Queensland College of Teachers v Teacher WND
[2018] QCAT 7
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Queensland College of Teachers v Teacher WND[2018] QCAT 7
- Add to List
Queensland College of Teachers v Teacher WND[2018] QCAT 7
Queensland College of Teachers v Teacher WND[2018] QCAT 7
CITATION: | Queensland College of Teachers v Teacher WND [2018] QCAT 7 |
PARTIES: | Queensland College of Teachers (Applicant) v Teacher WND (Respondent) |
APPLICATION NUMBER: | OCR267-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
DELIVERED ON: | 11 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
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 |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]WND has been registered in Queensland as a teacher since 1993. On 23 November 2017, the Queensland College of Teachers (‘QCT’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’) on the basis that he posed an unacceptable risk of harm to children.
- [2]In accordance with s 50(5) of the Act, the QCT has referred the continuation of the suspension to QCAT for review and seeks an order that the suspension continue. The Tribunal must decide to continue the suspension unless it is satisfied that WND does not pose an unacceptable risk of harm to children.[1]
- [3]As required by the QCT Act, directions were made by the Tribunal inviting submissions from WND as to why he does not pose an unacceptable risk of harm to children. WND has indicated through his legal representative that he makes no submissions at this time.
The Legislative Framework
- [4]The QCT may suspend a teacher’s registration if it has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children. The teacher then bears the onus of proof to satisfy the Tribunal that he or she does not pose an unacceptable risk of harm to children.[2]
- [5]
What is an unacceptable risk of harm to children?
- [6]The QCT Act does not define the term “unacceptable risk of harm”.
- [7]
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 Act and the purpose of the 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. [footnotes omitted]
- [8]The question is whether there is an identifiable risk of harm and whether such risk is “unacceptable”.
- [9]Harm is defined in the QCT Act 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)HarmIt is immaterial how the harm is caused.
- (3)HarmHarm can be caused by—
- (a)physical, psychological or emotional abuse or neglect; or
- (b)sexual abuse or exploitation.
- (4)HarmHarm can be caused by—
- (a)a single act, omission or circumstance; or
- (b)a series or combination of acts, omissions or circumstances.
- [10]I am satisfied that the identified risk of harm must be significant, rather than minor, and the degree of risk of the harm occurring must be unacceptable. The mere possibility of harm would arguably not be ‘unacceptable’.
- [11]The determination must be made in the context of the purpose of s 49, which is to ensure that children are protected by removing the risk that a teacher may harm, or be in a position to harm, children. It is a protective provision preferring the protection of childrens’ interests over the interests of a registered teacher.[6]
The grounds of Teacher WND’s suspension.
- [12]The notice of suspension set out the QCT’s reasons for its belief that WND poses an unacceptable risk of harm to children. QCT’s reasons may be summarised as follows:
- WND was registered as a teacher from 31 May 1993;
- He was employed as a relief teacher at a specified school on 3 November 2017, when allegations were made by four students (including but not limited to):
- i)Touching the bottom/buttock(s) of a specified student;
- ii)Grabbing/holding the student’s arm and telling the relevant student not to tell anyone.
- i)
- Arising out of the allegations, WND was charged with two counts of common assault.
- [13]The QCT formed the belief that WND failed to maintain appropriate professional boundaries within the teacher-student relationship by engaging in physical contact that was inappropriate and not reasonable in the circumstances.
- [14]The QCT filed material on which the decision was based, including:
- notification of the allegations from the Department of Education and Training dated 14 November 2017,[7] as well as, written notes from four students about the events on 3 November 2017; and
- Notice from WND dated 16 November 2017[8] and Notice from the Queensland Police Service dated 21 November 2017 about WND’s criminal history changes.[9]
Does Teacher WND pose an unacceptable risk of harm?
- [15]WND bears the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm. He has declined to make any submissions in response to the Tribunal’s directions.
- [16]The QCT submits that in the absence of submissions, WND has not discharged the onus of proof to satisfy the Tribunal that he does not pose an unacceptable risk of harm to children and that the suspension should continue pursuant to section 53(3) of the Act.
- [17]I am not satisfied on the material currently provided that WND does not pose an unacceptable risk of harm to children. Therefore, I must continue the suspension of WND’s teachers registration.
- [18]I make orders accordingly.
- [19]I note that under s 55(6) of the Act, WND may apply, within 28 days of the notice of this decision, to QCAT for (further) review of this decision. If he does so, he may provide any additional material relied upon to support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [20]Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal can make an order prohibiting the publication of evidence and 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.[10]
- [21]WND has asked the Tribunal to consider making a non-publication order with respect to these proceedings. The QCT does not oppose the application. It submits that pursuant to sections 66(1) and (2) of the Queensland Civil and Administrative Act 2009 (Qld) that a non-publication order is appropriate and in the interests of justice as:
- a)The publication of the names of WND and the school may lead to the identification of the relevant child witnesses; and
- b)The criminal offences are currently listed for committal mention in the Magistrates Court.
- a)
- [22]I am satisfied that it would be contrary to the public interest for information to be published which would identify WND, any of the relevant students or former students, or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [23]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1] QCT Act, s 53.
[2] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.
[4] QCT v Teacher CXJ [2016] QCAT 511, [27].
[5] Queensland College of Teachers v LDW [2017] QCAT 048, [10] - [11].
[6] Queensland College of Teachers v LDW [2017] QCAT 048, [16-17].
[7] Section 76 of the Act requires the employing authority to, as soon as is practical, give notice to the QCT that is has started to deal with an allegation of harm caused or likely to be caused to a child because of the conduct of a relevant teacher. The notice must include, inter alia, the particulars of the allegation.
[8] Section 68 of the Act requires a teacher to immediately disclose to the QCT any change in their police information.
[9] Section 75 of the Act requires the Commissioner of police to give notice to the QCT if police information about a teacher’s criminal history changes. The notice must include, inter alia, the particulars of the offence/s with which/of which a person has been charged or convicted.
[10] Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).