Queensland College of Teachers v BZV
[2018] QCAT 460
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- Queensland College of Teachers v BZV[2018] QCAT 460
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Queensland College of Teachers v BZV[2018] QCAT 460
Queensland College of Teachers v BZV[2018] QCAT 460
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v BZV [2018] QCAT 460 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v BZV (respondent) |
APPLICATION NO/S: | OCR172-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 30 July 2018 |
HEARING DATE: | 27 July 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski |
ORDERS: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where suspension of registration of teacher – where teacher alleged to have communicated on social media inappropriately with students – where teacher says she was impersonated on social media – whether teacher poses unacceptable risk of harm to children – whether suspension should end Education (Queensland College of Teachers) Act 2005 (Qld), s 49, s 53, s 55 Queensland College of Teachers v LDW [2017] QCAT 48, considered |
APPEARANCES & REPRESENTATION: | |
Applicant: | E Houston, Acting Principal Legal Officer of the Queensland College of Teachers |
Respondent: | P Mylne, solicitor of Turnbull Mylne |
REASONS FOR DECISION
Introduction
- [1]This case is about whether the suspension of a teacher’s registration by the Queensland College of Teachers (‘the College’) should be continued or ended.
- [2]The teacher is referred to in these reasons as BZV.
- [3]The College suspended the teacher’s registration after receiving information indicating that:
- (a)she had engaged in inappropriate communications on Snapchat and other social media with year 9 students; and
- (b)she told a student that she was ‘dating’ one of the other students.
- (a)
- [4]The teacher denies any wrongdoing. She says that she is not the person who was communicating with the students. She argues that she has been set up by a person or persons pretending to be her.
Background
- [5]The teacher taught the students in 2017, when they were in year 8. The teacher then moved to a different school.
- [6]In March 2018 one of the students told school staff that the teacher had, since leaving the school, been communicating on social media with herself and some other students. The complainant student provided more than 60 pages of screenshots of Snapchat messaging between herself and a person with the teacher’s first name. If that person was the teacher, there was content that was very inappropriate for exchanges with a student. It included, for example, discussion of the physical appearance of the teacher and the student, disparaging comments by the teacher about other students, and indications by the teacher that she favoured certain students. Most significantly, the teacher also discussed ‘dating’ one of the year 9 students.
- [7]On 31 May 2018 the College commenced an investigation. That investigation is ongoing.
- [8]On 22 June 2018 the College suspended the teacher’s registration under section 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’). That section allows the College to suspend a teacher’s registration ‘if the college reasonably believes the teacher poses an unacceptable risk of harm to children’.
- [9]As required under the QCT Act, the College then referred the matter to QCAT.[1] The current proceeding is one required under the QCT Act for QCAT to decide whether to continue or end the suspension.[2] QCAT must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.[3] Conversely, if satisfied that the teacher does not pose an unacceptable risk of harm to children, QCAT must end the suspension.[4]
- [10]In a previous case QCAT noted that the relevant provisions in the QCT Act are protective, being designed to protect children over the interests of the teacher.[5] However, in that case (and some other cases), QCAT also commented that assessing whether a risk is unacceptable involves a balancing exercise between the protection of students, on the one hand, and the potential harm to the teacher of suffering an unjustified suspension, on the other.[6] However, I do not regard harm to the teacher as a relevant consideration. It has no obvious bearing on whether the teacher poses an unacceptable risk of harm to children. Whether the teacher poses such a risk falls to be determined on matters such as the strength of the evidence of past harm to children, the likelihood of similar behaviour in the future, the seriousness of the potential harm, the strength of any evidence in rebuttal, and so on.
- [11]In disciplinary matters, the observations of the High Court in Briginshaw v Briginshaw[7] are often noted. The effect of the Court’s observations is that the strength of evidence required to support a finding of fact is somewhat dependent on the seriousness of the issue to be determined. A finding against a person on a serious matter should not be based on flimsy evidence. How that principle might apply in a case such as the present, however, is not straightforward. Does it apply to the allegations brought by the College against the teacher, even though the College’s investigation will typically be at only an early stage? Does it apply to the onus placed on the teacher to show why he or she does not pose an unacceptable risk?[8] How applicable is the principle when the assessment of future risk will often be more a matter of evaluation than proof?
- [12]In cases such as the present, it is often difficult or impossible to make firm findings about a teacher’s past behaviour. The investigation of the College will be at a relatively early stage. There is, therefore, usually only limited evidence that might confirm or contradict the initial suspicions of the College. Relevant further enquiries – such as the questioning of other students and the forensic examination of phones – will typically be yet to occur.
The evidence and submissions
- [13]The Snapchat screenshots provided by the complainant student paint a disturbing picture. If it was the teacher who was the person communicating with the student, I would have no hesitation in continuing the suspension. The communications suggest a teacher with no regard for professional boundaries, including a willingness to engage in some sort of intimate relationship with a year 9 student.
- [14]The Snapchat screenshots do not show the phone numbers of the participants. The teacher in her affidavit for the QCAT proceeding has pointed out that much of the content is not what one would expect from a teacher, because of the type of expressions used, spelling mistakes, and so on. However, as the College points out, it could simply be a case of a teacher adopting the communication style of students in order to ‘relate to them on their level’.[9] It is also relevant to note that there is one passage, where an acronym for a persuasive writing method is explained, that does seem very much like it was written by a teacher. The teacher in her oral evidence at the hearing confirmed that she had taught that method to her year 8 students in 2017.
- [15]Of course that does not exclude the possibility that the passage was written by someone other than the teacher.
- [16]The College acknowledges that the teacher has been very cooperative in the investigation. She has supplied her two mobile phones to the College so that they can be forensically examined. That examination has not yet occurred.
- [17]The teacher’s evidence is that she had only one Snapchat account. She says that the way her Snapchat user name is spelt is significantly different to the way the complainant student spelt it when interviewed by the College. The implication is that the student would not have located the teacher on Snapchat using the spelling that the student says she used.
- [18]The teacher has provided what she says is a true printout, from Snapchat, of her list of Snapchat friends, past and present. Significantly, it does not include the complainant student’s user name.
- [19]The teacher also says that in 2018 she has been teaching at a school different to the one which the person communicating on Snapchat with the complainant child identified as the teacher’s current school.
- [20]There is an affidavit from the teacher’s brother which attaches a large volume of social media posts by several students. If these are genuine, they indicate that one of the year 9 students in question has a strong sexual interest in the teacher and has made repeated efforts to engage with her on social media in, at least, June and July of 2018. While this evidence provides some context, I do not see it as shedding much light on whether the teacher had the Snapchat communications up to March 2018 with the complainant student.
- [21]In light of the evidence produced by the teacher about her Snapchat account, and her cooperative approach in the investigation, the College submits that there is reasonable doubt about whether the teacher was the person who had the Snapchat communications with the complainant student on which the suspension decision was based. The College says that if on 22 June 2018 it had been in possession of all of the information now available to it, it would not have suspended the teacher’s registration. The College submits that it would therefore be appropriate for QCAT to end the suspension.
- [22]The teacher, likewise, argues that the suspension should be ended.
Does the teacher pose an unacceptable risk of harm to children?
- [23]In the limited time available, the teacher has provided a substantial amount of rebuttal evidence.
- [24]The matter of whether the teacher communicated with the complainant student on Snapchat is not free of doubt. As I have mentioned, one passage in particular does sound like it was written by a teacher, and it discusses a method that was taught by the teacher in question. Further investigations by the College might confirm the College’s initial suspicions. There might, for example, be corroborating evidence from some of the other students. Perhaps some additional Snapchat account held by the teacher might be unearthed.
- [25]However, that remains to be seen. It is also important to bear in mind that the QCT Act does not require that there is no risk. Rather, it speaks of an unacceptable risk.
- [26]On balance, I am persuaded by the submissions of the parties on this central issue. The teacher has produced evidence which casts significant doubt on the reliability of the complaint. There is, therefore, significant doubt surrounding whether the teacher engaged in the conduct on which the suspension was based. Even if the teacher did engage in that conduct, it is highly unlikely in my view that she would risk jeopardising her career by further similar conduct, especially while under investigation by the College.
- [27]In these circumstances, I am satisfied that the teacher does not pose an unacceptable risk of harm to children.
- [28]Accordingly, the suspension must be ended.
Non-publication order
- [29]The parties have applied for non-publication orders. The College seeks one to protect the children from publicity. The teacher seeks one to minimise damage to her reputation and career. The teacher also argues that the school should not be identified, essentially because identification would ignite interest amongst the school community and lead to the teacher and the students being identified within that community.
- [30]A non-publication order can be made only in limited circumstances under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). These circumstances include where an order is necessary in the interests of justice.
- [31]It is probably uncontentious that school children caught up in a proceeding, whether or not due to some wrongdoing on their part, should not be subjected to the glare of publicity. I also accept that identifying the school would generate speculation in the school community and probably lead to identification of the teacher and the students. In this case I also consider it would be unfair to the teacher to have her identity publicised. The College says it would not have suspended her registration if it had known all of the currently available information. The teacher has been accused of serious wrongdoing but the veracity of the complaint is, at this stage at least, doubtful.
- [32]I am therefore satisfied that the interests of justice require a non-publication order in respect of the students, school and teacher.
Conclusion
- [33]The appropriate course is to end the suspension of the teacher’s registration. This will enable her to resume work as a teacher while she is being investigated.
Footnotes
[1]Education (Queensland College of Teachers) Act 2005 (Qld), s 50(5).
[2]Ibid s 53(1).
[3]Ibid s 53(2)(b).
[4]Ibid s 55(2)(b).
[5]Queensland College of Teachers v LDW [2017] QCAT 48, [17].
[6]Ibid [15].
[7](1938) 60 CLR 336; [1938] HCA 34.
[8]Education (Queensland College of Teachers) Act 2005 (Qld), s 54(1)(b).
[9]Queensland College of Teachers’ written submissions, dated 24 July 2018, [42].