Queensland College of Teachers v Ainscough
[2010] QCAT 368
•30 July 2010
| CITATION: | Queensland College of Teachers v Ainscough [2010] QCAT 368 |
| PARTIES: | QUEENSLAND COLLEGE OF TEACHERS |
| v | |
| MR PETER JAMES AINSCOUGH |
| APPLICATION NUMBER: | OCR171-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | FRIDAY 30 JULY 2010 |
| HEARD AT: | BRISBANE |
| DECISION OF: | M McLENNAN - Presiding Member R KYBURZ - Member S BROOKS - Member |
| DELIVERED ON: | 30 July 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | THE SUSPENSION OF MR PETER JAMES AINSCOUGH, AN APPROVED TEACHER, IS CONTINUED. THE MATTER IS LISTED FOR A DIRECTIONS HEARING IN BRISBANE AT 1:30PM, MONDAY 15 NOVEMBER 2010. |
| CATCHWORDS : | Education (Queensland College of Teachers) Act 2005; continued suspension of approved teacher; charged with disqualifying offence |
APPEARANCES and REPRESENTATION (if any):
HEARD ON THE PAPERS
REASONS FOR DECISION
The Queensland College of Teachers (“QCT”) has applied to the Queensland Civil and Administrative Tribunal (‘the tribunal”) for an order to continue the suspension of Mr Ainscough, an approved teacher. Under section 48 of the Education (Queensland College of Teachers) Act 2005 (“the Act”) if after the commencement of the Act, an approved teacher is charged with a disqualifying offence, the QCT must immediately suspend the teacher’s registration.
Background
In a Disclosure of Change in Teacher’s Criminal History dated 24 June 2010, addressed to the QCT and signed by Mr Ainscough, he notified, as he is required to do under section 68 of the Act, of the details of change in his criminal history. He disclosed that he had been charged with an offence which he described as “sexual penetration of a child”. He stated that the date he was charged was 20 June 2010; that the offence was alleged to have occurred on 14 February 2009 and the date of his court appearance was 13 August 2010. Appended to this disclosure notice to QCT, was a copy of the charge and summons dated 28 May 2010. In this, Mr Ainscough as the defendant was charged that at Queenscliff on 14 February 2009 he took part in an act of sexual penetration with a child aged under 16 years to whom he was not married in that he put his fingers into her vagina while she was under his care, supervision or authority. The charge sheet stated that the case was to be heard in the Children’s Court of Victoria at Geelong on 13 August 2010.
Mr Ainscough therefore had been charged with what is equivalent to a disqualifying offence, that is to say, an offence under a law of another jurisdiction that if it had been committed in Queensland, would have constituted a disqualifying offence.
The QCT in a letter dated 28 June 2010, sent a Notice of Suspension to Mr Ainscough in which it acknowledged receipt of his declaration regarding his change in criminal history which was received on 28 June 2010. The QCT advised the suspension of the registration had effect from the day on which he received the notice. He was required to return his teacher’s registration card and certificate of registration to the QCT within 14 days of receiving the notice of suspension. He was reminded that it is an offence under the Act to hold any position where he performed duties of a teacher or for any person to employ him as a teacher in any school while his suspension was in place.
In a notice dated 2 July 2010 though sent to the incorrect Queensland address of Mr Ainscough the tribunal reiterated the basis of his suspension by the QCT under section 48 of the Act. It invited him, pursuant to section 54 of the Act, to demonstrate in writing why his suspension was an exceptional case in which the best interests of children would not be harmed if the suspension of his registration were ended. The notice advised that after considering any written submissions from him, if the tribunal was satisfied it was an exceptional case, the tribunal must order the suspension ended. He was invited to make the written submissions and deliver them on or before 5 August 2010.
Submissions of Mr Ainscough
In a letter from Mr Ainscough received in the tribunal on 21 July 2010, he submitted that he believed his was an exceptional case in which the interests of children would not be harmed if his suspension by the QCT was ended. He submitted the following points for consideration:
(a) the charge against him was the result of an allegation made by the estranged partner of a family member;
(b) he was alleged to have committed an act of sexual penetration against a then 3 years old family member;
(c) It was a charge which directly and only involved a family member and did not relate to his role as a teacher of secondary students.
He stated he would be pleading not guilty and emphasised he would be vehemently defending this charge in the Victorian court system. He was confident that the charge would be defeated and he would be found to be not guilty. He further stated he had no criminal record nor had any previous allegations or charges been made against him.
He stated that he had been active in the teaching profession for over 36 years and during that time had demonstrated his professional integrity, believed he had been an exemplary teacher and that he had a faultless and professional record. He was willing to offer the names of colleagues past and present as referees to evidence that statement.
Mr Ainscough provided no further material for the tribunal’s consideration.
Issue
10. The tribunal must determine if it is satisfied that the suspension of Mr Ainscough should continue and whether his is an exceptional case which would result in the cancellation of that suspension.
Assessment of evidence and application of law
11. In relation to the standard of proof applicable in this tribunal, the determination of a disciplinary matter is an administrative function where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-62 (“Briginshaw”).
12. Mr Ainscough’s disclosure of change in teacher’s criminal history, the nature of the charge and the requirement that he answer the charge in the Children’s Court in Geelong, mean that he fell within section 48 of the Act. Section 48 stipulates that if an approved teacher and Mr Ainscough is an approved teacher currently registered in the QCT, is charged with a disqualifying offence, the QCT must immediately suspend the teachers registration or permission to teach pending the charge being dealt with.
13. “Disqualifying offence” is cross referenced in Schedule 3 of the Act to the meaning of that term in section 120B of the Commission for Children and Young People and Child Guardian Act 2000. This means that Mr Ainscough has been charged with an offence in another jurisdiction, Victoria, which if it had been committed in Queensland, would constitute a disqualifying offence. The charge for the sexual penetration of a child under 16 falls within the provisions of the Act and the Schedule. Mr Ainscough is charged with a disqualifying offence.
14. The QCT once it had suspended the registration and provided notice to Mr Ainscough was required to have the tribunal review the continuation of the suspension. It was for the tribunal to decide whether it was an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
15. Mr Ainscough had submitted as an exculpatory factor that because the allegation of the offence against the child under 16 had been made by an estranged partner of a family member, in other words because it had been a family matter, and that the offence was alleged to have occurred against a then three year old family member, he did not see this as relating to his role as a teacher of secondary school students.
16. The tribunal noted that Mr Ainscough is 57 years of age at the time of this application and that he has been active in the teaching profession for over 36 years during which time, as he stated, he had a faultless professional record and there was no criminal record. The tribunal accepted Mr Ainscough’s assertions that he would be pleading not guilty to the charge. It noted his emphasis as to the vigour with which he would be defending the charge and his confidence that the charge would be defeated. It falls to the Victorian court system to determine Mr Ainscough’s innocence or guilt in relation the charge.
17. Section 53(3) of the Act requires that this tribunal in its review of the continuation of the suspension must decide whether Mr Ainscough’s is an exceptional case.
18. “Exceptional case” is not defined in the Act. Judicial opinion in case law establishes its ordinary meaning as being “unusual, special, out of the ordinary course”.[1]
[1] Kent v Wilson [2000] VSC 98
19. The tribunal in considering Mr Ainscough’s statement that because the charge was confined to a familial situation, it would not have any relationship to his duties as a teacher of secondary students, finds that this submission is insufficiently special to meet the bar of what is intended by the word “exceptional”. The tribunal must have regard to the policy intention evident in the Act that is that there be, at all times, the consideration of the best interests of children so they would not be harmed if the suspension were ended. Mr Ainscough’s statement that his teaching record of integrity and professionalism of 36 years, while it may be correct, does not of itself satisfy the tribunal of the degree of specialness in his case. The tribunal does not find anything exceptional to override what is, for an approved teacher charged with a serious offence involving a child, a mandatory suspension pending determination by the Victorian court.
20. The tribunal is satisfied that the basis for the disciplinary action of suspension of registration and permission to teach has been established.
Tribunal’s determination
21. The tribunal orders that pursuant to section 55 of the Act, Mr Ainscough’s suspension is continued.
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