Queensland College of Teachers v JNS
[2017] QCAT 250
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- Unreported Judgment
- Queensland College of Teachers v JNS[2017] QCAT 250
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Queensland College of Teachers v JNS[2017] QCAT 250
Queensland College of Teachers v JNS[2017] QCAT 250
CITATION: | Queensland College of Teachers v JNS [2017] QCAT 250 |
PARTIES: | Queensland College of Teachers (Applicant) v JNS (Respondent) |
APPLICATION NUMBER: | OCR095-17 |
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]JNS has been registered in Queensland as a teacher since 2012. On 17 May 2017 the Queensland College of Teachers (‘QCT’) suspended her teacher 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 JNS does not pose an unacceptable risk of harm to children.[1]
- [4]Directions were made by the Tribunal inviting submissions from JNS as to why she does not pose an unacceptable risk of harm to children. JNS has not provided 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, 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.[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 follows:
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 that the degree of risk of the harm occurring must be unacceptable. A mere possibility of harm would arguably not be “unacceptable”.
- [11]The determination, that an identified risk is 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 unacceptable risk that a teacher may harm, or be in a position to harm, children. It is a protective provision favouring the protection of children and the child’s interests over the interests of the registered teacher. [6]
The grounds of JNS’s suspension.
- [13]The notice of suspension that set out the QCT’s reasons for forming the view that JNS posed an unacceptable risk of harm to children may be summarised as follows:
- JNS taught a student in years 10, 11 and 12;
- During 2015 and/or 2016 when the student was in years 11 and/or 12:
- JNS engaged in conversations with the student that were about private and personal matters and were overly familiar and assisted her with “private issues” through “challenging times”; and
- On two occasions JNS spent time alone with the student in the classroom after school hours.
- Then, in January 2017, JNS commenced a sexual relationship with the former student;
- In February and March 2017, JNS subsequently disclosed to other persons that she was in a relationship with the former student;
- JNS asked others not to disclose her relationship.
- [14]The QCT filed the material on which the decision was based, namely:
- A section 76 notification from the employing authority of the relevant school to the QCT dated 31 March 2017;[7]
- The employing authority terms of reference dated 31 March 2017;
- A letter from the employing authority to JNS dated 31 March 2017;
- Emails between the relevant school and another school dated 22 March 2017;
- Statement of the A/Principal of the relevant school;
- Facebook profile of the relevant student;
- Statement of A/Deputy Principal of the relevant school;
- Student reports of the relevant student dated 2014, 2015 and 2016;
- Letter from the employing authority to the relevant school dated 21 April 2017;
- Response from JNS to the employing authority dated 19 April 2017;
- Transcripts of Records of Interview with other teachers;
- Text messages to and from JNS with other teachers, dated various dates in 2017.
Does JNS pose an unacceptable risk of harm?
- [15]JNS 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.
- [16]I am satisfied on the material currently provided that JNS poses an unacceptable risk of harm to children. I therefore order the suspension of JNS’s teachers registration continue.
- [17]I note that under s 55(6) of the Act, JNS 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
- [18]Pursuant to s 66(1)(c) of the QCAT Act the Tribunal can make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or who is affected by a proceeding, to be identified. The Tribunal may act on its own initiative to make such an order.[8]
- [19]Neither the QCT nor JNS has made any submissions concerning a non-publication order under s 66.
- [20]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 JNS’ name would lead to the identification of the relevant former student. This aspect of the non-publication order can be revisited in any subsequent disciplinary proceedings.
- [21]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, 361-362.
[4]QCT v Teacher CXJ [2016] QCAT 511, [27].
[5]Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].
[6]Queensland College of Teachers v LDW [2017] QCAT 48, [16-17].
[7]Section 76 of the Act requires an employing authority to give notice to the QCT if it investigates an allegation of harm caused, or likely to be caused, to a child because of the conduct of a teacher.
[8]QCAT Act, s 66(3).