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  4. Queensland College of Teachers v Teacher QNL - [2024] QCAT 199

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Queensland College of Teachers v Teacher QNL[2024] QCAT 199

Queensland College of Teachers v Teacher QNL[2024] QCAT 199

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher QNL [2024] QCAT 199

PARTIES:

QUeensland college of teachers

(applicant)

v

Teacher QNL

(respondent)

APPLICATION NO/S:

OCR076-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. The suspension of the registration of Teacher QNL 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 QNL, any relevant student, former student, third party, or 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).

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, 66

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

Queensland College of Teachers v LDW [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. [1]
    Teacher QNL has been registered in Queensland as a teacher since 2002. On 18 March 2024, the Queensland College of Teachers (‘the College’) suspended his registration pursuant to section 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).
  2. [2]
    By section 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 section 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. [3]
    While the Act does not define the term ‘unacceptable risk of harm’, by section 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.

  1. [4]
    In accordance with section 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 section 53(1) the Tribunal must decide whether to continue the suspension, while section 53(3) requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
  2. [5]
    Teacher QNL was employed as a guidance officer at the relevant school and was directly involved in providing wellbeing support for the complainant student (‘the student’), who was then 15 to 16 years old and had extensive mental health vulnerabilities. The notice of suspension sets out the College’s reasons for forming the view that Teacher QNL posed an unacceptable risk of harm to children. The College’s reasons may be summarised as follows. Teacher QNL:
    1. engaged in electronic communications with the student outside of school hours, including late at night and on weekends;
    2. attempted to arrange a meeting with the student outside of school;
    3. failed to keep appropriate records of relevant contact/communications with the student;
    4. encouraged the student to withdraw from her family;
    5. provided gifts to the student;
    6. communicated with the student after she unenrolled in the school, which included sending overly affectionate communications;
    7. attended at her residence to meet her;
    8. hugged and touched her inappropriately;
    9. supplied alcohol and drugs to the student and alcohol to her friend (‘the friend’);
    10. discussed the student’s mental health and personal circumstances with the friend through online communications; and
    11. allowed his personal bank account to be linked to the student’s Medicare account and received monetary rebates to which she was entitled.
  3. [6]
    The material filed by the College includes the notice of suspension, transcripts of interviews, copies of social media and email communications, and a Guidance Summary prepared by Teacher QNL in relation to the student.
  4. [7]
    As required by section 54(1) of the Act, Directions were issued by the Tribunal on 28 March 2024, inviting submissions from Teacher QNL by 2 May 2024 as to why he does not pose an unacceptable risk of harm to children. On 2 May 2024, Teacher QNL filed submissions denying many of the allegations and submitting that while there were some breaches of professional boundaries and contraventions of the code of ethics, he does not pose an unacceptable risk of harm to children.
  5. [8]
    Teacher QNL says that the allegations of romantic or sexual interest in the student are ‘entirely fabricated and unsubstantiated’. He refers to prior police investigations which found that there was insufficient evidence for further action. In a record of interview conducted earlier this year by officers of the Department of Education with Teacher QNL, he repeatedly refers to the student as a stalker and says that she was infatuated with him. He states that the investigating officer told him that the complaints ‘were found to be unsubstantiated and vexatious’, that the student could be dangerous and that he needed to be wary of the her as she was infatuated with him. In an email from the officer in question it is stated that he does not recall using terms such as ‘dangerous’, but that he would have told Teacher QNL that there was insufficient evidence to commence further proceedings and that given the allegations he should be cautious of communication with the student. Teacher QNL also denies supplying alcohol and drugs to the student and alcohol to her friend. In relation to Medicare, he said that this may have happened inadvertently as he was the only adult present when the student visited Centrelink. He states that when he was informed of the rebates, he immediately returned the funds.
  6. [9]
    However, in his submissions to the Tribunal, Teacher QNL states that he recognises that he transgressed professional boundaries as a teacher, including by giving the student a birthday card and a gift of chocolates, offering a separate email for use with students, being available outside of regular hours, assisting with setting up government services, and communicating with the student via school email after being informed by the school principal not to do so. No direct reference is made to the allegations of failure to keep appropriate records or encouraging the student to withdraw from her family.
  7. [10]
    In a separate record of interview conducted by officers of the Department of Education,  the (now former) student says that Teacher QNL made inappropriate comments to her through emails and social media, including outside of school hours; turned up at her house unexpectedly; supplied her and her friend with alcohol; invited her ‘to go places’ with him; touched her inappropriately when on one occasion she had gone with him in his car; and told her that he loved her. There is also a record of interview with the friend. The friend also states that Teacher QNL supplied them with alcohol and invited them for a drive in his car. She further states that the student told her that Teacher QNL had touched her inappropriately and that the student was ‘quite upset’. The friend also referred to a number of social media communications, which are part of the material provided to the Tribunal, wherein she and Teacher QNL discussed their views and concerns in relation to the student and her parents.
  8. [11]
    As noted above, section 53(3) of the Act requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children. By the terms of section 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 assessment 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,[3] 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.[4]
  9. [12]
    In any event, as noted in Director-General, Department of Justice and Attorney-General v CMH,[5] 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.

  1. [13]
    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. In making that judgment, a difficulty arises where there is conflicting evidence in the material before the Tribunal. As noted in Queensland College of Teachers v Teacher BDN,[6] 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 section 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—

  1. QCAT receives the approved teacher’s submission under section 54;
  2. the stated time under section 54 ends.
  1. [14]
    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. Any consequent disciplinary proceedings are the appropriate vehicle for determining contested factual issues.

  1. [15]
    Clearly, there is conflicting evidence in the present case and, in the absence of an opportunity to fully test that evidence in the present proceedings, it is not appropriate to make any conclusive findings of fact.
  2. [16]
    Nevertheless, consistent with the need to evaluate the future risk of harm, the following observations are made. First, as noted at [9] above, Teacher QNL acknowledges that he transgressed professional boundaries, including by communicating with the student outside of school hours after being informed by his principal not to do so. Second, while he says that he recognises those errors, he also states that the student was an ‘anomaly’ and he believes that his guidance counselling and interventions were beneficial. He makes no reference to any actual or potential harm that might have been caused by his admitted actions, particularly given the vulnerability of the student as reflected in his own Guidance Summary noted at [6], above. He states:

Although the facts and circumstances appear concerning, it is a clear supportive way in which I attempted to support (the student) at the time as guidance officer, and then as former counsellor and simply as a person concerned for her ongoing safety.

  1. [17]
    Third, while Teacher QNL says that he has ‘reflected’ on his transgression of professional boundaries, there is no reference to any counselling or relevant professional courses he has undertaken or as to what measures he has set in place to avoid future transgressions. Fourth, when, in the course of his interview, the interviewer sought to raise questions in relation to matters arising in the year after the student was at the school in question, Teacher QNL stated that this was not relevant as he was not then employed by Education Queensland. When asked whether there are obligations arising from teacher registration in relation to interactions with former students, he responded: ‘I don’t know. Yeah, well she wasn’t a student’. This displays a lack of insight, particular in the context of the potential for the grooming of students prior to them leaving school.
  2. [18]
    Fifth, there are inconsistencies in Teacher QNL’s record of interview or as between that record and his submissions to the Tribunal, as follows:
    1. In his record of interview, his initial denials were general and he states that he has ‘always insisted on and maintained professional conduct’ towards students. This does not accord with subsequent concessions in the record of interview or in his submissions to the Tribunal, noted at [9] above.
    2. In the record of interview, he initially states that he was authorised by the principal to communicate with the student using school email and that he used only this form of communication with the student. Later in the record, on being shown a specific email communication with the student, he concedes that he invited her to contact him through a separate non-work email and that he acted contrary to the instructions of the principal. He was also shown a further email, wherein, after telling the student that she is ‘awesome’, he said ‘I got told again not to email you and that will be said to you tomorrow. We are only to have face-to-face conversation at school’. Following that, he conceded to the interviewer that he has ‘made mistakes’.
    3. Initially, in the record of interview, he denied giving the student gifts. Later in the record, upon being shown an email from the student thanking him for the birthday card and chocolates, he states that he did not know where the chocolates came from and that he only gave her a card. Upon being shown a further email to the principal which referred to the chocolates, he stated that he did not recall. In his submissions, he acknowledges giving the student chocolates.
    4. Initially, in his record of interview, he states that at no time did  he have or attempt to have contact with the student outside of school, but later in the record, when referred to specific communications, he concedes that he invited her to do so.
    5. In the record of interview, when asked whether he knew the friend he responds: ‘No, I don’t know this person at all. I don’t know that name. I didn’t think (the student) had friends’. Upon being told that there were ‘lots of references’ to the friend in his emails with the student he states: “Maybe, I didn’t know who the person was … I’ve never met them’. It is also noted that in the materials provided to the Tribunal there are printouts of a number of text messages between Teacher QNL and the friend.
  3. [19]
    In the circumstances as outlined above, I am not satisfied that Teacher QNL does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher QNL’s registration as a teacher is to continue.
  4. [20]
    I note that under section 55(6) of the Act, Teacher QNL 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

  1. [21]
    Pursuant to section 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.[8]
  2. [22]
    Teacher QNL requests and the College supports the making of a non-publication order. A non-publication order is appropriate in the circumstances of the present matter, where identification of Teacher QNL or the relevant school may lead to the identification of a relevant student or third party. I am satisfied that it would be contrary to the public interest for information to be published that may identify Teacher QNL, any relevant student, former student, 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.
  3. [23]
    I make orders pursuant to section 66 of the QCAT Act prohibiting the publication of that information.

Orders

  1. The suspension of the registration of Teacher QNL 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 QNL, any relevant student, former student, third party, or 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] (citations omitted).

[3][2019] QCAT 144, [10]-[15].

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b) (‘QCAT Act’).

[5][2021] QCATA 6, [16]. See also at [17]-[19].

[6][2023] QCAT 352, [12].

[7][2022] QCAT 434, [9] (citations omitted).

[8]QCAT Act, s 66(3).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher QNL

  • Shortened Case Name:

    Queensland College of Teachers v Teacher QNL

  • MNC:

    [2024] QCAT 199

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    14 May 2024

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
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
2 citations
Jump To
Cite 1 - [2021] QCATA 6
Cite 2 - [2021] QCATA 6
Queensland College of Teachers v LDW [2017] QCAT 48
2 citations
Jump To
Cite 1 - [2017] QCAT 48
Cite 2 - [2017] QCAT 48
Queensland College of Teachers v Teacher BDN [2023] QCAT 352
2 citations
Jump To
Cite 1 - [2023] QCAT 352
Cite 2 - [2023] QCAT 352
Queensland College of Teachers v Teacher LNT [2022] QCAT 434
2 citations
Jump To
Cite 1 - [2022] QCAT 434
Cite 2 - [2022] QCAT 434
Teacher EDC v Queensland College of Teachers [2019] QCAT 144
2 citations
Jump To
Cite 1 - [2019] QCAT 144
Cite 2 - [2019] QCAT 144

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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