Queensland College of Teachers v CMF
[2015] QCAT 389
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- Unreported Judgment
- Queensland College of Teachers v CMF[2015] QCAT 389
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Queensland College of Teachers v CMF[2015] QCAT 389
Queensland College of Teachers v CMF[2015] QCAT 389
CITATION: | Queensland College of Teachers v CMF [2015] QCAT 389 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
CMF (Respondent) |
APPLICATION NUMBER: | OCR075-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard |
DELIVERED ON: | 28 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | DISCIPLINARY PROCEEDINGS – TEACHER – APPLICATION FOR INTERIM ORDER TO END SUSPENSION OF TEACHER REGISTRATION PENDING DECISION ON DISCIPLINARY REFERRAL – Where registration of teacher suspended following criminal charges relating to indecent treatment of a child under 12 years – where criminal proceedings concluded with jury discharged after failing to reach a verdict – whether ‘necessary’ to make an interim order to end the suspension Education (Queensland College of Teachers) Act 2005 (Qld), s 12, s 48, s 53, s 55, s 92, s 152, s 158, s 160, s 161 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 58, s 66 Briginshaw v Briginshaw (1938) 60 CLR 336. Queensland College of Teachers v Borchardt [2010] QCAT 432. Queensland College of Teachers v Smith [2011] QCAT 704 |
REPRESENTATIVES:
APPLICANT: | Queensland College of Teachers represented by Mr A White, Principal Legal Officer, Queensland College of Teachers |
RESPONDENT: | CMF represented by Ms R Drew, Tress Cox, Lawyers |
REASONS FOR DECISION
- [1]CMF has been a registered teacher since 1975. For the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’), he is an approved teacher. He retired some 15 years ago from full-time teaching but continued to teach as a supply teacher.
- [2]On 20 May 2013, his teacher registration was suspended by the Queensland College of Teachers (‘QCT’) pursuant to s 48 of the QCT Act, because he had been charged with a serious criminal offence. The charge related to indecent dealing with a child under the age of 12 years. When the QCT referred the matter to the Tribunal in accordance with section 55 of the QCT Act, for it to decide whether to continue the suspension, CMF made no submissions. In the absence of evidence that it was an exceptional case for ending the suspension of his teacher registration in which the best interests of children would not be harmed if the suspension was to be ended, the suspension was continued by the Tribunal.
- [3]The criminal proceedings concluded in April 2015. The criminal matters proceeded before the District Court by way of two jury trials. Neither jury reached a unanimous verdict. The prosecution then presented a nolle prosequi ending the prosecution. Accordingly, CMF was not convicted or acquitted. Subsequently, on 11 May 2015, the QCT made a disciplinary referral to the Tribunal for it to decide whether a disciplinary ground is established against CMF.
- [4]CMF has now filed an application seeking an interim order pursuant to s 152 of the QCT Act ending the suspension of his teacher registration pending a final decision of the Tribunal on the disciplinary referral. The application for an interim order has been listed for hearing before me. The QCT opposes the granting of the interim order sought.
- [5]For the reasons set out in the following paragraphs, I have concluded that the application for an interim order should be refused.
The legislative provisions
- [6]Section 152[1] of the QCT Act provides that the Tribunal may make an interim order exercising a power conferred upon it in s 160 or 161, ‘if it reasonably believes it is necessary to make an interim order exercising a power conferred on QCAT under section 160 or 161’.[2] Section152(6) provides that an interim order means an interim order under s 58 of the QCAT Act. Section 58 of the QCAT Act provides that the Tribunal may make an interim order ‘it considers appropriate in the interests of justice’.[3] The modifying provisions of the QCT Act prevail over s 58 of the QCAT Act.[4]
- [7]Section 92, and in particular by virtue of 92(3) of the QCT Act, (having regard to s 92(2)(a)), ensures inter alia that when a teacher has been charged with a serious offence which has been dealt with, including by nolle prosequi,[5] the circumstances of the charge are examined by a disciplinary committee. This is achieved by the ground for disciplinary action of unsuitability to teach being taken to apply in those circumstances: s 92(3)(a)(iii) and s 92(1)(h).
- [8]Sections 160 and 161 respectively provide for sanctions that QCAT may impose on an approved teacher or a former approved teacher, if it decides a disciplinary ground has been established. Section 160 provides that one of the things QCAT may do, (where an approved teacher’s registration is suspended under s 48), is end the suspension.[6]
- [9]Section 48 of the QCT Act is non-discretionary. It provides that if a teacher is charged with a serious offence, QCT must, immediately it becomes aware of the charge, suspend the teacher’s registration. Under s 52 of the QCT Act, the suspension by QCT remains in place unless QCAT ends it under s 55, 152, 159 or 160, whichever first occurs. Section 159 applies if QCAT finds that no ground for disciplinary action has been established against the teacher.
In what circumstances does the Tribunal have the discretion to grant an interim order?
- [10]CMF submits that in making the determination, the QCT must reasonably satisfy the Tribunal, according to the gravity of the facts to be proven, in accordance with the Briginshaw standard.[7] Because of the potential for serious consequences including cancellation of his registration, he argues that a high degree of satisfaction is required. Accordingly, he says that the QCT must provide sufficient evidence to the necessary standard.
- [11]However, s 152(1) in respect of interim orders provides that the section applies if the Tribunal reasonably believes it is necessary to make an interim order exercising a power, relevantly, under s 160. QCT submits that this amounts to a presumption against granting an interim order and that it is for CMF to satisfy the Tribunal that the interim order is necessary in the circumstances before an interim order may be made. It argues that the ordinary meaning of ‘necessary’ connotes something which is required, relying upon the dictionary definition.[8]
- [12]I accept that at the final hearing of the disciplinary referral, the QCT must satisfy the Tribunal that a disciplinary ground is established on the Briginshaw standard. However, this is not a hearing of the disciplinary referral. In the ordinary course, on the hearing of the interim application, the party seeking the interim order bears the onus of establishing its case.
- [13]Having regard to s 152 of the QCT Act and s 58 of the QCAT Act as modified by s 152, I am satisfied that an interim order may only be made if the Tribunal reasonably believes that it is ‘necessary,’ (rather than ‘appropriate’ as provided for in s 58 of the QCAT Act), pending the final hearing of the disciplinary referral. I accept that the use of the word ‘necessary’ points to a requirement or necessity. That said, as discussed earlier, s 152 of the QCT Act has modified s 58 of the QCAT Act to the extent of the inconsistency between them. In reading s 58 of the QCAT Act as amended to the extent of the inconsistency, I further find that, an interim order may be made, as an exercise of the Tribunal’s discretion, when ‘necessary’ in the circumstances of the case, in the ‘interests of justice’.
- [14]I am not persuaded that the words in s 152(1) create a presumption against making an interim order. However, as a matter of statutory construction, on a plain reading, an interim order may only be made if the Tribunal reasonably believes it is necessary pending the final determination on the disciplinary referral. The use in legislation of the word ‘believes’, rather than ‘satisfied’ is, perhaps, unusual. However, in context, it is clear that Parliament intended that the Tribunal may make an interim order if it is reasonably satisfied of the prescribed matters.
Is an interim order necessary in the circumstances in the interests of justice?
- [15]CMF submits that he is innocent of the allegations and did not conduct himself in an indecent manner towards the complainant Year 5 student. He argues that the evidence against him from the complainant is unreliable and contains inconsistencies and may be vulnerable to mistake (because the complainant’s verbal description of where she was touched varies from her physical demonstration in her video evidence of where she was touched). Further, he points to his otherwise unblemished and lengthy career and absence of other complaints. He says that the evidence falls short of establishing the allegations to the requisite Briginshaw standard. Accordingly, he submits that there is no prospect of him being disciplined by cancellation of his registration. CMF also argues that because he is of advanced years, he does not have many teaching years left and that it would be grossly unfair to continue his suspension.
- [16]A highly speculative and unmeritorious argument is also made about the possible effect of the coincidence of hearings of the Royal Commission into Institutional Responses to Child Sexual Abuse in the same courthouse as the second jury trial into CMF’s charge on the outcome of it. I do not consider it further.
- [17]In considering whether an interim order is necessary, it is not for the Tribunal to make findings of fact. That is a matter for the final hearing.
- [18]However, in this case, CMF made admissions in the criminal proceedings which forms part of the evidence that the Tribunal will have before it at the final hearing. CMF admitted that he had been taught not to touch children at school.[9] He admitted that he had done so on several occasions, in particular, by tickling two year 5 female students on the waist from behind.[10] He also agreed that it was inappropriate to touch a 10 year old girl on her body.[11] On one occasion, he admitted to being alone with one of the students, when he says he tickled her on the waist from behind.[12] The student said that on this latter occasion, he picked her up and placed her on his knee, and that he touched her on her chest on this one occasion.[13] There were no other witnesses to the alleged event, but the student spoke of it to another student immediately afterwards. However, that other student did not provide a statement or evidence in the criminal proceeding.
- [19]QCT submits that if the tickling was inappropriate then CMF’s admissions are of themselves sufficiently weighty, having regard to the protective nature of the suspension order under s 48 of the QCT Act and the limited basis upon which the Tribunal may end a suspension, as to overcome any necessity to end the suspension by way of the interim order. It refers to cases in which the Tribunal has on hearings of disciplinary referrals concluded that touching including, for example, by a teacher placing an arm around a student’s back and moving his fingers in a way that made a student feel uncomfortable was effectively inappropriate. It does appear however that in the cases referred to the incidents of touching were more numerous and extended to touching other parts of the students’ bodies[14] than is contained in the material that is before the Tribunal at this stage.
- [20]Whereas I accept that s 48 of the QCT Act is protective as submitted, it provides for the suspension to occur immediately following serious charges being laid. The Tribunal’s decision about continuation or ending of the suspension under s 55 also occurs very shortly afterwards. However, the QCT Act in s 52, clearly contemplates that the Tribunal may end the suspension by the making of an interim order under s 152. Accordingly, the protective nature of s 48 itself is not a persuasive argument against ending it, if the Tribunal is satisfied that it should be ended under 158 of the QCT Act and s 58 of the QCAT Act as modified.
- [21]That said, CMF has not reasonably satisfied me that it is necessary in the interests of justice in these circumstances to make an interim order ending the suspension. He contends that he is innocent of the allegations which were the subject of the criminal proceeding. However, in considering whether CMF is unsuitable to teach, the Tribunal is entitled to consider whether the teacher behaved in a manner which does not satisfy a standard of behaviour generally expected of a teacher.[15] Apart from the disputed facts in the criminal proceeding, there were admissions in those proceedings by CMF of behaviour he admitted was inappropriate touching, and which it appears, he understood was contrary to expectations of him as a teacher. Further, I am not satisfied that CMF’s age or limited remaining teaching years are relevant considerations in considering whether an interim order is necessary.
- [22]I refuse the application for an interim order.
Non-publication order
- [23]An order, until further order, prohibiting the publication of any identifying information about the teacher was made by Senior Member Stilgoe OAM on 11 May 2015.
- [24]It is also in the interests of justice to prohibit publication of any information which may identify the complainant student, and any other students referred to in the material, and their schools. I make an order to this effect pursuant to s 66 of the QCAT Act.
Footnotes
[1] Section 152(6) provides that an interim order means an interim order under s 58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). However, the modifying provisions of the QCT Act prevail over s 58: s 6(7)(b) and s 7 of the QCAT Act.
[2] Emphasis added by me.
[3] QCAT Act s 58(1): emphasis added by me.
[4] Ibid, s 6(7)(b) and s 7.
[5] Section 92(5) definition of ‘dealt with’ at (c).
[6] QCT Act s 160(2)(b).
[7] Brigishaw v Briginshaw (1938) 60 CLR 336.
[8] Concise Oxford English Dictionary (11th ed), ‘necessary’ is defined as ‘adj. 1 required to be done, achieved or present: needed.’
[9] Bundle of Documents from the Director of Public Prosecutions filed by QCT on 24 September 2015, p186.
[10] Ibid, pp 177-188.
[11] Ibid, p185.
[12] Ibid, pp 172-174.
[13] Ibid, pp77, 85-86.
[14] Queensland College of Teachers v Smith [2011] QCAT 704; Queensland College of Teachers v Borchardt [2010] QCAT 432.
[15] As referred to in QCT Act, s 12(2).