Queensland College of Teachers v ALE
[2018] QCAT 150
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- Unreported Judgment
- Queensland College of Teachers v ALE[2018] QCAT 150
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Queensland College of Teachers v ALE[2018] QCAT 150
Queensland College of Teachers v ALE[2018] QCAT 150
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v ALE [2018] QCAT 150 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v ALE (respondent) |
APPLICATION NO/S: | OCR086-18 |
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]ALE has been registered in Queensland as a teacher since 2014. On 23 March 2018, the Queensland College of Teachers (‘QCT’) suspended ALE’s registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’) on the basis that ALE posed an unacceptable risk of harm to children.
- [2]The QCT has referred the continuation of the suspension of ALE’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 ALE to file written submissions as to why he does not pose an unacceptable risk of harm to children. Written submissions were received from ALE and the QCT.
- [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.[4] 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, ALE, then bears the onus of proof to satisfy the Tribunal that he does not pose an unacceptable risk of harm to children.[5]
- [5]If the Tribunal decides to continue the suspension, ALE may apply within 28 days of the notice of this decision to the Tribunal for a further ‘review’ of this decision.[6] It is open to ALE 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’.[7] 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.[8]
- [9]In Queensland College of Teachers v LDW (‘LDW’s case’),[9] 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.[10]
- [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.[11]
- [11]More recently in Queensland College of Teachers v Teacher OLC,[12] 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.[13] 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.’[14]
- [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.[15]
Does ALE pose an unacceptable risk of harm?
- [13]The notice of suspension sets out the QCT’s reasons for forming the view that ALE posed an unacceptable risk of harm to children.[16] QCT’s was satisfied that, while employed as a teacher at the relevant school, ALE failed to maintain appropriate professional boundaries within the student/teacher relationship with respect to the relevant student. The QCT was satisfied that ALE initiated contact with the relevant student on social media outside of school hours and ALE engaged in a sexual relationship with the relevant student. The QCT considered certain material, including a statement of the relevant student taken by the Queensland Police Service.
- [14]ALE says that he does not pose an unacceptable risk of harm to children. ALE acknowledges that his behaviours have caused ‘so much damage personally, emotionally and professionally’.[17] ALE accepts full responsibility for ‘these outcomes’ and says that he will never again engage in such behaviours.[18] ALE accepts that what he has done is wrong and says that he has brought ‘dishonour’ on the profession of teaching as well as the trust that the community puts in the teaching profession and that is something that he deeply regrets.[19]
- [15]ALE says that he is addressing the issues relating to his ‘abandoning’ of his values and morals and relies on a report prepared by his counsellor.[20] ALE says he has been seeing a counsellor to address his behaviours and is open to, amongst other things, any advice from the QCT as to any further actions he might take to continue ‘on [his] path to rehabilitation’.[21]
- [16]
- [17]The QCT acknowledges the opinions contained in the counsellor’s report and submits that the Tribunal may reasonably have concerns regarding the objectivity of the counsellor’s report.[24] The QCT says that the counsellor is ALE’s uncle, there is no indication of how many counselling sessions have taken place to date or any proposed future sessions and no information regarding proposed behaviour management strategies discussed with ALE or which ALE is to put in place.[25] The QCT further submit that the report does not provide a clinical basis for the opinions expressed in it, namely that ALE does not represent a risk to children, nor is there evidence of the counsellor’s professional capacity to make, or his experience in making, such an assessment concerning child protection and safety.[26]
- [18]I accept the QCT’s submissions in relation to the report provided by ALE’s counsellor. I have also considered ALE’s written submissions that refer to his acceptance of the behaviour and acknowledgement of his actions.
- [19]I am satisfied based on the material currently provided that ALE poses an unacceptable risk of harm to children. I therefore order the suspension of ALE’s teachers registration continue.
Non-publication order
- [20]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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.
- [21]The QCT acknowledges that it is not in the interests of justice for children to be identifiable to the public and that in the present case publication may lead to the identification of a number of students at the relevant school. The QCT submits that a non-publication order is appropriate given that the publication of ALE’s name would identify the relevant student and such publication may negatively impact on ALE’s mental health.[27]
- [22]I am satisfied that it would be contrary to the public interest for information to be published which may identify ALE, any relevant student, the relevant school and ALE’s counsellor. This non-publication order can be revisited in any subsequent disciplinary proceedings. I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1] In accordance with s 50(5) of the QCT Act.
[2] The QCT Act, s 53.
[3] Ibid, s 53.
[4] Ibid, s 49.
[5] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[6] The QCT Act, s 55(6).
[7] Briginshaw v Briginshaw (1938) 60 CLR 336, 361–362.
[8] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [27].
[9] [2017] QCAT 048.
[10] Queensland College of Teachers v LDW [2017] QCAT 048 [10]–[11].
[11] Ibid [15].
[12] [2018] QCAT 137.
[13] Ibid [28].
[14] Ibid [43].
[15] The QCT Act, s 3.
[16] Notice of suspension dated 23 March 2018.
[17] Written submissions of the Respondent filed on 14 May 2018.
[18] Ibid.
[19] Ibid.
[20] Further written submissions of the Respondent filed on 16 May 2018 and Counsellor’s report dated 16 April 2016.
[21] Ibid.
[22] Queensland College of Teachers further submissions filed 16 May 2018.
[23] Queensland College of Teachers submissions filed 15 May 2018.
[24] Queensland College of Teachers further submissions filed 16 May 2018.
[25] Ibid.
[26] Ibid.
[27] Queensland College of Teachers submissions filed 15 May 2018.