Queensland College of Teachers v Teacher S

[2013] QCAT 361

CITATION: Queensland College of Teachers v Teacher S [2013] QCAT 361

PARTIES:	Queensland College of Teachers (Applicant)
v
Teacher S (Respondent)

APPLICATION NUMBER: OCR131-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Michelle Howard, Member

DELIVERED ON: 10 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The suspension of the teacher registration of Teacher S is ended; Until further order, publication is prohibited of any identifying information about the teacher the subject of this application.

CATCHWORDS:

OCCUPATIONAL REGULATION- SUSPENSION OF TEACHER- whether exceptional case- whether suspension should continue

Education (Queensland College of Teachers) Act 2005 ss 48,53,54,55
Queensland Civil and Administrative Tribunal Act 2009 s66

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 (QCAT Act).

REASONS FOR DECISION

1. Teacher S’ registration was suspended by the Queensland College of Teachers on 20 May 2013 pursuant to section 48 of the Education (Queensland College of Teachers) Act 2005 (the Act) on the basis that he had been charged with a serious offence. The charge is sexual assault. The allegation is that Teacher S patted the complainant employee (aged 33) on his penis on the outside of his clothing, three times.

2. As required by section 50(5) of the Act, the College 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 would not be harmed if the suspension were ended.[1] Directions were made by QCAT inviting submissions from Teacher S as to why this is an exceptional case for ending the suspension of his teacher registration.

   [1]        Education (Queensland College of Teachers) Act 2005 s 53(1) and (3).

3. The term, ‘exceptional case’ is not defined in the Act. There are no generally applicable rules about what constitutes an exceptional case.[2] An exceptional case has been variously described as one that is not ‘regularly, or routinely, or normally encountered’[3] or ‘unusual, an unusual instance or extraordinary’.[4] Determining whether there is an exceptional case is an exercise of discretion, having regard to the merits of the individual case concerned.[5]

   [2]        Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1, adopting the warning of Luxmore J in Perry and Brown Patents (1930) 48 RPC 200.

   [3]        R v Kelly (2000) QB 198.

   [4]        Kent v Wilson [2000] VSC 98.

   [5]        CCYPCG v Maher [2004] QCA 492 adopting the approach in Perry and Browns    Patents (1930) 48 RPC 200; CCYPCG v FCG [2011] QCATA 291; CCYPCG v Lister    (No 2) [2011] QCATA 87.

4. Teacher S has provided a brief submission accompanied by a large volume of references, some 42 in all, from persons attesting to his good character, integrity and professionalism as an educator.  While acknowledging the serious nature of the accusations, he asserts that the accusation leading to the criminal charges is untrue and was made more than 16 months after the event was alleged to have occurred by a disgruntled ex-employee who initially took action against the school. He submits essentially that allegations are made vexatiously by the ex-employee who is motivated by revenge. He has found these events the most challenging and distressing of his career, and believes he has been undermined unfairly by the person who made the allegations.

5. He also submits that the welfare and safety of students and staff is his absolute priority. He asserts he has had an excellent teaching career spanning over 30 years (of which at least more than the last 15 years have been spent as a school leader), which demonstrates his child welfare focus and the high level contribution he has made to children.  Further, he argues that his professional reputation and contribution to teaching is supported by the references provided. These are from the executive of the P & F Association on behalf of the school community, professional colleagues, parents and former students. The references are impressive and many include sophisticated analysis of Teacher S contribution as an educator. Although only 5 of them explicitly indicate knowledge of the sexual assault charge or the purpose of the reference, Teacher S has advised the Tribunal that all referees have had the matter explained to them and written their reference based on this knowledge.

6. There are references from persons (colleagues, former students and parents of former students) who have known him for many years and from others who have known him only in his more recent roles. The referees speak repeatedly of Teacher S’ inspirational devotion and indomitable energy to his vocation as an educator and leader in the school communities he has worked in, his high standards, and an outstanding ability to relate to students and bring out the best in each of them and others. He is described by some as visionary, and by many as a person of the highest integrity, character and sincerity.  The schools he has led are reportedly high performing. He has been mentioned in wedding speeches of former students by their parents who credit him with a significant contribution to the persons they have become.  The text of the reference from the P & F Association at his most recent school is set out below:

   ………………………….,

   We the present executive of the school P & F Association, on behalf of the whole school community, fully support Teacher S to continue in his present role as………..

   The P & F Association have built a strong, long term, ongoing relationship with Teacher S with the best interests of all students in mind at all times.  He has been an exemplary ….. and an inspirational leader in the school with his dealings with students, staff, parents and the wider community in which the school operates.  At all times Teacher S has maintained a high level of professionalism, openness and positive communication while at the same time being fair and equitable with all dealings with the P & F.  His relationship with the entire school community and commitment to high standards at ……..has at all times shown a devotion ……and it is our desire that he remain as ……for as long as ………deem fit.

   We, the executive, see no possible reason that Teacher S would pose a threat to any students and fully endorse Teacher S’ registration of the Queensland College of Teachers be continued in order for him to remain the……….

   Yours sincerely,

   President
   Vice President
   Secretary
   Treasurer

7. Teacher S submits that this is an exceptional case and asks that the suspension be ended.

8. Although acknowledging that the references are impressive and that the charges do not relate to allegations concerning children, QCT submits that an exceptional case has not been established. It submits that there is no evidence which would entitle the tribunal to find that the circumstances of the charge are unusual or exceptional or that it was vexatiously made.

9. Further, it argues that recent amendments to the Act, (enacted in the  Education and Training Legislation Amendment Act 2011), specifically altered the trigger for suspension from ‘disqualifying offences’ to ‘serious offences’ which had the effect of removing the requirement for the offence to be child-related in order to trigger suspension. It submits that ultimately, the available evidence does not displace the presumed risk of harm which is raised by the sexual assault charge.

Is this an exceptional case?

1. The charge does not relate to allegations concerning a student or former student of the teacher. Also, the allegations do not relate to an offence against a child. However, given the amendments to the Act altering the trigger for suspension to serious offences this could not be considered unusual or extraordinary.

2. Teacher S has had a lengthy, and according to all of his referees, distinguished career in education, and he has in this process generated very significant loyalty, trust, respect and long-term friendships across numerous school communities. The references provided do him great credit both personally and professionally as they are provided by the diverse persons concerned with knowledge of the charges against him.

3. The QCT suggests that there is no evidence which would allow me to be satisfied that the circumstances of the charge are unusual or exceptional or vexatiously made. However, this misunderstands my task in determining whether there is an exceptional case. I am entitled to consider the circumstances of the case more broadly than merely those surrounding the charges being laid (although, of course, those circumstances must be part of the consideration), in determining whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.

4. I have no evidence before me, other than the say-so of Teacher S that the charges are made by a person motivated by revenge. However, support for this submission may be reasonably inferred from the delay in making the complaint by a disgruntled former employee. Whereas a delay in reporting might be more likely to occur if a child was the victim of the alleged activity, this seems inherently less likely given the nature of the alleged offence when made by a person in their 30s. More significantly, in my view, considerable support for the proposition may be inferred from the reference from the P & F executive. It is expressed as made on behalf of the whole school community. This community has the opportunity to know the details of the actions of the ex-employee who now makes the allegations.  With this knowledge, the P & F considers him exemplary, does not consider he is a threat to students and endorses the reinstatement of his registration.  I consider this is extraordinary.

5. Also, and I consider rather unusually, I have many, extensive outstanding references before me from persons, some of whom were taught many years ago by Teacher S or who have taught with him over the years, with knowledge of the allegations fully support him continuing with his teaching career, without reservation. The referees speak with such high regard of the outstanding commitment and contribution made that it is reasonable to infer from the references that there has not been at any time any hint of impropriety concerning Teacher S before these recent allegations at schools at which he has taught.

6. Also, although of itself it would not be enough to make the case exceptional, in the overall context, I consider that it is significant that the alleged offence does not concern a child.

7. Having regard to these factors, I am satisfied that this is an exceptional case in which the best interests of children would not be harmed if the suspension were ended. I make orders ending it.

8. Accordingly, I order that the suspension be ended.

9. Under section 66 of the QCAT Act, the Tribunal may make an order prohibiting publication of information enabling a person appearing before the Tribunal or affected by a proceeding to be identified. Under s 66(2), an order prohibiting publication may be made if the Tribunal considers it is in the interests of justice.

10. The Criminal Law (Sexual Offences) Act 1978 provides for limitations on the publication of information about persons charged with sexual offences. While publication of these reasons may not be directly prohibited by that Act, publication at this stage would tend to be inconsistent in my view, with the protections afforded by that Act. Therefore, I have initiated a non-publication order under section 66 of the QCAT Act as I am satisfied that it is in the interests of justice to prohibit publication of any information identifying Teacher S until further order.