Queensland College of Teachers v Klemm (No 2)

[2011] QCAT 276

CITATION: Queensland College of Teachers v Klemm (No 2) [2011] QCAT 276

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,

Judicial Member
Ms Susan Booth, Senior Member
Ms Bev Day, Member

DELIVERED ON: 15 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

[1]   It is declared that the respondent Christopher Michael Klemm is an “excluded person” within the meaning of subparagraph (d) of the definition of that term in the Education (Queensland College of Teachers) Act 2005;

[2]   Leave is granted to the Queensland College of Teachers to withdraw all other applications.

CATCHWORDS:

Disciplinary proceeding – disqualifying offences – excluded person – reliance on proof that teacher is excluded person – withdrawal of application – when desirable to obtain determination or declaration

Queensland (College of Teachers) Act 2005, s 56
Queensland Civil and AdministrativeTribunal Act 2009, s 46

APPEARANCES and REPRESENTATION (if any):

The matter was heard and determined on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. Written submissions were received from Mr John Gormley, Principal Legal Officer, Queensland College of Teachers.

REASONS FOR DECISION

Issue for Determination

1. The Queensland College of Teachers (“the College”) is inter alia entrusted with the registration and discipline of teachers.  Its powers and duties are contained in the Education (Queensland College of Teachers) Act 2005 (“the EQCT Act”).

1. The respondent Mr Klemm will be referred to as "the teacher".

1. Upon receiving notification that criminal charges had been brought against the teacher, the College suspended his registration under section 48(3) of the EQCT Act.

1. The present proceedings were initiated on 11 December 2009 by the College by way of referral to QCAT under section 50(5) of the EQCT Act of the issue of "the continuation of the suspension” of Mr Klemm, an approved teacher. Its application also requested the tribunal "to conduct a proceeding to decide whether a disciplinary ground is established".

1. Under sections 52, 53 and 55 of the EQCT Act, QCAT has jurisdiction to end the suspension if it is an "exceptional case", or to allow it to continue. Presumably if QCAT found an "exceptional case" the suspension would be lifted and the original registration restored, with or without conditions. In the present matter the suspension was continued by QCAT on 10 February 2010, and no attempt was made by the teacher to contend otherwise.

1. On 4 November 2010 the teacher pleaded guilty to offences of indecently dealing with a boy and one count of sodomy, and was sentenced to imprisonment for five years suspended after 15 months.

1. Those offences are "disqualifying offences" as defined in the EQCT Act. The teacher thereby became an "excluded person" under subparagraph (d) of the definition of that term in the Act. Consequently, the only event that could alter his status as an excluded person would be an appeal out of time which resulted in the setting aside of the conviction. Unless that were to happen the teacher could never apply for registration or permission to teach (see the EQCT Act, s 14).

1. The College has submitted that in such a situation any further proceedings are unnecessary.  However some order is necessary in order to allow the present proceedings to be terminated.  The alternative application for a disciplinary order against the teacher is still pending, and in theory at least, QCAT could still lift the original suspension thereby restoring the original registration.

1. The College has simply sought leave to withdraw the proceedings, and in the alternative to proceed with a disciplinary reference under section 97 of the Act.

1. In most situations of this kind the College may safely rely upon being able to prove that the teacher is an "excluded person" if the teacher made any attempt to reapply for registration.  However in some situations (mentioned hereunder) it will be desirable for the College to obtain a determination or declaration in order to protect its position against subsequent challenge.

1. In the present matter there is no evidence before the tribunal that the College has exercised its power to cancel the teacher’s registration under section 56(3) of the EQCT Act as distinct from the initial suspension under section 48(3).

1. The main point in the present case is to decide what procedure should be followed by the College and QCAT in pending proceedings when a teacher becomes an "excluded person" under the EQCT Act, and how such proceedings may best be terminated.

Discussion

1. In the ordinary course in a situation like the present we think that the College should follow the procedure stated in s 56(3) of the Act. Indeed it is a mandatory statutory requirement that it do so. Such a cancellation supersedes the original suspension, and eliminates QCAT’s jurisdiction to revive it. Cancellation is therefore a desirable step towards certainty in prevention of further registration of that particular teacher.

1. Having cancelled a registration under section 56(3), in the ordinary course it would be sufficient for the College to apply to QCAT (upon notice to the adverse party) seeking leave to withdraw the pending proceedings. Only rarely will a further specific determination by QCAT be needed. One possible instance is the risk of a contest on whether the offence of which the teacher was convicted meets the definition of "disqualifying offence”. That term is blandly defined in the EQCT Act as "see the Commissioner’s Act section 168”, which is in turn a reference to the CCYPCG Act of 2000, section 168 of which is, to say the least, complex. There may be room for argument in at least some cases whether a particular charge meets the definition. A question might also arise as to whether the sentence, on its proper construction, amounted to a sentence of imprisonment. Issues of identity might also arise. We are simply pointing out that the EQCT Act is not self-executing and that, at a future time, issues of fact and law may be raised by a teacher as to whether the facts render him or her an excluded person.

1. QCAT is a court of record (Queensland Civil and Administrative Tribunal Act 2009, section 164). One of the significant consequences of this is that the tribunal's decision may constitute an estoppel by record. This means that no party may at any future time challenge a determination that has been made in a duly constituted and properly litigated proceeding between those parties.

1. If it is in the least doubt on any of the above issues or some other issue, the College may find it desirable to seek a determination or declaratory order from QCAT that will prevent future contention.

1. In summary, in an ordinary uncomplicated case like the present –

   (a) The College should cancel the registration under section 56(3) and advise the teacher and QCAT;

   (b) There is no need for the College to make a disciplinary referral to QCAT under section 97;

   (c) The College should apply to QCAT for leave to withdraw its application under s 56 of the QCAT Act in line with the procedure suggested in Queensland College of Teachers v Benson [2011] QCAT 129.

2. However in cases where there may be any doubt over the question whether the teacher is an "excluded person", the college may apply to QCAT for a determination or declaration that the teacher is an excluded person, and it may be wise to include a disciplinary reference under section 97 of the EQCT Act in case the primary application does not succeed.

1. In the present matter QCAT intimated to the parties that a declaratory order might be considered as an appropriate way to terminate the present proceedings, and the parties were afforded the opportunity of making submissions as to whether this should be done.

1. The teacher is plainly an excluded person, and it is unnecessary to proceed with any disciplinary hearing.  It may be noted that in such a procedure the maximum period for which QCAT may prevent a teacher from reapplying for registration is five years.  As the issue has been raised and considered, it is probably beneficial that a declaration be made, although as indicated above, in most cases such an order will be unnecessary.

Orders

1. It is declared that the respondent Christopher Michael Klemm is an “excluded person” within the meaning of subparagraph (d) of the definition of that term in the Education (Queensland College of Teachers) Act 2005;

1. Leave is granted to the Queensland College of Teachers to withdraw all other applications.