QCT v Teacher GXM[2016] QCAT 441

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   Teacher GXM is a registered (or approved) teacher in Queensland. His teacher registration was suspended by the Queensland College of Teachers (‘QCT’) pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’), on the basis that the QCT had reached the belief that he poses an unacceptable risk of harm to children.
2. [2]
   QCT then filed an application in the Tribunal seeking orders that the suspension of Teacher GXM’s teacher registration continue.
3. [3]
   Directions were made by QCAT inviting submissions from the teacher as to why he does not pose an unacceptable risk of harm to children.^[1] Through his lawyers, Teacher GXM has advised that he does not intend to file written submissions.
4. [4]
   However, he has made an application for non-publication orders. In effect, he seeks a non-publication order to protect against the possible identification of Student A. He submits that the efficacy of such an order also necessitates the non-publication of his own name, because in the circumstances, identifying him would almost certainly identify her. The application for a non-publication order is made pursuant to s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). QCT has declined to make submissions about the non-publication application.

The relevant provisions of the QCT Act

5. [5]
   The threshold for suspension under s 49 has recently been amended. Previously, the basis for suspension under s 49 was that the QCT reasonably believed the teacher posed an imminent risk of harm to children and that it was necessary to immediately suspend to protect children. Also, until recently, QCAT did not have jurisdiction to review or decide whether to continue a suspension under s 49 of the QCT Act.^[2]
6. [6]
   Section 49 and other relevant provisions were amended effective as at 8 September 2016. This is the first proceeding in which QCAT has been called upon to decide whether to continue a s 49 suspension. QCT may now suspend a teacher’s registration if it reasonably believes the teacher poses an unacceptable risk of harm to children and QCAT must now review the continuation of the suspension.
7. [7]
   Unfortunately, the QCT has not made submissions about operation of the relevant amended provisions. However, I am constrained by time frames within which the determination must be made, as prescribed by the QCT Act.^[3] Accordingly, I have not sought further submissions.
8. [8]
   The QCT Act now provides that the QCT must refer the issue of continuation of the suspension under s 49 to QCAT ‘for review.’^[4] QCAT must decide whether to continue the suspension of an approved teacher under s 49.^[5] It must decide to continue a s 49 suspension unless it is satisfied that the teacher does not pose an unacceptable risk of harm to children.^[6]
9. [9]
   In making its determination, QCAT must decide whether the teacher does not pose an unacceptable risk of harm to children.^[7] QCAT must order that the suspension be ended if it is satisfied the teacher does not pose an unacceptable risk of harm to children.^[8]
10. [10]
    Despite the requirement for QCT to refer the issue of continuation of the suspension to QCAT ‘for review’, deciding whether to continue the suspension under s 49 is decided in QCAT’s original jurisdiction,^[9] not its review jurisdiction.

What is an unacceptable risk of harm?

11. [11]
    The phrase unacceptable risk of harm to children is not defined in the QCT  Act.
12. [12]
    The phrase unacceptable risk has been considered by courts and tribunals in other contexts. The High Court of Australia, in M v M,^[10] considered the degree of risk of sexual abuse which would justify a court in denying a parent access (as it was then called) to a child under the Family Law Act 1976 (Cth). In that case, the High Court determined that a court should not grant access if it would expose the child to an ‘unacceptable risk’ of sexual abuse occurring. It said as follows:^[11]

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm”, “an element of risk” or “an appreciable risk”, a “real possibility”, a “real risk”, and an “unacceptable risk”http://www.austlii.edu.au/au/cases/cth/HCA/2004/46.html - fn315.^[12] This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

13. [13]
    The High Court again considered the phrase unacceptable risk in relation to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). That Act provides for orders a court may make, if satisfied that a prisoner is a serious danger to the community, because there is an unacceptable risk that a prisoner would commit a serious sexual offence if released from prison.  That Act provides that there must be cogent evidence and a high degree of probability to justify a decision. Several of the judgments of the High Court extracted the quote, as set out above, from M v M.^[13]  Callinan and Heydon JJ said, and then quoted the passage from M v M as above:^[14]

225. The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one. The Family Court undertakes a similar process on a daily basis and this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) said this in M v M of the appropriate approach by the Family Court to the evaluation of a risk to a child: ….

14. [14]
    Of course, here the words unacceptable risk must be constructed in their context in the QCT Act, and the risk must be an unacceptable risk of harm to children.
15. [15]
    It is useful to observe that the objects of the QCT Act include upholding standards in the teaching profession;^[15] maintaining public confidence in the teaching profession;^[16] and the protection of the public,^[17] which clearly includes the protection of students.
16. [16]
    ‘Harm’ is broadly defined^[18] as follows:

7 Meaning of harm

1. (1)
   Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.

2. (2)
   It is immaterial how the harm is caused.

3. (3)
   Harm can be caused by—

1. (a)
   physical, psychological or emotional abuse or neglect; or

2. (b)
   sexual abuse or exploitation.

(4) Harm can be caused by—

(a) a single act, omission or circumstance; or

(b) a series or combination of acts, omissions or circumstances.

17. [17]
    Although they do not appear to offer particular assistance, it is, perhaps, useful to note the only other provisions in the QCT Act which refer to a risk of harm.  In determining whether to grant teacher registration or permission to teach, the QCT must consider, among other things, whether a person is suitable to work in a child-related field.^[19] In determining whether a person is suitable to work in a child-related field, consideration must be given to whether a person poses a ‘risk of harm to children’.^[20] If an employing authority for a relevant school investigates an allegation of harm caused or likely to be caused by a relevant teacher, it must report the investigation to the QCT.^[21]
18. [18]
    It would appear that, if the general approach of the High Court to  unacceptable risk is adopted, that in making the assessment about whether an identified risk of harm is unacceptable, the balance to be achieved is between the protection of students from harm by way of inappropriate behaviour by a teacher, against the potential serious detriment to a teacher whose career is placed on hold as a result of an unjustified suspension. Arguably, an identified risk of harm must be of a significant, rather than a minor, nature before it is to be considered unacceptable.

The onus and standard of proof

19. [19]
    It is well-established that the relevant standard of proof in in disciplinary proceedings is reasonable satisfaction on what is commonly referred to as the Briginshaw^[22] standard. That is, this is civil litigation and the standard of proof is the on the balance of probabilities. In disciplinary proceedings, which are capable of resulting in serious consequences, reasonable satisfaction should not be lightly reached or on flimsy evidence. The onus of proof in establishing whether a disciplinary ground exists rests with the QCT.^[23]
20. [20]
    However, in circumstances that QCT has suspended a teacher under s 49, s 53(3) of the QCT Act provides that the Tribunal must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children. The suspension must be ended if QCAT is satisfied the teacher does not pose an unacceptable risk of harm to children: s 55(2)(b).  Further, s 54 provides that once QCT applies to QCAT to review a s 49 suspension, QCAT must invite the teacher to show why the teacher does not pose an unacceptable risk of harm to children.^[24]
21. [21]
    Effectively, it appears that once the QCT has reached the reasonable belief that an unacceptable risk of harm to children exists and suspended the teacher’s registration, the teacher then bears the onus of proof to satisfy the Tribunal that he/she does not pose an unacceptable risk of harm. Unless the teacher does so, based on compelling evidence, the Tribunal must continue the suspension. 

The material provided by QCT

22. [22]
    QCT was in receipt of material which led it to the conclusion that Teacher GXM posed an unacceptable risk of harm. It provided to the Tribunal an  affidavit of a QCT representative which attaches documents including the following:

    1. A statement of PXJ, a former boyfriend of Student A;
    2. Transcripts of interview with Student A and with Students B and C, who were close friends of Student A during term 4 of 2015.
23. [23]
    In the transcript of her interview, Student A denied any sexual relationship between herself and the teacher. Student B stated that she was unaware of any sexual relationship between the teacher and Student A. However, Student C told investigators that she believed there was a relationship based on her observations, although Student A had not admitted it to her. Student C based on her belief on having seen them together on two occasions. Firstly, she said she thought she had seen them together in the teacher’s car on one occasion. Secondly, she said that during a sleepover which she, Student A and Student B, as well as other close friends attended, Student A left mid-evening and did not return to the sleepover until about 5:00am the following morning. Only Student C was awake and out of bed because she was to start work early that morning. She was getting ready to leave when Student A was dropped back to the residence in a car, which Student C recognised to be the teacher’s.
24. [24]
    PJX commenced dating Student A in about mid-March of 2016. He  provided an unsworn but signed statement. He explained that because he had suspicions that Student A was seeing someone else as well as him, without her knowledge, he looked through her telephone records, where he found some text messages, and messages on the apps KIK and Snapchat. As a consequence of what he saw, he formed the conclusion that she was seeing someone else. Most of the messages were short, but he says they included a photograph of a penis. He says he later discovered that she was protecting the identity of the person with whom she had the exchanges by saving his phone number under an alias name.
25. [25]
    Having found the messages, PJX confronted Student A about them. He says she then told him that she was messaging with Teacher GXM. She told him that the relationship first began towards the end of 2015, while she was still at school. She explained to him that she commenced tutoring sessions with him at his home after school and that subsequently their relationship became sexual. PJX says she also told him that she and Teacher GXM took a break from their relationship when allegations came to light late in 2015 within the school community to the effect that there was a relationship. However, she told PJX that she started messaging Teacher GXM again in 2016. Subsequently they saw one another again earlier in the year. PJX and Student A engaged in Facebook messenger conversations about the relationship between her and Teacher GXM.
26. [26]
    Although he says Student A later deleted them, unknown to her, PJX had taken screenshots of those conversations. He attached them to his statement. In those messenger conversations, Student A discloses that she was engaged in an ongoing sexual relationship with the teacher, although she was happy to stop seeing him if PJX wanted a more serious relationship with her, explaining that her relationship with the teacher did not involve any emotional connection and was limited to a sexual one. She said words to the effect that it is ‘an experimental thing’.
27. [27]
    A delegate of the QCT suspended Teacher GXM’s teacher registration based on QCT’s belief issuing a suspension notice based on the information, setting out reasons for the decision which may be summarised as follows:

    1. That Teacher GXM was a teacher at the school attended by Student A in 2014 and 2015;
    2. That on at least one occasion in term 4 of 2015, Teacher GXM engaged in sexual intercourse with Student A;
    3. During term 4 of 2015, Teacher GXM picked up Student A from her home and drove her to his home where he privately tutored her;
    4. During term 4 of 2015, and in 2016, Teacher GXM engaged in private and unauthorised communications with Student A through Facebook, mobile phone/text messages and applications including KIK and Snapchat; and
    5. That Teacher GXM continued a sexual relationship with Student A after she graduated year 12 at the end of the school year.

Discussion and decision

28. [28]
    The QCT relied on the available evidence to form the belief that that Teacher GXM poses an unacceptable risk of harm to children, effectively because it has evidence which indicates that he has conducted a sexual relationship with a student and otherwise behaved inappropriately in his relationship with the student.
29. [29]
    The untested evidence containing allegations of boundary violations by Teacher GXM in his relationship with Student A, particularly those involving a sexual relationship between them, are significant and most serious in nature.  If they are true, and on the basis that past behaviour is usually a reliable indicator of likely future behaviour, a teacher who did the things alleged poses an unacceptable risk of harm to children.
30. [30]
    Teacher GXM has elected not to provide submissions as to why he does not pose an unacceptable risk of harm to children. There is no information or evidence before the Tribunal which satisfies me that Teacher GXM does not pose an unacceptable risk of harm to children.
31. [31]
    In the circumstances, pursuant to s 53(3)(b) and s 55(1) of the QCT Act, I must order that the suspension of Teacher GXM’s teacher registration continue. I make orders accordingly continuing the suspension.

Application for non-publication order

32. [32]
    I am satisfied that it would be contrary to the public interest for information to be published which would identify Students A, B and C. To this end, in these circumstances it is necessary that the school they attended must not be identified either. Further, I am satisfied that, to achieve this, Teacher GXM himself cannot be identified.
33. [33]
    I make orders pursuant to s 66 of the QCAT Act prohibiting publication of the information.