Queensland College of Teachers v NH
[2018] QCAT 90
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 NH[2018] QCAT 90
- Add to List
Queensland College of Teachers v NH[2018] QCAT 90
Queensland College of Teachers v NH[2018] QCAT 90
CITATION: | Queensland College of Teachers v NH [2018] QCAT 90 |
PARTIES: | Queensland College of Teachers (Applicant) v NH (Respondent) |
APPLICATION NUMBER: | OCR027-18 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Browne |
DELIVERED ON: | 26 March 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 Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 Queensland College of Teachers v LDW [2017] QCAT 048 |
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
- NH has been registered in Queensland as a teacher since 2012. On 29 January 2018, the Queensland College of Teachers (‘QCT’) suspended NH’s registration pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’) on the basis that NH posed an unacceptable risk of harm to children.
- 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 NH does not pose an unacceptable risk of harm to children.[1]
- Directions were made by the Tribunal inviting submissions from NH as to why NH does not pose an unacceptable risk of harm to children. No submissions have been received from NH.
The Legislative Framework
- Once the QCT has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children and suspended the teacher’s registration, the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.[2]
- The standard of proof is the civil standard of balance of probabilities, on what is commonly referred to as the ‘Briginshaw standard’.[3] Accordingly, based on the serious consequences of findings, a teacher would not be successful in discharging the onus on the basis of inexact or flimsy evidence.[4]
What is an unacceptable risk of harm to children?
- The QCT Act does not define the term “unacceptable risk of harm”.
- The meaning of ‘harm’ as defined in the QCT Act is 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.
- The question before the Tribunal in this matter is whether there is an identifiable risk of harm and whether such risk is “unacceptable”.
- In Queensland College of Teachers v LDW, the Tribunal said:
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.[5] [footnotes omitted]
- I adopt the approach taken in Queensland College of Teachers v LDW in determining whether there is an identifiable risk of harm which is ‘unacceptable’. The definition “unacceptable risk of harm” suggests 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’. I find that the determination of any identified risk as unacceptable involves achieving a balance 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 their registration on the other.
- This 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 which prefers the protection of children and the child’s interests over the interests of the registered teacher.[6]
The grounds of NH’s suspension.
- The notice of suspension set out the QCT’s reasons for forming the view that NH posed an unacceptable risk of harm to children. In summary, NH, whilst a registered teacher, engaged in inappropriate, overly-familiar conduct with a former student in 2016 and 2017.
- NH taught the relevant student for a period of time and was also (together with her husband) friends with the relevant student’s parents. NH was directed by the relevant school Principal to cease communicating with the relevant student prior to the relevant student’s graduation from Year 12. Following the relevant student’s Year 12 graduation, NH continued her friendship with the former relevant student through text messages that were inappropriate and overly-familiar. NH socialised with the former relevant student including, amongst other things, staying overnight at the former relevant student’s house and going to dinner with mutual friends. NH’s overly-familiar relationship culminated in the formation of a physical relationship with the former relevant student some 5 months after his graduation from Year 12. NH’s conduct, as alleged, constituted a breach of the professional boundaries that must exist between a teacher and former students.
- The QCT filed relevant material on which the suspension decision was based, including a transcript of interview, photographs (images), text messages and emails containing details of the relationship between NH and the former relevant student.
Does NH pose an unacceptable risk of harm?
- NH has the onus of satisfying the Tribunal that NH does not pose an unacceptable risk of harm. NH has declined the opportunity to make any submission in response.
- The QCT submits that the suspension of NH’s teacher registration should be continued. I accept this submission.
- I am satisfied based on the material currently provided that NH poses an unacceptable risk of harm to children. I therefore order the suspension of NH’s teachers registration continue.
- I note that under s 55(6) of the QCT Act, NH may apply within 28 days of the notice of this decision to QCAT for review of this decision. NH may at that point provide any additional material which may support a submission that NH does not pose an unacceptable risk of harm to children.
Non-publication order
- 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]
- The QCT has indicated that it would not oppose the making of a non-publication order.
- I am satisfied that it would be contrary to the public interest for information to be published which may identify NH, any relevant student or former relevant student, or the relevant school. 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]The 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, at 361-362.
[4]QCT v Teacher CXJ [2016] QCAT 511, at para [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 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).