Queensland College of Teachers v MJS

[2017] QCAT 17

CITATION:

Queensland College of Teachers v MJS [2017] QCAT 17

PARTIES:

Queensland College of Teachers
(Applicant)

v

MJS

(Respondent)

APPLICATION NUMBER:

OCR245-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

17 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The suspension of the teacher registration of MJS is continued.

2.   The publication of any information that may enable MJS to be identified is prohibited.

CATCHWORDS:

EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where charged with serious offence – whether exceptional case – whether suspension should continue

Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 48, s 50(5), s 53
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The Queensland College of Teachers (QCT) suspended MJS’ teachers registration on 16 December 2016 pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (the Act) on the basis that he had been charged with a number of ‘serious offences’, namely:

   ·Possessing child exploitation material under s 228D of the Criminal Code (Qld);

   ·Using a carriage service to access child pornography material under s 474.19(1)(a), (aa) and (b) of the Criminal Code (Cth);

   ·Using a carriage service to transmit, make available, publish, distribute, advertise or promote child pornography material under s 474.19(1)(a)(iii), (aa) and (b) of the Criminal Code (Cth).

2. In accordance with s 50(5) of the Act, the QCT has referred the continuation of the suspension to QCAT for review. QCAT must decide whether to continue the suspension or whether it is an exceptional case in which the best interests of children will not be harmed if the suspension were ended.[1]

   [1]The Act, s 53(1) and (3).

3. MJS has submitted that the suspension of his registration should be ended. The QCT opposes the lifting of the suspension.

Is this an exceptional case in which the best interests of children would not be harmed if the suspension was lifted?

1. The term ‘exceptional case’ is not defined in the Act. The term has been considered in a number of authorities involving different statutory concepts.[2]

   [2]Kent v Wilson [2000] VSC 98 at [22] and [29]; R v Kelly (2000) QV 198; Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 at [17]; Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [28]-[36].

2. Those cases identify certain principles when considering whether an ‘exceptional case’ exists:

   ·An exceptional case is one that is not regularly, routinely or normally encountered;

   ·The term should be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect;

   ·Whether a case is exceptional involves the exercise of discretion and a consideration of the individual circumstances of the case; and

   ·A number of facts in combination may constitute an exceptional case.

3. MJS submits that this is an exceptional case. It is noted that he does not submit the charges are unfounded. He says the charges are internet related and do not suggest any child under his care has been harmed. He says he has been teaching students with disabilities for 10 years and without any allegation of harm to his students. He says he has sought help from a psychologist to help find the ‘cause of the problem that I now realise I have developed’. He says ‘I am actively looking for assistance to find the cause as to why I have chosen this course of action and am searching to rectify this’.

4. The QCT submits that the Tribunal should not be satisfied on MJS’ material that the best interests of children would not be harmed if the suspension were lifted.

5. I agree with the QCT’s submission.

6. Section 48 of the Act is a protective provision aimed at ensuring that children are protected by removing a person who may be unsuitable to teach from a positions where they may be in a position to cause harm to children. It is noted that the Act defines ‘harm’ to a child as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.[3]

   [3]The Act, s 7.

7. The Act creates a rebuttable presumption that the existence of ‘a serious offence’ charge creates an unacceptable risk of harm to children. MJS bears the onus of rebutting this presumption and establishing that exceptional circumstances exist whereby the best interests of children would not be harmed if the suspension were lifted.

8. In my view, MJS has not discharged the onus on the material presented to the Tribunal. He does not contest the charges. He relies on the argument that the charges were ‘internet related’ and therefore there was no harm done to children in his care.

9. I accept the QCT’s submission that assessing, collation and transmission of child exploitation material causes harm to the children who were depicted in the offensive material and that it is immaterial whether the offending conduct occurred either at his place of residence or in the school environment.[4] I agree that MJS’ submission reflects a lack of insight into the harm that has been done to the children involved.

   [4]QCT’s submission dated 13 January 2017, at [19].

10. MJS has engaged a psychologist and this indicates a recognition of the inappropriateness of his behaviour, however, he has not presented any evidence from the psychologist in relation to the issue of his current treatment and present risk of harm. He has provided no independent evidence from colleagues supporting his position.

11. I find this is not an exceptional case and that the suspension should continue.

Non-publication order

1. The parties were invited to make submissions as to whether a non-publication order should be made under s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

2. The QCT have submitted that s 66(2) requires that any non-publication order made be ‘necessary’ for the reasons set out in that section. The QCT notes that MJS has children and submits that it is not in the interests of justice for children to be identifiable to the public in connection with proceedings such as these. The publication of MJS’ name may lead to their identification.

3. It is in the interests of justice that an order be made prohibiting the publication of information that may lead to identification of MJS.