Queensland College of Teachers v Teacher LNT
[2022] QCAT 434
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- Unreported Judgment
- Queensland College of Teachers v Teacher LNT[2022] QCAT 434
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Queensland College of Teachers v Teacher LNT[2022] QCAT 434
Queensland College of Teachers v Teacher LNT[2022] QCAT 434
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher LNT [2022] QCAT 434 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) |
v | |
TEACHER LNT (respondent) | |
APPLICATION NO/S: | OCR287-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 8 December 2022 |
HEARING DATE: | On the papers |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: APPEARANCES & REPRESENTATION: | EDUCATION – EDUCATORS – REGISTRATION – suspension of teacher – where charged with serious offence – where teacher requested extension of time to file submissions – whether extension of time should be granted – whether exceptional case – whether suspension should continue Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50, s 53, s 54, s 55, s 55A, s 97, s 98, s 285, s 285AA, s 285B, s 287 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 15 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 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] 1 VR 1 Queensland College of Teachers v Teacher S [2013] QCAT 361 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 LNT’s teacher registration on 24 October 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, an offence under s 210 of the Criminal Code (Qld).
- [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) of 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.
- [6]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]
- [7]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.
- [8]As required by s 54(1)(a) of the Act, directions were made by the Tribunal on 28 October 2022, inviting LNT, by 2 December 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. In a communication received by the Tribunal on 4 December 2022, Teacher LNT advised that he expected to receive a full brief of evidence in relation to the relevant allegations at the next court appearance on 16 December 2022 and requested an adjournment of the present matter until sometime after that so that he could prepare written submissions. A difficulty arises by virtue of s 55(3) of the Act, which provides:
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 s 54;
- (b)The stated time under s 54 ends.
- [9]Given the statutory time constraints, it is evident that it was not intended that there be a full hearing to determine contested factual issues as part of the suspension process. Presumably that is because, by s 55A of the Act, where the Tribunal continues the suspension, the College must ‘as soon as practicable’ either initiate disciplinary proceedings, where it reasonably believes that a ground for disciplinary action exists, or authorise an investigation, where it reasonably believes that a ground for disciplinary action may exist.[8] Any consequent disciplinary proceedings are the appropriate vehicle for determining contested factual issues.
- [10]In that context, it is not made clear by Teacher LNT why a full brief of evidence is necessary for the preparation of Teacher LNT’s submissions. Even were it appropriate to do so, in deciding whether to continue the suspension there is no suitable opportunity for the Tribunal to make findings on any disputed questions of fact that underlie outstanding criminal charges. Rather, the question for the Tribunal is whether on the material presently available to the Tribunal, which might indicate that certain allegations are contested, the matter is an exceptional case. However, in itself, the fact of denial of allegations underlying a charge does not make a matter ‘exceptional’. Accordingly, the application for an extension of time is refused.
- [11]While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[9] 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.
- [12]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 LNT as a teacher is continued.
- [13]I note that under s 55(6) of the Act, Teacher LNT 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
- [14]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.
- [15]A non-publication order is appropriate in circumstances where identification of Teacher LNT may lead to the identification of a relevant complainant or school. I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher LNT or any relevant complainant or school, other than to the extent necessary for the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Act. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [16]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 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] 1 VR 1.
[5] [2019] QCAT 278, [8].
[6] [2000] QB 198, 208. Referred to in Baker v the Queen (2004) 223 CLR 513, 573 (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] The Act, s 55A, s 97, s 98.
[9] [2019] QCAT 144, [10]-[15].