Queensland College of Teachers v Teacher FRT
[2020] QCAT 412
•28 October 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Queensland College of Teachers v Teacher FRT [2020] QCAT 412
PARTIES: QUEENSLAND COLLEGE OF TEACHERS (applicant)
v
TEACHER FRT (respondent)
APPLICATION NO/S:
OCR280-20
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
28 October 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Deane
ORDERS: 1. The suspension of the registration of Teacher FRT 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 FRT, a relevant complainant, student or former student, or a relevant school, other than to the extent necessary to enable the Queensland College of Teachers to meet its statutory obligations.
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 49, s 50(5), s 53, s 54(1)(b), s 55(6)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Queensland College of Teachers v Teacher CXJ [2016] QCAT 511Queensland College of Teachers v Teacher GXM [2016] QCAT 441
Queensland College of Teachers v LDW [2017] QCAT 048
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
Teacher FRT has been registered in Queensland as a teacher since 2014. On 14 September 2020, the Queensland College of Teachers (‘the College’) suspended his registration pursuant to s 49 of 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 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.
As required by the Act, directions were made by the Tribunal on 16 September 2020 inviting submissions from Teacher FRT as to why he does not pose an unacceptable risk of harm to children. On 21 October 2020, the respondent’s solicitors advised the Tribunal that while he makes no submissions, in doing so, he makes no admission of guilt. The respondent teacher further made submissions to the Tribunal seeking a non-publication order in respect of the suspension proceedings.
On 27 October 2020, the College filed submissions in response. The College submits that in the absence of submissions and evidence from the respondent, he did not discharge the onus of proof in satisfying the Tribunal that he does not pose an unacceptable risk of harm to children. The College therefore submits it is appropriate for his suspension to be continued. In response to the application for a non-publication order, the College does not object and submits it is appropriate to make a non-publication order. However, the College further submits that an exception should apply to the extent necessary to enable the College to meet its statutory obligations.
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:
7 Meaning of harm
(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,[2] the Tribunal referred to the decision in M v M,[3] 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.[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.[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.
[2]Queensland College of Teachers v LDW [2017] QCAT 048 [10]-[11].
[3](1988) 166 CLR 69.
[4][2017] QCAT 48 (citations omitted).
[5]See also s 55(1)(b) of the Act.
The grounds of Teacher FRT’s suspension
The notice of suspension set out the College’s reasons for forming the view that Teacher FRT posed an unacceptable risk of harm to children. The College’s reasons may be summarised as follows:
(a)Leading up to 2019, Teacher FRT engaged in conversations with the student regarding her family and mental health issues;
(b)Teacher FRT provided the student with his mobile number and told her to contact him if she needed anything, including any mental health issues;
(c)During an interview with Departmental investigators, Teacher FRT agreed that he engaged in inappropriate interactions with the student, namely engaging with telephone SMS, sending sexually explicit text messages and communicating that he wanted to be sexually intimate with the student.
The material filed by the College included:
(a)The Transcript of Record of Interview between Teacher FRT and investigators from the Department on 26 August 2020.
Conclusion
On the material before me, I am not satisfied that the Teacher FRT does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher FRT’s registration as a teacher is to continue.
I note that under s 55(6) of the Act, Teacher FRT may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that he 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 to be identified. The Tribunal may do so on the application of a party or on its own initiative.[6]
[6]Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
I am satisfied that it would be contrary to the public interest for information to be published which would identify a relevant student or complainant, Teacher FRT or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
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