Queensland College of Teachers v Neilson
[2012] QCAT 693
•13 November 2012
| CITATION: | Queensland College of Teachers v Neilson [2012] QCAT 693 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Graeme Charles Neilson (Respondent) |
| APPLICATION NUMBER: | OCR082-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 13 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Margaret McLennan, Member Joanna Lindgren, Member Ron Joachim, Member |
| DELIVERED ON: | 13 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Neilson is prohibited from applying to be re-registered as a teacher for a period of three (3) years from the date of this order. |
| CATCHWORDS: | Approved teacher – not suitable to teach Commission for Children and Young People and Child Guardian Act 2000 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The teacher in these proceedings is Mr Graeme Charles Neilson who was first registered to teach in Queensland on 27 December 1983. On 31 July 2003 his name was removed from the register of teachers. Mr Neilson reapplied for registration and was re-admitted to the register of teachers on 12 August 2008. He was not registered from 31 July 2003 to 12 August 2008. He had provisional registration as a teacher in Queensland.[1] His date of birth is 29 January 1960.
[1] Section 223(e) certificate.
In an application received on 16 March 2012 in the Queensland Civil and Administrative Tribunal (the tribunal), the Queensland College of Teachers (QCT) commenced proceedings pursuant to section 92 of the Education (Queensland College of Teachers) Act 2005 (the Act). The grounds for disciplinary action against Mr Neilson are pursuant to section 92(1)(b) and section 92(1)(h) of the Act: as a relevant teacher[2] Mr Neilson has been convicted of an indictable offence which is not a serious offence[3] and that he is not suitable to teach.[4]
[2]Schedule 3 defines relevant teacher in (b) as (i) an approved teacher; or (ii) a former approved teacher.
[3] Section 92(1)(b) of the Act.
[4] Section 92(1)(h) of the Act.
Mr Neilson was registered as a teacher when these disciplinary proceedings were commenced in the tribunal. At his request, his name was removed from the register of teachers on 14 June 2012. He is now a former approved teacher as defined in the Act.[5]
[5] Schedule 3 of the Act.
The disciplinary ground under section 92(1)(b) will be established if Mr Neilson has been convicted of an indictable offence, that is not a serious offence.[6]
[6]Schedule 3 of the Act defines serious offence as per section 167 of the Commission for Children and Young People and Child Guardian Act 2000.
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 (Briginshaw). It remains the civil standard of the balance of probabilities but the gravity which is involved is that if the tribunal is satisfied that the conduct occurred as alleged by the QCT, a teacher may have his employment suspended or terminated.
QCT submissions[7]
[7] The tribunal has incorporated and used the detail of the QCT submissions.
On 9 April 2009 the QCT was notified pursuant to section 75 of the Act by the Queensland Police Service (QPS), that Mr Neilson had been charged on 8 April 2009 with alleged participation in prostitution; procuring another to engage in prostitution; use of a telecommunications network to commit a serious offence and procuring another to damage evidence.[8]
[8]QPS provided subsequent notifications dated 23 June 2009 pursuant to s 75 of the Act; 13 December 2011 pursuant to s 65 of the Act and 16 January 2012 pursuant to s 65 of the Act.
Mr Neilson disclosed to the QCT the change in his criminal history in notices pursuant to section 68 of the Act. The disclosures are dated 26 May 2009 and three detailed disclosures all dated 17 August 2011.
The bases of the disciplinary action are:[9]
[9] The tribunal has relied on and incorporated the QCT submissions dated 18 June 2012.
Allegation 1
In the Southport Magistrates Court on 2 December 2010 Mr Neilson was convicted of the following offences:
(i) One count of knowingly participate in the provision of prostitution between 28 February 2008 and 8 May 2008 under section 229H(1) of the Criminal Code Act 1899 (Qld),
(ii) Two counts of procuring prostitution – engage in prostitution in Queensland or elsewhere on or about 29 April 2008 under section 229G(1)(a) of the Criminal Code Act 1899 (Qld).
In respect to the three charges no conviction was recorded against Mr Neilson. Mr Neilson was fined $2,000 in default 20 days imprisonment. Mr Neilson was allowed 28 days to pay the fine.
Particulars: during 2008 Mr Neilson, his wife and others jointly operated an escort agency business which provided illegal prostitution outcall services in breach of the Prostitution Act 1999.
Allegation 2
In the Southport Magistrates Court on 2 December 2010 Mr Neilson was convicted of the offence of using a telecommunications network to facilitate the commission of a serious offence on or about 29 April 2008 under section 474.14(2) Criminal Code Act 1995 (Cth).
No conviction was recorded against Mr Neilson. Mr Neilson was issued with a recognisance in the sum of $1,000 and a good behaviour period of nine months.
Particulars: a telecommunication network was used by Mr Neilson, his wife and others to facilitate the procuring of persons to engage in illegal prostitution services.
Allegation 3
In the Southport District Court on 16 November 2011 Mr Neilson was convicted of the following offence:
(i) Attempting to procure the commission of criminal acts on or about 8 May 2008 under section 539(1)(a) of the Criminal Code Act1899 (Qld).
A conviction was recorded against Mr Neilson. Mr Neilson was sentenced to six months imprisonment which was to be served by way of an Intensive Correction Order.
Particulars: Mr Neilson’s (and others’) illegal outcall prostitution service was discovered as a result of a covert police operation in May 2008. After the covert police operation, Mr Neilson collected a work mobile telephone and documents used in the business from a receptionist known as Bella working for the outcall prostitution service.
Mr Neilson asked Bella whether she had used her personal mobile phone in connection with the business. Bella replied that she had used her personal phone at times on business activities. Mr Neilson instructed Bella to destroy the sim card in her personal mobile phone because deleted text messages could be recovered by the police.
Allegation 4
In the Southport District Court on 16 November 2011 Mr Neilson was convicted of the following offence:
(i) Attempting to corrupt a witness on various dates between 10 November 2008 and 17 November 2008 under section 127(1)(b) of the Criminal Code Act 1899 (Qld).
A conviction was recorded against Mr Neilson. Mr Neilson was sentenced to 18 months imprisonment with that imprisonment to be wholly suspended for an operating period of 18 months.
Particulars: in November 2008, on two occasions Mr Neilson and another person approached witness Bella who had been subpoenaed to give evidence at a Crime and Misconduct Commission (CMC) hearing on 17 November 2008. Mr Neilson instructed Bella as to the evidence she should give to the CMC hearing. Mr Neilson provided Bella with an innocent explanation she could provide to the CMC as to how she came to know Mr Neilson, his wife and the others involved in the illegal outcall prostitution service.
Mr Neilson also instructed Bella to deny any knowledge of the business; to deny she was ever known as Bella and to deny that she had worked as a receptionist for the outcall prostitution service run by Mr Neilson and others.
Bella did not comply with Mr Neilson’s instructions and she gave evidence at the CMC hearing which implicated Mr Neilson, his wife and others in the ownership and management of the illegal outcall prostitution service.
When Mr Neilson had applied for re-registration on 30 July 2008 he did not advise the QCT that he had been charged with any offences as at that date, he had not been charged. Hence the QCT was unaware of any concerning conduct by Mr Neilson at the time of the application for re-registration in 2008.
Discussion
Jurisdiction is based on section 92(1)(b) and section 92(1)(h) of the Act: at all relevant times Mr Neilson was a relevant teacher as either an approved teacher or a former approved teacher.[10]
[10] Schedule 3 of the Act.
In relation to Allegations 1, 2 and 3 Mr Neilson was a former approved teacher when he committed these offences in February to May 2008, and a registered teacher when he was convicted of these offences on 2 December 2010 and 16 November 2011.
In relation to Allegation 4 Mr Neilson was a registered teacher at the time the offence was committed between 10 November-17 November 2008 and when he was convicted of this offence on 16 November 2011.
Schedule 3 of the Act provides:
“conviction means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.”
Schedule 3 of the Act defines indictable offence to include:
“an indictable offence dealt with summarily, whether or not the Criminal Code, section 659 applies to the indictable offence.”[11]
[11]See also s 3 of the Criminal Code Act 1899 (Qld) which defines crimes and misdemeanours as “indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.” See also the definition of indictment in s 1 of the Criminal Code Act 1899 (Qld) which is a “written charge preferred against an accused person in order to [have] the person’s trial before some court other than one exercising summary jurisdiction.” The prostitution offences relevant to his offence under section 229G(1) of the Criminal Code Act 1899 (Qld) are punishable by imprisonment for 7 years.
Mr Neilson has been convicted of five indictable offences under the Criminal Code Act 1899 (Qld).
Mr Neilson has also been convicted of an indictable offence under the Criminal Code Act 1995 (Cth).[12]
[12]Section 4G Crimes Act 1914 (Cth) provides that “offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears”. The Criminal Code Act 1995 (Cth) provides in relation to s 474.14: Using a telecommunications network with intention to commit a serious offence that in subsection (3) “A person who is guilty of an offence against subsection (1) or (2) is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.” See also the definition in s 473.1 of the Criminal Code Act 1995 (Cth) which provides that “serious offence against a law of the Commonwealth, a State or a Territory means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment: (a) for life; or (b) for a period of 5 or more years.”
However none of the indictable offences for which Mr Neilson has been convicted are serious offences for the purposes of the Act.[13]
[13]Schedule 3 of the Act defines “serious offence see the Commissioner’s Act, section 167.” Section 167 of Commission for Children and Young People and Child Guardian Act 2000 defines “serious offence” extensively and in particular by reference to Schedule 2 of that Act. Schedule 2 provides in relation to s 229H of the Criminal Code Act 1899 (Qld) that only where the offender was or could have been liable under s 229H(2) constitutes a “serious offence”. This does not apply to Mr Neilson.
The evidence which is probative before the tribunal is the fact of Mr Neilson’s convictions. In addition, in a statement dated 7 June 2012 Mr Neilson acknowledged his acceptance of all the allegations. In Mr Neilson’s submission dated 27 June 2012, he states his agreement with the orders sought by the QCT. The tribunal is satisfied that the Briginshaw standard has been met.
In consideration of Mr Neilson as a person not suitable to teach pursuant to s 92(1)(h), the tribunal has regard to the underlying policy objectives of the Act which emphasise public protection and confidence in the competence and standards of the teaching profession.[14] Section 11 of the Act directs the tribunal to have regard to the information provided to the QCT about Mr Neilson’s convictions. In particular section 11(3) of the Act the tribunal has regard to Mr Neilson’s criminal history and relevantly, must take into consideration the following matters:
(a) when the offence was committed, is alleged to have been committed or may possibly have been committed;
(b) the nature of the offence and its relevance to the duties of a teacher;
(c) anything else the college considers relevant to deciding whether the person is suitable to teach.
[14] Section 3 of the Act.
Section 12(3) 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.
While “standard of behaviour generally expected” is not defined in the Act the QCT submits, and the tribunal accepts, that this is community expectation as well as prescribed in relevant policies.[15]
[15]For example: QCT Code of Ethics, QCT Professional Standards and relevant employing authority Codes of Conduct. These documents are representative (though not exclusive or exhaustive) of the standard of expectations of teachers.
The tribunal finds that the grounds for disciplinary action in section 92(1)(h) of the Act are established.
The tribunal notes that Mr Neilson pleaded guilty to one offence of attempting to procure the destruction of evidence and further pleaded guilty to corrupting a witness.[16] Her Honour Judge McGinness stated: ”Your offending on both of these occasions was very serious.”[17] She accepted the prosecution’s submission that Mr Neilson’s type of offending is viewed very seriously by the justice system as it strikes at the heart of the criminal justice system.[18]
[16]Transcript of proceedings The Queen v Graeme Charles Neilson 16 November 2011 District Court Southport pages 1-2.
[17]Transcript of proceedings The Queen v Graeme Charles Neilson 16 November 2011 District Court Southport pages 1-2.
[18]Transcript of proceedings The Queen v Graeme Charles Neilson 16 November 2011 District Court Southport pages 1-3.
Mr Neilson’s reprehensible conduct has been such as to bring the teaching profession into serious disrepute. In particular the tribunal accepts the QCT submission that the two offences referred to above in paragraph 38 particularly reflect very poorly on Mr Neilson’s honesty, integrity and respect for the law. These are attributes which are fundamental requirements in the teaching profession and for the maintenance of community confidence in the profession. Any attempt to subvert the justice system has to be viewed most seriously.
While Mr Neilson has been punished by the courts, it is a necessary administrative function in this tribunal that it must find a satisfactory sanction relevant to the teaching profession. It has been recognised albeit in the context of the legal profession:
“... the loss by striking off or even by suspension for a limited period of the right to earn the livelihood for which the practitioner has trained is a very severe hardship. When it makes such orders the court does so not by way of punishment but in order to protect the public and maintain public confidence in the administration of justice. So far as the criminal law is concerned the respondent has already paid his debt to society by being found guilty of the offences in question ...”[19]
[19] Barristers' Board v Darveniza [2000] QCA 253 at 261 per Thomas JA.
Mr Neilson did declare his criminal history to the QCT, he pleaded guilty and he concurred with the proposed sanction. Importantly there is no question that there are any boundary issues arising from his criminal conduct such that he is a danger to children. There are no risk factors evident throughout Mr Neilson’s criminal history and conduct that would prevent him from working in a child related field.[20]
[20]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 distinguished.
There is however no evidence that Mr Neilson has expressed remorse for his criminal behaviour although there was evidence that he had suffered financially and from the effect of his actions on his family members.[21]
[21]Transcript of proceedings The Queen v Graeme Charles Neilson 16 November 2011 District Court Southport pages 1-3.
The QCT seeks an order for a period of 18 months backdated to 14 June 2012 in which Mr Neilson is prohibited from seeking re-registration as a teacher. The tribunal considers however that such an order does not reflect the gravity of the behaviour for which Mr Neilson has been punished by the courts.
Pursuant to section 161(2)(c), were Mr Neilson still registered as a teacher, the tribunal would have cancelled his registration. Mr Neilson is a former approved teacher and the tribunal prohibits Mr Neilson from reapplying for registration as a teacher for a period of three years from the date of this order.
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