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  4. Queensland College of Teachers v Teacher OLC - [2018] QCAT 137

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Queensland College of Teachers v Teacher OLC[2018] QCAT 137

Queensland College of Teachers v Teacher OLC[2018] QCAT 137

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher OLC [2018] QCAT 137

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

TEACHER OLC

(respondent)

APPLICATION NO:

OCR070-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 May 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

  1. The suspension of the registration of Teacher OLC as a teacher is continued.
  2. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify Teacher OLC, any relevant student, or the relevant school.

CATCHWORDS:

EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – 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

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13

Education (Queensland College of Teachers) Act 2005 (Qld), s 3,s 49, s 50(5), s 53, s 54, s 55

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Briginshaw v Briginshaw (1938) 60 CLR 336

Coutts v Close [2014] FCA 19

Johnson and Page [2007] FamCA 1235

M v M (1988) 166 CLR 69

Nikolakis and Nikolakis [2010] FamCAFC 52

Queensland College of Teachers v LDW [2017] QCAT 48

Queensland College of Teachers v Teacher CXJ [2016] QCAT 511

Queensland College of Teachers v Teacher FSM [2017] 480

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).

REASONS FOR DECISION

  1. [1]
    OLC has been registered in Queensland as a teacher since 2010.  On 13 March 2018, the Queensland College of Teachers (‘QCT’) suspended OLC’s registration pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that he posed an unacceptable risk of harm to children.
  2. [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. [3]
    OLC denies any sexual impropriety, initiating any inappropriate contact with the complainant using any means of private communication, any sexualised communication with the complainant, and any improper contact with the complainant by way of school email servers.
  4. [4]
    The Tribunal must decide in its original jurisdiction[1] whether OLC poses an unacceptable risk of harm to children.[2]
  5. [5]
    As required by the Act, directions were made by the Tribunal inviting submissions from OLC.  OLC has provided submissions in response, arguing that the suspension should be ended as he does not pose an unacceptable risk of harm to children.  The QCT has filed further submissions in reply.

The Legislative Framework

  1. [6]
    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, previous decisions of this Tribunal have proceeded on the basis that the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.[3]
  2. [7]
    The Act does not define the term ‘unacceptable risk of harm’.  In Queensland College of Teachers v LDW,[4] 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.

  1. [8]
    The question is whether there is an identifiable risk of harm and whether such risk is ‘unacceptable’.
  2. [9]
    Harm is defined in the Act as:

7 Meaning of harm

  1. (1)
    Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
  1. (2)
    It is immaterial how the harm is caused.
  1. (3)
    Harm can be caused by—
  1. (a)
    physical, psychological or emotional abuse or neglect; or
  1. (b)
    sexual abuse or exploitation.
  1. (4)
    Harm can be caused by—
  1. (a)
    a single act, omission or circumstance; or
  1. (b)
    a series or combination of acts, omissions or circumstances.
  1. [10]
    The standard of proof that has been used is the civil standard of balance of probabilities, on what is commonly referred to as the ‘Briginshaw standard’. Based on the serious consequences of findings in previous matters, a teacher would not be successful in discharging the onus on the basis of inexact or flimsy evidence.
  2. [11]
    OLC challenges the use of the current ‘unacceptable risk’ test and the evidentiary standard, the basis in determining the posing of an unacceptable risk of harm to children.

The ‘unacceptable risk’ test

  1. [12]
    OLC rightly points out that in earlier cases involving suspensions pursuant to s 49 of the Act, the Tribunal has been guided by family law jurisprudence in determining how to approach assessments of ‘unacceptable risk'.  The Tribunal has adopted the High Court case of M and M,[5] a leading decision on the approach of the Family Court to allegations of sexual abuse of children.
  2. [13]
    This test translated to this jurisdiction has become expressed as achieving a balance to be achieved between the protection of students from harm (as defined in the Act) by way of inappropriate conduct/behaviour of a teacher, against the potential and also serious detriment to a teacher whose career is placed on hold if the evidence of potential harm to children relied upon to suspend the teacher’s registration is subsequently discredited.[6]
  3. [14]
    This 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’ and is 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.
  4. [15]
    Put simply, OLC submits the current principles are:
    1. (a)
      The teacher bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm.
    2. (b)
      A teacher must do so based on appropriate evidence.
    3. (c)
      If a teacher does not do so their suspension will be continued.
    4. (d)
      The evidence in relation to unacceptable risk must be established on the Briginshaw standard.
  5. [16]
    OLC urges this tribunal to reconsider the above principles. He submits:
    1. (a)
      These principles appear to adopt the notion that an unacceptable risk must be proved (or disproved) on the balance of probabilities.
    2. (b)
      However, questions as to the future, such as risk, are not susceptible of proof. There is either a risk or there is not, but there can be risks of varying degrees.
    3. (c)
      The issue to be determined by the decision-maker is whether the risk is unacceptable, not whether it is more 'probable than not'.
    4. (d)
      If questions of risk are not susceptible of proof, then a teacher cannot bear an onus of proof when it comes to risk.  Instead, assessments of risk should involve evaluative judgments by the tribunal.
    5. (e)
      Such evaluative judgments must be preceded by findings in relation to a substratum of facts which should be proved on the balance of probabilities.
    6. (f)
      This substratum of facts does not mean that it is incumbent upon the tribunal to be satisfied that harm occurred. The substratum of facts can include satisfaction in relation to peripheral matters such as: (a) a child disclosing things to multiple parties in consistent terms; (b) a young child making disclosures of a sexual nature using terms and concepts that a child ought not to be familiar with; or (c) corroborative material which gives a child's disclosure greater credence.
  6. [17]
    OLC further submits M and M offers no guidance for the evidential basis needed to justify a conclusion of unacceptable risk; it is simply made clear that the evidential basis was sufficient and that proof upon the balance of probabilities applies only to facts or past events, not possibilities or chances that something ‘may’ happen.
  7. [18]
    So, if assessment of risk is not susceptible of proof then nobody can bear the onus of proof in relation to risk. Rather, the assessment of future risk is a matter for evaluation rather than proof.
  8. [19]
    In Johnson and Page,[7] the Full Court of the Family Court said:

We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof.

  1. [20]
    OLC points to the unacceptable risk tests relied on under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and the Bail Act 1980 (Qld).  The Dangerous Prisoners Act test permits a court to make an order for the continuing detention of a prisoner after the expiry of his or her sentence if the court is satisfied, on the balance of probabilities, that the prisoner is a serious danger to the community.[8]  It examines whether there is an unacceptable risk of the prisoner reoffending.  The court considers the question of risk on the basis of acceptable cogent evidence where it is to a high degree of probability that such evidence is of sufficient weight.
  2. [21]
    This is based on an evaluation of the known past, whether there is any pattern of offending behaviour, efforts by the prisoner to address causes of the offending behaviour participation in rehabilitation programs and if this has had a positive effect, and the prisoner's antecedents and criminal history.  The court must also have regard to any psychiatric reports to evaluate the risk of reoffending.
  3. [22]
    The Bail Act requires an examination of whether there is an unacceptable risk that a defendant, if released on bail, would fail to appear, commit an offence, endanger the safety or welfare of others, or interfere with witnesses. This test considers the nature and seriousness of the offence, the character, antecedents, associations, home environment, employment and background of the defendant, the history of any previous grants of bail and the strength of the evidence against the defendant.
  4. [23]
    OLC also relies on recent decisions in the family law jurisdiction which point to the necessity for facts to be proven in order for risk to be assessed. He gives the example of Nikolakis and Nikolakis[9] where the Full Court of the Family Court said:

...failure to establish an allegation in the past does not determine the wider issue of what parenting order, if any, is in the child's best interests and thus the unacceptable risk inquiry involves a real and substantial consideration of whether or not particular facts raise an unacceptable risk.

  1. [24]
    OLC finally submits:
    1. (a)
      This tribunal cannot make determinations in relation to risk without a sound factual basis.
    2. (b)
      Teachers are entitled to a process whereby evaluations of risk are always preceded by the ascertainment of facts to the Briginshaw standard.
    3. (c)
      The processes which invite teachers to make submission to the tribunal do not presently seem justiciable in nature.
    4. (d)
      In similar proceedings, the QCT recently submitted that the tribunal is not the appropriate forum to raise factual controversies or matters regarding the reliability of complaint evidence.[10]  This was accepted by the tribunal with the tribunal finding these are issues for the criminal courts to determine.[11]
    5. (e)
      This would leave OLC in a particularly invidious position as although a criminal complaint has been made, he has not been charged and apparently will not be charged.
    6. (f)
      It is difficult to imagine how a teacher might show they are not an unacceptable risk, or that theirs is an exceptional case, if the evidence put forward by the QCT is unreservedly accepted and teachers are precluded from making any challenge to its reliability.
  2. [25]
    It is not submitted by OLC that teachers ought to be able to exhaustively test evidence as one would in a criminal court at an interlocutory stage, but teachers ought to be permitted to point out reliability issues which are apparent on the face of materials relied upon by the QCT. As well, teachers ought to be permitted to rely upon extrinsic materials which support their submissions in relation to reliability issues.
  3. [26]
    OLC finally submits that even though there is a difference between a finding of abuse and a finding of unacceptable risk, the latter still requires findings of fact on the basis of which the conclusion of an unacceptable risk can be made and that a consideration must include consideration of a teacher's submissions in relation to the reliability of certain evidence.
  4. [27]
    Although the primary concern must be the protection of students, the processes should be consistent with the fundamental principles of adjudication to allow teachers to point out reliability issues which are apparent on the face of materials relied upon by the QCT and to further rely upon extrinsic materials supporting submissions.
  5. [28]
    I agree this is not an exhaustive testing of the evidence and teachers ought to be permitted to point out reliability issues which are apparent on the face of materials relied upon by the QCT.
  6. [29]
    OLC points to a number of chronological inconsistencies in the statement of the student. He describes the statement as chronologically confused, bewildering and incredible.
  7. [30]
    He provides statement from colleagues and family to say the incidents could not have taken place at the times alleged by the student.
  8. [31]
    He also provides a substantial number of statements of support from professional referees at his present school at all levels of management and teaching. These referees say they are all aware of the current allegations but all consider that OLC is not an unacceptable risk of harm to children. They are all very supportive in their references.

The QCT’s position

  1. [32]
    The QTC agrees in part with these submissions. It acknowledges that:
    1. (a)
      Within the context of suspension proceedings the tribunal is confronted with a difficult task in assessing the credibility and reliability of witnesses.
    2. (b)
      The tribunal in determining whether the respondent poses an unacceptable risk is required to consider the submissions and evidence relied on by the respondent.
    3. (c)
      The tribunal should make its own assessment as to the reliability of the complainant's witness statement.
  2. [33]
    However, the QTC disputes OLC's submission that he is in invidious position as his matter will not be put before a criminal court. The QTC says the determination in QCT v FSM[12] does not support such a submission.
  3. [34]
    The QCT submits that in the context of the present suspension proceedings, OLC is afforded procedural fairness and is 'given a reasonable opportunity to address issues'[13] within the statutory framework contained in the Act, in consideration of the following:
    1. (a)
      Following the QCT's decision to suspend under s 49, the QCT must immediately give notice of the suspension to the teacher.
    2. (b)
      The Notice of Suspension must include the reason(s) for the QCT's decision and the evidence or other material on which the decision is based.
    3. (c)
      The material that forms the basis of the suspension is disclosed to the teacher.
    4. (d)
      The QCT must immediately refer the continuation of the suspension to the tribunal for review under s 53 of the Act; following the QCT's referral, the tribunal must give a notice to the teacher inviting the teacher to provide submissions (and any other evidence) as to why the teacher does not pose an unacceptable risk of harm to children.
    5. (e)
      After considering any submissions, the tribunal must, as soon as practicable, give notice of its decision to the teacher and the QCT.  The notice issued by the tribunal must include advice that the teacher has a right to review the any decision by the tribunal to continue a suspension under s 55(6)(b) of the Act.
  4. [35]
    The QCT submits that OLC is afforded natural justice in challenging the suspension which includes making submissions as to the credibility and reliability or lack thereof of the complainant.
  5. [36]
    The QCT submits that the complainant's inability to be more precise with the date of the alleged inappropriate conduct is entirely unremarkable in that the events allegedly took place over six years ago and that the passage of time between the alleged incidents and the date of reporting does not render the complainant as unreliable or untruthful.
  6. [37]
    The QCT does not challenge the credibility and reliability of the witnesses and character references that OLC has relied upon.  However, having regard to the complainant's evidence there were alleged discreet sexual interactions that occurred in 2012 and 2013, the fact that persons known to OLC can account for most of his time does not preclude the alleged incidents from occurring.
  7. [38]
    The QCT finally submits that the tribunal is entitled to consider that the complainant's evidence is credible and reliable and therefore that OLC's alleged conduct warrants the continuation of his suspension.

Discussion

  1. [39]
    I find the submissions of OLC and the QTC thoughtful in their distinction between a finding of abuse and a finding of unacceptable risk.
  2. [40]
    I accept the distinction and agree that in a finding of unacceptable risk, there is a requirement of findings of fact as the basis of the conclusion of an unacceptable risk. I accept that this consideration must include consideration of a teacher's submissions in relation to the reliability of certain evidence.
  3. [41]
    The primary concern however must be the protection of students, but I accept the processes should be consistent with the fundamental principles of adjudication to allow teachers to point out reliability issues which are apparent on the face of materials relied upon by the QCT and to further rely upon extrinsic materials supporting submissions.
  4. [42]
    I also accept it is appropriate for the teacher to point to any inconstancies or generalities that may go to the weight of the evidence given by the complainant when deciding unacceptable risk.
  5. [43]
    This is not to test the veracity of the evidence of the complainant. That is a matter for the final hearing, not at the interlocutory stage. This is a balancing of the material relied upon by the QCT, the current extrinsic materials and the supporting submissions.

Weighing the Evidence on Unacceptable Risk

  1. [44]
    The notice of suspension set out the QCT’s reasons for forming the view that OLC posed an unacceptable risk of harm to children.  In summary, it is alleged that OLC, whilst a registered teacher, engaged in overly familiar and inappropriate conduct with an enrolled student between 2011 and 2013.
  2. [45]
    The notice of suspension alleges OLC failed to maintain appropriate professional boundaries in the use of email accounts, personal mobile numbers and communications outside school hours.  It is also alleged OLC visited the student out of hours and engaged in inappropriate interactions including sexual intercourse on several occasions.  This included inappropriate interactions including sexual intercourse at a sporting competition attended by both the teacher and the student.
  3. [46]
    The QCT filed the material on which the decision was based, namely a statement from the student.  I accept there appears on the face of the statement of the student to be inconsistencies as identified by OLC in submissions.  The testing of this evidence is for another time.
  4. [47]
    However the allegations made by the student are very serious and the passage of time since the events does not diminish their gravity.
  5. [48]
    These are not single allegations but an alleged course of conduct over a number of years.  Although OLC provides numerous family and professional references attesting to his whereabouts over this period, it is not possible to refer to all periods in that time and I am not satisfied on balance that this evidence precludes the alleged events from having taken place.
  6. [49]
    I do not challenge the evidence from OLC’s current professional colleagues.  They all speak very highly of his professional and personal skills, being aware of the allegations made against him.  However, this evidence also does not preclude the alleged events from having taken place at an earlier time.
  7. [50]
    I am mindful of the objects of the Education (Queensland College of Teachers) Act[14] which are stated as:
    1. (a)
      to uphold the standards of the teaching profession; and
    2. (b)
      to maintain public confidence in the teaching profession; and
    3. (c)
      to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
  8. [51]
    On balance and having weighed all the current statements and submissions, I am satisfied that OLC poses an unacceptable risk of harm to children. I therefore order the suspension of OLC’s teachers registration continue.
  9. [52]
    I note that under s 55(6) of the Act, OLC 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, including his own statement, which may support a submission that he does not pose an unacceptable risk of harm to children.

Non-publication order

  1. [53]
    OLC seeks a non-publication order. 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.
  2. [54]
    OLC has sought an order pursuant to s 66 for any information that could identify any relevant school, any relevant student or former student or child, any relevant teacher, and any referee or statement maker is prohibited from publication.
  3. [55]
    OLC denies what has been alleged and submits the resolution of the matter should not be prejudiced by publication at this stage.
  4. [56]
    As well, the disclosures made involve allegations which would, if they were the subject of criminal proceedings, preclude the publication of identifying particulars. OLC submits that this ought to militate against publication at this stage.
  5. [57]
    The QCT submits non-publication orders are protective and acknowledges that it is not in the interests of justice for children to be identifiable to the public.  It says a non-publication is appropriate given that OLC is married with children and that publication may also adversely impact the complainant.
  6. [58]
    I am satisfied that it would be contrary to the public interest for information to be published which would identify OLC, including the names of family members and witness who have prepared statement or have been otherwise identified in the material, the former student, or the relevant school.
  7. [59]
    I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.

Footnotes

[1]Education (Queensland College of Teachers) Act 2005 (Qld), s 53(2).

[2]Ibid, s 53(3)(b).

[3]For example, QCT v Teacher GXM [2016] QCAT 441 at [21] - decided after the legislative amendments in 2016.

[4][2017] QCAT 048, [10].

[5](1988) 166 CLR 69.

[6]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [22].

[7][2007] FamCA 1235, [71].

[8]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13.

[9][2010] FamCAFC 52, [96].

[10]Queensland College of Teachers v Teacher FSM [2017] 480, [17].

[11]Ibid, [20].

[12][2017] QCAT 480.

[13]Coutts v Close [2014] FCA 19, [114].

[14]Education (Queensland College of Teachers) Act 2005 (Qld), s 3.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher OLC

  • Shortened Case Name:

    Queensland College of Teachers v Teacher OLC

  • MNC:

    [2018] QCAT 137

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    09 May 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Coutts v Close [2014] FCA 19
2 citations
Jump To
Cite 1 - [2014] FCA 19
Cite 2 - [2014] FCA 19
Johnson and Page [2007] FamCA 1235
2 citations
Jump To
Cite 1 - [2007] FamCA 1235
Cite 2 - [2007] FamCA 1235
M v M (1988) 166 CLR 69
2 citations
Jump To
Cite 1 - (1988) 166 CLR 69
Cite 2 - (1988) 166 CLR 69
Nikolakis and Nikolakis [2010] FamCAFC 52
2 citations
Jump To
Cite 1 - [2010] FamCAFC 52
Cite 2 - [2010] FamCAFC 52
QCT v Teacher GXM [2016] QCAT 441
2 citations
Jump To
Cite 1 - [2016] QCAT 441
Cite 2 - [2016] QCAT 441
Queensland College of Teachers v LDW [2017] QCAT 48
2 citations
Jump To
Cite 1 - [2017] QCAT 48
Cite 2 - [2017] QCAT 48
Queensland College of Teachers v Teacher CXJ [2016] QCAT 511
2 citations
Jump To
Cite 1 - [2016] QCAT 511
Cite 2 - [2016] QCAT 511
Queensland College of Teachers v Teacher FSM [2017] QCAT 480
4 citations
Jump To
Cite 1 - [2017] QCAT 480
Cite 2 - [2017] QCAT 480
Cite 3 - [2017] QCAT 480
Cite 4 - [2017] QCAT 480

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v ALE [2018] QCAT 1504 citations
Queensland College of Teachers v ELN [2018] QCAT 1494 citations
Queensland College of Teachers v OLC [2019] QCAT 2423 citations
1

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