Queensland College of Teachers v Klemm
[2011] QCAT 207
•13 May 2011
| CITATION: | Queensland College of Teachers v Klemm [2011] QCAT 207 |
| PARTIES: | Queensland College of Teachers |
| v | |
| Mr Christopher Michael Klemm |
| APPLICATION NUMBER: | OCR030-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Member S Booth, Senior Member B Day, Member |
| DELIVERED ON: | 13 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for a non-publication order is dismissed. |
| CATCHWORDS: | TEACHER – DISCIPLINARY PROCEEDINGS – NON-PUBLICATION ORDER – Where teacher sought non-publication order – where teacher in prison – where information about teacher already in public domain – whether in public interest |
APPEARANCES and REPRESENTATION (if any):
| This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). |
REASONS FOR DECISION
The applicant, Mr Klemm, will be referred to as "the teacher".
On 10 December 2009 the Queensland College of Teachers suspended the teacher’s registration under section 48 of the Education (Queensland College of Teachers) Act 2005 (“the QCT Act”), following his being charged by the police with sexual offences against a former pupil. His case was then referred to QCAT to determine in due course the duration of the suspension (see Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) ss 52, 55). Subsequently, on 4 November 2010, the teacher was convicted of the sexual charges in the District Court and sentenced to imprisonment. The determination of the current suspension order is a current matter before QCAT.
However the teacher has applied for a non-publication order with respect to the pending proceedings. On 1 February 2011 an interim non-publication order was made pending consideration of the teacher’s application. It is now necessary that that question be addressed before proceeding to final determination of the QCT's application.
The starting point is section 90 of the QCAT Act, subsection one of which declares that “unless and enabling Act that is an Act provides otherwise, a hearing of a proceeding must be held in public”. However there is an immediate exception, namely –
(2) However, the tribunal may direct a hearing or a part of a hearing be held in private if the tribunal considers it is necessary—
(a) to avoid interfering with the proper administration of justice; or
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e) for another reason in the interests of justice.
This legislation is consistent with the tradition of the superior courts which have always recognised that there are sensitive cases in which disputes are best determined away from the glare of publicity, and where privacy interests outweigh the need for public display. The courts identified many categories of application work was considered best that they be determined in camera, that is to say, in Chambers as distinct from in open court.
The regime that is to be followed by this tribunal is statutory, and is contained in two companion sections, sections 66 and 90 of the QCAT Act. Section 90(2) sets out the exceptions from the general principle that all hearings prima facie be held in public, and section 66 permits the tribunal to give effect to these exceptional cases through the making of non-publication orders with respect to evidence given before the tribunal and the contents of any documents produced. The tests in ss 66(2) and 90(2) are identical.
There is a special power in s 66(1)(c) to prohibit publication of material that may identify a party or some other person affected by the proceeding (e.g. a witness or a person referred to in evidence).
Importantly, non-publication orders may only be made in the defined situations of ss 66(2) and 90(2).
The present application seems primarily based on s 66(2)(b). The teacher's sister, who is assisting him in these proceedings, has asserted in a letter to the tribunal that "(the teacher) is concerned greatly that if the press hear or view the tribunal file related to him it will have a significant detrimental effect on his safety in prison".
[10] Counsel for the College of Teachers has submitted that there is no evidence of rationally probative force to justify this assertion, and that the application for a non-publication order ought therefore to be summarily dismissed.
[11] We are not prepared to do so on that basis because the evidence shows that the teacher is in prison having been convicted of sexual offences against a minor, and is in a position of at least some vulnerability. We are therefore prepared to consider the application, but note that the issue of any effect upon his safety in prison has been left to speculation.
[12] The main feature of this case is that the information on which the College of Teachers relies in this matter is already in the public domain. The criminal proceedings attracted significant media attention from the time that the teacher was charged and again when he was convicted. There is nothing additional in the material that will be exposed in these proceedings to that which is already public knowledge. It is of course possible that a repeat publication of the same material could make matters worse for the teacher than they already are, but that seems unlikely.
[13] This is very different from a situation in which a teacher has been charged and not yet convicted. In such cases there is a presumption of innocence, and the giving of publicity to the charges could have a devastating effect upon the reputation of a teacher who was later found to be not guilty of those charges. Teachers are very vulnerable to complaints of this nature, and we can readily understand the need for non-publication orders preceding a binding finding of guilt. But that is not this case.
[14] Deciding an application of this nature requires a balancing of public and private interests. There are clear public interest considerations in the publication of a teacher's name who has abused his position and power by committing sexual offences against a child. The only competing interest suggested is the suggestion that the teacher’s level of risk of harm in prison is increased by the publication of such information. Given the fact that the relevant information before QCAT contains nothing beyond the facts that had already been ventilated we do not think that there is any reason to think that permitting the QCT’s application to be held in public would endanger the teacher's safety. It is a clear case where the desirability of proceeding in public outweighs all other considerations.
[15] It should also be noted that the applicant seems to be under the assumption that the entire QCAT file would become open to the public, but that is not so. The material that is to be open to the public is that which is necessary for the determination of the particular matter, usually consisting of the pleadings (i.e. the application and the teacher’s response), the evidence that is read or otherwise used by the tribunal in reaching its decision, everything that is said and done in the course of the hearing, and the tribunal’s decision and reasons. Third parties are at liberty to attend the hearing and hear and see all that happens. QCAT’s proceedings are recorded and transcribed, and, subject to payment therefore, copies are generally available to third parties. But the remainder of the QCAT file is the property of QCAT and is available to third parties only in accordance with the laws of freedom of information. We think it desirable to dispel any assumption to the contrary.
[16] The application on behalf of the teacher for a non-publication order will therefore be dismissed.
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