Teachers Registration Board of South Australia v Edwards - [2013] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v EDWARDS
[2013] SASCFC 80
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Nicholson)
15 August 2013
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - DISABILITY OR IMPAIRMENT - GENERALLY
EDUCATION - TRAINING OF TEACHERS
PROFESSIONS AND TRADES - LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS - OTHER PROFESSIONS, TRADES AND CALLINGS
Appeal by the Teachers Registration Board of South Australia against the order of a Judge of the District Court - the Board granted the applicant and respondent to this appeal, Leigh-Anne Karon Edwards, provisional registration as a teacher subject to conditions - Ms Edwards is profoundly deaf - Ms Edwards appealed to the District Court of South Australia against the imposition of the conditions - the Judge allowed the appeal by Ms Edwards and remitted the matter to the Board for reconsideration.
Whether the Judge erred in his construction of provisions within Part 5 of the Teachers Registration and Standards Act 2004 (SA), in particular, whether the Judge had wrongly determined that the Board should have conducted an inquiry under section 22 - whether the Judge misunderstood the meaning of the phrase “fit and proper” as used in section 21(c) - whether Ms Edwards' hearing disability was a relevant matter for consideration when determining her application for registration - whether the Judge had misconstrued section 24 and had inappropriately limited the power of the Board to impose conditions - whether the Judge misunderstood the import and effect of the conditions imposed.
Held per the Court: Appeal allowed.
Held per Gray J (Nicholson J concurring): the Judge erred in his construction of the interaction between relevant provisions of the Act - the Judge misconceived the nature of the inquiry undertaken by the Board - the Judge failed to address the assistance required by Ms Edwards to carry out her duties to be a teacher having regard to her profound deafness and whether she is only fit and proper with suitable conditions - the Judge misapprehended the meaning of condition 1 - it is necessary for this Court to reconsider Ms Edwards’ appeal.
Held per Anderson J: Ms Edwards' deafness is not related to the question of whether she is a fit and proper person.
Held per Gray J: The Judge erred in his view of the meaning of the phrase “fit and proper” - the meaning of the phrase “fit and proper person” in section 21(c) is informed by the use of the same phrase in section 4 where the object of the legislation is identified.
Held per Anderson J: The Judge was correct in his view that the meaning of the phrase "fit and proper" in section 21(c) is not to be determined by reference to physical disability. The Judge was correct that it is not necessary to decide that question in the context of this matter.
Whether the Board erred in determining that Ms Edwards' hearing disability would leave her unable to practice the profession of teaching adequately or safely - whether Ms Edwards had a legitimate expectation that she would be given full teacher registration as she had met all requirements, namely the qualification and experience prescribed by the legislation - whether the Board failed to properly consider the professional experience reports and medical reports before it.
Held per Gray J (Anderson and Nicholson JJ concurring): There is no substance to these complaints.
Whether the Board gave undue weight to an irrelevant consideration identified as the fitness of Ms Edwards to be a registered teacher and gave little weight to her competence and ability to teach.
Held per Gray J (Nicholson J concurring): The Board did not give undue weight to the need for Ms Edwards to have special assistance, so as to be a fit and proper person and registered as a teacher.
Whether the Board made a discriminatory decision based on Ms Edwards’ hearing disability in that it placed a restriction on Ms Edwards’ registration as a teacher and thereby determined that she was unable to practice the profession of teaching adequately and safely.
Held per Gray J (Anderson and Nicholson JJ concurring): There was no discrimination by the Board.
Whether the Board did not consider that the implications of the restrictions meant that Ms Edwards would be unable to attain work as a teacher.
Held per Gray J (Anderson and Nicholson JJ concurring): Contention rejected - there was no evidence before this Court that discrimination would occur in this situation.
Orders of the Court: Orders made by the District Court Judge set aside - orders made by the Board confirmed, save and except that the second condition be removed - parties to be heard as to costs.
Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; Hughes & Vale Pty Ltd & Anor v The State of New South Wales & Others (No 2) (1955) 93 CLR 127; Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; Wright v The Teachers Registration Board (1983) LSJS 177; Sobey v The Commercial Agents Board (1979) 22 SASR 70; Minniti v Motor Vehicle Industry Board [2011] WASCA 275, considered.

TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v EDWARDS
[2013] SASCFC 80
Full Court: Gray, Anderson and Nicholson JJ
GRAY J.

This appeal from the decision of a Judge of the District Court raises important questions concerning the construction of the Teachers Registration and Standards Act 2004 (SA) and, in particular, the proper role and functions of the Teachers Registration Board of South Australia in its consideration of applications for registration.
On 19 October 2012, the Board granted the applicant and respondent to this appeal, Leigh-Anne Karon Edwards, provisional registration as a teacher subject to conditions. Ms Edwards appealed to the District Court of South Australia against the imposition of the conditions. The Judge allowed the appeal and remitted the matter to the Board for reconsideration. This is an appeal by the Board against the order of the Judge of the District Court.
Ms Edwards appeared in person before the Board. She presented evidence and made submissions to the Board. A solicitor from the Crown Solicitor’s Office took on the role of counsel assisting the Board. Ms Edwards was legally represented on the appeals to the District Court and to this Court.
Introduction
On 19 December 2011, Ms Edwards applied for registration as a teacher. The application was made in the requisite manner and form in accordance with section 22 of the Teachers Registration and Standards Act.
Ms Edwards was advised that the Registrar would recommend to the Board that they grant her application for registration subject to conditions. Ms Edwards responded that she was not prepared to consent to the conditions. As a consequence, her application for registration was referred by the Registrar for a hearing before the Board. On 24 July 2012, the Registrar advised Ms Edwards that the hearing of her application would take place on 3 August 2012 before a panel of the Board. The Registrar provided Ms Edwards with a copy of the documentation that would be provided to the Board at the hearing. At this time, counsel assisting the Board, prepared a briefing note for the Board concerning Ms Edwards’ application. The briefing note identified the primary issue for the Board:
...is the matter of [Ms Edwards’] fitness to be a registered teacher taking into account the overarching legislative obligations of the Board contained in section 4 and 7 of the [Teachers Registration and Standards Act 2004 (SA)].
The Hearing Before the Board
On 3 August 2012, the Board conducted a hearing in respect of Ms Edwards’ application for registration. The documents before the Board included Ms Edwards’ application, the earlier referred to briefing note, a transcript of Ms Edwards’ academic record, a letter from Ms Edwards to the Board dated 15 June 2012, a report from a senior audiologist dated 29 May 2012, a letter of Dr Jarvis, a senior lecturer at the School of Education at Flinders University dated 29 May 2012 and a professional experience report for Ms Edwards for the period 2 May to 10 June 2011. The Board heard oral evidence from Ms Edwards and Gary Kerridge. There was no material challenge to their testimony. In the recitation of facts that follows, I have drawn on the documentary and oral evidence.
On 17 April 2008, Ms Edwards was awarded a Bachelor of Applied Science (Disability Studies) and on 15 December 2011, she completed the requirements for a Master of Teaching (Special Education). These qualifications met the educational requirements for provisional registration as a teacher under the Teachers Registration and Standards Act.
Ms Edwards has been profoundly deaf since the age of seventeen months. She uses Auslan sign language to communicate and also lip-reads and speaks. Ms Edwards in giving evidence and making submissions to the Board used Auslan signing and an interpreter.
The audiological report detailed that Ms Edwards suffered a profound bilateral hearing loss at 17 months of age due to measles. She has worn hearing aids bilaterally since the age of two. In February 2012, she received a left cochlear implant. She has adjusted well to the implant and wears the speech processor full-time. The implant has led to significant improvement in Ms Edwards’ ability to detect softer sounds and to understand conversational speech when she is able to see as well as hear the speaker. It is the expectation of the audiologist that Ms Edwards will continue to rely on visual cues to supplement her improved hearing and to assist her with speech understanding. The Board observed in its determination that the members of the panel would have had difficulty in understanding Ms Edwards’ speech unaided by an interpreter.
Ms Edwards intends to work with children in a classroom setting. She has a particular interest in teaching children with disabilities including children with hearing impairments. Ms Edwards did not consider that her hearing impairment would impact upon her professionalism or her behaviour as a teacher. Ms Edwards considered that it was her responsibility to inform any prospective employer of her disability and indicated that she would always disclose her condition.
Ms Edwards discussed each of her supervised teaching placements and explained how she addressed her hearing impairment in the school room environment. She explained that modifications to assist her were required on occasions and her employers had been happy to make the necessary adjustments. Her employers were able to access an employee assistance fund set up to provide support for workers with a disability.
Ms Edwards discussed yard duties and explained that another teacher was always present and in the view of Ms Edwards. In this way, she could be warned of a problem that may be outside of her sight and hearing. Ms Edwards explained how she was able to cope with a fire drill with the assistance of teaching staff.
As noted above, Ms Edwards explained that she considered that it was her responsibility to make her disability and the implications of that disability with respect to her teaching duties known to any prospective employer. She expressed a concern, however, that if conditions were imposed on her registration, such disclosure might operate to discourage an acceptance of her application for employment.
Mr Kerridge had worked in the disability sector for 25 years and, in particular, in preparing unemployed people with disability for employment. He considered that a person with a serious hearing disability would have to disclose that particular disability to any prospective employer. It was not something that could be hidden. He expressed the view that a condition attached to registration requiring disclosure of Ms Edwards’ disability might discourage prospective employers in proceeding further with consideration of Ms Edwards’ application. Mr Kerridge said that if conditions were to be attached, it was preferable that the conditions should be expressed with particularity and not by the use of a vague term such as “special conditions”.
Counsel assisting the Board submitted that the Board should conclude that the requirements of section 21(a) of the Act concerning qualification and experience had been satisfied for provisional registration. Counsel further submitted that the requirements of section 21(b) of the Act were also satisfied.
Counsel assisting submitted that the primary issue for the Board was whether Ms Edwards’ hearing impairment would affect or inhibit her ability to reasonably carry out all the duties and responsibilities expected of a teacher in a South Australian school, including effectively discharging her duty of care to students in her care. Counsel emphasised that it was important that employers were alerted to Ms Edwards’ disability so that appropriate support could be provided to enable Ms Edwards to carry out her duties and discharge her responsibilities as a teacher safely and to ensure that that the interests of students were protected at all times.
Counsel assisting recommended that the Board should consider placing conditions on Ms Edwards’ registration as follows:
That prior to commencing any employment in any school the Applicant must ensure that the school, or principal, has first provided to the Registrar of the Teacher’s Registration Board of South Australia, advice that the school is aware that the Applicant suffers from profound hearing loss in the left ear and that in May 2012 the Applicant underwent cochlear implant surgery to her right ear and that all necessary assistance and equipment has been, and will be, provided to ensure that the Applicant is able to practice as a teacher adequately and safely and to enable the Applicant to carry out the inherent requirements of the position and to ensure that the Applicant’s duty of care to her students is fulfilled.
That the Applicant must provide details of these conditions to any prospective employer upon the grant of this registration.
At the discretion of the Registrar, these conditions, or reference to them, are to be noted on the Applicant’s certificate of registration.
The Board, in its determination, concluded that it was satisfied that Ms Edwards had the required professional qualifications and experience for provisional registration as a teacher under the Act. The Board was satisfied that Ms Edwards had met the eligibility criteria set out in sections 21(1)(a) and 21(1)(b) of the Teachers Registration and Standards Act.
Pursuant to section 21(1)(c) of the Teachers Registration and Standards Act, one further criterion is required for an applicant to be eligible for registration. The applicant must be a fit and proper person to be registered as a teacher. The Board concluded that there was no question concerning Ms Edwards’ honesty and good character. The Board considered Ms Edwards to be an impressive witness whose passion to pursue her teaching career was communicated well through the use of an interpreter. The Board considered that the issue to be determined was whether Ms Edwards’ hearing impairment would affect or inhibit her ability to carry out the duties and responsibilities expected of a teacher in a school or pre-school, including her ability to effectively discharge her duty of care towards students in her care.
The Board noted the relevant provisions of the Equal Opportunity Act 1984 (SA). The Teachers Registration Board is a qualifying body for the purposes of section 73 of the Equal Opportunity Act in that it is an authority or body empowered to confer an authorisation or qualification. Section 73 provides:
(1)It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of disability—
(a)by refusing or failing to confer or renew that authorisation or qualification; or
(b)in the terms or conditions on which it confers the authorisation or qualification; or
(c)by withdrawing the authorisation or qualification, or varying the terms or conditions on which it is held.
(2)This section does not apply to discrimination against a person on the ground of disability where, in consequence of that disability, the person is not, or would not be, able to practise the profession, or carry on or engage in the trade or occupation, adequately or safely.
Following its consideration of the matter, the Board concluded:
After a full consideration of this matter under the said Act and after considering this Board’s obligations arising under the [Equal Opportunity Act], the Board is of the view that the applicant is a “fit and proper” person to be admitted to the Register of Teachers on a provisional basis but with a condition made under s24 of the said Act to ensure that the Applicant can practise “safely and adequately” as a teacher in the particular school context.
This condition will require a written notification to the Registrar of the Teachers Registration Board by an employer that the employer is aware of the applicant’s disability and an assurance that all necessary assistance will be provided to the applicant to enable her to safely and adequately practise as a teacher. The particular assistance the applicant may need to safely and adequately practise is a matter for her to negotiate with an employer and not a matter for the Board. She has given evidence about the assistance required and dealt with those matters in the past. The Board accepts the undertaking of the applicant to notify any prospective employer of her hearing impairment. She impressed as a witness of some integrity. The condition will ensure that the applicant can safely carry out her responsibilities as a teacher and meet the needs of students in her care. It will, in addition, ensure that any prospective employer properly adverts to responsibilities arising under the relevant disability discrimination legislation.
The Board then made an order granting provisional registration as follows:
The applicant is hereby granted provisional registration as a teacher and admitted to the Register of Teachers (expiring 31/1/15) subject to the following conditions (made pursuant to s24 of the said Act):
1Before commencing any employment in any school the applicant must ensure that the school or Principal has first provided to the Registrar of the Teachers Registration Board a written advice that the school or Principal is aware the applicant is hearing impaired and that all necessary assistance and equipment has been and will be provided to ensure that the applicant is able to practice as a teacher adequately and safely and to enable her to carry out the inherent requirements of the position and to ensure that her duty of care to her students is fulfilled.
2At the discretion of the Registrar this condition, or reference to it, is to be noted on the applicant’s Certificate of Teacher Registration.
It is further noted that this grant of registration is subject to the applicant’s undertaking to notify any prospective employer of her hearing impairment.
Appeal to the District Court
Ms Edwards exercised her right of appeal as provided by section 49(1) of the Teachers Registration and Standards Act, which relevantly provides:
A right of appeal to the Administrative and Disciplinary Division of the District Court lies against a decision of the Teachers Registration Board made in the exercise or purported exercise of a power under Part 5 or Part 7.

The District Court Judge considered that the eligibility for teacher registration involved a consideration of both sections 21 and 22 of the Teachers Registration and Standards Act. The Judge concluded that the Board failed to give effect to section 22 and, in particular, failed to consider the construction of section 21 in conjunction with section 22. In that respect the Judge observed:[1]
It is to be noticed that s 22(2) of the [Teachers Registration and Standards Act] specifically provides for circumstances of teacher impairment or disability pre-registration. It is trite law that statutes must be read and construed as a whole and a court construing statutory provisions, must strive to give meaning to every word: Project Blue Sky Inc v Australian Broadcasting Authority. The application of these fundamental principles of statutory construction means that ss 21 and 22 of the [Teachers Registration and Standards Act] are to be read together. It emerges therefrom it was Parliament’s intention for issues of impairment or disability at the stage of teacher registration, are to be determined in accordance with s 22(2) of the [Teachers Registration and Standards Act]. It must follow from this analysis that ineligibility for registration, or for the purpose of imposing conditions of a grant, arise only once the Board forms the view that the ‘applicant’s capacity to teach is seriously impaired by an illness or disability affecting the applicant’s behaviour or competence as a teacher …’. That conclusion is reinforced by reference to the parallel provision in s 38(1) of the [Teachers Registration and Standards Act], which provides for questions of impairment of teaching capacity arising after registration, in exactly the same terms as s 22(2).
Section 22(2) has a facultative role to play as well. It permits the Board of its own motion, to submit an applicant to compulsory medical examination for the purposes of investigating the ‘capacity to teach’. However it would not necessarily be the case that a finding of serious impairment could be made only if such an examination took place, providing of course adequate evidence was otherwise adduced by the parties sufficient to sustain such a finding. Furthermore, should an issue subsequently arise as to any teacher’s capacity to teach, a Principal or school becomes obliged to report that matter to the Board pursuant to s 39 of the [Teachers Registration and Standards Act], as a consequence of which a Board inquiry might follow into whether that capacity is ‘seriously impaired’ under s 38(1).
[Footnote omitted.]
[1] Edwards v Teachers Registration Board of South Australia [2013] SADC 18, [17]-[18].
The Judge considered that the Board had fallen into error in identifying the wrong issue. In the opinion of the Judge, the Board was required to determine whether Ms Edwards’ capacity to teach was seriously impaired by her disability and how her disability impacted upon her behaviour or competence as a teacher. The Judge concluded that the Board was in error in failing to address section 22 of the Act and failing to conduct an enquiry pursuant to that section. This led the Judge to allow the appeal and remit the proceeding. The Judge ordered:
The matter remitted to the Board for re-consideration with a direction that upon the re-hearing the Board be confined to a determination as to what other conditions are necessary because the endorsement on the licence that the applicant is hearing impaired is unnecessary and futile.
The Legislative Scheme
Before setting out the relevant statutory provisions, it is convenient to broadly describe the scheme of the legislation. The object of the Teachers Registration and Standards Act is set out in section 4 in the following terms:
… to establish and maintain a teacher registration system and professional standards for teachers to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children.
With a view to achieving this object, Parliament, by the provisions contained in Part 3 of the Teachers Registration and Standards Act, established the Teacher’s Registration Board as a body corporate with perpetual succession and provided that it would have the functions and powers assigned or conferred on it by the Teachers Registration and Standards Act or any other Act. One of the primary functions of the Board is to grant applications for persons to be registered as teachers.
The process of registration is addressed by Part 5 of the Act. Parliament provided in section 22 for the manner and form of the making of an application to be prescribed by regulation or approved by the Board. Section 23 is a pivotal section and provides that the Board may, on application, grant registration to an applicant if satisfied that the applicant is eligible for registration as a teacher. The grant may be for provisional registration. Pursuant to section 24 of the Act, the Board may impose conditions if considered appropriate. That section also obliges an applicant to submit to a medical examination if required by the Board, and also to provide to the Board such further information as the Board may require.
The criteria for eligibility are addressed in section 21. An applicant must have appropriate qualifications and experience and must be a fit and proper person to be registered as a teacher. The structure of section 21 makes it plain that the criteria of fit and proper are a different criteria to that of qualifications and experience. In summary, the Board has a discretion to grant registration to an applicant with appropriate qualification and experience and an applicant who is a fit and proper person to be registered as a teacher.
The provisions concerning registration are to be construed in the context of the entire Act. Earlier in these reasons I have set out the terms of section 4, which address the object of the Act. It is significant, to my mind, that section 4 contemplates a teaching profession whose members are competent educators and fit and proper persons to have care of children. It is immediately apparent that Parliament was concerned with the care of children. This object is supported by section 7 which obliges the Board to have the welfare and best interests of children as its primary consideration in the performance of its functions. It is immediately evident that the Board, when engaged in the function of registration, must be satisfied not only that an applicant is a competent educator, but, in addition, an applicant must be in a position to discharge the responsibilities of caring for the students and to do so having regard to their welfare and best interests. Against this background, it is convenient to address particular provisions of the Teachers Registration and Standards Act.
The provisions of the Teachers Registration and Standards Act concerning registration, as earlier noted, are to be read in the context of the Act as a whole. Importantly, section 7 is entitled “Primary consideration in performance of functions” and provides:
The Teachers Registration Board must have the welfare and best interests of children as its primary consideration in the performance of its functions.
This section imposes an overarching legislative obligation on the Board. In determining Ms Edwards’ application for registration, the Board’s primary consideration is the welfare and best interests of children. That obligation is to be construed having regard to the object set out in section 4. In carrying out the function of teacher registration, the Board has the responsibility of safeguarding the public interest by ensuring that the members of the teaching profession are competent educators and fit and proper persons to have care of children.
Part 3 of the Act addresses the Board, including, inter alia, its establishment, its membership, functions and powers, the mandated primary consideration to be given by the Board in the performance of its functions, and the role that the Minister can play in giving directions to the Board. Subject to the provisions of the Act, the Board is able to determine its own procedures.
Section 20, within Part 4 of the Act, provides that a person must not undertake employment as a teacher unless registered. Penalties are provided for a breach.
As earlier noted, Part 5 of the Act addresses registration and commences with the criteria for eligibility in section 21. That section provides:
(1)Subject to this Act, a person is eligible for registration as a teacher if the person—
(a)has qualifications and experience—
(i)prescribed by regulation; or
(ii)determined by the Teachers Registration Board to be appropriate for registration; and
(b)has met any other requirements for registration—
(i)prescribed by regulation or contained in professional standards for teachers; or
(ii)determined by the Teachers Registration Board to be necessary for registration; and
(c)is a fit and proper person to be a registered teacher.
(2)Subject to this Act, a person is eligible for provisional registration as a teacher if the person does not have the necessary experience but is otherwise eligible for registration under subsection (1).
The process to be followed by an applicant for registration is addressed by section 22, which provides:
(1)An application for registration as a teacher must—
(a)be made to the Teachers Registration Board in the manner and form prescribed by regulation or approved by the Board; and
(b)be accompanied by the fee prescribed by regulation.
(2)An applicant for registration must—
(a)consent to the conduct by the Teachers Registration Board of a criminal record check relating to the applicant; and
(b)if the Board so requires for the purpose of determining whether the applicant's capacity to teach is seriously impaired by an illness or disability affecting the applicant's behaviour or competence as a teacher—
(i)submit to a medical examination by a medical practitioner selected by the applicant from a panel of medical practitioners nominated by the Board; and
(ii)provide, or authorise the medical practitioner to provide, a report on the results of the medical examination to the Board; and
(c)provide the Board with any information required by the Board for the purposes of determining the application, verified, if the Board so requires, by statutory declaration.
(3)An applicant for registration must pay, in addition to the prescribed fee, an amount specified by the Teachers Registration Board, being an amount payable by the Board for the conduct by the Board of a criminal record check relating to the applicant.
(4)An application for renewal of registration must be made not less than 1 month before the expiry of the registration.
As earlier discussed, section 23 is a pivotal section with regard to registration. That section provides that the Board may, on application, grant registration if satisfied of an applicant’s eligibility:
(1)The Teachers Registration Board may, on application under this Part, grant registration to the applicant if satisfied that the applicant is eligible for registration as a teacher.
(2)The Teachers Registration Board may, on application under this Part, grant provisional registration to the applicant if satisfied that the applicant is eligible for provisional registration as a teacher.
(3)The Teachers Registration Board may, on application under this Part, grant provisional registration to the applicant if—
(a)the applicant has the necessary qualifications and experience but has not met requirements under section 21(1)(b); and
(b)the Board is satisfied that the applicant should be granted provisional registration.
(4)The Teachers Registration Board is not required, if it has assessed a person's qualifications or experience to be appropriate for registration, to assess the person's qualifications or experience again on a subsequent application by the person.
Section 24 provides that the Board may impose conditions of registration:
(1)The Teachers Registration Board may impose conditions of registration which may include (but are not limited to) the following:
(a)conditions requiring the person to complete a course or acquire experience as a teacher;
(b)conditions requiring the supervision of the person;
(c)conditions restricting the subjects that the person may teach;
(d)conditions restricting the education that the person may provide;
(e)conditions limiting the period for which the registration remains in force;
(f)conditions requiring the provision of further evidence as to competence.
(2)Without limiting the effect of subsection (1), the Teachers Registration Board must—
(a)make it a condition of every registration that—
(i)if the person is charged with or convicted of an offence of a kind specified in the condition (which may include offences under the law of South Australia or elsewhere), the person must, within 14 days, give written notice of the charge or conviction to the Board containing the details specified in the condition; and
(ii)if the person is dismissed from employment as a practising teacher in response to allegations of unprofessional conduct, or resigns from employment as a practising teacher following allegations of unprofessional conduct, the person must, within 14 days, give written notice of the person's dismissal or resignation to the Board containing the details specified in the condition; and
(iii)if the person is dismissed from any employment in response to allegations of improper conduct relating to a child, or resigns from employment following allegations of improper conduct relating to a child, the person must, within 14 days, give written notice of the person's dismissal or resignation to the Board containing the details specified in the condition; and
(b)make it a condition of every provisional registration that the person acquire the experience or meet the requirements (as the case may be) necessary for the person to be eligible for registration under section 21(1).
(3)The Teachers Registration Board may, on application or by written notice, vary or revoke a condition, or impose a condition, of a person's registration as a teacher.
It is to be noted that Parliament did not seek to limit the nature or terms of conditions that can be imposed to those specified in section 24(1).
Section 29 requires the Board, upon a person’s registration, to issue a certificate of registration which includes, inter alia, any conditions of the registration and any other information that the Board thinks fit. Section 29(1) provides:
The Registrar must, on the registration of a person as a teacher, issue to the person a certificate of registration in a form approved by the Teachers Registration Board that includes the following information:
(a)     the person's full name and registration number; and
(b)     the conditions (if any) of the registration; and
(c)     the expiry date of the registration; and
(d)     any other information the Board thinks fit.
…
Part 8 of the Act is concerned, inter alia, with proceedings of the Board, including on an application under Part 5. Part 8 contains sections 42 to 48, which relevantly address the obligation on the Board to observe the rules of natural justice in proceedings, the receipt of evidence and the adoption of findings in other proceedings, the issue of summonses as to witnesses, the powers of the Board to determine procedures and to inform itself as it sees fit without being bound by the rules of evidence, the representation of a party to a proceeding and the assistance to be offered to the Board by legal counsel.
The Full Court Appeal
On the appeal, the Board advanced several complaints. It was submitted that the Judge erred in his construction of provisions within Part 5 of the Teachers Registration and Standards Act. In particular, it was said that the Judge had wrongly determined that the Board should have conducted an inquiry under section 22. Counsel went so far as to suggest that the Judge had fundamentally misunderstood the scheme of the legislation.
It was further complained that the Judge misunderstood the meaning of the phrase fit and proper as used in section 21(c). It was said that Ms Edwards’ hearing disability was a relevant matter for consideration when determining her application for registration. When giving primary consideration to the welfare and best interests of children, Ms Edwards’ hearing disability should be addressed. Ms Edwards’ hearing disability was relevant in determining whether she was a fit and proper person to have the care of children.
It was complained that the Judge had misconstrued section 24 and had inappropriately limited the power of the Board to impose conditions. The Judge misunderstood that the effect of the Board’s findings and of the evidence was that Ms Edwards requires special assistance to ensure that she can teach competently and safely, and that this requirement was appropriately addressed through the attaching of conditions to her registration.
Finally, it was complained that the Judge misunderstood the import and effect of the conditions imposed. In particular, it was said that the judge laboured under the misconception that Ms Edwards was obliged to ensure that the special assistance equipment she needed would in fact be provided. It was said that the condition operated in a fundamentally different way. The condition required that Ms Edwards would not commence employment until the employer had advised the Board in writing that it was aware of Ms Edwards’ disability, and that the necessary assistance and equipment had been and would be provided. The object of the condition was to promote the welfare and safety of students.
Counsel for Ms Edwards submitted that, irrespective of whether or not his client was a fit and proper person within the meaning of section 21(1)(c) of the Teachers Registration and Standards Act, no evidence was presented to the Board to question her ability and competence as a teacher and, as a result, the District Court Judge’s decision was correct.
Misapprehension – An Inquiry under Section 22
In assessing the findings of the Board, the Judge made the following observations:[2]
It is clear that the primary focus of the Board’s enquiry was upon the ‘special assistance’ Mrs Edwards required in the performance of her teaching functions. There was however no determination of whether her ‘capacity to teach was seriously impaired by an illness or disability’ or how such a disability impacted upon her ‘behaviour or competence as a teacher’ as required by s 22(2)(b) of the [Teachers Registration and Standards Act]. Indeed it is clear from the transcript that the Board never turned its mind to s 22. Nor did counsel assisting. Mrs Edwards herself was unrepresented. There was no evidence before the Board specifically addressing those questions. Ordinarily one might expect expert evidence of an occupational health and safety nature to be adduced in that respect.
The Board appears to have reasoned that simply because the need for assistance was apparent, her capacity to teach was necessarily seriously impaired. Although it was correct for the Board to bear steadily in mind, as it did, the purposes of the [Teachers Registration and Standards Act] and the welfare of child students pursuant to s 7, it remained in order to properly exercise its jurisdiction, to embark upon and determine the s 22(2) inquiry. This was ‘an essential’ preliminary step to take, before the consequent question of registration and conditions of registration arose: Bond and Others v Australian Broadcasting Tribunal.
[Footnote omitted. Emphasis added.]
[2] Edwards v Teachers Registration Board of South Australia [2013] SADC 18, [25]-[26].

Section 22 of the Teachers Registration and Standards Act, as earlier extracted, does not provide for any inquiry. Section 22 is concerned with matters of procedure including the provision of relevant information. Section 22(1) provides for the manner and form of making an application for registration. Section 22(2) obliges an applicant to provide material for the Board’s consideration. Section 22(2)(a) obliges an applicant to consent to a criminal record check. Sections 22(2)(b) and 22(2)(c) relate to the provision of information to the Board as may be required by the Board. There is no obligation on the Board to require the information specified in section 22(2)(b) or to require any further information in accordance with section 22(2)(c). Section 22(3) requires the applicant to meet fees that may be incurred by the Board in obtaining a criminal record check relating to the applicant.
A primary function of the Board is to consider applications for registration. As earlier noted, Part 5 of the Act is concerned with this function. Section 23 provides the Board with a discretion to grant registration to an applicant when satisfied that the applicant is eligible for registration. Once satisfied of an applicant’s eligibility, the Board’s discretion to grant registration is enlivened.
The Judge under appeal erred in his construction of the interaction between these provisions. The process to be followed by the applicant in making an application is addressed by section 22. The criteria of eligibility are contained in section 21. The Judge erred in his view of the interaction between sections 21 and 22. The Judge failed to recognise that the relevant inquiry to be conducted by the Board is pursuant to section 23. Section 22 addressed the process of making an application and the provision of information to the Board. Section 21 addressed the criteria to be established by an applicant.
Fit and Proper Person
The meaning of the phrase fit and proper person in section 21(c) is informed by the use of the same phrase in section 4 where the object of the legislation is identified. An applicant must be a fit and proper person to have the care of children. Care of a child includes more than the child being taught by a competent educator. Care includes an attendance to the welfare and best interests of the child. Care is to be provided to the children throughout the school day, whether in or out of the classroom. It is to be understood that teachers have children in their care during school hours; at times of teaching and at times of general supervision. The physical, psychological and emotional safety of children is an important issue to be addressed.
As noted earlier, when considering an application for registration the Board is charged by section 7 to give primary consideration to the welfare and best interests of children. The phrase “welfare and best interests” is broad. To my mind, it encompasses the educational interests of children, their physical safety and their emotional and psychological wellbeing. It follows that to be a fit and proper person, an applicant must be able to provide for the welfare and best interests of children under the applicant’s care. It necessarily follows that an application by a person with a relevant disability must be assessed having the primary consideration of the welfare and bests interests of the children firmly in mind.
The approach to the interpretation of the phrase fit and proper was discussed by the High Court in Hughes & Vale Pty Ltd v The State of NSW (No. 2) where Dixon CJ, McTiernan and Webb JJ observed:[3]
… The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"—Coke. …
In Albarran v Companies Auditors and Liquidators Disciplinary Board, these observations were reinforced as follows:[4]
In Hughes and Vale Pty Ltd v New South Wales [No 2], Dixon CJ, McTiernan and Webb JJ, after saying that the expression "fit and proper person" was familiar as comprising "traditional words" when used with reference to offices and vocations, added that the very purpose of the expression was to give the widest scope for judgment and indeed for rejection; thus, "fit" involved honesty, knowledge and ability. That passage was relied upon by Hill J in Davies v Australian Securities Commission when construing an earlier provision drawn in the same terms as s 1292(2) of the Corporations Act.
[Footnotes omitted.]
[3] Hughes & Vale Pty Ltd & Anor v The State of New South Wales & Others (No 2) (1955) 93 CLR 127, 156.
[4] Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350, [23]; see also Minniti v Motor Vehicle Industry Board [2011] WASCA 275, [27]-[31].
To my mind, ability, where the context so requires, may include physical ability. The Board in discharging its obligations is directed to give primary consideration to the welfare and best interests of children. In granting registration the Board should, in the discharge of its duty, be satisfied that an applicant has the physical ability to address the welfare and best interests of children.
Ms Edwards was an applicant with the required educational qualifications to be registered as a professional teacher. Ms Edwards presented as a person of good character and propriety. In the above respects, she is an excellent candidate for registration. However, she has a relevant disability to be considered, namely, profound deafness. The extent of her hearing impairment had been disclosed in the material presented to support her application. The Board, it would appear, saw no need to require any further medical evidence and made no request under section 22(2)(b). The Board did not require any other information from Ms Edwards. Ms Edwards accepted that she would require assistance to enable her to carry out the duties of a teacher so as to meet the welfare and best interests of students under her care. She needs assistance in the classroom and out of the classroom.
The Judge addressed the Board’s consideration of whether Ms Edwards was a “fit and proper person to be a registered teacher” within the meaning of section 21(1)(c) of the Teachers Registration and Standards Act. The Judge reviewed a number of authorities which considered the meaning of the criteria fit and proper.[5] The Judge concluded that none of the authorities touched upon physical incapacity as bearing upon or coming within the rubric of fit and proper person. The Judge considered it probable that fit and proper related to character, honesty, probity or capacity to perform the requisite role for reasons other than physical disability.[6] Although the Judge decided that it was not necessary to finally resolve the ambit of the phrase fit and proper person, he considered that it was doubtful whether the case law supported the proposition that physical impairment or disability falls within the ambit of the phrase fit and proper person.
[5] Edwards v Teachers Registration Board of South Australia [2013] SADC 18, [7]-[12].
[6] Edwards v Teachers Registration Board of South Australia [2013] SADC 18, [12].
In my view, the Judge misconceived the nature of the inquiry undertaken by the Board. The Judge failed to consider the far reaching implications of sections 4 and 7. The Judge erred in his view of the meaning of the phrase fit and proper. The Judge failed to address the assistance required by Ms Edwards to carry out her duties to be a teacher having regard to her profound deafness and whether she is only fit and proper with suitable conditions.
Power to Impose Conditions
The Judge rejected the contention that the power to impose conditions on account of physical incapacity arose from the object of the Act identified in section 4 and the requirement of section 7 to have “the best interests of children as [the Board’s] primary consideration”.
In finding that the Board erred in asking itself the wrong question, the Judge observed the following with regard to the validity of the conditions imposed by the Board:[7]
The fact of the matter is in any case that the hearing impairment would of necessity come to the notice of potential employers in the application and interview process. There was evidence before the Board to that very effect. Hence the condition requiring Mrs Edwards to notify a school or Principal of her hearing impairment is unnecessary and serves no utility. Such a condition also has the capacity to unnecessarily stigmatise disabled persons. Moreover the following condition that she ensure ‘all necessary assistance and equipment has been and will be provided’ is beyond her capacity or ability to control. It is the employers’ responsibility to deal with those aspects of her employment, once having resolved to employ her.
[Footnote omitted.]
[7] Edwards v Teachers Registration Board of South Australia [2013] SADC 18, [30].
It would appear that the Judge misapprehended the meaning of the condition in two respects. Contrary to the Judge’s view, the condition does not require Ms Edwards to notify a school or principal of her hearing impairment. The Board expressly accepted Ms Edwards’ undertaking that she would inform an employer of her disability. As a consequence, the Board did not require this as a condition. The condition required Ms Edwards to ensure that the school principal provide advice to the Registrar of the Board. The condition did not, as the Judge suggests, require Ms Edwards to ensure that all assistance and equipment would be provided. It is clear from the above extract that the Judge proceeded under a serious misapprehension.
In my view, the Board was correct in its contentions that the Judge erred in fundamental respects. As a consequence, it is necessary for this Court to reconsider Ms Edwards’ appeal.
A Reconsideration
Ms Edwards advanced six grounds of appeal. It was complained that the Board erred in determining that her hearing disability would leave her unable to practice the profession of teaching adequately or safely. I do not consider there to be any substance to this complaint. As earlier noted, Ms Edwards accepted that she needed special assistance, both in the classroom and out of the classroom. There was no question about her competence as an educator. There was no question as to her propriety. The remaining question was whether the Board was satisfied that she was a fit and proper person to care for students, having particular regard to their welfare and best interests. With the provision of the special assistance required by Ms Edwards, she would be in a position to meet these responsibilities. The Board is under an obligation to be satisfied that Ms Edwards is a fit and proper person. It was entirely appropriate for the Board to impose the first condition and thereby meet its statutory obligations.
The second complaint was that Ms Edwards had a legitimate expectation that she would be given full teacher registration as she had met all requirements, namely the qualification and experience prescribed by the legislation. This complaint overlooks entirely the criteria set out in section 21(1)(c) and the obligation under section 23 that the Board be satisfied that Ms Edwards was a fit and proper person to care for the children, and to address their welfare and best interests. There is no substance to this complaint.
The third complaint was that the Board gave undue weight to an irrelevant consideration identified as the fitness of Ms Edwards to be a registered teacher and gave little weight to her competence and ability to teach. It is difficult to understand this complaint when regard is had to the reasons of the Board for its determination. The Board was at pains to acknowledge Ms Edwards’ qualifications and experience and noted that she had the attributes of honesty and good character. However, section 7, as noted above, charged the Board with giving primary consideration to the welfare and best interests of children. In my view, the Board did not give undue weight to the need for Ms Edwards to have special assistance, in order to be a fit and proper person to be registered as a teacher.
The fourth complaint asserted that the Board failed to properly consider the professional experience reports and medical reports before it. A review of the reasons of the Board discloses close attention not only to these reports, but to all the evidence before the Board. This complaint is without merit.
The fifth complaint was that the Board made a discriminatory decision based on Ms Edwards’ hearing disability in that it placed a restriction on Ms Edwards’ registration as a teacher and thereby determined that she was unable to practice the profession of teaching adequately and safely. On the hearing of the appeal, counsel for Ms Edwards went so far as to assert that the Board acted in breach of the Equal Opportunity Act. Ms Edwards’ position before the Board was that she had a responsibility to advise employers of her disability. It is difficult to understand how it could be asserted that the Board did not have a like responsibility. The Board considered that it did have such a responsibility. The Board was prepared to accept Ms Edwards’ undertaking of proper disclosure and, as a consequence, did not impose a condition requiring notification. The Board was obliged by the terms of the Act to be satisfied that Ms Edwards was eligible for registration as a teacher before determining to grant registration. This required that Ms Edwards be a fit and proper person to be registered as a teacher. For reasons discussed above, in the interests of students, and in her own interests, special assistance is necessary. As her counsel acknowledged on appeal, she could not discharge her duties and responsibilities to her students without that assistance. There was no discrimination by the Board.
The sixth complaint was that the Board did not consider that the implications of the restrictions meant that Ms Edwards would be unable to attain work as a teacher. No evidence was led to support this assertion. To the contrary, Ms Edwards made a claim that her placement employers had been more than happy to meet her special assistance needs and that funding was available for that to occur.
As extracted above, the first condition imposed by the Board was in the following terms:
Before commencing any employment in any school the applicant must ensure that the school or Principal has first provided to the Registrar of the Teachers Registration Board a written advice that the school or Principal is aware the applicant is hearing impaired and that all necessary assistance and equipment has been and will be provided to ensure that the applicant is able to practice as a teacher adequately and safely and to enable her to carry out the inherent requirements of the position and to ensure that her duty of care to her students is fulfilled.
This condition, in effect, requires that the school or principal assume an obligation to provide written advice to the Registrar or Board that the school or principal is aware that Ms Edwards is hearing impaired and that all necessary assistance and equipment have been and will be provided. Further, it imposes an obligation on Ms Edwards to ensure that the school has so advised the Board prior to commencing employment.
This term imposed a requirement for the employer to provide all necessary assistance and equipment, and can be seen to be to the advantage of Ms Edwards. Having gained employment, she is guaranteed the appropriate support and resources to ensure that she is able to properly and fully carry out her duties as a teacher.
Counsel for Ms Edwards submitted that having such a condition imposed because of her disability was discriminatory and precluded Ms Edwards from exercising rights afforded to persons without disability. It was further contended that the condition placed Ms Edwards at risk of further discrimination. It was suggested that she may be rejected at the first instance by a prospective employer who considers an applicant with a condition on their registration less attractive than an applicant without a condition.
This contention should be rejected. There was no evidence before this Court that discrimination would occur in this situation. Further, it should be assumed that an employer in this situation will act lawfully. In the unlikely and unfortunate event that an employer were to discriminate in this situation, that discrimination is to be addressed under the relevant discrimination legislation.
Under the Equal Opportunity Act, there is a responsibility on employers to provide special assistance and to provide equipment where that is necessary to enable a person with a disability to teach effectively and safely. The Board is a regulatory authority with a responsibility to act in the public interest. In doing so, the Board cannot assume that every employer will be aware of and will meet its obligations under the Equal Opportunity Act.
The condition as imposed by the Board was a fulfilment of the Board’s obligations under the Teachers Registration and Standards Act. The condition protects the welfare and interests of the children for whom Ms Edwards has responsibilities.
Counsel for the Board did not seek to support the appropriateness of the second condition. It is to be recalled that this condition provided:
At the discretion of the Registrar this condition, or reference to it, is to be noted on the applicant’s Certificate of Teacher Registration.
This condition confers on the Registrar a discretion to note the condition, or a reference to it, on the applicant’s Certificate of Teacher Registration.
Counsel appearing for the Board accepted that in the event that the appeal were allowed, condition 2 should be removed. Attention was drawn to section 29 of the Act which, as earlier noted, obliges the Registrar on the registration of a person as a teacher to issue a certificate of registration in a form approved by the Board, including the conditions, if any, of the registration. The second condition, as set out above, purported to give the Registrar a discretion and, in particular, to allow the Registrar to simply make reference to a condition, rather than setting out the condition. Counsel for the Board submitted that it was doubtful whether a condition in the form of the second condition was within the Board’s power. I consider that the second condition is beyond power. Section 29 is explicit; the conditions of registration are to be included in the certificate of registration. In any event, it was not suggested by counsel for the Board that the second condition added anything of substance as the Board’s concerns and findings were fully addressed by the first condition. I consider the concessions of counsel to be entirely appropriate.
Conclusion
I would allow the appeal. I would set aside the orders made by the District Court Judge. I would confirm the orders made by the Board, save and except that I would direct that the second condition be removed. I would hear the parties as to costs.
ANDERSON J. I have read the reasons in draft prepared by Gray J. I agree that the appeal should be allowed. I agree with the orders proposed by Gray J. However I do not agree with the views expressed by him relating to the concept of a “fit and proper person” within the meaning of the Teachers Registration and Standards Act 2004 (SA) (“the Act”).

The facts are set out in the reasons of Gray J.
The notice of appeal filed by the appellant (the Board) included as ground 2:
The learned appeal judge erred in failing to accept that the concept of a “fit and proper person” in s 21(1)(c) of the Act was broad enough to embrace issues of physical and mental capacity and competence.
Although included as a ground of appeal it is apparent from both the written summary of argument provided by the Board and from the argument presented by Mr Stevens, counsel for the Board, that the issue in the appeal of what was meant by a fit and proper person was not, as Mr Stevens said, “of critical importance to the outcome of the appeal”. The reason for this is that the Board reached the conclusion that the respondent was a fit and proper person.
The Board referred to Hughes and Vale Pty Ltd & Anor v The State of New South Wales & Anor (No 2) (1955) 93 CLR 127. The passage relied on by the Board is set out in the reasons of Gray J at [50].
In dealing with the third factor of “ability” referred to in Hughes and Vale the Board referred to a decision of Judge Wilson in the District Court in Wright v The Teachers Registration Board (1983) LSJS 177 at 180 where His Honour said:
Persons registered by the (then) Education Act are intended to be persons who, by reason of their honesty, knowledge and ability and by reason of their good character, can safely be entrusted with the responsibilities and duties pertaining to the work of a teacher.
The Board also referred to Sobey v The Commercial Agents Board (1979) 22 SASR 70 at 76, where Walters J said in discussing the concept of “a fit and proper person” in the context of the licensing of commercial and private agents:
… in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
The judge hearing the appeal from the Board, after a review of several decisions, said at [12]:
[12]It can be seen from an examination of these cases that none of them touch upon physical incapacity as bearing upon or coming within the rubric of ‘fit and proper person’. Rather they relate to the character, honesty, probity or capacity to perform the requisite role, for reasons other than physical disability. As Toohey and Gaudron JJ explained in Australian Broadcasting Tribunal v Bond,[8] fitness and propriety in the sense of conduct, character or reputation is usually at stake:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[8] (1990) 170 CLR 321 at 380
The judge who heard the appeal from the Board’s decision found that it was not necessary to come to any final conclusion as to exactly what the phrase meant in the context of this matter. The judge set out in his reasons extracts from several decisions touching upon the interpretation of the words “fit and proper person”. The judge said at [15]:
[15]It was submitted by counsel for Mrs Edwards that the case law does not support the proposition that physical impairment or disability fall within the ambit “fit and proper person” criteria. On that he might well be on safe ground in light of the above authorities, for it is doubtful they established that proposition. However for reasons to emerge, it is not necessary to finally resolve that question.
Gray J in his reasons says that the judge’s consideration was misconceived because of the nature of the inquiry. He refers to ss 4 and 7 of the Act. He then says that the judge erred because of his misconception. I do not agree.
There is nothing in either s 4 or s 7 which affects the meaning to be attributed to the phrase “fit and proper person”. Section 4 specifies as the object of the Act that in the public interest the profession should be comprised of members who are both competent educators and fit and proper persons to care for children.
Section 21(c) provides that the Board, in considering eligibility for registration, considers if an applicant is a fit and proper person. If they are not then they are not eligible for registration.
Section 7 makes it clear that the Board must have the welfare and best interests of children as its primary consideration.
There is no assistance in the words of the legislation as to what is meant by the phrase “fit and proper person”. I deal with the intention of Parliament in enacting the legislation later in these reasons. In my view that does assist.
On the hearing of the appeal Mr Stevens made the point that the Board had actually found that the respondent was a fit and proper person to be registered but only if subject to conditions. As he said, “This was not a case where fitness and propriety was a ground for rejection”. He went on to say, “But s 24 of the Act, in our submission, very clearly provides that conditions can be imposed upon a person who has been found eligible, and therefore has been found fit and proper”.
It was Mr Stevens’ submission that s 24 was dealing with discretionary considerations. He described it as a–
… broader power given to the Board to fulfil its public interest function of protecting the welfare and best interests of children. So, we would submit that even if a person is registered and is a fit and proper person, the Board could come along later and impose a condition – which because of the particular circumstances that have arisen, is necessary to be imposed for the best interests of children. And that may not be anything that reflects upon the fitness and propriety of the persons concerned.
It was in those circumstances therefore that the relevance of the term “fit and proper person” arose in this appeal. In my view it is not necessary, having regard to the issues in this matter, to make any general statements regarding the use of the words “fit and proper person” in the context of the Act. An appropriate case may arise when the Board rejects an applicant for registration because of a physical disability and in which the Board states that the applicant was not a fit and proper person by virtue of a physical disability, but that is not this case. That would involve a challenge to that decision by an applicant rejected for registration because of their physical disability.
Having considered the authorities raised on the topic, and including those discussed by the judge appealed from, it is my view that the concept of a fit and proper person in this legislation cannot be said to include aspects of the physical impairment of a person who is otherwise eligible for registration as a teacher.
The Second Reading Speech includes a statement by the Minister including:
The object of this Bill is to establish a system of teacher registration that will safeguard the public interest by ensuring a teaching profession is of a high quality and its members are both competent educators, and fit and proper persons to have the care of children. … The Bill is part of the Government’s “Keeping Them Safe” child protection reforms. It supports the protection of children and recognises the professionalism of South Australian teachers who work with children and young people both in our Government and non-Government schools and pre-schools. …. Respondents to the consultation strongly supported the intent of the Bill to strengthen the protection of children in our schools and enhance child safety and welfare measures.
The Second Reading Speech went on to deal with aspects of criminal history checks as many teachers, at the time the Bill was being debated, had not been subjected to such scrutiny. It was said by the Minister that a key feature of the Bill was:
The provision of rigorous measures and capacity for the Teachers Registration Board to ensure quality and “fitness to teach” standards that are in line with nationally agreed measures. … The Board will have the authority to require criminal history checks and current training in mandatory reporting of suspected child abuse, prior to registration and renewal … This Bill will advance and enhance professional recognition of our teachers, while delivering many new safeguards for the safety and well being of children. While I am confident that the overwhelming majority of our teachers are clearly of the utmost integrity, we need to ensure that the protection of our children from physical, sexual or psychological abuse is paramount.
In my view the speech by the Minister indicates clearly that moral integrity, character, honestly and lack of any criminal past is at the forefront of Parliament’s intentions.
The Board in its reasons in considering whether the applicant was a fit and proper person also considered the provisions of the Equal Opportunity Act 1984 (SA).
The Board said:
There are competing matters to be considered arising under the separate provisions of the said Act and the Equal Opportunity Act 1984 (EO Act). Under the former legislation, the Board is mindful that it must have as its primary consideration the welfare and best interests of children in the performance of all the functions of the Board (s 7 of the said Act). The Board must also ensure the public interest in there being a Register of Teachers who are competent educators and teachers who are able to ensure the safety of their students (s 4 of the said Act).
In addition under the EO Act, the Board must take into consideration the Applicant’s condition of deafness as “a physical impairment” defined under s 5(a) of the EO Act. It is unlawful for the Board, as a Qualifying Authority “empowered to confer an authorisation … that is needed for … the practice of a profession … to discriminate against a person (such as the Applicant) on the ground of impairment”´(s 73 EO Act) however, the above “does not apply to discrimination against a person on the ground of impairment where … that person … would not be able to practise the profession … adequately or safely.” The question is therefore whether the Applicant can, with her hearing impairment, practise the profession of teaching adequately and safely both in her own interests and that of her teaching colleagues and students? If so, then the EO Act imperative would suggest that the Board should ensure that she is enabled to engage in such practice, however, the Board is also entitled, if circumstances demand, to put in place conditions directed towards adequacy or safety of practice.
The Board then concluded:
The Board must ensure that the obligations arising under s 7 of the said Act (the welfare and best interests of any students in the applicant’s care) and under s 4 of the said Act (the public interest in there being a register of teachers who are competent educators and able to attend to the duty of care owed by teachers towards students) are met. The imposition of such a condition still enables the Board to comply with the provisions of the EO Act as discussed.
After a full consideration of this matter under the said Act and after considering this Board’s obligations arising under the EO Act, the Board is of the view that the applicant is a “fit and proper” person to be admitted to the Register of Teachers on a provisional basis but with a condition made under s 24 of the said Act to ensure that the Applicant can practise “safely and adequately” as a teacher in the particular school context.
Given the clear provisions of the Equal Opportunity Act it is my view that Parliament could not have intended this Act to place limitations on physically disabled teachers from taking their place in the workplace by refusing registration as a teacher because their physical disablement meant that they were not a fit and proper person. It is for that reason that I express these views.
The Board has held in this matter that the respondent is a fit and proper person, but that to provide properly for the welfare and best interests of the children, and because of her physical impairment, it is necessary to impose a condition. As I have indicated I agree with the Board’s decision in relation to the imposition of such a condition and Mr Stevens’ submissions on the proper use of s 24 of the Act.
In my view the judge appealed from was correct in stating that the concept of fitness and propriety related to character, honesty, probity or capacity to perform the requisite role for reasons other than physical disability. Like that judge it is my view that it is not necessary to decide that question in the context of this matter. It is not really an issue in this matter. It was not argued by counsel for the Board that it was other than a peripheral issue to the resolution of this appeal.
I am aware of a decision in the Court of Appeal in Western Australia - Minniti v Motor Vehicle Industry Board [2011] WASCA 275, where the court considered the meaning of “a person of good character and repute and a fit and proper person to hold a licence”. The licence in that matter related to the sale of motor vehicles.
The court extensively reviewed many decisions where the phrase “fit and proper person” was in issue. Neither the decision under review in that matter nor the decisions canvassed in the judgment of the Court of Appeal dealt with any concept of physical fitness. There is an underlying theme of “moral integrity and rectitude of character,” to use the words of Walters J in Sobey, in the context of deciding whether a person can be trusted to take on the type of work entailed in the respective trades or professions under review in those decisions.
The cases show in my view that although the expression “fit and proper person” takes is meaning from the content of the legislation, there are nevertheless certain consistent notions which emerge in the relevant decisions.
These are that a consideration of whether a person is fit and proper looks to the suitability and eligibility to hold a position. The suitability in turn is viewed against a consideration of the person’s previous conduct and their general reputation. That is clear from ABC v Bond, as referred to by the judge under appeal.
There is, in my view, no support from any previous decision to interpret the words “fit and proper person” as suggested by Gray J.
Both ss 4 and 7 of the Act can be understood in light of what I have said was the intention of parliament in framing this new legislation.
Any questions of physical disability can be dealt with as the Board did in this matter by the imposition of conditions in the exercise of a discretion.
It is for those reasons that I express these views notwithstanding that I agree with the decision that the appeal should be allowed for the other reasons expressed by Gray J.
NICHOLSON J. I have had the benefit of reading the judgments of Gray J and Anderson J in draft. Subject to the qualification that follows, I agree that the appeal should be allowed for the reasons given by Gray J. I agree with the orders his Honour has proposed.
I make the following additional observations concerning the structure of the legislation. The critical provisions, s 4, s 7, s 21, s 23 and s 24 of the Teachers Registration and Standards Act 2004 (SA) have been set out in the judgment of Gray J.
Section 21 regulates eligibility for registration as a teacher. There are three essential requirements: qualifications and experience prescribed by regulation or as determined by the Teachers Registration Board;[9] any other requirements for registration prescribed by regulation or as determined by the Teachers Registration Board;[10] and that the applicant is a “fit and proper person to be a registered teacher”.[11]
[9] Section 21(1)(a).
[10] Section 21(1)(b).
[11] Section 21(1)(c).
However, eligibility does not necessarily ensure registration. This is clear from the opening words of s 21(1) and s 21(2) and the discretions conferred on the Board by s 23 and s 24. The opening words of s 21(1) and s 21(2) are as follows (emphasis supplied):
Subject to this Act, a person is eligible for registration [provisional registration] as a teacher if … [thereafter, in each case, the criteria in sub-section (1) are incorporated].
Section 23 provides that the Board may grant registration if satisfied that an applicant is eligible for registration as a teacher. Of relevance to the present case, the Board may grant provisional registration if satisfied that an applicant is eligible for provisional registration as a teacher. It is common ground that Ms Edwards, subject to the matters under appeal, is or would be eligible for provisional registration as a teacher.
Reading s 21 and s 23 together, there remains a discretion in the Board to refuse registration or provisional registration notwithstanding compliance with the s 21 eligibility criteria. In addition, and pursuant to s 24, the Board has a further discretion (again the word may is employed) to impose conditions of registration. According to s 24(1), the conditions which the Board may impose include (but are not limited to):
(a) conditions requiring a person to complete a course or acquire experience as a teacher;
(b)conditions requiring the supervision of the person;
(c)conditions restricting the subjects that the person may teach;
(d)conditions restricting the education that the person may provide;
(e)conditions limiting the period for which the registration remains in force;
(f)conditions requiring the provision of further evidence as to competence.
The apparent intention or expectation of the legislature is that conditions of this nature may be required in order for the Board to reach a state of satisfaction that a particular applicant is eligible under s 21 for registration or in order for the Board to exercise its discretion under s 23 to grant registration even where and notwithstanding that the eligibility criteria in s 21 have been satisfied. In other words, whilst eligibility is a necessary condition it is not a sufficient condition for registration. The discretions available to the Board under both s 23 and s 24 operate independently of, that is, in addition to satisfaction of the eligibility criteria in s 21.
In the present case, it is common ground that Ms Edwards has met the formal requirements for eligibility for provisional registration as a teacher under s 21. Furthermore, it is not doubted, as Gray J has stressed, that Ms Edwards is a person of good character and propriety. The only concern, to be met by the condition imposed by the Board, is as to the need for assistance related to her physical disability so as to enable her to carry out the fundamental duties of a teacher involving, as Gray J has put it, meeting the welfare and best interests of students under her care.
It can be inferred that, without a condition of the nature envisaged, the Board would not be prepared to exercise the discretion available under s 23 to grant provisional registration to Ms Edwards. All members of this Court agree with the need to impose such a condition.

The Act clearly confers power on the Board to impose conditions with respect to an applicant who otherwise satisfies the eligibility criteria in s 21. It is difficult to see how the Board could refuse registration to an applicant who satisfies the Board that they are eligible for registration in accordance with s 21 and provided that appropriate conditions deemed as necessary by the Board can be fashioned pursuant to s 24.
In this respect, there are three ways in which ss 21, 23 and 24 might be read together in a coherent and consistent way.
(i)The eligibility of a particular applicant for registration under s 21 might be established but any grant of registration pursuant to s 23 nevertheless remains discretionary. As such, it will depend upon the Board’s determination of whether or not a condition or conditions should be imposed pursuant to s 24. Discretions are conferred because the legislature cannot always identify in advance every circumstance that might arise and be relevant to the question at hand (in this case, registration). Circumstances concerning a particular applicant might arise such that even though the eligibility criteria, laid down in advance by the legislature and the Board, are satisfied, some other protection still needs to be put in place if registration is to proceed.
(ii)Alternatively, a finding by the Board in a particular case that there is a need to impose a condition under s 24 might bear directly on the requirements for eligibility under s 21. In other words, to the extent, in a particular case, that the Board exercises its discretion not to register unless and until a condition under s 24 is imposed or complied with, the Board might, in effect, be making a finding of a lack of eligibility including, for example, that without the condition the person is not a fit and proper person to be a registered teacher.
(iii)A third analysis is that the imposition of a condition under s 24 can be read as falling within or relating to the requirement for eligibility under s 21(1)(b)(ii). Sub‑section 21(1)(b)(ii) provides as follows:
(1) Subject to this Act, a person is eligible for registration as a teacher if the person—
…
(b)has met any other requirements for registration—
…
(ii)determined by the Teachers Registration Board to be necessary for registration;
A condition under s 24 might be construed as being a requirement for registration determined by the Board pursuant to s 21(1)(b)(ii) to be necessary for registration in a particular case. I recognise that the language of s 21(1)(b)(ii) more readily lends itself to a construction that embraces requirements determined in advance by the Board to be necessary and as being of general application, rather than as being merely responsive to a specific case. However, I do not regard this to be the only reasonable or the necessary construction of this sub‑section when read in the context of the Act as a whole and, in particular, s 4, s 7, s 21, s 23 and s 24.
It is not necessary in this case (and it may rarely, if ever, be necessary) to decide which of the possible statutory analyses in (i), (ii) or (iii) (or perhaps some other analysis) is to be preferred. It may be that all three are available according to the facts of different cases. As I have said, the imposition by the Board of the proposed condition in this case falls within the discretionary power conferred by s 24. All members of the Court agree that the condition in question is appropriate in the circumstances and that the Board has not erred in imposing it. It is unnecessary to decide and I prefer not to express a final view whether Ms Edwards is to be characterised as not being a fit and proper person to be registered unless the condition is imposed or as a fit and proper person to be registered in any event but that the condition, nevertheless, should be imposed in accordance with the independent discretion reposed in the Board by s 24.