Queensland College of Teachers v Teacher TNE
[2020] QCAT 484
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- Unreported Judgment
- Queensland College of Teachers v Teacher TNE[2020] QCAT 484
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Queensland College of Teachers v Teacher TNE[2020] QCAT 484
Queensland College of Teachers v Teacher TNE[2020] QCAT 484
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher TNE [2020] QCAT 484 |
PARTIES: | Queensland college of teachers (applicant) v teacher TNE (respondent) |
APPLICATION NO/S: | OCR253-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 12 October 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – SUSPENSION OF TEACHER REGISTRATION – continuation of suspension – whether teacher does not pose an unacceptable risk of harm to children – whether suspension should continue Criminal Code Act 1899 (Qld), Schedule 1, s 210(1) Criminal Law (Sexual Offences) Act 1978 (Qld), s 6 Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 48, s 50, s 53, s 54, s 55, Schedule 3 Human Rights Act 2019 (Qld), s 26(2), s 34 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167 Baker v the Queen (2004) 223 CLR 513 Clyne v NSW Bar Association (1960) 104 CLR 116 DA v Director-General Department of Justice and Attorney-General [2017] QCAT 292 Health Ombudsman v Agnola [2019] QCAT 193 NSW Bar Association v Evatt (1968) 117 CLR 177 Queensland College of Teachers v IQL [2020] QCAT 296 Queensland College of Teachers v PPL [2019] QCAT 278 Queensland College of Teachers v SPR [2020] QCAT 214 Queensland College of Teachers v Teacher EDC [2019] QCAT 144 R v Kelly (Edward) [2000] QB 198 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 Teacher S [2013] QCAT 361 |
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]The Queensland College of Teachers (‘the College’) suspended Teacher TNE’s teacher registration on 21 August 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, indecent treatment of children under 16 child under 12 years pursuant to section 210(1)(a) & (3) of the Criminal Code 1899.
- [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 notice 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]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]In Teacher S,[4] 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.
- [5]As stated in Queensland College of Teachers v PPL,[5] 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),[6] 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.[7]
- [6]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.
- [7]While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[8] 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.
- [8]As required by s 54(1)(a) of the Act, directions were made by the Tribunal inviting Teacher TNE 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.[9] The teacher filed submissions on 2 October 2020 and the College filed submissions in response on 8 October 2020.
- [9]Teacher TNE submits that his rights have been limited in a way that is incompatible with his human rights. In particular, the suspension of registration has a punitive effect, amounting to double punishment for the alleged offence. Further, Teacher TNE ‘strongly denies’ the allegations and refers to the financial hardship and distress caused to him. He also submits that he is of good character and, other than in relation to the present outstanding charge, has no criminal or disciplinary history. In a supporting affidavit, he annexes several references.
- [10]In relation to human rights, Teacher TNE relies on s 34 of the Human Rights Act 2019 (Qld) (HR Act), which provides:
A person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law.
It is submitted that unless the charge is withdrawn, there will be either a conviction or acquittal and that the present proceedings will have a further punitive effect.
- [11]However, any continuation of suspension is protective rather than punitive.[10] Specifically, the role of the tribunal is to decide whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.[11] In any event, by virtue of the terms of s 48, the Act itself requires suspension where an approved teacher is charged with a serious criminal offence.[12] The Explanatory note to the Education (Queensland College of Teachers ) Bill 2005 (Qld) states:[13]
It is acknowledged that the suspension of a person’s registration could have an impact on a person’s livelihood, given that they are not permitted to teach while their registration is suspended. However, because of a teacher’s close role with children, it is considered that some offences … are serious enough to warrant non-discretionary suspension upon a charge, or cancellation upon a conviction, of registration or ‘Permission to Teach’.
- [12]A decision under s 55 of the Act also potentially impacts other human rights, including at s 26(2):
Every child has the right, without discrimination, to the protection that is needed by the child, and is in the 1child’s best interests, because of being a child.
- [13]In relation to Teacher TNE’s denial of the charge, it remains that the charge is outstanding and is yet to be tested. There has been no oral hearing or testing of evidence.[14] As noted in Queensland College of Teachers v IQL,[15] the limited time allowed for the making of a decision under s 55 of the Act also militates against the conduct of a Tribunal hearing to consider contested factual issues. That is because s 55(3) of the Act provides that the decision of the Tribunal ‘must’ be made not later than 14 days after receipt of the teacher’s submissions or the time limited by the relevant directions for the filing of those submissions, whichever is earlier. That time limitation cannot be extended.[16]
- [14]Teacher TNE also filed four work related references, three of which concerned child related work. However, the first was written some 30 years ago, the most recent 13 years ago and they predate his registration as a teacher. In addition, two recent personal references were filed, both of which acknowledged the present charges. They speak of Teacher TNE’s good character and positive interaction with children. Also filed were two recent reports from a psychologist. While they address the mental state of Teacher TNE and treatment undertaken, they do not provide any evidence relevant to establishing an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
- [15]The allegations underlying the charge are serious and relate to a young child. As is noted above, the allegations are untested. The College notes in its submissions that if Teacher TNE is acquitted and no disciplinary action is taken, he may reapply for registration.
- [16]On the material before me, I am not satisfied that this is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
- [17]I note that under s55(6) of the Act, Teacher TNE 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 the suspension should be ended.
Non-publication order
- [18]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.[17]
- [19]Teacher TNE submits that a non-publication order should be made, as the complainant is a child and the allegations have not been proven. The College does not object to an order prohibiting the publication of information that may identify the teacher, the child complainant, her family, and the relevant educational facility, other than to the extent necessary to enable the College to meet its statutory obligations.
- [20]I am satisfied that it would be contrary to the public interest for information to be published that would identify the complainant or her family.[18] There is a possibility that the publication of the name of Teacher TNE or a relevant educational facility could lead to identification of the complainant. The non-publication order can be revisited in any subsequent disciplinary proceedings.
- [21]I make orders pursuant to s66 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. As to the meaning of ‘harm’, se s 7 of the Act.
[4] [2013] QCAT 361, [3], citing Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.
[5] [2019] QCAT 278, [8].
[6] [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].
[7] Section 55(1)(a) of the Act.
[8] [2019] QCAT 144, [10]-[15].
[9] The Tribunal Directions were made on 28 August 2020, requiring any submissions to be made by 2 October 2020.
[10] See Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt (1968) 117 CLR 177, 183-184; Health Ombudsman v Agnola [2019] QCAT 193, [11]. Compare the observations made in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, [30]-[35], per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
[11] 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.
[12] In that context, see also s 48(1) and (4) of the HR Act.
[13] See at pp 4-5.
[14] The directions issued on 28 August 2020 allowed either party to request an oral hearing in relation to continuation of the suspension. No request was made.
[15] [2020] QCAT 296, [12].
[16] See also Queensland College of Teachers v SPR [2020] QCAT 214, [9].
[17] Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[18] See also Criminal Law (Sexual Offences) Act 1978 (Qld), s 6.