Queensland College of Teachers v Teacher Nqe

[2022] QCAT 250

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher NQE [2022] QCAT 250

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

TEACHER NQE

(respondent)

APPLICATION NO/S:

OCR149-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 July 2022

HEARING DATE:

1 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

1.     The suspension of the registration of Teacher NQE as a teacher is continued.

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 Teacher NQE, or any relevant complainant, student, school or third party, other than to the extent necessary for the Queensland College of Teachers 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 – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration – whether – whether suspension should continue – whether non-publication order should be made

Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 48, s 50, s 53, s 54, s 285, s 285AA, s 285B, s 287, Schedule 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Criminal Code Act 1899 (Qld), s 352(1)(a)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 15

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

R v Kelly [2000] QB 198
Queensland College of Teachers v LDW [2017] QCAT 048
Queensland College of Teachers v PPL [2019] QCAT 278

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

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

1. Teacher NQE has been registered in Queensland as a teacher since 2009.

2. On 15 June 2022, the Queensland College of Teachers (the College) suspended NQE’s registration under s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that they received notification from the Queensland Police Service (‘QPS’) that NQE had been charged with certain sexual offences that are considered to be a ‘serious offence’.[1]

   [1]As defined by Schedule 3 and the Working with Children (Risk Management and Screening) Act 2000 (Qld), s 15.

3. The College has referred the continuation of the suspension to the Tribunal to decide whether to continue the suspension.[2] Section 53(3)(a) of the Act requires the Tribunal to continue the suspension unless satisfied the matter is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.

   [2]See s 53 of the Act.

4. The Act does not define the meaning of an exceptional case. In earlier decisions of this Tribunal, it has been considered that there are generally no rules about what constitutes an exceptional case that involves the exercise of a broad discretion.[3] Whether or not a particular matter constitutes an exceptional case will depend upon the merits of the individual case concerned. Terms such as ‘exceptional case’ must be considered in the context of the relevant Act. Such terms have been described in a particular matter as to ‘form an exception’, outside the regular or ordinary course. In Queensland College of Teachers v PPL[4] the Tribunal said and I agree as follows:

   Terms such as ‘exceptional case’ and ‘exceptional circumstances’ are commonly used in legislative provisions. While terms must be construed in the context of the applicable legislation, as noted in R v Kelly in the context of sentencing legislation: We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[5]

   [3]See Queensland College of Teachers v Teacher S [2013] QCAT 361, [3] and Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

   [4][2019] QCAT 278, [8].

   [5]See R v Kelly [2000] QB 198, 208.

5. NQE has filed submissions in compliance with the Tribunal’s directions.[6]  NQE acknowledges the opportunity to make submissions but declines to do so.

   [6]See s 54(a) of the Act and submissions filed 28 June 2022.

6. The College has filed relevant material in support of the referral and the continuation of the suspension.[7]  The alleged conduct giving rise to the charges, as detailed in the material received from the QPS is set out below as follows:

   3 x Indecent treatment of children under 16 pursuant to section 210(1)(a) of the Queensland Criminal Code.

   Grooming child under 16 years or parent or carer of child under 16 years – facilitate procurement of child to engage in sexual act pursuant to section 218B(2)(a) of the Queensland Criminal Code.

   [7]Application or referral filed on 15 June 2022 and submissions filed on 28 June 2022.

7. I have considered all of the material and submissions filed. I am not satisfied that this is an exceptional case in which the best interests of children would not be harmed if the suspension were ended.

8. The alleged conduct is serious and as detailed in the QPS information, the allegations arise from a complaint at the school where NQE was teaching. It is alleged that since the start of the school year in 2022, NQE has been indecently treating the complainant who was a student of NQE.[8]

   [8]Ibid.

9. In continuing Teacher NQE’s suspension and deciding that this is not an exceptional case for the purposes of s 55(2) of the Act, the Tribunal must give NQE notice of its decision and the reasons for it. NQE may apply within 28 days of the notice of this decision to the Tribunal for review of the decision under s 55(6) of the Act. If NQE elects to do so, further material may be provided to the Tribunal in support of the review of the decision that this is not an exceptional case.

10. I am not satisfied that this is an exceptional case in which the best interests of children would not be harmed if the suspension were ended. The suspension of the registration of Teacher NQE is continued and I order accordingly.

Non-publication order

1. It is necessary to make a non-publication order in this matter under s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) due to the sensitive nature of the charges that involve complaints made by a complainant student against Teacher NQE. Relevantly, 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.

2. It would not be in the public interest for information to be published in this matter that would identify Teacher NQE, any relevant complaintant, student, school or third party, other than to the extent necessary for the College to meet its statutory obligations under sections 285, 285AA, 285B and 287 of the Act. I order accordingly.