RJ v Queensland College of Teachers

[2010] QCAT 153

CITATION: RJ v Queensland College of Teachers [2010] QCAT 153

PARTIES:   RJ

v

Queensland College of Teachers

APPLICATION NUMBER:            OCR011-10  

MATTER TYPE:   Occupational Regulation matters

HEARING DATE:   26 February 2010

HEARD AT:   Brisbane

DECISION OF:   Lisa O’Neill

Ron Joachim

Stuart Macdonald

DELIVERED ON:   26 February 2010

DELIVERED AT:   Brisbane

CATCHWORDS:  suspension disqualifying offence exceptional case

APPEARANCES and REPRESENTATION (if any):

Orders

i.That R J’s teacher registration suspension continue pursuant to s55 (1) of the Education (Queensland College of Teachers) Act 2005 (the Act).

ii.That the matter be listed for review not less than six months from the date of this hearing.

iii.That within 14 days of receiving notice under S80 of the Act of the conclusion of criminal proceedings, the Queensland College of Teachers notify the Principal Registrar of the Queensland Civil and Administrative Tribunal of the outcome of the proceedings.

iv.That unless R J’s teacher registration is cancelled under s56 of the Act, that upon receiving notice under clause (iii) of this order, the Principal Registrar list the matter for a directions hearing.

v.That upon the giving of 7 days written notice, each party have liberty to apply for further directions.

vi.That pursuant to s66(1) (c) the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal prohibits the publication of the teacher’s name and employing school.

Reasons for Decision

Background

1.    R J was a teacher at a Queensland State High School.

2. The Queensland College of Teachers (the College) suspended Mr J’s registration on 12 January 2010 pursuant to s48 of the Education (Queensland College of Teachers) Act 2005 (the Act) because he had been charged with disqualifying offences, namely Indecent Treatment of a Child under 16 years under 12 years pursuant to section 210 (1) (a) and (3) of the Queensland Criminal Code. Notification of this came from the Queensland Police Service (QPS) on 12 January 2010. .

3.   A Suspension Notice was forwarded by registered mail to Mr J on 12 January 2010, by the College.

Legislation

4. Pursuant to s48 of the Act, where an approved teacher is charged with a disqualifying offence, the College must immediately suspend the teacher’s registration.

5.   Schedule 3 of the Act adopts the definition of “disqualifying offence” contained in s120B of the Commission for Children and Child Guardian Act 2000 (CCYPCG Act). The offence of Indecent Treatment of a Child under 16 years under 12 years pursuant to section 210 (1) (a) and (3) of the Queensland Criminal Code is a disqualifying offence for the purposes of the CCYPCG Act.

6.   Section 53 of the Act requires the Queensland Civil and Administrative Tribunal (the Tribunal) to review the continuation of the suspension.

7.   Section 54 of the Act requires that the teacher be given notice inviting him to demonstrate in writing within 28 days why this matter is an exceptional case in which the best interests of children would not be harmed if the suspension of his/her registration was ended.

Summary of Evidence

8.   The Tribunal relied on the following documents provided by the College:

i.Suspension Notice dated 12 January 2010  

ii.Letter from the Queensland Police Service to the College dated 11 January 2010        

iii.An application to the Tribunal from the College dated 13 January 2010 seeking a continuation of the suspension

9.   An invitation was issued to Mr J by the Tribunal to make submissions about why his is an exceptional case in which the best interests of children would not be harmed if the suspension of his registration were ended.

10.  Documents were provided by Mr J in support of his case including a letter making submissions dated 15 February 2010, and 3 references including one from a recent student. 

11.  In summary Mr J said that his case is an exceptional one because:

·He denies that he is guilty of the charges and intends to plead not guilty and return to teaching,

·The alleged victim is not one of his students,

·He teaches young singers and musicians in a specialised programme and it would be very difficult to replace him,

·He has the support of his wife,

·He believes that the justice system is slow and it would be better for him to stay busy,

·He has the support of his colleagues,

Findings of the Tribunal

12.  The Tribunal finds the following on a balance of probabilities having regard to the serious consequences on the respondent teacher, R J of any adverse findings:-

i          R J was registered as a teacher in Queensland.

iiOn 11 January 2010 the QPS notified the Queensland College of Teachers that he had been charged with Indecent Treatment of a Child under 16 years under 12 years pursuant to section 210 (1) (a) and (3) of the Queensland Criminal Code. Charges pursuant to s210 of the Criminal Code are disqualifying offences for the purpose of the Act.

iiiMr J was suspended pursuant to s48 of the Act on 12 January 2010 and a suspension notice was forwarded to him on that date.

ivA Notice was issued by QCAT pursuant to s54 of the Act to Mr J on 27 January 2010.  The notice required him to demonstrate in writing by 2 March 2010 why this matter is an exceptional case in which the best interests of children would not be harmed if the suspension of his registration were ended.

vThe onus is on Mr J to make submissions establishing that his is an exceptional case. 

viThere is no definition of “exceptional case” in the Act.  What constitutes an exceptional case is a question of fact and degree.  In Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 Fullager J. stated:

“Perhaps the best known and most frequently cited judicial statement of the indicia of “exceptional cases” is in the judgement of Luxmoore J. in Re Perry and Brown’s Patents (1930), 48 R.P.C 200, and in view of the arguments before me I draw particular attention to his warning that “it would be most unwise to lay down any general rule with regard to what is an exceptional case…All these matters are matters of discretion.”

viiThis authority was supported by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. While this decision deals with the definition of “exceptional case” in the context of the Commission for Children and Young People and Child Guardian Act 2000, the wording of the relevant section is similar to the wording in section 102 of the Education (Queensland College of Teachers) Act 2005.  It is therefore likely that a Court would adopt that definition for the purpose of this Act.

viiiAn “exceptional case” must be such as to “….take it out of and beyond the ordinary circumstances reasonably expected to occur”: In the Marriage of Sandrk (1991) 104 FLR 394 at 399-400 the Court said it must be “....of the nature of or forming an exception; out of the enduring cause, unusual, special”.[1] 

[1] See also, Schwerin v Equal Opportunity Board [1994] 2 VR 279 at 287-288.

ixThe offence with which Mr J is changed is a disqualifying offence.  It is regarded as serious to the extent that where a teacher is convicted of such an offence that person’s registration is automatically cancelled and there is no appeal or right to reapply for registration.

i.The particulars provided by QPS in relation to the acts of the offence were “that between November 2008 and December 2009 Mr J has allegedly on occasions rubbed the complainant child’s chest under her pyjama top and allegedly placed her hand on his penis over the top of his clothing.  Mr J is the complainant child’s grand-stepfather.”  The child’s age is listed as 6 years.

xSection 48 requires the QCT to suspend a teacher’s registration when that person is charged with a disqualifying offence. There is no requirement that the circumstances of the offence involve a student. Therefore, the fact that the alleged victim was not a student taught by Mr J’s is not exceptional circumstance. The alleged victim is very young and as a relative (a step grandparent) Mr J stands in a position of trust. Therefore the relationship is analogous to that of a teacher/ student relationship.

xiThe tribunal accepts that Mr J has been an effective and caring teacher.  The reference from a former student attests to that fact.  He works in a niche area of music education.  However, no independent evidence was produced to show that he would be difficult to replace or that students would be adversely affected by the need to replace him.

xiiThe fact that Mr J intends to plead not guilty is insufficient to make his case an exceptional one. 

xivMr J produced positive references but it was not clear that the referees were aware of the facts.  For example one referee said “I am not aware naturally of the circumstances that have resulted in R’s suspension”.  Therefore the Tribunal cannot give the same weight to the references that would be given had the referees known the relevant facts and still been prepared to offer positive references.

xvHaving regard to Mr J’s submissions, the Tribunal is not satisfied that this is an exceptional case in which it would not harm the best interests of children for the suspension of his registration to be ended.

xviThe Tribunal is satisfied that the orders sought by the College are appropriate pending the outcome of the charges against him.  In the event that the charges do not result in a conviction Mr J can apply for the suspension to end and the matter will be reconsidered.

xviiThe Tribunal therefore makes the orders sought by the QCT. Section 66(1) (c) of the Queensland Civil and Administrative Tribunal Act 2009 enables the Tribunal to prohibit identifying information in certain circumstances. It states:

Non-publication orders

(1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order--

(a) the contents of a document or other thing produced to the tribunal;

(b) evidence given before the tribunal;

(c) information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.

xviiiThe alleged victim is a child and related to the teacher, the subject of these proceedings.  The Tribunal is concerned that the publication of information concerning the teacher may identify her.  Therefore the Tribunal is satisfied that it is necessary to suppress details that would identify the teacher in order to protect her identity.