Teacher TLN v Queensland College of Teachers - [2023] QCAT 65

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Teacher TLN v Queensland College of Teachers [2023] QCAT 65

PARTIES:

TLN

(applicant)

v

queensland college of teachers

(respondent)

APPLICATION NO/S:

OCR271-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 January 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1. The application to review a decision filed on 14 October 2022 is dismissed.

2. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify TLN, other than to the extent necessary to enable the College to meet its statutory obligations under the Education(Queensland College of Teachers) Act 2005 (Qld), particularly under sections 285, 285AA, 285B and 287.

CATCHWORDS:

EDUCATION – EDUCATORS – REGISTRATION – where teacher voluntarily surrendered their registration after College notified Tribunal of suspension – where Tribunal proceeding did not start in relation to continuation of suspension – whether Tribunal has jurisdiction – whether application to review a decision should be dismissed

Education (Queensland College of Teachers) Act 2005 (Qld), s 50, s 53, Sch 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 36, s 66

Licciardello v McPherson [2012] ACTSC 31

Queensland College of Teachers v MNB [2019] QCAT 225

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This matter raises the question of the Tribunal’s jurisdiction to review a decision of the respondent to suspend the registration of an ‘approved teacher’ where the teacher in question has surrendered his teacher’s registration and the College has advised the Tribunal that as the teacher is now a ‘former approved teacher’ there is no longer any basis for a continuation of the initial suspension decision.
On 13 May 2021, the College suspended the applicant’s registration as an ‘approved teacher’ under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’). By s 49 of the Act, the College may suspend ‘an approved teacher’s registration’ if it reasonably believes the teacher poses an unacceptable risk of harm to children.
The term ‘approved teacher’ is defined in Schedule 3 of the Act to mean a person who:
(a) is a registered teacher; or
(b) holds a permission to teach.
On the other hand, a ‘former approved teacher’ means:
(a) a former registered teacher; or
(b) a former holder of a permission to teach.
By s 50(1) and (4)(b) of the Act, the College must immediately give notice of the suspension to the teacher and, by s 50(2)(c), the notice must state that QCAT will review the continuation of the suspension. By s 50(5) of the Act, the College must then refer the continuation of the suspension of the teacher to QCAT for review under s 53 of the Act.[1] By s 53(3) of the Act, the Tribunal must decide to continue the suspension unless satisfied the teacher does not pose an unacceptable risk of harm to children.
[1]The matter is decided in the Tribunal’s original jurisdiction: the Act s 53(2). As to referrals, see also QCAT Act s 34.
The notice of suspension was sent by email to both the applicant and the Tribunal on 13 May 2021. On the same day, in accordance with s 50(5) of the Act, the ‘application or referral – disciplinary matter’ and supporting material was posted to the Tribunal. In the submissions of the College it is stated that the Tribunal advised the College on 17 May 2021 that it had received the suspension notice, but had not at that time received the form 22 referral.
On 15 May 2021 the applicant gave notice of the surrender of his teacher registration pursuant to s 59 of the Act and by email advised that he did not intend to return to teaching and that there ‘is no reason that this matter progress to QCAT’.
On 17 May 2021, the College advised the Tribunal that the applicant was no longer a registered teacher and that as he was now a ‘former approved teacher’ there was no basis for any review of the suspension and that ‘the commencement of the proceedings is not required’. It invited the Tribunal to destroy the referral and material provided pursuant to s 50(5) of the Act.
There is no record of any file in relation to this matter being opened by the Tribunal. The College submits that on 20 May 2021, the Tribunal advised the College that the relevant documents had been destroyed. It is noted that by s 36 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), a ‘proceeding starts when the principal registrar accepts an application or referral’. Accordingly, it is evident that a proceeding in this matter never commenced.
Some 17 months later, on 14 October 2022, the applicant filed an application to review the decision of the respondent to suspend his registration under s 49 of the Act, presumably in an endeavour to invoke the powers of the Tribunal outlined above. On 24 October 2022, directions were issued requiring the applicant and respondent to file written submissions addressing the question of the Tribunal’s jurisdiction. Submissions were duly filed by both parties.
The submissions of the applicant, which include many attachments, do not directly address the question of jurisdiction. Rather, the submissions address personal issues and allege, among other things, political motivation, discrimination and threats made against the applicant. It is noted that the original s 49 notice of suspension referred to numerous social media posts said to have been made by the applicant, which made similar allegations of persons or entities plotting against him or conspiring to cause him harm. The notice expressed concern as to the applicant’s state of mind and his ability to deal with the classroom environment and discharge his duty of care to students.
The difficulty for the applicant is that the Tribunal’s jurisdiction arises only where, pursuant to s 50(5) of the Act, the College refers ‘the continuation of the suspension of an approved teacher to QCAT for review under section 53’. Under s 53, the Tribunal must decide whether to continue the suspension.
As is noted above, the proceeding did not start and no directions were issued by the Tribunal. The jurisdiction of the Tribunal was not invoked. In any event, even if proceedings had commenced, there would have been a jurisdictional issue in that, because of the surrender of his registration, the applicant was no longer an ‘approved teacher’, but rather a ‘former approved teacher’.[2] By s 53(1) of the Act, the jurisdiction of the Tribunal is to decide whether to continue the suspension of an ‘approved teacher’.
[2]See, for example, Queensland College of Teachers v MNB [2019] QCAT 225, where the teacher surrendered his registration after the College had referred the continuation of the suspension to the Tribunal. In that case, the proceedings in the Tribunal had commenced. Consistent with the submissions of the College, the referral was dismissed pursuant to s 47(1)(b) of the QCAT Act.
While practice and conduct proceedings under the Act may be commenced where it is reasonably believed that there are grounds for disciplinary action against a ‘relevant teacher’, which is defined in Schedule 3 of the Act to include an ‘approved teacher’ and a ‘former approved teacher’, suspension would generally be understood to apply to a registered teacher; that is, an ‘approved teacher’. In relation to a ‘former approved teacher’ there is no registration to suspend.[3]
[3]See, for example, Licciardello v McPherson [2012] ACTSC 31, where a driver licence had been suspended in 1990. It was held that following expiration of the licence in 1994 it could not be said that the licence was still suspended. Accordingly a conviction of driving in 2006 while the licence was suspended was set aside.
The Tribunal does not have jurisdiction to review a s 49 notice independently of the provisions of the Act noted above. By s 209 of the Act, a person who is given or is entitled to be given an information notice for a decision may apply for review of that decision. The relevant decisions are identified in Schedule 1 of the Act. A decision under s 49 of the Act is not one of the listed decisions.
Accordingly, the application to review a decision filed on 14 October 2022 is dismissed pursuant to s 47(1)(b) of the QCAT Act.

Non-publication order

Pursuant to s 66(1)(c) of the QCAT Act, the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may do so on the application of a party or on its own initiative.[4]
[4]Section 66(3) of the QCAT Act.
There is some evidence of health issues which might be impacted if the name of the applicant is made public. I am satisfied that it would be contrary to the public interest for information to be published that would identify TLN, other than to the extent necessary for the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Act.
I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.