Queensland College of Teachers v CMH
[2017] QCAT 167
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- Unreported Judgment
- Queensland College of Teachers v CMH[2017] QCAT 167
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Queensland College of Teachers v CMH[2017] QCAT 167
Queensland College of Teachers v CMH[2017] QCAT 167
CITATION: | Queensland College of Teachers v CMH [2017] QCAT 167 |
PARTIES: | Queensland College of Teachers (Applicant) v CMH (Respondent) |
APPLICATION NUMBER: | OCR030-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 22 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – Suspension of teacher – Procedure for Suspension under the Education (Queensland College of Teachers) Act 2005 – where Queensland College of Teachers suspended the teacher’s registration on the basis of its belief that the teacher poses an unacceptable risk of harm to children – where the teacher has applied to cross-examine witnesses before the Tribunal – whether the teacher should be permitted to cross-examine witnesses before a decision on suspension Education (Queensland College of Teachers) Act 2005 (Qld), s 49, s 50(5), s 52(2), s 53(b), s 54(1)(b), s 55(3), s 55A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 95 Coutts v Close [2014] FCA 19 Kioa v West (1985) 159 CLR 550 O'Rourke v Miller (1985) 156 CLR 342 Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 |
APPEARANCES: |
|
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
- [1]CMH’s teacher’s registration has been suspended by the Queensland College of Teachers (QCT) pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Act). The QCT says it reasonably believes CMH poses an unacceptable risk of harm to children.
- [2]In the notice to CMH of her suspension, the QCT set out the basis for, and the material relied on to support, its belief. In essence the QCT formed the view that she posed an unacceptable risk of harm because of an allegation that over a period of 18 months she failed to maintain appropriate boundaries with a student. The notice set out some 16 particulars of the allegation. There was also a separate allegation of failure to maintain appropriate boundaries with a number of other students, of which two particulars were provided.
- [3]The material which the QCT says supports its belief includes information obtained from 15 persons, including statements from other teachers and transcripts of interviews with students, teachers and a parent.
- [4]The QCT has (as is required by s 52(2) of the Act) referred the continuation of the suspension of CMH’s teacher’s registration to the Tribunal for review.
- [5]Directions were made by the Tribunal asking CMH to provide submissions as to why she does not pose an unacceptable risk. The QCT was directed to respond.
- [6]The parties were invited to seek an oral hearing regarding the continuation of the suspension. CMH advised that she wanted an oral hearing and also that she wanted to cross-examine the QCT’s witnesses.
- [7]The QCT opposed this course of action. I sought submissions on whether or not it was appropriate for CMH to be able to cross-examine people who had provided information to the QCT at the hearing concerning the continuation of the suspension.
- [8]This decision is the determination of CMH’s application to cross-examine all of the persons referred to in the notice of suspension.
The legislative background and framework
- [9]In order to put this decision in context it is useful to set out the background to the current legislative scheme.
- [10]Prior to September 2016, the threshold for discretionary suspension of a teacher under the Act[1] was that the QCT reasonably believed that the teacher posed an imminent risk of harm to children and that it was necessary to immediately suspend the teacher’s registration to protect children. At that stage, the Tribunal had no jurisdiction to review the suspension. However, the QCT was required by the Act as then in force to refer the matter to QCAT for disciplinary proceedings immediately after the suspension.[2]
- [11]
- [12]Following the referral of the suspension, the Tribunal is required to give notice to the teacher inviting them to make submissions as to why they do not pose an unacceptable risk of harm to children.[5] The suspended teacher has not fewer than 28 days to respond once receiving the notice.
- [13]QCAT must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.[6]
- [14]In decisions concerning the interpretation of these provisions,[7] it has been determined that on the basis of these provisions, the teacher bears the onus of satisfying the Tribunal that they do not pose an unacceptable risk of harm to children.
- [15]The Tribunal’s decision on the continuation of the suspension must be made no later than 14 days after either the Tribunal receives the teacher’s submissions or the time for providing the submissions expires, whichever is the earlier.[8]
- [16]The Act further provides that as soon as practical after making its decision on the continuation on the suspension, the Tribunal must give notice of the decision to the teacher stating the decision, the reasons for the decision and advising the teacher that they may apply within 28 days for the Tribunal to review its decision to continue the suspension.
- [17]If the Tribunal decides to continue the suspension, then the QCT must as soon as practical, if the QCT reasonably believes the matter forming the basis of the suspension is a ground for disciplinary action against the teacher, refer the matter to the relevant body (either the Professional Practice and Conduct Committee (PP&C) or QCAT)[9] for a disciplinary hearing or alternatively authorise an investigation of the matter forming the basis of the suspension.[10]
- [18]If, after referral for disciplinary proceedings, the Tribunal decides that no ground for disciplinary action has been established, it must end any suspension of the of the teacher’s registration.[11]
What is the Tribunal’s task?
- [19]
- [20]Whilst both parties acknowledge this framework, their submissions reveal some confusion about the Tribunal’s task. CMH has referred to the explanatory note to the Amending Bill, which provides (my emphasis):
The Bill requires that if the teacher’s registration is suspended under the new threshold the QCT must immediately refer the decision to suspend to QCAT for a full merits review.[14]
- [21]CMH in her submissions suggests that because of the use of this term in the explanatory note, QCAT is conducting a merits review of the suspension in accordance with the principles that are applicable in the context of a merits review of an administrative decision, including:
- [22]These principles have been adopted in the provisions of the QCAT Act which outline the Tribunal’s review jurisdiction.[18]
- [23]The QCT also says of the proceedings that they consider the review to be a “full merits review’.[19]
- [24]Despite the reference to ‘full merits review’ in the explanatory note this is not what is reflected in the Act. The QCAT Act confers three separate jurisdictions in the Tribunal – original, review and appeal.[20] The principles applicable to a “full merits review” are those applicable in the review jurisdiction, not the original jurisdiction. The Tribunal is not conducting a full merits review to determine whether the QCT’s decision to suspend was the correct and preferable decision. It is conducting a review of the continuation of the suspension in its original jurisdiction. It is determining whether on the material before it if it is appropriate to continue the suspension. That is: does the teacher, on that material, pose an unacceptable risk of harm? If the teacher fails to satisfy the Tribunal that he or she does not pose an unacceptable risk of harm then the Tribunal must continue the suspension.
Should CMH be permitted to cross-examine witnesses?
- [25]The question is whether in satisfying that onus the teacher should be able to cross-examine the people who have provided information to the QCT which caused it to form the reasonable belief.
- [26]Neither the QCAT Act, nor the Act provide any process for the Tribunal’s determination other than to ensure that the teacher must be given the opportunity to show why they do not pose an unacceptable risk.
- [27]The Tribunal’s procedure for making the determination is at the discretion of the Tribunal,[21] subject to the provisions of s 28(2), (3)(a-e) of the QCAT Act. The Tribunal must observe the rules of natural justice, is not bound by the rules of evidence, may inform itself in any way it considers appropriate, must act with as little formality and technicality and with as much speed as the QCAT Act, the enabling Act and a proper consideration of the matters before the Tribunal permit, and ensure as far as practical that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.[22]
- [28]If the parties want an oral hearing, then that will occur. If there is no contest from the teacher as to whether a suspension should continue, then the proceeding may be able to be conducted on the papers.
- [29]The question is whether CMH should be able to cross-examine the 15 people who gave information about the particulars of alleged conduct which gave rise to the QCT’s concerns.
- [30]CMH says that the material provided by the QCT lacks detail and exposes credibility issues, and that in order for her to be afforded procedural fairness she should be able to cross-examine and test the evidence of the makers of those statements and the givers of the information.
- [31]The QCT says that cross-examination should not be permitted in this process for a number of reasons. It acknowledges that the QCAT Act provides in s 95 that a party must be given a reasonable opportunity to cross-examine witnesses. It says however that this is subject to the requirements of the statutory framework governing the process. It says the real issue is whether CMH would be denied procedural fairness if she could not cross-examine any witness. It says that the rules of natural justice do not mandate cross-examination in all cases.
- [32]The QCT refers to a number of authorities to support these submissions.[23]
- [33]It notes that Mason J, as he then was, in Kioa v West[24] observed that the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question. He said:
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. That statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…[25]
- [34]The QCT also refers to the decision of O'Rourke v Miller.[26] In that case Gibbs CJ in an appeal against a decision denying a police constable, in proceedings concerning termination of his probationary appointment, the opportunity to cross-examine persons who made complaints about his behaviour said:
It was submitted that the appellant should have been given an opportunity to cross-examine, or at the very least, to confront, the two girls who made the complaints.
…
Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses… Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances.[27]
- [35]
Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission… Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party… Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.[29]
- [36]I accept that the issue of whether procedural fairness has been afforded in any particular case depends on the circumstances of the case which will include the statutory framework under which the proceedings are bought. I also accept that it may not be reasonable or necessary to ensure procedural fairness for all witnesses to be cross-examined in all Tribunal proceedings.
- [37]I also accept that a critical issue is ensuring in the circumstances of the proceeding that the affected person is given the opportunity to present their case.
- [38]The QCT says that the disciplinary framework contained in the Act is inconsistent with the notion that, in the process of the Tribunal determining whether the suspension should continue, the QCT’s witnesses should be cross-examined.
- [39]They say the suspension under s 49 of the Act is an intermediate step in the disciplinary process. It is a protective provision allowing the QCT to Act quickly to ensure the welfare and best interests of children are protected. They say that in deciding to suspend a teacher’s registration under s 49 they are conducting prima facie assessment of whether the information they have is sufficient to form a reasonable belief that the approved teacher poses an unacceptable risk of harm. They say in deciding to continue the suspension, the Tribunal does not need to be satisfied or make a finding that the alleged conduct occurred.
- [40]Further, the QCT point out that the Act foreshadows that further investigation may follow before disciplinary proceedings are referred to the Tribunal concerning the alleged conduct.[30]
- [41]I also note that the framework envisages a speedy proceeding. The Tribunal is required to make a decision about the suspension no later than 14 days after receiving the teacher’s submissions.[31] If a suspension is continued, the QCT must as soon as practicable either refer a disciplinary matter to the Tribunal or PP&C or authorise further investigation.[32]
- [42]Whilst I accept that procedural fairness would not always require cross-examination of witnesses in Tribunal proceedings, I do not accept, that the statutory framework of the Act would preclude in all cases the cross-examination by the teacher of witnesses whose evidence has formed the basis of the QCT’s belief of unacceptable risk.
- [43]The teacher bears the onus of satisfying the Tribunal at the continuation of the suspension hearing that, despite the QCT forming the reasonable belief that they posed an unacceptable risk, that they in fact do not and the suspension should not continue. It may, in some cases, be appropriate for the teacher to be able to test that evidence to satisfy the Tribunal that the conduct did not occur and the suspension should end, whilst still operating within the statutory framework and the requirements of Tribunal proceedings in s 28 of the QCAT Act.
- [44]The QCT has concerns that if this approach were adopted, the Tribunal would be making findings of fact where investigations may be incomplete. This may, they say, prejudice ongoing investigations, and further have an impact on subsequent disciplinary proceedings where the witnesses may be subject to further cross-examination on the same issues.
- [45]I accept that these are legitimate concerns, but that does not mean that the statutory framework prevents cross-examination in all cases. It depends on the particular case. If there was, for example, a single allegation involving a single witness and investigation into the conduct was complete then it may well be appropriate to hear evidence from the witness and for the witness to be cross-examined. The Tribunal would be able to comply with the tight timeframe for a decision and a finding by the Tribunal as to whether or not the conduct occurred may result in the suspension being lifted, or if not, the matter proceeding to a relatively speedy disciplinary hearing.
- [46]That however does not appear to be the case here. There are over 20 particulars of the alleged conduct which form the basis of the QCT’s concern. The material relied on is statements of evidence and transcripts of interviews with 15 people (including children).
- [47]CMH says that she takes issue with the credibility and motives of the witnesses. She says procedural fairness can only be assured if she is able to cross-examine the witnesses. The QCT says the investigation is ongoing and any findings of fact would be based on incomplete investigations and may prejudice those investigations.
- [48]Cross-examination of the number of witnesses involved would necessarily involve a lengthy hearing. The result could be that the suspension is continued and further investigations are then to take place, which would mean that CMH could face considerable delay in the finalisation of the disciplinary proceedings. The suspension may be lifted but disciplinary proceedings may still be referred.
- [49]While I accept the seriousness of the situation that CMH is faced with, having regard to her submissions which record that her concerns are about credibility and motives of the witnesses, I consider that she would have a reasonable opportunity to present her case to the Tribunal at an oral hearing regarding the suspension without cross-examining the witnesses. She can draw the Tribunal’s attention to any perceived inconsistencies in the transcribed interviews and statements provided. She is also able to provide evidence as to what she has been doing since the suspension to support any argument that the suspension should be ended because she does not pose an unacceptable risk to children.
- [50]If the Tribunal continues the suspension she has another opportunity to apply to the Tribunal to review its decision and consider whether the suspension remains appropriate. If disciplinary proceedings are referred, the QCT will bear the onus of satisfying the Tribunal that the conduct occurred and CMH will have the opportunity to cross-examine all witnesses. As noted above, if at the conclusion of that proceeding the Tribunal finds that no disciplinary ground is made out, it must lift the suspension.
- [51]On balance, I find that it is not appropriate for all witnesses to be cross-examined in the current proceeding and that CMH is not denied procedural fairness to present her case if she is unable to cross-examine the witnesses.
- [52]The more appropriate course is for the hearing in relation to the continuation of the suspension to take place as soon as possible and I will set directions accordingly.
Non-Publication order
- [53]Neither party has made any submissions concerning whether the Tribunal should exercise its power, pursuant to s 66 of the QCAT Act, to make a non-publication order in these proceedings.
- [54]Nevertheless, the Tribunal may act on its own initiative to make such an order if it considers that such an order is necessary for one of the reasons outlined in s 66(2).[33]
- [55]I am satisfied that it would be contrary to the public interest for information to be published which would identify the relevant school and any current or former students. There is a possibility that the publication of CMH’s name would lead to the identification of the relevant students and former students. This aspect of the non-publication order can be revisited in any subsequent disciplinary proceedings.
- [56]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]The Act, as at 7 November 2014, s 49.
[2]The Act, as at 7 November 2014, s 97(3).
[3]The Act, s 49.
[4]Ibid, s 50(5).
[5]The Act, s 54(1)(b).
[6]Ibid, s 53(b).
[7]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[8]The Act, s 55(3).
[9]Ibid, s 97.
[10]Ibid, s 55A.
[11]Ibid, s 159.
[12]Ibid, s 53(1).
[13]Ibid, s 53(2).
[14]At p 6.
[15]Submissions of CMH, para [65].
[16]Ibid.
[17]Ibid.
[18]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), ss 17 – 24.
[19]Submissions of the Queensland College of Teachers at para [30].
[20]QCAT Act, s 9.
[21]QCAT Act, s 28(1).
[22]Ibid, s 28(3)(e).
[23]Coutts v Close [2014] FCA 19; Kioa v West (1985) 159 CLR 550; O'Rourke v Miller (1985) 156 CLR 342.
[24](1985) 159 CLR 550.
[25]O'Rourke v Miller (1985) 156 CLR 342, at 585.
[26](1985) 156 CLR 342.
[27]O'Rourke v Miller (1985) 156 CLR 342, at 353.
[28][2014] FCA 19.
[29]Ibid, [114].
[30]The Act, s 55A(b).
[31]Ibid, s 55(3).
[32]Ibid, s 55S.
[33]QCAT Act, s 66(3).