Queensland College of Teachers v Iql
[2020] QCAT 296
•27 July 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Queensland College of Teachers v IQL [2020] QCAT 296
PARTIES: QUEENSLAND COLLEGE OF TEACERS (applicant)
v
TEACHER IQL (respondent)
APPLICATION NO/S:
OCR143-20
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
27 July 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Aughterson
ORDERS:
CATCHWORDS:
1. The suspension of the registration of Teacher IQL as a teacher is continued.
2. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify Teacher IQL, his former wife, his children, any relevant complainant or a relevant school other than to the extent necessary to enable the Queensland College of Teachers to meet its statutory obligations.
EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – training and registration of teachers – suspension of teacher – where charged with serious offence – whether exceptional case – whether suspension should continue
Criminal Code (Qld), s 10(1)(a)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 6
Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50, s 53, s 54, s 55, Schedule 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Working with Children (Risk Management and Screening) Act 2000, s 167
Baker v The Queen (2004) 223 CLR 513
DA v Director-General Department of Justice and Attorney-General [2017] QCAT 292
Queensland College of Teachers v Liddell [2019] QCAT 344
Queensland College of Teachers v PPL [2019] QCAT 278
Queensland College of Teachers v Teacher EDC [2019] QCAT 144
Queensland College of Teachers v Teacher SPR [2020] QCAT 214
R v Kelly (Edward) [2000] QB 198
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1
Teacher S [2013] QCAT 361
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The Queensland College of Teachers (‘the College’) suspended the teacher registration of Teacher IQL (‘the Teacher’) on 19 May 2020 pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’), on the grounds that the Teacher had been charged with a ‘serious offence’;[1] namely, indecent treatment of children under 16 pursuant to s 10(1)(a) of the Criminal Code (Qld).
[1]As to the meaning of the term ‘serious offence’ see the Act at Schedule 3 and the Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167.
By s 48 of the Act, the College must suspend the registration of an ‘approved teacher’ immediately after becoming aware that the teacher is charged with a serious offence.[2] Notice of the suspension is given to the teacher pursuant to s 50(1) the Act, which must include a statement that QCAT will review the continuation of the suspension to decide whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.[3]
[2]As to the meaning of the term ‘approved teacher’, see the Act at Schedule 3.
[3]See s 50(2)(c) of the Act. The review is conducted in the original jurisdiction of the Tribunal: see s 53(2) of the Act.
In accordance with s 50(5) of the Act, the College has referred the continuation of the suspension to QCAT for review pursuant to s 53 of the Act. By s 53(1) the Tribunal must decide whether to continue the suspension, while s 53(3)(a) requires the Tribunal to continue the suspension unless satisfied that ‘the matter is an exceptional case in which the best interests of children would not be harmed if the suspension were ended’.
As required by s 54(1)(a) of the Act, directions were made by the Tribunal inviting the Teacher to show why the matter is an exceptional case in which the best interests of children would not be harmed if the suspension of the registration or permission to teach were ended.[4] Submissions were filed by the solicitor for the Teacher on 15 July 2020, submitting that it is an exceptional case. In response,[5] the College submits that it is not an ‘exceptional case’ within the meaning of the Act.
[4]The Tribunal Directions were made on 10 June 2020, requiring any submissions to be made by 15 July 2020.
[5]Submissions filed 22 July 2020.
In support of the submission that this is an exceptional case, the Teacher says:[6]
[6]Submissions of the Teacher, [39].
(a) The complaint underlying the charge was made by the Teacher’s former wife ‘during bitter and emotionally charged Family Court proceedings’.
(b) The Teacher ‘strongly refutes’ the allegations.
(c) The complaint was made shortly after the complainant filed a temporary protection order, alleging, among other things that he was physically abusing and ‘grooming’ their daughter.
(d) Following an investigation, these allegations were found to be unsubstantiated.
(e) A report from the Department of Communities, Child Safety and Disability Services also found that the Teacher had been wrongly breached for contravention of a DVO in attending his child’s sporting event.
(f) Those factors demonstrate the complainant’s ‘unreliability’ and a ‘malicious and spiteful approach’ to her dealings with the Teacher
(g) There is ‘strong circumstantial evidence’ that the complaint underlying the charge was ‘also maliciously motivated’ and made in an attempt to gain leverage in the Family Court proceedings.
(h) The Teacher has an ‘impeccable record’ and positive influence on his school and students, which is supported by references, and the allegations are incongruent with the Teacher’s record and character.
(i) The references from work colleagues demonstrate that he has a positive influence on his school and students.
(j) The Teacher is currently employed at a boys school and has no professional dealings with females under the age of 16 years, thus significantly obviating the risk.
In Teacher S, it was noted that the term ‘exceptional case’ is not defined in the Act and that there are no generally applicable rules as to what constitutes an exceptional case.[7]
[7][2013] QCAT 361, [3], citing Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.
As stated in Queensland College of Teachers v PPL,[8] terms such as ‘exceptional case’ and ‘exceptional circumstances’ are commonly used in legislative provisions. While terms must be construed in the context of the applicable legislation, as noted in R v Kelly (Edward),[9] in the context of sentencing legislation:
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
The context of the present provision is whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.[10]
[8][2019] QCAT 278, [8].
[9][2000] QB 198, 208. Referred to in Baker v the Queen (2004) 223 CLR 513, 573 per Callinan J. See also DA v Director-General Department of Justice and Attorney-General [2017] QCAT 292, [25].
[10]Section 55(1)9a) of the Act.
By s 55(2) of the Act, the Tribunal must order the suspension be ended if satisfied it is an exceptional case. Conversely, the Tribunal ‘must’ decide to continue the suspension unless satisfied that the matter is an exceptional case. It follows that there must be some evidence or material before the Tribunal that would allow the Tribunal to be so satisfied.
While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[11] it is not productive to approach the question of whether it is an exceptional case by reference to the concepts of onus and standard of proof, it remains that if a party asserts that it is an exceptional case it behoves that party to point to some evidence or material that would allow the Tribunal to reach the requisite satisfaction.
[11][2019] QCAT 144, [10]-[15].
The trigger for invoking s 48 of the Act is the laying of a charge of a ‘serious offence’.[12] As noted at paragraphs 5(c) to (e), above, the Teacher refers to outcomes favourable to the Teacher of certain allegations made by his former wife. It is submitted that this indicates ‘unreliability’ and a ‘malicious and spiteful approach’ to her dealings with the Teacher. As noted at paragraph 5(g), above, it is also submitted that there is ‘strong circumstantial evidence’ that the complaint underlying the charge was ‘also maliciously motivated’ and an attempt to gain leverage in the Family Court proceedings. To the extent that it was intended to indicate circumstantial evidence other than as noted at paragraphs 5(c) to (e), above, it is not clear what that evidence is, though there is reference in the submissions to ‘lengthy and bitter’ proceedings in the Family Court and to a threat made by his former wife that ‘she would tell people he “raped” her’. There is no related affidavit evidence.
[12]The definition of ‘serious offence’ in the Act, refers to s 167 of the Working with Children Act.
It is noted that in the directions of the Tribunal made on 10 June 2020, it was directed that either party may request the Tribunal to conduct an oral hearing in relation to the continuation of the suspension. No such request was made.
Certainly, there is some difficulty in making a finding of an exceptional case where the material in support of such a finding rests largely on evidence of a positive teaching record and a bare submission that the Teacher ‘refutes the allegations’ made coupled with evidence of other unsubstantiated allegations,[13] in circumstances where the charges are for a serious offence relating to a child. In relation to the former, it is not in itself an exceptional case that the teacher has a positive record as a teacher. In relation to the latter, it remains that the criminal charges are outstanding and have yet to be tested, regardless of whether there is evidence that other allegations made by his former wife have not been substantiated. There is no evidence before the Tribunal as to the circumstances of the alleged offending, including as to whether the complainant was a student of the Teacher at the relevant time. There has been no oral hearing or testing of evidence. The limited time allowed for the making of a decision also militates against the conduct of a Tribunal hearing to consider contested factual issues. That is because s 55(3) of the Act provides that the decision of the Tribunal ‘must’ be made not later than 14 days after receipt of the teacher’s submissions or the time limited by the relevant directions for the filing of those submissions, whichever is earlier.[14] That time limitation cannot be extended.[15]
[13]Submissions of the respondent, [23].
[14]See also Queensland College of Teachers v Liddell [2019] QCAT 344, [5]-[10].
[15]See Queensland College of Teachers v Teacher SPR [2020] QCAT 214, [9].
The Teacher further submits that he is currently employed at a boys school and has no professional dealings with females under the age of 16 years, thus significantly obviating the risk. To the extent that that is a relevant factor, it remains that if the suspension were not continued there is nothing to suggest that the teacher could not seek employment at another school.[16]
[16]The College submits that the Teacher could teach at any Queensland school should the suspension be discontinued: Submissions of the College, [44].
On the material before me, I am not satisfied that it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
I note that under s 55(6) of the Act, the Teacher may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that the suspension should be ended.
Non-publication order
Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may do so on the application of a party or on its own initiative.[17] The applicant submits that a non-publication order should be made. That submission is supported by the College.
[17]Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
I am satisfied that it would be contrary to the public interest for information to be published that would identify the Teacher, his former wife, his children, any relevant complainant or a relevant school.[18] The non-publication order can be revisited in any subsequent disciplinary proceedings.
[18]See also Criminal Law (Sexual Offences) Act 1978 (Qld), s 6.
I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information, other than to the extent necessary to enable the College to meet its statutory obligations.
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