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  • Unreported Judgment

Queensland College of Teachers v PPL

 

[2019] QCAT 278

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Queensland College of Teachers v PPL [2019] QCAT 278

PARTIES:

Queensland College of Teachers

 

(applicant)

 

v

 

teacher PPl

 

(respondent)

APPLICATION NO/S:

OCR243-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 August 2019

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. The suspension of the registration of Teacher PPL as a teacher is continued.
  1. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify Teacher PPL, Teacher PPL’s spouse or the relevant school.

CATCHWORDS:

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – training and registration of teachers – suspension of teacher – where charged with serious offence – whether exceptional case – whether suspension should continue

Criminal Code (Qld), s 315A(1)

Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50, s 53, s 54, s 55, Schedule 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Working with Children (Risk Management and Screening) Act 2000, s 167

Baker v The Queen (2004) 223 CLR 513

DA v Director-General Department of Justice and Attorney-General [2017] QCAT 292

Queensland College of Teachers v Teacher AE [2017] QCAT 292

Queensland College of Teachers v Teacher EDC [2019] QCAT 144

Queensland College of Teachers v Teacher S [2013] QCAT 361

R v Kelly (Edward) [2000] QB 198

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1

REPRESENTATION:

 

Applicant:

Clarissa Connell, Principal Legal Officer, Queensland College of Teachers

Respondent:

A.E. Knott, Holding Redlich

APPEARANCES:

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

  1. [1]
    The Queensland College of Teachers (‘the College’) suspended Teacher PPL’s teacher registration on 4 July 2019 pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’), on the grounds that the Teacher had been charged with a serious offence within the meaning of s 167 of the Working with Children (Risk Management and Screening) Act 2000; namely, choking, suffocation or strangulation in a domestic setting pursuant to s315A(1)(a)&(b)(i)of the Criminal Code (Qld). It is alleged that the offence occurred on 21 May 2018. He was arrested on 6 March 2019.
  2. [2]
    By s 48 of the Act, the College must suspend the registration of an ‘approved teacher’ immediately after becoming aware that the teacher is charged with a ‘serious offence’.[1] Notice of the suspension is given to the teacher pursuant to s 50(1) the Act, which notice must include a statement that the Queensland Civil And Administrative Tribunal (‘QCAT’) will review the continuation of the suspension to decide whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.[2]
  3. [3]
    In accordance with s 50(5) of the Act, the College has referred the continuation of the suspension to QCAT for review pursuant to s 53 of the Act. By s 53(1) the Tribunal must decide whether to continue the suspension, while s 53(3)(a) requires the Tribunal to continue the suspension unless satisfied that the matter is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
  4. [4]
    As required by s 54(1)(a) of the Act, directions were made by the Tribunal inviting the Teacher to show why the matter is an exceptional case in which the best interests of children would not be harmed if the suspension of the registration or permission to teach were ended.[3] Submissions were received from the Teacher’s legal representative on 19 August 2019, submitting that this is an exceptional case. In response, the College has submitted that this is not an ‘exceptional case’ within the meaning of the Act.
  5. [5]
    Supported by an affidavit of Teacher PPL, it is submitted on his behalf that this is an exceptional case, as:
    1. (a)
      Guilt and the alleged conduct are denied;
    2. (b)
      The Teacher is ‘unaware of any suggestion that a child was present or in any way involved’;
    3. (c)
      The teacher is ‘unaware of the allegation (as to the alleged offence) having been made prior to 1 March 2019’, in the context of the date of the alleged offence being 21 May 2018 and ‘a family law dispute involving his wife having left in October 2018’.
    4. (d)
      There is nothing in the material filed by the Applicant relating directly to either his professional conduct or his conduct to, or in the presence of, children more generally;
    5. (e)
      The teacher’s vulnerability, ‘especially given the difficulty of recovery if he is unable to teach for the next several years’.[4]
  6. [6]
    In response, the College submits that the charge against the teacher involves physical violence and that the ability to maintain physical and emotional control is vital as a teacher and working in a child related environment. Reference was made to two decisions were it was found that an ‘exceptional case’ existed, but which, it was submitted, could be distinguished from the present case: Queensland College of Teachers v Teacher S,[5] and Queensland College of Teachers v Teacher AE.[6]
  7. [7]
    In Teacher S, it was noted that the term ‘exceptional case’ is not defined in the Act and that there are no generally applicable rules as to what constitutes an exceptional case.[7]
  8. [8]
    Terms such as ‘exceptional case’ and ‘exceptional circumstances’ are commonly used in legislative provisions. While terms must be construed in the context of the applicable legislation, as noted in R v Kelly (Edward),[8] in the context of sentencing legislation:

We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

The context of the present provision is whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.[9]

  1. [9]
    By s 55(2) of the Act, the Tribunal must order the suspension be ended if satisfied it is an exceptional case. Conversely, the Tribunal ‘must’ decide to continue the suspension unless satisfied that the matter is an exceptional case. It follows that there must be some evidence or material before the Tribunal that would allow the Tribunal to be so satisfied.
  2. [10]
    The fact of denial of allegations underlying a charge does not make a matter ‘exceptional’.  Also, given that the trigger for invoking s 48 of the Act is the laying of a charge of a ‘serious offence’,[10] and given that the range of ‘serious offences’ is diverse, generally it will not be an ‘exceptional case’ simply because the alleged offence was not committed in the presence of children. The legislature has seen fit to include the present offence in the list of serious offences and it is one that may or may not be committed in the presence of children. In the context of other evidence, such as in Teacher S where it was alleged that the complaint was motivated by revenge, the late making of a complaint may carry certain implications.[11] However, in the present case reference is made to ‘a family law dispute involving his wife having left in October 2018’ and it is simply submitted that the teacher is ‘unaware’ of any allegations having been made against him earlier than some 9 months after the alleged events.
  3. [11]
    The remaining issues raised by the teacher are his vulnerability and that there is nothing in the material filed by the College relating directly to either his professional conduct or his conduct in relation to children generally. While the vulnerability of the teacher ought not to be ignored, it is again noted that the question is whether it is an exceptional case ‘in which the best interests of children would not be harmed if the suspension were ended’. In an affidavit filed in this matter, the teacher refers to financial vulnerability and the need to carry out ‘as much work as a teacher as I can’. To the extent that that is a relevant consideration, as noted in the submissions of the College, he does have access to pensions and there is nothing to indicate that he cannot work in another field of employment.
  4. [12]
    The suggested absence of material relating to the teacher’s professional conduct or his conduct in relation to children generally does not assist the teacher. It merely serves to emphasise an absence of material that might or might not point to this being an exceptional case. While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[12] it is not productive to approach the question of whether it is an exceptional case by reference to the concepts of onus and standard of proof, it remains that if a party asserts that this is an exceptional case it behoves that party to point to some evidence or material that would allow the Tribunal to reach the requisite satisfaction. That is not achieved by what is in effect a mere assertion that there is no evidence one way or the other.
  5. [13]
    On the material before me, I am not satisfied that it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
  6. [14]
    I note that under s 55(6) of the Act, Teacher PPL may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that he does not pose an unacceptable risk of harm to children.

Non-publication order

  1. [15]
    Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal can make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal to be identified. The Tribunal may do so on the application of a party or on its own initiative.[13]
  2. [16]
    Both the College and Teacher PPL have made submissions in support of a non-publication order under s 66. Also, a report of a psychologist has been filed in support of such an order, with reference to Teacher PPL’s mental and physical health and the likely impact of publication.
  3. [17]
    On the material provided, I am satisfied that it would be contrary to the public interest for information to be published that may identify Teacher PPL, his spouse or the relevant school. The non-publication order can be revisited in any subsequent disciplinary proceedings.
  4. [18]
    I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.

Footnotes

[1]  As to the meaning of the terms ‘approved teacher’ and ‘serious offence’, see the Act at Schedule 3.

[2]  See s 50(2)(c) of the Act. The review is conducted in the original jurisdiction of the Tribunal: see s 53(2) of the Act.

[3]  The Tribunal Directions were made on 15 July 2019, requiring any submissions to be made by 19 August 2019.

[4]   The reference to ‘recovery’ evidently refers to financial recovery. The submission cross-references to the paragraph in the teacher’s affidavit dealing with the cost and likely length of time for resolution of the criminal charges.

[5]   [2013] QCAT 361.

[6]   [2017] QCAT 292.

[7]   [2013] QCAT 361, [3], citing Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

[8]   [2000] QB 198, 208. Referred to in Baker v the Queen (2004) 223 CLR 513, 573 per Callinan J. See also DA v Director-General Department of Justice and Attorney-General [2017] QCAT 292, [25].

[9]   Section 55(1)9a) of the Act.

[10]   The definition of ‘serious offence’ in the Act, refers to s 167 of the Working with Children Act.

[11]   See Queensland College of Teachers and Teacher S [2013] QCAT 361, [4].

[12]   [2019] QCAT 144, [10]-[15].

[13]  Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher PPL

  • Shortened Case Name:

    Queensland College of Teachers v PPL

  • MNC:

    [2019] QCAT 278

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    30 Aug 2019

Appeal Status

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