Queensland College of Teachers v Dean Carelse
[2021] QCAT 195
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- Queensland College of Teachers v Dean Carelse[2021] QCAT 195
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Queensland College of Teachers v Dean Carelse[2021] QCAT 195
Queensland College of Teachers v Dean Carelse[2021] QCAT 195
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Dean Carelse [2021] QCAT 195 |
PARTIES: | queensland college of teachers |
(applicant) | |
v | |
DEAN CARELSE | |
(respondent) | |
APPLICATION NO/S: | OCR075-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 10 May 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – whether suspension should continue – where teacher has been charged with a serious offence Education (Queensland College of Teachers) Act 2005 (Qld) s 48, s 50, s 53, s 54, s 55, sch 3 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 15 Criminal Code Act 1899 (Qld) s 228C, s 228D Baker v The Queen (2004) 223 CLR 513 DA v Director-General Department of Justice and Attorney-General [2017] QCAT 392 Queensland College of Teachers v Steven Patrick Liddell [2019] QCAT 344 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 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 the teacher registration of Dean Carelse (‘the Teacher’) on 22 March 2021 pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’), on the ground that the Teacher had been charged with a ‘serious offence’;[1] namely, possession child exploitation material contrary to s 228D(1)(b) of the Criminal Code and distributing child exploitation material contrary to s 228C(1)(b) of the Criminal Code.
- [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, 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.[4]
- [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]As required by s 54(1)(a) the Act, directions were made by the Tribunal on 25 March 2021, 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.[8] By an email message of 28 April 2021, a request was made by the Teacher’s legal representative for an extension of time of 1 week. By directions made on 29 April 2021, the time for the filing of submissions by the Teacher was extended to 4 May 2021,[9] with any submissions by the College in response to be filed by 7 May 2021.
- [8]By email submission of 7 May 2021, the Teacher’s legal representative submitted that the Teacher’s teaching registration ‘should have not been interfered with initially without sufficient evidence. This insufficient evidence would be the exceptional grounds for the reinstatement of his teaching registration’.
- [9]That submission overlooks s 48 of the Act, by which the College ‘must’ suspend the registration of an ‘approved teacher’ immediately after becoming aware that the teacher is charged with a ‘serious offence’. Further, 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’.
- [10]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.
- [11]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.
- [12]I note that under s 55(6) of the Act, the Teacher may apply within 28 days of the notice of this decision to QCAT for review of the decision. He may at that point provide any additional material in support of a submission that it is an exceptional case.
- [13]I order that the suspension of the registration of the Teacher continue.
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 15.
[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] [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 392, [25].
[7] Section 55(1)(a) of the Act.
[8] It was directed that any submissions be made by 29 April 2021.
[9] It was held in Queensland College of Teachers v Steven Patrick Liddell [2019] QCAT 344 that it would be inconsistent with s 55(3) and s 55(4) of the Act to allow an extension of time such that would prevent the Tribunal from making a decision within the time frame allowed by those provisions.
[10] [2019] QCAT 144, [10]-[15].