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Queensland College of Teachers v Teacher ELD[2019] QCAT 353

Queensland College of Teachers v Teacher ELD[2019] QCAT 353

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher ELD [2019] QCAT 353

PARTIES:

Queensland College of Teachers

(applicant)

v

Teacher ELD

(respondent)

APPLICATION NO/S:

OCR307-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 November 2019

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. The suspension of Teacher ELD as a teacher is continued.
  1. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify Teacher ELD, the relevant children or the relevant school, other than to the extent necessary to enable the College to meet its statutory obligations; in particular, those arising under sections 55A, 285AA(5) and 285AA(6) of the Education (Queensland College of Teachers) Act 2005 (Qld).

CATCHWORDS:

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – whether suspension should continue – whether Tribunal ought to grant an exception to a non-publication order

Education (Queensland College of Teachers) Act 2005 (Qld) s 7, s 49, s 50, s 53, s 54, s 55, s 55A, s 97, s 98, s 164, s 165, s 166, s 285AA

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Queensland College of Teachers v LDW [2017] QCAT 048 [10]-[11].

REPRESENTATION:

 

Applicant:

Sharon Munday, Senior Legal Officer, Queensland College of Teachers

Respondent:

A.E. Knott, Holding Redlich

APPEARANCES:

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. [1]
    Teacher ELD has been registered in Queensland as a teacher since 1987. On 13 September 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’).
  2. [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. [3]
    In accordance with s 50(5) of the Act, the College has referred the continuation of the suspension to QCAT 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) requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
  4. [4]
    As required by the Act, directions were made by the Tribunal on 23 September 2019 inviting submissions as to why Teacher ELD did not pose an unacceptable risk of harm to children. A response was received on 28 October 2019, declining the invitation to make submissions but noting that no admissions were made. Submissions were filed by the College on 4 November 2019.
  5. [5]
    While the Act does not define the term ‘unacceptable risk of harm’, by s 7 of the Act ‘harm’ to a child is ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’. As to ‘unacceptable risk’, see Queensland College of Teachers v LDW:[2]  “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”.
  6. [6]
    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.[3] 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.
  7. [7]
    The notice of suspension set out the College’s reasons for forming the view that Teacher ELD posed an unacceptable risk of harm to children; that is, that while employed as a teacher, teacher ELD engaged in inappropriate and unprofessional conduct towards specified students, including through inappropriate physical contact, the use of offensive language, behaving in an erratic and/or aggressive and/or intimidating manner, and refusing to allow students to leave the class room.
  8. [8]
    On the material before me, I am not satisfied that Teacher ELD does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher ELD’s registration as a teacher is to continue.
  9. [9]
    I note that under s 55(6) of the Act, Teacher ELD may apply within 28 days of the notice of this decision to QCAT for review of this 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

  1. [10]
    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.[4]
  2. [11]
    The respondent has made no submissions in relation to non-publication, while the College submits ‘it is not in the interests of justice for children to be identifiable to the public’. Identification of the school or teacher may have the effect of identifying the relevant children. I am satisfied that it would be contrary to the public interest for information to be published that would identify the relevant children, Teacher ELD or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
  3. [12]
    The College submits that exceptions should be made to any non-publication order to allow the College to provide a copy of the decision and reasons for the decision to the following: any relevant body conducting an investigation or disciplinary proceedings relating to the matter (see s 55A of the Act), the Chief Executive of the Department of Education, other teacher regulatory authorities, any employing authority for a school, any principal of a school who was provided with a copy of the notice of suspension under s 50(4) of the Act, the Minister for Education, the Chief Executive of Employment Screening, and ‘any other entity relevant to the teacher’s practice of the teaching profession’.
  4. [13]
    By s 55A of the Act, where the suspension is continued, the College ‘must’ as soon as practicable either refer the matter for practice and conduct proceedings under s 97 or authorise an investigation of the matter forming the basis of the suspension under s 98. Also, by subsections 285AA(4) and (5) of the Act, following notice of suspension to the Chief Executive Employment Screening, the College must by notice, where requested by the Chief Executive, provide specified information to that Office. However, even then, subsection 285AA(6) provides that the notice must not contain information that identifies or is likely to identify a relevant child.
  5. [14]
    It is not apparent why it is necessary to provide information that may identify a relevant person or school to the other persons referred to in paragraph [12] above.
  6. [15]
    The College refers to s 164 and 165 of the Act, which provides for notification to specified persons, including those listed at paragraphs [12] above. However, that applies only after disciplinary proceedings have been undertaken and a decision has been made by the Tribunal against the teacher. While, by s 166, following disciplinary proceedings and a finding against the teacher there may be broader publication of the teacher’s identity, s 166(2) provides that the College must not publish any information that identifies or is likely to identify a witness or complainant. By s 55A of the Act, disciplinary proceedings may be a next step in the present matter. However, at this stage there have been no adverse findings in relation to the teacher. The suspension has been continued on the basis of the material presently before the Tribunal and on the ground that the Tribunal is not satisfied that that the teacher does not pose an unacceptable risk of harm to children.
  7. [16]
    Nevertheless, any non-publication order should be consistent with enabling the College to meet its statutory duties in circumstances where the suspension has been continued.
  8. [17]
    I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of information that may identify Teacher ELD, the relevant children and the relevant school, other than to the extent necessary to enable the College to meet its statutory obligations; in particular, those arising under sections 55A, 285AA(5) and 285AA(6) of the Act.

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]Queensland College of Teachers v LDW [2017] QCAT 048 [10]-[11].

[3]See also s 55(1)(b) of the Act.

[4]Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher ELD

  • Shortened Case Name:

    Queensland College of Teachers v Teacher ELD

  • MNC:

    [2019] QCAT 353

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    08 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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