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Queensland College of Teachers v CMF  QCAT 137
Queensland College of Teachers
Occupational regulation matters
On the papers
Senior Member O’Callaghan
23 May 2016
4:00pm on 20 June 2016.
Teacher disciplinary matter - time for determining fitness to teach – construction of s 92 of the Education (Queensland College of Teachers) Act 2005 (Qld) – interpreting s 92(1)(h) in the context of s 92(3) – meaning of ‘unfit to teach’ in s 92(1)(h).
Education (Queensland College of Teachers) Act 2005 (Qld) ss 48, 92, 158
Lee v NSW Crime Commission  HCA 39, (2013) 251 CLR 196
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490
Queensland College of Teachers v GHI  QCAT 182
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- On May 2013, CMF’s registration was suspended by the Queensland College of Teachers pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘EQCT Act’) because he had been charged with a serious offence. The criminal proceedings concluded in April 2015. There were two jury trials, both of which failed to achieve a unanimous verdict. The prosecution then presented a nolle prosequi ending the prosecution.
- On 11 May 2015, the Queensland College of Teachers made a disciplinary referral to QCAT for it to decide whether a disciplinary ground is established against the teacher and what the sanction should be.
- The hearing in this matter, to be determined on the papers, was adjourned on 22 February 2016.
- On 8 March 2016 the Tribunal made Directions that both parties were to file submissions in the Tribunal addressing the following issues:
- (i)at what time is CMF’s “unsuitability to teach” to be assessed; and
- (ii)whether the effect of s 92(2) of the EQCT Act is to deem the teacher “unsuitable to teach” and, if not, what is the effect of s 92(2).
- CMF was also required by the Directions to provide a copy of a report from a psychologist as to his current suitability to work in a child-related field or to advise that he did not intend to provide such a report.
- Submissions were received by the Queensland College of Teachers on 22 March 2016 and on 30 March 2016 CMF joined in those submissions.
Time for determining suitability to teach
- In Queensland College of Teachers v GHI it was held that the relevant time for determining whether a person is not suitable to teach is at the date of the hearing.
- There it was held that:
- (i)The relevant time for determination was the time of the hearing;
- (ii)The facts forming the basis of the ground for disciplinary action cannot be the sole determinates for finding that the ground has been established; and
- (iii)There has to be some continuing factual element for a person to be found unsuitable to teach at the date of the hearing.
The effect of s 92(1)(h) being taken to apply due to s 92(2)
- Ultimately, the issue to be determined by the Tribunal is whether, under s 158 of the EQCT Act, a ground for disciplinary action against CMF has been established.
- This has given rise to the preliminary issue as to whether, on the proper interpretation of the EQCT Act, CMF must be held to be “unsuitable to teach” under s 92(1)(h) due to s 92(2)(a).
- Section 92(1) of the EQCT Act sets out the grounds for disciplinary action for a teacher. The grounds for disciplinary action are set out in sub-s 92(1)(b) to (j). Subsection 92(1)(h) provides that it is a ground for disciplinary action against the teacher that “the teacher is not suitable to teach”.
- Subsection 92(2) of the EQCT Act sets out circumstances where sub-s 92(1)(h) is taken to apply. Subsection 92(2)(a)(i) provides that one such circumstance is where “the teacher has been charged with a serious offence and the charge has been dealt with”. “Dealt with” is defined in sub-s 92(5)(c) to include circumstances where, in relation to a charge against a relevant teacher for a serious offence, a nolle prosequi or no true bill is presented in relation to the charge. Subsection 92(3) provides that “the object of sub-s 2(a) is “to ensure the circumstances of the charge are examined by the disciplinary committee”.
- There is a tension between sub-s 92(1)(h) and sub-s 92(3). Does the application of sub-s 92(1)(h) mean that if one of the circumstances in sub-s 2(a) apply, the teacher is necessarily “unfit to teach” although, for example, the charge is never proceeded with or the teacher is acquitted? Or, on the proper interpretation of the section, particularly sub-s 92(3), does the disciplinary committee retain the power to find that the teacher is not unfit to teach, after examining the circumstances of the charge?
- In our opinion, the preferable construction is that the disciplinary committee retains, in respect of conduct referred to in sub-s 92(2)(a), an ability to make a determination of whether, in fact, the teacher is unfit to teach. It may do so following the examination of the circumstances of the charge referred to in sub-s (3) of the EQCT Act.
- We are of that view for the following reasons.
- First, in respect of the conduct referred to in sub-s 92(2)(a) of the ECQT Act, the teacher has not in fact been proven to have committed any offence. Although charged, he or she has been acquitted of the charge; or the charge has been withdrawn or dismissed; or the nolle prosequi or no true bill has been presented. Subsection (3) recognises the obligation of the disciplinary committee to examine the circumstances of the charge. It may sensibly be inferred that notwithstanding the matter has been “dealt with” without a conviction, the disciplinary committee has power to find the teacher “unfit to teach”. Conversely, the section leaves open in our opinion the power of the committee to find otherwise. Such an interpretation is consistent with the presumption of innocence. It does not, in our view, offend the objects of the ECQT Act to permit a teacher to teach if, after examination of the circumstances of the charge, the disciplinary committee does not form the view that the teacher is unfit to do so.
- Secondly, it is difficult to give effect to sub-s (3), and the objective stated therein, unless the interpretation which we prefer is adopted. Prima facie, all words in a statute must be given effect. To treat a teacher as necessarily “unfit to teach” by reason of the existence of one of the circumstances in sub-s 2(a) would deprive sub-s (3) of effect. Moreover, what would be the purpose of the disciplinary committee examining the circumstances of the charge unless it was to determine fitness to teach.
- Thirdly, sub-s (4) provides that “subsection (2) does not limit the application of subsection (1)(h)”. Thus, a teacher may be held “unfit to teach” by the disciplinary committee for reasons other than those in sub-s 2(a). The interpretation of s 92 which we prefer is consonant with the power of the disciplinary committee to examine circumstances and make a determination of fitness or otherwise outside the circumstances in sub-s 2(a).
- The drafting of the section is not as clear as it might be. However, for the reasons above, we are of the view that the existence of one of the circumstances in sub-s 2(a) does not necessarily render the teacher “unfit to teach” and that the disciplinary committee has the obligation to examine the circumstances of the charge and to determine whether the teacher is unfit to practice, or not.
- The hearing of the substantive referral will now be resumed by the Tribunal on the papers.
- In this regard (because of our findings on the preliminary issue), we will allow both parties a further 21 days to file any final submissions before that hearing.
 QCAT 182; Queensland College of Teachers v Osborne  QCAT 471; Queensland College of Teachers v Segger  QCAT 690.
Queensland College of Teachers v GHI  QCAT 182 at .
Lee v NSW Crime Commission  HCA 39, (2013) 251 CLR 196.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 510 per McHugh, Gummow, Kirby and Hayne JJ.
- Published Case Name:
Queensland College of Teachers v CMF
- Shortened Case Name:
Queensland College of Teachers v CMF
 QCAT 137
Senior Member O'Callaghan, Member Traves, Member McDonald
23 May 2015