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Queensland College of Teachers v QNL[2020] QCAT 116

Queensland College of Teachers v QNL[2020] QCAT 116

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v QNL [2020] QCAT 116

PARTIES:

Queensland college of TEACHERS

 

(applicant)

 

v

 

teacher QNL

 

(respondent)

APPLICATION NO/S:

OCR059-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. The suspension of the registration of Teacher QNL as a teacher is continued.
  2. 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 QNL, a relevant complainant, or the relevant school, other than to the extent necessary to enable the Queensland College of Teachers to meet its statutory obligations.

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 352(1)(a)

Criminal Law (Sexual Offences) Act 1978 (Qld), s 6

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 EDC [2019] QCAT 144

Queensland College of Teachers v PPL [2019] QCAT 278

R v Kelly (Edward) [2000] QB 198

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

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 QNL’s teacher registration on 24 February 2020 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’;[1] namely, sexual assaults pursuant to s 352(1)(a) of the Criminal Code (Qld).
  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.[2] Notice of the suspension is given to the teacher pursuant to s 50(1) the Act, which must include a statement that 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.[3]
  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.[4] Submissions were filed by the solicitor for Teacher QNL on 7 April 2020, submitting that this is an exceptional case. In response,[5] the College submits that this is not an ‘exceptional case’ within the meaning of the Act.
  5. [5]
    In support of the submission that this is an exceptional case, Teacher QNL says:
    1. (a)
      The alleged conduct occurred outside the school environment and the complainant was a person in their 30’s. As such, it did not involve a teacher-student relationship or position of trust held by the teacher in her professional capacity.
    2. (b)
      The alleged conduct should be considered an aberration, having regard to an otherwise unblemished professional record and the fact of no prior convictions and, further, in the absence of any other adverse conduct in the 9 months during which the teacher has continued to teach following the alleged conduct.
    3. (c)
      Given the ongoing employment as a teacher, ending the suspension would not cause detriment ‘of a significant nature’ on any student’s physical, psychological or emotional wellbeing.
    4. (d)
      It is anticipated that the charge will be ‘downgraded’ to a charge of common assault, which is not a ‘serious offence’ within the meaning of the Act.
  6. [6]
    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.[6]
  7. [7]
    As stated in Queensland College of Teachers v PPL,[7] 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. [8]
    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. [9]
    While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[10] 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.
  3. [10]
    The trigger for invoking s 48 of the Act is the laying of a charge of a ‘serious offence’,[11] and no qualification is made in relation to the circumstances or context of its commission.  Accordingly, generally it will not be an ‘exceptional case’ simply because the alleged offence occurred outside the school environment and did not involve a student-teacher relationship or a position of trust. The legislature has included the present offence in the list of serious offences and it is one that might arise in a school or non-school environment. Equally, it is not in itself exceptional that the teacher has an unblemished professional and criminal record. There are any number of such cases where the allegations give rise to a first offence. In relation to the relevant charge, it remains that the present charge is a ‘serious offence’. There is no certainty that the charge will be amended. Reference is made below, at [14], to the potential to seek review of this decision, including where there is a change in relevant circumstances.
  4. [11]
    While Teacher QNL submits that ending the suspension would not cause detriment ‘of a significant nature’ on any student’s physical, psychological or emotional wellbeing, other than by reference to the ongoing employment it is not said why that is so. The College states that there has been no denial of the alleged conduct, the teacher simply saying that it was an aberration. The College submits that the conduct was either wilful or stemmed from a lack of self-control. It is added that if it were wilful that in itself demonstrates the seriousness of the conduct, while to the extent that it reflected a lack of self-control the ability to retain physical and emotional control is essential to the work of a teacher.
  5. [12]
    The factors that might harm the best interests of children in an educational setting are diverse and, implicit from the terms of s 48 of the Act, include the personal as well as the professional qualities of teachers. So much so that by s 48 of the Act, the initial suspension is mandatory where a teacher is charged with a serious offence. In the context of the legislative regime, Teacher QNL does not acknowledge any way in which the best interests of children might be harmed where a teacher has been charged with the sort of conduct as alleged. Accordingly, in that context it is not shown how relevant concerns are or might be ameliorated such that this is an exceptional case.
  6. [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.
  7. [14]
    I note that under s 55(6) of the Act, Teacher QNL may apply within 28 days of the notice of this decision to QCAT for review of this decision. She may at that point provide any additional material which may support a submission that the suspension should be ended.

Non-publication order

  1. [15]
    Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal may 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. The Tribunal may do so on the application of a party or on its own initiative.[12]
  2. [16]
    I am satisfied that it would be contrary to the public interest for information to be published that would identify any relevant complainant.[13] There is a possibility that the publication of the name of Teacher QNL or the relevant school would lead to identification of a relevant complainant. This aspect of the non-publication order can be revisited in any subsequent disciplinary proceedings.
  3. [17]
    I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information, other than to the extent necessary to enable the College to meet its statutory obligations. 

Footnotes

[1]   As to the meaning of the term ‘serious offence’ see the Act at Schedule 3 and the Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167.

[2]  As to the meaning of the term ‘approved teacher’, see the Act at Schedule 3.

[3]  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.

[4]  The Tribunal Directions were made on 3 March 2020, requiring any submissions to be made by 7 April 2020.

[5]   Submissions filed 14 April 2020.

[6]   [2013] QCAT 361, [3], citing Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

[7]   [2019] QCAT 278, [8].

[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]   [2019] QCAT 144, [10]-[15].

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

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

[13]   See also Criminal Law (Sexual Offences) Act 1978 (Qld), s 6.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v QNL

  • Shortened Case Name:

    Queensland College of Teachers v QNL

  • MNC:

    [2020] QCAT 116

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    21 Apr 2020

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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