Queensland College of Teachers v Benson
[2011] QCAT 129
•29 March 2011
| CITATION: | Queensland College of Teachers v Benson [2011] QCAT 129 |
| PARTIES: | Queensland College of Teachers |
| v | |
| Mr Brian Ronald Benson |
| APPLICATION NUMBER: | OCR266-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Susan Booth, Senior Member Mr Ron Joachim, Member Ms Bev Day, Member |
| DELIVERED ON: | 29 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Queensland College of Teachers is granted leave to withdraw its referral application dated 9 October 2010. [2] The Queensland College of Teachers is to serve notice on the respondent in the terms stated in section 56(5) of the Education (Queensland College of Teachers) Act 2005 and to file a copy of the notice and an affidavit of service with the Tribunal registry. |
| CATCHWORDS : | Disciplinary proceeding – disqualifying offence – extended definition – excluded person – former teacher – withdrawal of application – protection of public Education (Queensland College of Teachers) Act 2005, ss 14, 28, 36, 56, 97 |
APPEARANCES and REPRESENTATION (if any):
| Decision was on the papers. |
REASONS FOR DECISION
This is an application by the Queensland College of Teachers (QCT) under section 46(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to withdraw its original application referring a disciplinary matter to the Tribunal. This application has been made following amendments in October 2010 to the Education (Queensland College of Teachers) Act 2005 (the College of Teachers Act). The application suggests that disciplinary action is unnecessary and it seeks leave to withdraw the original application.
As this is the first application made after these amendments, the Tribunal details the background to the amendments and proposes orders in similar matters.
In October 2010, the QCT referred the matter of disciplinary proceedings against Mr Brian Ronald Benson. Mr Benson is a 70 year old man who became a registered teacher in 2002, but ceased to be registered in April 2008. Mr Benson was charged in 2008 with two offences that are “disqualifying offences” for the purpose of section 168 of the Commission for Children and Young People and Child Guardian Act 2000. Mr Benson pleaded guilty in the Queensland District Court to these charges in 2010 and was duly convicted and sentenced to a period of imprisonment.
One of the main objects of the College of Teachers Act is ‘to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers’.
One of the ways this Act seeks to satisfy these objects is disciplinary proceedings taken by the QCT against teachers. Disciplinary proceedings are entirely protective in nature.
The QCT is required to take disciplinary action against approved teachers in certain circumstances and to refer the matter to the relevant disciplinary body. In this case, this Tribunal is the relevant disciplinary body (section 97 of the College of Teachers Act.) The Tribunal must then conduct a hearing and make decisions about the matter.
Section 46 of the QCAT Act requires the applicant (QCT) to seek the Tribunal’s approval to withdraw from proceedings. The effect of this requirement is that the Tribunal oversees discontinuation to ensure as far as possible there is no improper influence involved in the discontinuation.
The QCT submits that on 8 October 2010, it decided to refer this matter to the Tribunal and on 14 October 2010 filed the application for referral.
Also on 14 October 2010 an amendment to the College of Teachers Act came into effect. The Education and Training Legislation (Skills Queensland) Amendment Act 2010 extended the definition of ‘excluded person’ to include a person who has ‘on or after 1 January 2006, been convicted of a disqualifying offence for which an imprisonment order was imposed’. The effect of this amendment is that former teachers who fall into this definition are no longer entitled to apply for full registration, provisional registration or permission to teach (College of Teachers Act, sections 14, 28, and 36).
[10] The Tribunal notes that the amendment is explicitly retrospective to 1 January 2006, the day the relevant provisions of the Education (Queensland College of Teachers) Act 2005 commenced.
[11] The QCT’s main submission is that the amendment has the effect of rendering disciplinary proceedings unnecessary. The QCT submits that the effect of a person being an ‘excluded person’ is prohibition from applying to be registered as a teacher. The addition of paragraph (d) to the definition of ‘excluded person’ gives rise to the present application to permit, by leave of this Tribunal, the QCT to withdraw its disciplinary proceedings against Mr Benson.
[12] Additionally, the QCT submits that the effect of the legislative amendment, that defines Mr Benson as an ‘excluded person’, protects the public interest. This is because an excluded person is permanently excluded from the teaching profession. This permanency far exceeds the five year maximum prohibition available by way of disciplinary action.
Discussion
[13] It is worth setting out in detail the relevant material from the explanatory note for this amendment:
Clause 19 amends the definition of ‘excluded person’ in Schedule 3
(Dictionary).
…
Subclause (2) inserts a new paragraph (d) to the definition of ‘excluded person’ in Schedule 3 to extend the definition of an ‘excluded person’ to include a person who has previously held registration as a teacher or permission to teach and has been convicted of a disqualifying offence on or after 1 January 2006 and had an imprisonment order imposed for the conviction (emphasis added).
[14] Further, it outlines the policy intention of this amendment, detailing the mischief the section intends to correct, it states:
The proposed amendment to the QCT Act in relation to excluded persons corrects an anomaly in the existing sections of the Act. The amendment will ensure that former teachers and teachers who are convicted of a disqualifying offence and sentenced to an imprisonment order are treated consistently.
[15] Mr Benson is a former teacher who was convicted of a disqualifying offence and sentenced to an imprisonment order. Before this amendment, the Tribunal could have prohibited Mr Benson from applying for registration or permission to teach for up to 5 years. The legislative changes now define former teachers such as Mr Benson as excluded persons, and therefore ineligible to apply for registration.
[16] Therefore, the Tribunal agrees that the amended definition has the effect of denying a former teacher the right to make application to be registered for permission to teach.
[17] The Tribunal also agrees that without the amendment that includes former teachers in the definition “excluded person” the intended public protection would not be ensured.
[18] The Tribunal concludes that the amendment has the effect of permanently excluding from the teaching profession former teachers who are within the definition. The result is both public protection and consistency of approach between teachers and former teachers convicted and sentenced to a term of imprisonment for disqualifying offences.
[19] There is no doubt that, since the 2010 amendments, Mr Benson is caught by the amendments and is an excluded person under the College of Teachers Act. As the law stands now, and as it stood from the commencement of the 2010 Act (on the same day these disciplinary proceedings commenced), there was no requirement to bring disciplinary proceedings of this nature because Mr Benson was disentitled from applying for registration or permission to teach.
[20] Section 56 of the College of Teachers Act requires the QCT to give notice to an approved teacher whose registration is cancelled upon becoming an excluded person for a disqualifying offence (among other things). The details of the notice are stated in subsection (5). In order to provide proper parity in this circumstance with those of an approved teacher, QCT should serve such a notice on Mr Benson by means that satisfy the College of Teachers Act.
[21] There is one other matter to be considered. It concerns whether Mr Benson has been afforded sufficient notice of these proceedings.
[22] The QCT was directed to serve the application to withdraw and accompanying submissions on the respondent. The QCT did so on 15 December 2010. All parties were advised in writing that the application to withdraw would be decided on the papers not before 1 February 2011.
[23] Additionally, the Tribunal set the matter down for hearing of the disciplinary matter in the event that the matter was not withdrawn.
[24] Service of all documents was by registered post to Mr Benson’s address as detailed in the referral application. Under rule 36(3) of the QCAT Rules, this address is taken to be Mr Benson’s address for service. There has been no response to any of the notices, QCT’s application or its reasons for the application.
[25] There is nothing more that QCT or the Tribunal could be reasonably asked to do to engage Mr Benson in these proceedings and accordingly he has had sufficient notice of the proceedings.
[26] Having concluded notice was sufficient, the tribunal will grant leave to the QCT to withdraw its application.
Decision
[27] The Queensland College of Teachers is granted leave to withdraw its referral application dated 9 October 2010.
[28] The Queensland College of Teachers is to serve notice on the respondent in the terms stated in section 56(5) of the Education (Queensland College of Teachers) Act 2005 and to file a copy of the notice and an affidavit of service with the Tribunal registry.
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