Singh v Queensland College of Teachers

[2022] QCAT 442

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Singh v Queensland College of Teachers [2022] QCAT 442

PARTIES:

PARMINDER SINGH

(applicant)

v

QUEENSLAND COLLEGE OF TEACHERS

(respondent)

APPLICATION NO/S:

OCR021-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 October 2022

HEARING DATE:

13 June 2022

DECISION OF:

Member Olding

ORDERS:

Each party is to file written submissions addressing the orders the Tribunal should make to allow for this matter to be decided in accordance with the principles set out in the Tribunal’s reasons of today’s date – by 4-00pm on 10 November 2022

CATCHWORDS:

EDUCATION – EDUCATORS – REGISTRATION – certification process for Highly Accomplished Teacher – evidence required to satisfy Australian Professional Standards for Teachers – where respondent adopted unduly restrictive approach to consideration of evidence – whether to set aside and return decision for reconsideration or invite the respondent to reconsider its decision

Education (Queensland College of Teachers) Act 2005 (Qld), Chapter 2A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23, s 24

Education (Queensland College of Teachers) Regulation 2016 (Qld), s 33

Re Henry and Secretary to the Department of Social Security [1986] AATA 171

APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:	Self-represented
Respondent:	K. Deo, A/Principal Legal Officer

REASONS FOR DECISION

1. Eligible Queensland teachers may apply for certification as a “highly accomplished teacher” (“HAT”). The assessment process for certification has two stages. Stage 1 is a preliminary assessment of the application. In stage 2, an assessment of the applicant’s teaching practice is carried out.

2. However, if the Queensland College of Teachers (“the College”), which is responsible for administering the certification process, decides the assessment process may not proceed to assessment stage 2, the assessment process for the application ends.

3. The applicant, Mr Singh, applied for certification as a HAT. The College carried out a preliminary assessment of the application and decided Mr Singh’s application may not proceed to assessment stage 2.

4. Mr Singh has applied to the Tribunal for review of that decision. The Tribunal’s role is to conduct a fresh hearing on the merits to determine whether to confirm or amend the decision that Mr Singh’s application may not proceed to assessment stage 2, or set the decision aside and substitute another decision or return the matter for reconsideration by the College: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 24. However, the Tribunal may, at any stage in an application for review, invite the decision-maker to reconsider the decision under review.[1]

   [1]QCAT Act, s 23.

5. The College has advised this is the first decision dealing with the certification assessment regime. The matter has raised significant issues regarding the appropriate approach to consideration of the statutory requirements for certification of HATs (and “Lead Teachers”). The approach adopted by the College is fundamentally different to what I have concluded is required by the legislative framework and, to an extent, to the approach endorsed in national guidance material approved by education ministers.

6. Because of the potential significance of this matter to the administration of the certification regime, I expect the College, in particular, will want to carefully consider its position. In the circumstances, I have concluded that the appropriate course is to direct the parties to file short submissions regarding the orders they consider the Tribunal should make.

Statutory framework

1. The certification process is governed by Chapter 2A of the Education (Queensland College of Teachers) Act 2005 (Qld) (“QCT Act”).

2. Under s 67D(2), the College may decide a certification application may proceed to assessment stage 2 “only if satisfied the applicant’s abilities, experience, knowledge and skills meet the requirements stated in the professional standards for the application to proceed to assessment stage 2”.

3. Accordingly, the question for determination by the Tribunal is whether the Tribunal, standing in the shoes of the College on review, is satisfied Mr Singh’s abilities, experience, knowledge and skills meet the requirements stated in the “professional standards” for the application to proceed to assessment stage 2.

4. The expression “professional standards” is defined in the Dictionary in Schedule 3 to the QCT Act as “the standards adopted or developed under section 235(1)(a) or (b)”. Section 235(1) in turn provides for the College to either adopt the “national professional standards” or with the approval of the Minister adopt or develop other standards.

5. The College advised the Tribunal that it has not adopted or developed other standards. Accordingly, it is the “national professional standards” that are relevant. The expression “national professional standards” is defined in s 235(8) as the national professional standards prescribed under a regulation.

6. Section 33 of the Education (Queensland College of Teachers) Regulation 2016 (Qld) provides that, for the purposes of s 235(8) of the QCT Act, the national professional standards are “the professional standards for teachers approved by the Ministerial Council”. These are known as the Australian Professional Standards for Teachers (“APST”).

Australian Professional Standards for Teachers (APST)

1. The APST set out requirements for Highly Accomplished Teachers and Lead Teachers. For each of those two classifications, the APST contain a narrative describing the attributes of a HAT (and for a Lead Teacher), along with seven standards. The standards each fall within one of three “Domains”.

2. The Domains and Standards are entitled:

   Domain: Professional Knowledge
   Standard 1: Know students and how they learn

   Domain: Professional Knowledge
   Standard 2: Know content and how to teach it

   Domain: Professional Practice
   Standard 3: Plan for and implement effective teaching and learning

   Domain: Professional Practice
   Standard 4: Create and maintain supportive and safe learning environments

   Domain: Professional Practice
   Standard 5: Assess, provide feedback and report on student learning

   Domain: Professional Engagement
   Standard 6: Engage in professional learning

   Domain: Professional Engagement
   Standard 7: Engage professionally with colleagues, parents/carers and the community.

3. Within each standard, there are multiple “Focus areas” followed by a “Descriptor at career stage” for each Focus area, with different descriptors for HATs and Lead Teachers.

4. For example, the first standard, entitled “Standard 1: Know students and how they learn”, contains six Focus areas: Focus area 1.1 through to Focus area 1.6. For illustration purposes, the first Focus area and corresponding Descriptor at career stage for a HAT is:

Focus area	Descriptor at career stage Highly Accomplished
1.1 Physical, social and intellectual development and characteristics of students	Select from a flexible and effective repertoire of teaching strategies to suit the physical, social and intellectual development and characteristics of students.

1. Across the seven standards, there are in total some 37 Focus areas, each with their own Descriptor.

2. As noted above, under s 67D(2) of the QCT Act the College may decide a certification application may proceed to assessment stage 2 “only if satisfied the applicant’s abilities, experience, knowledge and skills meet the requirements stated in the professional standards for the application to proceed to assessment stage 2” (emphasis added). On one reading, perhaps the more natural reading, the highlighted words contemplate the standards would explicitly state requirements that are “requirements . . . for the application to proceed to assessment stage 2”. However, there is no express reference to requirements for an application to proceed to assessment stage 2 in the APST.

3. In the course of considering this matter, I asked the tribunal registry to pose a number of questions for the parties on issues not fully addressed in their written submissions. One of those questions related to this issue. It is apparent from the College’s response that the  College approaches assessment stage 1 on the footing that the “requirements . . . for the application to proceed to assessment stage 2” are the APST standards themselves; that is to say, the requirements an applicant must satisfy to progress to assessment stage 2 are the requirements set out in the seven standards. Once those requirements are satisfied, the application proceeds to assessment stage 2 which is an assessment of the applicant’s teaching practice involving a site visit and professional discussion.

4. Mr Singh did not submit that this approach was incorrect or that any alternative approach is required. Accordingly, I proceed on the basis that the assessment stage 1 requirements to be satisfied are the requirements set out in the APST.

Guidance material

1. The College filed various official material produced by the Australian Institute for Teaching and School Leadership Limited (“AITSL”)[2] and by the College relating to the assessment of an application for certification, including:

   (a)Certification of Highly Accomplished and Lead Teachers in Australia – a 30-page AITSL document, including a description of the assessment process and a copy of the APST;

   (b)Certification documentary evidence supplement – Highly Accomplished Teachers – a 37-page AITSL document containing examples of evidence to support satisfaction of the requirements set out in the APST specified for HAT;

   (c)Highly Accomplished Teacher and Lead Teacher Certification – a two-page QCT (College) document which sets out the framework for certification of eligible teachers in Queensland;

   (d)Guidelines for teachers applying for certification by the Queensland College of Teachers as Highly Accomplished Teachers and Lead Teachers – a 14-page document summarising the assessment process and setting out principles relating to evidence required to satisfy the APST requirements;

   (e)Guide to the Certification of Highly Accomplished and Lead Teachers in Australia – a 44-page AITSL document setting out the assessment process.

   [2]AITSL is a body “formed to provide national leadership for the Commonwealth, state and territory governments in promoting excellence in the profession of teaching and school leadership with funding provided by the Australian Government”: Guide to the Certification of Highly Accomplished and Lead Teachers in Australia, AITSL, updated March 2017.

2. Upon reading the College’s written submissions, it appeared that the College may be treating statements in this guidance material, and the College’s interpretation of parts of this material, as prescriptive of the manner in which an applicant could demonstrate satisfaction of the requirements of the APST. It was not clear to me that such an approach would be consistent with the statutory framework set out above.

3. I therefore caused the registry to ask the College whether it takes the view that this material is binding on the College, and the Tribunal standing in the shoes of the College on review (and, if so, the statutory provision affording such binding status), or that the material constitutes policies that may be taken into account but are not binding on the Tribunal. The College replied that the listed documents “are policies and guidelines developed to guide and assist the certification process”.

4. I respectfully agree that the guidance documents are, as the College’s response implies, not legally binding on the College or the Tribunal. No doubt they were, as the College emphasised, carefully developed to ensure a rigorous and nationally consistent approach to certification. But they cannot be a substitute for the requirements of the legal framework set out above.

5. For reasons that are underlined by the discussion below regarding the correct approach to the evidential foundation for determining whether a teacher satisfies the APST, it is in my view important to carefully consider the purpose for which the Tribunal may have regard to this guidance material. As with the circumstances confronted by the Administrative Appeals Tribunal in Re Henry and Secretary to the Department of Social Security, the Tribunal must make up its own mind regarding whether Mr Singh satisfies the APST and cannot give effect to the guidance material “as if there were a discretion to be exercised and therefore as if it were relevant to take into account ministerial or departmental policy or practice”.[3]  

   [3][1986] AATA 171, a decision of a three-person panel of the Administrative Appeals Tribunal, the then President, Justice JD Davies, presiding.

6. The statutory framework does not confer a discretion on the decision-maker, whether the College or the Tribunal standing in the shoes of the College on review. That is clear from the wording of s 67D(2) of the QCT Act which provides that the College may decide that the certification application may proceed to assessment stage 2 “only if” satisfied the applicant meets the requirements in the professional standards.

7. The decision-maker must decide whether it is satisfied the applicant’s abilities, experience, knowledge and skills meet the ASPT requirements. If that state of satisfaction is reached, the process proceeds to assessment stage 2. If not, the assessment process ends.

8. Against that framework, the guidance material may provide background facts and inform the context in which the Tribunal’s decision is to be made. It cannot, however, constrain the Tribunal in carrying out its duty to determine whether it is satisfied that Mr Singh meets the APST requirements.

9. For completeness, I note that although the national guidance material was endorsed by Education Ministers through a national council of ministers, the College did not suggest that the APST and the guidance material must be regarded as a type of “code” to be read together as a single coherent scheme. That is not surprising as the ASPT is clearly capable of standing alone and in any case it appears that the ASPT were developed in 2010, in advance of the guidance material which issued on later dates.

Evidence required to satisfy the APST requirements

1. The College’s written submissions and a statement of its delegate, Dr J.A.Neilson, made a number of assertions that suggested certain prescriptive requirements “must” be satisfied. For example, that:

   (a)“direct evidence must address each of the 37 descriptors, [and] demonstrate each standard on at least 2 occasions in the portfolio”;

   (b)“for each standard at least 50 percent of descriptors must be fully evidenced, and the rest partially evidenced”; and, consistent with that assertion:

   (c)using the example of standards 4 and 5, which both have five descriptors, “3 must be FE (‘fully evidenced’) and 2 must be PE (‘partially evidenced’).”

2. While these requirements were expressed in the written submissions and Dr Neilson’s witness statement in prescriptive terms, again I was unable to identify any statutory basis for them. Indeed, I could not locate the requirement for at least 50 percent of the descriptors to be fully evidenced or any concept of partially evidenced descriptors in either the legislation or the guidance material set out above. The only reference to this requirement seemed to be in copies of training slides produced by the College and Dr Neilson’s statement. The requirement for at least two items of so-called “direct evidence” is derived from the guidance material.

3. I therefore caused the registry to seek the College’s advice on whether, as its written submissions seemed to imply, these quite explicit and prescriptive requirements were binding on the Tribunal (and, if so, the legislative source of that status), or whether the College considered them to be policies that were not determinative of the approach required. The inquiry included whether the stated requirements relating to “fully evidenced” and “partially evidenced” descriptors set out in the College’s written submissions and Dr Neilson’s statement were located in a policy document or only in the training slides copies of which had been provided by the College.

4. The College’s response did not reference any legislative basis for such “requirements” but referred the Tribunal to:

   (a)the AITSL Guide to the Certification of Highly Accomplished and Lead Teachers in Australia;

   (b)Dr Neilson’s statement; and

   (c)an extract from AITSL’s Assessor Training Program slides.

5. For the reasons set out above, the Guide provides background context but is not binding on the Tribunal. Likewise for the training program which is referenced in the Guide. Dr Neilson’s statement is plainly not binding on the Tribunal.

6. I respectfully agree with the College that all of the descriptors in the standards must be satisfied for a teacher to achieve HAT status. That is consistent with a plain reading of the legislation. Mr Singh did not suggest otherwise.

7. Although somewhat vague, I also accept that an “on-balance” judgement is required if that expression is intended to convey that a judgement is required as to whether, in weighing up the evidence, the decision-maker is satisfied the standard is met. No doubt there will be cases at the margin were a fine judgement is required. There is no formal burden of proof prescribed. It is necessary and sufficient if the decision-maker, after considering all relevant evidence, is satisfied the standard is met.

8. I am, however, with respect, unable to identify any foundation in the legal framework for basing a decision regarding whether a standard is satisfied upon the number of descriptors that are “fully evidenced” or “partly evidenced”. I do not find these classifications helpful and consider that they may lead a decision-maker into error.

9. The decision-maker must be satisfied the applicant’s abilities, experience, knowledge and skills meet the requirements in the APST. Either the evidence is sufficient to satisfy the decision-maker in that regard or it is not. There is, in my view, no place for basing a decision as to whether the required state of satisfaction is demonstrated by the evidence upon whether a descriptor is “fully evidenced” or “partly evidenced”, even less so on a numerical analysis of the proportion of the descriptors for which the evidence is said to fall into these categories.

10. If the evidence for a descriptor is at a level sufficient to satisfy the decision-maker that it is met, then the decision-maker must decide accordingly. If the decision-maker is not so satisfied, the requirements of the standard are not met regardless of whether a particular descriptor or descriptors could be described as “partially evidenced”.

11. Nor are there any specific rules in the legislation regarding the quantity or quality of evidence required for the decision-maker to be satisfied that a standard is met. In particular, there is no requirement in the legislation or the APST that “direct evidence” must demonstrate each standard “on at least two occasions” as the College asserts and the guidance material specifies.

12. Requiring two items of “direct evidence” could potentially lead to the circumstance that a credible statement from an applicant, strongly corroborated by independent evidence such as direct documentary or supervisor evidence, would necessarily be regarded as insufficient to satisfy a decision-maker that a descriptor is met.

13. It may be that it would generally be prudent for an applicant to provide at least two items of evidence in support of his or her claim to satisfy each descriptor. It may also be the case that a decision-maker, in particular circumstances, may not reach a state of satisfaction that a standard is met in the absence of evidence of at least that level. However, in my view, prescriptive statements of this kind may distract from the statutory question and lead a decision-maker into error.

1. The question is whether the evidence is sufficient for the decision-maker to be satisfied that a standard has been met. That requires an objective assessment of the evidence and its probative value. Focus upon whether there is one or two or more pieces of evidence is, in my view, more likely to distract from than assist the decision-maker’s task. A single but highly probative piece of evidence may satisfy a decision-maker in particular circumstances; in other circumstances, multiple less probative items may not if, for example, there is conflicting evidence.

2. In determining whether two items of direct evidence have been provided, the College has not taken into account evidence of referees other than where the referee verifies other direct evidence. Consistent with the guidance material, the College seems to take the view that referees’ reports cannot be evidence other than for the purpose of verifying evidence in the portfolio submitted by an applicant. 

3. This is apparent from, for example, the report of Mr A. J. Malheiros, a College assessor who assessed further evidence provided by Mr Singh in the course of the proceedings. Mr Malheiros’ report in relation to descriptor 1.3 states:

   the applicant referred to the original portfolio evidence and a referee report from Mark Lawson as demonstrating this descriptor. Mark Lawson’s referee statement stated the applicant ‘provided feedback on programs of instruction and assessment items in order to increase accessibility for students with diverse linguistic backgrounds.’ In the assessment process, referee statements are not considered evidence but are rather used to verify the applicant’s evidence in the portfolio. As the portfolio did not contain any evidence of ‘feedback on programs of instruction and assessment items to increase accessibility for students with diverse linguistic backgrounds’, the statement was disregarded.

4. In the College’s guidance material, a “referee” is a person who has direct knowledge of the applicant’s practice and performance against a specific descriptor or descriptors. I am, respectfully, unable to see how a valid decision could be made in disregard of relevant evidence from a person with direct knowledge of an applicant’s practice and performance against a descriptor. It is contrary to the fundamental requirements of administrative law for a decision-maker to put aside and disregard relevant evidence.

5. In the example referenced immediately above, first-hand observation by a referee of an applicant’s satisfaction of a descriptor would be disregarded on the College’s approach and was in fact explicitly disregarded in Mr Malheiros’ report. On the face of it, the evidence is both directly relevant and probative.

What order should the Tribunal make?

1. In deciding Mr Singh did not satisfy the requirements to progress to assessment stage 2, the College concluded that some of the descriptors were “fully evidenced (FE)”, others “partially evidenced (PE)” and still others “not validly evidenced (NVE)”. On this basis, the College accepted that standards 5 and 7 were satisfied but concluded the other five standards were not. Adopting the College’s classifications for illustrative purposes only, the College’s conclusions may be summarised as follows:

Standard	Descriptors assessed as FE	Descriptors assessed as PE	Descriptors assessed as NVE	Conclusion
1	1.1,1.2, 1.3	1.4, 1.6	1.3	Not satisfied
2	2.1, 2.2, 2.3, 2.5	2.6	2.4	Not satisfied
3	3.1, 3.5	3.2, 3.3, 3.4, 3.6	-	Not satisfied
4	4.2, 4.3, 4.4	4.1	4.5	Not satisfied
5	5.1, 5.3, 5.5	5.2, 5.4	-	Satisfied
6	6.3	6.1, 6.2	6.4	Not satisfied
7	7.2, 7.3, 7.4	7.1	-	Satisfied

1. Those conclusions were arrived at after application of principles which, as already noted, are arbitrary in application and excluded relevant evidence from consideration. It will be apparent from the earlier discussion that, on the view that I take, a fundamentally different approach is required by the legislative framework to that adopted by the College. I have given anxious consideration to what is the appropriate approach for the Tribunal to take in those circumstances having regard to the objects of the Tribunal[4] and the interests of the parties in bringing this matter to a resolution.

   [4]QCAT Act, s 3.

2. One approach would be for the Tribunal to examine the various evidence relating to each of the 37 descriptors, or at least the 17 descriptors the College assessed as PE or NVE (including those assessed as PE in respect of standards 5 and 7 which the College regarded as satisfied) and make its own decision regarding whether it is satisfied each descriptor is met, applying the legal standards set out above. That would be consistent with the approach most commonly adopted by the Tribunal in administrative review matters.

3. However, in this matter the College has, as noted, approached the evidence in a fundamentally different way to what the Tribunal considers to be required. In those circumstances, it would deny the College, and probably Mr Singh as well, procedural fairness if the Tribunal were to decide these matters now without giving the parties an opportunity to make further submissions regarding what conclusions should be reached based on an assessment of the evidence in a way that is consistent with the understanding of the legal framework as described in these reasons.

4. To allow time for such submissions would further delay resolution of this matter. It would also potentially put the parties to considerable time, effort and expense in analysing evidence against an understanding of the legal framework which the College may wish to test by exercising its appeal rights.

5. Another approach would be to exercise the power conferred by s 23 of the QCAT Act to invite the College to reconsider its decision. That course would allow the College to reconsider the evidence for each of the descriptors in a way that is consistent with the legal framework and approach to consideration of the evidence set out in these reasons. However, if the College declined to apply the principles set out in these reasons the matter would be further delayed but no further advanced. It is also not immediately clear that, if it were so minded, the College would be able to seek leave to appeal an “invitation” under s 23.

6. I have considered whether a third approach – to set aside the College’s decision and return the matter for reconsideration in accordance with directions that the reconsideration be carried out in a manner consistent with these reasons – is appropriate. However, without first giving the parties the opportunity to make further submissions and the Tribunal undertaking the time-consuming task of considering the evidence for each of the descriptors, it is not immediately clear whether there would be a valid basis for setting aside the decision.

7. In the circumstances, it seems to me the appropriate course is to direct the parties to file written submissions addressing the appropriate orders to be made to allow this matter to be resolved in accordance with the principles set out in these reasons. Depending on the course ultimately adopted, an opportunity for further submissions may be required.

8. To assist the parties, I have summarised below the principles I consider should be applied in deciding whether a decision-maker is satisfied that each descriptor is met:

   (a)The decision-maker should take into account all relevant evidence.

   (b)Relevant evidence for this purpose includes statements of the applicant; documentary evidence (“artefacts”, in the language of the guidance material) provided by the applicant and referees’ comments. Referees’ comments may directly evidence satisfaction of a descriptor and are not limited to verifying other evidence provided by the applicant.

   (c)In respect of each descriptor, the decision-maker must decide whether the decision-maker is satisfied the applicant’s abilities, experience, knowledge and skills meet the requirements stated in the descriptor. In making that decision, the decision-maker must take into account the probative value of the items of evidence. Consideration must be given to the weight to be given by the decision-maker to each item of evidence.

   (d)While in particular cases the decision-maker may not be satisfied based on a single item of evidence, the decision-maker should not approach this process on the basis that at least two items of evidence additional to the applicant’s statements or referee comments are necessarily required. A judgement must be made having regard to the whole of the evidence for each descriptor.

   (e)Consideration of whether a descriptor is appropriately described as “partially evidenced” is not required as part of this process. Nor is consideration of the number or proportion of “fully evidenced” and “partially evidenced” descriptors.