Klemm v Queensland College of Teachers

[2010] QCAT 159

CITATION:Klemm v Queensland College of Teachers [2010] QCAT 159

PARTIES:   Christopher Michael Klemm

v

Queensland College of Teachers

APPLICATION NUMBER:            OCR 030-09

MATTER TYPE:   Occupational Regulation matters 

HEARING DATE:   10 February 2010

HEARD AT:   Brisbane

DECISION OF:   Lisa O’Neill  Presiding Member
  Beverley Day   Member
  Ron Joachim  Member

DELIVERED ON:   15 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Continued suspension

CATCHWORDS:  Suspension, disqualifying offence, exceptional case

APPEARANCES and REPRESENTATION (if any) 

Nil

Orders

i.That Mr Klemm’s teacher registration suspension continue pursuant to s55 (1) of the Education (Queensland College of Teachers) Act 2005.

ii.That the matter be listed for review not less than six months from the date of this hearing.

iii.That within 14 days of receiving notice under S80 of the Act of the conclusion of criminal proceedings, the Queensland College of Teachers notify the Principal Registrar of the Queensland Civil and Administrative Tribunal of the outcome of the proceedings.

iv.That unless Christopher Michael Klemm’s teacher registration is cancelled under s56 of the Act, that upon receiving notice under clause (iii) of this order, the Principal Registrar list the matter for a directions hearing.

v.That upon the giving of 7 days written notice, each party have liberty to apply for further directions.

Reasons for Decision

Background

1.    Christopher Michael Klemm was a teacher registered in Queensland.

2. The Queensland College of Teachers (the College) suspended Mr Klemm’s registration on 10 December 2009 pursuant to s48 of the Education (Queensland College of Teachers) Act 2005 (the Act) because he had been charged with disqualifying offences, namely under sections 210 and 208(1) of the Criminal Code. Notification of this came from the Queensland Police Service (QPS) on 10 December 2009.

3.   A Suspension Notice was forwarded by registered mail to Mr Klemm on 10 December 2009, by the College.

Legislation

4. Pursuant to s48 of the Act, where an approved teacher is charged with a disqualifying offence, the College must immediately suspend the teacher’s registration.

5.   Schedule 3 of the Act adopts the definition of “disqualifying offence” contained in s120B of the Commission for Children and Child Guardian Act 2000 (CCYPCG Act).  The offences of indecent treatment of a boy under 17 and unnatural offences are disqualifying offences for the purposes of the CCYPCG Act.

6.   Section 53 of the Act requires the Queensland Civil and Administrative Tribunal (the Tribunal) to review the continuation of the suspension.

7.   Section 54 of the Act requires that the teacher be given notice inviting him to demonstrate in writing within 28 days why this matter is an exceptional case in which the best interests of children would not be harmed if the suspension of his registration was ended.

Summary of Evidence

8.   The Tribunal relied on the following documents provided by the College:

i.Suspension Notice undated but sworn by Karyn Alton, barrister to have been sent on 10 December 2009  

ii.Letter from the Queensland Police Service to the College dated 10 December 2009    

iii.An application to the Tribunal from the College dated 11 December 2009 seeking a continuation of the suspension

9.   Mr Klemm made a submission to the Tribunal in response to an invitation to him issued by the Tribunal on 22 December 2009.   This invitation gave him until 30 January 2010 to make submissions about why his is an exceptional case in which the best interests of children would not be harmed if the suspension of his registration were ended.

10.  The basis of his submission is that he is innocent until proven otherwise.  He did not address the issue of his being an exceptional case.

11.  The orders sought by the College are

i.That the matter be listed for review not less than six months from the date of the review hearing held under s53 of the Act.

ii.That Mr Klemm’s suspension of teacher registration continue pursuant to s55 (1) of the Act.

iii.That within 14 days of receiving notice under S80 of the Act of the conclusion of criminal proceedings, the Queensland College of Teachers notify the Registrar of the Queensland Civil and Administrative Tribunal of the outcome of the proceedings.

iv.That unless Christopher Michael Klemm’s teacher registration is cancelled under s56 of the Act, that upon receiving notice under clause (iii) of this order, the Registrar list the matter for a directions hearing.

v.That upon the giving of 7 days written notice, each party have liberty to apply for further directions.

Findings of the Tribunal

12.  The Tribunal finds the following on a balance of probabilities having regard to the serious consequences on the respondent teacher, Mr Klemm of any adverse findings:-

i.On 10 December 2009 the QPS notified the Queensland College of Teachers that Christopher Michael Klemm had been charged with indecent treatment of boys under 17 pursuant to s210 of the Criminal Code and unnatural offences pursuant to s208(1) of the Criminal Code. Charges pursuant to these sections of the Criminal Code are disqualifying offences for the purpose of the Act.

ii.Mr Klemm was suspended pursuant to s48 of the Act on 10 December 2009 and a suspension notice was forwarded to him on that date.

iii.A Notice was issued pursuant to s54 of the Act to Mr Klemm on 22 December 2009.  The notice required him to demonstrate in writing by 30 January 2010  why this matter is an exceptional case in which the best interests of children would not be harmed if the suspension of his registration were ended.

iv.The onus is on Mr Klemm to make submissions establishing that his is an exceptional case.  Having regard to his submissions the Tribunal is not satisfied that this is an exceptional case in which it would not harm the best interests of children for the suspension of his registration to be ended.

v.The Tribunal is satisfied that the orders sought by the College are appropriate pending the outcome of the charges against Mr Klemm.