Queensland College of Teachers v Milestone - [2014] QCAT 466

CITATION:

Queensland College of Teachers v Milestone [2014] QCAT 466

PARTIES:	Queensland College of Teachers (Applicant)
v
Shontelle Anne Milestone (Respondent)

APPLICATION NUMBER:

OCR195-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

9 September 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

18 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The miscellaneous application to set aside the suspension is dismissed.

2. The application to stay the decision is dismissed.

CATCHWORDS:

OCCUPATIONAL REGISTRATION – TEACHER – where teacher suspended under s 49 of Education (Queensland College of Teachers) Act 2005 – whether teacher can review the decision – whether teacher can stay the decision

Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 49, s 50, s 53, s 54, s 209, s 133, s 215, Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

The Applicant was represented by Janeen Smithson of Queensland College of Teachers

RESPONDENT:

The Respondent was represented by Rachel Drew, Solicitor of TressCox Lawyers

REASONS FOR DECISION

On 26 August 2014 the Queensland College of Teachers (‘QCT’) suspended Ms Milestone’s teacher registration under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that a belief was formed that she posed an imminent risk of harm to children and that immediate action to suspend her registration was necessary to protect children.
On 2 September 2014, QCT filed a referral of the matter to the Tribunal seeking orders about whether a ground existed for taking disciplinary action against Ms Milestone.
On 5 September 2014, Ms Milestone filed a miscellaneous application seeking an order that the suspension of her registration be overturned and an application seeking a stay of the suspension.
Having read Ms Milestone’s submissions in support of her applications, I listed the applications for oral hearing on 8 September 2014. QCT advised at the hearing that they opposed the making of the orders on the basis that the Tribunal had no jurisdiction to review the suspension or to stay the suspension.
I advised the parties I agreed that the Tribunal had no jurisdiction to make the orders sought by Ms Milestone and that in those circumstances the miscellaneous application and the stay application were dismissed. I advised that written reasons would be given for the decision. These are those reasons.

Does the Tribunal have jurisdiction to review the suspension?

Ms Milestone says the Tribunal does have jurisdiction to review the continuation of the suspension in accordance with s 50(5) of the Act.
Suspension of a teacher’s registration is dealt with under Part 6 Division 1 of the Act.
Section 48 provides in effect that if a teacher is charged with a serious offence then QCT must immediately after it becomes aware of the charge suspend the teachers registration for permission to teach (these suspensions have become known as s 48 suspensions).
Under s 49 QCT has a discretionary power to suspend a teacher’s registration if QCT reasonably believes that the teacher poses an imminent risk of harm to children and it is necessary to immediately suspend the teacher’s registration to protect children.
Section 50 provides for what happens after the suspension as follows:
(1)If the college suspends an approved teacher’s registration or permission to teach under this division, the college must immediately give notice of the suspension to the teacher.
(2)For a suspension under s 48, the notice must state the following—
(a)that the teacher’s registration or permission to teach is suspended under section 48;
(b)the reasons for the suspension and the evidence or other material on which the suspension was based;
(c)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)For a suspension under section 49, the notice must state the following—
(a)that the teacher’s registration or permission to teach is suspended under section 49;
(b)the reasons for the college’s decision and the evidence or other material on which the decision was based;
(c)that the college will refer a disciplinary matter to QCAT about whether a ground for disciplinary action against the teacher exists.
(4)The college must, at the same time as notice of the suspension is given to the teacher, give a copy of the notice to—
(a)the employing authority for, and the principal of, each school at which the teacher is employed; and
(b)QCAT.
(5)The college must refer the continuation of the suspension of an approved teacher to QCAT for review under section 53.
Section 53 is headed ‘Requirement to decide whether to continue suspension under s 48’. It provides:
(1)QCAT must decide whether to continue the suspension of an approved teacher under section 48.
(2)The matter is to be decided in QCAT’s original jurisdiction.
(3)The purpose of the decision is for QCAT to decide whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
Chapter 8 Part 1 deals with internal and external reviews of decisions.
Section 209 is headed ‘Review process for particular decisions starts with internal review’. It provides:
(1)A person or entity who is given, or is entitled to be given, an information notice for a decision (an original decision) and who is dissatisfied with the decision may apply for a review of the decision under this part.
(2)To help users of this Act, schedule 1 identifies the decisions for which an information notice must be given under this Act.
(3)The review must be, in the first instance, by way of an application for internal review under section 210.
Section 215 provides for external reviews as follows:
A person who has applied for a review of an original decision under part 1 and is dissatisfied with the review may apply to QCAT for a review of the original decision.
Schedule 1 to the Act does not include suspension of a teacher’s registration in its list of reviewable decisions.[1]
[1]The Act, Schedule 1.
Ms Milestone concedes that the decision to suspend her registration is not a reviewable decision under s 209 but says that it is reviewable by the Tribunal under s 50(5).
She says the requirement in s 50(5) to refer the continuation of the suspension to QCAT applies to both s 48 and s 49 suspensions despite the reference to it being a review under s 53. Section 53 deals with reviews of s 48 suspensions.
She says the s 50(5) should be read without reference to the words ‘under section 53’. She says it is ambiguous because it provides for a requirement to refer the continuation of the suspension for the Tribunal’s review and does not limit the suspension to a 48 suspension. She says the ambiguity should be resolved in her favour.
She concedes there is no equivalent s 53 for a s 49 suspension and in those circumstances she says the review to be undertaken under s 50(5) is a review in QCAT’s review jurisdiction under s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). That section provides that the Tribunal’s review jurisdiction is jurisdiction conferred on the Tribunal by an enabling act to review a decision made or taken to have been made by another entity under that act.[2]
[2]QCAT Act s 17.
I disagree. I find that s 50(5) only relates to suspensions under s 48. The section is not ambiguous. It would be preferable if the words ‘under s 48’ were included in s 50(5) but I do not think it is necessary for those words to be included to come to a conclusion that the referral is limited to s 48 suspensions.
I have formed this view for a number of reasons as follows:
· The words used in s 50(5) mirror the words in s 50(2) which refer to s 48 suspensions. That is, s 50(2) requires the notice of suspension under s 48 to state 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’.
· Conversely, s 50(3) which provides for the requirements for a s 49 suspension notice make no reference to QCAT conducting a review of the suspension. The only reference to QCAT is that ‘the college will refer a disciplinary matter to QCAT about whether a ground for disciplinary action exists against the teacher’.
· The reference to the referral for a ‘review under s 53’ means that the review of the continuation of the suspension under s 50(5) is not intended to be a review of a decision contemplated by s 22 of the QCAT Act namely a review on the merits to determine the correct and preferable decision. The review contemplated is only to review the continuation of the suspension ‘to decide whether it is an exceptional case in which the bests interests of children would not be harmed if the suspension were ended’.[3] It is unlikely that Parliament intended that a teacher suspended under s 49 would be entitled to have the suspension reviewed by QCAT in its review jurisdiction if it did not include the suspension as a reviewable decision under s 209.
· Ms Milestone in her submissions dealing with whether the suspension should be lifted refers to decisions of QCAT in applications for reviews of decisions by the Medical Board to suspend medical practitioner’s registration. Whilst it is not necessary to consider these cases in that context (as I have found that there is no jurisdiction) it is relevant to draw the distinction between the national law dealing with medical practitioners which does make suspension a reviewable decision[4] and the Act which does not.
· The time frames provided in the Act for dealing with a review of a suspension and for hearings where there has been a suspension under s 49 are not compatible.
oSection 54 is a mandatory provision dealing with the notice QCAT is required to give to the teacher in the review of the continuation of the suspension.
oIt provides that QCAT must give the teacher a notice inviting them to show within a period of not less than 28 days (my emphasis) why the matter is an exceptional case.
oSection 133 of the Act which provides for the conduct of proceedings in QCAT provides in that a notice must be given of QCAT’s intention to conduct a hearing; that the notice must state the time of the hearing and that ‘if the teacher has been suspended under section 49 the time stated must not be more than 14 days after the day the teacher was suspended’.[5]
oIt seems to me that it was envisaged by the legislature that within 14 days of the suspension under s 49 the Tribunal would hear the referral by QCT of the matter under s 97 and as part of that hearing the Tribunal would make orders regarding the suspension.
oIt would not be possible to deal with a suspension under s 48 in that manner as in that case the criminal charges must be dealt before the disciplinary matter can be determined and as such the timing is out of the hands of QCT and the Tribunal.
oIn practical terms it can be very difficult to hold a full hearing within 14 days of the suspension under s 49. In some cases QCT may not have completed its investigation let alone the teacher having had an adequate time to respond and gather evidence. The unfortunate result is that in the meantime there is no ability for the teacher suspended under s 49 to review the suspension pending the hearing.
[3]Section 50(2).
[4]Health Practitioners Regulation National Law Act 2009 (Qld) s 199(1)(h).
[5]The Act s 1.
Ms Milestone concedes that QCAT could only review the continuation of the suspension once QCT had referred the continuation to QCAT for review.
Ms Milestone says the suspension was referred by QCT in its referral under s 97. She referred to two paragraphs in the affidavit of Mr Gormley which she says support this argument:
Under a heading ‘Referral to Queensland Civil and Administrative Tribunal’. Mr Gormley says:
3.On 26 August 2014, the QCT suspended Ms Milestone’s teacher registration under s.49 of the Act.
4.On 27 August 2014, Ms Milestone’s matter was referred to the Queensland Civil and Administrative Tribunal under s.97 of the Act.
Ms Milestone says that this is amounts to a referral of the suspension to QCAT. QCT say it is not a referral. They say they did not refer the suspension for review as are not required to refer it under the Act. It is difficult to make the finding that QCT in fact referred the suspension when it says it did not. I am of the view that the only matter referred to the Tribunal was a referral under s 97 for QCAT to make a decision about the disciplinary matter.

The application to stay the decision

Ms Milestone also asked the Tribunal to stay the decision pending the review.
She relies on s 22 of the QCAT Act which gives the Tribunal power to stay the operation of a reviewable decision if a proceeding for the review of the decision has started.
Ms Milestone says she has filed an application to review the decision to suspend.
What in fact she has filed is an application for miscellaneous matters seeking orders in the review she says has been referred to QCAT by QCT. For the reasons set out above the decision to suspend Ms Milestone’s registration under s 49 has not been referred for review and in any event is not a decision which can be reviewed by QCAT either under s 22 of the QCAT Act or s 50(5) of the Act.
Where there is no jurisdiction to review the decision under s 22 there is no power within the Tribunal to stay the decision under s 22.
In those circumstances the application for the review and the stay are dismissed.