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Queensland College of Teachers v Teacher BYJ[2016] QCAT 504

Queensland College of Teachers v Teacher BYJ[2016] QCAT 504

CITATION:

Queensland College of Teachers v Teacher  BYJ [2016] QCAT 504

PARTIES:

Queensland College of Teachers

(Applicant)

v

Teacher BYJ

(Respondent)

APPLICATION NUMBER:

OCR186-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Howard

DELIVERED ON:

5 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The suspension of BYJ’s teacher registration is continued.
  2. Unless otherwise ordered, other than to the parties publication of any information which may identify the teacher’s children is prohibited.

CATCHWORDS:

EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration on basis of its belief that the teacher poses an unacceptable risk of harm to children – whether the teacher does not pose an unacceptable risk of harm – whether suspension should continue

Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 7, s 49, s 50, s 53, s 55

Briginshaw v Briginshaw (1938) 60 CLR 336

M v M (1988) 166 CLR 69

APPEARANCES:

 

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 BYJ is a registered and approved teacher in Queensland. Her 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), based on its belief that she poses an unacceptable risk of harm to children. The QCT has filed an application in the Tribunal seeking orders that the suspension of Teacher BYJ’s teacher registration continue.
  2. [2]
    Directions were made by QCAT inviting submissions from Teacher BYJ as to why she does not pose an unacceptable risk of harm to children. Teacher BYJ has provided submissions to the Tribunal, together with a health professional report from Dr Nigel Prior. She submits that she does not pose an unacceptable risk of harm to children. Teacher BYJ did not respond to directions requiring her to make written submissions about whether a non-publication order should be made by the Tribunal.
  3. [3]
    The QCT has subsequently submitted that the suspension should continue. Further, the QCT, acknowledging that that interests of open justice ordinarily require publication in full and that non-publication orders are expected to be used infrequently, nevertheless submits that it is not in the interests of justice for children to be identifiable to the public. Acknowledging that Teacher BYJ is the mother of two small children, QCT submits that a non-publication order may be appropriate if the Tribunal considers publication of her name may lead to the identification of her two children and may impact on their physical or mental health.
  4. [4]
    I have concluded that the suspension of Teacher BYJ’s teacher registration should continue for the reasons explained in the following paragraphs. I have also decided to make a non-publication order to avoid potential adverse impact on Teacher BYJ’s young children.
  5. [5]
    Under s 55(6) of the QCT Act, Teacher BYJ may now apply, within 28 days of this notice to her, to QCAT for (another) review of QCAT’s decision. It is open to her to provide additional material, including further health professional reports, for consideration in that further proceeding.  

The relevant provisions in the QCT Act

  1. [6]
    Section 49 and other relevant provisions of the QCT Act were amended effective as at 8 September 2016.
  2. [7]
    Section 49 of the QCT Act provides that QCT may suspend a teacher’s registration if it reasonably believes the teacher poses an unacceptable risk of harm to children. Following a s 49 suspension, the QCT must refer the issue of continuation of a suspension under s 49 to QCAT ‘for review.’[1]
  3. [8]
    QCAT must decide whether to continue the suspension of an approved teacher under s 49.[2] In making its determination, QCAT must decide whether the teacher does not pose an unacceptable risk of harm to children.[3] QCAT must order that the suspension be ended if it is satisfied the teacher does not pose an unacceptable risk of harm to children.[4] 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.[5]
  4. [9]
    That said, 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,[6] not its review jurisdiction.
  5. [10]
    However, there is also provision for a further ‘review’ by QCAT, on the application of the teacher, in s 55(6). This is a review of the decision by QCAT that ‘the teacher poses an unacceptable risk to children’.

Time-frames

  1. [11]
    There are prescribed timeframes once a s 49 suspension has occurred.
  2. [12]
    Under s 50(1), the QCT must immediately give notice of the suspension[7] (and other specified matters)[8] to the teacher [9] and refer the continuation of it to QCAT for review.[10] The notice from QCT to the teacher must state that QCAT will review the continuation of the suspension.[11]
  3. [13]
    Immediately after QCAT receives a copy of the notice of suspension from the QCT,[12] QCAT must give the approved teacher a notice inviting the teacher to show why the teacher does not pose an unacceptable risk of harm to children within a stated time of no less than 28 days after QCAT’s notice is given.[13] After considering the submissions, QCAT must decide whether the teacher does not pose an unacceptable risk of harm to children,[14] not later than 14 days after either QCAT receives a submission from a teacher or the notice period ends.[15]
  4. [14]
    If QCAT makes a decision that the teacher poses an unacceptable risk to children, the teacher may then apply within 28 days of receiving the decision notice from QCAT, to QCAT ‘for review’ of QCAT’s decision.[16]

What is an unacceptable risk of harm?

  1. [15]
    The phrase unacceptable risk of harm to children is not defined in the QCT Act.
  2. [16]
    The objects of the QCT Act include upholding standards in the teaching profession;[17] maintaining public confidence in the teaching profession;[18] and the protection of the public,[19] which clearly includes the protection of students.
  3. [17]
    ‘Harm’ is broadly defined for the purposes of the QCT Act [20] 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) It is immaterial how the harm is caused.

(3) Harm can be caused by—

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

(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.

  1. [18]
    The High Court in M v M,[21] 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:[22]

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.[23] 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.

  1. [19]
    As a matter of statutory construction, an identified risk of harm to a child must be of a significant nature (having regard to the definition in s 7(1) of the QCT Act), rather than of a minor nature. Further, the degree or magnitude of risk of harm posed by the teacher must be an unacceptable risk.
  2. [20]
    Having regard to the objects of the QCT Act, I accept that in the balance, the protective nature of the provision favours protection of students.

The onus and standard of proof

  1. [21]
    It is well-established that the relevant standard of proof in in disciplinary proceedings generally is reasonable satisfaction on what is commonly referred to as the Briginshaw[24] standard. That is, it is civil litigation and the standard of proof is the balance of probabilities. It is accepted that 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.[25]
  2. [22]
    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.[26] In effect, this appears to be a requirement to show cause.
  3. [23]
    Effectively, it appears that once the QCT has formed 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 evidence presented, the Tribunal must continue the suspension.  In seeking to discharge the onus of establishing that he or she does not pose an unacceptable risk of harm to children, it seems that a teacher would not be successful on the basis of flimsy evidence/information.

The material filed by the QCT

  1. [24]
    QCT gave its notice of suspension of Teacher BYJ’s teacher registration for reasons which may be summarised as follows:
    1. Between 2012 and 2016, Teacher BYJ was convicted of 32 criminal offences. The offences have included assaults on police officers, unlawful entry into a private home, and intoxication in public places. On some occasions, children have been exposed to the offending behaviour.
    2. Offences have been committed, at different times, on every day of the week.
    3. On some occasions, Teacher BYJ has been convicted and sentenced to probation and on other occasions fined. (On some occasions, ultimately no conviction was recorded.)
    4. Teacher BYJ has been treated for alcohol abuse and behavioural issues, including during admissions to various residential facilities on 4 occasions between October 2014 and December 2015. She has engaged with several clinical psychologists to assist in her treatment.
    5. When appearing before the Professional Practice & Conduct Committee (PP & C Committee) in March 2016, she failed to disclose a further conviction since the Criminal History report had been obtained, and advised the committee that she was on a good path to rehabilitation. She also advised that she had been approached by a school to perform casual teaching and wished to engage in casual teaching in the future.
    6. Three days later, she was charged with an offence of assaulting or obstructing police and has since then been convicted of 3 counts of being intoxicated in a public place between late March and September 2016.
    7. Teaching engagements and particularly casual teaching engagements can arise at short notice.
    8. Teacher BYJ’s excessive alcohol consumption and offending has not been confined to weekends.
    9. Treatment to date does not appear to have successfully addressed her underlying issues.
  2. [25]
    In reaching the conclusion that Teacher BYJ poses an unacceptable risk of harm to children, QCT relied upon copies of the following documents:
    1. National Police Check Results Report;
    2. Queensland Police Service QP9 reports for entries on the National Police Check Results Report;
    3. Letters from rehabilitation facilities;
    4. Curriculum Vitae of Teacher BYJ;
    5. Written Submissions of Teacher BYJ to the PP & C Committee; and
    6. PP & C Committee interview transcript with Teacher BYJ.
  3. [26]
    The documents relied upon by QCT are now before the Tribunal.
  4. [27]
    For current purposes, it is generally sufficient to record that the documents provided by QCT to the Tribunal confirm the matters outlined in QCT’s reasons for suspending Teacher BYJ’s teacher registration. I observe that the available documents reveal that Teacher BYJ did not complete any of the residential programmes she engaged in for the purposes of treating/dealing with alcohol dependency.

Teacher BYJ’s submissions that she does not pose an unacceptable risk of harm to children

  1. [28]
    Teacher BYJ acknowledges her history of offending behaviour. She considers that courts have imposed substantial punishments. She has also experienced disgrace and embarrassment following her actions. All of the charges, she says, have occurred while she has been inebriated. She has no recollection of the events.
  2. [29]
    She has worked as a casual teacher only in recent years. Teacher BYJ argues that she has not, on any occasion, while teaching or supervising children in the course of her teaching duties, engaged in improper behaviour. She submits that none of the offences occurred within school precincts and none were related to school activities or teaching duties. She says she has never, and would never, accept a casual teaching appointment if she was ‘not up to it’.
  3. [30]
    Further, she says that, in her experience, casual teaching arrangements are made beforehand, not on the day that assistance is required. In any event, she seems to say that in the case of a ‘poor health condition’, she has cancelled pre-booked school engagements. Further, although she has not on any occasion needed to do so, she says that she would remove herself from the classroom after seeking support from school staff if any ‘poor health condition’ arose. She sees this as her responsibility as a teacher.
  4. [31]
    She submits that she respects the children in her care, and enjoys teaching. She says that she creates an atmosphere where there is no possibility her actions could pose an unacceptable risk of harm to children.
  5. [32]
    Teacher BYJ explains that she continues to seek treatment for her health condition. She is presently attending a day programme at a private clinic. She sees a psychiatrist, Dr Prior. She says that she’ll continue with her current treatment regime. She submits that her self-esteem needs to be encouraged, by allowing her to continue to teach. The suspension, she says is affecting her self-esteem and her financial status, and impeding her rehabilitation. Now that she has appropriate support, she doubts that she will have further contact with the Queensland Police.
  6. [33]
    Teacher BYJ provides a very brief letter from Dr Prior. He confirms that Teacher BYJ is his patient and that she attends an alcohol rehabilitation programme as a day patient, for her substance abuse disorder, ‘with the goal of achieving long-term sobriety.’ It contains no other detail.

Discussion and conclusions

  1. [34]
    I am not satisfied that Teacher BYJ does not pose an unacceptable risk of harm to children.
  2. [35]
    To her credit, Teacher BYJ is engaged in treatment for her substance abuse disorder. However, she has previously engaged in programmes, as discussed above, for a time, only to discharge herself from them without completing the programmes. Those programmes were not successful, as is apparent from her continued offending behaviour while inebriated, over an extended time-period during which the programmes were engaged in by Teacher BYJ. The most recent acts leading to charges occurred only weeks ago in the latter half of October 2016.
  3. [36]
    She also gave the PP & C Committee a positive picture of her progress in dealing with her dependency issues at the time she spoke with them, only to engage in offending behaviour days later, and in the months subsequently.
  4. [37]
    For the sake of Teacher BYJ, it is hoped that her current treatment will be successful in dealing with her substance abuse disorder. However, at this stage, long-term sobriety is her goal. The report of Dr Prior does not suggest that even short-term sobriety has been achieved. If it has, it could only be, at most, for a short duration at this stage, given the timing of the most recent charges (and subsequent convictions) against Teacher BYJ for acts which occurred in October 2016.  
  5. [38]
    None of the behaviours resulting in charges has occurred while Teacher BYJ has been engaged in teaching duties or in a school setting. However, given her admission that she has no recollection of the events leading to the charges, I am not satisfied by her assurances that she would  not, either accept a casual teaching appointment or attend teaching commitments, while inebriated.
  6. [39]
    When she has been inebriated she has done all manner of things which, based on her submissions and history, she would not have done, had she not been affected by alcohol. It is reasonable to infer that her judgment was impaired due to her inebriation at the time. It is this impairment of judgment while inebriated which concerns me. It is reasonable to infer that she may, if approached while inebriated, accept a casual teaching engagement and attend school while inebriated due to impaired judgment at the relevant time. This would be entirely at odds with her responsibilities as a teacher and pose significant risk of harm to children. In light of the conduct she has engaged in when inebriated, should it occur that she attended school inebriated, the potential for risk of harm to children is significant.
  7. [40]
    Teacher BYJ raises issues about her self-esteem and financial security, and potential detriment to her rehabilitation if the suspension continues. While I acknowledge the potential for detriment to her, the provisions favour the protection of children.
  8. [41]
    Teacher BYJ’s submissions and supporting health professional report do not satisfy me that she does not pose an unacceptable risk of harm to children.
  9. [42]
    The suspension of her teacher registration must be continued.  I make orders accordingly.

Should a non-publication order be made?

  1. [43]
    Although publication of reasons for decision which fully identify the issues and parties involved in them is usually appropriate for open justice, Teacher BYJ has 2 young children. It would not be in the interests of justice for those children to be identifiable, and it may be detrimental to their mental health, if they were identified. Accordingly, I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of information which may identify them.

Footnotes

[1] QCT Act, s 50(5).

[2] Ibid, s 53(1).

[3] Ibid, s 55(1)(b).

[4] Ibid, s 55(2).

[5] Ibid, s 53(3)(b).

[6] Ibid, s 53(2); and Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Chapter 2 Part 1 Divisions 1-3.

[7] QCT Act, s 50(1).

[8] Ibid, s 50(3).

[9] Ibid, s 50(1).

[10] Ibid, s 50(4) and s 50(5).

[11] Ibid, s 50(3)(c).

[12] Ibid, s 54(3).

[13] Ibid, s 54(1) and (2).

[14] Ibid, s 55(1)(b).

[15] QCT Act, s 55(3).

[16] Ibid, s 55(6)(b).

[17] Ibid, s 3(1)(a).

[18] Ibid, s 3(1)(b).

[19] Ibid, s 3(1)(c).

[20] Ibid, s 7.

[21] M v M (1988) 166 CLR 69.

[22] Ibid, at 78.

[23] Footnotes not included.

[24] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 as clarified by cases including Rejfek v McElroy (1965) 112 CLR 517, 521 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170,171.

[25] [2015] QCAT 426 at [17]. (Although that decision was appealed, the appeal did not concern the onus of proof: see QCT v CSK [2016] QCATA 125).

[26] QCT Act, s 54(1)(b).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher BYJ

  • Shortened Case Name:

    Queensland College of Teachers v Teacher BYJ

  • MNC:

    [2016] QCAT 504

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Howard

  • Date:

    05 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
M v M (1988) 166 CLR 69
3 citations
Jump To
Cite 1 - (1988) 166 CLR 69
Cite 2 - (1988) 166 CLR 69
Cite 3 - (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
1 citation
Jump To
Cite 1 - (1992) 67 ALJR 170
Queensland College of Teachers v CSK [2016] QCATA 125
1 citation
Jump To
Cite 1 - [2016] QCATA 125
Queensland College of Teachers v Smith [2015] QCAT 426
1 citation
Jump To
Cite 1 - [2015] QCAT 426
Rejfek v McElroy (1965) 112 CLR 517
1 citation
Jump To
Cite 1 - (1965) 112 CLR 517

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v CMH [2017] QCAT 4016 citations
Queensland College of Teachers v Teacher BYJ [2018] QCAT 1072 citations
Queensland College of Teachers v Teacher CXJ (No 2) [2017] QCAT 1662 citations
1

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