Queensland College of Teachers v DWS
[2017] QCAT 290
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 DWS[2017] QCAT 290
- Add to List
Queensland College of Teachers v DWS[2017] QCAT 290
Queensland College of Teachers v DWS[2017] QCAT 290
CITATION: | Queensland College of Teachers v DWS [2017] QCAT 290 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
DWS (Respondent) | |
APPLICATION NUMBER: | OCR146-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Deputy President O'Callaghan |
DELIVERED ON: | 28 August 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]DWS has been registered in Queensland as a teacher since 2006. On
4 July 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 DWS 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 DWS as to why he does not pose an unacceptable risk of harm to children. DWS has indicated that he makes no submissions in response, and in doing so makes no admissions. Both DWS and the QCT have made submissions concerning non-publication.
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, on 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 an unacceptable risk of harm to children?
- [7]
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. [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 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]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.[7]
The grounds of DWS’s suspension.
- [12]The notice of suspension set out the QCT’s reasons for forming the view that DWS posed an unacceptable risk of harm to children. QCT’s reasons may be summarised as follows:
- DWS has been employed at the relevant school for approximately six (6) years;
- The relevant student graduated in 2014;
- During her schooling at the relevant school, the relevant student was enrolled in the Special Education Program (SEP) due to a speech language impairment processing disorder and required one-to-one and/or small group intervention;
- In 2012 DWS was the relevant student’s SEP manager;
- In January 2015 DWS failed to maintain appropriate boundaries within the teacher and former student relationship by engaging in a sexual relationship with the former student;
- On a date or dates unknown between January 2016 and February 2017 DWS failed to maintain appropriate boundaries within the teacher and student relationship by hugging a different, year 10 student during class;
- On a date or dates unknown between January 2016 and February 2017 DWS failed to maintain appropriate boundaries within the teacher and student relationship by tying back and/or plaiting the hair of a different year 12 student during class;
- Between February and June 2017 DWS operated an online account on the social media site ‘Pinterest’, where he either followed or accessed ‘Boards’ (collections of images or ‘Pins’) which included ‘Schoolgirls’, ‘School’, ‘School babe’ and ‘Uniforms’ that contained images of partially nude women wearing school uniforms.
- The QCT considers that the public ‘liking’ or ‘following’ of these images on ‘Pinterest’ constitutes behaviour that falls below the standard of behaviour generally expected of a teacher and is capable of demonstrating that DWS has a ‘sexual ideology’ towards school children.
- [13]The QCT filed the material on which the decision was based, namely:
- Section 76 Notice from the Department of Education, dated 23 May 2017;[8]
- Email from the Principal of the relevant school to a Department of Education investigator;
- Statement from a teacher at the relevant school;
- Email from DWS’s ex-spouse to QCT investigator;
- Facebook ‘Messenger’ exchange between the relevant former student and DWS’s ex-spouse;
- Print-out of DWS’s ‘Pinterest’ pages.
Does DWS pose an unacceptable risk of harm?
- [14]DWS 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.
- [15]I am satisfied on the material currently provided that DWS poses an unacceptable risk of harm to children. I therefore order the suspension of DWS’s teachers registration continue.
- [16]I note that under s 55(6) of the Act, ODM 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
- [17]DWS has submitted that a non-publication order is appropriate over the identity of himself and the relevant former student. He has provided a report from a treating psychiatrist which indicates a moderate to high risk that DWS would struggle to cope with the anxiety of publication of his identity, which could place him at a higher risk of relapse of mood disorder and of risk of harm to himself.
- [18]The QCT submits that a non-publication order is appropriate.
- [19]I am satisfied that it would be contrary to the public interest for information to be published which would identify DWS, any of the relevant students or former student, or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [20]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] [2017] QCAT 048.
[6] Ibid, [10] – [11].
[7] Queensland College of Teachers v LDW [2017] QCAT 048, [16] – [17].
[8] Section 76 of the Act requires the employing authority to, as soon as is practical, give notice to the QCT that is has started to deal with an allegation of harm caused or likely to be caused to a child because of the conduct of a relevant teacher.