Queensland College of Teachers v Teacher JNP
[2022] QCAT 419
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- Queensland College of Teachers v Teacher JNP[2022] QCAT 419
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Queensland College of Teachers v Teacher JNP[2022] QCAT 419
Queensland College of Teachers v Teacher JNP[2022] QCAT 419
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher JNP [2022] QCAT 419 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER JNP (respondent) |
APPLICATION NO/S: | OCR297-22 |
MATTER TYPE: | Occupational regulation matters |
DECISION DATE: | 21 December 2022 |
REASONS GIVEN: | 21 December 2022 |
HEARING DATE: | On the papers |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | EDUCATION – EDUCATORS – REGISTRATION – 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, s 53, s 54, 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 EDC [2019] QCAT 144 Queensland College of Teachers v LDW [2017] QCAT 48 |
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 JNP has been registered in Queensland as a teacher since 1999. On 1 November 2022, the Queensland College of Teachers (‘the College’) suspended his registration pursuant to s 49 of the 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 JNP posed an unacceptable risk of harm to children. The reasons given by the College may be summarised as follows: Teacher JNP met the complainant, who was then 15 years old and in grade 10, online through the ‘sugar daddies’ meet website. Teacher JNP engaged in inappropriate communications with the complainant, provided her with money, gifts, alcohol and cocaine and engaged in sexual intercourse with her. The material filed by the College includes the notice of suspension, emails from a police officer outlining the allegations, photographs of the complainant taken approximately one month and five months respectively after the time of the alleged incident, and police body worn camera footage of a home visit with Teacher JNP.
- [7]The police officer’s summary of the complainant’s statement includes:
- (a)The website is where there can be a meeting with adult males who are willing to provide money and gifts for sex.
- (b)The complainant created the website account by using a fake date of birth as it was a requirement to be 18 years of age.
- (c)She told Teacher JNP that she was only 15 years old and he said that he was fine with her age.
- (d)Teacher JNP provided his phone number to the complainant.
- (e)When she first met with Teacher JNP she was with a female friend. Teacher JNP drove them to a place where they could buy drugs. Cocaine was purchased and subsequently he drove them to his house.
- (f)Later at his house, after some drinks and cocaine, the complainant and Teacher JNP engaged in sexual intercourse.
- [8]As shown in the police body worn camera footage Teacher JNP states:
- (a)To his knowledge, no one on the website that he has talked to or met has been underage.
- (b)He did not know the girls’ surnames.
- (c)He did not tell the girls his real name.
- (d)The girls were using marijuana at his house, but he didn’t know anything about cocaine.
- (e)(following reference by the police officer to a photograph of the girls sitting in Teacher JNP’s lounge room with a plate that had a white substance on it, which the girls had said was cocaine) ‘I don’t know if it was cocaine’.
- (f)(in the course of the police interaction) he was ‘trying to deal with the fact that these girls were underage’.
- (g)He had dropped off a phone for the complainant at her address.
- [9]As required by s 54(1) of the Act, directions were issued by the Tribunal on 8 November 2022, inviting submissions from Teacher JNP by 9 December 2022 as to why he does not pose an unacceptable risk of harm to children. The directions included the provision of an opportunity for either party to request an oral hearing. No such request was made.
- [10]On 9 December 2022, Teacher JNP filed submissions in which he states that the allegations were unsubstantiated and he strongly refuted them. He added that there is ‘no evidential basis to these allegations’ and no criminal action has been taken. Teacher JNP specifically denies buying or seeking ‘any illicit substances’ for himself or anyone else and having ‘knowingly engaged in any inappropriate and/or over familiar and/or sexualised communications or behaviours with any child or young person’. He submits that there was no evidential basis for the decision and that, on ‘the balance of probability’, he does not pose an unacceptable risk of harm to children. Teacher JNP also outlines his extensive experience as a teacher over a period of 23 years and states that he has always conducted himself with ‘professionalism and respect’ for his occupation. He attached nine character references.
- [11]In response, the College makes a number of submissions:
- (a)The statement made by the complainant to the police is relevant evidence.
- (b)During the police interaction with Teacher JNP, the police refer to a photograph of the girls with a plate that had a white substance on it, which they claim was cocaine, taken in his lounge room. The respondent does not deny that it is cocaine and states: ‘I don’t know if it was cocaine. I don’t know’.
- (c)Teacher JNP admitted to the police that the girls were smoking marijuana in his house.
- (d)The phone number that the complainant says Teacher JNP provided to her is the same number as recorded on his Approved Teacher Information System Register.
- (e)The photographs of the complainant demonstrate that a reasonable person would not believe that the person in the photograph was 18 years or over. Further, Teacher JNP has been a teacher for 23 years and stated to the police that he taught years 8, 10, 11 and 12. It is further submitted that he works every day with students ‘and ought to have some idea of what age students are, based on their physical appearance and their communication skills’.
- (f)While some of the character references comment in general terms on Teacher JNP’s professional boundaries as a teacher, none of them indicate that the person giving the statement ‘had full and frank knowledge’ of the allegations made against him.
- [12]In relation to the question of whether a teacher does not pose an unacceptable risk of harm to children, as noted in Queensland College of Teachers v Teacher EDC (footnotes omitted):[4]
[11] … 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.
…
[14] 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.
- [13]It is noted that suspension is an immediate step that may be taken by the College and if the Tribunal continues the suspension under s 49 of the Act the College must either initiate disciplinary action or authorise an investigation of the matter forming the basis of the suspension. A disciplinary proceeding is the appropriate vehicle for a proper consideration of any disputed facts.
- [14]In any event, given the matters outlined above that are not contentious and, in that context, the untested allegations made, I am not satisfied that Teacher JNP does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher JNP’s registration as a teacher is to continue. Relevant factors here include the evident age of the complainant, as shown in the photographs. Teacher JNP does not say that she appeared to be 18 years or over or not of school age, but rather simply states that the sugar daddy site is for over 18s. The College submits that any conclusion that the complainant must therefore be 18 years ‘is foolish’, there being no guarantee that that will be the case. The risks in that regard are evidenced by the present case. Also, the girls were taken to, and were using marijuana at, Teacher JNP’s house. Further, it was not denied that the white substance shown in a photograph was cocaine.
- [15]I note that under s 55(6) of the Act, Teacher JNP may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that time provide any additional material that may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [16]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]
- [17]The parties agree that it is appropriate to make a non-publication order to protect the identity of the complainant and any relevant school. It is also appropriate to protect the identity of any third party involved in the alleged incident. Further, revelation of the identity of Teacher JNP might lead to the identification of the complainant or relevant third party.
- [18]I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher JNP or any relevant complainant, third party or school, other than to the extent necessary for the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Act. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [19]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 48, [10]-[11].
[3] See also s 55(1)(b) of the Act.
[4] [2019] QCAT 144, [11].
[5] Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).