Legal: Teachers, professionalism and occupational discipline law
Queensland Teachers' Journal, Vol 124 No 5, 5 July 2019, page no. 29
When allegations are made against teachers, a variety of legal proceedings can follow. Criminal proceedings, teacher registration proceedings and employee discipline proceedings are the most common, and many accused teachers experience all three in relation to the allegation in question. Other possibilities, such as an action for damages or a discrimination claim, occasionally occur as well.
Criminal proceedings are very distinct from other proceedings in a number of ways. Because questions of the stigma of a criminal conviction and a risk of imprisonment are inherent in criminal proceedings, there is a higher standard of proof (beyond reasonable doubt), stricter rules of evidence and stricter rules of practice. These are designed to protect the liberty of the citizen in relation to criminal proceedings, given the very serious implications. A criminal conviction can also be the basis for other consequences, such as suspension or cancellation of teacher registration, dismissal from employment, prohibitions on travelling to other countries and so on.
The term “occupational discipline law” is not new but is receiving much more attention and use because of the raising of standards in relation to professions. Generally speaking, the concept of occupational discipline law relates to legal consequences of allegations against professionals other than crime, for example, teacher registration and employer discipline. In occupational discipline law the standard is normally on the balance of probabilities and rules in relation to evidence and procedure, though variable, are not as protective as in the criminal jurisdiction.
The other critical distinction from crime is that the purpose of occupational discipline law is both protective and rehabilitative. While the effect of termination or deregistration may be punitive, that is not the purpose. The purpose of occupational discipline is the protection of the public and in the case of teachers, particularly for the protection of children, and rehabilitation where achievable.
The concept of occupational discipline law is increasingly institutionalised, and the standards of professionalism are rising. As some examples, the Law Society set up an Occupational Discipline Law Committee (of which the writer is a member) in 2014. The creation in 2009 of the Queensland Civil and Administrative Tribunal as the ultimate body in relation to teacher registration cancellation and suspension (apart from court appeals) has institutionalised occupational discipline law significantly and there are an increasing number of court and tribunal decisions, articles and textbooks (for example, two in recent years on workplace investigation law).
The consequence of all of this is that teachers and school leaders need to be increasingly aware of the increased accountability which they face and of the need to be informed about the way in which one responds so as to protect one’s interests.
The first response which a person makes to an allegation can be absolutely critical and, given the range of proceedings which are possible, can be critical in a number of contexts. People accused of allegations (especially if the allegations are untrue or exaggerated) are prone to be very emotional, at least initially. Even an innocent person responding without advice and while distressed or shocked by the allegation can do considerable damage to their interests (crime, teacher registration, employment) by that first response. It is important to have the confidence to say that this is a serious matter and I will obtain some advice before responding. The point here is that one ought not to respond immediately, emotionally and without the benefit of advice. Innocent people can do themselves considerable damage.
Changes in attitude, changes in institutions and changes in the law are all increasing the accountability of all professionals in relation to the discharge of their duties. It is not only appropriate to protect one’s interests carefully in such circumstances but vital that one does so. A sophisticated system requires a sophisticated response. Union officers and lawyers are familiar with the potential implications of an allegation and can give advice as to the appropriate response.