Queensland College of Teachers v Teacher BDN
[2023] QCAT 352
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- Queensland College of Teachers v Teacher BDN[2023] QCAT 352
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Queensland College of Teachers v Teacher BDN[2023] QCAT 352
Queensland College of Teachers v Teacher BDN[2023] QCAT 352
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher BDN [2023] QCAT 352 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER BDN (respondent) |
APPLICATION NO/S: | OCR178-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 1 September 2023 |
HEARING DATE: | On the papers |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
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 55A, s 97, s 98, 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 Queensland College of Teachers v Teacher LNT [2022] QCAT 434 |
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 BDN has been registered in Queensland as a teacher since 2006. On 13 July 2023, 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]The notice of suspension sets out the College’s reasons for forming the view that Teacher BDN posed an unacceptable risk of harm to children. The College’s reasons may be summarised as follows: engaging in inappropriate and/or overfamiliar conduct with a student; engaging in inappropriate and/or overfamiliar and/or sexualised communications with a student; and engaging in inappropriate and/or overfamiliar and/or sexualised physical conduct with a student.
- [6]The material filed by the College includes two handwritten statements of the student outlining her account of her interactions with Teacher BDN and a photograph of the student sitting next to the teacher with her head on his shoulder. While screenshots of a few phone text messages have also been included, on its face it is not suggestive of the alleged conduct, though one communication commences: ‘We still good’. In her statements, the student refers to ‘inappropriate verbal and physical behaviour’ from Teacher BDN, his touching her on multiple occasions, including on her upper thigh and groin, and comments suggestive of sexual interaction between them. She also states that at first she enjoyed the attention and banter, but later became uncomfortable.
- [7]As required by s 54(1) of the Act, directions were issued by the Tribunal on 19 July 2023, inviting submissions from Teacher BDN by 23 August 2023 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.
- [8]On 23 August 2023, through his legal representative, Teacher BDN filed submissions denying the allegations and attaching affidavits of Teacher BDN and a Teacher’s Aide (‘Teacher A’) from the same school as Teacher BDN. It was submitted that ‘there is no compelling reason why the Respondent’s interim suspension should continue’.
- [9]In his affidavit, Teacher BDN denies the allegations made by the student and details his communications and interactions with the student, none of which are suggestive of inappropriate behaviour. With reference to the photograph, Teacher BDN states that it was taken during a school camp. He states that it was cold and the area around the campfire was crowded. He further states: ‘I did not recall [the student] sitting so close and then interlocking her arm underneath mine. Once I realised, I stood up and left to supervise the area’. The photograph depicts the student with her head on Teacher BDN’s shoulder, while he is holding a computer in one hand and is looking up at, and appears to be engaging in conversation with, a third person. Later in his affidavit, Teacher BDN states that he was taking the roll at the time and that the student ‘leant against me and was touching my back. I asked her not to touch me and then told her she needs to go over with her group and discuss what week their next DOE camp should be’.
- [10]In his affidavit, Teacher A states that he is aware of the allegations made in relation to Teacher BDN and states that at no time did he witness any inappropriate behaviour whilst on the school camp or at any subsequent time at the school. With regard to the latter, he refers to three occasions when he was present while Teacher BDN and the student were communicating with each other. In relation to the photograph, Teacher A identifies himself as the person standing in front of Teacher BDN. He states that he heard Teacher BDN tell the student to leave and join the rest of the group. He further states that in his interactions with Teacher BDN he has never seen any inappropriate contact and that he has ‘always asked me to stay behind if having a conversation with a student one on one’.
- [11]It appears that both affidavits were drafted on instructions. If that is so, there is a question of whether either of the deponents carefully read or reread the affidavits before signing. That is because there are instances where there is a gap or bracketed words that evidently call for further detail to be provided by the deponents. In the case of Teacher BDN, there is a statement: ‘My wife and I are happily married and have been happily married for (number of) years’. Later, in stating that he has been a teacher for 16 years, has never been accused of anything similar and has always maintained healthy boundaries with students, he also states: ‘I have also exclusively taught underage female netball teams for approximately’. In the affidavit of Teacher A, with reference to conversations with students on a particular day, it is stated: ‘At approximately [time] we asked all students to put their phones away’.
- [12]It is accepted that there may be a good explanation for those issues in relation to the affidavits and that the Tribunal should be slow to draw any conclusions from a single photograph. However, it remains that there is a clear divergence between what the student and Teacher BDN say occurred and, in that context, the capacity of the Tribunal to resolve that conflict is constrained. 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.
- [13]
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.[4] Any consequent disciplinary proceedings are the appropriate vehicle for determining contested factual issues.
- [14]Also, 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.[5] 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. Further, as noted in Queensland College of Teachers v EDC:[6]
… 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.
- [15]In the circumstances, I am not satisfied that Teacher BDN does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher BDN’s registration as a teacher is to continue. It is 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.[7]
- [16]I further note that under s 55(6) of the Act, Teacher BDN 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
- [17]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.[8]
- [18]The College submits that it is appropriate to make a non-publication order with respect to the student, the school and Teacher BDN. I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher BDN or any relevant complainant or child, or any relevant school, other than to the extent necessary for the College to meet its statutory obligations and as otherwise provided under the Act, particularly under sections 285, 285AA, 285B and 287. 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] [2022] QCAT 434, [9].
[4] The Act, s 55A, s 97, s 98.
[5] See also s 55(1)(b) of the Act.
[6] [2019] QCAT 144, [11].
[7] The Act, s 55A, s 97, s 98.
[8] Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).