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  4. Queensland College of Teachers v Teacher NSP - [2023] QCAT 105

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Queensland College of Teachers v Teacher NSP[2023] QCAT 105

Queensland College of Teachers v Teacher NSP[2023] QCAT 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher NSP [2023] QCAT 105

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

TEACHER NSP

(respondent)

APPLICATION NO/S:

OCR026-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 March 2023

HEARING DATE:

On the papers

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. The suspension of the registration of NSP as a teacher is continued.
  2. 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 NSP, any relevant child, or any relevant school, other than to the extent necessary to enable the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).

CATCHWORDS:

EDUCATION – EDUCATORS – REGISTRATION – 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, 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. [1]
    Teacher NSP has been registered in Queensland as a teacher since 2016. On 24 January 2023, the Queensland College of Teachers (‘the College’) suspended her registration pursuant to s 49 of the 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]
    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. [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. [6]
    The notice of suspension sets out the College’s reasons for forming the view that Teacher NSP posed an unacceptable risk of harm to children. Briefly, the College’s reasons may be summarised as follows: a domestic violence order was made in relation to Teacher NSP in April 2018, requiring her to be of good behaviour towards named persons; later that year, she was convicted for contravention of that order in circumstances which involved the commission of an act of physical violence against her then partner, in the presence of her children; also, as a consequence of that contravention she was disciplined by the College; in December 2022, Teacher NSP allegedly physically assaulted one of her children, aged 13; she was subsequently arrested and charged with one count of contravention of domestic violence order (aggravated offence).
  7. [7]
    As required by s 54(1) of the Act, directions were issued by the Tribunal on 1 February 2023, inviting submissions from Teacher NSP by 8 March 2023 as to why she 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.
  8. [8]
    On 6 March 2023, through her legal representative, Teacher NSP filed submissions in which it is submitted that the 2018 and December 2022 events ‘do not constitute a pattern of behaviour that means she represents an unacceptable risk of harm to children’.
  9. [9]
    While the original police report included the allegation that Teacher NSP physically assaulted the victim child ‘by punching her on multiple parts of her body and grabbing her and throwing her around the bedroom’, Teacher NSP’s submissions refer to an amended statement of facts, agreed with the prosecution, which include that Teacher NSP pushed the victim child and ‘continued to physically assault (the victim child) by punching her once’. The reference to ‘punching her on multiple parts of her body and grabbing her and throwing her around the bedroom’ is crossed out.
  10. [10]
    The submissions also include letters from the victim child and her sister (aged 16), who was present at the time in question. With reference to those letters it is submitted:

Both daughter’s letters (attached) agree that (victim child) pushed her mother first and while the Respondent agrees that this does not exonerate for what followed, it is a relevant matter for consideration by the tribunal.

The Respondent also notes that the incident involved her own children and took place in her private home. There is no connection to her work as a teacher and no evidence, or allegation, that (victim child) was injured during the encounter.

  1. [11]
    It is further submitted that Teacher NSP had been a registered teacher in New Zealand since 2001, before being registered in Queensland in 2015, and that she has never faced allegations of mistreating her students in any way. Further, it is submitted that there is no evidence that she has represented or does represent a danger to students in her care and that this ‘is compelling evidence that she is not an unacceptable risk of harm to the students she teaches’.
  2. [12]
    Also attached to the submissions were case notes from Teacher NSP’s psychologist, where it is noted: ‘(Teacher NSP) I do not for one moment believe that you are a danger to children. What I do suspect is that your acute distress disorder has made it difficult on occasions to manage your emotions. That is why the medication will help’. However, it is not evident whether or not the psychologist was aware of the 2018 incident and the prior disciplinary action taken against Teacher NSP, or of the exact nature of the facts underlying the 2022 charge, including the agreed facts. The psychologist’s notes include the following:

(the victim child) tried to intervene by blocking your way into the room of her sister. It is true that you pushed her aside. The claims of assault and throwing around the room are untrue. (Other child) has now admitted that she exaggerated the claims because she was so embarrassed in front of her friend.

Your daughters are both appalled at the consequences of this altercation and that you have now been suspended from your teaching position after 23 years of perfect service. It is claimed that you are a danger to children. Is there any evidence of this from any of your school positions?

  1. [13]
    Teacher NSP also submits that while presently she is suspended with pay, if payment should cease she would be unable to meet the costs associated with caring for and supporting her children. Reference is made to s 26 of the Human Rights Act 2019 (Qld), which provides, in part:
  1. (1)
     Families are the fundamental group unit of society and are entitled to be protected by society and the State.
  1. (2)
     Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.
  1. [14]
    As noted in LDW, below, the relevant provisions of the Act are protective and the protection of children, generally, takes precedence over the interests of the teacher. Also, the Human Rights Act, at s 8(b) and s 13, makes it clear that rights arising under that Act are subject to ‘reasonable limits that can be demonstrably justified in a free democratic society based on human dignity, equality and freedom’. The protection of children is central to the objects of the Education Act and the suspension of a teacher in appropriate circumstances is not abrogated by s 26 of the Human Rights Act.
  2. [15]
    Further, reference is made in Teacher NSP’s submissions to the following passage from the decision in Queensland College of Teachers v LDW:[4]

[14]  This definition [of ‘harm’: see s 7 of the Act] would suggest 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’.

[15]  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.

[16]  I accept as submitted by the QCT that 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.

[17]  It is a protective provision which prefers the protection of children and the child’s interests over the interests of the registered teacher.

  1. [16]
    Finally, Teacher NSP submits that she has discharged the onus of proof to show that she does not represent an unacceptable risk of harm to children. However, as noted in Queensland College of Teachers v Teacher EDC,[5] these are not adversarial proceedings and the nature of the enquiry is such that it is not productive to approach the question, relevant to s 49 of the Act, of whether the teacher poses an unacceptable risk of harm to children by reference to the common law evidential concepts of onus and standard of proof. Rather:[6]

…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.

  1. [17]
    In response, the College makes a number of submissions:
  1. (a)
    The main objects of the Act are to uphold the standards of the teaching profession; maintain public confidence in the teaching profession; and protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
  2. (b)
    The psychologist’s notes do not verify a medical diagnosis, or a prescribed treatment plan or a prognosis.
  3. (c)
    Four of the teacher’s children witnessed the 2018 domestic violence incident, while in relation to the 2022 incident it is alleged that two of the children were involved.
  4. (d)
    The teacher has been charged with a further contravention of the domestic violence order, which offence is alleged to have been committed on 2 March 2023, involving the children’s father. This was notified to the College by the Queensland Police Service (attached to the College’s submissions) on 3 March 2023 and alleges breach of the order ‘by striking the complainant’s head causing him bruises and discomfort’. There is no indication as to whether it was witnessed by any children.
  5. (e)
    The most recent charge was shortly after the date of the document completed by the psychologist and suggests that ‘there is still work for the respondent to manage and regulate her emotions’.
  6. (f)
    In relation to the amended and agreed statement of facts, the court’s determination remains unknown. In any event, despite the domestic violence order, on the agreed facts Teacher NSP physically assaulted her 13-year-old daughter by pushing and punching her and exposed her 16-year-old daughter to this behaviour.
  7. (g)
    In response to Teacher NSP’s submission that the 2022 conduct occurred in a private capacity and her daughter was not injured, s 49 of the Act refers to harm to children, and is not specific to students only. Further, a teacher’s conduct is subject to both community and professional expectations and professional standards.
  8. (h)
    Teacher NSP’s conduct demonstrates her inability to manage and regulate her behaviour and emotions towards, and in front of, children.
  9. (i)
    Teacher NSP’s submissions do not establish that she does not pose an ‘unacceptable risk of harm to children’ if the suspension were ended. As such, the suspension should continue.
  1. [18]
    By s 53(1) of the Act, the Tribunal ‘must decide whether to continue the suspension of an approved teacher under section 48 or 49’. The present matter involves a suspension under s 49 of the Act.
  2. [19]
    There is a constraint on the capacity of the Tribunal to make findings of fact. That is because of the terms of s 55(3) of the Act, which provides:

QCAT’s decision must be made not later than 14 days after the earlier of the following to happen—

(a) QCAT receives the approved teacher’s submission under s 54;

(b) the stated time under s 54 ends.

  1. [20]
    In relation to that provision, as noted in Queensland College of Teachers v Teacher LNT:[7]

Given the statutory time constraints, it is evident that it was not intended that there be a full hearing to determine contested factual issues as part of the suspension process. Presumably that is because, by s 55A of the Act, where the Tribunal continues the suspension, the College must ‘as soon as practicable’ either initiate disciplinary proceedings, where it reasonably believes that a ground for disciplinary action exists, or authorise an investigation, where it reasonably believes that a ground for disciplinary action may exist.[8] Any consequent disciplinary proceedings are the appropriate vehicle for determining contested factual issues.

  1. [21]
    Consequently, for example, while the ‘agreed facts’ indicate that Teacher NSP punched her 13-year-old daughter once, there is no indication as to the severity of that punch or as to its impact on the child, including any psychological or emotional impact. Also, it is unclear as to what information or material the psychologist had before her when making her assessment. As submitted by the College, the further charge of contravention of a domestic violence order, arising from an incident occurring on 2 March 2023, might call into question the observations and conclusions of the psychologist made only a few weeks earlier.
  2. [22]
    It is also noted that Teacher NSP submits that the December 2022 incident involved her own children, occurred in her private home and that there was no evidence or allegation that the victim child was injured during the encounter. This misconceives the purpose and effect of s 49 of the Act on a number of levels. First, there is nothing in s 49 to indicate that its reach is confined to school children. Indeed, it would seem that there is good reason for that; specifically, the adverse treatment of any child might well translate to the treatment of school children, which, presumably, is the primary focus of the Act. Second, whether the conduct in question occurred in a private setting or at a school does not alter the question of whether the teacher poses an unacceptable risk of harm to children.
  3. [23]
    Third, ‘harm’, as defined in s 7 of the Act, ‘is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’.  The only relevant reference in the submissions of Teacher NSP to harm is the submission that there was no evidence or allegation that the victim child was injured. Leaving to one side the fact that there is no clear evidence either way, there is also the question of psychological or emotional impact, which might or might not be immediately apparent.  While the psychologist notes that ‘your daughters are both appalled at the consequence of this altercation and the fact that you have been suspended from your teaching position after 23 years of perfect service’,  it does not address the possible effect of the ‘altercation’ on the children.
  4. [24]
    Fourth, as submitted by the College, and consistent with s 3 of the Act, the main objects of the Act include upholding the standards of the teaching profession and maintaining public confidence in the teaching profession. Those standards and public confidence would be less than enhanced were it known to the broader school community that a teacher continued to teach, pending investigation or disciplinary proceedings, in circumstances such as those that have arisen in the present case.
  5. [25]
    Also, the most recent charge of 3 March 2023 relating to an alleged further contravention of the domestic violence order while the present proceedings have been on foot, would, if substantiated, be suggestive of Teacher NSP’s ongoing inability to manage and regulate her behaviour.
  6. [26]
    In the circumstances, I am not satisfied that Teacher NSP does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher NSP’s registration as a teacher is to continue. The potential impact on Teacher NSP and her children has been noted. It is also noted that by s 55A of the Act, where the Tribunal continues the suspension, the College must ‘as soon as practicable’ either initiate disciplinary proceedings, where it reasonably believes that a ground for disciplinary action exists, or authorise an investigation, where it reasonably believes that a ground for disciplinary action may exist.[9]
  7. [27]
    I further note that under s 55(6) of the Act, Teacher NSP may apply within 28 days of the notice of this decision to QCAT for review of this decision. She may at that time provide any additional material that may support a submission that she does not pose an unacceptable risk of harm to children.

Non-publication order

  1. [28]
    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.[10]
  2. [29]
    The parties agree that it is appropriate to make a non-publication order to protect the identity of the relevant children. Further, revelation of the identity of Teacher NSP or any relevant school might lead to identification of the children.
  3. [30]
    I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher NSP or any relevant child 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.
  4. [31]
    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]  [2017] QCAT 48.

[5]  [2019] QCAT 144, [11].

[6]  Ibid, [14].

[7]  [2022] QCAT 434, [9].

[8]  The Act, s 55A, s 97, s 98.

[9]  The Act, s 55A, s 97, s 98.

[10]  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 NSP

  • Shortened Case Name:

    Queensland College of Teachers v Teacher NSP

  • MNC:

    [2023] QCAT 105

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    17 Mar 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Queensland College of Teachers v LDW [2017] QCAT 48
3 citations
Jump To
Cite 1 - [2017] QCAT 48
Cite 2 - [2017] QCAT 48
Cite 3 - [2017] QCAT 48
Queensland College of Teachers v Teacher LNT [2022] QCAT 434
1 citation
Jump To
Cite 1 - [2022] QCAT 434
Teacher EDC v Queensland College of Teachers [2019] QCAT 144
3 citations
Jump To
Cite 1 - [2019] QCAT 144
Cite 2 - [2019] QCAT 144
Cite 3 - [2019] QCAT 144

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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