Queensland College of Teachers v NVS
[2018] QCAT 354
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- Unreported Judgment
- Queensland College of Teachers v NVS[2018] QCAT 354
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Queensland College of Teachers v NVS[2018] QCAT 354
Queensland College of Teachers v NVS[2018] QCAT 354
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v NVS [2018] QCAT 354 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER NVS (respondent) |
APPLICATION NO/S: | OCR236-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 22 October 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
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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(3)(c), s 50(5), s 53, s 54(1)(b), s 55(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 LDW [2017] QCAT 048 |
REPRESENTATION: |
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Applicant: | Self-represented |
Respondent: | Queensland College of Teachers |
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]NVS has been registered in Queensland as a teacher since 2002. On 29 August 2018, the Queensland College of Teachers (‘the College’) 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 College 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 College must give notice of the suspension to the teacher, which notice 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 College 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 NVS as to why he does not pose an unacceptable risk of harm to children. No submissions have been filed.
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]In Queensland College of Teachers v LDW, the Tribunal referred to the decision in M v M,[2] which considered the issue of risk of abuse in the context of parental access to a child, and stated:
The Court in that case formulated the issue as ensuring the protection of a child from ‘unacceptable risk of abuse’. The College 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.[3]
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.[4] 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 NVS’s suspension
- [7]The notice of suspension sets out the College’s reasons for forming the view that NVS poses an unacceptable risk of harm to children. Those reasons may be summarised as follows:
- NVS was involuntarily admitted to hospital as he was displaying psychotic and paranoid behaviour;
- At admission he was under the influence of drugs and alcohol;
- Medical staff noted that he posed a risk to himself and others;
- He has a history of amphetamine abuse;
- He was resistant to any rehabilitation in a hospital setting and he self-discharged from hospital against medical advice;
- NVS gave the hospital medical practitioners the impression that he intended to return to teaching;
- There were prior admissions to health services because of substance abuse; and
- Given the frequency and recency of substance abuse, there is a risk of harm to children in the classroom, particularly given that NVS has recently engaged in casual teaching, which engagements can arise at very short notice.
- [8]The College filed the material on which the decision was based, namely:
- (a)A medical report; and
- (b)Medical records;
- (a)
Conclusion
- [9]On the basis of the medical report and records, and in the absence of any submissions or information from Teacher NVS qualifying the report and records, I am not satisfied that the teacher NVS does not pose an unacceptable risk of harm to children. I therefore order that the suspension of NVS’s registration as a teacher is to continue.
- [10]I note that under s 55(6) of the Act, NVS may apply to QCAT within 28 days of notice of this decision for a review of the 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
- [11]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may do so on the application of a party or on its own initiative.[5] The College has stated that it would not oppose the making of a non-publication order.
- [12]I am satisfied that it would be contrary to the public interest for information to be published which would identify NVS or any relevant school.
- [13]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] (1988) 166 CLR 69.
[3] [2017] QCAT 48 (citations omitted).
[4] See also s 55(1)(b) of the Act.
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).