Lavers v NSW Education Standards Authority

NCAT Administrative and Equal Opportunity|2023-03-22

REASONS FOR DECISION

Scott Robert Lavers (the Applicant) was first accredited as a teacher under the Teacher Accreditation Act 2004 (NSW) (the TA Act) in 2012 on a provisional basis. In 2014, 2015 and 2016 the Applicant was charged with several offences relating to the supply of prohibited drugs and bail breaches. The Department of Education withdrew the Applicant's permission to teach as a casual teacher and temporarily placed him on the Not To Be Employed (NTBE) list maintained pursuant to s 7(1)(e) of the Teaching Service Act 1980 (NSW) (TS Act), and then revoked the Applicant's teacher accreditation on 25 January 2016. The Applicant was convicted on 25 August 2017 and sentenced to an aggregate term of imprisonment of three years, with a non-parole period of 19 months. On 21 February 2018 the Department placed the Applicant on the NTBE list on a permanent basis.
Since his release on parole on 26 September 2017, the Applicant has obtained his Working With Children Check (WWCC) clearance. On 15 August 2022, the Applicant applied to the NSW Education Standards Authority (NESA / the Respondent) for re-accreditation under s 33 of the TA Act. That application was refused on 8 September 2022 (the Decision). The decision to not re-accredit the Applicant to teach in NSW was made on the basis that: You have been charged with multiple offences over a significant period of time which were of a very serious nature. I acknowledge that you have made substantial progress in turning your life around since your imprisonment. However, your past infractions do not meet the standards expected of a teacher in NSW. Any student, parent or community member could perform a simple internet search for your name, and they would access information related to your recent criminal offences that reflects adversely on your professional standing, integrity and suitability as an accredited teacher in NSW.

Review jurisdiction

The Tribunal has jurisdiction to review a decision to suspend a person's teacher accreditation pursuant to s 27(1)(b) of the TA Act. The task of the Tribunal on administrative review is stated in s 63 of the Administrative Decisions Review Act 1997 (the ADR Act): 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 63(1) of the ADR Act requires the Tribunal to determine the correct and preferable decision, based on an assessment of the material before the Tribunal at the time of the Tribunal's review, including any relevant factual material and any applicable written or unwritten law. This may include material not before the primary decision-maker.
The Tribunal is not bound by the rules of evidence in these proceedings but it 'must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined': Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, 493 at [79]. The standard of proof is the civil standard on the balance of probabilities. The applicable principles are those discussed by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, namely, that the strength of evidence needed to establish a fact or facts may vary according to the nature of what it is sought to prove, particularly where as the allegations are serious, and the consequences if those allegations are found to be established are serious.
When conducting a merits review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 (Woodward J). Rather, the Tribunal "stands in the shoes" of the decision maker and is able to inform itself on any matter in such manner as it thinks fit: ADT Act, s 73(2).
The Tribunal may have regard to any policy applied by an administrator except to the extent it is contrary to a 'Government policy' or law or it produces an unjust outcome in the circumstances of the case: ADR Act, s 64(4).

NESA

All teachers in NSW schools and early childhood education centres must be accredited under the TA Act: s 28, TA Act. The TA Act 'must be administered by applying the principle that, in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person are paramount': s 4, TA Act. Pursuant to ss 3 and 6(1) of the TA Act, the Respondent is the authority with the power to accredit teachers in NSW.
The Respondent is a statutory corporation constituted under the Education Standards Authority Act 2013 (NSW) (NESA Act). Its principal objectives include to ensure that teaching quality and professional standards under the Act and other education and teaching legislation are developed, applied and monitored in a way that improves student learning while maintaining flexibility across the entire school education and teaching sector: NESA Act, s 11(1). Its functions include the accreditation of teachers and the development, content and application of professional teaching standards: NESA Act, s 12(2)(c), 12(2)(h).
According to ss 30 - 32 of the TA Act, there are three categories of teacher accreditation: provisional, conditional, and proficient teacher level. The Respondent has the authority to revoke or suspend a person's teacher accreditation on specified grounds pursuant to ss 24 and 24A of the TA Act. Section 24 provides: 24 REVOCATION OF ACCREDITATION (1) The Authority may revoke the accreditation of a person on any of the following grounds: (a) the Authority is satisfied that the person is a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012 , (b) the person is found guilty of an offence punishable by imprisonment for 12 months or more, (c) the person is found guilty of an offence under this Act, (d) the person is found guilty more than once during the period of 5 years immediately before the revocation of any other type of offence that, in the opinion of the Authority, involves an act or conduct that is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (e) the person has: (i) been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or (ii) been included in the list of persons maintained by the Secretary under section 7 (1) (e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service, because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (f) the Authority is satisfied that the person has failed to comply with any condition to which the person's accreditation is subject, (g) the Authority is satisfied that the person has failed to comply with any of the requirements of the professional teaching standards that apply to the person.
Section 24A provides for suspension of accreditation, and review of suspensions: Suspension of accreditation 24A SUSPENSION OF ACCREDITATION (1) The Authority may suspend the accreditation of a person: (a) on any ground on which the Authority may revoke the person's accreditation, or (b) if disciplinary proceedings against the person are pending in relation to alleged misconduct, or (c) if proceedings against the person for an offence are pending and, were the person to be found guilty of the offence, the Authority would have grounds to revoke the accreditation. (2) The Authority must review the Authority's suspension of a person's accreditation at least every 3 months and must remove the suspension in the following circumstances: (a) if the suspension was imposed because of pending disciplinary proceedings and those proceedings have been finalised with no finding that the person has engaged in misconduct, (b) if the suspension was imposed because of pending proceedings for an offence and the person has been found not guilty of the offence or the proceedings have been withdrawn or dismissed, (c) if the suspension was imposed on a ground referred to in subsection (1) (b) or (c) and a finding that the person has engaged in misconduct has been made against the person in the relevant disciplinary proceedings, or a finding of guilt has been made against the person in the relevant proceedings for an offence, but the Authority has not taken action to revoke the person's accreditation within a reasonable period having regard to the circumstances of the case. (4) A person's accreditation is not in force during any period for which it is suspended whether under this or any other section of this Act.
Grounds for suspension and revocation include where a person is found guilty of an offence punishable by imprisonment for 12 months or more, and where a person has been included in the NTBE list maintained under s 7(1)(e) of the TS Act because of any misconduct that, in NESA's opinion, is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach. In exercising its discretion to revoke or suspend a person's teacher accreditation, pursuant to s 24B, NESA considers the following criteria: (a) the nature and seriousness of the conduct concerned, (b) the frequency of the conduct concerned, (c) the recency of the conduct concerned, (d) any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(c)).
Section 33 of the TA Act deals with provisional re-accreditation after revocation. NESA has broad discretion to grant provisional re-accreditation, including in the criteria to apply, any conditions that should apply, and the period of provisional re-accreditation within which the teacher is required to attain proficient accreditation: 33 PROVISIONAL RE-ACCREDITATION (1) This section applies to a person: (a) whose accreditation by a teacher accreditation authority at proficient teacher level has been revoked on the grounds that the person has failed to comply with the continuing accreditation requirements under the professional teaching standards, or (b) whose provisional accreditation under section 30 has ceased because the person has failed to be accredited at proficient teacher level by a teacher accreditation authority within the relevant period under that section, or (c) whose accreditation at any level has been revoked on any of the grounds referred to in section 24 (1) (b)-(g). (2) The Authority may, on application by a person to whom this section applies: (a) provisionally re-accredit the person, or (b) refuse to provisionally re-accredit the person. (3) The Authority may determine the criteria for provisional re-accreditation and the conditions to which a person's provisional re-accreditation is subject. (4) The provisional re-accreditation of a person ceases (unless sooner revoked): (a) at the end of the period determined by the Authority as the person's provisional re-accreditation period, or (b) if the person is accredited at proficient teacher level by a teacher accreditation authority before the end of that period. (5) A reference in any other provision of this Act to provisional accreditation includes a reference to provisional re-accreditation under this section.
Part 4 Division 4 of the TA Act includes provisions for assessing a person's suitability to teach, including where a person applies for re-accreditation under s 33 of the TA Act. In evaluating a person's suitability to teach, NESA is required to check their criminal and disciplinary history: s 36 TA Act, and may decide that a person is unsuitable solely on the basis of their criminal and disciplinary history: s 38A(1)(a) TA Act. NESA may also decide that a person is unsuitable to teach because they are, for another reason, not a fit and proper person to teach: s 38A(1)(c)(i) TA Act.

The TS Act

Section 7(1)(e) of the TS Act provides that the Secretary of the Department of Education has the function "to prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service", the NTBE list.
Section 5A of the TS Act provides: 5A PROTECTION OF CHILDREN TO BE PARAMOUNT CONSIDERATION (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
Section 93A provides that the objects of Part 4A of the TS Act, being "Management of Conduct and Performance", are: 93A OBJECTS OF PART The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, (b) to protect and enhance the integrity and reputation of the Teaching Service, (c) to ensure that the public interest is protected.
Section 94A of the TS Act defines misconduct: 93C MEANING OF "MISCONDUCT" (1) For the purposes of this Part, "misconduct" includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person. (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position. (3) In this section, "internal disclosure" means a disclosure made in good faith by a person regarding the alleged misconduct of another person.

Fit and proper

The question of whether an individual is a 'fit and proper person' has been considered in numerous cases before the courts and the Tribunal. In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at [9], the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability." At [156] - [157], Dixon CJ, McTiernan and Webb JJ said, in relation to the "fit and proper person" test that: 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 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ explained that: 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.
In the same case, Mason CJ stated at [63] that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... 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 ... as a person to be entrusted with the sort of work which the licence entails.
What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennand & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 para [41].
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

Evidence and Submissions

It was undisputed that the Applicant's history included the following: 1. On 23 March 1997, when the Applicant was still a minor, he was charged with offences involving 'threaten violence causing fear', and 'have custody of an offensive implement in a public place'; 2. on 12 November 1998 the Applicant was charged and convicted of offences involving 'possess implements to enter / drive conveyance', for which he was sentenced to a Community Service Order of 150 hours; 3. Between 1 July 2008 and 15 June 2010 the Applicant engaged in conduct which resulted in criminal charges for 7 counts of obtaining a financial advantage from a Commonwealth entity or obtaining a financial advantage contrary to the Crimes Act 1914 (Cth); 4. On 23 June 2009 the Applicant was convicted and sentenced to 150 hours community service and ordered to pay reparations of $15,117,88 in relation to 3 further counts of obtain financial advantage under the Crimes Act 1914 (Cth); 5. On 21 and 22 August 2012 the Applicant resisted an officer in execution of duty, for which he was convicted and received a fine of $600; 6. On 15 January 2013 the Applicant was convicted in relation to the offences described at [26(3)] above and released on recognizance, a 2 year good behaviour bond and ordered to under psychological counselling and treatment and pay a pecuniary penalty; 7. between 6 February 2013 and 2 September 2014, the Applicant engaged in conduct which resulted in a further 3 counts of obtaining a financial advantage from a Commonwealth entity or obtaining a financial advantage contrary to the Crimes Act 1914 (Cth); 8. On 26 July 2014, the Applicant was charged with possessing a prohibited drug and resisting or hindering a police officer in the execution of duty; 9. In around January 2015 the Applicant was found by police in public in an intoxicated state, expressing suicidal intentions and admitting to having consumed alcohol and a range of prohibited drugs, for which he was taken to hospital; 10. In May 2015 the charges laid in July 2014 (at 26(8) above) were withdrawn or dismissed; 11. In July and September 2015 the Applicant was charged with a number of offences for supplying and possessing prohibited drugs, and breaches of bail; 12. The Applicant was taken into custody on 27 February 2016 and released on bail on or around 28 June 2016. In December 2016, while on bail, the Applicant was charged with further offences relating to the supply of prohibited drugs, including a commercial quantity; 13. On 25 August 2017, the Applicant was convicted of: 1. one count of supply a prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Misuse Act) (maximum penalty of 20 years' imprisonment); 2. two counts of supply a prohibited drug (indictable quantity) contrary to 25(1) of the Drug Misuse Act (maximum penalty of 10 years' imprisonment); and 3. four counts of supply a prohibited drug contrary to s 25(1) of the Drug Misuse Act (maximum penalty of 2 years' imprisonment). The offences for which the Applicant was convicted on 25 August 2017 involved him supplying cocaine and methylamphetamine in the Kings Cross and Potts Point areas, while working at a strip club in Kings Cross. Four possession offences and one further supply offence were also taken into account on a Form 1. The Applicant was sentenced to an aggregate term of imprisonment of three years, with a non-parole period of 19 months; 1. On 12 September 2017 the Applicant was convicted of Commonwealth offences of obtaining a financial advantage from a Commonwealth entity to the value of $19,456.33 for the conduct described above at [26(7)]. He was sentenced to four months' imprisonment, released on a recognisance requiring a 2 year good behaviour bond, and ordered to pay reparations; 2. The Applicant was released on parole on 26 September 2017, following which he was found guilty of the following offences: 1. on 1 and 27 December 2017 - two counts of drive vehicle, illicit drug present in blood etc, for which he was sentenced to a $300 fine and 3 months disqualification. The illicit drug was methylamphetamine; and 2. between 16 and 23 June 2018 - two counts of break and enter house etc, steal value less than or equal to $60,000, one count being aggravated, for which he was sentenced to an intensive correction order of 17 months and 15 days aggregate.
At the time that the Applicant was first accredited under the TA Act in November 2012, he had already been convicted of some criminal offences at a State and Commonwealth level. The Applicant worked as a casual high school teacher in various schools teaching history, society and culture, legal studies, and English, 5 days per week. He filled in when other teachers were on maternity leave.
When asked about his criminal convictions, including both his state and federal criminal history, the Applicant stated that "I don't agree with certain facts in there but the charges did happen". He agreed that the criminal history relied on by the Respondent was accurate.
The Respondent submitted that the Applicant had not disclosed or reported his criminal charges or convictions to the Department of Education as required, which demonstrated some dishonesty and lack of candour. At hearing the Applicant stated that he had disclosed his prior criminal convictions when he had first applied for accreditation as a teacher in 2011/2012. He said that: I disclosed my full history. It went to a panel and I was required to make submissions. I was then accredited. I remember writing submissions about it to the Department of Education.
When questioned about each of the Commonwealth convictions and whether he had disclosed them to the Department of Education, the Applicant was usure whether he had specifically disclosed or reported each individual set of circumstances. He said that he was not aware that charges which had the potential for imprisonment of more than 12 months were required to be reported and stated: I was not aware at the time. It's the first time I heard of this now... I was not aware at the time that I was required to disclose those offences. I assumed I was innocent until proven guilty.
When the Applicant completed his re-accreditation application in August 2022 he disclosed some of his criminal history, but did not disclose the Commonwealth offences in his criminal history. Under cross examination he said: …when I filled this out I had my criminal convictions certificate and I just copied that out. It was a NSW Police document. I didn't have my Commonwealth history. I didn't realise there was a separate history with the AFP… I thought the ones which stopped me being a teacher were the relevant ones. I didn't think about the Centrelink ones. In all honesty, it didn't cross my mind. I thought the issue was my criminal history and so I copied it all from my criminal report.
The Applicant denied that he had told students that he had been arrested for supplying cocaine, as alleged by the Respondent. He said that: I spoke to another teacher in the staffroom. I never told a student. I don't recall telling students about my offending. I was teaching legal studies so I may have used an analogy without my name, but I didn't tell the students. I spoke to a teacher in the staffroom and the next day I was suspended.
The Applicant admitted that he was using drugs at the time that he was teaching high school students, but said that he did not use at work, and it did "not really" affect his capacity to do work. He admitted using a gram at a time of cocaine, at night or on weekends. He agreed that in February 2015 he was working in strip clubs and said: There was a time I was teaching casually and working in a club. I'm not sure of the dates.
In November 2017, the Applicant's then legal representatives responded to the Department of Education's intention to place the Applicant on the NTBE list. Their ultimate submission was that the Applicant be afforded the opportunity to have his name removed from the NTBE list after 5 years, and they stated "there is no nexus between the offending behaviour and Mr Lavers position and duties. None of the offences were committed in the context of an educational role or in fact during any type of employment role." When asked about this at hearing, the Applicant stated that he "never let it affect or impact my work. I still went to work every day, with my lesson plans done". When pressed, he stated: I understand I've done the wrong thing. If anything, it means I can help because I've been down the wrong side of the tracks. It's not worth doing what I've done… I can see how parents may judge. I wouldn't discuss it at school.
Following his release on parole on 26 September 2017, the Applicant almost immediately began re-offending. In December 2017 the Applicant was charged with drug driving offences and in June 2018 with break and enter. The Applicant said that he had been using methamphetamines, despite completing a drug and alcohol course while he was in custody. He was under the influence of methamphetamines when he committed the break and enter. He was convicted in 2019 and sentenced to a 17 month intensive correctional order by home detention, which concluded on 3 December 2020. He gave evidence that this involved a 7 or so month residence at Odyssey House at Ingleburn where he had regular contact with psychologists, doctors, nurses, social workers and counsellors, and the last day he used drugs was the day he was arrested for the break and enter. Since leaving Odyssey House he had participated in their outpatient counselling sessions on a weekly basis. He was now employed as a truck driver and underwent mandatory random drug testing, anywhere from 4 times per week to 2 times in six months. He claimed to have never tested positive to these drug tests.
Although he had not committed any criminal offences since 15 August 2022, he had been issued with traffic infringements, including a speeding ticket resulting in the loss of his licence, which was overturned on appeal. He expressed strong intentions to not revisit the criminal conduct of his past and said that he had learned from his mistakes. He was no longer in contact with the people he associated with at the time of his criminal offending. He said there was "nothing in the world which could make me go there again".
The Applicant attributed his drug use, and criminal conduct associated with drug use, to his Obsessive Compulsive Disorder (OCD). His OCD was raised in the context of his criminal proceedings "at sentencing by my lawyer. I'm very private about it". Psychologist reports had been tendered on sentencing to that extent. He was not undergoing any regular or consistent treatment for the disorder other than seeing his local General Practitioner (GP) and self management.
The Respondent submitted that it was not appropriate to re-accredit the Applicant at this time for five reasons: 1. the Applicant's criminal history was very serious, involving multiple instances of supplying dangerous prohibited drugs (methylamphetamine and cocaine) over an extended period of time. The seriousness is reflected in the fact that he received a substantial prison sentence. The Respondent submitted that whilst the offences did not directly involve children directly, their impact on the whole community is such that the public would expect a strong regulatory response against a teacher convicted of such offences. That is especially so when the admission of a teacher into the profession indicates an acceptance of them as a model of appropriate behaviour for children. It would diminish public confidence in the teaching profession if a teacher in those circumstances were allowed re-entry into the profession without a substantial period away from it, in recognition of the seriousness of their behaviour, and in order to denounce it and deter other teachers from engaging in similar behaviour. 2. the offences formed part of a course of conduct that commenced while the Applicant was teaching. That is so notwithstanding that offences punishable by imprisonment for 12 months or more are described as 'serious offences' under the TS Act and are a sufficient basis, without more, for the Department to take disciplinary action against a teacher. His offending behaviour continued after he was informed that the Department had placed him (temporarily) on the NTBE list. 3. The Applicant is alleged to have told students at the school where he was teaching that he had been arrested for supplying cocaine, and appears to have been consuming illicit drugs during the period when he was teaching. These matters raise concerns about the Applicant's capacity to establish and observe appropriate boundaries between his personal life and his professional work. 4. The Applicant did not disclose to the Department his criminal offending in the six months before he was accredited as a teacher. This raises concerns about his candour. 5. While it appears that the Applicant has taken steps towards reformation since leaving custody, there is limited evidence before the Tribunal about these matters, and the evidence that has been presented raises some concerns. For example: 1. The Applicant committed further offences after being released on parole and apparently undertaking or having undertaken drug and alcohol rehabilitation, including driving with methylamphetamine present in his system, and break and enter offences which were sufficiently serious to warrant an intensive correction order (being an order permitted only if an offender is sentenced to a term of imprisonment); 2. it appears to have been submitted by the Applicant and accepted in his sentencing for the Offences that he had 'very serious obsessive compulsive disorder' which contributed to his drug addiction and in turn to his offending behaviour, it is not clear whether he has received or is continuing to receive treatment for that disorder; 3. given the submission made by the Applicant's lawyers on his behalf that his offending had 'no nexus' with his position or duties as a teacher, it is not clear to what extent he has genuine insight into the reasons why his behaviour is problematic from a professional perspective; and 4. given that the Applicant has not worked as a teacher for approximately eight years, it is not clear to what extent he has taken steps to ensure his skills and competencies are at an appropriate level to re-enter the teaching profession.
In relation to the Applicant's accreditation, the Respondent submitted generally: The accreditation requirement under the TA Act functions as a gateway to entry into the teaching profession. A person who is allowed entry to the teaching profession is held out to the public as a 'person worthy of their confidence'. Members of the public, including parents of children in the NSW education system, should be able to have confidence that an accredited teacher has the willingness and capacity to ensure the safety, welfare and wellbeing of the children they teach, to act with integrity, trustworthiness and high moral and ethical values, to comply with relevant standards of practice, and to be an appropriate role model for children and other teachers. Accordingly, in deciding whether a person should be accredited or re-accredited as a teacher, it is appropriate for NESA (and the Tribunal) to have regard to: (1) the need to maintain public confidence in the teaching profession, including by appropriate censure or denunciation of improper conduct and other behaviour that falls short of the high standards that the public is entitled to expect of an accredited teacher; (2) protecting students, colleagues and members of the public from such behaviour by the person in question in the future (that is, specific deterrence); and (3) deterring others from engaging in similar behaviour (that is, general deterrence). These considerations are consistent with the protective principle to be applied in administering the TA Act as set out in paragraph 4 above, and NESA's principal objective of upholding the standards of the teaching profession as set out in paragraph 3 above. They are also consistent with the principles applied in the context of the admission and discipline of members of other professions.

Consideration

The Tribunal's starting point in considering the accreditation of a teacher under the TA Act is expressed at s 4: This Act must be administered by applying the principle that, in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person are paramount.
The Tribunal's focus must therefore be on the safety, welfare and wellbeing of the children or young people who would be subjected to the teacher applying for accreditation, rather than on the rehabilitation or other concerns of the teacher. I agree with the Respondent's submissions as expressed above at 40.
Because the Applicant's accreditation was previously revoked under s 24(1)(e) of the TA Act, the relevant section for the Tribunal's consideration is s 33 of the TA Act. As discussed above at 15-16, s 33 of the TA Act involves a broad discretion. Part 4 Division 4 of the TA Act includes provisions for assessing an individual's suitability to teach, including where an individual is seeking reaccreditation. If an individual is found not to be suitable to teach, their application for accreditation (or re-accreditation) must be refused: s 38A(2)(a) TA Act.
I am willing to accept the Applicant's evidence that he did not, in fact, inform students that he was arrested for supplying cocaine, as alleged by the Respondent. However, his evidence at hearing was that he was using cocaine in the period that he was teaching. Even if the Tribunal accepts that he did not use cocaine during the school day, the Applicant admitted that he did so at night and on weekends, "a gram at a time", which is a reasonable amount. It is likely that this affected him the following day at school. He admitted that he may have referred to his criminal conduct "as an analogy" in the context of teaching legal studies. I therefore share the Respondent's concerns about the Applicant's capacity to establish and observe appropriate boundaries between his personal life and his professional work.
The Applicant was unwilling to accept that his criminal history could reflect adversely on the teaching profession or negatively impact his potential students or their parents. In evidence he suggested that his criminal history could be used as an example of "what not to do", to deter students from similar behaviour. In my view it is completely inappropriate for a teacher to be modelling negative behaviours to students, and the Applicant's evidence on this issue demonstrates a lack of insight into the seriousness of his offending and the impact it could have on others, especially impressionable high school students.
I accept the Applicant's evidence that he disclosed some of his criminal history when he first applied for accreditation as a teacher in 2011/2012, as there is no evidence to the contrary. It is likely, however, based on the Applicant's own evidence, that this disclosure was not complete. I accept that the Applicant's failure to disclose his Commonwealth criminal offences on his latest re-accreditation application was inadvertent, however, this demonstrates to me that the Applicant either did not pay close enough attention to the questions being asked of him, or did not take the offending and his consequent penalties seriously enough to recall them when he was completing the form, or he would likely have recalled that he was charged and convicted of offences beyond those in the NSW Police criminal history report he was using as an aid memoire.
The Applicant has re-obtained his WWCC but has not, since that time, undertaken any work which involves any level of responsibility with children or young people. He has not taught for more than 8 years now, and his training is not current. The Applicant submitted that he required accreditation in order to do a "refresher course", but there was no evidence that he had attempted other forms of skills updating or relevant training.
In his letter to the Tribunal of 7 March 2023, the Applicant attributed his criminal history to a relationship separation: It was a very bad separation to be honest, that affected me quite badly. I found myself being charged with drug offences and I was immediately suspended from teaching. This crushed me… I sadly turned to using drugs to help me cope with the stresses of my life as mentioned I was going through a very bad separation.
This conflicts with the evidence given by him at hearing, and submitted by him previously in the criminal proceedings and in relation to the Department's proposal to place him on the NTBE list, where his offending was attributed (at least in part) to his OCD. When asked in cross examination how the Tribunal could be confident he wouldn't relapse, he said: With OCD something becomes a habit which you can't control. Illegal drugs spiral that times 100. Now, drugs would be last thing I would do because they would escalate my OCD.
I share the Respondent's concerns that the Applicant's efforts at rehabilitation do not go far enough to convince anyone with information about his criminal history - which includes the general public, on account of reports of his criminal history remaining accessible online - that he is sufficiently reformed so as to counteract the negative impact of his past conduct. Although he maintains regular contact with Odyssey House and its services, he has not provided the Tribunal with any evidence of ongoing individualised therapy or its results. He is not undergoing any treatment for OCD, the condition he claims contributed to his offending and past criminal conduct. Taking into consideration the references and letters of recommendation he provided, there is insufficient evidence demonstrating to the Tribunal that the Applicant has taken any specific positive steps towards rehabilitating his character on a personal or professional level. The Tribunal also has concerns that the Applicant demonstrates a significant lack of insight into the seriousness of his offending, especially in the context of the teaching profession.
I agree with the Respondent's submissions that the Applicant's criminal history is significant. It occurred over a lengthy period of time, involved a broad range of criminal conduct, and resulted in convictions for serious offences, a term of imprisonment, as well as other penalties such as a lengthy intensive correction order. It also included offences committed while the Applicant was on bail or parole. I accept that some of the offending was committed in the context of substance abuse or addiction, but this does not mitigate the seriousness of the conduct in the context of determining the Applicant's suitability to teach students.
A relatively short period of time has passed since the Applicant was last released on parole. A substantial period of 'blameless conduct' is required, in addition to substantial evidence of rehabilitation and reformation of character, before the public could possibly regain confidence in the Applicant's suitability to teach.
I agree with NESA's submission that: … in a profession where trust and modelling appropriate behaviour are foundational, it is appropriate that criminal behaviour should weigh heavily upon any decision as to whether a person should be or remain accredited as a teacher. The requirement to take criminal history into account in assessing a teacher's suitability under the TA Act is a statutory recognition of this weight.
Section 38A(1)(a) of the TA Act provides a basis by which an individual's criminal history is sufficient, in and of itself, to make an individual not suitable to teach. In my view the Applicant's criminal history is serious enough for this provision to apply, and I find that the Applicant is not suitable to teach pursuant to s 38A(1)(a) of the TA Act.
Even if the Applicant's criminal history was not considered sufficient to engage s 38A(1)(a) of the TA Act, in my view the evidence before the Tribunal also demonstrates that the Applicant is not a fit and proper person pursuant to s 38A(1)(c)(i) of the TA Act.
As the Applicant is found not to be suitable to teach, his application for re-accreditation must be refused pursuant to s 38A(2)(a) TA Act.
In those circumstances the correct and preferable decision is for the Tribunal to affirm the Respondent's decision to refuse the Applicant's re-accreditation.

Orders 1. The Respondent's decision is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 05 July 2023 - Paragraph 42 should refer back to paragraph 40, not 39 as directed from the Member DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2023

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (11)

Cited By (2)