Deans v Queensland College of Teachers [2010] QCAT 508

CITATION: Deans v Queensland College of Teachers [2010] QCAT 508 PARTIES: Ms Sandra Ann Deans (Applicant) v Queensland College of Teachers (Respondent) APPLICATION NUMBER: OCR014-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 27 April 2010, 21 July 2010 HEARD AT: Brisbane DECISION OF: Susan Booth – Presiding Senior Member Claire Endicott – Member/Non Registered Teacher Beverley Day – Member/Registered Teacher DELIVERED ON: 1 October 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Pursuant to section 24(1)(b) of the QCAT Act, the decision of the Queensland College of Teachers of 26 October 2009 is set aside and the applicant’s application for provisional registration is granted. CATCHWORDS : APPLICATION FOR REGISTRATION - STATUTORY INTERPRETATION – where applicant completed a graduate course of preservice teacher education but had not completed a three year undergraduate degree. Education (Queensland College of Teachers) Act 2005 (Qld) ss 9, 20, 236 Education (Queensland College of Teachers) Regulation 2005 (Qld) s 8 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, applied -- 1 of 12 -- OCR014-10 / Page 2 of 12 APPEARANCES and REPRESENTATION (if any): APPLICANT : J. Allen instructed by Maurice Blackburn Lawyers RESPONDENT: A.B. Johnson instructed by Queensland College of Teachers REASONS FOR DECISION 1. Mrs Sandra Deans (the Applicant) completed a graduate course of preservice teacher education at Griffith University, having previously received the degree of Master of Hospitality Management and various non-degree programs. The Griffith University qualification, a Graduate Diploma in Education (Primary), is an approved course for the purposes of section 236 of the Education (College of Teachers) Act 2005 (the Act). 2. On 1 September 2009 Mrs Deans applied to the Queensland College of Teachers (QCT), the Respondent, for provisional registration. The QCT refused the application on or before 21 October 2009, a decision upheld on internal review under the Act on 21 December 2009. 3. Mrs Deans applied to the Tribunal on 18 January 2010 for a review of the QCT’s decision to refuse her application for provisional registration. 4. This matter is an external review under section 215 of the Act. 5. Under section 18 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) the Tribunal may exercise its review jurisdiction if a person has applied to the Tribunal. Section 20 of the QCAT Act describes what the Tribunal must do on a review application. It states: (1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision. (2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. 6. Section 24 (1) of the QCAT Act provides that in a proceeding for a review of a reviewable decision the Tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate -- 2 of 12 -- OCR014-10 / Page 3 of 12 BACKGROUND The legislative framework 7. Teacher registration is determined under the Education (Queensland College of Teachers) Act 2005 (the Act). The Act creates the Queensland College of Teachers, (QCT and the Respondent in this matter) and charges it with the task of creating appropriate standards, approving higher education programs for teacher qualification, and registering and managing discipline of teachers. 8. The Act is based on a division of responsibility among various participants in the education sector: • the QCT is responsible (among other matters) for registration and discipline of teachers and approval of higher education programs that entitle applicants to seek registration. • employing authorities (schools and school systems) may only employ approved teachers to teach, and have a range of reporting obligations about the teachers they employ; • higher educational institutions have responsibility for the teacher training and issuing qualifications to applicants who seek registration following various courses of study. These institutions operate under other Acts, including the various university Acts and the Higher Education (General Provisions) Act 2008; • The QCT is neither the employer of teachers nor their educator: these roles belong to other participants under separate statutory frameworks. The scheme is a clear statement of how the schools education sector is governed in Queensland between schools, teacher educators and the regulator, each with its own roles, yet each working together. The objects of the scheme are stated in section 3 of the Act: (a) to uphold the standards of the teaching profession; and (b) to maintain public confidence in the teaching profession; and (c) to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers 9. The Parliament has attached much significance to the registration process, and charged the QCT with a heavy responsibility to achieve these important matters of public interest. 10. Section 20 of the Act obliges the QCT to consider an application it receives for registration and may grant the application or refuse it. Conditions may be imposed but only in order to satisfy the QCT as to the applicant meeting “the eligibility requirements”, which, for the purposes of this review, are found in paragraphs 9(1)(a) - (d): (1) A person is eligible for provisional registration if the college is reasonably satisfied— (a) either— (i) the person has attained the qualifications for provisional registration prescribed under a regulation; or -- 3 of 12 -- OCR014-10 / Page 4 of 12 (ii) the person’s education, demonstrated abilities, experience, knowledge and skills establish that the person meets the requirements under the professional standards for provisional registration; and Example— A person has a qualification other than a prescribed qualification, at degree level or higher, from a higher education institution and has long and meritorious teaching experience in a non-school setting, such as a TAFE or higher education institution. (b) the person is suitable to teach; and (c) if the person is a person prescribed by regulation as being required to take a test for literacy, numeracy or science prescribed by regulation, the person— (i) has taken the test; and (ii) achieved a test result the college considers is satisfactory for provisional registration; and Note— Chapter 2, part 2, division 3 states the matters that may be prescribed for tests for literacy, numeracy or science. (d) the person meets any other requirements for professional practice for provisional registration prescribed under a regulation. 11. There is no question about Mrs Deans eligibility under paragraphs (b), (c) or (d), and so the review is concerned with her eligibility under paragraph (a). 12. The QCT’s submissions identify the two pathways to provisional registration –the prescribed qualification route (subparagraph (i)) and the demonstrated competence route (subparagraph (ii)). The applicant’s submissions refer to these as the first and second limbs respectively. The approved program 13. The approved program of study completed by the Applicant is a Graduate Diploma of Education (Primary) from Griffith University. It was approved by the QCT for the purposes of section 236 of the Act on 7 September 2007. The QCT website included the program on its list of approved programs. 14. Section 236 provides relevantly: (2) The college may approve the program only if— (a) it considers the qualification resulting from successful completion of the program is suitable to be prescribed as a qualification for provisional registration under section 9(1)(a)(i); and (b) the college is reasonably satisfied a person who completes the program will attain the abilities, knowledge and skills required under the professional standards. -- 4 of 12 -- OCR014-10 / Page 5 of 12 15. Section 8 of the Education (Queensland College of Teachers) Regulation 2005 (the regulation) provides as follows: For section 9(1)(a)(i) of the Act, the qualifications are successful completion of— (a) a course of preservice teacher education consisting of at least 4 years academic study, including professional studies that are at least 1 year of academic study; or (b) a graduate course of preservice teacher education consisting of professional studies that are at least 1 year of academic study; or (c) another course of teacher education, provided by a higher education institution, that the college is satisfied is the equivalent of a course mentioned in paragraph (a) or (b). 16. These three limbs are expressed in the alternative, signified by the use of “or” as a conjunctive between the paragraphs. 17. In approving a program under section 236, the QCT is making an important decision about the outcomes for a student who undertakes the course of study and attains the resulting qualification. Specifically, reading sections 9 and 236 together with section 8 of the regulation, if an applicant completes an approved preservice teacher education program and attains the prescribed qualification, the applicant: (a) is suitable for provisional registration under the prescribed qualification route; and (b) will reasonably satisfy the QCT as to the applicant’s abilities, knowledge and skills required under the professional standards The Applicant’s qualifications 18. The Applicant’s formal qualifications and training include: • Graduate Diploma in Education (Primary) from Griffith University gained in 2010 • Master of Hospitality Management issued by Griffith University gained in 1997 • Advanced Management Program Certificate issued by Bond University in 1990 • Certificate IV in Assessment and Workplace Training attained in 2001 • Train the Trainer qualifications through the Australian Institute of Training and Development • 5 day intensive research ethics course conducted by Monash University • Accreditation as a Personnel Consultant through the Institute of Personnel Consultants, 1986. 19. It is common ground that Mrs Deans does not hold an undergraduate degree. 20. The respondent argues that the Graduate Diploma obtained by Mrs Deans is not a qualification for the purposes of registration because she has not completed other undergraduate studies sufficient to satisfy the professional standards. -- 5 of 12 -- OCR014-10 / Page 6 of 12 21. The respondent urged on the Tribunal a construction of the Act and regulation “to require an applicant to have completed 4 years of study at a higher education institution” (supplementary submissions of the respondent dated 23 July 2010, paragraph 14). It further submitted that the approval of the Graduate Diploma was predicated on certain programs of study being prerequisite to entry, specifically, an undergraduate degree of at least three years’ duration that afforded, for example, “in- depth discipline and content knowledge to support the future teaching areas of the applicant” (Further Written Submissions of The Respondent dated 11 May 2010, paragraph 21). The respondent asserts that the applicant’s “fundamental ‘deficiencies’ … relate to a lack of discipline knowledge derived from limited academic study at a higher education institution” (paragraph 61). 22. The respondent made extensive submissions about the approval granted to Griffith University for this particular program, including QCT’s expectations, for example, that the “necessary discipline content knowledge for teaching Primary subject areas … would be achieved by previous undergraduate studies and not provided as part of the course” (statement of supplementary facts asserted by QCT undated, received by QCAT 22 April 2010). The Submissions of the Respondent dated 27 April 2010 canvas this point at length, and conclude at paragraph 96: Ms Deans qualifications meets [sic] neither the basis upon which Griffith University sought approval nor the terms of that approval. That is not cured whether by Ms Deans entry to the course or its successful completion. 23. The QCT further submits in paragraph 97: … where a University decides to admit a student outside the course approved criteria, it is absurd and unjust that it would be permitted to gain a “statutory” benefit of the very approval process it breached. Next where a University decides to admit a student outside the course approved criteria, it is both manifestly unreasonable and erroneous at law to suggest that the [mistaken] University decision binds the independent professional registration body (the QCT). 24. The Applicant argues that she is eligible for provisional registration because she has attained the prescribed qualification and no further educational attainment is necessary for the QCT to be satisfied in terms of section 9. 25. The Applicant argues that the plain meaning of the Act is that eligibility flows from attaining the prescribed qualification and that “the terms of s. 8(b) the Regulation make no reference to the terms of any approval of the course of preservice teacher education or the nature and extent of studies required before the graduate course of preservice teacher education (submissions of the Applicant dated 28 July 2010, paragraph 18). 26. Further, the Applicant asserts that she was not lightly admitted to the Graduate Diploma by Griffith University, but that the University gave careful consideration to her extensive work experience and community activity. She annexed to her first statement a letter from Griffith University dated 7 September 2009 detailing why she was accepted into the course (Statement of Sandra Ann Deans dated 12 April 2010, page 83). It states: -- 6 of 12 -- OCR014-10 / Page 7 of 12 A vastness of experience and life skills that create a firm foundation for training as a teacher. She has studied at 2 universities – Griffith and Bond- completing the Masters of Hospitality Management and an Advanced Management Program. In addition Sandy has completed Certificate IV in workplace assessment which is an assessed course details. 27. The University then details her teaching experience and other linkages to education, including… Worked as a teacher in both the Austswim program and as an instructor with Royal Life Saving Australia…working with community organisations that are directly linked with education such as ..Queensland Ballet, QUT education – hospitals and sporting organisations. 28. She also submitted in her Statement that “a substantial part of my professional working life has involved the development of training programs …” (paragraph 118). The College’s role 29. The Respondent has the task of considering applications for provisional registration based on either the prescribed qualification route (limb 1) or the demonstrated competence route (limb 2). Limb 1 30. The College’s role, under ‘Limb 1’ as agreed by both the Respondent and Applicant, includes approving a program, if it satisfies s9(1)(a)(i) of the Act and section 8 of the Regulation, in this case, a graduate course of preservice teacher education consisting of professional studies that are at least 1 year of academic study. In order to give approval the QCT must be reasonably satisfied that successfully completing the program will give the student the abilities, knowledge and skills required under the professional standards. 31. The question for the Tribunal is whether, having approved a course of study and received an application from a successful student, what then is the role of the Respondent? 32. The Respondent submits it retains the right to decide whether to register an applicant regardless of the prescribed qualification having been attained. And to do so, it will review the individual who has attained the graduate diploma and decide whether the applicant is eligible for registration. The basis of this approach is set out in the Respondent’s submissions: it could only be reasonably satisfied that a person is eligible for provisions registration … if the entry requirements of the course include a minimum of 4 years full-time study with in-depth content knowledge to support the future teaching areas of the Applicant. Relevantly, the Respondent points to the requirement for 4 years academic study in a footnote to its submissions stating this is “As interpreted and applied by the QCT (ie the Respondent).” The submissions do not point to any specific legislative basis for this view. 33. The Applicant points to a number of statutory provisions in support of her argument: • Section 8(b) of the Regulation makes no reference to the terms of any approval of the course or preservice teacher education or the nature and -- 7 of 12 -- OCR014-10 / Page 8 of 12 extent of studies required before the graduate course of preservice teacher education; • Section 8(c) reserves to the Respondent a decision about whether a course of study other than a prescribed course should be considered to have attained the qualifications for registration. 34. While the Tribunal is of the view that the ordinary and grammatical sense of the words supports a view that the Applicant has obtained the qualifications for provisional registration, it is necessary to have regard to the context and legislative purpose. 35. In Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 per McHugh J at 230, held that the concepts of context and purpose are interconnected. Reading the Act as a whole provides context. Section 230 of the Act details the functions of the College. It provides for several functions, but relevantly here: (c) deciding applications for registration; (h) approving and monitoring preservice teacher education programs for provisional registration. 36. The Act clearly contemplates a significant role for the Respondent as regulator. However, the role is not at large. Read as a whole, the Tribunal cannot conclude that the context provides an additional function which would provide a role for the Respondent of refusing registration to a graduate of an approved course. The ordinary meaning of the words and the context which describes the ‘approving and monitoring role’ does not give an additional role of refusal of an applicant’s registration. 37. This matter challenges how this scheme of the Act operates. It asks the Tribunal to consider the relationship between the QCT and the higher education sector and applicants, especially those applicants whose pathway to registration is different from the vast majority of applicants who complete bachelor degrees in education or other disciplines followed by a specialist qualification designed to meet registration requirements. 38. Mrs Deans is one of those applicants whose pathway to registration is not the common pathway. She has extensive work experience in very responsible roles outside the education sector. She does not have the “usual” undergraduate precursor to enrolment in a preservice teacher education program. She has however completed just such a preservice teacher education program from Griffith University, approved by the QCT under the Act, and to which she was admitted by Griffith University after consideration of her skills, experience and prior education. 39. It is Mrs Dean’s unusual pathway that lies at the base of this matter. On the one side, the applicant asserts that she has completed a preservice teacher education program and by the natural, ordinary meaning of the words in the Act, she is eligible for provisional registration in accordance with section 9(1)(a)(i), the prescribed qualification limb. The QCT on the other hand argues that she was admitted to the program in a way contradictory to the intention of the QCT’s approval and contrary to -- 8 of 12 -- OCR014-10 / Page 9 of 12 the Act’s purposes about teacher standards and therefore fails to meet requirements of section 9(1)(a)(i), meaning it has a further role to consider whether she should be provisionally registered. 40. Section 9(1)(a)(i) is concerned with the attainment of qualifications, not with the educational antecedents that led to admission. The scheme of the Act relieves the QCT from concern with minutiae of an applicant’s educational experience and leaves that to the granting institution to manage. 41. To conclude otherwise would impose on the QCT a burden that would duplicate the functions of the higher education institutions. More particularly, the QCT is not charged under the Act with conducting an assessment of an applicant’s qualifications separate from the assessment made by the higher education institution that granted the qualification. If the qualification is approved under section 236, an applicant who has attained the qualification meets the requirements for provisional registration in accordance with section 9(1)(a)(i). 42. An important specific legislative purpose includes upholding the standards of the teaching profession. The respondent suggests that to allow registration of a person without 4 year training is inconsistent with this purpose. 43. However there is another way of obtaining provisional registration – the demonstrated competence route. Limb 2 44. The alternative method under section 9(1)(a)(ii) is for “applicants who have not attained a prescribed qualification.” This method of seeking registration, though very rigorous, does not mandate a four year degree – it permits registration where a person can positively establish that they meet the professional standards on the basis of the aggregation of the following qualities: education, demonstrated abilities, experience, knowledge and skills. 45. As to Limb 2 the Respondent wrote in its statement of reasons “you had not provided evidence of having gained the strong discipline knowledge that is emphasised in the QCT’s Professional Standards for Queensland Teachers.” 46. Ms Cummins, the decision maker, gave oral evidence that restated and elaborated on this decision. She noted that the examples given by Mrs Deans were often more assertions but that Ms Dean did not specifically identify how these related to the professional standards. 47. She said that she had never before undertaken a ‘portfolio assessment’ under the demonstrated competence approach where a person had applied under the prescribed qualification route. 48. Mrs Deans gave evidence about her qualifications. She was extensively cross- examined about them. As well, she gave examples of her work from her school placements seeking to demonstrate her professional skills. -- 9 of 12 -- OCR014-10 / Page 10 of 12 49. The Tribunal found that the evidence of Mrs Deans did not provide it with a clear understanding of her education, abilities, experience, knowledge and skills. Likewise, it was difficult for the Tribunal to follow the reasoning as to why Ms Cummins concluded that the Applicant could not meet the demonstrated competence criteria necessary to attain provisional registration. 50. These comments are not to be seen as critical of either Mrs Deans or Ms Cummins, but of the process itself. The Tribunal questions the use of a demonstrated competence process to assess an applicant who has attained a prescribed qualification. 51. The Respondent’s final submissions raised a matter about whether the Applicant may have misled Griffith University as to her qualifications. The Tribunal rejects these allegations. It is clear from Griffith University’s statement as to why the Applicant was admitted to the course; she did not mislead either the University or the Tribunal. At all times, the Tribunal found the Applicant to be a truthful witness. THE REVIEW 52. This review is an external review of the QCT’s decision under section 215 of the Act, by way of a fresh hearing on the merits (QCAT Act, section 20). 53. The QCT filed extensive material pursuant to section 21(2) of the QCAT Act which requires the decision maker to provide a statement of reasons and any relevant document. Additionally, sworn statements were filed by Mrs Deans and the decision maker, Ms Cummins. These two persons also gave oral evidence – primarily addressing the issues arising from Limb 2 – the demonstrated competence route. 54. The parties also made extensive written submissions. While, as detailed above, there is some difference of opinion between the parties about the proper construction of the Act and the role of the respondent as a regulator, the task before the Tribunal is determine the correct and preferable decision that should be made on Mrs Deans’ application for provisional registration. 55. In essence the challenge is to answer this question: “Has the applicant attained the qualification required for provisional registration under section 9(1)(a)(i) of the Act? If not, does she satisfy section 9(1)(a)(ii)?” 56. The Tribunal’s task is to answer the application brought by Mrs Deans: is she or is she not eligible for provisional registration under one or other limb of section 9(1)(a)? 57. But the challenge for the Tribunal is not merely to determine Mrs Deans’ provisional registration, because in order to answer this fundamental question, the Tribunal must, by the force of the submissions for both parties, inquire into the system for management of the high standards expected for teacher registration in Queensland: this is the issue raised squarely by the respondent in its submissions. 58. The applicant’s assertion is that “a prescribed qualification is a prescribed qualification”: she should be registered because she is eligible in terms of the first limb. The respondent’s assertion is that the pathway to registration relies on the highest standards being upheld, and that the QCT has an active role in inquiry behind the mere grant of a qualification by a university: a qualification, prescribed or not, -- 10 of 12 -- OCR014-10 / Page 11 of 12 demands that the QCT asks as to the skills and standards necessary for a teacher to be permitted to teach. In essence, the respondent argues that approving a course of study does not carry with it unquestioning acceptance of graduates as meeting the prescribed qualification pathway. Is the applicant eligible for provisional registration? 59. QCAT is required to produce the correct and preferable decision (QCAT Act section 20). 60. The QCT’s submission about the first limb assumes that the pathway to provisional registration for a first time teacher is a 3 year undergraduate degree complemented by a graduate preservice teacher education program, namely 4 years of educationally relevant tertiary studies. 61. The Act does not reflect this submission, and on its plain reading, an applicant with a preservice teacher education qualification is prima facie eligible for provisional registration without further inquiry. 62. The QCT argues that its interpretation follows from the registration process under its guidelines and the arrangements with the higher education provider about its program. Adopting this interpretation requires a construction of section 9(1)(a)(i) that relies not only on the Act, but on QCT policy as well, as shown by the respondent’s own submissions, including the footnoted reference to the need for “interpretation” to reach the conclusion asserted by the QCT. 63. The respondent’s submissions assert that the requirement under the Act is for a four year program consisting of an undergraduate degree plus a year’s graduate preservice teacher education. This is not what the Act provides, and not consistent with the QCT’s own arguments about the second limb under section 9(1)(a)(ii) which necessarily permits registration without such an educational program. 64. The Tribunal has concluded that the applicant is eligible for provisional registration on the basis that she has satisfied section 9(1)(a)(i) by attaining the Graduate Diploma of Education (Primary) from Griffith University. 65. Having concluded that the Applicant is eligible for provisional registration, it is unnecessary to decide whether the Applicant could satisfy section 9(1)(a)(ii). Can conditions be imposed on provisional registration under the first limb? 66. The applicant has expressed a willingness, if required, to undertake further studies and be subjected to other conditions as detailed at paragraph 14 of her written submissions dated 4 May 2010, and extracted below. However she does not concede that conditions are either necessary or that they may be lawfully made in relation to provisional registration under section 9(1)(a)(i). 67. Both parties submitted to the Tribunal that conditions may not be imposed on provisional registration granted under the prescribed qualification route on a proper reading of section 9 together with section 20. The Tribunal accepts these submissions and notes that conditions appear to relate to registration under the second limb. Accordingly it is not necessary to consider this question further. -- 11 of 12 -- OCR014-10 / Page 12 of 12 68. However, for the sake of completeness, the following is extracted from the applicant’s written submissions dated 4 May 2010. a. the Applicant has reached a tri-partite agreement with the College and Griffith University in respect to a program of study that: I. is equivalent to 18 months full time study (but may be undertaken part time); II. will result in the applicant having the equivalent of three years of tertiary study (exclusive of the Graduate Diploma); and III. will satisfy the College in relation to the applicant’s capacity to teach across each of the key learning areas. b. the applicant has also expressed a preparedness to be subject to conditions that: I. she only accept work on a supply basis; II. she will only accept work on a specified number of days per week (say no more than 5 days in any fortnight); iii. her work will be subject to supervision; and Iv. That she teach only the preparatory grade through to year three. 69. By this submission the applicant evidences a willingness to cooperate with the QCT and to further her education and other relevant qualifications. While the Tribunal has determined that conditions as to qualification cannot be imposed under the Act, the Tribunal encourages the Applicant to complete the further studies as agreed. 70. The Tribunal finds that: • the applicant has attained the qualification of Graduate Diploma of Education – Primary from Griffith University • the qualification is an approved qualification for provisional registration in accordance with the Act • the applicant therefore is eligible for provisional registration under section 9(1)(a)(i) of the Act. DECISION 71. Pursuant to section 24(1)(b) of the QCAT Act, the decision of the Queensland College of Teachers of 26 October 2009 is set aside and the applicant’s application for provisional registration is granted. -- 12 of 12 --