Queensland College of Teachers v Teacher YVD
[2024] QCAT 172
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- Unreported Judgment
- Queensland College of Teachers v Teacher YVD[2024] QCAT 172
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Queensland College of Teachers v Teacher YVD[2024] QCAT 172
Queensland College of Teachers v Teacher YVD[2024] QCAT 172
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher YVD [2024] QCAT 172 |
PARTIES: | QUeensland college of teachers (applicant) v Teacher yvd (respondent) |
APPLICATION NO/S: | OCR015-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 29 February 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
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 – whether a non-publication order should be made 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 28, s 66 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 Queensland College of Teachers v LWD [2017] QCAT 48 Queensland College of Teachers v Teacher BDN [2023] QCAT 352 Queensland College of Teachers v Teacher EDC [2019] QCAT 144 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 YVD has been registered in Queensland as a teacher since 2000. On 12 January 2024, 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, and this notice must include 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 YVD posed an unacceptable risk of harm to children. The College’s reasons may be summarised as follows: Teacher YVD attended work as a Manual Arts teacher whilst under the influence of liquor and on more than one occasion exposed children to harm/likely harm through inadequate supervision. The material filed by the College includes the notice of suspension, transcripts of interviews, incident records, diary entries of a teacher’s aide, and email correspondence.
- [6]As required by s 54(1) of the Act, directions were issued by the Tribunal on 18 January 2024, inviting submissions from Teacher YVD by 22 February 2024 as to why he does not pose an unacceptable risk of harm to children. On 21 February 2024, Teacher YVD filed a response addressing the complaints made against him. Much of the response focuses on the allegations relating to his conduct in classrooms, which was said to expose students to the risk of harm. Generally, the allegations are denied and it is stated: ‘I don’t drink during school hours’.
- [7]On 27 February 2024, the College filed submissions in reply stating that Teacher YVD had failed to provide any independent evidence corroborating the assertions he made, particularly those aimed at discrediting witnesses. Accordingly, it is submitted that little weight should be given to what was said by Teacher YVD.
- [8]However, as noted in Queensland College of Teachers v Teacher BDN,[3] when considering the question of whether a suspension should be continued the capacity of the Tribunal to resolve any evidential 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—
- QCAT receives the approved teacher’s submission under s 54;
- the stated time under s 54 ends.
- [9]
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. Any consequent disciplinary proceedings are the appropriate vehicle for determining contested factual issues.
- [10]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.
- [11]In any event, part of the material provided by the College was a record of interview with Teacher YVD conducted in November 2023. In that interview he made a number of acknowledgments: that he had been a heavy drinker and that he had come to school on a given day while intoxicated; that he could not recall whether there was a strong smell of alcohol on him or that he was slurring his words; that he had said to a student that he would ‘cut him off at the knees’ or that he would ‘cut his water off’ or ‘slice their throats if they didn’t behave’ (described by him as ‘a play on words’); occasionally he would swear in front of students; he shared information with students about his relationships; and he was not concerned about and did not model appropriate behaviour in that often equipment was used both by himself and students without the appropriate safety gear.
- [12]As is noted above, 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. Rather, the Tribunal must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children. That is forward-looking and entails a focus on the nature and extent of any risks. As stated in Queensland College of Teachers v Teacher EDC,[6] the requisite satisfaction is not arrived at by reference to the concepts of onus and standard of proof. Those concepts emerged in an adversarial setting and are creatures of the common law rules of evidence. The Tribunal is not bound by the rules of evidence.[7]
- [13]In any event, as noted in Director-General, Department of Justice and Attorney-General v CMH,[8] in the context of a decision made in relation to the Working with Children (Risk Management and Screening) Act 2000 (Qld):
the ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children.
- [14]Ultimately, it is an evaluative judgment as to whether the Tribunal is satisfied that the teacher does not pose an unacceptable risk of harm to children.
- [15]In the circumstances as outlined above, I am not satisfied that Teacher YVD does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher YVD’s registration as a teacher is to continue.
- [16]I note that under s 55(6) of the Act, Teacher YVD 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) (‘QCAT Act’), 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.[9]
- [18]A non-publication order is appropriate in the circumstances of the present matter, where identification of Teacher YVD or the relevant school may lead to the identification of relevant complainant students. I am satisfied that it would be contrary to the public interest for information to be published that may identify Teacher YVD or any relevant student or any relevant 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.
Orders
- 1.The suspension of the registration of Teacher YVD 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 YVD, any relevant student or any relevant school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).
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] [2023] QCAT 352, [12].
[4] [2022] QCAT 434, [9].
[5] See also s 55(1)(b) of the Act.
[6] [2019] QCAT 144, [10]-[15].
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
[8] [2021] QCATA 6, [16]. See also at [17]-[19].
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).