17 November

Suspension of teaching registration or permission to teach by the Queensland College of Teachers because of a criminal charge or posing an unacceptable risk of harm to children.

Introduction

The Queensland College of Teachers have powers under the Education (Queensland College of Teachers) Act 2005 (Qld) (the ‘Act’) to immediately suspend a person’s teaching registration or permission to teach.

The Queensland College of Teachers must provide notice of the suspension to the teacher to comply with the Act, and usually means that the person will receive a letter by email and by post.

The suspension takes effect on the day the notice is given to the teacher.

As discussed below, in some cases, there may be concurrent criminal charges or the potential that a person has committed a criminal offence in connection with the suspension.

This article will provide a general overview of the process involved when the Queensland College of Teachers suspend a person’s teaching registration or permission to teach.

This article is general in nature and shouldn’t be relied upon as legal advice.

Seek Legal Advice

Accordingly, it is critical that if you find yourself in this position you seek independent legal advice as soon as possible.

Our firm has assisted numerous clients in this position, and we offer a 20-minute obligation-free consultation to discuss your matter with a litigation lawyer of our firm.

You can contact our firm on (07) 5532 3133 to speak with one of our litigation lawyers.

Queensland College of Teacher’s powers to immediately suspend a person’s teaching registration or permission to teach

The Queensland College of Teachers can suspend a person’s teaching registration or permission to teach under either:

Section 48 of the Act – on the basis that a person has been charged with a serious offence, temporary offender prohibition order or interim sexual offender order.

Section 49 of the Act – on the basis that the Queensland College of Teachers reasonably believes that the teacher poses an unacceptable risk of harm to children.

What is a ‘serious offence’

The meaning of a serious offence is found within section 15 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), and there is a list of offences that constitute a serious offence under schedules 2 and 3 of that act.

The following is a non-exhaustive of list serious offences and sets out more common types of serious offences:

Indecent treatment of children under 16 years;

Grooming a child under 16 years or parent or carer of a child under 16 years;

Making, distributing, or possessing child exploitation material;

Sexual assaults;

Trafficking, supplying or producing dangerous drugs.

What does ‘an unacceptable risk of harm to children’ mean?

There is no definition of ‘an unacceptable risk of harm to children’ under the Act.

Section 7 of the Act defines harm as:

Meaning of harm

Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional well-being.
It is immaterial how the harm is caused.
Harm can be caused by—
1. physical, psychological or emotional abuse or neglect; or
2. sexual abuse or exploitation.
Harm can be caused by—
1. a single act, omission or circumstance; or
2. a series or combination of acts, omissions or circumstances.

The meaning of ‘risk’ was determined at paragraph 14 in Teacher EDC v Queensland College of Teachers [2019] QCT 144 which states:

“…the required satisfaction should involve an evaluative judgment, made in the context of the objectives of the Act, and considerations such as the magnitude of the risk of harm. It should involve a judgment as to whether there is a real or substantial risk, rather than one that is fanciful or remote.”

What happens once I have received a notice suspending my teaching registration or permission to teach?

As stated above, the suspension takes effect on the day the notice is given.

The Queensland College of Teachers then have a statutory obligation under the Act to refer the matter to the Queensland Civil and Administrative Tribunal (‘QCAT’). This means that the Queensland College of Teachers files a document that asks QCAT to determine whether the suspension should continue.

Generally, QCAT decides the matter ‘on-the-papers’ which means that no oral hearing occurs and QCAT simply considers all the written material that has been given.

QCAT will then make directions and email both the Queensland College of Teachers and the teacher with directions, which generally include:

An opportunity for the teacher to provide written submissions as to why they do not pose an unacceptable risk of harm by a certain time and date;
An opportunity for the Queensland College of Teachers to put on submissions in reply, usually within 7 days of receiving the teacher’s written submissions;
QCAT to decide the matter not later than 14 days after the timeframe given to the teacher to provide written submissions or receive the teacher’s written submissions, whichever is the earlier;
Within 14 days of receiving the directions, either party may ask QCAT for an oral hearing (instead of a hearing on the papers).
Either party may include in their submissions whether any non-publication order should be made under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should be made.

QCAT’s role in determining a section 48 and 49 suspension

When a teacher’s registration or permission to teach is suspended under QCAT must determine whether the suspension should continue, however QCAT has two distinct legal tests to apply, which depend on the section the suspension occurs.

If the suspension is under section 48 of the Act – QCAT must determine whether the matter is an exceptional case in which the best interests of children would not be harmed if the suspension of the teacher’s registration or permission to teach were ended; or

If the suspension is under section 49 of the Act – QCAT must be satisfied that the teacher does not pose an unacceptable risk of harm to children.

Generally, the applicant (in this case, the Queensland College of Teachers) has the onus of proving their claim, however, it is up to the teacher to either prove:

It is an exceptional case in which the best interests of children would not be harmed f the suspension of the teacher’s registration or permission to teach were ended; or
The teacher does not pose an unacceptable risk of harm to children.

Overlap between concurrent criminal charge(s) and a suspension

Depending on the circumstances of a particular matter, a person who has been charged with a criminal offence or if there potentially might be criminality involved, any written submissions, which are not carefully drafted and considered, may prejudice a person’s ongoing or prospective criminal matter.

It is therefore imperative that if you are charged with a criminal offence or are concerned that there may be any criminality involved in connection with the suspension of your teaching registration or permission to teach you seek independent legal advice as quickly as possible.

Conclusion

This article highlights the importance of seeking independent legal advice as quickly as possible, particularly in circumstances where a person has been charged or may be charged with a criminal offence.

We offer a 20-minute obligation-free consultation to discuss your matter with a litigation lawyer of our firm.