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Queensland College of Teachers v Teacher KDH[2024] QCAT 501

Queensland College of Teachers v Teacher KDH[2024] QCAT 501

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher KDH [2024] QCAT 501

PARTIES:

Queensland College of Teachers

(applicant)

v

Teacher KDH

(respondent)

APPLICATION NO/S:

OCR 036-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 November 2024

HEARING DATE:

On the papers

DECISION OF:

Member Taylor (Presiding Member)

Member Robyn Oliver

Member Jensen

ORDERS:

  1. Pursuant to s 158 of the Education (Queensland College of Teachers) Act 2005 (Qld), a ground for disciplinary action against the respondent has been established, being:

[Teacher KDH] has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.

  1. Pursuant to s 161(2)(a) of the Education (Queensland College of Teachers) Act 2005 (Qld), this Tribunal will take no further action in relation to the matter.
  2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of any information that may identify the respondent, any relevant student, or any relevant school, other than:
    1. to the parties to this proceeding; or
    2. to the extent necessary to enable the applicant to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld); or
    3. for the purposes of the respondent providing a copy of the decision and the reasons of this Tribunal in this proceeding to any regulatory authority or employer in compliance with any disclosure requirements.

CATCHWORDS:

EDUCATION – EDUCATORS – REGISTRATION – DISCIPLINARY MATTERS – GENERALLY – A teacher brought to, and concealed alcohol, on school grounds during working hours – whilst on duty as a teacher, the teacher accessed that alcohol consuming a substantial portion of it – his registration as a teacher was then suspended – the College referred the matter to the Tribunal as a practice and conduct matter – the College sought orders that a ground for disciplinary action be found, that an order of reprimand be issued, and that a notation be placed on the register of approved teachers requiring the teacher to undertake a specified testing regime and provide medical reports thereof prior to being entitled to return to teaching – subsequent to that referral the teacher’s registration was cancelled following his failure to pay his annual renewal fee – consequent upon that cancellation the College removed his name from  the register – where a finding of a ground for disciplinary action was established – where as a result of his registration being cancelled for non-payment of his annual fee, the Tribunal was without jurisdiction and thus power to gives orders in terms of disciplinary action

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – A teacher brought to, and concealed alcohol on, school grounds during working hours – whilst on duty as a teacher, the teacher accessed that alcohol consuming a substantial portion of it – the College referred the matter to the Tribunal as a practice and conduct matter – where a ground for disciplinary action had been established – where in turn the College sought orders that a notation be placed on the register of approved teachers requiring the teacher to undertake a specified testing regime and provide medical reports thereof prior to being entitled to return to teaching – where there was a less restrictive and reasonably available way to achieve the purpose of such an order – where the making of the order for the notation would be to infringe the teacher’s right to privacy and reputation

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – GENERAL PRINCIPLES – A teacher brought to, and concealed alcohol on, school grounds during working hours – whilst on duty as a teacher, the teacher accessed that alcohol consuming a substantial portion of it – the College referred the matter to the Tribunal as a practice and conduct matter – the College sought orders that a ground for disciplinary action be found, that an order of reprimand be issued, and that a notation be placed on the register of approved teachers requiring the teacher to undertake a specified testing regime and provide medical reports thereof prior to being entitled to return to teaching – where on a strict reading of relevant provisions of the prevailing legislation, the Tribunal was without jurisdiction and thus power to gives orders in terms of disciplinary action – where legislative amendment is required

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – STATUTORY POWERS AND DUTIES – A teacher brought to, and concealed alcohol on, school grounds during working hours – whilst on duty as a teacher, the teacher accessed that alcohol consuming a substantial portion of it – the College referred the matter to the Tribunal as a practice and conduct matter – the College sought orders that a ground for disciplinary action be found, that an order of reprimand be issued, and that a notation be placed on the register of approved teachers requiring the teacher to undertake a specified testing regime and provide medical reports thereof prior to being entitled to return to teaching – where on a strict reading of relevant provisions of the prevailing legislation, the Tribunal was without jurisdiction and thus power to gives orders in terms of disciplinary action – where legislative amendment is required

Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 8, s 9, s 10, s 17, s 20, s 49, s 50, s 52, s 53, s 56, s 66,  s 76, s 92, s 97, s 119A, s 136, s 147, s 158, s 159, s 160, s 161, s 233, s 285, s 285AA, s 285B, s 287, s 288,  Schedule 3

Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 25, s 26, s 48

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 10, s 32, s 34, s 46, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Alcan (NT) v Territory Revenue (2009) 239 CLR 27

Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd [2017] QCAT 400

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206

Penfold v Firkin v Balvius [2023] QCATA 11

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Queensland College of Teachers v ALE [2019] QCAT 143

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v BYJ [2018] QCAT 107

Queensland College of Teachers v CMF (No 2) [2016] QCAT 290

Queensland College of Teachers v EFG [2024] QCAT 79

Queensland College of Teachers v Teacher GBJ [2018] QCAT 135

Queensland College of Teachers v JNI [2016] QCAT 182

Queensland College of Teachers v Teacher KDH – OCR 062-23 – Unreported 27 April 2023

Queensland College of Teachers v LDW [2017] QCAT 48

Queensland College of Teachers v NRR [2021] QCAT 152

Queensland College of Teachers v Teacher WBJ [2024] QCAT 187

Re TAA [2006] QCST 11

SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165

SWJ v Department of Justice and Attorney-General [2022] QCATA 119

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

ZZ v Secretary, Department of Justice [2013] VSC 267

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Mr C Hill – Principal Legal Officer for the Queensland College of Teachers

Respondent:

Holding Redlich - Solicitors

REASONS FOR DECISION

  1. [1]
    By order of this Tribunal given 29 February 2024, it was directed that, until further order, publication is prohibited of any information, other than to the parties to this proceeding, that may identify the respondent, any relevant student, or any relevant school, and other than to the extent necessary to enable the applicant (hereinafter referred to as the College) to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Education Act).
  2. [2]
    The need for a continuation of such an order was raised formally in this proceeding by the parties. In turn it was addressed and is discussed later herein explaining why it was considered to be appropriate that such an order be made again.
  3. [3]
    Accordingly, these reasons are expressed in a de-identified format to the extent of any referral to the respondent (hereinafter referred to as Teacher KDH) or the school at which he was engaged (hereinafter referred to as the School) at the time of the event which gave rise to this proceeding.

MEMBER TAYLOR and MEMBER ROBYN OLIVER

Overview

  1. [4]
    Teacher KDH was suspended from his employment at the School after he was discovered having concealed four bottles of wine on the school grounds, and during the course of a teaching day accessing those bottles consuming the contents of almost two of them. He was specifically observed, via CCTV, drinking whilst he was in one part of the School’s buildings before departing from there to go to his classroom and conduct a teaching class.
  2. [5]
    Ultimately the College referred the matter to this Tribunal as a practice and conduct proceeding. In doing so the College sought an order that a ground for disciplinary action is found. It also sought orders which were in effect to be the corresponding disciplinary action, namely that Teacher KDH be reprimanded, and for entry of particular notations on the register of approved teachers held by the College. This was to require him to undergo certain psychiatric and/or psychological testing, and monthly haematological testing or other testing as determined by a psychologist, to provide reports of same, and to provide evidence of total abstinence from alcohol during a prior specified period, all to be done prior to him being entitled to have his suspension lifted and so resume teaching. All were sought as orders this Tribunal could make under s 158 and s 160 of the Education Act.
  3. [6]
    In responding to the referral, Teacher KDH did not oppose a finding that a ground for disciplinary action is established, or an order for reprimand. He did oppose the order for entry of any notation on the register. His argument was, on the facts before this Tribunal, it was unnecessary, seemingly asserting that to the extent the College required certain reports they were already available and had been provided, such showing it was in order for him to be able to return to work as a teacher.
  4. [7]
    With the passage of time since the referral was made, Teacher KDH’s registration was cancelled by the College. But this was only as a result of his failure to have paid the requisite annual fee to maintain it. It was not cancelled as a consequence of his conduct which was the subject of this proceeding.
  5. [8]
    Once cancelled, he became a ‘former approved teacher’ as that term is used in the Education Act. What then followed was that the relevant provision of the Education Act, under which the orders giving effect to disciplinary action, changed. It was no longer s 160 which applies to ‘approved teachers’. It became s 161 which applies to ‘former approved teachers’. The latter has a narrower ambit than the former to the extent of the orders this Tribunal can make. That change was critical in terms of the outcome the College sought in this proceeding.
  6. [9]
    As we explain in these reasons, upon Teacher KDH’s registration being cancelled by the College, solely as a result of non-payment of the annual fee, whilst it remained open for this Tribunal to find a ground for disciplinary action had been established, to the extent the College sought orders in terms of implementing disciplinary action this Tribunal was without power to give the required orders. For this reason, save only for the issue of a non-publication order, in our opinion the only outcome in this proceeding was that there could be an order that a ground for disciplinary action had been established, but that this Tribunal would take no further action in relation to the matter.

Relevant Facts and Circumstances[1]

  1. [10]
    In August 2005, Teacher KDH was first granted registration as a teacher under the Education Act.[2]
  2. [11]
    On 21 February 2023, when employed as a teacher at the School, he took four (4) bottles of wine into the school grounds, concealed them in any area said to be inaccessible to students, and later that day consumed a portion of that wine whilst on duty as a teacher.[3](the Offending Conduct) That same day, his employment was terminated by the School.[4]
  3. [12]
    On 22 February 2023, the College received from the School a notice under s 76 of the Education Act of that fact.[5]
  4. [13]
    On 9 March 2023, under s 49 of the Education Act the College suspended his registration.[6]
  5. [14]
    On 27 April 2023, following the College’s referral of that suspension to this Tribunal under s 50(5) of the Education Act, under s 53 of that Act this Tribunal ordered that the suspension be continued.[7]
  6. [15]
    On 23 February 2024, under s 97 of the Education Act the College started the requisite practice and conduct proceeding arising from the above facts by making the relevant referral to this Tribunal. (the Referral)
  7. [16]
    On 3 April 2024, his registration was removed from the register of approved teachers kept by the College under s 288 of the Education Act. This was as a result of his failure to have paid his registration fees.[8]
  8. [17]
    On 7 May 2024, this Tribunal gave directions for the parties to file submissions in terms of the Referral, also directing that unless otherwise ordered by the Tribunal, or on application by Teacher KDH for an oral hearing, then the Referral would be heard and determined on the papers.[9] Those submissions were duly received. There was no request for an oral hearing.
  9. [18]
    It is against this background that the Referral came before us and Member Jensen, the three of us together constituting the Tribunal for the conduct of this proceeding.[10]

The Contest between the parties

  1. [19]
    The parties were agreed in their material filed in this proceeding that a ground for disciplinary action against Teacher KDH has been established,[11] and that he should be reprimanded.[12]
  2. [20]
    The issue of dispute was in terms of the further order the College sought. Such was expressed in the Referral as being a notation to be endorsed on the register of teachers, such requiring Teacher KDH to undertake specified treatment and a testing regime in terms of what was asserted by the College to be ‘his alcohol dependence’, and in turn to provide relevant reports from medical professionals before his ‘suspended registration can be reinstated’, and that he meet the costs of obtaining all such reports.[13]
  3. [21]
    In opposing that order, Teacher KDH argued that the relevant reports are already available in terms of that which the College sought, and that the material before this Tribunal already shows the extent to which he had dealt with the issues that gave rise to the Offending Conduct. In contrast he sought an order that he be entitled to re-apply for registration immediately.[14]
  4. [22]
    The remaining issue was that there be a non-publication order made by the Tribunal in its orders in this proceeding, such which the parties agreed should be made.[15]

The Issues

  1. [23]
    The following were the issues this Tribunal was required to consider in addressing the Referral:
    1. Was a ground for disciplinary action against Teacher KDH established?
    2. Should there be an order for a reprimand?
    3. Should there be an order for a particular notation or endorsement about Teacher KDH to be entered in the register?
    4. Should there be a non-publication order?

Relevant Law

  1. [24]
    As is relevant to these Issues, subject to what we say next herein, the legal pathway via which the answers were to be found was in the Education Act. But before we embark on a discussion of that Act, we start by addressing another relevant piece of legislation this Tribunal was required to consider in conjunction with the Education Act.

The Human Rights Act 2019 (Qld)

  1. [25]
    The main objective of the Human Rights Act 2019 (Qld) (HRA) is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. That being said, so far as is possible consistent with their purposes, all statutory provisions must be interpreted in a way that is compatible, or most compatible, with human rights.[16] Such includes the Education Act.
  2. [26]
    As we considered the issues, there were a number of human rights relevant in this proceeding. Such included Teacher KDH’s right to recognition and equality before the law, his right to freedom of expression, and his right to privacy and reputation.[17] But there was a competing right that could not be overlooked, it being one permissibly considered in limiting his rights in the circumstances of he having been, and potentially could again be, a teacher of children. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[18]
  3. [27]
    That being so, decisions that were to be made in this practice and conduct proceeding which might be said to infringe Teacher KDH’s human rights could nevertheless still be compatible with the HRA. This was because, despite any limit that may be placed on his rights by the orders the College was seeking, the decisions could be justified by the factors outlined under section 13 of the HRA, inter alia because such would have the proper purpose of promoting and protecting the welfare and best interest of children, such being consistent with the primary considerations of the College under s 233 of the Education Act. But there is proviso to that.
  4. [28]
    As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable relevant factors include inter-alia, the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[19] We thus return to this aspect of the application of the HRA later in these reasons at paragraph [119].

Education (Queensland College of Teachers) Act 2005 (Qld)

  1. [29]
    We thus now turn to the Education Act and discuss here the provisions thereunder relevant to the issues in this proceeding.
  2. [30]
    The College is empowered to grant registration to persons as teachers.[20] Upon being granted such registration, a relevant person becomes a ‘registered teacher’, and as relevant to this proceeding the person is also described as an ‘approved teacher’ or in some instances a ‘relevant teacher’, all being terms used in the Act.[21]
  3. [31]
    The College must keep a register about ‘approved teachers’ (the Register).[22]
  4. [32]
    The College is also seized of power to suspend an approved teacher’s registration if the College reasonably believes the teacher poses an unacceptable risk of harm to children.[23] For that to occur, the College must issue the requisite Notice of Suspension.[24]
  5. [33]
    Any such suspension ends when the earliest of the following happens:[25]
    1. This Tribunal decides, under s 55, 152, 159, or 160, to end the suspension; or
    2. The teacher’s registration is cancelled under Chapter 2 Part 6 division 3 or section 160.
  6. [34]
    An approved teacher must pay the requisite annual fee so as to keep the registration. If he/she fails to do so, the College must cancel the registration.[26]
  7. [35]
    An approved teacher’s registration may also be cancelled by the College where the approved teacher is convicted of a serious offence or becomes a relevant excluded person,[27] or by this Tribunal as part of a decision about disciplinary action against the approved teacher,[28] each being a form of cancellation which give rise to the ending of a suspension as I noted it in paragraph [33](b) herein.
  8. [36]
    Upon cancellation of the registration, regardless of the basis for it, for the purposes of the Education Act the teacher is thereafter identified as a ‘former registered teacher’, and ‘a former approved teacher’, the latter also falling within the definition of a ‘relevant teacher’.[29]
  9. [37]
    If there is an allegation of harm caused, or likely to be caused, to a child because of the conduct of a relevant teacher, the employing authority, in this proceeding being the School, must give notice of that fact to the College.[30]
  1. [38]
    In turn, if the College reasonably believes that one or more grounds for disciplinary action against a relevant teacher exist,[31] the College must refer the matter to the relevant practice and conduct body, one of which is this Tribunal which in turn must conduct a hearing and make decisions about the matter.[32]
  2. [39]
    In doing so, if this Tribunal reasonably believes either before or during the conduct of the hearing that the relevant teacher may have an impairment, and that the impairment may have caused or contributed to the behaviour of the relevant teacher that is the basis for the practice and conduct proceeding which arises from the referral, this Tribunal may require the teacher to undergo a health assessment.[33]
  3. [40]
    As soon as practicable after finishing the hearing, this Tribunal must decide whether a ground for disciplinary action against the relevant teacher has been established.[34] If the ground is not established, and the relevant teacher’s registration was suspended under sections 48 or 49, this Tribunal is mandated to end the suspension.[35]
  4. [41]
    However, if this Tribunal decides the ground for disciplinary action is established, then this Tribunal may do one or more of a number of prescribed steps, namely:
    1. If the relevant teacher is an approved teacher:[36]
      1. Deciding to take no further action in relation to the matter;
      2. Ending the teacher’s suspension if suspended under s 48 or 49 of the Act;
      3. Issuing a warning or reprimand to the teacher; and
      4. Making an order that a particular notation or endorsement about the teacher be entered in the Register.
    2. If the relevant teacher is a former approved teacher:[37]
      1. Deciding to take no further action in relation to the matter;
      2. If the Tribunal would have made an order cancelling the teacher’s registration if the teacher had been an approved teacher[38] – make an order prohibiting the teacher from reapplying for registration for a stated period from the day the order is made or indefinitely; and
      3. Making an order that a particular notation or endorsement about the teacher be entered in the Register.

Discussion on the Issues in terms of the Relevant Law

Ground for Disciplinary Action

  1. [42]
    As we noted it earlier herein, the parties agreed that a ground for disciplinary action had been established. That ground was expressed as that found under s 92(1)(h) of the Education Act, namely that Teacher KDH had behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher. The behaviour is that demonstrated by the Offending Conduct as we described it in paragraph [11] herein. However, albeit it was common ground, it remained an issue for this Tribunal to be satisfied of on review of the facts and circumstances in reaching the decision the Tribunal was mandated to make under s 158(1) of the Education Act.
  2. [43]
    The phrase ‘the standard of behaviour generally expected of a teacher’ as it appears in s 92(1)(h) is not defined in the Act. But it is a phrase that has previously been considered by this Tribunal and found to mean - that which is generally expected, viewed objectively, by both the community and the teaching profession. As it was observed in Queensland College of Teachers v Armstrong:[39]

… the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.

  1. [44]
    However, it is not the standard of behaviour expected by the School, nor any particular school. It must be the standard of conduct of the whole of the teaching profession.[40]
  2. [45]
    With that being the meaning of the relevant provision of the Act, in our opinion this issue was able to be addressed and resolved with minimal discussion.
  3. [46]
    Whilst the evidence before the Tribunal indicated that Teacher KDH concealed the alcohol in an area which is said to have been inaccessible to students, that does not reduce the gravity of the Offending Conduct.
  4. [47]
    As a teacher at the School, he took four bottles of wine on to the grounds of the School, concealed them, and then during the course of a teaching day accessed them and drank what appears to be at least almost two bottles of the wine when he was on duty as a teacher. Moreover, he was observed as having done so immediately before leaving one part of the School area to go to his designated classroom to conduct teaching.[41] When he was subsequently questioned about his conduct, such occurring after he had been observed on CCTV vision drinking from a wine bottle on school ground and in turn then intercepted on his way to the classroom, so being prevented from conducting the class, it is said that his demeanour was ‘reserved’ and ‘a little bit arrogant in a passive way’, that he knew ‘he had made a grave mistake’, and that he did not offer any sort of insight into his conduct.[42]
  5. [48]
    The College then formed the view that the Offending Conduct, considered in light of those comments, was sufficient to satisfy it that Teacher KDH posed an unacceptable risk to children.[43] We agree.
  6. [49]
    As to what is an ‘unacceptable risk’ in this circumstance, it has been held to be:[44]

… an assessment of the ‘chances’ of the risk occurring and the magnitude of potential harm if it did occur, and requires a balancing exercise of advantages and detriments.

such is to be considered with the benefit of the definition of ‘harm’ in the Education Act, which for ease of reference we extract here in full:

  1. 7
    Meaning of harm
  1. Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
  1. It is immaterial how the harm is caused.
  1. Harm can be caused by—
  1. physical, psychological or emotional abuse or neglect;

or

  1. sexual abuse or exploitation.
  1. Harm can be caused by—
  1. a single act, omission or circumstance; or
  1. a series or combination of acts, omissions or circumstances.
  1. [50]
    Given that risk, and that definition of harm, it seemed to us that if Teacher KDH were to have conducted a teaching class after having consumed a relatively substantial quantity of wine, and thus we infer he could have been adversely affected, even this one single act could lead to a child in his care in the classroom being exposed to a detrimental effect, of a significant nature, on the child’s physical, psychological or emotional wellbeing. Whilst expressed in terms of a consideration of issues under the Working with Children (Risk Management and Screening) Act 2000 (Qld),[45] this Tribunal expressed an observation which in our opinion is equally relevant to the question of harm to a child in a teaching environment, such being:[46]

If a person in charge of children or who is caring for children or working with children, then that person is not in a position to be able to disconnect themselves, remove themselves from the situation or to wait for a support person to become available. Children are entitled to the protection of the adult that is caring for them and has them under their protection.

  1. [51]
    In another matter, again one considering that legislation, this Tribunal expressed a view which we also considered relevant to that question, namely:[47]

Any child being cared for by a person has a right to have someone who has a respect for the law and is aware of boundaries and is not prepared to cross these for their own needs …

  1. [52]
    We also make this comment, once again in reference to a decision concerning working with children legislation and on this occasion being a decision made by a predecessor tribunal to this Tribunal. It is that as was observed by the former Children’s Services Tribunal in Re TAA, such being expressed relevant to the question of insight:[48]

A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.

  1. [53]
    Having considered those observations, we readily formed the opinion that the Offending Conduct, and moreover what the material before this Tribunal demonstrated was a degree of arrogance and absence of insight by Teacher KDH in terms of such, was conduct that the community at large would not expect, nor would it in any way accept it as being proper or even permissible for any teacher to engage in when in a position to care for and guide the communities' children in a learning environment. The community would objectively hold a view consistent with those observations, and in turn would find the Offending Conduct to be entirely unacceptable. It was well below the standard of behaviour expected of a teacher. Also, in our opinion the teaching profession at large would hold the same opinion.
  2. [54]
    But the question that remained was whether it could be somehow excused such that it did not dictate a finding that a ground for disciplinary action had been made out. As the learned Senior Member observed when dealing with the College’s referral of the suspension order to this Tribunal:[49]

There is evidence that Teacher KDH has significant personal and mental health issues.

  1. [55]
    As we read and understood that comment, such was made in reference to that which is described in the material once again before the Tribunal in this proceeding.[50]
  2. [56]
    In our opinion that was no excuse at the time of the Offending Conduct. To consider such as a factor which changes the standard referred to in s 92(1)(h) of the Education Act in a manner favourable to Teacher KDH would be to consider the issue subjectively, not objectively.[51]
  1. [57]
    Nor could it be said it was an excuse that, with the passage of time since the Offending Conduct, Teacher KDH might have developed some degree of insight. Whether or not he has developed insight is not something we need to have been concerned about in addressing this issue under the Referral. The relevant time for determining whether the ground is established is when the Offending Conduct occurred.
  2. [58]
    All that being said, the Offending Conduct was simply unacceptable behaviour by Teacher KDH. Thus, for the reasons we have given in the preceding paragraphs herein, we readily concluded that a ground for disciplinary action was established, it being that as described in s 92(1)(h) of the Act. That finding then lead to deciding what further orders (if any) should be made in terms of giving effect to any such disciplinary action.
  3. [59]
    As we discuss it in the paragraphs that follow here, such question required consideration of the extent of this Tribunal’s powers within the jurisdiction of which it was seized. In that regard, it must not be overlooked that there is a fundamental obligation cast on this Tribunal to satisfy itself as to jurisdiction when being asked to quell any controversies that come before it.[52] Such is applicable even in circumstances where the parties may be ad-idem on particular relief. This Tribunal is not free to set its jurisdictional boundaries. If it strays beyond the boundaries set by legislation, in this case the Education Act read together with the QCAT Act, the proceeding, or at the very least part of the outcome of the proceeding, would be invalid. This Tribunal cannot arrogate to itself jurisdiction not derived from the QCAT Act or the Education Act.[53] This is so even if the parties agree to an outcome that is beyond those jurisdictional boundaries. It is also so, as we have already discussed it, even if the desired outcome would reflect the requisite protection of a child under the HRA.
  4. [60]
    For the reasons we discuss in the following paragraphs, it is our opinion that the remaining orders the College sought, which in part were opposed by Teacher KDH, were beyond the boundaries of this Tribunal’s jurisdiction.

A Reprimand

  1. [61]
    In its Referral, the College sought an order that Teacher KDH be reprimanded. In his submissions to this Tribunal on that Referral, Teacher KDH agreed with such an order being made.
  2. [62]
    However, there was an issue that arose with the events occurring subsequent to the Referral, namely that on 3 April 2024 Teacher KDH’s registration was removed from the Register for failure to have paid the requisite registration fees. Whilst not stated as such anywhere in the College’s material filed in this proceeding, we infer that such could only be as a result of the mandatory cancellation of his registration under s 66 of the Education Act. With that having been done, Teacher KDH became a ‘former approved teacher’, and in turn the relevant provision of the Education Act about disciplinary action then became s 161 instead of s 160, the latter being operative in terms of approved teachers. 
  3. [63]
    Recently in Queensland College of Teachers v EFG,[54] (EFG) this Tribunal ordered that a notation be entered into the register under s 161(2)(d) of the Education Act that the ‘respondent is reprimanded’. Later in these reasons we discuss the question of whether a notation should, or even could, be entered in the Register, it effectively being the subject of the third order sought by the College and opposed by Teacher KDH. Here we address solely the issue as to whether such may include a ‘reprimand’ under s 161.
  4. [64]
    Whilst we respect the opinion of the Members who decided the issues arising in EFG, we do not agree that it was open for them to have made the order for a reprimand via s 161(2)(d) of the Education Act. Thus we firmly hold the view that it is not a decision to which consideration should be given in the manner contemplated by s 4(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). We explain why in the paragraphs that follow here.
  5. [65]
    First, there is confusion in the Members’ reasoning as it is discussed in the reasons for that decision.
  6. [66]
    As they noted at [2] therein the teacher’s registration had been cancelled when he formally surrendered his registration. However, whilst surrender is permissible under s 59 of the Education Act, there is nothing contained in the Act which should have led to cancellation,[55] particularly in circumstances where the teacher’s registration had only 4 days prior been suspended under s 48 of the Act when the teacher had been charged with serious offences involving inter-alia grooming a child and indecent treatment of a child. Thus the College should have left open the avenue of disciplinary action under s 160 of the Education Act.
  7. [67]
    Yet, despite noting the cancellation of the registration, the Members expressly referred to and discussed the application of s 160 in paragraph [17] of their reasons, rather than s 161 which is the relevant provision after registration is cancelled, and thus I infer was the premise for their decision to issue a reprimand and to make an order for a notation on the register. This is so notwithstanding they expressed the source of that order to be under s 161(2), having noted at [14] they had had regard to other decisions of the Tribunal concerning s 161, although in each instance such could have been meant to be a reference to s 160.
  8. [68]
    It is also apposite to note the citation by the learned Members at [21] of Queensland College of Teachers v Teacher GBJ,[56] (GBJ) seemingly as either authority for, or at the very least a basis for, their orders in terms of the notation. When one looks at the reasons in GBJ it is readily seen that the Tribunal therein gave orders under s 160(2) of the Act, and that the order requiring the teacher to provide a psychologist’s report was made under s 160(2)(k), not being an order for a notation on the register under s 160(2)(i), the latter being the equivalent of s 161(2)(d) which is the subject of discussion later herein.
  9. [69]
    Second, it is necessary to note the relevant High Court authority in terms of statutory interpretation.
  10. [70]
    In Alcan (NT) v Territory Revenue the Court reminded us:[57]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. … The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. …

  1. [71]
    A somewhat similar observation was given many years earlier by the Court in Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky), namely:[58]

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

  1. [72]
    Third, with those authorities in mind, regard must be had to the precise words of s 161, particularly when compared to the words of s 160.
  2. [73]
    It should readily be noted that there is a relative and distinct difference between the two provisions. Unlike s 160 of the Act where there is an express provision empowering the Tribunal to give a reprimand,[59] no such provision is found in s 161. Thus the question being - why the difference?
  3. [74]
    In an effort to answer that question, it should be observed that there was no debate in parliament about the provisions of the Education (Queensland College of Teachers) Bill 2005 (Qld) from which the Education Act emanated in terms of either of these sections, they merely having been read and agreed to as part of the second reading of the Bill.[60] As such, it is evident that when enacting s 160 parliament intended that a reprimand could be issued to a teacher whose registration was current, even if suspended. But when enacting s 161, it being the relevant provision once registration was cancelled and so the relevant teacher becoming a former approved teacher, it is equally evident parliament did not hold an equivalent intention for a former teacher to later be reprimanded. If it had done so, the words would have been there, or if not something could be found in the debate over the Bill in parliament that could lead to such a conclusion. Thus, these provisions must be read literally.
  4. [75]
    That being so, to now provide for a reprimand under s 161, even by way of incorporation of same into a notation under s 161(2)(d), is to add into the legislation words which are not there.
  5. [76]
    Under s 97 of the Education Act, this Tribunal is conferred with the general power to address a referral from the College of a practice and conduct proceeding. In particular, under s 97(4)(b) therein, this Tribunal is mandated to make decisions about such a matter. The manner in which that power is exercised in satisfaction of that mandate is found in other provisions, both of the QCAT Act[61] and the Education Act Chapter 6 Part 2. We were not concerned with the former in this discussion, and part only of the latter.
  6. [77]
    The exercise of that power starts with a consideration of s 92 read together with s 158 of the Education Act.[62] When the ground for disciplinary action is established thereunder, the exercise of that power then turns to s 160 and s 161 of the Act, each providing an exclusive prescription of that which this Tribunal may then do. But, before we turned to considering the content of those provisions and the manner in which we saw them to be relevant to the present issue, it seemed to us apposite to return to Project Blue Sky and note the following as observed by Brennan J therein:[63]

A provision conferring a general power and a provision prescribing the manner in which the repository of that power must exercise it have to be read together. In Colquhoun v Brooks, Lord Herschell said:

"It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act."

When the Parliament confers a power and statutorily directs the manner of its exercise, "[t]he ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains". Therefore a provision conferring the power must be so construed as to conform with a provision governing the manner of its exercise. The authority conferred on the repository of a general power cannot be exercised in conflict with a provision which governs the manner of its exercise; the constraint on the exercise of the power defines the ambit of the power granted. A purported exercise of a power in breach of the provision which governs the manner of its exercise is invalid, since there is no power to support it.

… A statutory direction as to the manner in which a power may be exercised is not a condition upon the existence of the power or a mere direction as to the doing of some preliminary or collateral act. It is a delimitation of the power itself.

  1. [78]
    Thus, as per the emphasised words just noted from Brennan J’s reasoning, a relevant focus was whether there has been a delimitation of the relevant power given the narrower ambit of s 161 compared to s 160. We considered that question by first turning to the ambit of the power under s 97(4)(b) of the Education Act and the exercise of that power in terms of s 158 of the Act, to the extent it is constrained by the words of s 160 and s 161. As his Honour expressed it, but put in words related to the present circumstances, the authority conferred on this Tribunal of the power under s 97, cannot be exercised in conflict with s 158 and in turn either s 160 or s 161, the constraints given in the latter being in terms of the exclusive prescription therein of that which this Tribunal may do, such defining the ambit of this Tribunal’s power. Or to put it another way, they delimit the power itself.
  2. [79]
    We thus return to that which we said earlier in paragraph [73] herein. Whilst s 160 contains an express provision empowering the Tribunal to give a reprimand, no such provision is found in s 161. That is, the power under s 161 in terms of former approved teachers is further limited beyond that which the Tribunal is given under s 160 in terms of approved teachers. It is therefore a constraint on the power of this Tribunal to issue a reprimand to a ‘former approved teacher’, of which Teacher KDH is one upon the College cancelling his registration under s 66 of the Education Act. Once that is recognised, in our opinion any order this Tribunal made under s 161 of the Education Act issuing a reprimand, or any other description that might be used, would be invalid.
  3. [80]
    Returning once more to the words of Brennan J in Project Blue Sky:[64]

If the power exercised by a repository is within the ambit of the power reposed, there can be no unlawfulness on the part of the repository in exercising it. Either there is power available for exercise in the manner in which the repository has exercised it and the exercise is lawful or there is no power available for exercise in the manner in which the repository has purported to exercise it and the purported exercise is invalid.

  1. [81]
    For this reason, we would not make the order of a reprimand as sought by the College, even though it was not opposed to, and moreover expressly agreed to, by Teacher KDH.

A Notation or Endorsement on the Register

  1. [82]
    We turned next to the disputed issue of whether a notation or endorsement should be placed on the Register.
  2. [83]
    Firstly, it seemed to us that the description as it appears in s 161(2)(d) is cumbersome and confusing. Neither the term ‘endorsement’ or ‘notation’ are defined in the Education Act. Yet, in our opinion the meaning to be attributed to them in the context in which they are used, namely as a means of giving effect to disciplinary action, is important. Thus we turned to a dictionary definition.
  3. [84]
    In the context in which it they are used, ‘endorsement’ can readily be said to mean the ‘approval of a sanction’ and ‘a statement subsequently added to a document to indicate some modification to its original terms’; and ‘notation’ can be said to mean “the act of noting, marking or setting down in writing”. The former dictates the need for consideration of another term, namely ‘sanction’ which is defined to mean “ a provision of a law enacting a penalty for disobedience”.[65]
  1. [85]
    Thus, it seemed to us that to the extent there was a reference to an endorsement being permitted, such was by way of a notation to impose some form of sanction on the relevant teacher, and that the relevant notation was then to impart a penalty of some description on the relevant teacher as a consequence of the conduct from which a ground for disciplinary action was established.
  2. [86]
    But it must be recalled that the ‘penalty’ was not to be in the form of a ‘punishment’. As the Tribunal has previously observed:

The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way. It is essential that persons registered as teachers do not pose a risk of harm to children. Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”.[66]

Disciplinary action is not punitive, but rather for the protection of vulnerable young persons. It must provide for general and specific deterrence.[67]

The purpose of disciplinary proceedings is not to punish but to protect children and the community.[68]

  1. [87]
    Whilst we do not disagree with these observations generally, in our opinion the relevant issue is the extent to which that ‘deterrence’ can be achieved in terms of a former approved teacher given the substantially narrower ambit of s 161 of the Education Act compared to s 160, the latter being relevant to approved teachers, and also considered in light of the provisions of the HRA in terms of the need for consideration to be given to any less restrictive manner of achieving same.
  2. [88]
    All that being so, as we discuss in the paragraphs that follow here,[69] there was some similarity to the question of whether a reprimand could be issued. However, unlike that issue and the difference therein between s 160 and s 161, there is no equivalent difference in these sections in terms of the power this Tribunal has to make an order that a particular notation be entered in the register, the prescription of which found in each, namely s 160(2)(i) and s 161(2)(d). Yet notwithstanding that similarity, the meaning to be attributed to each provision is not the same given that the former relates to an ‘approved teacher’ whereas the latter relates to a ‘former approved teacher’, and there being a limitation on the latter which is found elsewhere in the legislation. In that regard the comment of the plurality in Project Blue Sky we noted in paragraph [71] herein must be recalled – a relevant provision is to be construed consistent with the language and purpose of all provisions of the statute, and it must be determined by reference to the language of the statute viewed as a whole. 
  3. [89]
    That being so, the starting point was that prescribed under Chapter 11 Part 2 of the Education Act, namely the ‘Register of approved teachers’ and in particular s 288 therein.[70] For ease of reference we extract here the relevant parts of that section:
  1. 288
    Register of approved teachers to be kept
  1. The college must keep a register about approved teachers.
  1. …
  1. The register must contain the following details for each approved teacher—

…

  1. (k)
    the current period of the registration or permission to teach;
  2. (l)
    if the teacher’s registration or permission to teach is suspended—
  1. the day the suspension took effect; and
  1. the period of the suspension;
  1. (m)
    an endorsement or notation about the teacher entered in the register under a practice and conduct order;
  2. (n)
    details of any other practice and conduct order made against the teacher, including the day the order was made and the ground for disciplinary action;
  1. The register must also contain the following information for a person whose registration or permission to teach was cancelled by the college under section 56 or by QCAT under section 160—
  1. the person’s full name;
  1. that the person’s registration or permission to teach was cancelled on disciplinary grounds;
  1. the person’s former identification number;
  1. if a disciplinary order prevents the person reapplying for  registration or permission to teach for a stated period—the period for which the person can not reapply for registration or permission to teach.
  1. However, the information mentioned in subsection (5) must be removed from the register—
  1. if the person’s registration or permission to teach was cancelled under section 56—as soon as practicable after the person stops being an excluded person in relation to the cancellation under section 57(3); or
  1. if the person’s registration or permission to teach was cancelled under section 160 and the order prevents the person reapplying for registration or permission to teach for a stated period—the day on which the stated period ends.
  1. [90]
    Relevant to this discussion, the notable aspects are:
    1. The register is only about ‘approved teachers’. It is not a register that, save only for two comments we make in the next paragraph, includes ‘former approved teachers’;
    2. It is to contain details of an approved teacher’s ‘current period’ of registration. It does not require a record of any ‘former period’ of registration, particularly in circumstances where the registration was cancelled under s 66 of the Act;
    3. It does not require any record of the cancellation of a teacher’s registration under s 66 of the Act. It only requires a record of any suspension.
  2. [91]
    The saving comments to which we just referred are that which arises from s 288(3)(m) and s 288(5).
  3. [92]
    The first of these prescribes the requirement for the inclusion of a notation about the teacher entered in the register under a practice and conduct order, such being the subject of the disciplinary orders the College sought in this proceeding. But two things must be said about that. Firstly, it is expressed in the language of ‘the teacher’, such which must be read and understood in terms of the words found in the preamble to subsection (3), namely ‘the approved teacher’, and accordingly it is to be read as being directed only to notations about an ‘approved teacher’ recorded in the register. Secondly, following the rules of statutory interpretation which we discussed earlier in terms of High Court authority, s 288(3)(m) must also be read together with and construed in terms of the source of that notice, such found in s 160 or s 161 of the Education Act being where the source of the exercise of power to make the practice and conduct order is found.
  4. [93]
    The second of these prescribes a requirement for the Register to contain information concerning a cancellation of registration under s 56 or s 160 of the Act. As we noted it earlier in these reasons, such is the circumstances where the ‘approved teacher’ is convicted of a serious offence or becomes a relevant excluded person, being cancellation by the College, or as part of a decision about disciplinary action against the ‘approved teacher’, being cancellation by order of this Tribunal. Thus, in the circumstances of these reasons for cancellation, contrasted to cancellation by the College under s 66 for non-payment of fees, notwithstanding that the teacher then effectively becomes a ‘former approved teacher’ the express requirement of the Act is that the teacher remains viewed as an ‘approved teacher’ in the register, with the record of the cancellation and associated circumstances being recorded therein subject to the limiting provisions of s 288(6).
  5. [94]
    It also should not be overlooked that s 288 is merely prescriptive of what the Register must include. It is not proscriptive. Thus it remains open for the College to include other information in the Register that is not mandated by this provision. However, such must be understood as being only in regard to an ‘approved teacher’.
  6. [95]
    Thus, we turned to the relevant provision, it being s 161 given that, by the time of the hearing of the Referral, Teacher KDH had become a ‘former approved teacher’ as a result of the cancellation of his registration under s 66 of the Act.
  7. [96]
    Whilst s 161(2)(d) provides for a notation to be entered in the register, given that the register is only one which is about ‘approved teachers’ the question that arises is - on what basis can a notation about a ‘former approved teacher’ be entered in the register? Whilst that is answered in part by reference to what we said in paragraph [93] herein, such is not an answer to the extent the question is to be considered relevant to Teacher KDH given his registration was not cancelled under s 56 of s 106.
  8. [97]
    There have been decisions of this Tribunal previously in which orders have been made for notations to be entered in the register in terms of former approved teachers. Accordingly, given the provisions of s 4(d) of the QCAT Act that mandates this Tribunal to “ensure like cases are treated alike”, it was essential for us to review and consider those earlier decisions.
  9. [98]
    In Queensland College of Teachers v ALE,[71] (ALE) the teacher, having had his registration suspended, did not seek to renew it. Thus it was cancelled, and so he became a former approved teacher. Having found that there were grounds for disciplinary action, the Tribunal stated that, had the teacher remained registered it would have cancelled his registration, such being a finding open for it to make under s 161(2)(c) of the Education Act, and so made an order to that effect. It also made orders in terms of conditions the teacher would be required to satisfy when seeking re-registration. The form of the notation the College sought in this proceeding bore some similarity to the orders therein. However, in ALE the Tribunal did not express the source of its power to make such orders, thus it could not be said with certainty that the Tribunal made such orders as being a ‘particular notation of endorsement about the teacher be entered in the register’ although we noted that at [19] therein the Tribunal observed that the College sought the relevant order be a notation entered in the register for such conditions, and the Order 2 of the Tribunal’s orders was expressed as being a ‘notation is to be entered into the register’, thus the inference can be drawn that the Tribunal’s orders were made under s 161(2)(d). But in our opinion, such must be read as being orders made under paragraph (d) in conjunction with the order made under paragraph (c).
  10. [99]
    In Queensland College of Teachers v NRR,[72] (NRR) the teacher’s registration was suspended, and later cancelled for non-payment of the annual renewal fee. In a practice and conduct proceeding which followed the suspension, the Tribunal found that a ground for disciplinary action was established, and went on to order a notation be entered on the register under s 161(2)(d). However in doing so, like the Tribunal in ALE, it had also made an order prohibiting the teacher from reapplying for registration of a stated period. Whilst not expressed in the Tribunal’s reasons as being an order made under s 161(2)(c), and moreover in the Tribunal’s reasons there is no discussion about whether the Tribunal would have made an order cancelling the teacher’s registration if the teacher had been an approved teacher, given such an order was made the inference that may be drawn is that the source of the power the Tribunal on that occasion relied on to make such an order was s 161(2)(c), thus also allowing the inference to be drawn that it would have made an order of cancellation had the teacher remained an approved teacher but for the cancellation for non-payment of the annual fee.
  11. [100]
    In Queensland College of Teachers v Teacher WBJ,[73] (WBJ) the teacher had surrendered her registration after being suspended. Having done so she became a former approved teacher. In a practice and conduct proceeding which followed, the Tribunal made orders under s 161(2)(d) as to steps the teacher was required to take before applying for re-registration. Once again the form of the notation the College sought in this proceeding bore some similarity to the orders therein. Also, simultaneously the Tribunal in that matter made orders pursuant to s 161(2)(c) prohibiting the teacher from re-applying for registration for a specified period. Whilst unlike the Tribunal’s orders in NRR, it expressed its orders as being made under s 161(2)(c) however, like NRR, there was no discussion within its reasons that it would have cancelled the teacher’s registration had the teacher been an approved teacher, but for the same reasons I just mentioned in terms of NRR the inference may readily be drawn that this was the Tribunal’s finding.
  12. [101]
    What these decisions show is that, in terms of a former approved teacher, the extent to which this Tribunal has made an order for a notation to be entered under s 161(2)(d) of the Education Act is in circumstances where it would have cancelled the registration  had the teacher been an approved teacher, thus in effect invoking what would have been the power under s 160 of the Act.
  13. [102]
    In our opinion that was a critical factor in the issue as it arose in this proceeding. This is because no such order under s 161(2)(c) was sought by the College. It was simply that the College sought an order for a notation about Teacher KDH be entered in the register, such being similar in form to the notations ordered in those earlier decisions.
  14. [103]
    We thus return to the question we posed in paragraph [94] herein, such being - on what basis can such a notation be ordered under s 161(2)(d)? - further refined to be in circumstances where there is no order made under s 161(2)(c), and to consider it in light of that which we said in paragraphs [83] to [87] herein as to the meaning to be attributed to the words in s 161(2)(d) so as to frame the question in this manner –

Can s 161(2)(3) be used as the premise for the exercise of power by this Tribunal to order disciplinary action, so as to sanction a former approved teacher by imposing conditions on the teacher seeking re-registration?

  1. [104]
    In our opinion, the answer to that question must be ‘No’. We explain why.
  2. [105]
    Firstly, there is no power under s 161(2) permitting this Tribunal to ‘impose conditions’, or to ‘make another order QCAT considers appropriate’ in terms of a ‘former approved teacher’. Compare this to s 160(2)(h) and (k) that expressly provide for such in terms of an ‘approved teacher’. The reasoning we discussed earlier herein in terms of this Tribunal’s power to make an order of reprimand under s 161(2), or more accurately the absence thereof, is equally applicable to this aspect of the discussion.
  3. [106]
    Secondly, it must not be overlooked that the Register is of ‘approved teachers’ and the extent to which the express provisions of the Act provide for the Register to include information about a ‘former approved teacher’ is that provided for under s 288(5) which we have discussed earlier herein, such being only in circumstances where the teacher’s registration has been cancelled under s 56 or s 160, Notably, and critically, none of this includes cancellation under s 66 of the Act.
  4. [107]
    That being so, the power afforded this Tribunal under s 161(2)(d) to make an order that a particular notation about a teacher be entered in the register is only available to be exercised in circumstances where the former approved teacher’s registration was cancelled under s 56 or s 160. However we also consider it is arguable that such a power could be extended to where the Tribunal concludes it would have cancelled the registration under s 160 when considering the issues in terms of s 161(2)(c), although we do not make any definitive finding about that given it did not arise in this proceeding. However we do note the extent to which that appears to be a premise for the Tribunal’s orders in the earlier decisions we discussed in paragraphs [98] to [101] herein. In our opinion that is the only meaning that can be given to s 161(2)(d) in the circumstances were the Register is only one about ‘approved teachers' notwithstanding that s 161 is directed to decisions about ‘former approved teachers’.
  5. [108]
    Returning once more to Project Blue Sky it is seen that such an interpretation is consistent with the rules of statutory interpretation as discussed by the plurality therein, namely:[74]

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

  1. [109]
    Once again, once that is recognised, any order this Tribunal may make in this proceeding under s 161(2)(d) of the Education Act in terms of a notation about Teacher KDH being entered on the register would be invalid.[75] This is because his registration was cancelled under s 66, not s 59 or s 160. Accordingly it follows, for the same reasons as we discussed relative to an order for a reprimand not being open to be made by this Tribunal in the present circumstances, it was equally not open for this Tribunal to make an order for a notation to be recorded in the register.
  2. [110]
    For these reasons we would not make an order that a particular notation about Teacher KDH be entered in the Register.
  3. [111]
    That being so, it was not necessary for us to consider the argument made by Teacher KDH in his submissions as to why the notation should not be ordered. We do however consider it necessary, for completeness, to express these four further observations.
  4. [112]
    Firstly, even if we are  wrong in our interpretation of s 161(2)(d) of the Education Act, on the material before the Tribunal in this proceeding we would not have ordered the notation as sought. We explain why.
  5. [113]
    In its original application, the College sought an order for the notation to be made under s 160(2)(i), such being expressed as follows:[76]

Before the Respondent’s suspended registration can be reinstated:

  1. i.
    [Teacher KDH] must undertake treatment for his alcohol dependence …
  2. ii.
    …
  1. [114]
    Noting it was properly expressed as being to be made under s 160(2) because at that time Teacher KDH remained an approved teacher, albeit his registration being subject to a suspension, somewhat curiously when the College filed its submissions on 3 June 2024, that being after it had cancelled the registration under s 66 of the Act, it did not at any time refer to s 161 of the Act as being the relevant provision, nor did it seek to change the order originally sought. All it did was make these submissions:[77]

The applicant considers a reprimand and notation requiring [Teacher KDH] to provide medical evidence that his alcohol dependence has resolved upon re-application is usual in these types of matters. …

The applicant submits the sanction should reflect the progress made by the respondent in getting his alcohol misuse under control. Should the Tribunal be satisfied the respondent has recovered from alcohol misuse, he would be entitled to re-apply for registration immediately.

  1. [115]
    It is entirely unclear to us as to the meaning of these submissions and whether the College was expecting that this Tribunal would make a finding that Teacher KDH had an ‘alcohol dependence’ or ‘alcohol misuse’ issue, and that such was now ‘under control.’ If that was to have been so, then the question that arises is why the need for a notation, or alternatively whether the terms of the notation should be watered down from that which was originally sought.
  2. [116]
    But more importantly, what the College had seemingly entirely overlooked in either scenario is that this Tribunal would not be in a position to make a positive finding to the Briginshaw standard that Teacher KDH had an alcohol ‘dependence’, or at the very least a ‘misuse’ issue. This is because such would fall within the ambit of the definition of an ‘impairment’ under the Education Act,[78] and thus to make such a finding would require this Tribunal to, at the very least, ‘reasonably believe’ that Teacher KDH had such an issue. That being so, whilst it may readily be said that such was generally apparent on the material filed in this proceeding, and thus it could be said he had an impairment, in our opinion it may readily be said that on the same material it is possible that  the impairment may have caused or contributed to the Offending Conduct which is the basis for this practice and conduct proceeding.[79]
  3. [117]
    Accordingly, it would then follow that this Tribunal should have required Teacher KDH to have undertaken a health assessment at the cost of the College. Whilst it is a discretionary power under s 136 of the Education Act, it seemed to us that, when what would effectively be a sanction being imposed on Teacher KDH should the notation requested by the College be ordered, it would first require this Tribunal to exercise that discretion and ensure its belief is one properly held and so would warrant the sanction. Only once the results of that assessment were known and considered by the Tribunal would it have been appropriate to determine the extent and detail of any notation that may have been necessary if one could have been made. In the absence of that path being taken, no such order for a notation could have been properly made.
  4. [118]
    Secondly, as we have noted it earlier herein, what the College was asking this Tribunal to do in terms of the notation for which it sought an order was to impose a condition on Teacher KDH in terms of if and when he may apply again for registration. Save only for the circumstances demonstrated in the earlier decisions of this Tribunal to which we referred earlier, this is not something this Tribunal is empowered to do under the Education Act in a practice and conduct proceeding. The extent to which this Tribunal is seized of any power to make an order which limits a former approved teacher in terms of reapplying for registration is that expressed in s 161(2)(c) of the Act, such which effectively arises out of the operation of s 160 and so in that instance provides for the former approved teacher to be effectively treated as an approved teacher.  But, as we also discussed it earlier, that section did not arise for consideration in this proceeding given it had not been raised by either party and no relief in its terms was sought by the College or had been addressed in response by Teacher KDH.
  5. [119]
    Thirdly, as we said in paragraph [28] herein we would do so, we return to the relevance and application of the HRA.
  6. [120]
    If this Tribunal were to go ahead and make an order that a notation be placed on the Register, it being something that Teacher KDH is now not required to be part of following the College’s cancellation of his registration under s 66 of the Education Act, such being in contrast to s 56 of that Act which is that which triggers the provisions of s 288(5) of the Act thus providing a basis for a notation to be placed on the Register, then it would have the effect of limiting his right under s 25 of the HRA, namely his right to privacy and reputation.[80]
  7. [121]
    Whilst it should readily be accepted that such a right may be limited under s 13 of the HRA, in our opinion such could only occur if the rights to be afforded a child under s 26 of the HRA were to take priority. Thus the issue that arose was, in the circumstances as they were when the matter came before the Tribunal for determination, whether the rights of children were to take priority such that it required the orders to be made that the College was seeking. If the answer to that was yes, then the source of the Tribunal’s power to make the necessary orders so as to give effect to that priority had to be identified. But such is not to be found in the HRA by virtue of the requirement to give priority to the rights of a child. To put it another way, the HRA does not give this Tribunal jurisdiction to make an order that it does not otherwise have. In the absence of a source of power to make the orders sought, then priority cannot be given to the rights of children over those of Teacher KDH and so limit his rights in a lawful manner.
  1. [122]
    At paragraph [58] and those that follow it herein, we discussed this Tribunal‘s jurisdiction in some detail wherein we explained why, in our opinion, this Tribunal was not seized of jurisdiction to make all the orders the College was seeking. But again, even if we were wrong about that, there was a balancing exercise that had to be carried out consistent with s 13(2)(d) of the HRA. Such was to consider whether there was a less restrictive and reasonably available way to give effect to that which the College was seeking to achieve by way of the notation it wanted this Tribunal to order. This was because, as we mentioned earlier, the notation sought was to effectively place a condition on Teacher KDH seeking re-registration.
  2. [123]
    It must not be overlooked that such could readily be dealt with by the College on its consideration of any such application for registration that Teacher KDH may choose to make following his cancellation. Such could be a request made by the College under s 17 of the Education Act that further information be provided before it decides his application, and/or by imposing conditions under s 20 of the Act attached to the granting of registration in circumstances where the College needed to be satisfied that Teacher KDH is ‘suitable to teach’, it being one of the eligibility criteria that must be met for registration.[81]
  3. [124]
    Accordingly, there is already a mechanism available to the College found in the Education Act that is a less restrictive and reasonably available way to achieve that which the College argued was necessary. The College may readily do it without the need for this Tribunal to make any order for a notation to be placed on the register. All the College need to do is that which it is already empowered to do under the Act. Moreover, it is one which still affords the protection to children’s rights under s 26 of the HRA, but also protects Teacher KDH’s rights under s 25 of the HRA. The requisite balancing exercise can thus readily be performed and satisfied.
  4. [125]
    Fourthly, in terms of the objects of the Education Act and the purpose of the disciplinary action we return to that which we identified in paragraph [86] herein. As noted in the parts of relevant earlier decisions of this Tribunal extracted there, the relevant sanction was for the purposes of inter-alia:
    1. ‘maintaining public confidence in the profession’, and to ‘provide general deterrence to the members of the teaching profession’; and
    2. ‘protecting the public’, ‘ensuring persons registered as teachers do not pose a risk of harm to children’, ‘for the protection of vulnerable young persons’, and ‘to protect children and the community’.
  5. [126]
    The first of those two groups could not be effected by a sanction imposed by way of a notation entered in the Register because, as we mentioned it in Footnote 80 herein, such is not a part of the Register available to the public unless the relevant teacher gave consent for same. The second of those two groups could readily be effected by the steps open to be taken by the College under s 17 and/or s 20 of the Education Act. Thus there is simply no premise for the sanction sought by the College to be ordered by this Tribunal so as to advance the objects of the Act, such being an issue to have been considered in the balancing exercise under the HRA.
  6. [127]
    All that being so, once again even if we are wrong in our interpretation of the Education Act as to the extent of this Tribunal’s power to have made an order for the placement of a notation on the Register concerning Teacher KDH, we would still not have given the orders the College sought in terms of at least the notation. It would be something that gives rise to the connection between restrictions that may be placed on employment circumstances for a person and the person’s private to which Bell J referred to in ZZ v Secretary, Department of Justice to which we referred earlier.[82]  As we discussed above, it would place a limitation on his right to privacy and reputation in circumstances where there was a less restrictive way of getting to that which the College was seeking in terms of conditions on him seeking re-registration.

Concluding comment on the orders the College sought

  1. [128]
    Accordingly, save only to the extent the College sought an order that a ground for disciplinary action had been established, such being an issue that may be of some assistance to it should Teacher KDH seek re-registration and thus relevant to the exercise of the College's discretion under s 17 and/or s 20 in terms of what it may do in dealing with his application for same, in our opinion the outcome the College continued to press for following its cancellation under s 66 of Teacher KDH’s registration was misconceived.
  2. [129]
    In the absence of any power for this Tribunal to issue a reprimand or to order the entry in the register of a notation about Teacher KDH, contrasted with the fact it could have dealt with the requisite issues if and when Teacher KDH applied to again be registered, the College could have, and in our opinion should have, withdrawn the Referral.[83]

Non-publication Order

  1. [130]
    Both parties sought a non-publication order, such which this Tribunal is empowered to give under s 66(1)(c) of the QCAT Act.[84] We did not see any reason to doubt this as appropriate. We also considered the form of the order proposed to be appropriate.
  2. [131]
    As we briefly discussed it in paragraphs [115] and [116] herein, it was generally apparent on the material filed in this proceeding that Teacher KDH has, at least in the past, suffered from an impairment. Whilst the argument he raised in response to the Referral was effectively that all is now behind him, without making any definitive finding about it we considered that to be at the very least questionable, even  doubtful. His own material suggested otherwise. In the most recent report from a psychiatrist contained in his material, one dated 8 May 2024, the doctor expressed these opinions in reference to Teacher KDH:[85]

He has, overall, a good prognosis given that he had been able to seek help and support with regards to his alcohol use and depression.

There is a small risk of him getting back into alcohol misuse …

The only significant risk that was identified was his risk of relapse into alcohol use.

  1. [132]
    On our reading of them, those comments demonstrate that the issues are not behind him, but rather remain squarely in front of him. Thus, we drew an inference from these opinions that Teacher KDH remains at some risk of recidivism in terms of alcohol misuse, such which may or may not be linked to the opinion as to him suffering, or had suffered, from depression. Thus, publication of details of the Offending Conduct and his circumstances in a manner which identifies him, or at the very least the School from which he may then in turn be able to be identified, could cause him to relapse and thus endanger his physical or mental health. For that reason, a non-publication order is necessary.[86] We thus would make an order for non-publication consistent with what was proposed by the parties.

The other order sought by Teacher KDH

  1. [133]
    In his submissions, Teacher KDH expressed the orders he sought in this proceeding.[87]
  2. [134]
    We have already disposed of the first two of those, namely whether a ground for disciplinary action is established, and the issue of a reprimand. He also sought a third order, namely that he be entitled to re-apply for registration immediately. For completeness we address that here explaining why we would not make such an order.
  3. [135]
    Firstly, it does not fall within the Tribunal’s power to give such an order. Secondly, the entitlement for him to apply for registration is as established under s 14 of the Education Act. For these reasons, put simply, there is no basis for any such order to be made by the Tribunal.

An Observation for the College’s benefit

  1. [136]
    Finally, as we indicated at Footnote 51 herein we would do so, we return here to make some general observations, such being hopefully for the benefit of the School and the College.
  2. [137]
    On our reading of the transcript of interview of the School Principal, such having occurred following the College receiving the relevant notification from the School under s 76 of the Education Act,[88] it seemed to us that the School had, or at the very least should have had, knowledge of the adverse circumstances Teacher KDH found himself in, all well before the Offending Conduct occurred which gave rise to this practice and conduct proceeding. As it was noted therein, Teacher KDH had been at the School for approximately 12 years, and in that time had been the subject of a DUI charge, he had been taking significant time away from work, had been very unwell, and was known as someone who did not look after his health. In addition, he had demonstrated forgetfulness and a lack of remembering things, including losing students’ assignments, and it had been identified that his mental health had declined. It was also known that he had been experiencing problems in his home life and had been sleeping in his car but using the bathroom facilities at the School when he was living in his car all because he could not check into a hotel. It also records that at that time he was observed as being intoxicated.
  1. [138]
    This all suggests Teacher KDH had been suffering an ‘impairment’, as that term is used in the Education Act, for a substantial period of time. In our opinion, these circumstances, when taken together, should have raised alarm bells for the School as being at least something that could be considered likely to have caused harm to a child at the School, and so prompted the School to have acted earlier under s 76 of the Act and notified the College. In turn, this would have, or at least should have, caused the College to have the Professional Capacity and Teacher Conduct Committee engage in a relevant practice and conduct proceeding in the manner provided for under Chapter 6 Part 1 Division 2 of the Act, and in turn giving rise to that Committee requiring Teacher KDH to have undertaken a health assessment as provided for under s 119A of the Education Act, at least since the introduction of that provision in 2016. Whilst ultimately it might still have led to a practice and conduct proceeding in this Tribunal, had the School and in turn the College acted earlier it should have at the very least minimised the risk of harm to students at the School, such being consistent with the primary considerations of the College as prescribed under s 233 of the Education Act. It might also have assisted Teacher KDH in obtaining the professional assistance he so clearly needed at that time to deal with his personal circumstances.

Conclusions

  1. [139]
    Whilst we have found that a ground for disciplinary action has been established, our conclusions as to the absence of power afforded this Tribunal to act on that finding and in turn give effect to disciplinary action in terms of a reprimand and an order that a notation be entered in the Register means that there is only one option open to this Tribunal to take within the ambit of s 161(2) of the Education Act. That is as provided for in paragraph (a) therein, such being to decide to take no further action in relation to the matter.
  2. [140]
    For all of the reasons given herein, and that last aspect of the proceeding just discussed, we would make the following orders in this proceeding:
    1. Pursuant to s 158 of the Education (Queensland College of Teachers) Act 2005 (Qld) a ground for disciplinary action against the respondent has been established, being:

[Teacher KDH] has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.

  1. Pursuant to s 161(2)(a) of the Education (Queensland College of Teachers) Act 2005 (Qld), this Tribunal will take no further action in relation to the matter.
  2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of any information that may identify the respondent, any relevant student, or any relevant school, other than:
    1. to the parties to this proceeding; or
    2. to the extent necessary to enable the applicant to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld); or
    3. for the purposes of the respondent providing a copy of the decision and the reasons of this Tribunal in this proceeding to any regulatory authority or employer in compliance with any disclosure requirements.
  1. [141]
    Before we conclude we make one final comment. We expect that the decision we have reached herein on our interpretation of the Education Act to the extent an order for a reprimand, and/or an order for a notation to be entered in the Register, both in terms of a former approved teacher, will cause some concern to the College. We accept that such is a valid concern. On our interpretation, it prevents the inclusion of information, in what is at least in part a publicly available record but otherwise a record accessible to prospective employers of a teacher, of important criteria about a person who had previously been a teacher but whose registration had previously been cancelled and who was also subject to disciplinary action, and may become a teacher again in the future, or may in some way seek associated employment in an educational facility. 
  2. [142]
    At the very least prospective employers should be able to readily be informed of this information by searching a register of not only current approved teachers, but also of former approved teachers. That being so, it seemed to us that amendment to the Education Act is required to either create a separate register of former approved teachers in which the relevant information that can arise in terms of practice and conduct proceedings can be recorded, or to expand the ambit of the register as it is presently provided for under s 288 of the Education Act to incorporate comprehensively information on former approved teachers. As we see it, such is a relatively simple amendment to the legislation.

MEMBER JENSEN

Ground of disciplinary action

  1. [143]
    If QCAT decides that a ground of disciplinary action is established against an “approved teacher,” then it may make one or more of the orders listed in section 160 of the Education (Queensland College of Teachers) Act 2005 (Qld) [the “Act”]. If it decides that a ground of disciplinary action is established against a “former approved teacher” then the orders that can be made by the Tribunal are set out in section 161 of the Act.
  2. [144]
    The applicant relies on section 92(1)(h) of the Act as the ground of disciplinary action against the respondent, as follows –

The person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.

  1. [145]
    The uncontested evidence is that the respondent –
    1. brought alcohol onto school grounds (4 bottles of red wine), which he concealed in an area not accessible to students;
    2. was seen on CCTV camera consuming a portion of the alcohol whilst on duty and was unfit for duty; and
    3. admits to the above behaviour.
  2. [146]
    I find that the above does not satisfy the standard of behaviour generally expected of a teacher. The community reasonably expects teachers to attend to their duties in a state that is free from any influence of alcohol.  The actions of the teacher in bringing alcohol onto school grounds and consuming it have a direct impact on his ability to teach and his work with children.
  3. [147]
    I therefore find on the balance of probabilities that the applicant has satisfied this ground for disciplinary action.

Decision about disciplinary action

  1. [148]
    In Schedule 3 of the Act -
    1. an “approved teacher” means a persons who –
      1. is a registered teacher; or
      2. holds permission to teach.
    2. A “former approved teacher” means –
      1. a former registered teacher; or
      2. a former holder of permission to teach.
  2. [149]
    At the time of the referral of this matter to QCAT on 23 February 2024, the respondent did not hold permission to teach because his registration was suspended. However, he remained a registered teacher and was therefore an “approved teacher” under the Act.
  3. [150]
    However, at the time of the hearing of this matter in QCAT, the respondent had been “removed from the register for non-payment of registration fees.”[89] Also, the respondent submits at paragraph 26 that one of the orders that should be made is that the respondent “be entitled to re-apply for registration immediately.” I therefore infer that his registration or permission to teach was accordingly cancelled under section 66 of the Act and that he was, at the time of hearing, a “former approved teacher” because he was both a former registered teacher and a former holder of permission to teach.
  4. [151]
    I find that section 161(2) of the Act (Decision about disciplinary action against former approved teachers) applies to this referral.
  5. [152]
    Under section 161(2) of the Act, if QCAT decides that a ground for disciplinary action against the relevant teacher has been established, QCAT may do any one of more of the following:
    1. decide to take no further action in relation to the matter;
    2. make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to—
      1. any expenses incurred by the college in investigating the matter; and
      2. the expenses incurred by the college in the proceedings before QCAT;
    3. if QCAT would have made an order cancelling the teacher’s registration or permission to teach if the teacher had been an approved teacher—make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely;
    4. make an order that a particular notation or endorsement about the teacher be entered in the register.
  6. [153]
    The applicant has sought an order for reprimand. However, for the reasons that follow I do not consider that a reprimand is available under section 161(2) of the Act. First, although a reprimand is a disciplinary option under section 160(2) of the Act for an approved teacher, it is not expressed as an option under section 161(2) of the Act for a former approved teacher. Second, because a reprimand is specifically omitted in section 161(2), I do not consider that the legislature intended that a reprimand could still be included as part of a particular notation or endorsement about the teacher entered in the register under subsection 161(2)(d). Finally, I do not find it logical to impose a reprimand on a teacher whose registration has been cancelled.
  7. [154]
    The respondent has undergone extensive medical treatment over the last 12 months in order to be fit to return to work. The most recent report is from a psychiatrist dated 8 May 2024. This extensive treatment is not disputed by the applicant. I would therefore confine the notation or endorsement that is to be entered in the register under section 161(2)(d) to providing a current medical report (when an application for re-registration is made),  at the respondent’s cost - the actual notation to be entered is set out in the orders I would make.
  8. [155]
    I also agree that a non-publication order is appropriate in these circumstances to avoid endangering the physical or mental health or safety of the respondent.[90]
  9. [156]
    I would make the following orders:
    1. A ground for disciplinary action under section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
    2. The register be endorsed with a notation that any application by Teacher KDH for re-registration must be accompanied by a report from a consultant psychiatrist or registered psychologist (each referred to as the “consultant”), dated not earlier than six weeks prior to the date the application for re-registration is made, which includes an assessment of:
      1. The consultant’s opinion regarding Teacher KDH’ suitability to teach and to work in a child related field.
      2. An assessment of the likelihood that Teacher KDH will return to his previous behaviour as outlined in the Tribunal’s decision of Queensland College of Teachers v Teacher KDH OCR063-23.
      3. An assessment of Teacher KDH’s awareness of personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching.
      4. Teacher KDH is to bear all costs of and associated with obtaining the consultant’s report.
    3. Other than the parties of this proceeding and until further order of this Tribunal, publication is prohibited of any information that may identify the respondent other than to the extent necessary for the applicant to meet it statutory obligations as provided under the Education (Qld College of Teachers) Act 2005 (Qld). The parties may provide a copy of this decision to any regulatory authority or employer in compliance with disclosure requirements.

Footnotes

[1]These facts have been drawn from the material as filed. For ease of reference in this Reasons document, given this proceedings was determined ‘on the papers’, in Chambers the relevant material as filed was marked for identification as follows: Doc A – Facts and Circumstances as attached to the originating application filed 23 Feb 2024; Doc B – Affidavit of Chad Hill affirmed 19 Feb 2024; Doc C – College’s Submissions filed 3 June 2024; Doc D - Affidavit of Teacher KDH affirmed 30 Aug 2024; Doc E – Respondent’s ‘Response to Referral’ filed 24 Sep 2024.

[2]Doc B Ex A

[3]Doc A Annexure A. Doc C para 6. Doc E para’s 2 and 32. There is some uncertainty in the material as to the quantity consumed, however on our reading of the material it appears to be in the order of 50%.

[4]Doc C para 7. Doc E para 2.

[5]Doc B para 4 and Ex B. We hold some doubt that the documentation provided by the College to this Tribunal, namely that which appears in this Exhibit B, is the entirety of that which was sent to the College by the School. It appears to be missing the actual ‘Notice’ being a document which must include that provided for under s 76(3) of the Education Act. However no issue is taken by Teacher KDH in this regard and thus we infer that it was accepted that this part of the process had been complied with, and as such we have not had any further regard to it.

[6]Doc B para 7 & Ex C; Doc  C para 8; Doc E para 2.

[7]Queensland College of Teachers v Teacher KDH – OCR 062-23 – Unreported 27 April 2023.

[8]Doc C para 9. Doc E para 2.

[9]Doc C and Doc’s D & E. By e-mail shown to have been sent 24 September 2024 to this Tribunal’s Registry, the College informed the Tribunal that it would not be filing any submissions in reply to Teacher KDH’s submissions.

[10]Such is as mandated by s 124 of the Education Act.

[11]Doc C para 10; Doc E para’s 4 and 11.

[12]See the Orders sought by the College at Doc A para 3(b). Teacher KDH expressly agreed with such an order being made – see Doc E para 3. Notwithstanding this common ground, as we discuss later in these reasons it remained an issue as to whether it was open for a reprimand to be given as part of this Tribunal’s orders.

[13]See the Orders sought by the College as they appear in Doc A para’s 3(c) and (d). At the time that order was expressed in the Referral, Teacher KDH’s Registration had not been cancelled.

[14]Doc E para 10, 13 to 25, and 26(c). In contrast to the time at which the College expressed the order it sought, when Teacher KDH responded to the Referral and thus sought an alternative order, his registration had been cancelled.

[15]Doc C para’s 23 and 24. Doc E para’s 28 to 31.

[16]Ibid s 48(1) & (2).

[17]Ibid s 15, s 21, and s 25.

[18]Ibid s 26.

[19]Ibid s 13.

[20]Education Act s 20(1)(a).

[21]See Definitions of same in Schedule 3 therein.

[22]Education Act s 288.

[23]Ibid s 49.

[24]Ibid s 50.

[25]Ibid s 52.

[26]Ibid s 66.

[27]Ibid s 56.

[28]Ibid s 160.

[29]See Definitions of same in Schedule 3 of the Education Act.

[30]Education Act s 76.

[31]There are a substantial number of grounds for disciplinary action prescribed in s 92 of the Education Act.

[32]Education Act s 97.

[33]Ibid s 136.

[34]Ibid s 158.

[35]Ibid s 159.

[36]Ibid s 160, such being relevant to this proceeding when the Referral was made.

[37]Ibid s 161, such being relevant to this proceeding at the time of this Tribunal’s hearing and determination of the issues on the Referral.

[38]As is relevant to the discussion later in these reasons, it should be recalled that the Tribunal’s power to cancel the registration to which this section refers is that found in s 160(2)(d) of the Act such being the operative power for disciplinary action in terms of approved teachers.

[39][2010] QCAT 709, [33].

[40]Queensland College of Teachers v CMF (No 2) [2016] QCAT 290, [25].

[41]See the Incident Report of the School’s Head of Secondary and the statement of the School’s Operational Services Supervisor, both included withing Ex B to Doc B.

[42]Those observations are as expressed by the School’s Principal, said to have been one of two of the School’s senior staff who discussed the conduct with Teacher KDH following that interception. See the Transcript of Interview which appears within Ex B to Doc B at Lines 173 to 176, 183 and 184.

[43]Education Act s 49.

[44]Queensland College of Teachers v LDW [2017] QCAT 48, [11].

[45]It is apposite to refer to and adopt such reasoning under that legislation in a proceeding such as this one given the relevant Acts have a protective function in terms of the welfare of children.

[46]SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165, [24]. Even though the decision in that matter was set-aside on appeal in SWJ v Department of Justice and Attorney-General [2022] QCATA 119 and the matter returned to the Tribunal below for re-hearing, that aspect of the first instance decision was not disturbed.

[47]IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206; [84].

[48]Re TAA [2006] QCST 11, [97] cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].

[49]Queensland College of Teachers v Teacher KDH – OCR 062-23 – Unreported 27 April 2023, [11].

[50]See the Transcript of the interview with the School Principal where he discusses his understanding of Teacher KDH’s personal circumstances. This is at Exhibit B to Doc B.

[51]It is however a fact we return to briefly later in these reasons where we make some general observations on the circumstances Teacher KDH ultimately was found in.

[52]Penfold v Firkin v Balvius [2023] QCATA 11; [37]

[53]Consider Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd [2017] QCAT 400; [36] and [37]. Footnotes omitted.

[54][2024] QCAT 79.

[55]We pause here to observe that the surrender of registration under s 59 is found within Chapter 6 Part 7, and thus not falling within Division 3 of Part 6 which provides for cancellation.

[56][2018] QCAT 135.

[57](2009) 239 CLR 27, 46-47, [47] per Hayne, Heydon, Crennan and Kiefel JJ. Footnotes omitted.

[58](1998) 194 CLR 355, 381 and 382; [69] and [70] per McHugh, Gummow, Kirby and Hayne JJ. Footnotes omitted.

[59]Education Act s 160(2)(c).

[60]Qld, Parliamentary Debates, Legislative Assembly, 25 Oct 2005, pg 3468.

[61]It is an exercise of original jurisdiction. See for example s 10(b) read together with s 34 therein.

[62]It also includes other provisions of the Act – eg s 136 and s 147 – however such are not relevant for present purposes.

[63]Supra at [34], [35]. Footnotes omitted. Emphasis added. See also his Honour’s observation at [37] wherein he was contrasting the manner of exercise of a power with conditions on the power. As he observed of the former, it being the circumstance under discussion here, “… power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; …”.

[64]Supra, [36].

[65]Macquarie Dictionary 9th Ed – Macquarie Dictionary Publishing 2023. In the reasons for many practice and conduct decisions in this Tribunal, the term ‘sanction’ has been used to describe the orders for disciplinary action under the Education Act following a ground for such having been established. See for example Queensland College of Teachers v ALE [2019] QCAT 143; Queensland College of Teachers v BYJ [2018] QCAT 107; Queensland College of Teachers v JNI [2016] QCAT 182; Queensland College of Teachers v NRR [2021] QCAT 152; Queensland College of Teachers v Teacher WBJ [2024] QCAT 187.

[66]Queensland College of Teachers v TSV [2015] QCAT 186, [25]. Footnotes omitted. Cited in Queensland College of Teachers v ALE [2019] QCAT 143; [16].

[67]Queensland College of Teachers v NRR [2021] QCAT 152; [14].

[68]Queensland College of Teachers v Teacher WBJ [2024] QCAT 187; [29].

[69]For convenience in this discussion, I refer to the provision of an ‘endorsement or notation’ as that phrase is used in the Act, solely as a ‘notation’ but in the context I have discussed it earlier.

[70]The definition of ‘register’, as that word is used in s 160 and s 161, is found in Schedule 3 of the Act, namely ‘the register of approved teachers kept by the college under section 288.”

[71][2019] QCAT 143.

[72][2021] QCAT 152.

[73][2024] QCAT 187.

[74]Supra, [71]. Footnotes omitted.

[75]We pause here to also express this view - It seems doubtful to us as to the means any such order could actually be implemented given that Teacher KDH’s name has been removed from the Register as from 3 April 2024 – see Doc D para 9. Thus there would be no utility in any such order.

[76]Doc A para 3(c)(a).

[77]Doc C para’s 21 and 22.

[78]See the definition in Education Act Schedule 3, namely – impairment means a physical or medical condition or disorder (including substance abuse or dependence).

[79]We pause here to observe that the Tribunal seemingly held that view when it ordered the continuation of his suspension. See Queensland College of Teachers v Teacher KDH – OCR 062-23 – Unreported 27 April 2023 at [11].

[80]It is however noted that to some degree his right to privacy and reputation is protected under s 289 of the Education Act in terms of what may be contained in the Register because any notation that is required to be maintained on the Register under s 288(3)(m) does not fall within that which is to be publicly available unless he expressly gave his consent for same to be made available for inspection by members of the public. However it would remain readily available to an employing authority for a school. See also ZZ v Secretary, Department of Justice [2013] VSC 267; [86]–[95] wherein Bell J discussed the connection between restrictions that may be placed on employment circumstances for a person and the person’s private life so as to give rise to an infringement of human rights. That decision concerned matters arising under the Victorian equivalent of the Queensland Working with Children (Risk Management and Screening) Act 2000 (Qld) which we noted in Footnote 45 herein that it is, in matters such as this current proceeding, apposite to refer to caselaw arising thereunder.

[81]See Education Act s 8(1)(b), (3), and (4), s 9(1)(b), (3), and (4); s 10(1)(c), (2), and (3), and s 20(2) read together.

[82]Supra. See Footnote 80 herein.

[83]It was open to have done so under s 46 of the QCAT Act.

[84]Doc C par’s 23 and 24; Doc para’s 28 to 34 and 37.

[85]Doc D Ex [KDH] 5 - pg’s 2 and 3.

[86]QCAT Act s 66(1)(2)(b)

[87]Doc E para 26.

[88]Doc B Ex B.

[89]Removal from register on 3 April 2024.

[90]Section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher KDH

  • Shortened Case Name:

    Queensland College of Teachers v Teacher KDH

  • MNC:

    [2024] QCAT 501

  • Court:

    QCAT

  • Judge(s):

    Member Taylor (Presiding Member), Member Robyn Oliver, Member Jensen

  • Date:

    05 Nov 2024

Appeal Status

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Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Body Corporate for Bay Villas on Stephenson CTS 41090 v Stansure Strata Pty Ltd [2017] QCAT 400
2 citations
Jump To
Cite 1 - [2017] QCAT 400
Cite 2 - [2017] QCAT 400
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206
1 citation
Jump To
Cite 1 - [2021] QCAT 206
Penfold v Firkin [2023] QCATA 11
2 citations
Jump To
Cite 1 - [2023] QCATA 11
Cite 2 - [2023] QCATA 11
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Queensland College of Teachers v ALE [2019] QCAT 143
4 citations
Jump To
Cite 1 - [2019] QCAT 143
Cite 2 - [2019] QCAT 143
Cite 3 - [2019] QCAT 143
Cite 4 - [2019] QCAT 143
Queensland College of Teachers v Armstrong [2010] QCAT 709
2 citations
Jump To
Cite 1 - [2010] QCAT 709
Cite 2 - [2010] QCAT 709
Queensland College of Teachers v CMF (No. 2) [2016] QCAT 290
2 citations
Jump To
Cite 1 - [2016] QCAT 290
Cite 2 - [2016] QCAT 290
Queensland College of Teachers v EFG [2024] QCAT 79
2 citations
Jump To
Cite 1 - [2024] QCAT 79
Cite 2 - [2024] QCAT 79
Queensland College of Teachers v JNI [2016] QCAT 182
2 citations
Jump To
Cite 1 - [2016] QCAT 182
Cite 2 - [2016] QCAT 182
Queensland College of Teachers v LDW [2017] QCAT 48
2 citations
Jump To
Cite 1 - [2017] QCAT 48
Cite 2 - [2017] QCAT 48
Queensland College of Teachers v NRR [2021] QCAT 152
4 citations
Jump To
Cite 1 - [2021] QCAT 152
Cite 2 - [2021] QCAT 152
Cite 3 - [2021] QCAT 152
Cite 4 - [2021] QCAT 152
Queensland College of Teachers v Teacher BYJ [2018] QCAT 107
2 citations
Jump To
Cite 1 - [2018] QCAT 107
Cite 2 - [2018] QCAT 107
Queensland College of Teachers v Teacher GBJ [2018] QCAT 135
2 citations
Jump To
Cite 1 - [2018] QCAT 135
Cite 2 - [2018] QCAT 135
Queensland College of Teachers v Teacher WBJ [2024] QCAT 187
4 citations
Jump To
Cite 1 - [2024] QCAT 187
Cite 2 - [2024] QCAT 187
Cite 3 - [2024] QCAT 187
Cite 4 - [2024] QCAT 187
Queensland College of Teachers v TSV [2015] QCAT 186
1 citation
Jump To
Cite 1 - [2015] QCAT 186
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
SWJ v Department of Justice and Attorney-General [2022] QCATA 119
2 citations
Jump To
Cite 1 - [2022] QCATA 119
Cite 2 - [2022] QCATA 119
SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165
2 citations
Jump To
Cite 1 - [2021] QCAT 165
Cite 2 - [2021] QCAT 165
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
2 citations
Jump To
Cite 1 - [2021] QCAT 121
Cite 2 - [2021] QCAT 121
ZZ v Secretary, Department of Justice [2013] VSC 267
2 citations
Jump To
Cite 1 - [2013] VSC 267
Cite 2 - [2013] VSC 267

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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