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Qing Norton v Queensland College of Teachers[2022] QCAT 36

Qing Norton v Queensland College of Teachers[2022] QCAT 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Qing Norton v Queensland College of Teachers [2022] QCAT 36

PARTIES:

Qing Norton 

(applicant)

v

Queensland College of Teachers

(respondent)

APPLICATION NO/S:

OCR127-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

  1. 1.The decision of the Queensland Teachers College dated 15 April 2020 to refuse Qing Norton provisional registration as a teacher is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS TRADES OR CALLINGS – application for provisional registration as a teacher under the Education (Queensland College of Teachers) Act 2006 (Qld) – requirement of the Education (Queensland College of Teachers) Regulation 2016 (Qld) to communicate in spoken and written English at a professional level

Education (Queensland College of Teachers) Act 2006 (Qld), s 9, s 17, chapter 8, part 1, s 210A, s 210B, s 213,    s 235, chapter 10, part 2, s 238, s 314

Education (Queensland College of Teachers) Regulation 2016 (Qld) (the Regulation), s 9, s 33

Education (Teacher Registration) Act 1988 (Qld)

Information Privacy Act 2009 (Qld)

Mutual Recognition (Queensland) Act 1992 (Qld), s 17(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24.

Ainsworth v Criminal Justice Commission (1990) 175 CLR 564

Deans v Queensland College of Teachers [2010] QCAT 508.

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    The applicant, Qing Norton, has applied to the Tribunal for review of a decision by the Queensland College of Teachers to refuse her application for provisional  registration as a teacher under the Education (Queensland College of Teachers) Act 2006 (Qld) (the Teachers Act).
  2. [2]
    The reason for refusal of provisional registration, as stated by the College’s Internal Review Committee in its decision dated 15 April 2020, was that the College was not able to be satisfied of Ms Norton's ability to communicate in spoken and written English at a professional level with students, parents, teachers and other persons, as required by the relevant legislation.

The relevant statutory framework

  1. [3]
    The relevant requirement for provisional registration as a teacher is contained in            s 9(1)(d) of the Teachers Act which provides as follows:

9 Eligibility for provisional registration

(1) A person is eligible for provisional registration if the college is reasonably satisfied—

…

(d) the person meets any other requirements for professional practice for provisional registration prescribed under a regulation.

  1. [4]
    The relevant provision of the Education (Queensland College of Teachers) Regulation 2016 (Qld) (the Regulation) is s 9 which is as follows:

Additional requirement for professional practice for provisional registration

For section 9(1)(d) of the Act, the prescribed requirement for professional practice for provisional registration is the ability to communicate in spoken and written English at a professional level with students, parents, teachers and other persons.

  1. [5]
    In the Tribunal’s review jurisdiction, applicable to this case, s 20(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), states that:

The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

Preliminary matter – application to replace pages of Ms Norton’s statement

  1. [6]
    In an Application for miscellaneous matters filed 29 November 2021, Ms Norton sought to replace the first 13 pages of her statement filed on 20 November 2020, with a replacement (‘the Replacement Statement’), due to some printing and text errors on the earlier version. The College was given the opportunity to make a submission on that application, but in an email dated 21 December 2021, said that it had no submissions to make on the application.
  2. [7]
    In the circumstances, I grant that application.

Brief factual background 

  1. [8]
    The key background facts between the parties are not in dispute. Relevantly,                Ms Norton was provisionally registered in 2005 by the then Queensland Board of Teacher Registration under mutual recognition legislation through, in Ms Norton's case, Victorian teacher registration.[1] That provisional registration was valid only until 31 December 2007.[2] That meant she had to re-apply for provisional registration in Queensland, which she did in 2019.
  2. [9]
    Prior to her 2019 application, Ms Norton had not taught in an Australian school for a period of at least five years.[3] In her statement dated 20 November 2020, Ms Norton said that she had migrated to Australia in 1999, and since then had spent the majority of her time living in English speaking countries.[4]
  3. [10]
    I will set out further factual background when dealing with each of the issues.

Issues

  1. [11]
    In her application to the Tribunal, as elaborated on in her Replacement Statement, Ms Norton raised several issues for review of the College’s internal review decision dated 15 April 2020, which I summarise as follows:
  1. (1)
    The College incorrectly used a policy on English Language Proficiency (ELP) to determine the outcome of her application;
  2. (2)
    She was sufficiently proficient in English for the purposes of s 9(1)(d) of the Regulation;
  3. (3)
    The College ignored the fact that Ms Norton was provisionally registered as a teacher in 2005;
  4. (4)
    The College used a copy of an English proficiency assessment report to finalise her application for registration when the purpose she provided it to the College for was to seek an extension of time for her to provide information to the College;
  5. (5)
    A legal officer of the College claimed to be considering Ms Norton's application for internal review when the application was required to be considered by the College. Further, a Principal Legal Officer of the College attended the internal review hearing without notification to Ms Norton.

Issue 1 – use of the ELP policy

  1. [12]
    Ms Norton does not refute the applicability of s 9(1)(d) of the Teachers Act or s 9 of the Regulation. What she does object to, is the College taking into account a policy that she contends was not prescribed in the Regulation. The policy is entitled ‘English language proficiency requirements on application for teacher registration’ (‘the Policy’).[5] She also attacks application of the Policy on several other grounds. 
  2. [13]
    There is no doubt that in the decision under review, the College applied its ELP Policy.[6] In particular, Ms Norton did not meet the minimum scores required in English proficiency in listening, reading and writing referenced by the Policy.[7]
  3. [14]
    The Policy references s 9 of the Teachers Act and s 9 of the Regulation. The Policy objectives and rationale are stated to be:

To provide applicants and [College] officers with information about how applicants must meet English language proficiency as a requirement for professional practice. 

  1. [15]
    Under the heading ‘Policy Approval', the Policy records that it has the approval of a College Board decision dated 18 March 2011, and a decision of the Director of the College on an update of the policy effective from 1 January 2012. Part of the function of the College Board is to decide policies of the College.[8]
  2. [16]
    The part of the Policy applicable to re-applicants, such as Ms Norton, is that:

Individual assessment will be undertaken on applications received from applicants previously registered with the [College]; and where:

  • the applicant has not taught in an Australian school for one year in the past five years, and/or
  • the applicant has resided in a country other than an exempt country for a significant period of time since the last English language proficiency test results;

as the [College] needs to be satisfied that the applicant meets the requirements for professional practice prescribed under [s 9 of the Regulation].

  1. [17]
    The Policy sets out three options to demonstrate the required level of ELP. The option undertaken by Ms Norton was as follows:

An IELTS[9] (Academic) assessment with an average band score of 7.5 across all four skill areas of listening, speaking, reading and writing - with no score below 7 in any of the four skills areas and a score of no less than 8 in speaking and listening.

  1. [18]
    The internal review decision records that the test results provided by Ms Norton to the College were completed on 14 September 2019. Ms Norton achieved scores of 7.5 in Listening, 8.0 in Speaking, 6.0 in Reading, and 6.5 in Writing, with an overall band score of 7.0. She did not meet the minimum scores required of 8.0 in Listening and 7.0 in Reading and Writing.[10] Accordingly, Ms Norton did not meet the required standard under the Policy.
  2. [19]
    The first attack made by Ms Norton on application of the Policy is that it does not comply with s 235 of the Teachers Act.[11] 
  3. [20]
    Relevantly, s 235(1) is as follows:

235 Professional standards

  1. (1)
    The college must—
  1. (a)
    adopt the national professional standards; or
  2. (b)
    with the approval of the Minister, adopt or develop standards other than the national professional standards.

The expression 'national professional standards' is defined in s 235(8) to mean the national professional standards prescribed under a regulation.

  1. [21]
    Section 33 of the Regulation prescribes the 'national professional standards' as follows:

33 National professional standards

  1. (1)
    For section 235(8) of the Act, definition national professional standards, the national professional standards prescribed are the professional standards for teachers approved by the Ministerial Council.
  2. (2)
    In this section—

Ministerial Council means the Council of Commonwealth, State and Territories Ministers with responsibility for school education, as it exists from time to time.

  1. [22]
    The applicability of the national professional standards for the purposes of Ms Norton's application is made clear by ss 235(4) and (5) of the Teachers Act, relevantly as follows:
  1. (4)
    The purpose of the professional standards is to detail the abilities, experience, knowledge or skills expected of teachers to help the college decide—

…

  1. (b)
    whether an applicant for provisional or full registration, or an applicant for the renewal of full registration, meets the professional practice requirements;

…

  1. (5)
    The professional standards may provide for all or any of the following matters—
  1. (a)
    the abilities, knowledge and skills required for provisional registration;
  2. (b)
    the abilities, experience, knowledge and skills required for full registration;

…

  1. [23]
    Finally, s 235(6) provides that if the professional standards are inconsistent with a requirement under the Teachers Act, the standards are invalid to the extent of the inconsistency. I do not consider that there is any inconsistency between the standards as expressed in the Policy, and the requirements of s 9 of the Teachers Act.
  1. [24]
    Ms Norton's attack on the validity of the Policy under the Teachers Act is put in the following terms:

The legislation is very clear regarding the adoption of national standards. Queensland College of Teachers has not adopted the national standard nor are they prescribed under a regulation.[12]

  1. [25]
    The second aspect of this submission overlooks the effect of s 33 of the Regulation.
  2. [26]
    The first aspect is dealt with in an affidavit of Marilyn Cole filed on behalf of the College.[13] Ms Cole is a registered teacher, but in particular as at the date of her affidavit, was acting as Team Manager, Teacher Registration for the College. In paragraph 8 of her affidavit, she deposes that the Policy was introduced by the College in 2012 and is aligned with nationally consistent ELP requirements for teacher registration agreed to by all Australian State and Territory Education Ministers in 2011.
  3. [27]
    I accept that this evidence establishes that the Policy was made in implementing s 33 of the Regulation. This challenge to the validity of the Policy fails.   
  4. [28]
    The next challenge by Ms Norton to the validity of the Policy which I will consider as expressed by her in paragraph 54 of her Replacement Statement is as follows:

The policy adopts the legislation which is wrong at Law. The Legislation states that it has to be prescribed in the Regulations. 

  1. [29]
    It is a little difficult to grasp the precise point that Ms Norton wishes to make. There is certainly nothing legally invalid in the Policy referencing the legislation, as the head of power under which the Policy is made, in the form of the Teachers Act. 
  2. [30]
    It may be that the point of the second sentence is that Ms Norton contends that the effect of s 9(1)(d) of the Teachers Act is that any policy to be applied to refuse an application for registration as a teacher must be specifically prescribed in the Regulation. 
  3. [31]
    The effect of the legislation as set out above means that this is not so. It is certainly the case that s 9(1)(d) of the Teachers Act requires that an applicant for provisional registration must meet 'any other requirement as prescribed under a regulation’. Section 9 of the Regulation does this by prescribing the requirement of ‘ability to communicate in spoken and written English at a professional level with students, parents, teachers and other persons.' 
  4. [32]
    Whilst it is true that the Policy itself is not prescribed under the Regulation, in my view, it is not necessary to for it to be prescribed by name. The Policy is simply a way of implementing s 9 of the Regulation, since s 9 does not of itself contain a particular method for assessing the requisite ability to communicate in spoken and written English. Based on the evidence of Ms Cole, the Policy implements the requirements of s 235 of the Teachers Act and s 33 of the Regulation, by implementing the national professional standards. 
  5. [33]
    The next submission by Ms Norton to consider, in application of the Policy, is contained in paragraph 55 of the Replacement Statement. Ms Norton contrasts the requirements of s 9 of the Regulation which refers to 'the ability to communicate in spoken and written English', and submits that the Policy imposes additional requirements of ELP of 'listening and reading, which is contra to the regulations'.
  6. [34]
    If Ms Norton's point here is that the words ‘listening and reading' are not specifically mentioned in s 9, then I reject that submission. Listening and reading are clearly matters that fall within the scope of communicating in spoken and written English, as s 9 requires.
  7. [35]
    The next ground of attack[14] on application of the Policy is that Ms Norton submits that the Policy was 'purely used as an internal document'. She also says that she was not aware that a policy was being used to assess her application, even though the Policy states that it is to provide applicants and College officers with information about how applicants must meet ELP as a requirement for professional practice. She also says that the policy was not readily available on the College website.
  8. [36]
    In my view, this submission is somewhat disingenuous. After all, Ms Norton undertook the IELTS English proficiency assessment mandated by the Policy. Also, she does not state what searches she undertook to find the Policy on the College website. She does not say it is not available on the website, only that it is 'not readily available', whatever that may mean. By contrast, the affidavit of Ms Cole says that the details of the Policy are available on the College website, giving the URL link to it.[15] I reject this ground of attack on application of the Policy.
  9. [37]
    A further ground of attack on application of the Policy raised by Ms Norton,[16] is the language of the Policy concerning its application to re-applicants. This point concerns the conjunctive 'and/or' on the requirement for ELP, between the criteria (set out above in my description of the Policy) that the applicant has not taught in an Australian school for one year in the past five years, and the second of them, that the applicant has resided in a country other than an exempt country for a significant period of time since their last ELP test results.
  10. [38]
    Ms Norton's criticism of the language of the conjunctive means that the Policy omits what happens when an applicant does not meet the 'and/or' of the two categories of re- applicant. She says the assumption would be that a re-applicant of that kind would be exempt from ELP, but the Policy does not say that. I think the correct reading of that part of the Policy, including the conjunctive, is that a person who does not fall within either of those criteria is not required to pass an ELP test. For example, a teacher who has taught in an Australian school for one year in the previous five years, would not be required to pass an ELP test. 
  11. [39]
    Ms Norton goes on to submit that the effect or the conjunctive means that either criterion can be used. She says the two criteria are written in the negative and an exemption can not be given when a re-applicant has not taught for one year in the previous five years and/or resided in a country other than an exempt country.
  12. [40]
    I think that reading of the Policy is correct, even though it has adverse consequences for Ms Norton. The conjunctive means that the College has a discretion to require a re-applicant to provide a successful ELP test result if either the re-applicant has not taught in an Australian school for one year in the past five years or has resided in a country other than an exempt country for a significant period of time since their last ELP test. It also means that a re-applicant who falls within either criterion can be required to provide a successful ELP test result. A re-applicant who does not fall within either of those criteria is not required to provide an ELP test result.
  13. [41]
    Ms Norton says that she has predominantly resided in English speaking countries since her last registration in 2006. She has not resided in any non-exempt country for a significant period of time. That may be so, but she does not contest that she has not taught in an Australian school for one year in the previous five years. On the language of the ‘Re-applicant' part of the Policy, she can be required to provide a successful ELP test result on that criterion alone, in the discretion of the College. The fact that she has not resided in a country other than an exempt country for a significant period of time since her last ELP test result does not prevent the College, in the exercise of its discretion, from requiring a successful test result, solely on the criterion that she had not taught in an Australian school for one year in the previous five years.
  14. [42]
    This aspect of Ms Norton's attack on application of the Policy also fails.
  15. [43]
    Ms Norton then refers to what she describes as the 'ELP assessment’ when the College stated that for ‘mutual recognition application no ELP requirements were required to be given.’[17] This appears to me to be a reference to part of the internal review decision (which is the subject of Ms Norton's application to the Tribunal), given the similarity of language to that part of the internal review decision dealing with mutual recognition.    
  16. [44]
    Page 2 of the internal review decision concerning application of mutual recognition legislation is as follows:

Consideration was given to the fact that your initial registration was granted under Mutual Recognition and applicants applying under Mutual Recognition were not then, or now, required to demonstrate English language proficiency with their application.

  1. [45]
    If the point that Ms Norton makes here is that she was not required to demonstrate ELP when she was initially granted provisional registration in Queensland in 2005,  but has been required to do so in 2019, then this submission must also fail. The reason is that the 'mutual recognition principle’ applicable to occupations,[18] is that it requires a person to be registered in one jurisdiction before the principle can be relied on to obtain registration in another jurisdiction. Ms Norton has not submitted that as at the date of her application to the College in 2019, she was registered as a teacher in another Australian jurisdiction. Her registration as a teacher in Victoria enabled her to rely upon mutual recognition, when she was granted provisional registration in Queensland in 2005.   
  2. [46]
    Ms Norton's final critique[19] of application of the Policy concerns the previous Board of Teacher Registration policy,[20] dating back to 2004. Ms Norton notes that the effect of the 2004 policy was that if a teacher had completed their preservice program of teacher education in English, then no further ELP requirement was applied. I pause to note that although this might have been the case in the 2004 policy, it is not the case under the current Policy. 
  3. [47]
    Ms Norton's point here is that:

Just because a person has not done ‘a [College] submitted previous English language proficiency test result’ due to the fact that the previous registration was prior to the requirement of such testing, the person should not be precluded from exemption by living in English speaking countries.[21]

  1. [48]
    That is a misunderstanding of the meaning of the 'Re-applicant' part of the Policy. As I have analysed above, the College may require a successful ELP assessment can be because of one or both of two criteria, the first of which is that the re- applicant has not taught in an Australian school for one year in the past five years. The College may, in its discretion, require a successful ELP test result on that criterion alone.
  2. [49]
    Ms Norton has not been unlawfully or unfairly penalised under the current Policy because in 2005, she was not required to provide a successful ELP result. In any event, she had obtained a previous IELTS result, dated 19 September 1998. That document does not appear to have been provided to the College, with the documents used to formulate the internal review decision the subject of this review.[22] Even if it was, the result would not forestall the College from applying the first criterion for a successful ELP test, on the basis that Ms Norton had not taught in an Australian school for one year in the previous five years. This aspect of Ms Norton's application also fails.   

Issue 2 – whether Ms Norton is sufficiently proficient in English under the legislation

  1. [50]
    In her Replacement Statement, in what she describes as 'Limb 1', Ms Norton submits for the purposes of s 9(1)(d) of the Regulation, that her educational qualifications, working history and life experiences demonstrate 'the ability to communicate in spoken and written English at a professional level with students, parents, teachers and other persons.’
  2. [51]
    Ms Norton's Replacement Statement (and relevant documents attached in support) sets out details of those qualifications, history and experiences, which in summary are:
  • She has completed a four year Bachelor of Arts degree majoring in English from Sichuan Foreign Language Institute, China;[23]
  • She completed a preservice of a one year postgraduate Diploma in Education in Melbourne, Australia;[24]
  • She worked for a total of 10 years as a university English teacher or lecturer at two universities in China;[25]
  • She has spent the majority of her time living in English speaking countries since migration to Australia in 1999;[26]
  • She has worked in a variety of places, in Victoria, Queensland and the Isle of Man, United Kingdom.[27]
  1. [52]
    However, it appears to me that Ms Norton's submissions on her Limb 1 are based on an incorrect understanding of the law. After referencing the effect of s 9(1)(d) of the Regulation, she submits that nothing was 'prescribed' under the Teachers Act, and

therefore there was [sic] no determining parameters for the ability to communicate in spoken and written English at a professional level with students, parents, teachers and other persons. 

  1. [53]
    In the end, Ms Norton submits that it is a matter for the Tribunal to determine her ability to communicate in English under s 9(1)(d) of the Regulation.
  2. [54]
    However, as I have analysed above, the question is not as simple as that.  The effect of s 235 of the Teachers Act and s 33 of the Regulation is that the College is required to adopt the national professional standards, which are the standards made by the Ministerial Council.  Those standards are prescribed by s 33 of the Regulation. The standards provide for the abilities, knowledge and skills required for provisional registration.[28] The evidence of Ms Cole is that the policy aligns with the national professional standards. 
  3. [55]
    It is therefore not the case that there are no 'determining parameters’ on English proficiency for the purposes of s 9(1)(d) of the Regulation.
  4. [56]
    On this limb of her application, Ms Norton asks, rhetorically, 'How can a policy or guideline change legislation?'. The answer is that the policy does not change the Teachers Act or the Regulation, but instead implements that legislation. 
  5. [57]
    In the Tribunal’s review jurisdiction, which is applicable in this case, s 19(a) of the QCAT Act requires me to decide this matter in accordance with the Teachers Act as the relevant 'enabling Act’. Section 19(c) provides the Tribunal has all the powers of the decision-maker who made the decision the subject of review. In other words, I stand in the shoes of the relevant decision-maker, which was the Internal Review Committee which made the internal review decision. I do not have a discretion to ignore the law applicable for the internal review decision. Given the statutory authorisation for the Policy, I propose to apply it.
  6. [58]
    In paragraph 23 of her Replacement Statement, Ms Norton refers to the decision of the Tribunal in Deans v Queensland College of Teachers.[29] In that matter, the Tribunal set aside a decision of the College to refuse application for provisional registration, and instead granted the application. However, that decision involved different legislative provisions to the legislation in Ms Norton's case. In particular, the application in Deans specifically concerned application of s 9(1)(a) of the Teachers Act, which provides alternatives for qualification for provisional registration between those prescribed under a regulation, or alternatively, the person’s educational qualifications and so on, to meet the requirements under the relevant professional standards for provisional registration. There is no such choice to be made in Ms Norton's circumstances. Deans is distinguishable from the present case, and therefore inapplicable.
  7. [59]
    In applying the Policy, given that Ms Norton had not taught in an Australian school for one year in the five years prior to her application, in my view, the College was entitled to require evidence of her ELP. The ELP test result that she provided did not pass the required IELTS standard. In my view, subject to consideration of the remaining issues, Ms Norton has not demonstrated sufficient ELP standards for the purposes of the Policy and s 9(1)(d) of the Regulation. Again, subject to consideration of the remaining issues, the correct and preferable decision was the decision made by the Internal Review Committee of the College, to refuse Ms Norton's application for provisional registration as a teacher.

Issue 3 – The College ignored the fact that Ms Norton was provisionally registered as a teacher in 2005

  1. [60]
    Ms Norton raised this issue in her application to the Tribunal filed on 7 May 2020. She said she was registered as a 'provisional teacher in 2005’[30] under 'the Act 1988’, which I take to be a reference to the predecessor Act to the Teachers Act, which was the Education (Teacher Registration) Act 1988 (Qld). 
  2. [61]
    In her Replacement Statement,[31] she says she was 'rolled over' to the College in 2006. This appears to be a reference to s 314 of the Teachers Act as a transitional provision through which teachers registered under the 1988 Act were taken to be registered, initially, under the then new Teachers Act when it commenced. However, as Ms Norton notes in her Replacement Statement,[32] that registration expired in 2007.  
  3. [62]
    In her application to the Tribunal, Ms Norton says that her previous registration 'was ignored during the internal review process'. I disagree.
  4. [63]
    Page 2 of the internal review decision records that the Internal Review Committee acknowledged the points raised by Ms Norton regarding legislative and policy requirements in place when she was first registered in 2005 and also those requirements at the time of her 2019 application. The decision continues that consideration was given to the fact that her initial registration was granted 'under mutual recognition'. The Internal Review Committee considered Ms Norton's submission that she was a 're-applicant' and her submission that she was entitled to be exempted from ELP requirements under the Policy.
  5. [64]
    The internal review decision then goes on to apply that part of the Policy which applies to applicants 'previously registered with the [College]'. 
  6. [65]
    As I have analysed above, the College specifically applied that part of the Policy which applies to 'Re-applicants'. Relevantly, it provides that:

Individual assessment will be undertaken on applications received from applicants previously registered with the [College] ...

(added emphasis)

  1. [66]
    Far from ignoring Ms Norton's status as someone previously provisionally registered by the College, the College specifically applied that part of the Policy which relates to applicants who have previously being registered by the College.

Issue 4 – College use of the English proficiency assessment report

  1. [67]
    Ms Norton raised this issue in her application to the Tribunal, and expanded on it in paragraphs 70-74 of her Replacement Statement. In summary, the issue she raises is that she provided the College with a copy of her IELTS test report, which recorded a failure to achieve the required standard, and was provided by her to the College for the purposes of seeking an extension of time to provide information sought by the College. Ms Norton is aggrieved because the College took the test results into account in refusing her application for registration, and she says that this was an incorrect use of the test results. 
  2. [68]
    In more detail, the relevant paragraphs from Ms Norton's Replacement Statement are as follows:
  1. 70.The Applicant requested a second further extension of time by email dated 27/9/19 to Marilyn Cole explaining that she was waiting for a remark of an IELTS result. The Applicant received a reply from Marilyn Cole on the 9/10/2019 requesting that she send the IELTS test report and would advise whether an extension of time is approved. On the 9/10/2019 the Applicant got her husband to forward the IELTS test report by email (Attachment 23) in good faith that the information provided was for a request for an extension of time. At the time the Applicant thought that the request for the IELTS report was unnecessary as it did not meet the required level and hence a remake [sic - it appears to me this is intended to read 'remark’] was in process.
  2. 71.No response was received by the 17/10/2019 regarding the second extension of time request.
  3. 72.No grounds were provided by [the College] when refusing the extension of time. The Act states 17(6) The college must not refuse a reasonable request for an extension of time.
  4. 73.[The College] notice dated 23/10/2019 used the IELTS report as the basis to refuse the application. I had provided the IELTS report for an extension of time request which was then spuriously used in the decision. 
  1. [69]
    It will be necessary for me to compare these assertions with the documents filed by the College to the Tribunal[33] setting out the documentary history leading to the internal review decision which is the subject of this review application.
  2. [70]
    The chronology described by Ms Norton above was preceded by an email from Ms Cole to her dated 17/7/2019. That email attached a letter from the Executive Manager, Registration, of the College informing Ms Norton that her qualifications met the requirements of s 9(1)(a)(i) of the Teachers Act. The letter then referred to the Policy and required Ms Norton to provide evidence of ELP by one of the accepted English language assessments in accordance with the policy. The letter informed Ms Norton that the information required must be received by no later than 17/9/2019. If she failed to provide that information by that date, she was informed that her application for registration would be decided on the basis of the information available to the College at that time. 
  3. [71]
    Ms Norton responded in her letter dated 30/8/2019 requesting that the College extend the time from 17/9/2019 as she was having difficulty obtaining evidence of ELP.
  4. [72]
    An email from Ms Cole to Ms Norton dated 9/9/2019 attached a further letter from the Executive Manager, Registration, of the College. The letter notified Ms Norton that pursuant to s 17 of the Teachers Act, the College required evidence of ELP so that it could decide her application. The letter advised Ms Norton that the information must be received by no later than 17/10/2019, and therefore granting an extension of time as sought by Ms Norton. Finally, the letter said that should Ms Norton not be able to provide the information required by 17/10/2019, Ms Norton may contact Ms Cole to request an extension of time.
  5. [73]
    The next document in the chain of correspondence is the email from Ms Norton to  Ms Cole dated 27/9/2019 as referred to by Ms Norton above. The email tells Ms Cole that Ms Norton had received her IELTS result and 'I am short by 0.5'. Ms Norton tells Ms Cole that she was requesting a review and re-mark on the result and that process takes a couple of months. Ms Norton then asked Ms Cole 'would you allow me a further extension time?’.
  6. [74]
    Ms Cole responded in her email dated 9/10/2019 asking Ms Norton to provide a copy of her IELTS test report. She also said ‘Once it has been received, I will advise whether a further extension is approved'.
  7. [75]
    As Ms Norton says in paragraph 70 of her Replacement Statement, her husband provided a copy of the IELTS results in an email to Ms Cole on 9/10/2019. 
  8. [76]
    The final document in the relevant chronology for this issue is an email from Ms Cole to Ms Norton dated 23/10/2019, which attached the initial decision by the College refusing Ms Norton's application for registration on the basis that the IELTS results showed that Ms Norton had not met the requirements for ELP under the Policy.
  9. [77]
    The covering email from Ms Cole referred to the IELTS results and that Ms Norton was seeking a review and re-mark of the test. However, because Ms Norton's IELTS results did not achieve the minimum required score in three of the four skill areas, a further extension of time was not granted. Accordingly, when in paragraph 71 of her Replacement Statement, Ms Norton says no response was received regarding her second extension of time request by 17 October, that is not the complete picture. A decision was made on the further request for an extension of time, on 23 October rather than 17 October. The only significance of the date 17 October was that in the letter from the Executive Manager, Regulation, dated 9/9/2019, Ms Norton was told that the evidence of ELP must be received by the College no later than that date.
  10. [78]
    The statutory framework for the requirement by the College for information about ELP results and Ms Norton's response is contained in s 17 of the Teachers Act. Section 17(1) is the main operative provision, and it is as follows:

17 College’s power to obtain further information etc. from applicant

  1. (1)Before deciding an application for registration or permission to teach, the college may, by notice, require the applicant togive the college, within a stated reasonable time, further information or a document the college reasonably requires to decide the application.
  1. [79]
    The purpose of the provision is therefore to enable the College to obtain information that it reasonably requires to decide an application for registration or permission to teach.
  2. [80]
    Relevantly, s 17(4) allows an applicant for registration to seek an extension of time in which to provide the further information sought by the College. Section 17(6) provides that the College must not refuse a reasonable extension of time sought by an applicant, to provide that information. Section 17(7) provides that the College may give more than one requirement for additional information and more than one extension of time. 
  3. [81]
    Applied to the chronology of correspondence set out above, the College required information under s 17(1) to decide Ms Norton's application, namely the results of a test that demonstrated her ELP. Ms Norton provided that information within the required timeframe. What she then asked for was a further extension of time to provide a re-mark of that assessment. However, that is a request for an extension of time for a purpose beyond s 17, and therefore to which s 17(6) does not apply.
  4. [82]
    In my view, there was no contravention of s 17 in Ms Cole’s refusal of Ms Norton's second request for an extension of time, contained in Ms Cole's email dated 23/10/2019.
  5. [83]
    Furthermore, there was no wrongful or 'spurious’ use of the IELTS results provided by Ms Norton to the College. Those results were the very thing required by the College to be produced by Ms Norton under s 17(1). It is true that in conjunction with providing those results, Ms Norton asked for an extension of time, so that she may provide the results of a re-mark of the IELTS assessment. However, that was outside the scope of s 17, and the obligation of the College to give a further extension of time.
  6. [84]
    The matter does not end there. Paragraph 32 of Ms Cole’s affidavit filed in the Tribunal and provided to Ms Norton describes her response to the further extension of time sought by Ms Norton, for the purposes of a re-mark of her IELTS results. Ms Cole describes how she conferred with her Team Manager about the request for the further extension of time, and they noted that, as described above in Ms Cole’s email dated 23/10/2019, Ms Norton had not obtained the minimum required scores in three of the four skill areas. Importantly, however Ms Cole then says that:

… in our experience it was rare for IELTS to raise scores following a review and remark. 

  1. [85]
    There is no evidence that this view was put to Ms Norton for comment, or response. However, on Ms Cole’s own evidence, this view influenced the decision to refuse the further extension of time, albeit that in my view, the further extension of time sought by Ms Norton was outside the scope of s 17. To the extent that the view influenced the decision to refuse the further extension of time, it was adverse to the interests of Ms Norton. In its own terms, a view that a successful re-mark was 'rare' does not preclude the possibility that at least on some occasions, there have been successful re-marks.
  2. [86]
    On the face of it, and if the matter was left there, taking into account a view that was not put to Ms Norton for comment leading to a denial of the opportunity for a successful re-mark to be submitted to the College, was a breach of the requirements of natural justice which could call for the intervention of the Tribunal to set aside that College’s decision on the further extension of time sought, and perhaps even the decision to refuse the application for registration.  
  3. [87]
    However, the matter does not end there. The initial decision made by the College to refuse registration on 23/10/2019 informed Ms Norton of her entitlement to seek an internal review of that decision. Ms Norton took up that opportunity in her application for internal review dated 5 November 2020. She withdrew that application on 8/12/2019[34] and subsequently made a further application for internal review received on 16/2/2020.[35] 
  4. [88]
    The scope of the internal review conducted by the Internal Review Committee is described in s 210B(3) of the Teachers Act. The Committee 'must' conduct the review on the material before the original decision-maker, the statement of reasons for the original decision, and:
  1. (c)
    any other relevant material the review committee allows including material in any submissions made before the end of the submission period.

In other words, an applicant may seek to put additional material before the Committee.

  1. [89]
    Ms Norton did in fact submit additional material to the Committee. In a submission accompanying her application for internal review dated 16/2/2020,[36] Ms Norton referred to the further request for the extension of time when she said she was awaiting the result of the IELTS re-mark, but she did not provide any evidence or references about the outcome of any re-mark.
  2. [90]
    On 25 February 2020, the College told Ms Norton that the Internal Review Committee would review the initial decision on 27/3/2020, and gave her the further opportunity to make oral or further written submissions about the application for internal review.[37] On 15/3/2020, Ms Norton provided a further written submission to the Internal Review Committee. Again, she did not reference or provide a copy of any successful re-mark.   
  3. [91]
    For this review by the Tribunal, on 20/10/2020, the Tribunal directed that Ms Norton file any further material she wished to, by 20/11/2020. Although the Tribunal stands in the shoes of the Internal Review Committee, and is therefore able to consider any additional evidence that Ms Norton wished to file on a successful re-mark, she did not file any such material. 
  4. [92]
    The High Court has held that the requirements of natural justice must be looked at across the entire decision-making process.[38] In the circumstances of this case, that includes not only the process by which the original decision was arrived at, but also the internal review process, and the application to the Tribunal. Although Ms Norton complains but she was not given an extension of time to allow her to submit the results of a re-mark of her IELTS assessment, she had the opportunity to do that in applying for internal review, and subsequently her application to this Tribunal. She did not choose to do so. Any problem with the refusal of Ms Cole to allow a further extension of time because of the rarity of successful re-marks was cured by the two opportunities Ms Norton had to file the results of a successful re-mark. This ground of the application to the Tribunal also fails. 

Issue 5 – participation of legal officers in the internal review process

  1. [93]
    Ms Norton's application to the Tribunal on this issue sets out two aspects:
    1. (a)
      a legal officer of the College claimed to be considering her application for internal review, when in fact the consideration was to be by the College. Ms Norton submits that a legal officer wrote to her 'with intimidation indicating that I withdraw the application’ and;
    2. (b)
      The College had its Principal Legal Officer attend the internal review without notification to Ms Norton nor an invitation for her to attend other than an oral submission.
  2. [94]
    Ms Norton elaborated on the first of these aspects in her submission accompanying her second application for internal review on 16/2/2020.[39] The concern she raised was about an email dated 12/11/2019 from the then Executive Manager, Legal & General Counsel (General Counsel), following her filing her initial application for internal review.
  3. [95]
    Ms Norton submitted that the email ‘was a form of intimidation'. Ms Norton notes that the first sentence of the email states that the application for internal review was referred to the College’s General Counsel for consideration. She points out that the end of the first paragraph of the email states that the General Counsel sought a response to the matters contained in it by close of business the next day. Ms Norton says that she would understand if the College required a legal perspective for an application for internal review. However, she says that 'when his consideration is provided to an Applicant it is wrong on many levels’.
  4. [96]
    Ms Norton refers to an email dated 13/11/2019 she sent in response to the email from the General Counsel. What she appears to regard as 'intimidation’ is a request in the email from the General Counsel to withdraw her application for internal review. Ms Norton also wrote that she asked the General Counsel if he was a member of the Internal Review Committee and received a response that he was not. 
  5. [97]
    The email from General Counsel dated 12/11/ 2019 was provided to the Tribunal with the documents filed by the College.[40] It is not intimidatory. Nor does it purport to exercise the jurisdiction of the Internal Review Committee. The purpose of the email is stated to be to confirm the intent of Ms Norton's application for internal review having regard to the matters raised in the email. The email from the General Counsel set out a view that the initial decision by the College to refuse registration dated 23/10/2019 was not invalid. This is a response to a submission accompanying Ms Norton's first application for internal review dated 5/11/2019 that the initial decision was invalid.[41] 
  6. [98]
    The email from the General Counsel goes on to say that the information held by the College including the IELTS reports would be retained. That was apparently a response to Ms Norton’s submission dated 5/11/2019 that the IELTS report was to be returned to her and removed from her file held by the College, or quarantined for use only for any future extension of time request.[42]
  7. [99]
    The context of the request by the General Counsel about whether Ms Norton wished to withdraw her application for internal review was against the following content of the email by the General Counsel:

If I understand your AFIR[43] correctly, your intent is that you would seek to withdraw consideration of registration if the re-mark is not to the level of current [College] policy.

Insofar as your AFIR is concerned, if you were not to provide the re-mark or were not able to provide it by the date of the IRC[44] consideration, any IRC consideration would be of the IELTS results that are already held by the [College] (including the IELTS report provided on 9 October 2019 which you want returned).

My question is that if you are unsure whether you will be able to provide a re-mark or you do not or are not able to provide the re-mark to the IRC in the time-frame, do you want the internal review process to proceed?[45]

  1. [100]
    The apparent reason for the urgency of response sought is that the Internal Review Committee is limited to 60 days to complete its internal review and the College is unable to extend it.[46]
  2. [101]
    The matters about which Ms Norton complains concerning the email from the College’s General Counsel are not matters that relate directly to the internal review decision which is the decision under review by the Tribunal. That email preceded the internal review decision by some months. This aspect is irrelevant to the application to the Tribunal to review the internal review decision. In my view, the Tribunal has no jurisdiction to review that correspondence. In any event, I do not characterise the content of that email as intimidating as Ms Norton asserts, or in any way incorrect.
  3. [102]
    The second aspect of this issue is a complaint by Ms Norton about the involvement of lawyers from the College in the internal review process. Her submissions on this aspect are contained in paragraphs 83-106 of her Replacement Statement. 
  4. [103]
    Ms Norton's information about this aspect, concerning the involvement of lawyers and other employees of the College came from an application for access to documents on her application to the College for registration made to the College under the Information Privacy Act 2009 (Qld). She has attached documents she obtained, to accompany her Replacement Statement filed with the Tribunal. Those documents indicate assistance given to the Internal Review Committee by College lawyers, and other staff of the College.
  1. [104]
    I do not think that there is anything irregular or untoward in the College lawyers and other staff assisting the Internal Review Committee. There is nothing in chapter 8, part 1(‘Internal reviews’) of the Teachers Act that requires that the Internal Review Committee must be completely independent of the College. Indeed, s 210A(3) requires that the Committee consist of at least three people, two of whom must be members of the College Board, and the third, appointed by the Board, as chairperson.[47] The only provision in the Teachers Act about independence of the Internal Review Committee from the College is in s 210A(5) which provides that if practicable, the Committee should not include a person who was involved in the making of the original decision to which the application relates. That limitation, of course, concerns membership of the Committee, and not staff of the College who might be asked to assist the Committee.
  2. [105]
    In her submissions, Ms Norton summarises the documents she obtained under the Information Privacy Act about lawyers and other staff of the College assisting the Internal Review Committee with the internal review and asks why was ‘legal’ so heavily involved in the review process?
  3. [106]
    Evidence is provided in answer to this question by the affidavit of Elizabeth Jane Houston sworn on 13 January 2021 and filed in the Tribunal. At the time of swearing the affidavit, Ms Houston was the Acting Executive Manager, Legal employed by the College. She is a legal practitioner. 
  4. [107]
    Ms Houston deposes to the role of a College legal officer in the internal review process.[48] She states that the role includes providing comments on draft documents, including a case summary, minutes of meetings and notices. During the meeting of the Internal Review Committee, the role of a legal officer is to provide assistance to the Committee in fulfilling its statutory obligations under the Teachers Act. The role includes offering advice relevant to ensuring that principles of natural justice and procedural fairness are adhered to.
  5. [108]
    The legal officer does not have an advocacy role in the process and does not assert a view on what decision should be reached by the Committee.[49]
  6. [109]
    This evidence is unsurprising, and the role of a legal officer would assist the Internal Review Committee in reaching a legally correct decision. There is nothing legally erroneous in a legal officer assisting the Internal Review Committee in this way.
  7. [110]
    This challenge to the internal review decision also fails.
  8. [111]
    On this aspect of issue 5, Ms Norton seeks to invoke the effect of s 24(3) of the QCAT Act, which allows the Tribunal to make recommendations to the chief executive of the entity in which the relevant reviewable decision is made, about the policies, practices and procedures applying to reviewable decisions of the same kind. She asks the Tribunal to make a recommendation to reduce the College’s influence over the Internal Review Committee. Given my findings on the substantive issue on this aspect, I do not propose to make any such recommendation.  

Conclusion

  1. [112]
    For these reasons, in my view the correct and preferable decision is the decision which was made by the Internal Review Committee. Under s 24(1)(a) of the QCAT Act, I confirm the decision under review.
  2. [113]
    Of course, Ms Norton is always free to make a fresh application for provisional registration with the College. In doing so, she is free to provide further ELP tests which satisfy the relevant standard.

Footnotes

[1]  Paragraph 30 of Ms Norton's Replacement Statement filed 20 November 2020.

[2]  Attachment 3 to Ms Norton's Replacement Statement.

[3]  The College’s internal review decision dated 15 April 2020, p.2.

[4]  Paragraphs 35 and 37 of Ms Norton's Replacement Statement.

[5]  The policy is contained in pp. 268-270 of the documents filed with the Tribunal by the College as documents used in arriving at the internal review decision.

[6]  The College’s internal review decision, p.2.

[7]  Internal review decision, p.3.

[8]  Section 238(2)(a) of the Teachers Act.

[9]  An acronym for International English Language Testing System - see internal review decision, p.3.

[10]  Internal review decision, p.3.

[11]  Paragraphs 12-13 of the Replacement Statement.

[12]  Paragraph 13 of the Replacement Statement. 

[13]  Affirmed on 15 January 2021.

[14]  Replacement Statement, paragraph 52.

[15]  Ms Cole’s affidavit, paragraph 9.

[16]  Replacement Statement, paragraphs 56-63.

[17]  Replacement Statement, paragraph 64.

[18]  Contained in s 17(1) of the Mutual Recognition (Queensland) Act 1992 (Qld).

[19]  Replacement Statement, paragraphs 65-69.

[20]  Attached to Ms Norton's Replacement Statement as attachment 14.

[21]  Replacement Statement, paragraph 67.

[22]  As filed with the Tribunal on 11 June 2020.

[23]  Attachments 4 and 5 to her Replacement Statement.

[24]  Attachment 1.3, dated 28 April 2004 to her Replacement Statement.

[25]  Paragraphs 40 and 42 of her Replacement Statement.

[26]  Paragraph 37 of her Replacement Statement.

[27]  Paragraph 43 of her Replacement Statement.

[28]  Section 235(5) of the Teachers Act.

[29]  [2010] QCAT 508.

[30] More correctly, provisionally registered as a teacher.

[31]  Paragraph 31.

[32]  Attachment 3.

[33]  On 19 June 2020.

[34]  See paragraph 9 of the affidavit of Shannon Gaye Taylor of the College affirmed on 15 January 2021. At the relevant time, she was employed by the College as Acting Principal Registration Officer and assisted in the administrative arrangements for Ms Norton’s internal review.

[35]  Ms Taylor’s affidavit at paragraph 10. Ms Norton needed an extension of time to apply for internal review more than 28 days after the date of the initial decision. She was granted that extension of time in an email from the Executive Manager Registration dated 6/12/2019. 

[36] Pages 156-160 of the documents filed in the Tribunal by the College on 19/6/2020.

[37]  Pages 174-176 of the documents filed in the Tribunal by the College on 19/6/2020.

[38] Ainsworth v Criminal Justice Commission (1990) 175 CLR 564 at 578.

[39]  Page 158 of the documents filed with the Tribunal by the College.

[40]  Pages 103-104. 

[41]  Pages 101 of the documents filed with the Tribunal by the College. 

[42]  See page 102 of the documents filed by the College.

[43]  Application for internal review.

[44]  Internal Review Committee.

[45]  Bold in original.

[46]  Page 103 of the documents filed by the College and see s 213(2) of the Teachers Act.

[47]  The Board is established under chapter 10, part 2 of the Teachers Act. The Board is the governing body of the College - see s 238(1).

[48]  Paragraph 11.

[49]  Paragraph 12.

Close

Editorial Notes

  • Published Case Name:

    Qing Norton v Queensland College of Teachers

  • Shortened Case Name:

    Qing Norton v Queensland College of Teachers

  • MNC:

    [2022] QCAT 36

  • Court:

    QCAT

  • Judge(s):

    Member Sammon

  • Date:

    19 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ainsworth v Criminal Justice Commission (1990) 175 CLR 564
2 citations
Jump To
Cite 1 - (1990) 175 CLR 564
Cite 2 - (1990) 175 CLR 564
Deans v Queensland College of Teachers [2010] QCAT 508
2 citations
Jump To
Cite 1 - [2010] QCAT 508
Cite 2 - [2010] QCAT 508

Cases Citing

Case NameFull CitationFrequency
Norton v Queensland College of Teachers [2023] QCATA 618 citations
1

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