Queensland College of Teachers v Osborne
[2013] QCAT 471
•3 September 2013
| CITATION: | Queensland College of Teachers v Osborne [2013] QCAT 471 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| V | |
| Kim Osborne (Respondent) |
| APPLICATION NUMBER: | OCR032-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 24 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Clare Endicott, Senior Member Robyn Oliver, Member Paul Kanowski, Member |
| DELIVERED ON: | 3 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Kim Osborne’s registration is suspended for six months from the date of these orders. That sanction is suspended immediately, provided that Kim Osborne complies with the conditions in Order 2 and provided that she is not subject to any disciplinary proceedings under the Education (Queensland College of Teachers) Act 2005, for the period of 18 months from the date of these orders. 2. Kim Osborne’s registration is subject to the following conditions for 18 months from the date of these orders: a. within 18 months from the date of these orders, Kim Osborne must complete a course of education, nominated by her and approved by the Queensland College of Teachers, in the area of professional ethics; b. Kim Osborne must provide the Queensland College of Teachers with written evidence to its reasonable satisfaction that she has completed the approved course; and c. all costs and expenses in relation to completion of the course are to be paid by Kim Osborne. |
| CATCHWORDS: | OCCUPATIONAL REGULATION - Not suitable to teach – where offences of dishonesty outside the teaching role Education (Queensland College of Teachers) Act 2005 (Qld) ss 3, 11, 12, 92, 160 Pharmacy Board of Australia v Thomas [2011] QCAT 637 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Ms Osborne has worked as a casual relief teacher since becoming registered as a teacher in 1995. This disciplinary proceeding arises because in August 2012 Ms Osborne pleaded guilty in the Magistrates Court to offences of dishonesty. The offences were committed between September 2003 and August 2010. They involved obtaining $29,423 worth of Centrelink benefits to which she was not entitled, by not advising Centrelink of her earnings.
The magistrate imposed a term of imprisonment of 12 months but with immediate release under a recognizance to be of good behaviour for three years. Before being sentenced, Ms Osborne had repaid $5,250 to Centrelink. The magistrate ordered Ms Osborne to repay the balance, $24,173, under a reparation order.
Had the offences been indictable offences, the convictions would have constituted a ground for disciplinary action under section 92(1)(b) of the Education (Queensland College of Teachers) Act 2005 (Qld). However, the offences were summary offences, so a ground for disciplinary action will be established only if the offending and any other relevant factors make Ms Osborne ‘not suitable to teach’ under section 92(1)(h).
The issues we must consider are whether Ms Osborne is not suitable to teach, and if so, what disciplinary action should be taken.
IS MS OSBORNE NOT SUITABLE TO TEACH?
The Act requires consideration of a number of matters in connection with a teacher’s criminal history: when the offence was committed, the nature of the offence and its relevance to the duties of a teacher, and any other matter relevant to deciding whether the teacher is suitable to teach.[1]
[1] Education (Queensland College of Teachers) Act 2005 (Qld) s 11(3).
The objects of the Act include upholding the standards of, and maintaining public confidence in, the teaching profession.[2] Unsuitability to teach can take a number of forms. One is when a teacher behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher.[3] QCAT has observed that honesty, integrity and respect for the law are fundamental standards which are necessary for the maintenance of public confidence in the teaching profession.[4] In a case involving another profession, pharmacy, QCAT commented that honesty is a ‘fundamental aspect of professionalism’, and that stealing by a pharmacist, ‘whether in his capacity as a pharmacist or otherwise, is discreditable to his profession’.[5] The same can be said of the teaching profession, and the discredit brought to it by a dishonest teacher.
[2] Ibid s 3(1).
[3] Ibid s 12(3)(a).
[4] Queensland College of Teachers v Neilson [2012] QCAT 693 at [39].
[5] Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [16].
The Queensland College of Teachers submits that Ms Osborne is not suitable to teach. Ms Osborne’s lawyer, Mr Knott, submits that she is. Mr Knott cites case authority to the effect that, while personal misconduct may show unfitness to practise a profession, professional misconduct has a much more direct bearing on fitness to practise. We accept this. Mr Knott acknowledges that honesty is a fundamental aspect of professionalism, but submits that Ms Osborne’s ‘misconduct was personal and did not impact on her professional conduct’.
Mr Knott correctly observes that the role of a disciplinary body such as QCAT is not punishment of the practitioner, but protection of the community, and that suitability to teach must be assessed at the date of QCAT’s hearing. Relying on a passage in Queensland College of Teachers v GHI that there must be ‘some continuing factual element in order for a person to be found to be unsuitable to teach …’,[6] Mr Knott submits that there must be a continuing element of ‘bad conduct’ before unsuitability at the date of hearing is established. Mr Knott notes that a failure to disclose a conviction can constitute ongoing bad conduct, but there is no suggestion of such a failure by Ms Osborne. Rather, he submits, Ms Osborne’s behaviour since the offending has been exemplary. She has kept the College informed about the criminal proceeding. The College, Mr Knott points out, has acknowledged that Ms Osborne has cooperated fully in both the criminal and disciplinary proceedings; that she has demonstrated remorse and insight into the significance of her conduct in the context of teaching; and she has started to pay restitution. Mr Knott notes that Ms Osborne remains on a Centrelink benefit. Since being made aware of the criminal proceeding, she has reported her circumstances to Centrelink every two weeks ‘to ensure her dishonesty by omission does not occur again’.
[6] Queensland College of Teachers v GHI [2012] QCAT 182 at [9].
In GHI, the tribunal was dealing with a single short episode of improper professional behaviour by a teacher which had occurred more than six years earlier. In Ms Osborne’s case, we are dealing with a course of dishonesty spanning seven years, ending less than three years ago. Nonetheless, the observation made in GHI holds true: there must be a continuing element, relevant to the teacher’s suitability to teach, as at the date of hearing.[7] But the continuing element need not be bad conduct. The tribunal in GHI commented that in many cases the continuing element will be that the person is not of good or trustworthy character.[8]
[7] Ibid at [9] and [10].
[8] Ibid at [11].
Ms Osborne pleaded guilty to 11 charges, each relating to a different period. The sentencing magistrate described Ms Osborne’s offending as significant fraud, but decided that a non-custodial sentence was warranted after taking into account mitigating factors. These included Ms Osborne’s cooperation with the prosecution; that by the time of sentencing she was 54 years of age and without previous convictions; that the dishonesty consisted of failures to advise of income rather than positive misstatements of her circumstances; that Ms Osborne was on a disability support pension; and that she was solely responsible for her teenage child.
It is clear that the offences committed by Ms Osborne were serious offences of dishonesty. She failed to inform Centrelink of earnings which over the years totalled $88,642. This enabled her to receive more than $29,000 worth of benefits to which she was not entitled. This conduct reflects very poorly on Ms Osborne’s character. The question that necessarily arises is whether Ms Osborne has since reformed her character.
There is no suggestion that Ms Osborne has engaged in any bad conduct since August 2010. We accept that she has cooperated with the authorities, that she is repaying the money she wrongly received, and that she now regularly reports her circumstances to Centrelink. But these steps alone do not show genuine remorse or reformation of character. They may be motivated merely by a desire to minimise punishment and disciplinary consequences.
The College says in its submissions that Ms Osborne has demonstrated remorse and insight, but we do not think that can be said without significant qualification. There are some indications of remorse, but in a statement attached to a statutory declaration in November 2012, Ms Osborne minimises her wrongdoing. She says that she told Centrelink on numerous occasions about her work. The closest Ms Osborne comes to admitting fault is an admission that ‘there were times when I forgot to declare my work due to having severe migraines’. She indicates that she pleaded guilty only because she saw no other viable option.
Ms Osborne’s guilt has been established through the criminal process. It is not open to us to deal with her on the basis that she is innocent.
In the statement Ms Osborne says that the overpayment averages out to about $2,400 per year. This grossly understates the true size of the overpayment: $2,400 per year amounts to $16,800 over seven years, but the actual overpayment exceeded $29,000. Ms Osborne says she had been informed by Centrelink that she could earn $3,500 per year without affecting her benefits. That could conceivably account for $24,500 of undeclared income over seven years but it does not explain a failure to declare income in excess of $88,000. The statement overall displays a lack of insight and remorse.
Ms Osborne attached references from a school principal and two people with positions in business. The referees speak highly of Ms Osborne’s work and character, but the references are of little value for present purposes since their writers do not know about Ms Osborne’s offences. Similarly, we attach little weight to the reference from a friend, Mr Dowell, even though he says he knows about the ‘judicial proceeding’. He goes on to say, quite mistakenly, that the ‘matter was dismissed’. It is not evident that Mr Dowell has any appreciation of the gravity of Ms Osborne’s conduct or that it was criminal in nature.
We are not satisfied that Ms Osborne has yet reformed her character. A person who has committed serious offences of dishonesty over a long period, ending fairly recently, and who substantially lacks insight and remorse, is not a suitable role model for students. Even though the dishonesty was not in the course of Ms Osborne’s duties as a teacher, the offending coupled with the lack of remorse and insight breach the standards of the teaching profession and dent public confidence. We find that Ms Osborne is not suitable to teach.
WHAT DISCIPLINARY ACTION SHOULD BE TAKEN?
The options are set out in section 160 of the Act. The College proposes a period of suspension for six months, but with the suspension itself suspended for 18 months provided that Ms Osborne complies with two conditions and provided that she is not subject to any disciplinary proceedings during that time. The first condition is that she provides her employer with a copy of QCAT’s orders, and that she authorises the employer to report to the College any concern about her trustworthiness and to respond to any requests for information by the College. The second condition is that she completes a course in professional ethics at her own expense, and proves to the College that she has completed the course.
A suspended suspension would mean that Ms Osborne could continue to teach, and the six month period of suspension of her registration would be operative only if she faced further disciplinary proceedings or breached the conditions within the 18 month period. The College submits that such a sanction would serve as a more effective deterrent than a mere suspension.
Ms Osborne’s lawyer, Mr Knott, agrees that the proposed sanction is appropriate if we find that a ground exists for disciplinary action.
Subject to one point, we agree that the proposed sanction is fitting. Despite finding that Ms Osborne is not suitable to teach, we consider that she can properly be allowed to continue teaching with the safeguards of a disciplinary sanction in place. Ms Osborne has many positive attributes as a teacher, as the referees and a 2007 teaching assessment report attest. It is desirable that she earns a living for the sake of her family and so that she can make restitution. The risk of her reoffending appears to be very low. We are confident that she would not intentionally promote dishonesty amongst her students, and it is unlikely that her students would know of her offences. There is reason to expect that with mature reflection, and study in the area of professional ethics, Ms Osborne can become a good role model for students.
We do not think it necessary or desirable to include the condition that Ms Osborne provide the employer with the QCAT decision and authorise the employer to communicate with the College. If Ms Osborne is required under statute or other legal obligation to disclose her offences and/or the disciplinary outcome to an employer, then it is not necessary for us to make an order for disclosure. If she is not under that legal obligation, then such an order might well make it nearly impossible for Ms Osborne to obtain or keep a job. The potential detriment of such an order to Ms Osborne outweighs the potential benefit to the community, in our view, when Ms Osborne does not pose an unacceptable risk of dishonesty within the workplace.
CONCLUSION
Being satisfied that a ground for disciplinary action is established, and the proposed sanction is appropriate subject to the modification discussed above, we make the orders proposed by the College subject to that modification.
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