Queensland College of Teachers v Teacher CXJ (No 2)
[2017] QCAT 166
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- Unreported Judgment
- Queensland College of Teachers v Teacher CXJ (No 2)[2017] QCAT 166
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Queensland College of Teachers v Teacher CXJ (No 2)[2017] QCAT 166
Queensland College of Teachers v Teacher CXJ (No 2)[2017] QCAT 166
CITATION: | Queensland College of Teachers v Teacher CXJ (No 2) [2017] QCAT 166 |
PARTIES: | Queensland College of Teachers (Applicant) v CXJ (Respondent) |
APPLICATION NUMBER: | OCR167-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard |
DELIVERED ON: | 19 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | EDUCATION- TRAINING AND REGISTRATION OF TEACHERS – SUSPENSION OF TEACHER REGISTRATION – where tribunal has continued suspension of teacher registration pursuant to the Education (Queensland College of Teachers) Act 2005 – 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, 49, s 53, s 55 Briginshaw v Briginshaw (1938) 60 CLR 336. Queensland College of Teachers v Teacher BYJ [2016] QCAT 504 Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher CXJ [2017] QCAT 83 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 M v M (1988) 166 CLR 69 |
APPEARANCES: |
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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]Teacher CXJ is a registered 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).
- [2]The QCT filed an application in the Tribunal seeking orders that the suspension of Teacher CXJ’s teacher registration continue. I made a decision that the suspension continue: Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 (suspension continuation decision). As discussed in those reasons for decision, the QCT Act provides that 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.[1]
- [3]Teacher CXJ then sought review of QCAT’s decision to continue the suspension. As this is the first matter in which such a review is to occur, a preliminary decision was made by the tribunal about the nature and scope of the hearing: Queensland College of Teachers v Teacher CXJ [2017] QCAT 83 (the preliminary decision). The Tribunal held in its preliminary decision that the review is to be determined on the same principles as the first decision on the continuation of the suspension,[2] and that the parties are entitled to provide such further material and submissions to be considered in the review.[3]
- [4]At the time of the preliminary decision, Teacher CXJ had filed his/her own further statement, as well as a further psychologist’s report. The Tribunal directed that the QCT file any further submissions in light of the further material and that the matter then be heard on the papers, not before 4 April 2017.
- [5]The parties have both confirmed that they have no objection to the Member who originally made the decision constituting the Tribunal to determine the review. The matter has been listed before me again on the review.
The legislative scheme for review
- [6]As the Tribunal observed in the preliminary decision, the review is to be determined on the same principles as the first decision on continuation of the suspension, including that the onus is on the teacher to satisfy the Tribunal that he/she is not an unacceptable risk of harm to children.[4]
- [7]Pursuant to s 53(3), in circumstances that a teacher’s registration is suspended under s 49, QCAT must decide to continue the suspension unless it is satisfied that the teacher does not pose an unacceptable risk of harm to children. QCAT must decide whether the teacher does not pose an unacceptable risk of harm to children.[5] The suspension must be ended by the tribunal, if QCAT is satisfied the teacher does not pose an unacceptable risk.[6]
- [8]The onus of proof rests with the teacher. As found in the original decision, the standard of proof is the civil standard of balance of probabilities, on the Briginshaw standard.[7] Based on the serious consequences of the findings, the onus cannot be discharged on the basis of inexact or flimsy evidence.[8]
Teacher CXJ’s submissions that he/she does not pose an unacceptable risk of harm to children
- [9]The basis for the QCT’s suspension of the teacher registration, and the teacher’s submissions that he/she does not pose an unacceptable risk of harm to children were set out in full in the suspension continuation decision: Queensland College of Teachers v Teacher CXJ [2016].[9] I discussed the brevity and some inadequacies in the material relied upon by Teacher CXJ.[10]
- [10]A further psychologist’s report subsequently provided by Teacher CXJ dated mid-January 2017 sets out further detail in relation to treatment of Teacher CXJ. The report confirms that 12 sessions of counselling were held between 12 July 2016 and 29 December 2016.
- [11]The psychologist confirms that at the initial consultation, the teacher presented with symptoms of depression, anxiety and stress precipitated by the suspension of his/her teacher registration. The report confirms discussions with the teacher focussing on the ‘complete inappropriateness’ of the teacher’s contact with Student A and confirms that the psychologist emphasised to the teacher that he/she could not know whether harm had been caused to the student, and opining that it was safer to accept the view that all contact of that nature should be avoided.[11]
- [12]Further, the psychologist advises that, in his opinion, the genesis of the depressive symptoms and anxiety was an accumulation of stressors, including workplace issues, pregnancy and subsequent birth resulting in feelings of isolation and abandonment; guilt associated with accessing pornographic material and the suspension. The psychologist confirmed that the teacher had made significant life changes, including relocating to Adelaide and continuing the seek counselling to aid recovery and to provide opportunities for reconciliation with his/her spouse.
- [13]The psychologist outlines extensive qualifications, but does not disclose experience in risk assessment concerning protection of children, despite the Tribunal’s previous comments to the effect that this would be helpful.
Teacher CXJ’s further statement/submissions
- [14]Teacher CXJ advises that having relocated to South Australia, he/she, is undergoing counselling with a Ms Hutchinson, and provides further details including about the counselling received from both the psychologist and Ms Hutchinson .
- [15]Teacher CXJ acknowledged that at the time of his/her original submission in November 2016, he/she believed that because of the student’s responses, Student A did not suffer psychological or emotional harm. The teacher now accepts that he/she was deluding him/herself. Subsequently, he/she speaks of taking ownership for actions and behaviours and being sensitive to the potential impact on others. He/she considers that the ongoing counselling with Ms Hutchinson has greatly increased his/her understanding and ability to empathise and awareness of the impact of his/her actions on other persons. This counselling has assisted in trying to re-establish relationship with his/her partner. Teacher CXJ expresses regret for the possible harm to Student A as well as his/her family.
- [16]He/she explains that he/she has now put strategies in place to ensure that similar events do not reoccur as follows:
- Seeking professional help should stressors build up;
- Being open and honesty with his/her partner and other family;
- Setting achievable and attainable goals personally and professionally;
- Undertaking analysis of his/her own good and bad qualities and identifying areas for self-improvement;
- Regular exercise;
- Maintaining a healthy diet;
- Keeping a journal to express and release feelings;
- Continue with a process of self-awareness building; and
- Meditating daily to assist clarifying issues.
- [17]Further, he/she continues to work diligently on the re-establishment of his/her marriage. If it cannot be re-established, he/she considers that he/she will be stronger, wiser and more communicative person.
- [18]He/she says that in taking complete ownership for his/her reprehensible behaviour involving Student A, he/she is working diligently towards becoming a better person.
- [19]He/she submits that he/she no longer poses an unacceptable risk of harm to children.
Discussion
- [20]The QCT acknowledges that since suspension, Teacher CXJ has received treatment for his/her mental health issues from a psychologist and counsellor, and acknowledges his initiative in doing so. However, QCT submits that Teacher CXJ has not established that he/she does not pose an unacceptable risk of harm to children, in particular, referring to the lack of psychological medical evidence about any ongoing risk of harm. The QCT submits that the onus and standard of proof has not been met because of the lack of corroborative evidence about the support networks available to Teacher CXJ and because of the serious nature of the conduct admitted by him/her. QCT submits that the suspension should be continued.
- [21]
- [22]Adopting the general approach of the High Court to assessing an unacceptable risk[14] in considering whether an unacceptable risk exists. A balance is to be achieved between the protection of students from harm from inappropriate conduct/behaviour by a teacher, against the potential and also serious detriment to a teacher whose career is placed on whole of the evidence of potential harm is subsequently discredited. Having regard to the objects of the QCT Act, the protective nature of the relevant provisions (the suspension power in section 49 and the provision in s 53(3) that QCAT must continue the suspension unless it is satisfied that the teacher does not pose an unacceptable risk of harm to children), favours the protection of students.
- [23]As a matter of statutory construction, an identified risk of harm to a child must be of a significant nature to fall within harm in the QCT Act. The degree of risk posed by the teacher must be an unacceptable risk. The Tribunal must decide to continue the suspension unless it is satisfied the teacher does not pose an unacceptable risk of harm to children.[15] The suspension must be ended if QCAT is satisfied the teacher does not pose an unacceptable risk of harm to children.[16] As discussed earlier, the onus of proof here falls on the teacher to establish on the Briginshaw standard, that he or she does not pose an unacceptable risk of harm to children.
- [24]Although it is apparent that Teacher CXJ has taken some commendable steps towards addressing his/her mental health issues and has developed some insight, the evidence does not address the current risk of harm to children that may be posed by Teacher CXJ. Indeed, the psychologist who prepared the further report has not seen Teacher CXJ since late in 2016.
- [25]In the absence of independent evidence to support Teacher CXJ’s own uncorroborated assertions, I am not satisfied, in light of the serious nature of the conduct which Teacher CXJ appears to admit, that there is not an unacceptable risk of harm to children. In particular, it remains to be seen, whether in the event of a failure of the teacher and his/her partner to reconcile, how that stressor may effect him/her, and whether the strategies that he/she refers to will be adequate to deal with any mental health issues which may arise.
- [26]In the circumstances, the suspension of Teacher CXJ’s teacher registration must continue.
- [27]I previously made a limited non-publication order in order to protect the identity of Student A.[17] I make a further order prohibiting publication of any information which may identify Student A, other students at the school, the school, and the teacher’s name, other than as Teacher CXJ.
- [28]I make orders accordingly.
Footnotes
[1]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, at [10].
[2]Ibid, at [18].
[3]Ibid, at [19].
[4]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511; Queensland College of Teachers v Teacher GXM [2016] QCAT 441. See also Queensland College of Teachers v Teacher BYJ [2016] QCAT 504.
[5]QCT Act, s 55(1).
[6]QCT Act, s 55(2).
[7]Briginshaw v Briginshaw (1938) 60 CLR 336.
[8]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, at [24]-[27]; Queensland College of Teachers v CXJ [2017] QCAT 83, at [18].
[9]QCAT 511.
[10]Ibid, at [47]-[48].
[11]Psychologist report dated 14 January 2017, p 1 para [8].
[12]Queensland College Teachers v Teacher BYJ [2016] 504; Queensland College Teachers v Teacher CXJ [2016] 511; Queensland College Teachers v GXM [2016] QCAT 441.
[13]QCT Act, s 7.
[14]M v M (1988) 166 CLR 69 at [78].
[15]QCT Act, s 53(3).
[16]Ibid, s 55(2)(b).
[17]Queensland College of Teachers v Teacher CXJ [2016] 511, at [52]-[54].