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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v Teacher SPR  QCAT 214
Queensland college of teacers
Occupational regulation matters
9 June 2020
On the papers
Senior Member Aughterson
EDUCATION- TRAINING AND REGISTRATION OF TEACHERS – SUSPENSION OF TEACHER REGISTRATION – continuation of suspension – whether teacher does not pose an unacceptable risk of harm to children - whether suspension should continue
Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 49, s 50, s 53, s 55
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 66
Queensland College of Teachers v LDW  QCAT 48
Queensland College of Teachers v Liddell  QCAT 344
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
- Teacher SPR has been registered in Queensland as a teacher since 2016. On 14 April 2020, the Queensland College of Teachers (‘the College’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Education Act’).
- By s 49 of the Education Act, the College may suspend a teacher’s registration if it reasonably believes the teacher poses an unacceptable risk of harm to children. By s 50(1), the College must give notice of the suspension to the teacher, which notice includes a statement that the Tribunal will review the continuation of the suspension to decide whether the teacher poses an unacceptable risk of harm to children.
- In accordance with s 50(5) of the Education Act, the College has referred the continuation of the suspension to QCAT for review and seeks an order that the suspension continue. By s 53(1), the Tribunal must decide whether to continue the suspension, while s 53(3) requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- As required by the Education Act, directions were made by the Tribunal inviting submissions from Teacher SPR as to why he does not pose an unacceptable risk of harm to children. Teacher SPR filed submissions on 1 June 2020 and the College filed submissions in response on 4 June 2020.
- While the Education Act does not define the term “unacceptable risk of harm”, by s 7 of the Act ‘harm’ to a child is ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’. As to ‘unacceptable risk’, see Queensland College of Teachers v LDW: “this formulation directs the Tribunal to an assessment of the ‘chances’ of the risk occurring and the magnitude of potential harm if it did occur, and requires a balancing exercise of advantages and detriments”.
- By the terms of s 53(3)(b) of the Education Act, it is not required that the Tribunal be satisfied that there is an unacceptable risk of harm. Rather the sub-section is cast in negative terms. The Tribunal must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- The notice of suspension set out the College’s reasons for forming the view that Teacher SPR posed an unacceptable risk of harm to children: allegations of engaging in an overfamiliar and inappropriate relationship with a student at a time when she attended school and engaging in a sexual relationship with the student immediately after she completed year 12. The material relied upon includes copies of letters from the student to Teacher SPR, iMessage extracts, and a transcript of an interview with a fellow former student and friend of the student though whom it is said that communications were made between Teacher SPR and the student.
- In submissions filed in the Tribunal, Teacher SPR states that he strenuously denies that he ‘had any sexualised contact or sexual intercourse’ with the student and that he is ‘able to provide the College with additional information that may alter the tenor of their findings’. However, there was no denial of the more general allegation of an overfamiliar and inappropriate relationship with the student. Rather, Teacher SPR states: ‘I would suggest that I have been naïve and have shown poor judgment under extreme pressure, rather than having acted with intent to bring harm to a child in my professional care’. He adds: ‘In view of the serious nature of the allegations against me, I have undertaken not to teach in Queensland until this matter has been clarified’.
- Teacher SPR asks that his registration not be suspended but held in abeyance ‘until the allegations have been fully heard and I have had the opportunity to respond to the charges’. However, as submitted by the College, there is no power under the Act to hold the suspension in ‘abeyance’. While there is a general power under s 61(1)(b) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) to extend a time limit fixed by an enabling Act, s 6 and 7 of the QCAT Act provide that that Act is subject to the provisions of an enabling Act. In that context, s 55(3) of the Education Act provides that the decision of the Tribunal ‘must’ be made not later than 14 days after the earlier of receipt of the teacher’s submissions or the time limited by the relevant directions for the filing of those submissions. That this time frame is intended to be mandatory, is reinforced by s 55(4), which provides: ‘If QCAT does not make a decision within the 14 day period under subsection (3), QCAT is taken to have made an order ending the suspension’. If it were intended that the 14 day time period could be extended, it is to be imagined that words would have been added to s 55(4) to the effect of ‘or such further time as may be allowed by QCAT’.
- While, consistent with the decision in Queensland College of Teachers v Teacher EDC, it is not productive to approach the question of whether there is the requisite satisfaction that the teacher does not pose an unacceptable risk of harm to children by reference to the concepts of onus and standard of proof, it remains that if a party asserts that he or she does not pose an unacceptable risk it behoves that party to point to some evidence or material that would allow the Tribunal to be so satisfied. The limited time for the making of a decision militates against the conduct of a hearing to determine contested factual issues. In the present case, there is a bare denial of the more serious allegations. In any event, as noted above, there is no denial of the more general allegations of an overfamiliar and inappropriate relationship. Further, though Teacher SPR acknowledges naivety and poor judgement, he makes no reference to likely future behaviour or to any steps taken to ensure that better judgments will be made in the future. That is directly relevant to the question of whether he poses an unacceptable risk of harm to children.
- On the material before me, I am not satisfied that Teacher SPR does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher SPR’s registration as a teacher is to continue.
- I note that under s 55(6) of the Education Act, Teacher SPR may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that he does not pose an unacceptable risk of harm to children.
- 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. The College submits that it is not in the public interest to identify the relevant student or school and that identification of the teacher may in turn lead to identification of the school and student.
- I am satisfied that it would be contrary to the public interest for information to be published that would identify the relevant student, school or teacher. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of information that may identify Teacher SPR, a relevant student or former student, or the relevant school, other than to the extent necessary to enable the College to meet its statutory obligations.
 The Act, s 50(3)(c). The ‘review’ is conducted in the original jurisdiction of the Tribunal: see s 53(2) of the Act.
 The Tribunal directions were issued on 24 April 2020, requiring any submissions to be filed by 29 May 2020.
  QCAT 48 -.
 See also s 55(1)(b) of the Act.
 See, in particular, s 6(7)(b) and s 7(2) of the QCAT Act.
 See also Queensland College of Teachers v Liddell  QCAT 344, -.
  QCAT 144, -.
 Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- Published Case Name:
Queensland College of Teachers v Teacher SPR
- Shortened Case Name:
Queensland College of Teachers v Teacher SPR
 QCAT 214
Senior Member Aughterson
09 Jun 2020