Queensland College of Teachers v OHS
[2018] QCAT 353
•22 October 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Queensland College of Teachers v OHS [2018] QCAT 353
PARTIES:
QUEENSLAND COLLEGE OF TEACHERS
(applicant)v TEACHER OHS
(respondent)
APPLICATION NO/S:
OCR242-18
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
22 October 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Aughterson
ORDERS:
1. The suspension of the registration of OHS as a teacher is continued.
2. Other than to the parties to the proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify OHS, any other relevant teacher, any of the relevant students or former students, or any relevant school.
CATCHWORDS:
EDUCATION – 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(1), s 50(3)(c), s 50(5), s 53, s 54(1)(b), s 55(1)(b), s 55(6)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66M v M (1988) 166 CLR 69
Queensland College of Teachers v LDW [2017] QCAT 048
REPRESENTATION:
Applicant:
Self-represented
Respondent:
E J Houston, Acting Principal Legal Officer for the Queensland College of Teachers
APPEARANCES:
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
OHS has been registered in Queensland as a teacher since 2004. On 30 August 2018, 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’).
The Legislative Framework
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]
[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.
In accordance with s 50(5) of the Act, the College has referred the continuation of the suspension to QCAT for review pursuant to s 53 of the Act. 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.
As required by s 54(1)(b) of the Act, directions were made by the Tribunal inviting submissions from OHS as to why she does not pose an unacceptable risk of harm to children. No submissions were received from Teacher OHS, though submissions were filed by the College.
What is an unacceptable risk of harm to children?
While the Act does not define the term ‘unacceptable risk of harm’, the meaning of ‘harm’ is provided in s 7 of the Act:
(1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a)physical, psychological or emotional abuse or neglect; or
(b)sexual abuse or exploitation.
(4) Harm can be caused by—
(a)a single act, omission or circumstance; or
(b)a series or combination of acts, omissions or circumstances.
In Queensland College of Teachers v LDW, the Tribunal referred to the decision in
M v M,[2] which considered the issue of risk of abuse in the context of parental access to a child, and stated:The Court in that case formulated the issue as ensuring the protection of a child from ‘unacceptable risk of abuse’. The College submits, and I accept, that 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.[3]
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.[4] 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.
[2](1988) 166 CLR 69.
[3][2017] QCAT 48 (citations omitted).
[4]See also s 55(1)(b) of the Act.
The grounds of OHS’s suspension
The notice of suspension sets out the College’s reasons for forming the view that OHS poses an unacceptable risk of harm to children. Those reasons may be summarised as follows:
· OHS had inappropriate relationships with students at a school at which she was a teacher, including a sexual relationship with a student;
· The relationships included many text messages and phone conversations with students, involving over-familiar communications; and
· Preferential and inappropriate treatment given to a student
The College filed material on which the decision was based, namely:
(a)Copies of e-mail communications;
(b)A document headed ‘Observations’ prepared by another teacher at the relevant school; and
(c)A character reference.
Conclusion
On the material before me, I am not satisfied that the teacher OHS does not pose an unacceptable risk of harm to children. I therefore order that the suspension of OHS’s registration as a teacher is to continue.
I note that under s 55(6) of the Act, OHS may apply to QCAT within 28 days of notice of this decision for a review of the decision. She may at that point provide any additional material which may support a submission that she does not pose an unacceptable risk of harm to children.
Non-publication order
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.[5] The College submits that a non-publication order should be made in order to protect the identity of the relevant students and former students.
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).
I am satisfied that it would be contrary to the public interest for information to be published which would identify OHS, any other relevant teacher, any of the relevant students or former students, or any relevant school.
I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
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