Disciplinary Matters for Queensland Teachers

Teachers who are subject to investigations by the QCT should urgently seek legal advice from civil ligitation lawyers experienced in this area of law so that appropriate steps can be taken to protect their registration throughout the course of the investigation.

Potts Lawyers is experienced at assisting teachers in Queensland with a wide variety of disciplinary matters and have assisted teachers in avoiding serious findings and sanctions which could lead to onerous conditions on their registration or even completely prevent them from teaching.

Disciplinary Matters for Queensland Teachers

Teachers in Queensland are mainly regulated by the Education (Queensland College of Teachers) Act 2005 (Qld) (“the Act”).  The Queensland College of Teachers (“QCT”) is established under the Act as the agency responsible for the regulation of the teaching profession in Queensland.

Teachers in Queensland can be investigated and disciplined for conduct in the course of their employment and conduct in their private capacity, which can result in conditions being placed on their registration, or even the suspension or cancellation of their teacher’s registration.

First Stages of an Investigation & the Importance of Obtaining Legal Advice Early

Teachers usually first become aware of an investigation against them in one of two ways:

• Upon receiving a letter from the Department of Education notifying them of their suspension; or
• upon receiving a Section 98 “Notice of Investigation” pursuant to s 98 of the Act.

It is important that teachers seek legal advice immediately upon receiving any of the notices set out above.  Having a meeting with an experienced disciplinary lawyer early is very important since notices to produce certain information, documents, or electronic records/devices can then occur quickly.

Failing to comply with those notices without a lawful excuse can result in penalties and further disciplinary action.  By engaging expert lawyers early, those lawyers can then quickly assist teachers in responding to those notices in a timely manner to avoid penalties or further disciplinary action.

Notice of Investigation (Section 98)

If a Notice of Investigation is received, that notice will usually set out:

• The teacher’s information;
• Grounds for forming the basis of the investigation (in other words, the allegations being investigated);
• An opportunity to make oral or written submissions; and
• A notification that the investigative report will then be provided to the QCT (if there is no grounds for disciplinary action) or alternatively if there is a potential ground, then to the Professional Capacity and Teacher Conduct Committee (“the Committee”).

Notice of Requirement (Section 181)

A teacher is required to do certain things during an investigation unless they have a reasonable excuse.

An example of this is a “Notice of Requirement” made under section 181 of the Act.  A Notice of Requirement has two forms:

• A “Notice of Requirement for Information” pursuant to section 181(a) of the Act; or
• A “Notice of Requirement For Your Attendance” or to “Ask Questions” pursuant to section 181(b) of the Act.

These notices are often received at the same time as, or soon after a Notice of Investigation (Section 98).

It is extremely important that teachers obtain legal advice before responding to these notices.  In our experience, as little as 48 hours is sometimes provided to the Teacher to comply with those notices.

It is also very important that Teachers obtain legal advice on whether they have a “reasonable excuse” to not comply with the Notice.  This should only be done with the assistance of lawyers.

A teacher who fails to comply with the notice without a reasonable excuse can be found to be guilty of an offence.  Similarly, a person can be found to be guilty of an offence if they say anything or give any documents to an investigator which they know is false or misleading.  Failing to comply with the notice can also be considered a ground for disciplinary action pursuant to the Act.

Teachers receiving these notices should call Potts Lawyers and immediately notify the lawyer that they have received a Notice of Requirement pursuant to Section 181 of the Act so that action can be taken to comply with the notice or provide a reasonable excuse as a matter of urgency.

Providing Written Submissions to Investigators

It is always preferable to provide written submission to investigators with the assistance of lawyers, rather than oral submissions.

This is because it is difficult to predict what questions will be asked during an oral interview, and since teachers may not be adept at being interrogated.

By electing to provide written submissions with the assistance of lawyers, teachers can ensure that the relevant information is put forward in detailed submissions which clearly, relevantly and accurately responds to the allegations in an effective manner.

For more information on responding to “show cause” type letters generally, we recommend that readers read our article dedicated to show cause letters by clicking on this link.

It is also important to have lawyers assist in responding to questions by QCT investigators since teachers may be stressed and too attached to provide clear and concise responses which effectively respond to the allegations in a way which minimises the risk of disciplinary action being taken.

Lawyers are experienced at drafting submissions which set out the relevant facts and circumstances, whether a teacher is innocent of the conduct, or whether admissions are being made with reference to several mitigating circumstances which may minimise the risk of serious disciplinary action being taken.

Regardless, early cooperation is an important consideration that the Committee should take into account when deciding whether disciplinary action is appropriate in the circumstances.  However, it is extremely important to carefully consider what is being admitted, and the appropriate wording should be used to ensure that mitigating circumstances are clearly set out.  Therefore, even where teachers are cooperating with investigators and providing admissions to the allegations, this should generally only be done with the assistance of lawyers.

Notice of Intention to Conduct Practice and Conduct Proceedings

If a disciplinary finding is made during the investigative stage, a teacher will usually receive a further notice from the Professional Capacity and Teacher Conduct Committee (“the Committee”).

The Committee will usually write to the teacher with a “Notice of Intention to Conduct Practice and Conduct Proceedings” pursuant to section 118 of the Act.

That notice will usually set out the grounds for which the Committee believes disciplinary action is warranted.

Grounds for taking disciplinary action against a teacher includes circumstances where a teacher:

• has been convicted of an indictable offence that is not a serious offence
• is incompetent to teach and is dismissed or resigns from employment as a teacher for competency reasons
• has had their registration cancelled or suspended in another state
• has had their employment terminated due to incompetence or not being suitable to be employed as a teacher, in a state that does not register teachers
• did not possess or no longer possesses the qualifications and experience used to obtain registration or permission to teach
• behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the behaviour generally expected of a teacher
• fails to comply with a lawful demand made under the Education (Queensland College of Teachers) Act 2005 (the Act) by the QCT, an investigator or a practice and conduct body
• has contravened an order made under the Act by the QCT or a practice and conduct body
• has contravened a practice and conduct agreement.

The full wording of grounds for disciplinary action can be found at Section 92 of the Act.

The notice will afford the teacher an opportunity to elect for a hearing or to provide written submissions in response to the allegations.

If a teacher fails to elect for an oral hearing or fails to make written submissions by the time specified in that notice, the Committee will make a decision based on the information currently available and without the teacher’s opportunity to explain.

This is not recommended at all for teachers who are desirous of protecting their registration.

Written Submissions to the Committee

For submissions to be successful at minimising the risk of serious disciplinary action being taken, or the matter being referred to the Queensland Administrative and Civil Tribunal (QCAT), they should, a include if relevant:

• the teacher’s explanation of their conduct (but should not provide excuses);
• submissions on any insight, remorse, and/or a reflection of the conduct’s effect on the profession of teachers;
• detailed submissions on whether the teacher has insight into whether the conduct will or will not affect their duties as a teacher;
• a detailed summary of the teacher’s education, teaching experience, and any other employment history which goes to mitigation;
• a summary of the teacher’s professional achievements;
• professional or personal referees who are familiar with the conduct being alleged; and
• any other information that may be relevant to the specific facts and circumstances of the matter.

Whilst there is no strict formula for what those submission should include, it is highly recommended that teachers seek legal assistance from a lawyer experienced in QCT matters for preparing those submissions since each case is unique and a lawyer can assist the teacher in preparing submissions which are tailored to their specific circumstances and which emphasise the appropriate points to put forward.

Why Drafting your own submissions is not recommended

Some teachers may choose to draft their own submissions with a view to limiting their legal costs. This is not recommended and caution should be exercised before deciding to prepare submissions without the assistance of a legal professional.

In our experience, teachers who make their own submissions increase the risk of having a finding made against them which could have been avoided.  This means that their plan to save on legal costs often backfires, since additional legal work is then required to make submissions to the Committee with a view to obtaining a less serious penalty.

For example, a teacher may admit to a certain act or general conduct which they did not know was contrary to the professional standards of teachers.   Similarly, a teacher may make submissions which they think are explanatory in nature, but which come across as excuses.  This may lead the Committee to concluding that the teacher has little to no insight or remorse for their conduct and could result in a more serious penalty.

Teachers who are not familiar with the relevant legal principles or standards of conduct should never attempt to prepare their own submissions without first consulting a lawyer.  Lawyers are trained to analyse the evidence, take the teacher’s instructions, and provide the strongest submissions possible to ameliorate their legal position.

Can I use a lawyer provided by my Union?

Yes. Teachers have the advantage of being eligible for legal assistance from a lawyer appointed by their union.

Based on the feedback we have received from clients, the workload of union lawyers or representatives can sometimes mean that the service standards provided can be limited.

If teachers are unable to afford to engage a private lawyer, a union appointed lawyer or representative is essential and is preferable to preparing submissions without assistance.

The advantages of engaging a private lawyer

Teachers in Queensland who understand the serious impact that these matters may have on their professional careers and who want a more comprehensive level of service, might prefer to engage private lawyers.

This may increase a person’s chances of succeeding if those lawyers are able to:

• Allocate more time to their matter to formulate a strategy;
• Take more time to guide the teacher through each step;
• Answer any questions the teacher may have in a timely manner;
• Adopt a more ‘hands on’ approach with preparing submissions;
• Make exhaustive enquiries with the teacher to ensure all aspects of the matter are covered;
• Spend time contacting the teacher’s referees (with their permission) to improve reference letters (where possible); and
• Strategically drafting submission which are tailored to that Teacher’s unique circumstances and which are carefully prepared with the evidence, legislation, and mitigating circumstances in mind, to maximise the prospects of avoiding more serious disciplinary action.

When a teacher’s career and livelihood is at risk, it is worth considering enlisting the services of a lawyer that you do not have full confidence in and can devote the time required to undertake these tasks.

What Disciplinary Action can be Taken?

After the Committee receives the Teacher’s submissions, if the Committee reasonably believes that a ground for disciplinary action exists, it may:

1. Take no further action;
2. Refer the matter to the Queensland Civil and Administrative Tribunal (QCAT) if more serious disciplinary action is thought to be required (including cancellation or suspension of registration);
3. Issue a warning or reprimand;
4. Impose conditions;
5. Make an order that a particular notation or endorsement be entered in the register of teachers; or
6. Accept an undertaking by the teacher (the terms of which would have to be satisfactory to the Committee).

Teachers who take early action can increase the chances of avoiding or receiving lower level disciplinary action.  Similarly, they may also succeed in avoiding QCAT proceedings which can be more legal costs in the matter.

QCAT Proceedings

In some instances, where the grounds for disciplinary action involve very serious allegations, it is not always possible to avoid QCAT proceedings.

The Queensland Civil and Administrative Tribunal (QCAT) is an independent, accessible tribunal that efficiently resolves disputes on a range of matters.   QCAT has the power to make decisions under its enabling legislation and under other legislation for different professions as part of its general powers to hear occupational matters.

If the complaint is of a serious nature, QCAT conducts disciplinary proceedings against teachers following a referral of a disciplinary matter by the QCT or the Committee

At the conclusion of a hearing, QCAT has the power to cancel or suspend a teacher’s registration.  QCAT also has wider powers which enable it to make additional orders, including but not limited to:

• take no further action against the teacher
• end the teacher’s suspension
• issue a warning or reprimand to the teacher
• impose, amend or remove conditions on the teacher’s registration or permission to teach
• suspend the teacher’s registration or permission to teach for a stated period of time
• require that a particular notation or endorsement about the teacher be entered in the register
• require the teacher to pay a fine to the college
• require the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to any expenses incurred by the college in investigating the matter or incurred in the proceedings
• make another order that the tribunal considers appropriate
• accept an undertaking from the teacher.

Teachers should engage lawyers to assist in any QCAT proceedings, especially where the matter concerns a point of fact which is contested or if it involves a complex matter of law.

Potts Lawyers has lawyers who are experienced in a wide range of administrative law matters and have assisted lawyers with a wide range of QCAT matters, leading to successful outcomes even where the alleged or admitted conduct is very serious.

QCAT’s Review Jurisdiction

QCAT also has the ability to review decisions made by the QCT or Committee in relation to relating to registration, permission to teach, disciplinary action or the preservice teacher education program made by the college or the committee.

Limitation periods apply for appealing decisions and so teachers should immediately obtain legal advice upon receiving notification of an adverse decision which they wish to challenge thought a QCAT review.

Conclusion

Teachers who become aware of an investigation against them should seek legal advice as quickly as possible, since obtaining early advice and assistance can often minimise the risk of the matter going to QCAT, thus limiting a teacher’s exposure to legal costs.

Teachers should be especially careful to seek legal advice immediately upon receiving any notices from QCT investigators which require them to produce information, answer questions, or attend to produce certain things.

Teachers who obtain assistance in responding to allegations in both the investigative phase and the show cause phase of the matters can drastically improve their legal position which may ultimately lead to avoiding disciplinary action or minimising the severity of the sanction imposed.

We Can Help

Potts Lawyers are experienced at assisting teachers in Queensland in a wide range of QCT disciplinary matters.

Potts Lawyers is committed to providing teachers in Queensland with free 20 minute consultations where possible, to provide preliminary advice, an initial strategy, and fee estimate for representing them in the proceedings.