Queensland College of Teachers v HDN
[2017] QCAT 112
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- Unreported Judgment
- Queensland College of Teachers v HDN[2017] QCAT 112
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Queensland College of Teachers v HDN[2017] QCAT 112
Queensland College of Teachers v HDN[2017] QCAT 112
CITATION: | Queensland College of Teachers v HDN [2017] QCAT 112 |
PARTIES: | Queensland College of Teachers (Applicant) v HDN (Respondent) |
APPLICATION NUMBER: | OCR035-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 24 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 M v M (1988) 166 CLR 69 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] QCAT 048 |
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]HDN has been registered in Queensland as a teacher since 2004. On 20 January 2017 the Queensland College of Teachers (‘QCT’) suspended her registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that she 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 HDN does not pose an unacceptable risk of harm to children.[1]
- [4]As required by the Act, directions were made by the Tribunal inviting submissions from HDN as to why she does not pose an unacceptable risk of harm to children. HDN has communicated through her legal representatives that she declines to provide submissions.
The Legislative Framework
- [5]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.[2]
- [6]The standard of proof is the civil standard of balance of probabilities in line with what is commonly referred to as the ‘Briginshaw standard’.[3] Accordingly, 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.[4]
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.[5] [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]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 HDN’s suspension.
- [14]The notice of suspension set out the QCT’s reasons for forming the view that HDN posed an unacceptable risk of harm to children as follows:
- HDN was registered as a teacher from 26 May 2004;
- She was employed at a special needs school from 2008;
- On 24 October 2016 she used inappropriate and excessive physical force and inappropriate language towards a student with a diagnosed disability, by:
- Directing offensive language at the student, including calling him a “fucking little cunt”;
- Pushing the student to the ground;
- Throwing or projecting a disinfectant or similar substance to the student’s face and/or genital and/or bottom area, causing pain and/or discomfort;
- Applying a mop to the students body and/or face;
- Sitting on top of the student and applying hand sanitiser or a similar substance to the student’s sores causing pain and saying words to the effect “this will fucking burn, you little cunt”; ...
- [15]The QCT filed the material on which the decision was based including:
- Transcripts of interviews with three witnesses;
- An electronic recording of an interview with one witness; and
- A transcript of interview with HDN.
- [16]In the three transcripts of interviews with witnesses other than HDN, those witnesses broadly corroborate the allegations made in the notice of suspensions.
- [17]HDN, in the transcript of interview dated 11 November 2016, denies each of the relevant allegations. The witness whose interview was provided in an electronic recording corroborates HDN’s account of events and also denies each of the allegations.
Does HDN pose an unacceptable risk of harm?
- [18]HDN has the onus of satisfying the Tribunal that she does not pose an unacceptable risk of harm. She has declined the opportunity to make any submission in response. She says, through her lawyers, that she “denies any wrong doing, and will respond in detail in due course.”
- [19]Whilst I note that denial, and the denials expressed in the transcript of her interview, as well as the interview in which one witness largely corroborates HDN’s account, there is sufficient evidence contained in the other interviews relied upon by the QCT to support the QCTs formation of the reasonable belief. HDN has not sought to challenge the credibility of the witnesses at this stage of the proceeding, and I am not in a position at this stage to compare the credibility of the conflicting accounts.
- [20]The denials expressed do not displace the onus which HDN bears to satisfy me that she does not pose an unacceptable risk of harm to children. I therefore order the suspension of HDN’s teachers registration continue.
- [21]I note that under s 55(6) of the Act, HDN may apply within 28 days of the notice of this decision to QCAT for review of this decision. She may at that point provide any additional material which may support a submission that she does not pose an unacceptable risk of harm to children.
Non-publication order
- [22]The QCT has submitted that
a non-publication order is appropriate if the tribunal considers that publication of the Respondent’s name and/or the School may lead to the identification of the children who were subjected to the alleged inappropriate interactions with the Respondent.[6]
- [23]I am satisfied that it would be contrary to the public interest for information to be published which would identify the relevant school and any students. There is a possibility that the publication of HDN’s name would lead to the identification of the relevant children. This aspect of the non-publication order can be revisited in any subsequent disciplinary proceedings.
- [24]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]The Act, s 53.
[2]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[3]Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362.
[4]QCT v Teacher CXJ [2016] QCAT 511, at para [27].
[5]Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].
[6]QCT’s submissions on section 49, filed 22 March 2017, [16].