Queensland College of Teachers v Teacher LPD
[2024] QCAT 457
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- Queensland College of Teachers v Teacher LPD[2024] QCAT 457
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Queensland College of Teachers v Teacher LPD[2024] QCAT 457
Queensland College of Teachers v Teacher LPD[2024] QCAT 457
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher LPD [2024] QCAT 457 |
PARTIES: | QUeensland college of teachers (applicant) v Teacher LPd (respondent) |
APPLICATION NO/S: | OCR183-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 22 October 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 Criminal Code Act 1899 (Qld), s 339 Domestic and Family Violence Protection Act 2012 (Qld), s 177 Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 49, s 50, s 53, s 54, s 55 Justices Act 1886 (Qld), s 47 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 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 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 LPD has been registered in Queensland as a teacher since 2002. On 2 August 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]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]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.
- [4]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.
- [5]The notice of suspension sets out the College’s reasons for forming the view that Teacher LPD posed an unacceptable risk of harm to children. In essence, the College’s reasons are that in July 2024, the College was notified by Queensland Police Service (‘QPS’) that Teacher LPD had been charged with one count of assault occasioning bodily harm (domestic violence) under s 339(1) of the Criminal Code Act 1899 (Qld) and s 47(9) of the Justices Act 1886 (Qld) and one count of contravention of domestic violence order under s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld).
- [6]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.
- [7]The material filed by the College includes the notice of suspension, QPS correspondence, QPS court brief, and National Police Check results report dated 11 March 2021.
- [8]As required by section 54(1) of the Act, directions were issued by the Tribunal on 9 August 2024, inviting submissions from Teacher LPD by 13 September 2024 as to why he does not pose an unacceptable risk of harm to children.
- [9]Following the granting of an extension of time, Teacher LPD filed submissions on 9 October 2024. He submits that he is a passionate teacher and has an exceptional record across all schools at which he has taught. Reference is made to the success of projects in which he has been involved. Teacher LPD also states that he has faced significant challenges this year and refers to serious health issues involving one of his children and the passing of a family member. He further states that those factors ‘played a fundamental role in the poor decision I made’. He further states that there were inaccuracies in the police report but does not identify them. There are attachments to his submissions. First, a letter from his lawyer confirming that he pleaded guilty to the charge of contravention of domestic violence order and was sentenced to 2 years’ probation, with no conviction recorded. It is evident that the charge of assault was not proceeded with. Second, a letter from a ‘Men Counsellor’ (undated), who refers to domestic violence support sessions attended by Teacher LPD, and a letter from a community member written after the incident which led to the charges, which refers to Teacher LPD’s ‘commitment and dedication in his professional and personal involvement in community’ and his very positive personal qualities. However, there is nothing to indicate that the writer was aware of the charges laid against Teacher LPD. Third, Workplace Reports that show that Teacher LPD had taken leave, including compassionate and bereavement leave in the two months prior to the incident underlying the charges.
- [10]In response, the College notes the presence of Teacher LPD’s children during the alleged assault on their mother and their endeavours to stop him. Reference is also made to a National Police Check that indicates previous offences of unlawful wounding and assault, for which a term of imprisonment was imposed. In relation to Teacher LPD’s standing as a teacher, it is submitted that the issue is not the quality of his teaching, but rather the risk of harm he poses. It is also noted that in his submissions Teacher LPD does not address that issue or the impact of his conduct on the victim. It is further submitted that even the existence of a domestic violence order did not prevent him from behaving as alleged. It is concluded that the submissions of Teacher LPD are insufficient to satisfy the Tribunal that he is and remains an ‘unacceptable risk of harm to children’ if the suspension were ended.
- [11]In relation to the alleged inaccuracies in the police report and the evident withdrawal of the assault charge, the Tribunal is not in a position to make any final determination of fact in relation to the circumstances underlying the charges. As noted in Queensland College of Teachers v Teacher BDN,[4] 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.
- [12]
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.
- [13]However, it remains that Teacher LPD was convicted of the offence of contravention of a domestic violence order and that five years earlier there were convictions for offences of assault causing bodily harm. Also, while there is a report of Teacher LPD attending domestic violence education support sessions at some point and of his acknowledging his failings and remorse, there is no professional report that gives insight into factors that bear upon the likelihood of any similar repeat behaviour in the future. In addition, while in his submissions Teacher LPD acknowledges ‘the poor decision I have made and the impact that will have on my teaching career’ and that he has ‘let down’ his teaching team and community, there is scant reference to the harm he has caused to the individuals directly impacted by his conduct and to the factors that might militate against further harm being caused.
- [14]While, consistent with the decision in Queensland College of Teachers v Teacher EDC,[6] it is not productive to approach the question of whether there is the requisite satisfaction that the teacher does not pose an unacceptable risk of harm to children by reference to the concepts of onus and standard of proof, it remains that if a party asserts that he or she does not pose an unacceptable risk it behoves that party to point to some evidence or material that would allow the Tribunal to be so satisfied.
- [15]As noted in Director-General, Department of Justice and Attorney-General v CMH,[7] 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.
- [16]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.
- [17]On the material before me and for the reasons stated, I am not satisfied that Teacher LPD does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher LPD’s registration as a teacher is to continue.
- [18]I note that under section 55(6) of the Act, Teacher LPD 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
- [19]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] While Teacher LPD made no submissions in relation to a non-publication order, the College supports the making of such an order.
- [20]A non-publication order is appropriate in the circumstances of the present matter, where identification of Teacher LPD might lead to the identification of a relevant complainant or child. I am satisfied that it would be contrary to the public interest for information to be published that might identify Teacher LPD, any relevant complainant, 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.
- [21]I make orders pursuant to section 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] (citations omitted).
[3] See also s 55(1)(b) of the Act.
[4] [2023] QCAT 352, [12].
[5] [2022] QCAT 434, [9].
[6] [2019] QCAT 144, [10]-[15].
[7] [2021] QCATA 6, [16]. See also at [17]-[19].
[8] QCAT Act, s 66(3).