Exit Distraction Free Reading Mode
- Unreported Judgment
Teacher EDC v Queensland College of Teachers QCAT 144
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Teacher EDC v Queensland College of Teachers  QCAT 144
QUEENSLAND COLLEGE OF TEACHERS
Occupational regulation matters
3 April 2019
28 May 2019
On the papers
Senior Member Aughterson
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), s 50(5), s 53(1), s 53(2), s 53(3), s 54(1)(b), s 55(1), s 76, s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3), 66
Briginshaw v Briginshaw (1938) 60 CLR 336
Department of Agriculture and Rural Affairs v Binnie  VR 836
Enmore v Smoothe  FCAFC 131
M v M (1988) 166 CLR 69
McDonald v Director-General of Social Security (1984) 1 FCR 354
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Queensland College of Teachers v BZV  QCAT 460
Queensland College of Teachers v GXM  QCAT 441
Queensland College of Teachers v LDW  QCAT 048
Queensland College of Teachers v Teacher GXM  QCAT 441
Queensland College of Teachers v DRR  QCAT 671
Beth Houston, Acting Principal Legal Officer, Queensland College of Teachers
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
- The decision in this matter was made on 3 April 2019. These are the reasons for that decision.
- Teacher EDC (‘the teacher’) has been registered in Queensland as a teacher since 2002. On 12 February 2019, the Queensland College of Teachers (‘the College’) suspended the teacher’s registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).
The legislative framework
- 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.
- In accordance with s 50(5) of the Act, the College has referred the continuation of the suspension to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) for review and seeks an order that the suspension continue. By s 53(1) the Tribunal must decide whether to continue the suspension, while s 53(3)(c) requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- As required by the Act, directions were made by the Tribunal on 22 February 2019 inviting submissions as to why the teacher does not pose an unacceptable risk of harm to children. Submissions were received from the teacher on 20 March 2019. Submissions in response were received from the College on 27 March 2019.
- 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.
- By the terms of s 53(3)(b) of the Act, it is not required that the Tribunal be positively satisfied that there is an unacceptable risk of harm. 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 College submits that once the College has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children and has suspended the teacher’s registration, the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose as unacceptable risk of harm to children and, further, that the standard of proof is the civil standard of the balance of probabilities in line with the Briginshaw principle. Reliance is placed on the decision in Queensland College of Teachers v LDW  QCAT 48, at -. While some earlier decisions of the Tribunal have proceeded on the assumption that the common law rules relating to onus of proof apply in the present circumstances that approach has been questioned in at least one case.
- It is noted that suspension is an immediate step that may be taken by the College, prior to possible disciplinary proceedings. In deciding whether to review any suspension pursuant to s 49 of the Act, the Tribunal is directed to the specific question noted above; that is, whether it is satisfied that the teacher does not pose an unacceptable risk of harm to children.
- In my view, it is not productive to approach that question by reference to the concepts of onus and standard of proof. As noted in McDonald v Director-General of Social Security:
The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called "legal" and "evidential" aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.
The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s. 33(l)(c)).
Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.
- In the present case, the suspension is made by the College pursuant to s 49 of the Act, where the College ‘reasonably believes’ the teacher poses an unacceptable risk of harm to children. The Tribunal must decide whether to continue the suspension. Prior to the making of that decision, the teacher is invited by the Tribunal ‘to show’ why the teacher does not pose an unacceptable risk. After considering any submissions made, the Tribunal must decide ‘whether the teacher does not pose an unacceptable risk of harm to children’. The process is not framed as being in the nature of adversarial proceedings in which a party must prove its case. Nor is there either the requirement or opportunity for the Tribunal to make findings of fact as a foundation for establishing whether or not there is an unacceptable risk of harm to children. There is no opportunity because, by s 55(3) of the Act, the decision of the Tribunal must be made no later than 14 days after the earlier of the receipt of the teachers submissions or the ending of the ‘stated time’ after which notice is given to the teacher under s 54 of the Act. Accordingly, any casting of an onus of proof would mean a need to prove the likelihood of a future event in circumstances where, in many cases, the perceived risk is based on allegations that have not been established and may be disputed. On that basis, there is a question of how a teacher is to prove there is no risk where the allegations are denied and there is no opportunity for the Tribunal to test the evidence and to make findings of fact in relation to those allegations. If a matter is not susceptible of proof, it is difficult to frame the question in terms of onus of proof.
- The Tribunal must reach a state of satisfaction, one way or the other, on the material before it and regardless of whether the Teacher responds to the invitation made pursuant to s 54 of the Act. It remains that it is unlikely that the Tribunal will be satisfied that there is no unacceptable risk of harm where credible evidence as to risk is produced by the College and there is no response from the teacher.
- With regard to the standard of proof, in my view the civil law standard of proof is of little or no assistance in making an assessment as to future risk in the present context. Though arising in a different context, the decision in Malec v JC Hutton Pty Ltd is instructive. In that case, in relation to the assessment of damages, it was noted by Brennan and Dawson JJ that past events are a matter of history and should be proved on the balance of possibilities, whereas ascertaining future lost earning capacity involves an evaluation of possibilities and to make a finding on the balance of probabilities is to “misconceive the process of evaluation”. Deane, Gaudron and McHugh JJ observed that a “common law court determines on the balance of probabilities whether an event has occurred”, and added:
But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But question as to the future or hypothetical effect of physical injury or degradation are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages.
- As noted, for present purposes the question is whether the Tribunal is satisfied that the teacher does not pose an unacceptable risk of harm to children. In addressing that question, it is unclear as to where any reliance on the civil law standard of proof would lead. If proof is to go to the likelihood of the risk coming to fruition, it would mean that suspension is to be lifted whenever it can be shown that it is more probable than not that the teacher does not pose such a risk. However, to the extent that such risks can be quantified and depending in particular on the nature of the risk, there could well be an ‘unacceptable risk’ within the meaning of the Act even where the probability of it occurring is less, or even significantly less, than an even chance. In any event, in my view, it is not helpful to frame the question by reference to the civil law standard of balance of probabilities. Rather, the required satisfaction should involve an evaluative judgment, made in the context of the objectives of the Act, and considerations such as the magnitude of the risk of harm. It should involve a judgment as to whether there is a real or substantial risk, rather than one that is fanciful or remote.
- In M v M, in the context of family law proceedings involving the issue of a father’s access to his child, the High Court held that an ‘unacceptable risk’ to the child could arise where the court was not satisfied one way or the other as to whether, relevant to that case, the allegations of past abuse had been made out. That is because the primary question is one of whether the possibility of abuse gave rise to an ‘unacceptable risk’ should access be allowed, rather than being a question of whether conclusive findings could be made in relation to the underlying factual issues. In any event, where there is uncertainty as in M v M, by the terms of 53(3)(b) of the Act it is clear that the Tribunal must continue the suspension. That is because it will not have been positively satisfied that the teacher does not pose an unacceptable risk.
- It is noted that where the Tribunal continues the suspension, the College will either authorise an investigation or refer a practice and conduct matter to a practice and conduct body on the question of whether a ground for disciplinary action against the teacher is established.
- The Notice of Suspension sets out the College’s reasons for forming the view that the teacher posed an unacceptable risk of harm to children. In summary, the reasons were that the teacher engaged in inappropriate Facebook communications with two recently graduated students from the teacher’s then school and that the teacher reengaged or attempted to reengage in a Facebook conversation with one of the students after the initial communications had ceased. It is alleged that the content of the conversations included references to drug and alcohol use, discussions about the teacher’s colleagues at the school, discussions about the teacher’s sexuality and that of one of the students, telling one student about his sexual preferences, asking a student to send personal photos, sending personal photos to one of the students, inviting one of the students to his residence, and questioning one of the students about whether other students were homosexual.
- The College filed material on which the decision was based, namely:
- Notices issued under s 76 and 77 of the Act;
- A transcript of facebook messages between the teacher and one of the students;
- Screenshots and photographs provided by one of the students.
- A statement of the teacher dated 19 March 2019 was filed in the Tribunal, submitting that the teacher did not pose an unacceptable risk of harm to children. The College filed submissions in response.
- The teacher refers to being “burnt out”, unsupported and isolated at his work and states that this had a detrimental impact on his behaviour, characterised by, among other things, frequently taking mental health days off work, not meeting deadlines, being increasingly combative with members of the school executive, and increased off-campus alcohol consumption. Late in the year in which the relevant students were in year 12, a close friend died and the teacher states that he then hit a low point in his professional and personal life. He states that the Facebook friend requests and subsequent communications with the two students met his need for attention. He also states that he was frequently under the influence of alcohol when making those communications. He states that he would not have met up with either student.
- The teacher further states that he accepts full responsibility for his actions, that his actions breached the Professional Standards for Teachers, that he accepted that it was his responsibility to manage interactions with past and present students, and that he felt embarrassed and ashamed.
- In mitigation, he states that the students were graduates, he did not meet them in person after they graduated, he had not taught the students since year 10, subsequent interactions at school were professional in nature, he had not had any personal relationship with a student, there had not been any other allegation of unprofessional behaviour in his 16 years as a teacher, and he does not have a criminal record. He further states that he has since sought medical and psychological assistance.
- While the teacher does not deny the allegations made, his statement focuses on his background as a teacher and on the personal and professional factors that he suggests influenced the behaviour in question. While he makes reference to now seeking medical and psychological assistance, there is no indication as to whether the personal factors that might have led to the behaviour in question have since changed. He has not provided a report from his psychologist. He simply states: “I firmly assert that I am not an unacceptable threat to children”. He does not explain why that is so.
- In those circumstances, and in light of the considerations outlined above, I am not satisfied that the teacher does not pose an unacceptable risk of harm to children. I therefore order that the suspension of the teacher’s registration as a teacher is to continue.
- 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 to be identified. The Tribunal may do so on the application of a party or on its own initiative. While the teacher did not make any submissions in relation to a non-publication order, the College sought a non-publication order in relation to the identity of the relevant students and the relevant school and stated that it does not oppose such an order being made in relation to the teacher.
- I am satisfied that it would be contrary to the public interest for information to be published which would identify the teacher, the relevant children or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
The Act, s 50(3) (c). The ‘review’ is conducted in the original jurisdiction of the Tribunal: see s 53(2) of the Act.
See also: the Act s 55(1) (b).
Submissions of the Applicant at . As to the Briginshaw principle see: Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.
See Queensland College of Teachers v BZV  QCAT 460 at .
(1984) 1 FCR 354 at 356.
For the equivalent provision, see Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3).
The Act s 53(1).
The Act s 54(1) (b).
(1990) 169 CLR 638.
Ibid, 639-640 (Brennan and Dawson JJ).
Ibid, 643 (Deane, Gaudron and McHugh JJ).
An assessment on the balance of probabilities is not ameliorated by the Briginshaw principle. As made clear in that case, while the gravity of the allegation will affect the cogency of the evidence required, the standard of proof does not change; see Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363 (Dixon J). See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
 In relation to the objectives of the Act, as noted in Queensland College of Teachers v LDW  QCAT 048 at -, the evident purpose of s 49 of the Act is to ensure that children are protected; prioritising the protection of children over the interests of the registered teacher. Further, in Queensland College of Teachers v GXM  QCAT 441 at , by reference to s 3(1) of the Act, it was stated: “It is useful to observe that the objects of the QCT Act include upholding standards in the teaching profession; maintaining public confidence in the teaching profession; and the protection of the public, which clearly includes the protection of students”.
 See M v M (1988) 166 CLR 69, 76-78; Queensland College of Teachers v LDW  QCAT 048 -.
 Those terms have been used in differing contexts, including in family law proceedings: see, for example, Enmore v Smoothe  FCAFC 131. They do not suggest a chance that is more likely than not to occur nor where “between nil and certainty it should be placed”: see Department of Agriculture and Rural Affairs v Binnie  VR 836, 842. See also Queensland College of Teachers v LDW  QCAT 048 at -.
 (1988) 166 CLR 69.
 Ibid, 74-77. See also Enmore v Smoothe  FCAFC 131 at -, where a distinction was drawn between the making of a positive finding of fact as opposed to a finding of unacceptable risk.
 The Act ss 50(3) (d) and 97.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(3).
- Published Case Name:
Teacher EDC v Queensland College of Teachers
- Shortened Case Name:
Teacher EDC v Queensland College of Teachers
 QCAT 144
Senior Member Aughterson
28 May 2019