Queensland College of Teachers v CAW
[2017] QCAT 111
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- Unreported Judgment
- Queensland College of Teachers v CAW[2017] QCAT 111
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Queensland College of Teachers v CAW[2017] QCAT 111
Queensland College of Teachers v CAW[2017] QCAT 111
CITATION: | Queensland College of Teachers v CAW [2017] QCAT 111 |
PARTIES: | Queensland College of Teachers (Applicant) v CAW (Respondent) |
APPLICATION NUMBER: | OCR029-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 20 March 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration on the 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 49, s 50(5), s 53, s 54(1)(b), s 55(6) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 Queensland College of Teachers v LDW [2017] QCT 048 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]CAW has been registered in Queensland as a teacher since 1991. On 30 January 2017 the Queensland College of Teachers (‘QCT’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that he posed an unacceptable risk of harm to children.
- [2]In accordance with s 50(5) of the Act, the QCT has referred the continuation of the suspension to QCAT for review and seeks orders that the suspension continue.
- [3]The Tribunal must decide to continue the suspension unless it is satisfied that CAW does not pose an unacceptable risk of harm to children.[1]
- [4]As required by the Act,[2] directions were made by the Tribunal inviting submissions from CAW as to why he does not pose an unacceptable risk of harm to children. The parties were also invited to make submissions as to whether non-publication orders should be made. CAW provided submissions on 8 March 2017 in relation to non-publication orders, but declined to provide submissions as to whether he poses an unacceptable risk of harm to children. The QCT responded to the submissions in relation to non-publication orders on 15 March 2017.
The Legislative Framework
- [5]I agree with the comments in earlier Tribunal decisions regarding s 49 suspensions,[3] in that once the QCT has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children and suspended the teacher’s registration, the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.
- [6]I also agree with comments in those decisions that the standard of proof is the civil standard of balance of probabilities in line with what is commonly referred to as the ‘Briginshaw standard’.[4] Thus, based on the serious consequences of findings, a teacher would not be successful in discharging the onus on the basis of inexact or flimsy evidence.[5]
What is meant by an unacceptable risk of harm to children?
- [7]The Act does not define “unacceptable risk of harm”. In Queensland College of Teachers v LDW I said:
I accept the submission of the QCT that the ordinary meaning of the term should be preferred having regard to the context of the term in the Act and the purpose of the Act.
The QCT refers the Tribunal to the High Court case of M v M, which considered the degree of risk of sexual abuse which would lead to denial of parental access. The Court in that case formulated the issue as ensuring the protection of a child from ‘unacceptable risk of abuse’. The QCT submits, and I accept, that 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.[6] [footnotes omitted]
- [8]The question is whether there is an identifiable risk of harm and whether such risk is “unacceptable”.
- [9]Harm is defined in the QCT Act as:
7 Meaning of harm
- (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.
- [10]This definition would suggest that the identified risk of harm must be significant, rather than minor, and the degree of risk of the harm occurring must be unacceptable. The mere possibility of harm would arguably not be ‘unacceptable’.
- [11]The determination of any identified risk as unacceptable involves achieving a balance between the protection of students from harm by the conduct of the teacher on the one hand and the potential harm to the teacher of having an unjustified suspension of their registration on the other.
- [12]I accept as submitted by the QCT that this determination must be made in the context of the purpose of s 49, which is to ensure that children are protected by removing the risk that a teacher may harm, or be in a position to harm, children.
- [13]It is a protective provision which prefers the protection of children and the child’s interests over the interests of the registered teacher.
The grounds of CAW’s suspension.
- [14]The notice of suspension set out the QCT’s reasons for forming the view that CAW posed an unacceptable risk of harm to children as follows:
- CAW was registered as a teacher from 4 March 1991;
- He was employed as a head of department during 2016 and taught a year 12 subject;
- Between 25 January 2016 and 18 November 2016 he failed to maintain appropriate professional boundaries with a female year 12 student, by:
- Sending “overfamiliar” emails which were without a valid reason or educational purpose and which were flirtatious, from a work account to the student’s school email account;
- Asking for the student’s personal email address to keep in touch after graduation;
- Between 19 November 2016 and 31 December 2016 he failed to maintain appropriate professional boundaries with the same, now graduated, student, by:
- Frequently communicating with the former student, by email, text messages and telephone, in a way which was personal, “highly sexual” and without valid reason or educational purpose;
- Telling the former student that he was in love with her, that he was sexually aroused when they had classes together, asking personal questions about her ex-boyfriend and sex life and telling her personal information about his marriage, family and affairs;
- Asking the former student to delete emails to avoid detection by his employer and regulating authority;
- Attending the former student’s workplace on at least two occasions.
- [15]The QCT filed the material on which the decision was based including:
- A statement from the former student; and
- Screenshots of emails from CAW to the former student.
- [16]The statement of the former student indicates that, although initially she had a “slight crush” on CAW and did not take the email correspondence very seriously, the escalation of communication after she graduated caused her to be “very shocked and upset”. She details the emotional effect that this communication had on her, and that she decided to report it in part out of concern for the possibility that CAW “would do something similar to other students at the school”.
Does CAW pose an unacceptable risk of harm?
- [17]I accept the QCT’s submission that the evidence to date of CAW’s interaction with the now former student suggests a gross failure to maintain appropriate professional boundaries. I am satisfied that the conduct presents a risk of harm as defined in the Act.
- [18]CAW has the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm. He has declined the opportunity to make any submission in response.
- [19]I am not satisfied, on the material currently before the Tribunal, that CAW does not pose an unacceptable risk of harm to children. I therefore order the suspension of CAW’s teachers registration continue.
Non-publication order
- [20]CAW submits that it is appropriate to make a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CAW submits that, in order to protect the identity of the former student, his identity should not be published. The QCT does not oppose the order, and adds that publication of the name of the relevant school and any student witnesses be prohibited.
- [21]I am satisfied that it would be contrary to the public interest for information to be published which would identify CAW, the relevant school and any students.
- [22]I make orders pursuant to s 66 prohibiting the publication of that information until further order of the Tribunal.
Footnotes
[1]The Act, s 53.
[2]The Act, s 54(1)(b).
[3]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[4]Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362.
[5]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, at para [27].
[6]Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].