Queensland College of Teachers v Teacher QLN
[2021] QCAT 451
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- Unreported Judgment
- Queensland College of Teachers v Teacher QLN[2021] QCAT 451
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Queensland College of Teachers v Teacher QLN[2021] QCAT 451
Queensland College of Teachers v Teacher QLN[2021] QCAT 451
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher QLN [2021] QCAT 451 |
PARTIES: | queensland college of teachers (applicant) v TEACHER QLN (respondent) |
APPLICATION NO/S: | OCR130-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 18 June 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration on 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 – whether non-publication order should be made Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 49, s 50, s 53, s 55, s 285, s 285AA, s 285B, s 287 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Queensland College of Teachers v Teacher EDC [2019] QCAT 144 Queensland College of Teachers v LDW [2017] QCAT 048 |
APPEARANCES & REPRESENTATION: | 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]Teacher QLN is registered in Queensland as a teacher, having first been granted registration in 2007. On 4 May 2021, the Queensland College of Teachers (‘the College’) suspended her registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).
- [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]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]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’.
- [5]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.
- [6]The notice of suspension sets out the College’s reasons for forming the view that Teacher QLN posed an unacceptable risk of harm to children. The College’s reasons may be summarised as follows: email correspondence said to have been sent by Teacher QLN to the New Zealand Teaching Council ‘NZTC’) in 2020 and 2021, in which country Teacher QLN had previously taught, which was of ‘a threatening and menacing nature’; also a video said to have been sent by Teacher QLN to the NZTC in April 2021 (on three occasions), which ‘is extremely threatening and highly concerning’ (including showing the pointing of a gun). In the reasons, reference is also made to medical treatment which, it is said, Teacher QLN is currently undertaking. There is also reference to an ‘episode’ which occurred some years ago in the context of a family bereavement.
- [7]As required by the Act, directions were made by the Tribunal on 20 May 2021, inviting submissions from Teacher QLN as to why she does not pose an unacceptable risk of harm to children. Teacher QLN sent an email to the Tribunal on 29 May 2021, which included a request for time to be allowed to file further material. On 5 June 2021, Teacher QLN sent four medical reports to the Tribunal and, on 14 June 2021, a further medical report. Further material was sent by Teacher QLN to the Tribunal on 18 June 2018, which largely concerned communications re very low rates of payment said to have been received while a teacher in New Zealand and a complaint to the New Zealand Human Rights Commission. The College filed submissions on 17 June 2021.
- [8]The submissions and material filed by Teacher QLN focus on her medical condition and her complaint in relation to pay issues while a teacher in New Zealand. Separate 2017 medical reports refer to treatment for Post-Traumatic Stress Disorder and Delusional Disorder, but note her recovery and are supportive of her continuing to work as a teacher. A May 2021 letter from a psychologist refers to a present investigation by the College and states that the grounds on which the investigation relates ‘appear to be regarding non-related and non-specific information … and thus do not have any relevance in (Teacher QLN’s) ability to work with children’. The ‘non-related and non-specific information’ is said to be Teacher QLN’s and her mother’s physical health. A June 2021 medical report filed on 14 June 2021 simply refers to the stable medical condition of Teacher QLN’s mother and notes that it places no strain on Teacher QLN. No reference is made in any of the medical reports to the accusations in relation to the communications and video said to have been sent by Teacher QLN to NZTC. Also, no reference is made to those matters in the communications and material filed by Teacher QLN in the Tribunal.
- [9]The College submits that Teacher QLN incorrectly suggest that the suspension was based on her current physical health and medical conditions and/or treatment, whereas the decision was based on her conduct in sending ‘threatening and menacing correspondence and a video to the NZTC’. It is also notes that the May 2021 psychologist report gives no indication that the writer was aware of the basis for the suspension of Teacher QLNs teacher registration. It is submitted that whether or not the gun was real or imitation is irrelevant; the mere sending of such a video and the other communications indicate ‘that the respondent’s intent was to induce fear, and cause alarm to the recipient’. It is also submitted that the conduct ‘raises serious concerns regarding the respondent’s capacity to exercise sound judgment and decision-making and further, provide as safe environment for children’. It is further submitted that Teacher QLN’s submissions do not address the College’s concerns.
- [10]While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[4] it is not productive to approach the question of whether there is the requisite satisfaction that the teacher does not pose an unacceptable risk of harm to children by reference to the concepts of onus and standard of proof, it remains that if a party asserts that he or she does not pose an unacceptable risk it behoves that party to point to some evidence or material that would allow the Tribunal to be so satisfied.
- [11]As noted by the College, none of the material filed by Teacher QLN addresses the concerns underlying the decision by the college to suspend her registration. Given the nature of the communications said to have been made to NZTC and the content of the video, none of which has been denied, I am not satisfied that Teacher QLN does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher QLN’s registration as a teacher is to continue.
- [12]I note that under s 55(6) of the Act, Teacher QLN may apply within 28 days of the notice of this decision to QCAT for review of this decision. She may at that point provide any additional material that may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [13]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.[5] The College submits that in circumstances where the issues are yet to be determined and contain confidential medical information relating to Teacher QLN and her mother, it would be appropriate to make a non-publication order.
- [14]I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher QLN or any relevant third party, other than to the extent necessary for the College to meet its statutory obligations under the Act. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [15]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
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][2017] QCAT 048 [10]-[11].
[3]See also s 55(1)(b) of the Act.
[4][2019] QCAT 144, [10]-[15].
[5]Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).