Queensland College of Teachers v Teacher QST
[2022] QCAT 308
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- Queensland College of Teachers v Teacher QST[2022] QCAT 308
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Queensland College of Teachers v Teacher QST[2022] QCAT 308
Queensland College of Teachers v Teacher QST[2022] QCAT 308
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher QST [2022] QCAT 308 |
PARTIES: | Queensland COLLEGE OF TEACHERS (applicant) v TEACHER QST (respondent) |
APPLICATION NO/S: | OCR176-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 12 August 2022 |
HEARING DATE: | 8 August 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
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 Act 1899 (Qld), s 352(1)(a). 535 Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50, s 53, s 54, s 55, Schedule 3 Education (Queensland College of Teachers) Bill 2005 (Qld) Public Service Act 2008 (Qld), s 189(1) 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 DA v Director-General Department of Justice and Attorney-General [2017] QCAT 292 Queensland College of Teachers v Teacher AE [2017] QCAT 292 Queensland College of Teachers v Liddell [2019] QCAT 344 Queensland College of Teachers v Teacher PPL [2019] QCAT 278 Queensland College of Teachers v Teacher QNL [2020] QCAT 116 Queensland College of Teachers v Teacher S [2013] QCAT 361 Queensland College of Teachers v Teacher SPR [2020] QCAT 214 R v Kelly (Edward) [2000] QB 198 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Girvan, Principal Legal Officer, for the applicant |
Respondent: | LJ Crowley, of counsel, instructed by Grasso Searles Romano Lawyers |
REASONS FOR DECISION
- [1]The Queensland College of Teachers (‘the College’) suspended QST’s teacher registration on 30 June 2022 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 under s 352(1)(a) of the Criminal Code Act 1899 (Qld) (‘the Criminal Code’) and attempted sexual assaults under s 352(1)(a) and 535 of the Criminal Code. The particulars provided for the circumstances of the offence include the allegations that the complainant held up her arms in response to advances made by Teacher QST, that she fell to the floor during a struggle and that he positioned himself onto her before the alleged sexual assault occurred.
- [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 the Queensland Civil and Administrative Tribunal (‘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 Queensland College of Teachers v 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, by s 53(3)(a) of the Act, 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) of the Act, directions were made by the Tribunal on 5 July 2022, inviting Teacher QST, by 9 August 2022, 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. It was further directed that either party may, within 14 days of receipt of the directions, ask the Tribunal to conduct an oral hearing in relation to the question of whether the suspension should continue.
- [8]On 14 July 2022, Teacher QST requested an oral hearing. Directions were issued listing the matter for an oral in-person hearing on 8 August 2022. It was also directed that Teacher QST file any material relevant to the hearing by 3 August 2022 and that the College file any material in response by 5 August 2022.
- [9]Teacher QST filed written submissions on 3 August 2022, along with details of professional development undertaken over the present and past years. No further material was filed by the College, though it provided a copy of its written submissions at the Tribunal hearing conducted on 8 August 2022.
- [10]
The Respondent submits that as the matter only involves two adult individuals, each with capacity to manage their own affairs. Whilst the Respondent denies the allegations, even if it were accepted that any risk of future conduct exists between the Respondent and other teacher, this application is not an appropriate venue to manage such risk, and such a risk also does not go to the question before this tribunal.
- [11]Teacher QST also states that no further allegations have been made against him and he refers to the already lengthy period of suspension, his continued professional development, and the impact of the suspension on him and his family.[11]
- [12]In relation to the latter submissions, it is noted that s 53(3)(a) of the Act 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’. That is the focus for any determination by the Tribunal. As noted in the Explanatory Notes to the Education (Queensland College of Teachers) Bill 2005 (Qld):
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 conviction, of registration or ‘Permission to Teach’.
- [13]
There is no requirement under section 48 that the serious offence charged must involve a victim child or a student of the teacher’s school or class or must occur in a school setting. These matters relied upon by the respondent could not be considered unusual or extraordinary.
- [14]In relation to the question of whether this is an exceptional case, it is noted that 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’. Under s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), sexual assaults and attempted sexual assaults are ‘serious offences’. Those offences arise where the complainant is ‘another person’, so that they are of general application. The fact that the complainant is not a child or that the alleged offence occurred outside the school environment cannot in itself make it an exceptional case in the relevant sense, given that the legislation mandates suspension by the College where the teacher is charged with a ‘serious offence’.[14] Had it been intended that the suspension be confined to serious offences involving children or to offences allegedly committed in a school environment, that could have been readily indicated in the legislation. It is in that context that the Tribunal must determine whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
- [15]In drawing comparisons with Queensland College of Teachers v AE,[15] where the Tribunal found that an exceptional case had been established, the College also submits that ‘the respondent has not provided any references in support attesting to his good character, integrity, and professionalism as a teacher’.[16]
- [16]Teacher QST denies the allegations and characterises it as a ‘he-said-she-said’ complaint.[17] However, the Tribunal cannot effectively determine that issue. The criminal charges are outstanding and are yet to be tested. The role of the Tribunal is to determine whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended, rather than to draw definitive conclusions in relation to the allegations of sexual assault. The latter is a matter for the criminal courts. In any event, the limited time allowed for the making of a decision in relation to whether or not the suspension should be continued 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.[18] That time limitation cannot be extended.[19]
- [17]The allegations in the present matter are serious. While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[20] 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 be so satisfied. As discussed above, no relevant evidence or material has been produced sufficient to enable the conclusion that this is an exceptional case. In relation to the listed professional development, while the material indicates the web conferences, presentations, study units, short courses, workshops and readings attended or undertaken, there is no evidence or submission as to the impact of that on the applicant or as to how it might give rise to an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
- [18]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. Accordingly, the suspension of Teacher QST as a teacher is continued.
- [19]I note that under s 55(6) of the Act, Teacher QST 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 in support of any submission that the suspension should be ended.
Non-publication order
- [20]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), 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.
- [21]Both the College and Teacher QST submit that it is appropriate to make a non-publication order,[21] though the College further submits that it is also necessary to facilitate information sharing among decision-makers concerned with the protection of children.[22] A non-publication order is appropriate in circumstances where identification of Teacher QST may lead to the identification of a relevant complainant, teacher or school. I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher QST, the complainant, or any other relevant teacher or school, other than to the extent necessary for the College to meet its statutory obligations and as provided for under the Education (Queensland College of Teachers) Act 2005 (Qld). This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [22]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
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] [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] Submissions of the respondent, [9], citing R v Kelly (Edward) [2000] QB 198, 208.
[9] Submissions of the respondent, [10]-[11].
[10] Ibid, [12].
[11] Ibid, [13]-[15]. The College states that the suspension was with full remuneration by the Department of Education, pursuant to s 189(1) of the Public Service Act 2008 (Qld): Applicant’s submissions, [22].
[12] Applicant’s submissions, [16].
[13] Ibid, [17].
[14] See Queensland College of Teachers v QNL [2020] QCAT 116, [10]-[12].
[15] [2017] QCAT 292. The teacher had been charged with burglary and commit an indictable offence under s 419(4) of the Criminal Code.
[16] Applicant’s submissions, [28].
[17] Submissions of the respondent, [8].
[18] Section 55(3) of the Act. See also Queensland College of Teachers v Liddell [2019] QCAT 344, [5]-[10].
[19] See Queensland College of Teachers v Teacher SPR [2020] QCAT 214, [9].
[20] [2019] QCAT 144, [10]-[15].
[21] Reference is made to s 7 of the Criminal Law (Sexual Offences) Act 1978 (Qld) in relation to the non-publication of certain matters. See Applicant’s submissions, [33], [39].
[22] Applicant’s submissions, [40].