Queensland College of Teachers v DQS
[2017] QCAT 463
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- Unreported Judgment
- Queensland College of Teachers v DQS[2017] QCAT 463
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Queensland College of Teachers v DQS[2017] QCAT 463
Queensland College of Teachers v DQS[2017] QCAT 463
CITATION: | Queensland College of Teachers v DQS [2017] QCAT 463 |
PARTIES: | Queensland College of Teachers (Applicant) v DQS (Respondent) |
APPLICATION NUMBER: | OCR207-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Browne |
DELIVERED ON: | 18 December 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]DQS has been registered in Queensland as a teacher since 2003. On 14 September 2017, the Queensland College of Teachers (‘QCT’) suspended DQS’s registration pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’) on the basis that he poses an unacceptable risk of harm to children.
- [2]The QCT has referred the continuation of the suspension of DQS’s teachers registration to the Tribunal seeking an order that the suspension continue.[1] Directions were made by the Tribunal inviting submissions from DQS as to why he does not pose an unacceptable risk of harm to children.[2] DQS has filed no submissions.
- [3]The Tribunal ordered on 9 November 2017 that the suspension of DQS’s registration as a teacher be continued. My reasons for the decision are now set out below.
What are the relevant provisions in the QCT Act?
- [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.[3] 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, DQS, then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.[4]
- [5]
- [6]If the Tribunal decides to continue the suspension, DQS 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 DQS 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?
- [7]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.
- [8]I find that for the purposes s 7 of the QCT Act 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.
- [9]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]
- [10]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]
- [11]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]
- [12]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”.
- [13]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 DQS’s suspension.
- [14]The QCT submit that DQS’s suspension should continue. The notice of suspension sets out the QCT’s reasons for forming the view that DQS posed an unacceptable risk of harm to children. The grounds include entries or comments made by DQS on a Facebook account. The entries or comments are such that they are capable of being construed that DQS personally endorses the use of extreme violence and religious segregation and therefore DQS’s conduct falls below the standard generally expected of a teacher.
- [15]DQS has also made Facebook posts or comments concerning the Education Department, the teaching profession and women teachers that are offensive and inappropriate and such conduct falls below the standard of behaviour generally expected of a teacher.
- [16]The notice of suspension also refers to the various entries, comments and posts made on Facebook by DQS as being a publicised view held by DQS and that there is a demonstrable risk that DQS may disclose his relevant views to impressionable school students and potentially cause them harm.
- [17]The QCT filed the material on which the decision was based, including, amongst other things, a copy of the various Facebook posts made by DQS including the entries made and a Youtube video.
Does DQS pose an unacceptable risk of harm?
- [18]DQS 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.
- [19]I accept the QCT’s submission that the suspension should continue. I am satisfied based on the material provided by the QCT that DQS poses an unacceptable risk of harm to children. I therefore order the suspension of DQS’s teachers registration continue.
- [20]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 to be identified. The Tribunal may do so on the application of a party or on its own initiative.[14]
- [21]The QCT has indicated that it does not oppose the making of a non-publication order by the Tribunal under s 66 of the QCAT Act, to the extent that the publication of DQS’s name may lead to the identification of his employing authority, school or his family members.
- [22]I am satisfied that it would be contrary to the public interest for information to be published which would identify DQS, his family, any relevant student or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
Footnotes
[1]In accordance with s 50(5) of the QCT Act.
[2]Directions dated 21 September 2017.
[3]The QCT Act, s 49.
[4]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[5]The QCT Act, s 53.
[6]The QCT Act, s 53.
[7]Ibid, s 55(6).
[8]Briginshaw v Briginshaw (1938) 60 CLR 336, 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.
[14]Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).