stress caused, and undertook to be professional in his role as a teacher. His letter of 7 November 2017 said:

Dear [G]
Sub: My response to your letter dated 30/10/2017
In reference to your letter dated 30^th October 2017, I would like to respond to the allegations against me of changing reports in our School.
I affirm to you, as per our conversation on the evening of VCE information Night on 26^th July 2017 regarding this matter, that I did not make the alleged changes to student reports. It is concerning to me how these changes were made from my account, the changes were made on Friday’s 23^rd June and 30^th June 2017. I cannot provide names of individuals that may be responsible for the changes but I know that I did not change any reports especially those pertaining to students that I did not teach.
I have no issues with the teachers or the students that may result in my interest in altering any reports. In fact I have good professional relationships with my colleagues. If I did something purposefully inappropriate I would remember the time and date of the occasion. I have no recollection of doing any such thing hence have no memory of events on the date listed as those of the alleged events (23/6 and 30/06). Every Friday I leave straight after School to pick up my children from their carers place. From there I took them to tuition classes in Narre Warren.
As a professional I always look for positive in my relationships with colleagues and students. I always look to provide supportive learning environments. I always promote student self-confidence and willingness to take responsibility in their learning, helping to experience and celebrate success. This is usually through support, valuing their efforts and recognition of their work and results. I take pride with student achievement looking towards higher grades and positive reports. I have no interest in downsizing student’s reports as I have been accused of doing.
I am passionate about helping students to learn and enhance their grades. I adhere to strict classroom behaviour to help students learning and achieving. I approach with good communication, always showing genuine interest in teaching and in my interactions with colleagues.
I have been teaching at [the school] since the start of the year 2007. During my time at this School I have been positively supportive of its teaching programs and its administration. I feel that I have made constructive contribution to student learning and the School’s progress. I have been spending extra time to enhance student learning to help raise their grades and the School outcomes. My practice has always been collaborative during my service at the School. I respect teacher’s roles and duties. My approach has been one of calmness and motivational in my relationships with colleagues.

During my time at [the school] I feel that I have positively contributed to the growth of students and colleagues. It is not in my nature to degrade student learning outcomes and reports. Nor is it in my nature to underestimate teacher’s capacity to assess their students. It is not in my nature to go about changing reports of students made by other teachers.
I know the alleged changes were not made by me. Its alleged they were made through my account. It was not me that made those changes to the student’s reports. The whole matter shocked me and saddened me happening from my account. I sincerely apologies to any stress on the affected students, parents and colleagues. Furthermore, I undertake to exercise extreme professionalism in my entire role as a teacher.
Thank you
Yours sincerely
Saji Paul

On 14 November 2017 the Principal, as the Nominated Investigator, interviewed Paul about the allegations. On 28 November the Principal provided a copy of his investigation report to the delegate and to Paul. On 1 December 2017, Paul provided the delegate with a written response to the investigation report in which he continued to deny making unauthorised changes to students’ reports but apologised for any stress the matter caused.

On 22 December 2017 the delegate wrote to Paul telling him that he had formed the preliminary view that it was open to him to find the allegations proven. He also said that, as a result, it would be open to him to terminate Paul’s employment because he considered that the misconduct constituted ‘a gross breach of the trust expected to employees in the teaching profession’. He invited Paul to respond before he made a final decision.

In Paul’s response, dated 4 January 2018, he took responsibility for the changes that occurred from his account but continued to deny the allegations. In the course of the letter he said:

I take the responsibility that the changes occurred from my account. I don’t know how these changes took place. I am unable to point out who made such changes. I apologise the changes happened from my account and will take extra precaution that such an event does not take place in the future. My apologies relate to my colleagues, the students and the parents in the school community for the stress caused.
I never considered changing student’s reports. I respect and value my colleagues and students and wish to enhance their progress. My thoughts are always about their best future and never consider putting any students down for any reason at any time in professional career. I provide extra time and sessions in my classes to improve their learning outcomes. The Principal and most of the leadership team acknowledge this.
...
I request that you consider my contribution to teaching ... in your final decision, knowing that such allegations are life changing to me, my profession and my family.
Kindly consider my request to continue to serve in the Education Department. …

Paul’s response did not alter the delegate’s preliminary view. The delegate terminated Paul’s employment by letter dated 22 January 2018, which provided:

Dear Mr Paul
I have received and considered your response to my letter of 22 December 2017. In that letter I advised you that I had formed the preliminary view that it was open to me to terminate your employment pursuant to section 2.4.6(1)(d) of the Education and Training Reform Act 2006 (‘the Act’). I invited you to respond prior to my making a final decision. Your response was received on 11 January 2018.
In my previous letter to you I advised you of the factors upon which my preliminary view was based. I have considered your response and determined that you have provided no information that would lead me to alter my preliminary view.
...
I have considered the material supplied to me by G Principal of [the school]; copies of all this material have also been supplied to you. I have also considered your responses.
In my previous letter I raised concerns regarding your ongoing denial that you altered the Compass results of sixteen students that you do not teach. It perturbs me that you continue to assert no knowledge of how the changes occurred, and yet you now take ‘responsibility that the changes occurred from your account’. You have not provided any alternate explanation or mitigating factor to suggest that your account was accessed by someone else and, unless you provided someone with your login details, there would have been no opportunity for this to occur. I therefore remain satisfied that on the balance of probabilities it was you who altered the Compass results. Your ongoing denials in the face of substantial evidence to the contrary raises concerns about your character and integrity, while in the face of these denials, it seems tokenistic at best that you would also apologise for your actions and undertake to instil extra precautions with your Compass account in future.
You state you have made a significant contribution as a teacher and believe that you should be allowed to continue to share your passion for teaching with your colleagues. You also state that you are a trustworthy person who values professionalism, and that you wish to continue to serve in the Department. Your actions have brought the teaching profession into disrepute and you breached your privileged position of authority. Your conduct risked the school’s standing in the community and I expect it has had a serious effect on the reputation of the school with the families of the students that you targeted. Significant resources, both in time and finances, were diverted to ameliorate and rectify your actions. These resources should have been used in facilitating the ‘improved student outcomes’ that you espouse.
I believe that your actions were so serious as to be inconsistent with the continuation of an employment relationship with Department. Thus I have determined that you committed an act of misconduct under section 2.4.60 (1)(b) of the Act.
As a result of my determination I have decided to terminate your employment pursuant to section 2.4.61(1)(d) of the Act. ...
...
If you wish to appeal my decision, you should contact the Registrar, Disciplinary Appeals Board ... A notice of appeal must be lodged with the Senior Chairperson within 14 days after the date on which you are given notice in writing of this decision.[16]

[16]Emphasis added.

On 5 February 2018, Paul appealed to the Board. He was unrepresented before the Board.

Before turning to the details of the hearing before the Board, it is useful to consider the statutory scheme.

The statutory scheme

The Act provides a framework governing the regulation of the teaching profession in Victoria, and the maintenance of standards of professional practice for the teaching profession.[17]
[17]The Act s 1.1.1(2)(f) and (g).

Section 1.2.1 identifies principles underlying the enactment of the Act. This includes the principle that all Victorians ‘should have access to a high quality education’ that, amongst other things, ‘realises their learning potential and maximises their education and training achievement’.[18] Section 1.2.1 also refers to the principle that ‘a parent of a student and the student has a right to access information about the student’s achievement’.[19]
[18]The Act s 1.2.1 (b)(i).
[19]The Act s 1.2.1 (f).

Part 2.4 is concerned with the Government teaching service and relevantly relates to teachers employed in a Government school. Division 9A is concerned with unsatisfactory performance of teachers, and the failure to discharge duties. Division 10 is concerned with misconduct. Within div 10 are, relevantly, ss 2.4.60 and 2.4.61.

Section 2.4.60 identifies the grounds that warrant the Secretary ‘tak[ing] action’ against an employee:

2.4.60 Grounds for action
(1)The Secretary, after investigation, may take action under this Division against an employee who—
(a)conducts himself or herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise; or
(b)commits an act of misconduct; or
(c)during his or her period of service is convicted or found guilty of a criminal offence punishable by imprisonment or a fine; or
(d)is negligent or incompetent in the discharge of his or her duties; or
(e)contravenes a provision of this Act or a Ministerial Order made for the purposes of this Chapter; or
(f)contravenes a requirement by or under any Act that corporal punishment not be administered to any Government school student; or
(g)without reasonable excuse, contravenes or fails to comply with a lawful direction given to the employee by a person with authority to give the direction; or
(h)without permission and without reasonable excuse, is absent from his or her duties; or
(i)is unfit on account of character or conduct to discharge his or her duties.

(2)In considering the fitness of an employee to discharge his or her duties, consideration may be given to any relevant matters including his or her character and any conduct in which he or she has engaged (whether before or after becoming an employee).

As mentioned in the delegate’s letter, the delegate took action against Paul pursuant to s 2.4.60(1)(b) of the Act, namely, on the ground that Paul had committed an act of misconduct.

Section 2.4.61 identifies the type of disciplinary action that can be taken against an employee when the Secretary is satisfied that there are grounds for doing so:

2.4.61 Action against employee
(1)If the Secretary is satisfied on an inquiry under this Division that there are one or more grounds under this Division for taking action against an employee, the Secretary may take one or more of the following actions against the employee—
(a) a reprimand;
(b)a fine not exceeding 50 penalty units;
(c)a reduction in classification;
(d)termination of employment.

(2)The Secretary, by notice in writing, must advise the employee of—
(a)the determination of the Secretary on the inquiry; and
(b)if the Secretary takes action under subsection (1), the right to appeal to a Disciplinary Appeals Board.

It is apparent that termination of employment is identified as the most severe form of disciplinary action and that a reduction in classification is the second most severe. Here, the delegate decided upon termination of Paul’s employment, pursuant to s 2.4.61(1)(d).

Division 10A of the Act confers rights of appeal on an employee, including under s 2.4.68, against determinations, relevantly, made under div 10. Section 2.4.68 confers a right of appeal from a decision of the Secretary to take disciplinary action:

2.4.68 Appeal
(1)An employee may appeal to a Disciplinary Appeals Board against a determination of the Secretary to take action against the employee under Division 9A or 10.
(2)A notice of appeal must be lodged with the senior chairperson of the Disciplinary Appeals Boards within 14 days after the date on which the employee is given notice in writing of the determination of the Secretary.
(3)A notice of appeal must—
(a)be in writing; and
(b)be in the prescribed form.

(4)A Disciplinary Appeals Board may permit an appeal to be instituted out of time if it considers that special circumstances exist.
(5)An appeal must be conducted as a re-hearing.
(6)A Disciplinary Appeals Board must hear and determine the appeal and may—
(a)allow the appeal in whole or in part and vary the decision of the Secretary; or
(b)dismiss the appeal.

Division 11 of pt 2.4 establishes Disciplinary Appeals Boards, controls their membership, and provides for the conduct of proceedings. Section 2.4.80 (within div 11) provides:

2.4.80 Conduct of proceedings
(1)A Disciplinary Appeals Board may allow an employee to appear before the Board personally or by a legal or other representative.

(2) All proceedings before a Disciplinary Appeals Board—
(a) must be conducted without regard to legal formalities; and
(b) must be directed by the best evidence available, whether or not it is the best evidence that the law in other cases admits, requires or demands.

The conduct of Paul’s appeal to the Board was as a re-hearing de novo; that is, the Board was not bound by any findings made by the delegate or by the Principal as a result of his investigation. It was for the Board to make the correct or preferable decision on the material before it.[20]
[20]Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J).

Paul’s appeal to the Board

The basis of Paul’s appeal was that he was denied natural justice as the delegate failed to give due consideration to the facts. He also urged that, in any event, the disciplinary action against him should be ‘a lesser action than termination’.[21]
[21]Board’s reasons [2].

Exchange of ‘Board Books’

The Secretary, as the respondent to Paul’s appeal, recognised that she bore the onus of proof in establishing misconduct. She filed a ‘Board Book’ containing her written submissions in chief and witness statements of the Principal, the Information and Communications Technology (‘ICT’) Manager at the school (I), and a teacher at the school (E).

The Secretary acknowledged that the standard of proof was that applicable in a civil proceeding, namely, the balance of probabilities but having regard to the principles in Briginshaw v Briginshaw[22] as to how the civil burden is discharged, given the seriousness of the allegations and the gravity of the consequences flowing from a particular finding.
[22](1938) 60 CLR 336, 362 (Dixon J); [1938] HCA 34. See also s 140(2) of the Evidence Act 2008.

In her written submissions, the Secretary observed that Paul had conceded that it was his user ID and password that had been used to amend the academic results of 16 students. The Secretary emphasised that the Australian Professional Standards for Teachers demonstrate that it is a core requirement of teachers that they engage in accurate and credible assessment and reporting. The ICT Acceptable Use Policy made clear that the user’s professional obligations extend to proper use of ICT access and technology and that non-compliance with the policy would be treated as a serious matter. She also submitted that the context of the school was relevant, the school being located in an area of considerable disadvantage and that the Principal was seeking to lift the standards and expectations of teaching staff for the benefit of students with a focus upon academic assessment and report writing.

With respect to the context of the school, the Secretary, in her submissions, relied upon the details of the 2016 incident:

In 2016, by reason of a formal complaint from the A & C family, the [school] was alerted to a failure by [Paul] to provide a credible and defensible academic report of A’s academic performance in the core area of maths. The complaint was taken seriously by G and resulted in the leadership team being more proscriptive [sic] to all staff at the [school], including [Paul], about academic assessment and reporting. This incident demonstrated a lack of respect and professionalism by [Paul] in the area of student assessment and reporting, an area G regards as being at the heart of professional responsibility. Notably, A is one of the students whose academic results were altered using [Paul’s] User ID and password on 23 and 30 June 2017. The alterations to A’s academic records are amongst those forming the subject matter of this appeal.[23]

[23]Footnotes omitted.

The submissions went on to state that Paul had been given a formal written warning on 20 June 2017 in respect of a complaint that he had behaved inappropriately towards student B and that B was one of the students whose academic results had been altered using Paul’s user ID and password. The Secretary submitted that there had been a set of persistent allegations of inappropriate conduct towards female students including B and a staff member in 2008, 2011 and 2017.[24] She also submitted that during terms 1 and 2 of 2017, Paul had failed to collaborate effectively or engage meaningfully with a colleague, Ms E, in the areas of curriculum development, academic assessment, and report preparation. The majority of academic results allegedly altered by Paul were of results obtained by students for classes taught by Ms E. By reason of Ms E’s reports to Ms F, the numeracy Domain Leader at the school, regarding Paul’s conduct and performance, Ms F became more involved in overseeing Paul’s performance in the area of curriculum development in 2017. Ms F is one of the teachers adversely affected by the allegations of unauthorised access.
[24]Other than when the complaints were relevant to motive, namely, in respect of B, these complaints were treated by the Board as not relevant to the allegation of unauthorised access to students’ records, being different in kind.

The Secretary relied on this context and history as relevant to Paul’s motive in altering student records on Compass without authority or reasonable justification by suggesting that particular members of staff and particular students were targeted. In general, motive was relied upon as providing circumstantial evidence that it was Paul who had accessed student records without authorisation, given there was no direct evidence that it was him.[25]
[25]The unique IP address of the device Paul used was not available from Compass. See [82] below.

The Secretary emphasised that the laptops used by the school had strong security features and that Paul was a competent ICT user with no history of sharing access to his laptop or failing to maintain confidentiality over his password. At no point in the investigation did Paul suggest that any other person would have his password or could have accessed his Compass account. There was no evidence of any suspicious activity, or ‘hacking’, on Paul’s Compass account.

The Secretary accepted that there was no direct evidence before the Board that Paul had altered the students’ records, as alleged, but she urged the Board to draw as the more probable inference that it was Paul who had done so, there being no other alternative explanation reasonably available. The inference was supported by Paul having reason or motive to target at least two of the three teachers involved, Ms E and Ms F, and two of the 16 students affected, A and B.

The Secretary submitted that the misconduct demonstrated a lack of regard for, and indifference towards, the reputation of the school and the wellbeing of the 16 students and three staff affected by the allegations. She sought to use the misconduct to impugn Paul’s professionalism more generally on the basis of his history and dismissive attitude to student assessment. She described his ‘bare denials [as] lack[ing] credibility given [Paul’s] track record in respect of report writing and cavalier attitude to student assessment’. She supported this accusation by reference to the 2016 incident, saying:

[Paul’s] conduct [in engaging in unauthorised access to 16 students’ records] demonstrates a lack of insight into the critical importance of credible and defensible student reports, not only with respect to this incident but over the course of his employment. This conduct is consistent with [Paul’s] conduct and attitude in 2016, when he casually assessed A’s achievement as being below year level standard in numeracy, then conceded it was a ‘mistake’ when he was asked to demonstrate the basis for his results.[26]

[26]Emphasis added.

She also relied on Paul’s failure to provide meaningful guidance to Ms E in 2017 on grading and reporting for Year 7 maths. She submitted that Paul’s conduct was so antithetical to the professional obligations of a teacher as to amount to misconduct. In making submissions on the appropriate action to be taken, the Secretary again relied on the 2016 incident saying:

[Paul] has previously shown a lack of rigour and respect for the reporting process, which is directly relevant to the present appeal. In respect of the 2016 incident involving A [Paul] failed to acknowledge concerns raised by the A & C family until he was asked to demonstrate the basis for the results he had entered and could not do so.[27]

[27]Emphasis added.

The Secretary urged the Board to dismiss the appeal from the delegate given the significant breach of trust by Paul. In deciding what was the appropriate disciplinary action, she identified the primary consideration as ‘the protection of students who are vulnerable members of the public’. She went on to acknowledge that ‘[d]isciplinary proceedings do not have a punitive purpose, though this may be the consequence’.[28]
[28]Citing New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20.

In his witness statement in chief, Mr G said that since taking on the role as Principal of the school his focus had been on accurate and transparent reporting. He set out in considerable detail in his witness statement the 2016 incident. In respect of the 2016 incident, he said:

When [Paul] was first asked about the inconsistent reports [re A], he said that the report in Compass was accurate.
[Paul] was then asked to demonstrate to C why he had marked A as being 6 months behind. In response to this request [Paul] could not identify any assessment records and was unable to show any basis for his assessment. [Paul] ultimately said the record was a mistake and he subsequently amended the Compass record.
... I was concerned that [Paul] did not have any data to support his assessment of A’s performance. I was also concerned that [Paul] initially indicated the report was accurate, but then said it was a mistake and amended the record without any further thought or explanation.

The Principal also said that following the 2016 incident, the school became more prescriptive about the kind of student assessment data that had to be maintained to support reporting on student academic progress and that he ‘was so concerned by the incident with [Paul] that I considered it wise to give more overt directions’. He also set out the details of the allegations against Paul concerning unauthorised access in June 2017 and, in respect of A, was concerned because it was the ‘second incident’ regarding Paul’s assessment and reporting of A’s academic progress.

In the witness statement of I, the ICT manager, he provided details of the Compass software and the user ID and password system at the school. He considered that the likelihood of someone successfully ‘hacking’ the school’s network to be ‘minimal to none’. The witness statement of the teacher, Ms E, described some difficulties she had had progressing an innovative maths program, known as ‘Maths Pathways’, with Paul.

Paul filed his own Board Book which consisted of his witness statement. This set out, from his perspective, his positive professional relationship with other teachers and with students, his participation in afterschool activities and staff versus student sports, his contribution to pastoral care outside the classroom and his general dedication as a teacher. He rejected the accusation of the Principal that he had not contributed to the development of the curriculum. He said that there was no relevant correspondence to him from, or verbal communication with, the Principal or Ms K, the Assistant Principal, and considered that the accusation was part of a ‘witch-hunt’ to smear his character. He attached copies of his letters to the Principal and the delegate, outlined above, denying the allegations of unauthorised access.

The Secretary filed a ‘Reply Board Book’ containing written submissions in reply and a reply witness statement of the Principal. The Secretary also relied upon a witness statement from Ms K, the Assistant Principal who had been mentioned in Paul’s witness statement and a further witness statement by I on technical matters.

The Secretary maintained that no explanation was given by Paul as to how unauthorised alterations came to be made to student records. The Secretary clarified that Paul’s employment was not terminated because of performance concerns but because the delegate had found that Paul had altered student records without authorisation or justification. In any event, the Secretary maintained that Paul did not apply any extra professional effort and that his assertions about his skill and diligence in respect of curriculum development and assessment ought be rejected. She submitted that Paul was under increasing scrutiny and pressure to perform, and that Ms E, Ms F and A and B had to varying degrees contributed to the situation and had all been impacted by the unauthorised access. Paul’s history with A and B in particular was relied upon as going to motive.

The Principal’s witness statement in reply reiterated that Paul did not collaborate with Ms E to develop the Year 7 maths curriculum in 2017 and did not make a significant contribution to curriculum development at the school. He stated that Paul did not always comply with the school’s requirement to make his curriculum available in advance of classes, as directed by Ms K. He maintained that Paul did not assist junior teachers such as Ms E with curriculum development and assessment. He referred to the 2016 incident as the genesis of his doubts about Paul’s assessment of students; he stated that ‘from 2016 onwards, following the incident with Ms A ... I had real doubts about [Paul’s] methods for assessing and documenting student performance’. He went on to say:

The incident involving A ... also demonstrated that [Paul] was not documenting assessment and student outcomes, as he could not explain to A’s parents the basis of the academic report he had prepared for A or provide evidence to support his assessment of her learning.

He went on to elaborate:

I … confirm that [Paul] did not provide me or Mr C with data to support the academic record that he provided for A. [Paul] subsequently changed A’s report because he could not demonstrate the basis for his initial assessment.

He also stated that he ‘did not have a “plan” to terminate [Paul’s] employment, as alleged by [Paul]… The decision to terminate [Paul’s] employment was made by the Regional Director, J.’

Ms K’s witness statement was to the effect that Paul was not overly engaged with school life and that he failed to provide Ms E with the relevant curriculum or associated materials or guide her through the report writing process. She also stated that Ms F confirmed to her that Paul’s Year 8 maths planner required revision. She stated further that the maths team, including Paul, were not supporting Ms E to develop the ‘Maths Pathways’ program by discussing and developing lesson plans collaboratively. That lack of support put the whole of the maths team on the Principal’s ‘radar’, including Paul. In discussing the unauthorised access to students’ reports that occurred in June 2017, Ms K described being approached by C about his daughter A and his concern that, based on her academic report, she was going backwards rather than forwards in terms of academic achievement. Ms K arranged for the teachers responsible for teaching A English and Maths, Ms AE and Ms F respectively, to meet with her and C. She observed that:

In the meeting, Mr C again expressed that he was extremely annoyed as this was not the first time that this has happened since A started at the [school]. Mr C explained to me that in 2016, [Paul] had recorded incorrect results in Compass for A’s maths class.

In the meeting it became apparent that the grades given to A by Ms AE and Ms F were not the grades that were recorded on the Compass system. Around 24 July 2017[29] Ms K was informed by the Principal that Compass had advised that the relevant grades has been altered from Paul’s Compass account, using his password.
[29]Ms K’s witness statement refers to 24 July 2018 but this appears to be an error.

The hearing before the Board

The Board conducted its hearing on 18 and 19 June 2019. The hearing began before three Board members, Mr W O’Shea (the Chairperson), Ms Terry (the Minister’s nominee) and Dr Richard Gould (the Secretary’s nominee).[30] During the morning of 18 June 2019 Dr Gould indicated he was too unwell to continue the hearing and he retired as a member of the Board for the appeal. The hearing continued before the other two members without objection from either party.[31]
[30]Section 2.4.73 provides that a Disciplinary Appeals Board is to consist of a chairperson (who must be an Australian lawyer of at least five years’ standing and have been nominated by the Secretary), a person who is an on-going employee in the teaching service (having been nominated by the Minister) and a person who has knowledge of or experience in education, education administration or public sector administration (having been nominated by the Secretary).
[31]A two-member Board is permitted pursuant to s 2.4.78 of the Act.

At the outset Mr O’Shea confirmed that Paul did not seek to cross-examine any of the Secretary’s witnesses.

In her opening, counsel for the Secretary gave an account of the nature and history of the school and the Principal’s efforts to lift the standard of teacher performance. She then introduced the discussion about Paul’s professionalism, or lack of it, by reference to the 2016 incident as follows:

The evidence of Mr G and Ms K suggests that up until recent times [Paul] has got by, by doing the bare minimum at the [school]. That situation changed in 2016 when [Paul’s] conduct brought him to the direct and particular attention of his leadership team.
In 2016 A’s family challenged the accuracy of [Paul’s] report of her academic progress in maths. This challenge showed up shortcomings in [Paul’s] assessment methods and documentation. He could not justify the grade given and had to change her report. This incident caused [Paul’s] leadership team to have real doubt around [Paul’s] commitment to accurate and credible student reporting.[32]

[32]Emphasis added.

She then went on to outline how the arrival of Ms E and her ambition to raise the curriculum for Year 7 maths showed Paul to be a person who was not contributing to, and not committed to, the improvement of the curriculum for Year 7 maths. The leadership team were having to push Paul to meet reasonable expectations. She also mentioned the complaint in respect of B who was one of the students whose semester results was altered in 2017. Aspects of these matters were relied on as establishing motive and capacity on behalf of Paul. She submitted that there was no evidence that anyone else had altered the student records and that termination was the proportionate response to such misconduct.

The Principal was sworn, adopted his witness statement, and was excused. Ms K did the same. Mr I was sworn, clarified why he was confident about the date of the unauthorised access, adopted his witness statement and was excused. The Secretary also relied on an affidavit of Ms E (who no longer worked at the school) verifying her witness statement.

Paul relied on no evidence but his own. He indicated that he wished to be sworn and adopt the statement in his Board Book with the understanding that he could be cross-examined on it. He expressed his surprise at the adverse comments made by the leadership team in the Secretary’s materials, especially, he said, as he had been told by Ms K previously that he had done a good job and she liked his teaching style. He also said he had good professional relationships with other members of staff. He was cross-examined about his previous disciplinary history including the earlier allegations of inappropriate conduct. He was cross-examined about the 2016 incident at length. He explained that he had given A the expected level of achievement for the relevant stage of Year 8 (the grade level) but that Mr C’s concern had been that at the end of Year 7, students were already given assessments that placed them halfway through Year 8 level. He said he did not have an opportunity to check the previous year level because A had been taught by a different teacher. (He later gave evidence which left it unclear whether previous assessments on Compass could be checked.) He had told Mr C that A was ‘doing all the Year 8 level one[s] fantastic’. He said he made an offer to Mr C that if A was happy to do extended work he was more than happy to support that. He explained this to the Principal. However, when he spoke to A in the classroom the next day she refused the offer of extended work. He said that the 2016 incident arose when Mr C came to the office and asked to see him. He did not hear about Mr C’s concern from Ms K. He said that he refused Mr C’s suggestion that he should change A’s academic record. The cross-examination continued:

Q: I’m asking you how did you find out about the incident?
A:So Mr C come to talk to me ... And also he ask me to change at that time ... if you are happy to get a six months (indistinct) and I told him, so I can’t do that, so I’m not in a position to do that.
Q:Yes, but, ultimately you changed her report?
A:No.

Paul accepted that his evidence about the 2016 incident diverged from the evidence the Principal had given:[33]
[33]See [41] and [47]–[48] above.

Q:Mr G[’s] evidence [about the 2016 incident] is that Mr C’s complaint to the [school] was that the report on Compass didn’t reflect the feedback you gave at parent/teacher interview, and that what was reported was lower than the feedback, and ... Mr G identifies that ‘lower’ means A was actually marked as six months behind Grade level. Now, that is different to your evidence to the Board. Mr G says she was marked six months behind. You say she was marked at Grade?

A:       Yeah.
Q:       Do you accept that ... Mr G[’s] evidence is different to your evidence?
A:       Yeah.
Q:       What do you say about the difference, is Mr G lying?
A:I don’t — I don’t know actually so I meant actually when she is halfway through the Year 8 I put the halfway through the Year 8 Level 1.

Paul confirmed that in 2016 he was asked directly by Mr C to change C’s assessment:

Q:       Now, you say Mr C asked you directly …?
A:       Yeah.
Q:       ... to change A’s result and you refused?
A:       Yeah.
Q:       That’s your evidence?
A:No, asked me — he asked me to, can you do that, so if you done anything wrongly somebody — his expectation is do six more months ahead because she already got six months the end of the last previous year, she already got the halfway through the Year 8 one, but through the halfway through the Year 8, I put the halfway through the Year 8 one, but his expectation is six more months ahead one ... — she’s doing a good job, that’s what I report to the parent/teacher interview also then if you can change that one then I told him so I can’t do that ...

...
Q:Yet, Mr G gave evidence that ultimately you did change her result, you agreed to change her result?

A: I didn’t change.

Paul said he met the Principal the next day in his office. The Chair of the Board, Mr O’Shea, further explored the issue of the alleged change to A’s grades in 2016:

Q: And did you agree with Mr G that you would fix up the assessment?
A:No, he didn’t ask me to fix or change or anything, then he told me in a different way Mr C told, um — Mr G I promise him to change that one, but I told him, so no I — I never promise to him to change that one because only if we put the marks in it we can change that one. That’s what I ...

Q:       But did you ultimately change it back, change it?
A:       Me?
Q:       Yes?
A:No, I didn’t change anything because we can — … after the report is closed we can’t go back and we can’t do anything.

Counsel for the Secretary again asked Paul whether he accepted that the Principal raised the issue of Mr C’s concerns with him. Paul replied ‘No’, that he had told her that before. When told to answer the question, he said:

[Y]ou keep questioning and you ... I feel it’s not appropriate on torturing me. Because I mentioned many times, I approached Mr G after I met Mr C and I explained what happened.

Under further questioning Paul reiterated that he did not change A’s report in 2016. He was asked more general questions by members of the Board about his approach to student assessment. He spoke about how he retained data for student records and how he would go about accelerating a student if justified. He was questioned further about whether reports for previous years could be accessed on Compass and whether Compass had been fully implemented at the school. When asked whether he wanted a break he indicated he had had enough and wanted the cross-examination to cease. The Board took an adjournment for lunch, after which Mr O’Shea announced that Dr Gould had retired due to ill health. When asked whether he wished to continue being cross-examined Paul indicated he wished to be excused.

The effect of Paul being excused as a witness was that he was not cross-examined on the allegations that formed the basis for his termination in the Notice.

After Paul was excused as a witness, Mr O’Shea called for closing submissions and asked the Secretary to address the Board particularly on ‘the issue of penalty’. Her closing address focused upon the standard of proof and circumstantial evidence of motive that existed in 2017 for Paul to change the students’ records without authorisation. It was submitted that Paul ‘has a disciplinary history that speaks of a lack of respect for young women and students’ and that, in particular, the ‘2016 A incident speaks of a lack of respect and integrity in respect of student reporting’. Counsel acknowledged that Paul had given an account of the 2016 incident that was inconsistent with the Principal’s account and she urged that the Principal’s account was correct and should be preferred. She also submitted that Ms E’s evidence of Paul’s lack of professionalism in respect of curriculum and assessment ‘is consistent with that 2016 … assessment of A’. It was further submitted that Paul’s contribution to the school was ‘minimal’ and ‘passive’ in that he would tell Ms E he was going to do certain work and it would not get done. It was submitted that ‘on balance the only inference open to be drawn is that the person who altered the student records was in fact [Paul]’.[34]
[34]It was also submitted that ‘there are too many coincidences in the evidence that cannot be explained, other than by finding it’s [Paul] who made those alterations to student records’.

The Secretary submitted that the sanction of termination of employment was appropriate and it was explained that this was an employment limitation ‘for life’. However, it was later clarified that even if Paul’s employment was terminated, it would be possible in the future for an application to be made by Paul, if he addressed the integrity concerns, to do work as a teacher ‘on a managed basis’.

In Paul’s closing address he reiterated that he wished to continue to teach, which was his passion. He clarified that he was not asking to return to the school but to continue to teach in the Department of Education. He was asked some further questions by the Chair and confirmed that he did not know how the unauthorised access in 2017 had occurred but mentioned that he sometimes left his laptop in the staffroom because he had the same model at home and that he would leave on Fridays at 3:30 while others stayed back for a casual drink.

The Board adjourned indicating that it would provide a decision ‘quite soon’. However, it resumed the next day, on 19 June 2018, because there were a few issues the Board wanted clarified. Paul was asked to attend but he said he was unwell and unwilling to attend. He asked that the matter proceed without him. The Board had queries relating to technical issues but also concerns about the conflicting evidence between Paul and the Principal on the 2016 incident. It wished to ask further questions of the Principal. The veracity of the Principal’s account of the 2016 incident was in issue leading to the following exchange between Ms Terry and counsel:

Q:[P]erhaps that attitude [of Paul’s] to reports hasn’t been established as clearly as it would appear.

A:       In what sense?
Q:       His cavalier attitude to reporting prior to this has not been established.
A:       If it’s true, if he’s telling the truth, that’s right.[35]

[35]Emphasis added.

The reference of Ms Terry to ‘this’ is clearly to the 2017 misconduct allegations the subject of the Notice to be determined by the Board.

Mr O’Shea and Ms Terry asked questions of the Principal by telephone about the 2016 incident. The Principal said that Mr C had contacted Ms K and said he was concerned that the end of semester one 2016 report did not reflect what Paul said had been A’s progress, namely that A was fine, above standard, going really well and an excellent student. Mr C opened the report in Compass and it indicated that A was ‘six months behind’. He was asked what ‘six months behind’ meant. He explained that in marking a student there is ‘C’ for standard, ‘D’ is six months behind, ‘B’ is six months ahead. He said Mr C came in with the report and said, ‘well, how can this be?’. He said, ‘K and I then had a bit of a look at how A had been tracking over the journey, the year prior, and agreed that this was an anomaly’.

Ms Terry continued the questioning and the answers indicated that A had not been graded six months behind but as ‘level’, or at grade, contrary to her father’s expectations:

Q:At the time that Mr C came to K did you look at the actual report? Did you actually see what that A, B, C, D grading was?
A:K did, yes, and I think she took a copy of that report, Mr C had it there, and we just — we took it upon ourselves to go back, look at her history over the year prior, and we knew A was (indistinct) student, and that that assessment didn’t make sense.
...
Q:At the middle of Year 8, Mr Paul had placed her at 8.5. He says the dispute came around because Mr C was saying, ‘how can she have done six months and not have progressed?’ So, Mr Paul’s adamant statement yesterday was that he didn’t record her as six months behind, he recorded her at, at level, and Mr C was saying she should have been recorded above level. Can you shed any light on that?
A:So, without having — looking at the actual report and what he’s saying, [Paul] ended up, from all — you know, he agreed with Mr C that he changed the report.

Mr O’Shea pressed the Principal to answer Ms Terry’s question about the grade at which A was assessed. The Principal accepted that it may have been Ms K, and not Paul, who changed the assessment in the light of C’s concerns:

Q:Was the issue that [Paul] had rated her at 8.5 when Mr C thought she should be higher because she was 8.5 six months before at the end of Year 7?
A:Yeah, okay, so — to be clearer, at the interim report, again [Paul] had said she’s a great student, she’s — she’s well ahead of standard, and that’s when he actually accessed the reports and then it actually didn’t — she hadn’t progressed at all.
MS TERRY:
Q:Right, so she wasn’t recorded as behind level, she was recorded as, at level, and the discrepancy is from the interim report to a current report?
A:Correct.
Q:And so, what nature is the interim report? ... Is it a grade, is it a level, are they behavioural attitudinal indicators ...?
A:Yes, it’s attitude, about achievement, so at standard, you know, above, below, and — and a lot of the context of those reports is verbal, so effort, achievement and attainment, but it’s just a high, medium, low indication.
Q:Okay. So, to go back, you said that … Paul amended the report? Did you see the amended report?
A:No, I didn’t. No.
CHAIRPERSON:
Q:Did he do the amending himself?
A:It was either he amended it himself and placated, for want of a better word, Mr C, or [Ms] K … did. I suspect it was him that amended the report.
MS TERRY:
Q:Well, he states that he doesn’t have the capacity to do that.
A:He does.
...
Q:Do staff know that generally, is that something that’s generally known?
A: Not generally ...
...
CHAIRPERSON:
Q:... would your view be that the staff generally, once they were told they [the reports] were closed, the staff would generally think they can’t go further with the mark, couldn’t change them?
A:... that is ... the general perception but with … Paul you could say — you can actually say to staff, ‘That report needs amending so can you go in and change that please’.
MS TERRY:
Q:Was that directive given?
A:Yeah, I believe so, so it was either K done it, given that directive or she’s made the change herself.

The Principal was then asked by Ms Terry about whether Paul could support his assessment with data:

Q:So in paragraph 42 [of the Principal’s witness statement] you say that, ‘In response to the request from Mr C, [Paul] could not identify any assessment records.’ So did you ask him to show you the assessment records?
A:I — I didn’t myself personally but with Mr C — Mr C was very, I suppose, strong, in saying, ‘Look, can you please show me how you’ve assessed A where is it — where’s the test — where is a record that is credible and defensible and actually defines your position in relation to my daughter’ and he couldn’t — and he just sort of shrugged it off as being a mistake and that he would change it, and that’s what he did.
Q:So you were present for that meeting?
A:No.
...
CHAIRPERSON:
Q:How do you know that Mr C — how do you know that happened if you weren’t there?
A:Because Mr C would not have been satisfied unless the change was made. ...
Q:So, as far as you’re aware, did Mr C meet with [Paul] by himself?
A:Yes, yes.
Q:[Paul] did say yesterday that Mr C met with him, so that’s consistent with what he said, but then [Paul] says he didn’t make the change because he wasn’t able to because it was locked or closed, so it’s possible, is it — would it be possible, therefore, that Mr C could have gone back to K and taken it up with her?
A:That — that’s possible.
...
MS TERRY:
Q:[M]y understanding from what … Paul has said is that he said to Mr C that he had no basis on which to change A[’s] mark, that his on-demand testing, his observations of her participation in class, and her marks from the work that she has been provided with which was at level, that he was only able to place her at level at that time, and he says this is the response that he gave to Mr C, so is it possible that Mr C was not satisfied with that result, and then took it further with K?
A:That’s highly likely. Yes.
...
CHAIRPERSON:
Q:But your evidence is [Paul], you say at paragraph 42, ‘[Paul] ultimately said the record was a mistake and he subsequently amended the Compass record’. Now, I think you’re saying that might not be entirely correct, it could be someone else who did that?
A:It may well have been K, that’s correct, (indistinct) that’s true.

Counsel for the Secretary pursued with the Principal the question of whether Paul had been asked by the leadership team if he had data to support his assessment:

Q:Did yourself or K ask … Paul to show you the data on which he was basing his assessment?
A:It was more Mr C in the meeting with [Paul] demanding to see the assessments.
Q:So, a member of the leadership team — I just want to clarify this — did not ask … Paul to show his assessment records to you?
A:No, I don’t believe so.
CHAIRPERSON:

Q: And the meeting was between Mr C and … Paul and no one else?
A:That’s my understanding, yes.
...
Q: [Referring to [42] of the Principal’s Witness Statement] ‘[Paul] ultimately said the record was a mistake?’
A:... yes, that’s correct.
Q:Who did he say it to?
A:Mr C.
Q:How do you know that; did Mr C report that to you, or to K?
A:I believe he’s reported that to K verbally, subsequently from talking to [Paul] and the report was amended.

After the Principal was excused, Mr O’Shea noted that Ms K had not given any evidence in respect of the 2016 incident at all. The Secretary then withdrew her submissions about the 2016 incident as evidence of Paul’s cavalier attitude to reporting but maintained that the evidence of the 2016 incident was relevant to motive for the unauthorised interference with A’s records in 2017. Counsel said:

Ultimately, we think what is fair in the circumstances is for us not to press our submissions in respect of attitude to reporting, that we not ask the Board to have regard to that evidence to make findings that he had a cavalier attitude to reporting, but we maintain that that body of evidence goes to motive…

The Board indicated it would like the Secretary to provide further information from Compass about who altered A’s mark in 2016 if that information could be obtained. The Secretary provided further information on 22 June 2018 to the effect that ‘the further information obtained from Compass tends to indicate the Assistant Principal, L, changed A’s maths report for Semester 1, 2016 on or around 29 July 2016’. She noted that ‘L is no longer at the [school]’.[36]
[36]The Board provided a copy of this information to Paul but received no comments from him.

The Board’s reasons

The Board recorded the Secretary’s submission that it was entitled to conclude on the balance of probabilities that it was Paul who made the unauthorised changes to the records of 16 students in June 2017. It noted that the Secretary alleged that Paul ‘had a motive to target two of the 16 affected students’ academic results (A and B) and at least two of the three teachers whose students’ marks were downgraded (E and F)’.[37]
[37]Board’s reasons [24].

In the context of considering Paul’s motive with respect to A, the Board considered in detail the 2016 incident and the conflicting evidence between Paul and the Principal. It ultimately accepted Paul’s account of the 2016 incident as correct and concluded that it was probably an Assistant Principal who changed A’s academic results, not Paul, as alleged by the Secretary, in response to pressure from C. The Board observed:

A[‘s] Year 7 mathematics teacher assessed A at level 8.5 at the end of the 2015 school year. The Board was told this means that A was rated as at a level equivalent to a student half way through Year 8. This was based on the teacher’s judgement. [Paul] confirmed to the Board that in assessing his Year 8 students in 2016, he used standardised testing (On Demand) and teacher judgement. He assessed A at level 8.5 in June 2017. In other words, [Paul] assessed A as achieving the appropriate standard for her then current class: a student half way through Year 8.
At the one-on-one meeting between [Paul] and Mr C in mid-2016, Mr C complained that [Paul’s] assessment, if correct, meant that A did not reflect improvement since the end of Year 7. He questioned [Paul’s] assessment and the basis for it. [Paul] gave sworn evidence to the Board that his response to Mr C was that he could not assess A as ‘above expected level’ as she had not been exposed to curriculum at that level. [Paul] offered to provide A with more advanced learning materials (an offer subsequently declined by A).
The … Principal gave sworn evidence that [Paul]:
(a) was unable to demonstrate to Mr C why he had marked A as 8.5;
(b) could not demonstrate any assessment records to support his assessment;
(c) admitted it was a mistake; and
(d) subsequently amended the Compass record for A.

At the time [Paul’s] assessment of A was made, he gave sworn evidence to the Board that he had not previously accessed A’s Year 7 assessment and therefore did not take the previous year’s grade into account in making his own assessment. It is unclear whether the Year 7 teacher or [Paul] made the more accurate assessment of A[‘s] ability.
[Paul] gave sworn evidence that:
(a) the … Principal never spoke to him about Mr C[’s] complaint before [Paul] met with Mr C in mid-2016;
(b) the … Principal was not present during his meeting with Mr C in mid-2016;
(c) he was able to produce data to support his assessment of A in mid-2016;
(d) he was not asked by anyone at the [school] to increase A’s academic record in mid-2016;
(e) he did not agree to increase A’s assessment in mid-2016;
(f) he did not increase A’s assessment in mid-2016.

[Paul’s] sworn evidence on this issue is inconsistent with the sworn evidence of the … Principal.
[Paul] gave sworn evidence that at his meeting with Mr C in June 2016, he refused to increase his assessment of A. He told the Board that he believed that his assessment of her, based on his data, was correct…
...
In fact, the Board has since been informed [that] A[‘s] academic results in mid-2016 were subsequently increased by the Assistant Principal, not [Paul] as alleged by the [Secretary], most likely due to pressure from Mr C.[38]

[38]Ibid [26]–[34] (citations omitted).

The Board reached the conclusion that it ‘prefers the sworn evidence of [Paul] in relation to his meeting with Mr C in 2016, and the facts surrounding the subsequent increase in A[’s] assessment, over the sworn evidence of the … Principal Mr G on this subject’.[39] In the light of that finding, and the withdrawal by the Secretary of her reliance upon the 2016 incident as demonstrating Paul’s cavalier attitude to student assessment prior to the misconduct in 2017, the Board went on to remark:

The Board is satisfied that [Paul] held to his conviction on A’s assessment when he met with Mr C in June 2016 and that he was able to support his view by reference to the data on his laptop. The Board is also satisfied on the evidence before it, that [Paul] did not increase the assessment, but that it was in fact done by the Assistant Principal. In the Board’s view, [Paul] showed integrity in resisting Mr C’s pressure to change A’s assessment and was able to support the assessment he gave her by reference to the data on his laptop.
...
The Board notes that the [Secretary] has withdrawn all adverse assertions it made concerning the unsatisfactory attitude of [Paul] towards assessment (but not its assertions as to motive) as a result of further questioning of Mr C by the Board on the second day of the appeal.[40]

[39]Ibid [60].

[40]Ibid [61], [71].

The Board concluded that the 2016 incident could not be relied upon as establishing motive on behalf of Paul for engaging in unauthorised access of A’s records in June 2017, particularly because of the lapse in time between the two incidents:

The Board finds that the A incident in 2016 does not go to motive in the matter that gave rise to this appeal. [Paul] held the line with Mr C on his assessment of A. There is no evidence that [Paul] told Mr C that his assessments of his daughter were in error. [Paul] was not required by the [school] to increase A’s academic results, nor did he do so. This was done by the Assistant Principal most likely at the insistence of Mr C. The [school] did not initiate any formal complaint process as a result of Mr C[’s] concerns. There was a gap of almost 12 months between that incident and the altering of the academic results for 16 students (including A) in June 2017. The significant time-lapse between these events does not support the finding of a causal link between them.
The Board does not accept the [Secretary’s] contention that the ‘incident’ involving A and her father in June 2016 was the motivation behind the allegations of misconduct presently before the Board.[41]

[41]Ibid [66]–[67] (citations omitted).

The Board also considered that as the two complaints in 2008 and 2011[42] did not give rise to any findings, it was unable to draw any adverse inferences from them.[43]
[42]See [34] above.
[43]Board’s reasons [69].

By contrast, the Board found that Paul did have a motive with respect to B, namely, that the complaint by B and her parents, and the subsequent formal written warning Paul was given on 20 June 2017,[44] provided a motive for Paul to alter the academic results of B in June 2017. The proximity of the formal warning suggested a motive for the alteration.
[44]See [34] above.

The Board also considered that the pressure that had been placed by Ms F on Paul to perform amounted to a motive for Paul to downgrade the academic results of her students.[45] It also upheld the allegation of motive in relation to Ms E.[46] It set out its conclusions as follows, including its explanation of the role of motive in the proof of the allegations, and recorded its satisfaction that Paul had sufficient motive to alter the records of all 16 students:[47]
[45]Board’s reasons [70]. See [34] above.
[46]Ibid [80]. See [34] above.
[47]This would suggest that the Board took the view that Paul had a motive to alter A’s student record but that it was not the 2016 incident that provided that motive.

The Board finds that [Paul’s] user ID and password were used to access Compass in order to alter the academic results of 16 students in June 2017. The forensic evidence is compelling.
A key question for the Board is whether [Paul] was the person who accessed Compass to alter the academic results. [Paul] has provided no explanation for how his user ID and password could have been used by another person to access Compass. He has offered no evidence other than to assert he is a competent teacher of high integrity who is committed to his students and colleagues and would never do anything to harm them.
The evidence implicating [Paul] is circumstantial. There is no objective evidence that can demonstrate that it was in fact [Paul’s] device that was used to alter the academic results. On the second day of the appeal, the Board asked the [Secretary] to obtain the IP address for the device used to alter the academic results. The Board was informed that Compass does keep a record of the IP address of all devices accessing the system, but these are stored on a loop and deleted after a few weeks, with no back up being kept.
...
The complaint made by B and her parents in May 2017 provides a motive.
The fact that students in classes taught by Mathematics Domain leader Ms F and Ms E had their academic results downgraded and each of them was putting pressure on [Paul] to perform could provide a further motive.
Motive is not sufficient, in and of itself, to satisfy the requisite burden of proof of the allegations of misconduct made against [Paul]. However, the Board has given weight to motive in deciding whether it was more likely than not that [Paul] engaged in the alleged misconduct.
…
The Board is satisfied on the balance of probabilities that [Paul] had sufficient motive to alter the academic results of the 16 students on Compass in June 2017 and that he in fact made the alterations.[48]

[48]Board’s reasons [74]–[76], [79]–[81], [83].

The Board held that the conduct that Paul engaged in was an act of misconduct within the meaning of s 2.4.60(1)(b) of the Act.[49] It dismissed the appeal brought by Paul on the question of culpability.
[49]Ibid [88]. The Board held that Paul would still have committed an act of misconduct even if he had not engaged in the unauthorised access of students records but had allowed another person to do so: at [88]–[89].

However, it allowed the appeal ‘on the question of penalty’ because it considered termination of Paul’s employment to be excessive.[50] With respect to disposition, it took into account the adverse impact upon the school as well as its finding that Paul was a teacher who had demonstrated integrity and principles with respect to student assessment. It said:
[50]Board’s reasons [102].

The test for legal unreasonableness remains a stringent one.[71] Where the reasons of a decision maker demonstrate a justification for the exercise of the power it would be rare to find unreasonableness.[72]
[71]Ibid 377–8 [113] (Gageler J).
[72]SZVFW (2018) 264 CLR 541, 574 [84] (Nettle and Gordon JJ); [2018] HCA 30.

The task of an appellate court is to examine the decision of the administrative decision-maker to determine whether the primary judge was correct in concluding that the decision made was, or was not, legally unreasonable.[73]
[73]Ibid 580 [117] (Nettle and Gordon JJ). That is, it is not a matter of determining whether it was open for the primary judge to conclude that the administrative decision was reasonable or not: at 553 [20] (Gageler J).

Is there an evident and intelligible justification for the Board’s decision?

On the appeal, the Secretary maintains her submission that the primary purpose of an exercise of the discretionary power conferred by s 2.4.68 (in the context of ss 2.4.60 and 2.4.61 of the Act) is protective. She submits that it is the protective purpose which informs the standard of reasonableness against which the Board’s decision falls to be assessed.

The Secretary submits that the Board’s decision as to the action to be taken against Paul was unreasonable on three bases, namely: (1) that it wrongly focused on the 2016 incident rather than the whole of the evidence; (2) that it proceeded as though the evidence from the 2016 incident was the only evidence of character; and (3) that it decided what action was appropriate without reasonable regard to Paul’s misconduct, his evident dishonesty and his choice not to take responsibility for, or explain, his conduct. She submits that the judge failed to address the ground of unreasonableness by reference to the Board’s findings as a whole.

The Secretary submits the Board wrongly focused upon the 2016 incident as the basis on which it drew its conclusions that Paul showed himself to be a teacher of integrity and principles, that he had a positive attitude to student assessment, and that there was ‘no evidence’ that he had a cavalier attitude. She claims it was unreasonable for it to adopt this focus in the face of the whole of the evidence which ought to have included the misconduct in which he was found to have engaged in 2017 and his dishonest denials before the Board.

Moreover, the Secretary submits that, before the judge, she was not seeking to argue that the Board’s conclusions about the 2016 incident were not open on the facts. Rather, the Secretary sought to demonstrate that the disposition of the Board lacked an evident or intelligible basis because the appropriate disposition could not be arrived at without reasonable regard to Paul’s misconduct in 2017 and his dishonest denials that he had engaged in that misconduct, reflecting his unwillingness to accept responsibility. She submits that it was unreasonable for the Board to ignore the more recent and relevant evidence as to Paul’s character.

In response, Paul submits that this was not a case where only one conclusion was available on the evidence and the Board failed to arrive at that conclusion. Indeed, as the judge noted, this had been conceded by the Secretary.[74] Nor was this a case where there was no evidence to support the decision, or where there was no logical connection between the evidence and the Board’s conclusion. He submits that, while the judge concluded that there was an evidentiary basis for the Board’s findings that Paul was a teacher with integrity and principles, that there was no evidence that he was cavalier in his attitude to student assessment, and that Paul had a positive attitude to student assessment, she also considered whether those findings had a ‘reasonable and logical connection’ to the Board’s decision and found that they did.[75]
[74]See [94] above.
[75]See [93] above.

He further submits that the judge noted that the Board took into account Paul’s behaviour as a teacher beyond the 2016 incident and, significantly, found that Paul ‘had no history of inappropriate behaviour similar to the kind of misconduct’ under consideration.[76] Moreover, the judge noted that Paul had denied his misconduct before the Board and had not expressed contrition but she nevertheless found that the Board’s decision fell within a range of possible acceptable outcomes, that is, within the range of its ‘decisional freedom’.[77]
[76]See [93] above.
[77]See Li (2013) 249 CLR 332, 351 [28] (French CJ); [2013] HCA 18.

In our view, to examine whether the Board’s decision falls outside of the scope of the statutory purpose of protection of students, as described above,[78] or whether it fails to bear a rational and intelligible connection to the evidence before it, requires an understanding of the history of the matter, and the manner in which the hearing before the Board unfolded.
[78]See [40] above. The statutory purpose of the disciplinary proceeding is explored further below under Ground 2.

As described above, from the outset, while the charge in the Notice alleged misconduct, within the meaning of s 2.4.60(1)(b) of the Act, consisting of ‘altering student records on Compass without authority or reasonable justification’,[79] the particularisation of the charge included reference to the 2016 incident. The complaint in July 2017 in respect of the misconduct came from Mr C, the father of A, who, while expressing concerns about discrepancies in his daughter’s report at that time referred back to the 2016 incident and the allegation that, when challenged, Paul had no credible or defensible data to support his assessment of A.[80]
[79]See [8] above.
[80]See [9] above.

The cornerstone of the Secretary’s written and oral submissions before the Board that Paul had a ‘cavalier’ attitude to student assessment was the 2016 incident. It formed a key plank of the Secretary’s written submissions because it was said to have ‘demonstrated a lack of respect and professionalism by [Paul] in the area of student assessment and report, an area G [the Principal] regards as being at the heart of professional responsibility’.[81] The 2016 incident was relied upon by the Secretary as establishing a ‘course of conduct’ allegation against Paul on the basis that he had a ‘track record’ of adopting a disdainful approach to student records.[82] It revealed his poor character and lack of professionalism as a teacher.[83] It was also treated by the Principal, in his witness statement, as the foundation of his concerns about Paul and his methods for assessing and recording student performance[84] giving rise to the need to exercise greater supervision over him by the use of ‘more overt directions’.[85]
[81]See [33] above.
[82]See [38] above.
[83]See [38] above.
[84]See [47] above.
[85]See [42] above.

Moreover, the 2016 incident was seen as significant because it led to a general change in approach to student assessment at the school as it resulted in ‘the leadership team being more proscriptive [sic] to all staff at the [school], including [Paul], about academic assessment and reporting’.[86] It provided the foundation of the Principal’s recognition that the school needed to increase the stringency governing the maintenance of assessment data on students’ academic progress.[87]
[86]See [33] above.
[87]See [42] above.

Reference to the 2016 incident was a core part of the Secretary’s opening address before the Board when counsel relied upon it as causing the leadership team at the school to have ‘real doubt around [Paul’s] commitment to accurate and credible student reporting’.[88] As noted, the exchange with Paul in cross-examination revealed that in 2016 he had refused Mr C’s suggestion to change his daughter’s academic record and he had records supporting his assessment of A.[89] Paul acknowledged that his account of the 2016 incident was inconsistent with the evidence given by the Principal.[90] In her closing address, the Secretary continued to rely upon the 2016 incident as evidence of Paul’s ‘lack of respect and integrity in respect of student reporting’[91] and urged that the Principal’s account be preferred over that of Paul’s. On this basis, the Board was urged to consider termination of Paul’s employment as a teacher to be appropriate.
[88]See [54] above.
[89]See [57]–[62] above.
[90]See [58] above.
[91]See [64] above.

As recounted above, the Board sought further clarification from the Principal about the 2016 incident and in summary it emerged that: (1) Paul had assessed A as level with the expectations for her class (not as six months behind); (2) he had resisted C’s request for the assessment to be upgraded; (3) he had offered A the opportunity to do extension work which she did not take up; (4) A’s assessment was most likely adjusted by an Assistant Principal, not by Paul; and (5) the Principal had little direct knowledge of any of the details of the 2016 incident.[92] As mentioned, the Secretary withdrew her reliance on the 2016 incident as evidence of Paul’s cavalier attitude but maintained that it was relevant to motive with respect to Paul’s unauthorised access to A’s student record in 2017.[93] In respect of the 2016 incident, the Board preferred the evidence of Paul to that of the Principal, whenever the evidence was in conflict;[94] rejected the submission that the 2016 incident was nevertheless relevant to motive in respect of A;[95] and concluded that the evidence, particularly the cross-examination of Paul, and the evidence Paul gave when questioned by the Board more generally about his approach to student assessment, revealed that Paul’s behaviour in respect of the 2016 incident showed that he had acted with integrity.[96]
[92]See [69]–[73], [77] above.
[93]See [74] above.
[94]See [78] above.
[95]See [79] above.
[96]See [78] above.

In our view, the effect of the withdrawal by the Secretary of her reliance upon the 2016 incident as evidence of Paul’s lack of professionalism and ‘track record’ of disdain for student assessment was of considerable significance given the way in which the hearing against Paul had unfolded. It is therefore unsurprising that the 2016 incident loomed so large in the Board’s reasons; we consider that the Board did not attribute disproportionate weight to it so as to render the Board’s decision legally unreasonable. For the Secretary to abandon reliance upon the 2016 incident (other than with respect to motive in relation to A), it having been identified from the outset as supporting the charge of misconduct and providing the basis for an inference that Paul’s lack of professionalism placed students at risk in the assessment of their academic performance, left the Secretary’s case before the Board in favour of termination resting solely upon the misconduct in 2017. The withdrawal undermined the Secretary’s case in a fundamental way, for example, by eroding the force of her submission in closing address that Paul ‘demonstrated no real commitment to the values and ethical obligations of the profession but has merely gone through the motions for a number of years’. Insofar as Paul’s history of lack of commitment was intended to provide predictive value about his future conduct, if permitted to teach in a Government school again, the withdrawal meant that the case upon which the Secretary opened was significantly weakened and ultimately the Secretary was obliged to rely upon a much narrower case.

This is not to question the Secretary’s withdrawal of her reliance upon the 2016 incident. No doubt that decision was appropriate, and perhaps inevitable, given the conflict of evidence between Paul and the Principal and the evidence that emerged about the role of the Assistant Principal in the 2016 incident. However, the withdrawal meant that, although the Secretary could emphasise the unequivocally serious lapse from professional standards that the misconduct in 2017 exemplified, she could not do so in a manner that pointed to it as reflecting an enduring failure in Paul’s attitude as a teacher, nor as evidence of a consistently high-handed disposition, because the corroboration necessary to establish a pattern of unprofessional conduct was absent.

We consider that the Board’s reasons reveal an evident and intelligible justification to its conclusion on the appropriate action to be taken. The logic of the Board’s reasons is two-fold: first, to justify the rejection of termination on the basis that it was disproportionate, and, second, to justify, as an appropriate form of disciplinary action, a reprimand and a significant reduction in classification.

To explain the rejection of termination as an appropriate outcome, the Board’s reasons, in large part, seek to demonstrate that there was no longer any rational basis for it to draw an inference about Paul’s general attitude to student assessment. This required a description of the 2016 incident and what had occurred during the hearing.[97] As discussed, this led to an absence of any evidence on an underlying character flaw. In this context, the Board also explained why it rejected the relevance of the ‘performance issues’ associated with Paul’s interactions with Ms E and Ms F[98] as going to anything other than motive for the misconduct.
[97]See [77] above.
[98]See [34] above.

The second step in the logic of the Board’s reasons is the explanation it gave as to what action would be proportionate, or appropriate, to the misconduct considered alone. The consideration identified to assist in determining the adequacy of an outcome, to which the Board gave ‘particular weight’,[99] is the adverse effect the misconduct had had on the school, especially with respect to the impact on its reputation in the local community and the morale of its staff.[100] Furthermore, as a result of the evidence Paul gave in cross-examination on the 2016 incident, and, more generally, the responses he gave about student assessment (including always retaining data to support his assessments),[101] the Board was in a position to make positive findings about Paul’s attitude to student assessment and his resistance to improper pressure, showing him, aside from the misconduct, ‘nonetheless .... to be a teacher with integrity and principles’.[102] In our view, a fair reading of that conclusion, and the surrounding paragraphs of the Board’s reasons, is that, putting to one side the misconduct in 2017, there was evidence that Paul took his responsibilities as a teacher seriously; that, otherwise than the misconduct, there was no evidence to indicate Paul was cavalier towards student assessment. This is consistent with Ms Terry’s comment, when the Board reconvened on the second day of hearing, that further evidence needed to be given because, at that stage, Paul’s ‘cavalier attitude to reporting prior to this [the 2017 misconduct allegations the subject of the Notice to be determined by the Board] has not been established’.[103]
[99]See [84] above.
[100]See [84] above.
[101]See [84] above.
[102]Emphasis added. See [84] above.
[103]See [67] above.

Most significantly, the Board emphasised that, with respect to the nature of the misconduct before it, in the absence of reliance on the 2016 incident, this was behaviour that Paul, who had spent 10 years at the school, had no history of engaging in before: Paul ‘is an experienced teacher with no history of inappropriate behaviour of the kind that was the subject of [the] appeal’.[104] In effect, the Board’s conclusion is that, on the evidence, the misconduct was out-of-character or anomalous, or, as counsel for Paul described the Board’s conclusion on the appeal, ‘an aberration’.
[104]See [84] above.

Furthermore, the Board’s awareness of the seriousness of Paul’s misconduct is reflected in the serious and significant sanctions it imposed, the reprimand and substantial reduction in classification, the latter being the second most severe form of sanction available and carrying with it a significant reduction in remuneration.[105]
[105]This is a reduction of about $20,000 from a salary of $108,003 to $86,370.

With respect to the dishonesty of Paul’s denials, Paul accepts that his denials were a relevant consideration for the Board to take into account, and it did take them into account, but they were not themselves the subject of a charge of misconduct.

In her written case on the appeal, the Secretary submitted that the proceeding before the Board ‘was concerned with ... Paul’s conduct in 2017 (the serious misconduct) and 2018 (when ... Paul dishonestly denied that conduct in evidence to the Board)’.[106] The reference to ‘serious misconduct’ is in error because the Act distinguishes between ‘misconduct’ and ‘serious misconduct’[107] and the allegation established against Paul was ‘misconduct’ within the meaning of s 2.4.60(1)(b) and not serious misconduct. The Secretary went on to submit that the judge ought to have addressed the question of unreasonableness by taking into account not only Paul’s misconduct but also Paul’s ‘evident dishonesty and his election not to take responsibility for, or explain, his conduct’.[108]
[106]Emphasis added. Written Case for the Applicant [19].
[107]See, eg, s 2.4.61A that allows for the Secretary, on a reasonable belief that an employee has engaged in serious misconduct, to terminate the employee’s employment. This stands in contrast to the power under s 2.4.60 for the Secretary to take action (including termination) if the Secretary is satisfied on an inquiry under div 10 of the Act that there are grounds for taking action against the employee.
[108]Written Case for the Applicant [19].

On the appeal, the Board adopted the approach endorsed in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[109] and confined its submissions to matters going to its powers and procedures. It submitted, in its written case, that the question of the dishonesty of Paul’s denials was not the subject of a separate charge nor identified as ‘an act of misconduct’ under div 10 of pt 2.4 of the Act and the requirements of procedural fairness had not been met in relation to it. The Board would not have jurisdiction to deal with the 2018 conduct as conduct that might give rise to ‘action’ under the Act.
[109](1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 13.

The Secretary clarified, in oral submissions on the appeal, that she did not intend to rely on Paul’s dishonest denials as a separate form of conduct that had been before the Board. Nevertheless, it was apparent that Paul’s dishonesty, and failure to accept responsibility for his misconduct, was relied upon by the Secretary as in effect an aggravating feature of Paul’s misconduct; that is, it rendered the misconduct engaged in more reprehensible and/or as warranting termination when the misconduct otherwise might not have done. The Secretary submits that Paul’s dishonesty, in contesting the misconduct, was a factor that rendered the Board’s decision unreasonable because it was not taken into account in the Board’s assessment of whether termination was excessive and the judge did not grapple with that omission.

The Secretary also submits that in evidence Paul wrongly invited the Board to find that one of his colleagues had made the alterations, by saying he often left his laptop in the staffroom, when he left while other teachers stayed for a casual drink.[110] We consider that to treat this evidence as revealing an underlying dishonesty is unsupported by the otherwise numerous observations that Paul failed to provide any alternative explanation for the unauthorised access and did not identify anyone else as likely to have engaged in the access.[111]
[110]See [66] above.
[111]See [16], [36] and [82] above.

In our view, the Secretary was wrong to treat the fact that Paul did not admit to his wrongdoing, and that he affirmatively denied it, as aggravating his misconduct.[112] The Board was well aware that Paul had denied the misconduct but also that he had both apologised and stated that he would take additional precautions in the future to ensure that the unauthorised access to student records never happened again.[113] Notwithstanding that it would have been open to the Board to regard the intention to take additional precautions as somewhat disingenuous, it was also open to the Board to be satisfied that Paul’s demotion, the reprimand, and probably the disciplinary process itself would jointly amount to a sufficiently serious corrective measure to reduce any future risk of the misconduct occurring again. It is to be recalled that the Secretary accepted before the judge that, in light of the conduct, termination was not the only legally available disciplinary disposition.[114] This was confirmed on the appeal. In doing so, the Secretary significantly narrowed the scope for a finding of legal unreasonableness. It must follow that it was for the Board to weigh the competing aspects and arrive at an appropriate outcome, within the range of potential outcomes that were open.
[112]While an acknowledgement of culpability or, in a criminal context, a plea of guilty is treated as a mitigating factor for sentencing, it is improper to treat a refusal to acknowledge guilt, or the contesting of a charge, or the conduct of the defence, as an aggravating factor: Siganto v The Queen (1998) 194 CLR 656, 666 [30]–[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [1998] HCA 74.
[113]Board’s reasons [40].
[114]See [94] above.

In our view, the Board’s reasons do not fail to reveal a logical and rational connection between the conclusion on disposition and the evidence on which it was based; the Board’s reasons establish a logical justification for its conclusion. There was no abuse of the statutory power. We consider that the judge took into account the findings of the Board, considered as a whole, and was correct to dismiss the unreasonableness ground of review.

We reject Ground 1.

Did the Board misconstrue its statutory functions? — Ground 2

The Secretary submits that the Board’s reasons do not reveal, properly or at all, that it had an adequate appreciation of the protective purpose of ss 2.4.60, 2.4.61 and 2.4.68 of the Act. Instead, the Board’s reasons show that its focus was on identifying a just punishment for Paul’s misconduct. It set about its task by reference to the evidence of Paul’s character, as shown through the 2016 incident, its view of Paul’s moral culpability and the impact upon him of termination of his employment. The Secretary accepts that each of these factors may be relevant considerations to the Board’s decision but they ought not to have been treated, as they were, as determinative of the question of whether termination was excessive. They ought to have been considered by reference to the protective purpose of the Act.

She submits that the Board did not understand its statutory function of protection of students, the public and the profession, and therefore constructively failed to exercise its jurisdiction, as demonstrated by its failure to engage in analysis of judgment, risk, or insight. The Board’s use of the word ‘penalty’, while not alleged to be an error in itself, was relied on by the Secretary to indicate, in context, that the Board had taken an erroneous approach to its task.

Paul submits that it is apparent from the Board’s reasons that it assessed the question of the appropriate action to be taken mindful of the Board’s protective purposes. The Board’s assessment of Paul’s character and fitness as a teacher was relevant to both the determination of a proportionate disciplinary sanction as well as an assessment of the level of risk Paul posed to students, the teaching profession, and the public. Specific deterrence (although not described as such) is relevant because it can play a vital role in fulfilling the protective purpose.

In our view, the Board did not misconstrue its statutory functions. It was well aware that the Act is directed at the maintenance of professional standards for the teaching profession. This is apparent initially from its findings that the allegations of unauthorised access, in respect of which it found the circumstantial evidence compelling, amounted to ‘misconduct’ within the meaning of s 2.4.60(1)(b) of the Act. It recognised that that question was to be determined ‘by reference to the standards of conduct to be expected of a person in the same profession’, a question to which it could bring its own specialist expertise.[115]
[115]Board’s reasons [85].

On the appeal, the Secretary submits that too much deference was shown by the judge to the Board on the basis that it was a specialist tribunal. The Secretary submits that, similarly to the circumstances in Ha v Pharmacy Board of Victoria,[116] the Court was in as good a position as the Board to make an assessment on disposition because it was not dependent on specialist or professional knowledge. We disagree. The circumstances in Ha are readily distinguishable as the misconduct there involved the pharmacist indecently assaulting two women, conduct of the type with which courts are regrettably readily familiar and which, as Gillard J observed,[117] bore no connection to the practice of pharmacy which simply provided the opportunity for the assault by Ha advertising for a junior pharmacy assistant. By contrast, here the conduct at issue, the unauthorised access to, and alteration of, student records, was directly connected to the teaching profession and the gravity of the misconduct, and the appropriate sanction, based on an interference with the integrity of the marking system, was an issue that the Board had specialist qualifications to assess.
[116][2002] VSC 322 (‘Ha’).
[117]Ibid [84].

Furthermore, the Board, when considering the appropriate disposition for the breach of professional standards by Paul, first took account of the effect of that breach on the loss of reputation of the school and the loss of confidence or lowered morale experienced by the staff of the school. As mentioned, it gave ‘particular’ weight to those matters.[118] In considering the impact of the misconduct upon the school, the Board took into account the expense and waste of ‘much valuable management time’ in having to investigate the misconduct.
[118]See [84] above.

It was only after considering the impact of Paul’s misconduct on the school that the Board turned to consider what the misconduct revealed about Paul’s character. This discussion was premised upon an understanding of the protective purpose of disciplinary proceedings. The issue of whether Paul was ‘cavalier in his attitude to the assessment of students’ was an issue that was directly relevant to the future risk Paul posed to students. Contrary to the case urged by the Secretary before the Board, the evidence that unfolded in the hearing was that Paul ‘kept data to support his assessments and that he was never required to change an assessment because it had no data to support it’. This facilitated one of the foundational principles of the Act that a parent of a student and the student each has a right to access information about the student’s achievement. The evidence given about the 2016 incident thus, perhaps ironically, supported a judgment about the future risk Paul posed to students that did not justify termination. As noted, the Board was also mindful that the evidence about Paul’s ‘positive attitude … to student assessment’ was not available to the Secretary when the termination decision was made.

The Board ultimately considered that termination was an excessive ‘penalty’ in respect of the misconduct of an experienced teacher with no relevant history of inappropriate behaviour. In the context of its reasons on disposition, far from the Board treating the impact upon Paul personally as determinative, a close reading of its reasons show there is almost no discussion at all of that impact. There is no examination, for example, of whether Paul would be unable to gain any form of alternative employment, or had the skills to do so, or would be shunned by former colleagues or other members of the teaching profession. While the Board observed, in recounting Paul’s submissions, that he wished to continue as a teacher, the only reference to the future impact of the Board’s disposition upon Paul personally is in relation to the impact of his reinstatement and the desirability of ensuring that he could be transferred to another employment setting. The focus is upon arriving at an appropriate disposition taking into account the proven misconduct and the evaluation the Board could make more generally of Paul’s character.

In so far as there is any suggestion in the Board’s reasons that its task is to find an appropriate ‘penalty’ for Paul, this is unsurprising given the seriousness of the forms of action available to the Board upon a finding of culpability. Indeed, the Secretary acknowledged that, while the purpose of disciplinary proceedings is protective, nevertheless the consequence may be punitive.[119] We agree with the judge that the Board’s use of the word ‘penalty’ was no more than a means of differentiating the question of blameworthiness from the question of what action is to be taken when blameworthiness is established.[120]
[119]See [40] above.
[120]See [99] above.

We reject Ground 2.

Conclusion

We would grant leave to appeal as the matter was complex and it could not be said that the prospects of success were no more than fanciful.[121] We have rejected both grounds of appeal. The appeal should be dismissed.
[121]Kennedy v Shire of Campaspe [2015] VSCA 47, [12] (Whelan and Ferguson JJA).

McLEISH JA:

I have had the considerable advantage of reading in draft form the reasons of Tate and Niall JJA. I agree with them, for the reasons they give, that leave to appeal should be granted and that the appeal should be dismissed. I wish only to add the following observations in respect of ground 1.

In a case such as the present, where it is conceded that the decision under review was reasonably open, a claim of legal unreasonableness depends on establishing that there was no evident and intelligible justification for making that decision.[122] That will involve examining any reasons given for the decision to determine whether they reveal an intelligible justification for making it.[123] That differs from the task which sometimes falls to a court of deciding whether the reasons of a court or tribunal adequately disclose the decision-maker’s path of reasoning so as to comply with the obligation to give reasons. The underlying question in a case where unreasonableness is alleged is the quite different one whether the decision-maker, by virtue of want of the reasonableness upon which the statute in question has impliedly conditioned the exercise of the decision-making power, has failed to exercise the jurisdiction conferred by that statute.[124]

[122]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ) (‘Li’); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 550–1 [10] (Kiefel CJ), 573 [82] (Nettle and Gordon JJ) (‘SZVFW’).

[123]SZVFW (2018) 264 CLR 541, 574 [84] (Nettle and Gordon JJ).

[124]Li (2013) 249 CLR 332, 362 [63] (Hayne, Kiefel and Bell JJ); SZVFW (2018) 264 CLR 541, 564–5 [51]–[53] (Gageler J), 572–3 [80] (Nettle and Gordon JJ), 583 [131] (Edelman J).

If the reasons for decision in such a case are capable of alternative interpretations, one of which evidences an intelligible justification and the other of which does not, the party seeking to show unreasonableness must establish that the correct interpretation is that lacking an intelligible justification. That is because, as Nettle and Gordon JJ observed in SZVFW:

It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.[125]

It appears that their Honours had in mind a case where the result itself reveals unreasonableness.[126] As indicated at the outset, that is not this case.

[125](2018) 264 CLR 541, 574 [84].

[126]Ibid 573–4 [83].

In the present case, the Secretary’s submissions in respect of ground 1 sought to attribute to the Board a perverse conclusion as to Paul’s integrity which flew in the face of its own findings of misconduct and his denials in that respect. In my opinion, a more plausible reading of the Board’s reasons is that it sought to place the misconduct it had identified in context for the purpose of determining the action that should be taken. In doing so, the Board found that Paul was otherwise a teacher of integrity. That revealed the misconduct to have been aberrant behaviour.

That this is the preferable reading is confirmed by the Board’s statement that his evidence in cross-examination, albeit limited, ‘nonetheless’ showed Paul to be a teacher with integrity and principles. It also explained its decision by reference to Paul being ‘an experienced teacher’ with no history of similar inappropriate behaviour.

Once this is seen to be the correct interpretation of the Board’s reasons, ground 1 must fail. The fact that the misconduct was isolated and Paul was otherwise a teacher of integrity not only meant that the case was markedly different from that found by the delegate, but it provided an intelligible justification for the lesser action upon which the Board decided.

Even if this had only been one available interpretation of the Board’s reasons, without necessarily being the preferable one, that circumstance would mean, in my opinion, that the Secretary had failed to discharge her onus of establishing that the reasons revealed no intelligible justification. However, it is not necessary to explore that scenario further.

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*Introduction and summary*.............................................................................	1
*The misconduct allegations*............................................................................	2
*The statutory scheme* ......................................................................................	11
*Paul’s appeal to the Board* ............................................................................	15
Exchange of ‘Board Books’..................................................................................	15
The hearing before the Board...............................................................................	22
*The Board’s reasons*.........................................................................................	32
*The primary judge’s reasons*...........................................................................	39
*Grounds of appeal*............................................................................................	43
*Was the primary judge correct in determining that the Board’s decision was not legally unreasonable? — Ground 1*................................................	44
The test for unreasonableness..............................................................................	44
Is there an evident and intelligible justification for the Board’s decision?*.........*	46
*Did the Board misconstrue its statutory functions? — Ground 2*............	56
*Conclusion*.........................................................................................................	60

[2020] VSCA 280

12 November 2020