Queensland College of Teachers v FNL
[2017] QCAT 361
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- Unreported Judgment
- Queensland College of Teachers v FNL[2017] QCAT 361
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Queensland College of Teachers v FNL[2017] QCAT 361
Queensland College of Teachers v FNL[2017] QCAT 361
CITATION: | Queensland College of Teachers v FNL [2017] QCAT 361 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
FNL (Respondent) |
APPLICATION NUMBER: | OCR176-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 9 October 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
DELIVERED ON: | 9 October 2017 (ex tempore) |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher’s registration was suspended – where Queensland College of Teachers suspended the teacher’s registration in the belief that the teacher posed an unacceptable risk of arm to children – whether the 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, s 49, s 50(5), s 53, s 54, Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Queensland College of Teachers v CMH [2017] QCAT 167 Queensland College of Teachers v LDW [2017] QCAT 048 |
APPEARANCES: | |
APPLICANT: | Carson Lloyd, Principal Legal Officer |
RESPONDENT: | Self-represented |
REASONS FOR DECISION
- [1]FNL has been registered in Queensland as a teacher since 2005. On 11 August 2017 the Queensland College of Teachers (QCT) suspended his registration pursuant to section 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Act) on the basis that the QCT reasonably believed that he posed an unacceptable risk of harm to children.
- [2]In accordance with section 50(5) of the Act, the QCT referred the continuation of the suspension to QCAT for review and seeks an order that the suspension continue.
- [3]By section 53, the tribunal must decide to continue the suspension unless it is satisfied that FNL does not pose an unacceptable risk of harm to children.
- [4]As required by section 54, directions were made by the tribunal inviting submissions from FNL as to why he does not pose an unacceptable risk of harm to children. He was invited to provide written submissions by 27 September 2017 and he did so on that day. By section 55(3) the tribunal has 14 days from the day when such submissions are due to make a decision (or 14 days from the day when such submissions are submitted if earlier). That period of 14 days expires on Wednesday 11 October 2017. In his submissions FNL requested an oral hearing and that was held today.
- [5]By section 55(5), the tribunal must as soon as practicable after making its decision give notice of its decision to the teacher and to the QCT. This notice must be in writing. By section 55(6) the notice must contain the decision made and the reason for it. The notice must also state that the teacher may apply within 28 days after the notice is given and as otherwise provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to QCAT for a review of QCAT’s decision.
- [6]The QCT made written submissions in reply which were received by the tribunal on 5 October 2017.
- [7]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 burden of proof to satisfy the tribunal that he does not pose an unacceptable risk of harm to children.[1]
What is an unacceptable risk of harm to children?
- [8]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.
- [9]The definition suggests that the harm which might occur must be significant rather than minor. The tribunal must therefore decide for the purposes of section 53 whether the teacher does not pose an unacceptable risk of such harm to children.
- [10]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. This is an assessment of the chances of the risk occurring and the magnitude of potential harm if it does occur, and requires a balancing exercise of advantages and detriments. The determination would be made in the context of the purpose of section 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.[2] The determination would also be made in the context of the aims of the Act, which are to uphold the standards of the teaching profession, to maintain public confidence in the teaching profession and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
- [11]The tribunal’s task here is not to review the decision made by QCT to produce the correct and preferable decision. Instead, the tribunal is deciding in its original jurisdiction as a matter of fact, or of fact and opinion, whether the teacher does not pose an unacceptable risk of harm to children.[3] Hence the burden is on the teacher to show that this is not the case, as is clearly intended by the statutory provisions.
- [12]The QCT’s reasons for FNL’s suspension appear from its letter of 11 August 2017. In essence it said that:
Whilst a teacher you failed to maintain appropriate professional boundaries within the teacher-student relationship by engaging in physical contact that was inappropriate and not reasonable in the circumstances (included but not limited to) hugging and/or holding and/or massaging and/or rubbing and/or touching the shoulders of two different female students (aged between 10-11 years old).
I have also taken into account your conviction of common assault some 12 or so years ago when you hugged a 16 year old female complainant without her consent.
- [13]With respect to the more recent incidents, criminal proceedings are underway but not completed.
- [14]FNL gave evidence today. This evidence corresponded with his written submissions. He has raised his own family successfully and has a good history of teaching, with highly developed skills. He has been active in community work. There has been no history of previous disciplinary action as QCT confirms. He also provided a personal character reference from a referee.
- [15]For today’s purposes I have no alternative but to assume that the allegations about the recent incidents are true. The tribunal warned FNL about self incrimination. He understood that he was not obliged to answer any questions about the incidents and preferred not to, saying that this was on advice.
- [16]Since the original application, QCT has submitted a Court Brief from the Queensland Police Service which gives more information about the alleged recent offences.
- [17]This shows that the police have taken statements from 12 students each of whom witnessed seeing FNL touching the two female students in the class. A common theme in these statements was that this was “weird”, and made them feel uncomfortable and that “no other teacher does that”. Each of the two female students was sitting at a desk at the time. FNL is alleged to have massaged the shoulders of the first student for a few seconds, and whilst doing so made a weird noise like blowing raspberries and then asked her whether she liked back rubs. The student said that it felt weird because no teacher had done that before. The allegation with respect to the second student was that FNL randomly popped up behind her and started to give her a back massage. This had happened three times during the day. She said this made her feel nervous and scared. She said that FNL then made a joke about her being a foot massager in the future (she being of Asian appearance) and the rest of the class laughed.
- [18]There is no doubt that these events would have the potential to harm these students within the definition of harm in the Act. Harm can occur in many subtle and unpredictable ways. It is not only the incident itself which can be harmful, but also its aftermath. Here for example, the second student had to face the ridicule of the rest of the class as a result of what happened.
- [19]My concern is that there is a close similarity between these recent events and the incident which occurred some 12 years ago. The information about that incident appears in the paperwork filed with the application. At that time FNL was already in middle age. He was friendly with a 16 year old girl next door. He was at her house and embraced her by using both of his arms to hug her around the tops of her arms. She could feel his chest and stomach area pressed up against her. She tried to pull away but he continued to hug her and then released her. When FNL had gone, she started physically to shake and cry as she was home alone at the time. She rang relatives for support.
- [20]Whilst it might be the case as FNL told me in evidence, that what happened was a demonstration of his care for the girl or that he was under personal stress at the time, the concern I have here is that it suggests that when FNL is not fully guarding his actions he is not wholly in control. It may well be suggested that FNL is very unlikely to do anything similar while criminal proceedings are underway but I cannot say whether this is, or is not, the case.
- [21]In the circumstances I cannot say that FNL has shown that he does not pose an unacceptable risk of harm to children. I must therefore continue the suspension.
- [22]Both FNL and the QCT have made submissions on the question of a non-publication order. The QCT say that publication of FNL’s name and the name of the school may lead to the identification of the child complainants and other children who have provided statements. Also the QCT point out that the police investigation may be continuing.
- [23]For this reason I am satisfied that it would be contrary to the public interest for information to be published which would identify FNL, any of the students concerned or the relevant school. I make orders pursuant to section 66 of the QCAT Act prohibiting the publication of this information. This order can be revisited in any review within QCAT or in any disciplinary proceedings.