Queensland College of Teachers v Teacher DSM
[2018] QCAT 181
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- Unreported Judgment
- Queensland College of Teachers v Teacher DSM[2018] QCAT 181
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Queensland College of Teachers v Teacher DSM[2018] QCAT 181
Queensland College of Teachers v Teacher DSM[2018] QCAT 181
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher DSM [2018] QCAT 181 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER DSM (respondent) |
APPLICATION NO/S: | OCR091-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 20 June 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where charged with serious offence – whether exceptional case – whether suspension should continue Criminal Code Act 1899 (Qld), s 349, s 352 Criminal Code Act 1983 (NT), s 188, s 192 Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50, s 53, s 55, Schedule 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167 Queensland College of Teachers v MJS [2017] QCAT 17 Queensland College of Teachers v Teacher S [2013] QCAT 361 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Holding Redlich Lawyers |
APPEARANCES: |
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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]On 4 April 2018, Teacher DSM advised the Queensland College of Teachers (the ‘QCT’) that he had been charged with the following offences pursuant to the Criminal Code Act 1983 (NT):
- (a)sexual intercourse without consent and knowing about or were reckless as to the lack of consent pursuant to s 192(3) of the Northern Territory Criminal Code Act; and
- (b)unlawful assault with circumstances of aggravation, namely that the victim was a female and was indecently assaulted pursuant to s 188(2) of the Northern Territory Criminal Code Act.
- (a)
- [2]The offences outlined above are comparable to the following offences pursuant to the Criminal Code Act 1899 (Qld):
- (a)rape pursuant to s 349 of the Queensland Criminal Code Act; and
- (b)sexual assault pursuant to s 352 of the Queensland Criminal Code Act.
- (a)
- [3]Each of the offences would constitute a ‘serious offence’ as defined s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), and therefore are also serious offences pursuant to Schedule 3 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’).
- [4]On 6 April 2018, the QCT suspended Teacher DSM’s teacher’s registration pursuant to s 48 of the QCT Act, which requires the QCT to immediately suspend a teacher’s registration upon becoming aware that the teacher has been charged with a serious offence.
- [5]In accordance with s 50(5) of the QCT Act, the QCT referred the continuation of the suspension to the Tribunal for review. Under s 53(3), the Tribunal must decide whether to continue the suspension or whether it is an ‘exceptional case’ in which the best interests of children will not be harmed if the suspension were ended.
- [6]As observed by the Tribunal in Queensland College of Teachers v MJS,[1] the QCT Act creates a rebuttable presumption that the existence of a ‘serious offence’ charge creates an unacceptable risk of harm to children. The relevant teacher bears the onus of rebutting this presumption and establishing that exceptional circumstances exist ‘whereby the best interests of children would not be harmed if the suspension were lifted’.
- [7]The term exceptional case is not defined in the QCT Act. In MJS’s case, the Tribunal identified certain principles which emerged from a number of authorities involving different statutory concepts that considered whether an ‘exceptional case’ exists:[2]
- An exceptional case is one that is not regularly, routinely or normally encountered;
- The term should be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect;
- Whether a case is exceptional involves the exercise of discretion and a consideration of the individual circumstances of the case; and
- A number of facts in combination may constitute an exceptional case.
- [8]The Tribunal has also determined that whether an exceptional case exists involves an exercise of discretion, having regard to the merits of the individual case concerned. In Queensland College of Teachers v Teacher S, the Tribunal stated:[3]
The term, ‘exceptional case’ is not defined in the Act. There are no generally applicable rules about what constitutes an exceptional case. An exceptional case has been variously described as one that is not ‘regularly, or routinely, or normally encountered’ or ‘unusual, an unusual instance or extraordinary’. Determining whether there is an exceptional case is an exercise of discretion, having regard to the merits of the individual case concerned.
- [9]Teacher DSM submits that his case is an exceptional one. The QCT opposes the lifting of the suspension.
Is this an exceptional case in which the best interests of children would not be harmed if the suspension was lifted?
- [10]The offences are alleged to have occurred between 1 July 2001 and 1 October 2001, a period of time during which Teacher DSM was a sergeant in the Northern Territory police force. They concern a female complainant who was then a probationary constable. The allegations are not related to Teacher DSM’s employment as a teacher.
- [11]Teacher DSM submitted that the complaint is deliberately untrue and improperly motivated. He provided a number of documents in support of this claim:
- (a)A handwritten note drafted by a senior officer on 29 October 2001, documenting a discussion between the senior officer and the complainant. It records the complainant as stating there was ‘nil violence, aggression, force’ and that ‘she has no problems working for/with him’.
- (b)A statutory declaration from the same senior officer dated 4 December 2017. She recalled the complaint’s version as follows:
- (a)
… she relayed that there had been a social occasion and [Teacher DSM] has come on to her, she had said no and nothing had actually happened between them, I recall that she didn’t want to pursue the matter.
- (c)An email from the same senior officer dated 5 July 2002, who said of the complainant that ‘she has a bit of a reputation amongst her peers as someone who will not hesitate to put them on paper if she’s criticised or unhappy about something’.
- (d)A statutory declaration from a person who knew the complainant dated 14 December 2017. She stated that she had no recollection of a conversation occurring with the complainant regarding the incident.
- (e)An undated statutory declaration from a police officer who was posted to the same police station with the complainant as part of a training squad. She recalled that the complainant recanted her allegation of being sexually assaulted, and instead said it was consensual.
- (f)An email from another senior police officer dated 4 July 2002, who expressed the view that the matter had resurfaced in response to performance issues being raised against the complainant.
- (g)An email from the complainant to the Chief Minister of the Northern Territory dated 12 March 2013, in which she detailed a series of allegations.
- (h)An email from the complainant to a Member of Parliament dated 8 April 2013, complaining that the Chief Minister had ‘brushed it aside’ and noting that she was about to be retired on the grounds of ‘inability’.
- (i)An email from the complainant to the Speaker of the Northern Territory Legislative Assembly dated 22 May 2013, disclosing that her doctor believes she should be retired on the grounds of ‘invalidity’.
- [12]Teacher DSM provided a statement in which he stated that he had a ‘brief flirtatious encounter’ with the complainant, which was ‘immoral and unfaithful’ but was ‘entirely consensual’ and ‘not criminal’. He also provided a series of character references, including from the principal and other staff at his school.
- [13]The QCT submitted that the Tribunal should not be satisfied that the matters relied upon by Teacher DSM render this matter an exceptional case, and therefore would not end the suspension of his teacher registration.
- [14]The QCT also submitted that the appropriate forum for the determination of the criminal matter, including an assessment of the complainant’s credibility, will be an examination of the evidence by the Northern Territory courts.
- [15]The QCT acknowledged the character references relating to Teacher DSM’s good character, professional conduct and his commitment to the school and the community, however submitted that these factors are not unusual nor extraordinary.
- [16]While Teacher DSM has provided material which he will presumably rely on in defence of the charges, and which on their face cast doubt on the complaint’s credibility, I do not have before me the complainant’s statement or other evidence which may be relied upon in support of the charges brought against him. Given the limitations in the material before me, I do not accept that the features identified by Teacher DSM concerning the allegations make this case remarkable.
- [17]Moreover, I accept the QCT’s submission that the appropriate forum for the testing of evidence and the determination of the allegations, including an assessment of the credibility and reliability of the complainant, is the Northern Territory courts.
- [18]I also accept the QCT’s submission that the character references provided by Teacher DSM, while commendable, are not unusual nor extraordinary.
- [19]I have considered all of the material provided by Teacher DSM. I am not satisfied that Teacher DSM has discharged his onus in establishing an exceptional case. I find that this is not an exceptional case and that the suspension of Teacher DSM’s teacher’s registration should continue.
Non-publication order
- [20]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, or is affected by a proceeding, to be identified.
- [21]Both parties agree that a non-publication order should be made in this matter.
- [22]Teacher DSM has raised concerns about the adverse effects that publication of his name would have on his child, who attends at the school from which he is currently suspended. At this stage, Teacher DSM has not yet been committed for trial or convicted of the charges. In these circumstances, I am satisfied that it would be contrary to the public interest for information to be published which would identify Teacher DSM’s name, including the names of other persons who have prepared statements or are otherwise identified in the material.