Queensland College of Teachers v Teacher NMR
[2018] QCAT 310
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- Unreported Judgment
- Queensland College of Teachers v Teacher NMR[2018] QCAT 310
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Queensland College of Teachers v Teacher NMR[2018] QCAT 310
Queensland College of Teachers v Teacher NMR[2018] QCAT 310
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher NMR [2018] QCAT 310 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) |
| v |
| TEACHER NMR (respondent) |
APPLICATION NO/S: | OCR199-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 10 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
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 7, s 49, s 50(1), s 50(5), s 53(1), s 53(3), s 54(1)(b), s 55(6) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 M v M (1988) 166 CLR 69 Queensland College of Teachers v SGS [2017] QCAT 383 Queensland College of Teachers v LDW [2017] QCAT 048 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 |
REPRESENTATION: |
|
Applicant: | Senior Legal Officer |
Respondent: | Self-represented |
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 NMR has been registered in Queensland as a teacher since 2006. In July 2018, the Queensland College of Teachers (‘QCT’) suspended his registration pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).
The Legislative Framework
- [2]By s 49 of the Act, the QCT may suspend a teacher’s registration if it reasonably believes the teacher poses an unacceptable risk of harm to children. By s 50(1), the QCT must give notice of the suspension to the teacher, which includes a statement that the Tribunal will review the continuation of the suspension to decide whether the teacher poses an unacceptable risk of harm to children.[1]
- [3]In accordance with s 50(5) of the Act, the QCT has referred the continuation of the suspension to QCAT for review pursuant to s 53 of the Act. By s 53(1) the Tribunal must decide whether to continue the suspension, while s 53(3) requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- [4]As required by s 54(1)(b) of the Act, directions were made by the Tribunal inviting submissions from teacher NMR as to why he does not pose an unacceptable risk of harm to children. Written submissions were filed by the Teacher on 30 August 2018 and by QCT, in response, on 7 September 2018.
What is an unacceptable risk of harm to children?
- [5]While the Act does not define the term ‘unacceptable risk of harm’, the meaning of ‘harm’ is provided in s 7 of the Act:
- (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.
- [6]
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.[4]
By the terms of s 53(3)(b) of the Act, it is not required that the Tribunal be satisfied that there is an unacceptable risk of harm.[5] Rather, the sub-section is cast in negative terms. The Tribunal must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
The grounds of teacher NMR’s suspension
- [7]The notice of suspension sets out QCT’s reasons for forming the view that teacher NMR posed an unacceptable risk of harm to children. In summary, the reasons were that teacher NMR:
- engaged in inappropriate behaviour with a student, including taking sexually explicit photographs of the student;
- possessed sexually explicit photographs of the student in a ‘Dropbox’ account; and
- engaged in overfamiliar behaviour with the student.
- [8]The QCT filed the material on which the decision was based, namely:
- (a)Transcripts of interviews; and
- (b)Copies of photographs
- (a)
The Submissions
- [9]Written submissions were filed by both the Teacher and QCT. The Teacher submits that the “investigation” should end, while it is the submission of QCT that the suspension of the Teacher’s registration should continue.
- [10]The Teacher states that he had been a teacher for ten years prior to the incident the subject of the allegations, had no record of misconduct and that over those 10 years had made a substantial contribution to the school. While he acknowledges that the allegations made by QCT are true, he says that what QCT has not made apparent is that he developed a close personal relationship with the student, which has continued since her graduation from high school. He further says that he was not her “direct teacher” or teacher “in any fashion”. However, it is evident from both the Teacher’s own submissions and those of QCT that he took her and other students for ‘tutorials’ before and after school. In any event, it remains that the status was one of teacher and student and the Teacher acknowledges that he knew that the conduct “was not allowed and … that I would probably get into trouble someday, but … didn’t care because we had that much of a connection”. That statement does not reflect an appreciation of the professional standards expected of a teacher.
- [11]Also, the statement by the Teacher that a close personal relationship with the student in question has continued after the student’s graduation, does not diminish the allegations made.[6] If the suspension of the registration is to end, it is in the context of those allegations, the objectives of the Act, and the response of the teacher that the Tribunal must be satisfied that the teacher ‘does not pose an unacceptable risk of harm to children’.
Conclusion
- [12]On the material before me and in light of the matters outlined above, I am not satisfied that teacher NMR does not pose an unacceptable risk of harm to children. I therefore order that the suspension of teacher NMR’s registration as a teacher is to continue.
- [13]I note that under s 55(6) of the Act, teacher NMR 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 which may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [14]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.[7]
- [15]The QCT submits that it would be appropriate to order non-publication if the Tribunal considers that it would be contrary to the public interest for information to be published that would identify the relevant student and school.
- [16]I am satisfied that it would be contrary to the public interest for information to be published that would identify teacher NMR, any person interviewed by QCT, any relevant student, or the school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [17]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1] The Act, s 50(3)(c). The ‘review’ is conducted in the original jurisdiction of the Tribunal: see s 53(2) of the Act.
[2] [2017] QCAT 048.
[3] (1988) 166 CLR 69.
[4] [2017] QCAT 48 (citations omitted).
[5] See also s 55(1)(b) of the Act.
[6] See Queensland College of Teachers v SGS [2017] QCAT 383 [38].
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).