Queensland College of Teachers v MacFarlane
[2010] QCAT 422
•19 August 2010
| CITATION: | Queensland College of Teachers v MacFarlane [2010] QCAT 422 |
| PARTIES: | Queensland College of Teachers |
| v | |
| Mr Robert Andrew MacFarlane |
| APPLICATION NUMBER: | OCR019-10, OCR010-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 April 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | S Booth – Presiding Member R Joachim – Member R Kyburz – Member |
| DELIVERED ON: | 19 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Robert Andrew MacFarlane is prohibited from reapplying for registration or permission to teach for a period of 5 years from 21 April 2010. |
| CATCHWORDS : | Education (Queensland College of Teachers) Act 2005; former approved teacher; not suitable to teach; prohibited from reapplication for maximum period; child sexual offences |
APPEARANCES and REPRESENTATION (if any):
| The hearing was decided on the papers in the absence of the parties. |
REASONS FOR DECISION
The Queensland College of Teachers (“the College”) has applied to the Queensland Civil and Administrative Tribunal (‘the Tribunal”) for an order under s.161(2)(c) of the Education (Queensland College of Teachers) Act 2005 (“the Act”) prohibiting Mr MacFarlane from reapplying for teacher registration or permission to teach for five years, which is the maximum period provided under the Act.
In November 2007 the Queensland Police Service (“QPS”) notified the College that Mr MacFarlane, who was a registered as a teacher in Queensland, had been charged with “indecent treatment of children under 16; lineal descendant/guardian/carer” pursuant to section 210 of the Criminal Code.
On December 2007 Mr MacFarlane’s registration as a teacher was suspended pursuant to s.48 of the Act. This section requires the College, once it becomes aware of a charge for a disqualifying offence, to immediately suspend a teacher.
Mr MacFarlane was convicted in the District Court sitting at Beenleigh. The penalty imposed by the Court was 12 months probation and no conviction recorded.
The Tribunal must determine if there are one or more grounds for disciplinary action against Mr MacFarlane. The grounds for disciplinary action are provided for in Section 92 of the Act.
The College submits that the grounds for disciplinary action has been established under section 92 (1)(a) and (h) of the Act. These are that Mr MacFarlane has been convicted of a serious offence and is not suitable to teach. The College seeks an order from the Tribunal prohibiting Mr MacFarlane from reapplying for registration for permission to teach for a period of 5 years. The College relied on a number of documents particularly the transcript of proceedings of the District Court of 9 April 2009. The College described the facts and circumstances of Mr MacFarlane’s offending as follows:
Mr MacFarlane was 59 years of age, married and had worked as manual arts teacher before retiring from the workforce in May 2005 on health grounds after suffering depression. Mr MacFarlane met the 12 year old female complainant child and her mother through involvement with a community theatre group and developed a friendship with them. The complainant child visited Mr MacFarlane regularly throughout 2007 staying at the house where he resided with his wife.
Mr MacFarlane lived an alternate lifestyle and was regularly naked, the child’s mother advised Mr MacFarlane that, although she accepted his lifestyle, she did not want her daughter to be exposed to it. Two incidents prior to the incident that lead to the charges being laid against Mr MacFarlane, there was an occasion where Mr MacFarlane went swimming in a creek naked with the complainant child although she was clothed. He then checked her body thoroughly for ticks while he was naked. The second occasion was when the complainant child was involved in a junior community theatre and was looking at a book on human anatomy, when she enquired of Mr MacFarlane about male genitalia Mr MacFarlane then unzipped his pants and removed his penis and testicles and showed them to the complainant child. On a later occasion, the female child was visiting Mr MacFarlane when he asked her to undress which she did, Mr MacFarlane then asked the child to point to different parts of her body while he told her which parts were rude parts and which were not. The complainant child told her mother what happened and a complaint was made that lead to Mr MacFarlane being convicted.
The College submits that under section 11(2) that where a teacher has a conviction for a serious offence the College must decide the person is not suitable to teach unless the College is satisfied it is an exceptional case in which it would not harm the best interests of the children for the person to teach. The College submits that Mr MacFarlane’s conviction for a serious offence establishes a rebuttable presumption that he is not suitable to teach unless an exceptional case exists. Further, there is no material before the Tribunal that overrides this presumptive position. The College submits that although Mr MacFarlane did not offend against the child in his capacity as a teacher, Mr MacFarlane was in a position of trust and authority with respect to the young girl and that trust was breached by Mr MacFarlane’s actions. Section 12(1)(b) provides for consideration of whether a teacher is suitable to work in child related field. The College suggests that in the field of child protection especially family law jurisdiction the paramountcy principle of the best interests and welfare of children can be transported over to the field of child protection. The College submits that Mr MacFarlane’s offending was of a child related sexual nature and falls within this parameter.
No submissions were provided by Mr MacFarlane in relation to the disciplinary proceedings.
Assessment of evidence and application of law
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”).
10. Mr MacFarlane’s conviction for indecent treatment of a girl under 16 under care is a fact which the tribunal must give appropriate weight in its consideration of suitability to teach. Section s.11(2) of the Act provides guidance to the College. It provides:
11 Suitability to teach—criminal history information
(2) If the College is aware the person’s criminal history includes a conviction for a serious offence, the College must decide the person is not suitable to teach, unless the College is satisfied it is an exceptional case in which it would not harm the best interests of children for the person to teach.
11. The Tribunal notes that Mr MacFarlane was convicted of a serious offence but did not receive a sentence of imprisonment. Additionally he did not renew his registration and is currently a former approved teacher as defined in schedule 3 of the Act.
12. The Tribunal must decide whether Mr MacFarlane is an exceptional case. The Tribunal has taken into account that the offending was committed recently in October 2007 and that Mr MacFarlane remained on probation until April 2010. Although Mr MacFarlane did not offend against the child in his capacity as a teacher he was an adult in a position of trust and authority in respect of the young complainant.
13. Section 12(3) of the Act further provides that a person is not suitable to teach if that person:
(a) behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
(b) otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
14. The Tribunal has given significant weight to the conviction of a serious offence. It has concluded because of the conviction, Mr MacFarlane does not satisfy the standard of behaviour generally expected of a teacher and that Mr MacFarlane’s behaviour was disgraceful and improper.
Further there is no material before the Tribunal that establishes that Mr MacFarlane’s circumstances are such that this is an exceptional case. The Tribunal is satisfied that Mr MacFarlane is a former approved teacher and is further satisfied that the ground for disciplinary action has been established that he is not suitable to teach.
16. The college seeks an order prohibiting Mr MacFarlane from reapplying for registration or permission to teach for five years. With no submissions from Mr MacFarlane and given the seriousness of his behaviour, the Tribunal concludes that the maximum penalty is appropriate.
Tribunal’s determination
17. The Tribunal orders that pursuant to section 161(2)(c) Mr MacFarlane is prohibited from reapplying for registration or permission to teach for a period of five years from 21 April 2010.
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