Queensland College of Teachers v Teacher GBM
[2017] QCAT 427
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- Unreported Judgment
- Queensland College of Teachers v Teacher GBM[2017] QCAT 427
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Queensland College of Teachers v Teacher GBM[2017] QCAT 427
Queensland College of Teachers v Teacher GBM[2017] QCAT 427
CITATION: | Queensland College of Teachers v Teacher GBM [2017] QCAT 427 |
PARTIES: | Queensland College of Teachers (Applicant) v Teacher GBM (Respondent) |
APPLICATION NUMBER: | OCR253-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Browne |
DELIVERED ON: | 28 November 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 LDW [2017] QCAT 048 Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 |
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]Teacher GBM has been registered in Queensland as a teacher since 1995. On 23 October 2017, the Queensland College of Teachers (‘QCT’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’) on the basis that he posed an unacceptable risk of harm to children.
- [2]The QCT has referred the continuation of the suspension of Teacher GBM’s teachers registration to the Tribunal seeking an order that the suspension continue.[1] Directions were made by the Tribunal inviting submissions from Teacher GBM as to why he does not pose an unacceptable risk of harm to children.[2] Teacher GBM has responded through his legal representative and has indicated that he makes no submissions, and in doing so makes no admissions.
- [3]
The Legislative Framework
- [4]The QCT may suspend a teacher’s registration only if it has formed a reasonable belief that the teacher poses an unacceptable risk of harm to children.[5] The QCT must then refer the matter to the Tribunal to determine the continuation of the suspension under s 49 of the QCT Act. The relevant teacher, in this case, Teacher GBM, then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.[6]
- [5]If the Tribunal decides to continue the suspension, Teacher GBM may apply within 28 days of the notice of this decision to the Tribunal for a further ‘review’ of this decision.[7] It is open to Teacher GBM to provide any additional material in support of the further review proceeding that is conducted by the Tribunal as a review of the decision that he does not pose an unacceptable risk of harm to children.
What is an unacceptable risk of harm to children?
- [6]The QCT Act does not define the term ‘unacceptable risk of harm’. The QCT Act defines ‘harm’ as being any detrimental effect of a significant nature on a child’s physical, psychological or emotional wellbeing resulting from a single act, omission or circumstance; or a series or combination of acts, omissions or circumstances. Section 7 relevantly provides 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.
- [7]I find that in order to be satisfied based on the evidence before me that there is an identified risk of ‘harm’, the harm must be significant, rather than minor, and the degree of risk of the harm occurring must be unacceptable.
- [8]The standard of proof to be adopted by the Tribunal in determining whether or not there is an identified risk of harm as unacceptable risk is the civil standard of proof on the balance of probabilities, commonly referred to as the ‘Briginshaw standard’.[8] Given the serious consequences that follow a disciplinary proceeding such as this, the Tribunal should not reach a conclusion or make a finding based on inexact or flimsy evidence.[9]
- [9]In Queensland College of Teachers v LDW, the Tribunal accepted the submission of the QCT that the ordinary meaning of the term ‘unacceptable risk of harm’ should be preferred having regard to the context of the term in the QCT Act and the purpose of the Act. The Tribunal said [footnotes omitted]:
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 QCT Act and the purpose of the QCT 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.[10]
- [10]In Queensland College of Teachers v LDW[11], the Tribunal said that the determination of any identified risk as ‘unacceptable’ involves a balancing exercise by the Tribunal 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 his or her registration on the other hand.[12]
- [11]I accept the approach taken by the Tribunal in Queensland College of Teachers v LDW in determining whether there is an identifiable risk of harm as “unacceptable”.
- [12]I accept that in assessing the evidence before me I must achieve a balance between the protective nature of s 49 and the interests of the teacher who is the subject of the suspension. I must ensure that any children are protected by removing the risk that a teacher may harm, or be in a position to harm children. I must also ensure that the objects of the QCT Act are met, that is: to uphold the standards of the teaching profession; and 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.[13]
The grounds of Teacher GBM’s suspension
- [13]The QCT submit that Teacher GBM’s suspension should continue. The notice of suspension set out the QCT’s reasons for forming the view that Teacher GBM posed an unacceptable risk of harm to children. The grounds include a failure by Teacher GBM to maintain appropriate professional boundaries within the student/teacher relationship during a teaching tutorial.
- [14]Teacher GBM during a school tutorial told two students about sexual acts that he had performed in order to secure certain roles, including giving ‘blow jobs’. Whilst working one-on-one with one student, Teacher GBM told the student explicit stories about past sexual experiences, including a homosexual affair. Teacher GBM also told the student about his sexual feelings and desires towards men, and explicit details of physical feelings and sensations associated with sexual experiences with men. Whilst working one-on-one with one student, Teacher GBM repeatedly asked the student about feelings towards boys and whether he has ever had sexual experiences with boys and if he would ever have sexual experiences with boys. After talking with the student, Teacher GBM asked the student to keep the conversation a secret and told the student that he had never shared that information with anyone before.
- [15]The QCT filed material on which the decision was based, including amongst other things, an email from the acting principal of the relevant school to the QCT notifying the QCT of allegations of misconduct and attaching confidential child protection reports and other documents.
Does Teacher GBM pose an unacceptable risk of harm?
- [16]Teacher GBM 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 submissions.
- [17]I accept the QCT’s submission that the suspension should continue. I am satisfied based on the material provided by the QCT that Teacher GBM poses an unacceptable risk of harm to children. I therefore order the suspension of Teacher GBM’s teachers registration continue.
Non-publication order
- [18]The Tribunal has previously ordered that other than to the parties to the proceeding and until further order of the Tribunal, publication is prohibited of information which may identify Teacher GBM, his family, the relevant school or any students. That order continues.
Footnotes
[1]In accordance with s 50(5) of the QCT Act.
[2]Directions dated 7 November 2017.
[3]The QCT Act, s 53.
[4]Ibid.
[5]Ibid, s 49.
[6]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[7]The QCT Act, s 55(6).
[8]Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362.
[9]Ibid and see QCT v Teacher CXJ [2016] QCAT 511, [27].
[10]Queensland College of Teachers v LDW [2017] QCAT 048, [10] - [11].
[11][2017] QCAT 048.
[12]Ibid, [15].
[13]QCT Act, s 3.