Queensland College of Teachers v BCS
[2017] QCAT 248
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Queensland College of Teachers v BCS[2017] QCAT 248
- Add to List
Queensland College of Teachers v BCS[2017] QCAT 248
Queensland College of Teachers v BCS[2017] QCAT 248
CITATION: | Queensland College of Teachers v BCS [2017] QCAT 248 |
PARTIES: | Queensland College of Teachers (Applicant) v BCS (Respondent) |
APPLICATION NUMBER: | OCR098-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Howard |
DELIVERED ON: | 17 July 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; [1938] HCA 34 M v M (1988) 166 CLR 69; [1988] HCA 68 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]BCS has been registered in Queensland as a teacher since 1992. On 19 May 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 BCS 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 BCS as to why he does not pose an unacceptable risk of harm to children. BCS has provided submissions in response, arguing that the suspension should be ended.[2] The QCT has filed further submissions in response.[3]
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.[4]
- [6]The standard of proof is the civil standard of balance of probabilities, on what is commonly referred to as the “Briginshaw standard”.[5] 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.[6]
What is an unacceptable risk of harm to children?
- [7]The Act does not define the term “unacceptable risk of harm”. In Queensland College of Teachers v LDW, the Tribunal 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.[7] [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.
- (3)Harm can be caused by—
(a) a single act, omission or circumstance; or
(b) a series or combination of acts, omissions or circumstances.
- [10]The definition suggests 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”. 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.
- [11]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. It is a protective provision which prefers the protection of children and the child’s interests over the interests of the registered teacher. [8]
The grounds of BCS’s suspension.
- [12]The notice of suspension set out the QCT’s reasons for forming the view that BCS posed an unacceptable risk of harm to children. QCT’s reasons may be summarised as follows:
- BCS has been charged by the Queensland Police Service:
- That on 12 April 2017, BCS wilfully exposed his genitals in a public place namely a local swimming pool;[9]
- That on 13 April 2017, BCS wilfully and without lawful excuse did an indecent act namely masturbated in a place in which the public were permitted to have access namely a local swimming pool.[10]
- It is alleged that on 12 April 2017, while BCS was at the local public swimming pool he:
- Exposed his penis and masturbated in front of a female patron at the swimming pool, and;
- On two further and separate occasions spread his legs wide and gathered up his towel to expose his crotch area to a female patron at the swimming pool.
- It is further alleged that on 13 April 2017, while BCS was at the local public swimming pool he:
- With his legs apart, pulled his speedo (swimming costume) from the right side to the left side thereby exposing his penis and testicles to a female patron;
- It is further alleged that BCS proceeded to masturbate whereby his penis became semi-erect.
- On 12 April 2017 BCS took a photograph of his flaccid penis and testicles on his mobile telephone at the swimming pool;
- 12 and 13 April were publically gazetted school holidays in Queensland, and BCS knew or ought to have known that a public swimming pool during school holidays would be frequented by children; and
- It is alleged that there were children at the swimming pool in and around the vicinity of where BCS was seated on both 12 and 13 April.
- BCS has been charged by the Queensland Police Service:
- [13]
BCS’s Submissions
- [14]BCS submits that he intends to contest the charges, and that a summary hearing is yet to take place. He submits that nothing in his submissions to the Tribunal should be read or interpreted to prejudice those proceedings before the Magistrates Court.[13]
- [15]BCS submits that, in order for there to be an unacceptable risk of harm to children, there must be a ‘nexus’ or link between his alleged conduct and children, and that this nexus must not be based on flimsy evidence.[14]
- [16]BCS says that, in regard to the charge of wilful exposure on 12 April 2017, he has not been charged with the circumstance of aggravation available under the relevant legislation, namely, that he exposed his genitals to offend or embarrass another person.[15] He says that on the face of the QP9 document the female person to whom it is alleged the exposure was directed is ‘unknown’.[16] He submits that the only admissible evidence would be from a person or persons at the pool who was or were ‘actively surveilling’ him ‘just to see if his genitals would be revealed.’[17] He argues that at its highest, the prosecution case is that a person saw his genitals ‘only because they were actively looking out for them.’[18]
- [17]BCS says that within the QP9 there is no allegation that a child was closely proximate during the alleged exposure; that a child complained about him; or that a child saw his genitals. He says there is no real link between the allegation of wilful exposure and children and that it is artificial to speculate about such a link.[19] He contends that the alleged presence of children creates an “illusory nexus between the allegations and risk of harm to children.”[20]
- [18]He makes similar submissions in regard to the charge of indecent acts on 13 April 2017. In particular, he argues that there is no allegation that a child was closely proximate to him during the alleged acts; or that his son was present during the alleged acts; or that any child complained about him; or that any child saw his genitals; or that he caused the photograph of his genitals to be shown to any child or anyone at all.
- [19]He therefore submits that there is no real link between the alleged conduct and children.
The QCT’s Submissions
- [20]The QCT submits that the relevant assessment of risk under section 49 is broad, and is not limited to whether harm has been caused to a particular child, but rather includes the risk and magnitude of potential harm that the teacher poses to the general school student population.[21]
- [21]The QCT submits that it is reasonable to accept that children were present at the local swimming pool on both days. Specifically, the QCT submits that the relevant days were public gazetted school holidays; that one of the mothers who complained of BCS’s conduct on 13 April 2017 had attended the pool with her three sons; and that BCS had attended the pool on 13 April 2017 with a young boy, identified by his submissions as his own son.
- [22]The QCT submits that the risk of harm to children is not mitigated by the lack of evidence that a child actually witnessed the alleged conduct.
Has BCS established that he does not pose an unacceptable risk of harm?
- [23]The QCT has provided evidence of allegations about BCS’s conduct at the local public swimming pool on 12 and 13 April 2017 and criminal charges brought against him following the allegations. These prompted the suspension. The Tribunal must continue the suspension unless satisfied that the teacher does not pose an unacceptable risk.
- [24]BCS bears the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm, on the Briginshaw standard. He has provided no additional statements of evidence. However, his written submissions, as far as they appear to acknowledge that his son accompanied him to the swimming pool set out some evidence. QCT’s submissions also contend the actual presence of other children at the pool, although not as witnesses to the alleged events. In both cases, I give little weight to this evidence apparently contained in written submissions from legal representatives.
- [25]BCS seeks to argue, in essence, that for an unacceptable risk of harm, there must be a link between the conduct and children, but that here there is no real link between the alleged conduct and children. I prefer and accept the submissions of the QCT that I must consider the risk and magnitude of potential harm to children that the alleged conduct poses, not merely whether there is evidence that a particular child or children witnessed the alleged conduct.
- [26]The alleged conduct is said to have occurred at a public swimming pool on gazetted school holidays. It is reasonable to infer that it is more probable than not that children were likely to be in attendance at the local public swimming pool on gazetted school holidays and that BCS knew or ought to have known that. It is also reasonable to infer that if it is established that the alleged conduct occurred, it may also have been witnessed or had the potential to be witnessed by a child or children present at the swimming pool, irrespective of whether it was directed towards them or any person.
- [27]Further, the QP9 contains allegations that BCS told police officers that he took a photograph of his exposed genitals on his mobile telephone at the pool during the period of the allegations, but deleted it. While noting that BCS contests the charges and does not wish to prejudice the proceedings in the Magistrates Court, his submissions do not specifically address this admission alleged to have been made by him, but also do not, on their face, appear to cavil with the officers’ record of this conversation with him.
- [28]In the circumstances, I am not satisfied on the available material to the requisite standard that BCS does not pose an unacceptable risk of harm to children. I therefore order the suspension of BCS’s teacher registration continue.
- [29]I note that under s 55(6) of the Act, BCS may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [30]BCS has submitted that a non-publication order is appropriate over the identity of himself, the relevant school and his child. He submits that as he is contesting the allegations in the Magistrates Court, he is entitled to have his identity protected, and further that it is not in the interests of justice for his son to be identifable.
- [31]The QCT acknowledges that a non-publication order is appropriate if the Tribunal considers that publication of BCS’s identity may lead to the identification of his son.
- [32]It is of course highly likely that identification of BCS would lead to the identification of his son. I am satisfied that it would be contrary to the public interest for information to be published which would identify BCS, the school he teaches at, any students, or any children – including BCS’s son. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [33]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]The Act, s 53.
[2]Submissions of the Respondent, filed 30 June 2017.
[3]QCT’s Submissions on Section 49 Suspension and Non-Publication Order, filed 6 July 2017 (QCT’s Submissions).
[4]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[5]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.
[6]QCT v Teacher CXJ [2016] QCAT 511, [27].
[7]Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].
[8]Queensland College of Teachers v LDW [2017] QCAT 048, [16-17].
[9]Pursuant to s 9(1) of the Summary Offences Act 2005.
[10]Pursuant to s 227(1)(a) of the Criminal Code Act 1899 (Qld), Schedule 1.
[11]Section 68 of the Act requires a teacher to immediately disclose to the QCT any change in their police information.
[12]Section 76 of the Act requires the Commissioner of police to give notice to the QCT if police information about a teacher’s criminal history changes. The notice must include, inter alia, the particulars of the offence the person has been charged or convicted of.
[13]Submissions of BCS, filed 30 June 2017, [7]-[8].
[14]Ibid, [11]-[17].
[15]Summary Offences Act 2005, s 9(3).
[16]Submissions of BCS, filed 30 June 2017, [19].
[17]Ibid.
[18]Ibid, [20].
[19]Ibid, [22].
[20]Ibid.
[21]QCT’s Submissions, [18].