Queensland College of Teachers v Teacher HIB
[2018] QCAT 136
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- Unreported Judgment
- Queensland College of Teachers v Teacher HIB[2018] QCAT 136
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Queensland College of Teachers v Teacher HIB[2018] QCAT 136
Queensland College of Teachers v Teacher HIB[2018] QCAT 136
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher HIB [2018] QCAT 136 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER HIB (respondent) |
APPLICATION NO/S: | OCR069-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 May 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: |
|
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). | |
REASONS FOR DECISION
- [1]Teacher HIB has been registered in Queensland as a teacher since 2016. On 16 March 2018, the Queensland College of Teachers (‘QCT’) suspended her 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 an order that the suspension continue.
- [3]The Tribunal must decide to continue the suspension unless it is satisfied that Teacher HIB 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 Teacher HIB as to why she does not pose an unacceptable risk of harm to children. Teacher HIB has provided submissions in response, arguing that she does not pose any unacceptable risk of harm to children.[2] The QCT has filed further submissions in response.[3]
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.[4]
- [6]The standard of proof is the civil standard of balance of probabilities, on what is commonly referred to as the ‘Briginshaw standard’.[5] 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.[6]
What is an unacceptable risk of harm to children?
- [7]The Act does not define the term “unacceptable risk of harm”. In Queensland College of Teachers v LDW,[7] 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.[8] [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:
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 on the other the potential harm to the teacher of having an unjustified suspension of their registration.
- [11]This determination must be made in the context of the purpose of s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld), 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. [9]
The grounds of Teacher HIB’s suspension.
- [12]The notice of suspension sets out the QCT’s reasons for forming the view that Teacher HIB posed an unacceptable risk of harm to children. QCT’s reasons may be summarised as follows:
- (a)Teacher HIB’s conduct, in particular her interaction and communication with student G, whilst employed as a teacher, was inappropriate and breached professional boundaries.
- (b)Teacher HIB failed to maintain appropriate professional boundaries within the student/teacher relationship by engaging in over-familiar and inappropriate communication with student G (then a year 10 student) via Snapchat and mobile telephone (talk and text);
- (c)The contact had no legitimate educational purpose and included (but was not limited to) the following text messages:
- (a)
Night babe…I love you
Sleep well (heart emoji, kissing face emoticon)…Xox
Morning…how are ya?
You might not hear much from me tonight okay? I love you
Still say hey to me and have a chat but just don’t come to my room…it’ll be okay…it’ll go away…just gotta be wary…delete this convo too obvs haha
Words to the effect of Fuck you T and Tell T I’ve got dibs (on seeing a photo of a heart drawn on G’s arm by student T)
- (d)The contact included sending and receiving photos on Snapchat, including a photo of herself in bed covered by a sheet, and regularly and frequently communicating by text message (up to 50 messages a day).
- [13]The QCT filed the material on which the decision was based, namely:
- (a)A section 76 notification from the employing authority of the relevant school to the QCT dated 10 November 2017;[10]
- (b)Email from SM, the Deputy Principal of the relevant school, dated 8 November 2017 attaching statements of teacher JS dated 8 November 2018 and his own statement dated 8 November 2018.
- (c)Email from SM dated 9 November 2017 attaching a statement of student G dated 9 November 2018.
- (d)10 screenshots from student G’s mobile telephone.
- (e)Transcript of an interview conducted by employees of the Ethical Standards Unit, Department of Education, with student G dated 30 November 2017.
- (a)
Teacher HIB’s Submissions
- [14]Teacher HIB submits that she does not pose an unacceptable risk of harm to children. She acknowledges that she breached the Teachers Code of Conduct by communicating with a student, but states that she was not, at the time, fully aware of the code of conduct, including what was and what was not acceptable.
- [15]Teacher HIB states:
- (a)The Code of Conduct was never explicitly taught or given to her by the school. As a first year teacher, she was not given all of the right tools or necessary information to take on the role. Had she known about the Code of Conduct this error of judgement would never have happened.
- (b)She wishes that she could take back her actions, as she can’t she must accept full responsibility for them.
- (c)She has spent her entire life around children and is often called upon to care for the children of friends. She loves and cares for children and would not harm anyone or anything.
- (d)She has been forced to give up her childhood dream of teaching but does not accept being regarded as an unacceptable risk of harm to children.
- (e)She never had a malicious or sinister intention. She spoke to student G as a friend only.
- (a)
The QCT’s Submissions
- [16]In response, the QCT submits:
- (a)The Principal of school has produced evidence that new staff were provided with induction which covered code of conduct and ethical decision making, responsible use of social media and student protection.
- (b)The Department of Education and QCT have considerable resources available regarding Code of Ethics, Code of Conduct, standards of practice for teachers and student protection and appropriate professional boundaries to be maintained between teachers and students.
- (c)Teachers have a professional responsibility to ensure they comply with employer codes of conduct and standards of practice.
- (d)Graduates of initial teacher education programs in Queensland are required to have reached the graduate level of proficiency with respect to the Australian Professional Standards for Teachers, which includes understanding and applying the key principles described in codes of ethics and conduct for the teaching profession. It is reasonable to expect that, as a recent graduate, Teacher HIB would have met the required standards.
- (e)The Tribunal cannot be satisfied that Teacher HIB does not pose an unacceptable risk of harm to children on the evidence currently available.
- (a)
Has Teacher HIB established that she does not pose an unacceptable risk of harm?
- [17]The allegations relied upon by QCT in suspending Teacher HIB’s registration involve Teacher HIB developing an inappropriate relationship with a 15 year old student at her school over a number of months. The relationship is said to have involved an intense level of contact via mobile telephone calls and texting, and sending messages and photographs via Snapchat. The student has told investigators that the relationship caused her distress.
- [18]Teacher HIB does not dispute that her actions were in breach of the teacher’s Code of Conduct. She claims that now she is aware of the Code she will ensure that it is not breached again.
- [19]The alleged behaviour is of serious concern to the Tribunal and is a significant breach of the standards expected by a teacher. It may be readily accepted that such conduct has the potential to have a significant detrimental effect on a child’s psychological and emotional well-being.
- [20]I find that the conduct constitutes a risk of harm to children.
- [21]I accept that Teacher HIB was an inexperienced teacher and has now expressed remorse for her actions.
- [22]I do accept QCT’s submission, however, that the evidence currently relied upon by Teacher HIB does not support a finding that she does not pose an unacceptable risk of harm to children. Code of Conduct information was readily available to Teacher HIB. It is of concern that Teacher HIB submits that she “could never harm anyone or anything”. She does not, in her submissions, acknowledge that her actions could have resulted in harm to the student. It is not clear whether Teacher HIB has developed the insight that would be necessary before the Tribunal could accept that she did not pose an unacceptable risk of harm to children.
- [23]Teacher HIB’s submission does not discharge the relevant onus required to satisfy the Tribunal that she does not pose an unacceptable risk of harm to children. Accordingly, the suspension of her teacher registration must continue.
- [24]I note that under s 55(6) of the Act, Teacher HIB 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
- [25]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) 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.[11]
- [26]The QCT submits that publication of Teacher HIB’s name and/or the name of the school may lead to the identification of the student G, which would be contrary to interests of justice.
- [27]I am satisfied that it would be contrary to the public interest for information to be published which would identify Teacher HIB, and any of the relevant students or former students, relevant teachers or former teachers, or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [28]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]The Act, s 53.
[2]Submissions of the Respondent, filed 26 April 2018.
[3]QCT’s Submissions filed 4 May 2018.
[4]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[5]Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362.
[6]QCT v Teacher CXJ [2016] QCAT 511, at para [27].
[7]Queensland College of Teachers v LDW [2017] QCAT 048.
[8]Ibid [10]-[11].
[9]Queensland College of Teachers v LDW [2017] QCAT 048, [16]-[17].
[10]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. The notice must include, inter alia, the particulars of the allegation.
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(3).