QSK v Queensland College of Teachers
[2021] QCAT 400
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- Unreported Judgment
- QSK v Queensland College of Teachers[2021] QCAT 400
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QSK v Queensland College of Teachers[2021] QCAT 400
QSK v Queensland College of Teachers[2021] QCAT 400
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | QSK v Queensland College of Teachers [2021] QCAT 400 |
PARTIES: | QSK (applicant) v QUEENSLAND COLLEGE OF TEACHERS (respondent) |
APPLICATION NO/S: | OCR292-21 |
ORIGINATING APPLICATION NO/S: | OCR200-16 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 16 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS – where teacher charged with serious offences – where teacher suspended – where suspension continued by the Tribunal – where subsequent referral of disciplinary proceedings – where charges withdrawn – where referral of disciplinary proceedings withdrawn – where application to review decision of Tribunal to continue suspension – where application for extension of time to seek review – whether extension of time should be granted and suspension ended Acts Interpretation Act 1954 (Qld), s 14A, s 23(1) Education (Queensland College of Teachers) Act 2005 (Qld) s 48, s 49, s 52, s 53(2), s 55, s 56, s 57, s 92, s 97, s 152, s 159, s 160 Queensland Civil and Administrative Tribunal Act 1991 (Qld) s 3(b), s 46, s 61, s 66 Baker v the Queen (2004) 223 CLR 513 Briginshaw v Briginshaw (1938) 60 CLR 336 DA v Director-General Department of Justice and Attorney-General [2017] QCAT 392 QCT v WRD [2015] QCAT 200 Queensland College of Teachers v Burrows [2015] QCAT 78 Queensland College of Teachers v PPL [2019] QCAT 278 R v Kelly (Edward) [2000] QB 198, 208 |
REPRESENTATION: | |
Applicant: | AE Knott, Holding Redlich |
Respondent: | K Deo, Principal Legal Officer QCT |
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]On 26 October 2016, the respondent suspended the registration of the applicant as a teacher pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).The notice referred to two charges of sexual assault (person under 16 years of age) under the provisions of, then, s 61D(1) of the Crimes Act 1900 (NSW). On 9 December 2016, proceeding in its original jurisdiction,[1] the suspension was continued by the Tribunal pursuant to s 55 of the Act (OCR200-16).
- [2]On 14 November 2019, disciplinary proceedings in relation to the applicant were referred to the Tribunal pursuant to s 97 of the Act (OCR378-19). A notice to produce was subsequently issued to the NSW Office of the Director of Public Prosecutions, requiring the production of specified material relating to relevant proceedings before the District Court of NSW.
- [3]On 13 March 2021, the respondent filed in the Tribunal an application for leave to withdraw the referral pursuant to s 46(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[2] In submissions in support of that application, it was submitted by the respondent that the evidence was insufficient for the Tribunal to be satisfied that the acts alleged against the applicant occurred.[3]
- [4]In summary, it was submitted that the allegations made against the applicant were historical (the alleged offences occurred 40 years earlier) and that the material provided by the NSW DPP was limited, even though it was confirmed that the material had been provided ‘in full’.[4] The available evidence comprised two statements by the complainant completed four years apart and one photograph. Exhibits referred to in the statements were not provided and there were no statements from potential witnesses.[5] The respondent had not been provided with the contact details of the complainant and her whereabouts were unknown.[6] It was submitted that it was not reasonable for the respondent to conduct its own investigations, given the age of the allegations, that the alleged events occurred in another state, and that the matter had been investigated by the police and with the result that it did not proceed through to trial.[7] It was also observed during the criminal proceedings that without relevant documents ‘the accused will be at a significant forensic disadvantage because they will not know when the first complaint was made or what the substance of that complaint was’.[8]
- [5]On 8 March 2021, leave was granted to the respondent to withdraw the referral filed on 14 November 2019. However, while the referral had been withdrawn this did not impact the continuation of the suspension of the applicant as a teacher. Section 52 of the Act deals with when a suspension ends and provides as follows:
A suspension of an approved teacher’s registration or permission to teach under this division ends when the earliest of the following happens—
- (a)QCAT decides, under section 55, 152, 159 or 160, to end the suspension;
- (b)the teacher’s registration or permission to teach is cancelled under division 3 or section 160;
- (c)if the college authorises an investigation under section 98 of the matter giving rise to a suspension under section 49—
- (i)the investigator’s report includes a finding that the matter does not raise a ground for disciplinary action against the approved teacher; and
- (ii)the college is reasonably satisfied there is no ground for disciplinary action against the approved teacher.
- [6]Subject to the observations made below in relation to s 55 of the Act, none of the provisions referred to in s 52 of the Act allow the Tribunal to end the suspension in circumstances where the respondent withdraws the disciplinary referral. Sections 152, 159 and 160 of the Act deal with circumstances where the Tribunal decides that a ground for disciplinary action has been established,[9] while division 3 (ss 56 and 57 of the Act) arises where the registration is cancelled. That has not occurred here. Section 52(c) deals with circumstances where, in relation to a suspension under s 49 of the Act, following an investigation it is concluded that there is no ground for disciplinary action against the teacher. However, in the present case, the suspension was made under s 48 and not s 49 of the Act.
- [7]Section 55 of the Act is headed ‘QCAT’s decision about continuation of suspension’ and provides:
- (1)After considering any submissions made by the approved teacher within the stated time under section 54, QCAT must decide—
- (a)if the review is of the suspension of an approved teacher under section 48—whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended; or
- (b)if the review is of the suspension of an approved teacher under section 49—whether the teacher does not pose an unacceptable risk of harm to children.
- (2)QCAT must order the suspension be ended if—
- (a)if the review is of the suspension of an approved teacher under section 48—QCAT is satisfied it is an exceptional case; or
- (b)if the review is of the suspension of an approved teacher under section 49—QCAT is satisfied the teacher does not pose an unacceptable risk of harm to children.
- (3)QCAT’s decision must be made not later than 14 days after the earlier of the following to happen—
- (a)QCAT receives the approved teacher’s submission under section 54;
- (b)the stated time under section 54 ends.
- (4)If QCAT does not make a decision within the 14 day period under subsection (3), QCAT is taken to have made an order ending the suspension.
- (5)QCAT must, as soon as practicable, give notice of its decision to the approved teacher and the college.
- (6)The notice must state each of the following—
- (a)QCAT’s decision and the reasons for it;
- (b)if the decision is that it is not an exceptional case or that the teacher poses an unacceptable risk to children—that the teacher may apply, within 28 days after the notice is given and as otherwise provided under the QCAT Act, to QCAT for a review of QCAT’s decision.
- [8]As is noted above, on 9 December 2016 the suspension of the registration of the applicant as a teacher was continued by the Tribunal pursuant to s 55 of the Act. Following a directions hearing conducted on 3 June 2021, on 18 June 2021 the applicant filed, with supporting submissions, an application to review the decision of 9 December 2016 pursuant to s 55(6)(b) of the Act and, pursuant to s 61(1) of the QCAT Act, an application for an extension of time to file that application. On 6 July 2021 the respondent filed submissions in response, which submissions are in support of those applications and the ending of the suspension of the applicant’s registration as a teacher.
- [9]Against the background of the discontinuance of the criminal proceedings and the withdrawal of the disciplinary proceedings, the applicant submits that an extension of time should be allowed as there is no other apparent available process for ending the suspension.[10] Having referred to the power of the Tribunal to extend time under s 61 of the QCAT Act, the applicant referred to s 14A(1) of the Acts Interpretation Act 1954 (Qld) (‘AIA’):
In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
Reference was also made to s 23(1) of the AIA:
If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires.
- [10]Finally, the applicant referred to the objects of the QCAT Act; in particular, s 3(b):
To have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- [11]Should an extension of time be allowed, the applicant submits that in the circumstances that now exist, the Tribunal can be satisfied that ‘it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended’.[11]
- [12]In submissions filed in response, the respondent submits that an extension of time should be allowed and that the Tribunal should find that this is an exceptional case and end the suspension of QSK’s teacher registration.[12] It is submitted that given the withdrawal of the disciplinary proceedings there are no matters currently before the Tribunal requiring determination.[13] Further, while the proposed approach is ‘not ideal’, given the unavailability of other means to end the suspension, the Tribunal is able, pursuant to s 55(6)(b) of the Act, to review the original decision to continue the suspension.[14]
- [13]In the circumstances as outlined above, an extension of time to file the application to review is allowed. In relation to the substantive question, s 53(3)(a) of the Act provides that any suspension must be continued unless the Tribunal is satisfied that ‘the matter is an exceptional case in which the best interests of children would not be harmed if the suspension were ended’.
- [14]As stated in Queensland College of Teachers v PPL,[15] 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),[16] 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.[17]
- [15]Given the outcome in relation to the criminal proceedings as outlined above, which was subsequent to the decision to continue the suspension in 2016, the material and submissions now before the Tribunal, and the lack of any material or evidence that could reasonably give rise to the requisite satisfaction of the Tribunal for a continuation of the suspension, I am satisfied that this is an exceptional case in which the best interests of children would not be harmed if the suspension were ended. Accordingly, pursuant to s 55(2)(a) of the Act, I order that the suspension of Teacher QSK’s registration or permission to teach be ended.
Non-publication order
- [16]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.[18]
- [17]Both the applicant and respondent submit that in light of the matters outlined above it is appropriate to make a non-publication order.
- [18]I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher QSK or any complainant or any relevant third party, other than to the extent necessary for the College to meet its statutory obligations, including those arising under sections 285, 285AA, 285B and 287 of the Act.
- [19]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]See s 53(2) of the Act.
[2]While leave is not specifically required by s 46 of the QCAT Act in the present circumstances, it has been held that s 97(4) of the Act modifies s 46 of the QCAT Act, such that leave is required: see Queensland College of Teachers v Burrows [2015] QCAT 78, [12]. As to where the teacher has been charged with a ‘serious offence’, see also s 92(2) and (3) of the Act and QCT v WRD [2015] QCAT 200.
[3]Submission of the QCT in respect of an application to withdraw with leave of the Tribunal, [52]. Reference is made to Briginshaw v Briginshaw (1938) 60 CLR 336.
[4]Submissions of the QCT in respect of an application to withdraw with leave of the Tribunal, [53c].
[5]Ibid, [53d]-[53e].
[6]Ibid, [53d].
[7]Ibid, [53g]-[53j].
[8]Ibid, [53i].
[9]Section 152 of the Act allows for interim orders.
[10]Submission of applicant in support of application filed on 18 June 2021, [10][11].
[11]Ibid, [15].
[12] Submissions of the QCT in respect of a miscellaneous application filed on 18 June 2021, [7].
[13]Ibid, [8].
[14]Ibid, [9]-[10]. It is further submitted, as [11], that the proposed course ‘should not be regarded as being applicable in all similar cases’. In the normal course of events, a disciplinary hearing will proceed and a determination will be made by the Tribunal.
[15][2019] QCAT 278, [8].
[16][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].
[17]Section 55(1)(a) of the Act.
[18] Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).