Queensland College of Teachers v ELN
[2018] QCAT 149
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- Unreported Judgment
- Queensland College of Teachers v ELN[2018] QCAT 149
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Queensland College of Teachers v ELN[2018] QCAT 149
Queensland College of Teachers v ELN[2018] QCAT 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v ELN [2018] QCAT 149 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v ELN (respondent) |
APPLICATION NO: | OCR104-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 21 May 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Browne |
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 LDW [2017] QCAT 048 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 Teacher OLC [2018] QCAT 137 |
APPEARANCES: |
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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]ELN has been registered in Queensland as a teacher since 2013. On 23 April 2018, the Queensland College of Teachers (‘QCT’) suspended ELN’s registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’) on the basis that ELN posed an unacceptable risk of harm to children.
- [2]The QCT has referred the continuation of the suspension of ELN’s teachers registration to the Queensland Civil and Administrative Tribunal (‘the Tribunal’), seeking an order that the suspension continue.[1] Directions were made by the Tribunal inviting submissions from ELN as to why he does not pose an unacceptable risk of harm to children. ELN has provided submissions in response, and says that the suspension should be lifted.[2] The QCT has filed further submissions in response.[3]
- [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.[6] 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, ELN, then bears the onus of proof to satisfy the Tribunal that he does not pose an unacceptable risk of harm to children.[7]
- [5]If the Tribunal decides to continue the suspension, ELN may apply within 28 days of the notice of this decision to the Tribunal for a further ‘review’ of this decision.[8] It is open to ELN 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 this matter is the civil standard of proof on the balance of probabilities, commonly referred to as the ‘Briginshaw standard’.[9] 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.[10]
- [9]In Queensland College of Teachers v LDW (‘LDW’s case’),[11] 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 QCT 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.[12]
- [10]In LDW’s case, 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.[13]
- [11]More recently in Queensland College of Teachers v Teacher OLC,[14] the Tribunal observed that in determining whether the suspension should continue, teachers ought to be permitted to point out reliability issues which are apparent on the face of materials relied upon by the QCT.[15] The Tribunal observed that ‘[t]his is a balancing of the material relied upon by the QCT, the current extrinsic materials and the supporting submissions.’[16]
- [12]I accept the approach taken by the Tribunal in LDW’s case. I find 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.[17]
Does ELN pose an unacceptable risk of harm?
- [13]The notice of suspension set out the QCT’s reasons for forming the view that ELN posed an unacceptable risk of harm to children. QCT was satisfied that, while employed as a teacher at the relevant school, ELN failed to maintain appropriate professional boundaries within the student/teacher relationship with a student in ELN’s class (‘the relevant former student’). The QCT relied on certain material, namely a transcript of record of interview with the relevant former student and a photograph of a phone displaying social media communications exchanged in 2017.
- [14]ELN denies the allegations and says that he does not pose an unacceptable risk of harm to children. ELN says that he has been working with children for seven (7) years and has never had any accusations made against him in the past. ELN says that working with children is his career and he always has the students’ best interests and safety at heart. ELN says that he is ‘deeply saddened and hurt’ by these allegations.[18]
- [15]The QCT submits that the Tribunal must decide to continue the suspension unless it is satisfied that the teacher does not pose an unacceptable risk of harm to children. The QCT says this involves an assessment of the evidence on which the suspension is based and a consideration of any submissions made by ELN.
- [16]The QCT submits that the Tribunal would consider that the relevant former student’s evidence is credible and reliable. The QCT submits therefore, that in the absence of ELN providing any extrinsic material to support his submissions, the Tribunal would not be satisfied that ELN discharged this onus of proof in satisfying the Tribunal that he does not pose an unacceptable risk of harm to children, and that the suspension should continue pursuant to s 53(3) of the QCT Act.
- [17]I accept the QCT’s submissions. ELN has the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm. ELN has not provided evidence to support his submission that the allegations are not true and that he does not pose an unacceptable risk of harm to children.
- [18]I am satisfied based on the material currently provided that ELN poses an unacceptable risk of harm to children. I therefore order the suspension of ELN’s teachers registration continue.
Non-publication order
- [19]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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.
- [20]The QCT seeks a non-publication order in relation to the name, address and school of the relevant former student under s 66(2)(e) of the QCAT Act. The QCT submits that a non-publication order is appropriate and in the interests of justice so as to protect the relevant former student. I accept the QCT’s submission.
- [21]I am satisfied that it would be contrary to the public interest for information to be published which may identify the relevant former student, and that identification of the name of the respondent could identify the relevant form student. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [22]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of any information which may identify ELN, any relevant student or former student and the relevant school.
Footnotes
[1] In accordance with s 50(5) of the QCT Act.
[2] Submissions of the Respondent, filed 9 May 2018.
[3] Queensland College of Teachers submissions filed 14 May 2018.
[4] The QCT Act, s 53.
[5] Ibid, s 53.
[6] Ibid, s 49.
[7] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[8] The QCT Act, s 55(6).
[9] Briginshaw v Briginshaw (1938) 60 CLR 336, 361–362.
[10] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [27].
[11] [2017] QCAT 048.
[12] Queensland College of Teachers v LDW [2017] QCAT 048 [10] – [11].
[13] Ibid [15].
[14] [2018] QCAT 137.
[15] Ibid [28].
[16] Ibid [43].
[17] The QCT Act, s 3.
[18] Submissions of the Respondent, filed 9 May 2018.