[6] Upon the referral of the suspension to QCAT for review, the Tribunal must invite the teacher to show why he or she does not pose an unacceptable risk of harm to children.[2] The Tribunal is obligated to continue the suspension, unless satisfied he or she does not pose an unacceptable risk of harm to children.

[7] I agree with the comments in earlier Tribunal decisions regarding s 49 suspensions,[3] in that once the QCT has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children and suspended the teacher's registration, the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.

[8] I also agree with comments in those decisions that the standard of proof is the civil standard of balance of probabilities in line with what is commonly referred to as the 'Briginshaw standard'.[4] Thus, based on the serious consequences of findings, a teacher would not be successful in discharging the onus on the basis of inexact or flimsy evidence.[5]

What is meant by an unacceptable risk of harm to children?

[9] The Act does not define "unacceptable risk of harm".

[10] I accept the submission of the QCT that the ordinary meaning of the term should be preferred having regard to the context of the term in the Act and the purpose of the Act.[6]

[11] The QCT refers the Tribunal to the High Court case of M v M,[7] which considered the degree of risk of sexual abuse which would lead to denial of parental access. The Court in that case formulated the issue as ensuring the protection of a child from 'unacceptable risk of abuse'. The QCT 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.[8]

[12] The question is whether there is an identifiable risk of harm and whether such risk is "unacceptable".

[13] Harm is defined in the QCT Act as:

(1) Harm, to a child, is any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing.

(a) physical, psychological or emotional abuse or neglect; or

(b) a series or combination of acts, omissions or circumstances.

[14] This definition would suggest that the identified risk of harm must be significant, rather than minor, and the degree of risk of the harm occurring must be unacceptable. The mere possibility of harm would arguably not be 'unacceptable'.

[15] The determination of any identified risk as unacceptable involves achieving a balance between the protection of students from harm by the conduct of the teacher on the one hand and the potential harm to the teacher of having an unjustified suspension of their registration on the other.

[16] I accept as submitted by the QCT that this determination must be made in the context of the purpose of s 49, which is to ensure that children are protected by removing the risk that a teacher may harm, or be in a position to harm, children.

[17] It is a protective provision which prefers the protection of children and the child's interests over the interests of the registered teacher.

[18] The notice of suspension set out the QCT's reasons for forming the view that he posed an unacceptable risk of harm to children as follows:

• LDW was registered as a teacher from 1 February 2010;

• He was employed as a year 7 teacher at the school during the period 11 April 2016 to 17 June 2016;

• During this period he:

  1. Gave the students prizes, including Student A an iPod, and Students B & C a ballerina charm and photo. The provision of these prizes to the students was not reasonable and exceeded professional boundaries;

  2. Without any valid education purpose provided his personal email address/phone number to year 7 students and participated in private close groups on social media;

  3. He exceeded professional boundaries by inappropriately taking photographs of a number of year 7 students that he stored on his work and personal computer;

  4. Failed to maintain appropriate professional boundaries by telling Students B & C that they were his favourite students;

  5. Failed to maintain appropriate professional boundaries by discussing menstruation with the year 7 female students;

• Between April 2016 and 21 October 2016 he:

  1. Failed to maintain appropriate professional boundaries by engaging in electronic communication with female students from the school without any valid reason or educational purpose;

  2. Failed to maintain appropriate professional boundaries by requesting female year 7 students from the school to provide pictures and/or photographs of themselves while dancing.

[19] The QCT filed the material on which the decision was based including:

1. Records of contact between parents of year 7 female students recording concerns about online communication between LDW and year 7 students, including communication after he ceased teaching at the school;

2. Contractual appointment documents between the school and LDW;

3. The school policy and code of conduct documents;

4. Transcript of interviews with Students A, B & D.

[20] The transcript of evidence supports the factual basis of the suspension. The students spoke about:

• Engaging in private online communication with LDW;

• LDW giving personal email details;

• Discussing menstruation with the year 7 girls; and

• Requesting photos.

[21] In seeking to have the suspension set aside LDW has provided a written submission. He does not appear to contest the factual allegations. He says:

1. He was not aware that his actions were 'in breach of the Act';

2. He wanted to make the children feel comfortable;

3. In giving prizes he simply wanted to encourage the students;

4. He set up the email for students to be able to chat with him because they were upset that he was leaving and he wanted to be able to continue to talk to them. He did not see any harm in helping them out. When he realised he was in breach of the Act he shut it down. He said he would never do it again, but to be fair he was given no instructions or training on how to address students online;

5. He has erased the photos and apologises for taking them;

6. He told two girls that they were his favourites because they were upset he was leaving and thought it would make them feel better. All of his students are his favourites;

7. He is sorry for talking to the girls regarding menstruation. He just wanted to let them know it was okay for them to put their hand up and go to the toilet;

8. He said he asked the students for the photos because he takes a vested interest in his students. He said he wanted the students to know he cared about things that were important to them. He is now sorry and realises that he should have cut off all communication once he left the school. He said he will never allow students to have such an impact on him again.

[22] He says he now understands why his actions have been brought into question and he is willing to change the way he relates to students. He says that he never intended to cause any harm.

[23] I accept the QCT's submission that LDW's interaction with the year 7 female students, particularly during a short-term contract, constituted a failure to maintain appropriate professional boundaries. The inappropriate giving of gifts, expressions of favouritism, inappropriate comments concerning female students' menstruation and requests for photos, have the potential to have a detrimental effect of a significant nature on the students' psychological and emotional wellbeing. Whilst not at the most serious end of inappropriate conduct, I am satisfied that the conduct, considered in aggregation, presents a risk of harm as defined in the Act.

[24] LDW says he is sorry and that he never intended to harm students and will not engage in that conduct anymore.

[25] The QCT says the Tribunal should be concerned by the fact that LDW seeks to excuse his conduct by lack of training and guidance on how to address students online.

[26] The QCT has produced the relevant school's guidelines and policies which outline the responsibilities and obligations of teachers when interacting with students, including advice on the limits to teachers relationships with students. In particular, the school's code of conduct provides that a professional relationship between a teacher and a student would be violated if a teacher engaged in inappropriate conduct, including holding conversations of a personal nature, having contact with a student via written or electronic means including chat rooms or social networking sites without a valid educational context, or taking inappropriate photos of students.[9]

[27] The QCT says therefore the Tribunal should approach LDW's submission that his breaches of professional boundaries are attributable to lack of knowledge or training in professional boundaries with trepidation.

[28] LDW has the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm. LDW's submissions are encouraging in that he says he now accepts the behaviour was inappropriate, he is sorry and that he meant no harm. He does not however express any insight into the potential harm of his conduct to the students.

[29] I find on his submissions that he has not discharged the onus. He has not provided any detail around the strategies that he has adopted since the investigation concluded that led to his suspension to change his teaching habits. Having been registered since 2010 it is surprising he was not aware of codes of conduct. He has given no details of the steps that he has taken to now familiarise himself with the relevant codes of conduct. He does not have any independent evidence to support his position that despite his inappropriate conduct he presents no risk of harm to children. It might have been useful to have supporting evidence from previous employers and colleagues.

[30] Based on his past conduct there is an identifiable risk of harm which is not insignificant. On the brief submissions provided by LDW, I am not satisfied that the behaviour will not be repeated so that LDW does not pose an unacceptable risk of harm to students in the classroom.

[31] I note in this regard however that under s 55(6) of the Act, LDW may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide additional material dealing with my concerns raised above.

[32] The respondent has not sought or made any submissions concerning a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[33] The QCT however, acknowledges that it would not be in the interests of justice for children to be identified to the public and that publication of these proceedings may lead to the identity of a number of students.

[34] I am satisfied that it would be contrary to the public interest for information to be published which would identify Students A, B, C or D. This includes any information that may identify the school they attended. I am also satisfied that to achieve this LDW cannot be identified.

[35] I make orders pursuant to s 66 prohibiting the publication of that information.

[3] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.

[4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362.

[5] QCT v Teacher CXJ [ 2016] QCAT 511, at para [27].

[6] QCT submission dated 3 February 2017, para [8].

[7] (1988) 166 CLR 69.

[8] QCT submission dated 3 February 2017, para [9] referencing John Fogarty AM, 'Unacceptable risk - A return to basics' (2006) 20 Australian Journal of Family Law 3.

[9] QCT submission dated 3 February 2017, para [24].