Queensland College of Teachers v Morrow (No 2)
[2011] QCAT 386
•1 August 2011
| CITATION: | Queensland College of Teachers v Morrow (No 2) [2011] QCAT 386 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Stephen Peter Morrow (Respondent) |
| APPLICATION NUMBER: | OCR006-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 27 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Presiding Member Adrian Ashman, Member Robyn Oliver, Member |
| DELIVERED ON: | 1 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave is granted to the Queensland College of Teachers to withdraw the disciplinary proceeding under section 46 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | DISCIPLINARY PROCEEDING – application for withdrawal of disciplinary referral – whether excluded person – whether relevant excluded person subject to offender reporting obligations – whether corresponding reportable offender – former registered teacher Child Protection (Offender Reporting) Act 2004, ss 5, 7, 36, 39 Education (Queensland College of Teachers) Act 2005, ss 14, 38, 36, Schedule 3 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard and determined on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The tribunal has a disciplinary proceeding before it concerning Mr Morrow. The tribunal previously determined not to allow an application from the Queensland College of Teachers (QCT) to withdraw the disciplinary referral.[1] The matter was then listed for hearing of the disciplinary referral on the papers. Both parties have provided written submissions.
[1] Queensland College of Teachers v Morrow [2011] QCAT 184.
Queensland College of Teachers (QCT) makes, as a preliminary matter, a further application to withdraw the proceeding under section 46 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), on a different basis than its previous application determined by the tribunal.
QCT submits that Mr Morrow is now an excluded person under the Education (Queensland College of Teachers) Act 2005 (the Act), who is not entitled to apply for teacher registration or permission to teach because he is a relevant excluded person who is subject to offender reporting obligations. In essence, QCT submits that the disciplinary proceedings are therefore unnecessary and that the public interest is protected by his status as an excluded person.
The history of teacher registration and convictions
Mr Morrow obtained registration as a teacher in Queensland in September 2004.
In November 2006, Mr Morrow was charged by the Victorian Police Service with six counts of offences relating to sexual penetration of a child aged 16 or 17 years under his care, supervision or authority alleged to have occurred.
Within days, his teacher registration was suspended under the Act. He ceased being registered on 13 April 2007.
In April 2008, Mr Morrow was convicted of nine counts of the charge and sentenced to a term of imprisonment.
In 2010, the Victorian Court of Appeal quashed the convictions and listed the matter for retrial. The retrial was listed in October 2010, and Mr Morrow pleaded guilty to five counts of sexual penetration of a 16 or 17 year old child under his care supervision or authority under section 48(1) of the Crimes Act 1958 (Vic). Mr Morrow was sentenced to an effective sentence of three years imprisonment, although some fifteen months of the term was suspended.
The legislative provisions
The relevant legislative provisions are technical and somewhat tortuous to navigate.
[10] Sections 14, 28 and 36 of the Act provide that an excluded person is not eligible to apply for teacher registration or permission to teach.
[11] Schedule 3 of the Act provides that an excluded person includes (subject to a provision which is inapplicable in this proceeding) a relevant excluded person. A relevant excluded person is defined in schedule 3, to include a person subject to offender reporting obligations. These obligations are defined, again in schedule 3, as reporting obligations under the Child Protection (Offender Reporting) Act 2004 (the CPOR Act).
[12] The CPOR Act defines a reportable offender to include a person who is a corresponding reportable offender: section 5(1)(b). A corresponding reportable offender is a person who had at any time been in a foreign jurisdiction and was at that time required to report to the corresponding registrar in that jurisdiction, for longer than would be required under the CPOR Act; and would, if in that jurisdiction be required to report for a longer period (the recognised foreign reporting period) than is required under the CPOR Act; and is in a class of persons whom a regulation provides is a corresponding reportable offender: section 7.
[13] Section 36 of the CPOR Act provides that a reportable offender must continue to comply with reporting obligations imposed for varying periods of time depending upon the offence, the number of convictions and whether the person has re-offended ranging between 8 years, 15 years, and in the case of persons who have re-offended life. Section 39 provides that a corresponding reportable offender must comply with the reporting obligations for the recognised foreign reporting period.
[14] The Child Protection (Offender Reporting) Regulation 2004 then provides in section 4 that certain classes of persons are corresponding reportable offenders, including persons who are registrable offenders under the Sex Offenders Registration Act 2004 (Vic), unless they were sentenced in respect of offences which are not relevant in these proceedings.
[15] The Sex Offenders Registration Act 2004 (Vic) provides that a registrable offender is a person who has been sentenced by a court for a registrable offence: section 6. A registrable offence is defined in section 7 to include a Class 1 offence, as listed in Schedule 1. Schedule 1 in Item 1 includes an offence against the Crimes Act 1958 (Vic) which involves sexual penetration where the person against whom the offence was committed is a child. The Note to Schedule 1 Item 1 specifically states that Item 1 covers any offence as described including sexual penetration of a 16 or 17 year old under section 48(1) of the Crimes Act 1958 (Vic).
[16] Section 34 of the Sex Offenders Registration Act 2004 (Vic) then provides for the length of the reporting period that applies. In respect of a registrable offender found guilty of two or more Class 1 offences, reporting is required for the remainder of the person’s life: s 34(1)(c).
[17] There are provisions in both the CPRO Act[2] and the Sex Offenders Registration Act 2004 (Vic)[3] allowing the relevant Supreme Court upon application to suspend the reporting obligations after 15 years of reporting since the person was last sentenced or released from detention whichever is later, if the reporting obligation is for life.
[2] Section 41.
[3] Section 39.
Discussion and Decision
[18] Mr Morrow’s submission does not specifically comment upon the QCT’s arguments that he is an excluded person as a result of being a subject to offender reporting requirements. He submits that he does not intend to seek to be registered as a teacher again and intends to seek suspension of the reporting obligations.
[19] Mr Morrow’s convictions are for offences against section 48(1) of the Crimes Act 1958 (Vic). Accordingly, he has been sentenced for Class 1 registrable offences and is therefore a registrable offender under the Sex Offenders Registration Act 2004 (Vic). He has been convicted of more than two Class 1 offences and therefore is required to report for life under section 34 of the Sex Offenders Registration Act 2004 (Vic).
[20] As a result, he is a corresponding reportable offender in Queensland under section 7, and also a reportable offender under section 5 of the CPOR Act. By virtue of section 39 of the CPOR Act, he must report in compliance with the recognised foreign reporting period, namely for life.
[21] While he is subject to those offender reporting obligations, he is both a relevant excluded person and an excluded person under the Act. As a consequence, he is ineligible to apply for teacher registration in Queensland. It appears that he will remain ineligible to do so for life.
[22] Mr Morrow raises the possibility that he may seek suspension of the reporting obligations. Both the CPOR Act[4] and the Sex Offenders Registration Act 2004 (Vic)[5] provide for the Supreme Court in the relevant jurisdiction to suspend reporting obligations, in essence, after 15 years of reporting. Whether or not he ultimately proceeds to do so, and if he does make application, whether he succeeds cannot be known at this stage. Even if he did apply and succeed at some point, and then sought teacher registration, which he suggests he will not do, registration is not an automatic process.
[4] Section 41.
[5] Section 39.
[23] Disciplinary proceedings are protective, not punitive in nature.[6] The tribunal is satisfied that the public interest is protected as a consequence of Mr Morrow’s status as an excluded person. In all of the circumstances, it is appropriate for leave to be granted to QCT to withdraw the disciplinary referral relating to Mr Morrow.
[6] Education (Queensland College of Teachers) Act 2005, s 3(1).
[24] Given the tribunal’s decision, it is unnecessary for the tribunal to consider other matters raised in the parties’ submissions.
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