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  • Unreported Judgment

Queensland College of Teachers v CMF (No. 2)

 

[2016] QCAT 290

CITATION:

Queensland College of Teachers v CMF (No. 2) [2016] QCAT 290

PARTIES:

Queensland College of Teachers

(Applicant)

v

CMF

(Respondent)

APPLICATION NUMBER:

OCR075-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 July 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

Member Macdonald

Member Traves

DELIVERED ON:

15 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. A ground for disciplinary action is not established.
  2. The suspension of CMF’s teacher registration is ended.
  3. The non-publication order of 21 May 2015 is confirmed.

CATCHWORDS:

TEACHER DISCIPLINARY MATTER – whether a ground for disciplinary action exists – whether teacher “not suitable to teach” within s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld).

Education (Queensland College of Teachers) Act 2005 (Qld) s 3, s 12, s 48, s 53, s 91, s 92, s 97, s 152, s 158, s 159, s 160, s 290

Davidson v Victorian Institute of Teaching (Occupational and Business Regulation) [2007] VCAT 920

Mills v Meeking (1990) 169 CLR 214

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v CMF [2016] QCAT 137

Queensland College of Teachers v GHI [2012] QCAT 182

R v Teachers Appeal Board; Ex parte Bilney (1984) 35 SASR 492

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This matter concerns the referral of a disciplinary matter in respect of the conduct of a teacher, in particular whether a disciplinary ground exists and, if so, what the appropriate sanction should be.

Background to the matter

  1. [2]
    CMF is a ‘relevant teacher’ under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘EQCT Act’). CMF was charged with a ‘serious offence’ on 18 May 2013 and, as a consequence, his registration was suspended on 22 May 2013.[1]
  2. [3]
    A decision to continue the suspension was made by the tribunal, exercising its original jurisdiction, on 2 July 2013.[2] In the absence of any evidence the tribunal was not satisfied the matter was ‘an exceptional case in which the best interests of children would not be harmed if the suspension were ended’.
  3. [4]
    On 29 April 2015 the Director of Public Prosecutions gave notice to the Board of Teacher Registration that CMF was discharged as a result of a nolle prosequi in relation to the following charges:

Indecent treatment of children under 16, under 12.

  1. [5]
    The matter had gone to trial on two separate occasions and on both occasions the jury was unable to reach a verdict.
  2. [6]
    On 7 May 2015, the Queensland College of Teachers (‘the College’) approved the referral of the matter to the tribunal. The College reasonably believed on the basis of the information[3] it had received, that a ground for disciplinary action against CMF existed.[4] The ground relied on by the College was that CMF was ‘not suitable to teach’ within the meaning of s 92(1)(h) of the EQCT Act.
  3. [7]
    On 28 September 2015, an application for an interim order to end the suspension pursuant to s 152 of the EQCT Act was refused on the basis that the tribunal did not ‘reasonably believe’ it was ‘necessary’, in accordance with the requirements of that provision.
  4. [8]
    On 19 February 2016 the parties submitted a statement to the tribunal agreeing to certain facts and circumstances and that ‘the ground for disciplinary action’ ‘not suitable to teach’ pursuant to s 92(1)(h) was established. Further, that the only disagreement was as to the appropriate sanction under s 160. The tribunal had concerns regarding CMF’s concession that the ground ‘unsuitable to teach was made out’ in circumstances where he also submitted that the suspension of his teachers registration should be ended. The tribunal sought further submissions from the parties on the following issues:
    1. at what time is CMF’s “unsuitability to teach” to be assessed;
    2. whether the effect of s 92(2) of the EQCT Act is to deem the teacher “unsuitable to teach” and, if not, what is the effect of s 92(2). It provides:
  1. (2)
    The ground for disciplinary action (unsuitability to teach) is taken to apply to the following—
  1. (a)
    a relevant teacher whose registration or permission to teach is suspended under section 48 if any of the following applies—
  1. (i)
    the teacher has been charged with a serious offence and the charge has been dealt with.
  1. [9]
    CMF was also required by the Directions to provide a copy of a report from a psychologist as to his current suitability to work in a child-related field or to advise that he did not intend to provide such a report.
  2. [10]
    On 23 May 2016 the tribunal determined that the time for assessing ‘unsuitability to teach’ was as at the date of the hearing and that s 92(2) did not apply so as to deem CMF ‘unsuitable to teach’. The issue was whether as CMF had been charged with a serious offence, and the charge had been ‘dealt with’ (which includes by nolle prosequi), that the ground ‘not suitable to teach’ was thereby established.[5] As a matter of statutory construction, the tribunal found that the ground must be established based on the facts and circumstances that exist at the time of the hearing. That the ground in s 92(1)(h) is ‘taken to apply’ by s 92(2) means no more than that the tribunal has to consider whether the ground is made out, not that it is bound to find that it has been. This approach is consistent with s 158 and s 159 of the EQCT Act.[6]
  3. [11]
    Both parties were then provided an opportunity to file any further written submissions upon which they wished to rely at the resumed hearing.[7]
  4. [12]
    CMF filed further submissions dated 20 June 2016 addressing the issue of whether he was, in fact, ‘unsuitable to teach’ and as to what the appropriate sanction should be. He no longer concedes the ground ‘unsuitable to teach’ was made out. He submitted the ground could not be made out as at the date of the hearing. The College made no further submissions.
  5. [13]
    The issue for the tribunal is whether a disciplinary ground exists and if so, what the appropriate sanction should be.

The role of the tribunal

  1. [14]
    The powers and functions of the tribunal in conducting disciplinary proceedings relating to teachers is dealt with in Chapters 5 and 6 of the EQCT Act. The College is required to start disciplinary proceedings by referring the matter to the tribunal if it reasonably believes a ‘disciplinary ground exists’.[8] The College is required to inform the tribunal about the grounds for the disciplinary matter and the facts and circumstances forming the basis of the grounds.[9] The tribunal then is to conduct a hearing and make a decision about the disciplinary matter having regard to the information provided by the College.[10]
  2. [15]
    The College submitted a statement of agreed facts and circumstances to the tribunal on 24 December 2015.[11] The tribunal has based its decision on those agreed facts and circumstances.
  3. [16]
    The tribunal must, after the hearing, decide whether a ground for disciplinary action exists.[12] In making its decision, the tribunal must have regard to any relevant previous decision by a disciplinary committee of which the tribunal is aware.[13]
  4. [17]
    If the tribunal decides the ground for disciplinary action has not been established, and the teacher’s registration has been suspended, the tribunal must end the suspension. If the tribunal finds the ground has been established, the tribunal can make one or more of the orders in s 160.

Has the disciplinary ground been established

  1. [18]
    The College relies on the disciplinary ground in s 92(1)(h), that the teacher is not suitable to teach.
  2. [19]
    Whether CMF is suitable to teach is assessed as at the date of the hearing.[14]
  3. [20]
    Suitability to teach’ is not defined specifically for the purposes of s 92. However, in Chapter 2, titled ‘Registration and permission to teach’, s 12(1) provides that, in assessing whether a person is suitable to teach, the College must have regard to, where a teacher’s registration was or is suspended:
  • the reason for its suspension;[15] and
  • whether the person is suitable to work in a child-related field.[16]
  1. [21]
    Further, s 12(3) provides:
  1. (3)
    Without limiting section 11 or subsection (1) or (2), a person is not suitable to teach if the person –
  1. (a)
    behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
  1. (b)
    otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
  1. [22]
    Section 12(3) should be interpreted in accordance with the meaning the legislature intended it to have.[17] A construction that promotes the purpose or object underlying the legislation is to be preferred to one that does not.[18] Section 3 of the EQCT Act provides:
  1. (1)
    The main objects of the Act are -
  1. (a)
    to uphold the standards of the teaching profession; and
  1. (b)
    to maintain public confidence in the teaching profession; and
  1. (c)
    to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.[19]
  1. [23]
    Section 12(3) contemplates two classes of conduct: that which is generally below the standard expected of a teacher; and, otherwise that which is disgraceful or improper. The general limb in s 12(3)(a) is not to be construed ejusdem generis with the ‘disgraceful or improper’ limb in s 12(3)(b). The limbs are, in our view, independent. The disgraceful or improper conduct need not relate to the teacher’s professional capacity as a teacher.[20]

The teacher behaves in a way that is below a standard of behaviour generally expected of a teacher

  1. [24]
    The general limb requires the teacher to have behaved in a way that failed to satisfy ‘the standard of behaviour generally expected of a teacher’. In considering the relevant standard, it was held in Queensland College of Teachers v Armstrong:[21]

… the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[22]

  1. [25]
    It is not the standard of behaviour expected by a particular school. It must be the standard of conduct of the whole of the teaching profession.[23] In this respect the College refers to the College Code of Ethics, approved as a Code of Practice by the College.[24]
  2. [26]
    Teachers are generally expected to maintain proper professional boundaries with students. CMF conceded that he had been taught not to touch students as a teacher.[25]

Or otherwise is disgraceful or improper conduct

  1. [27]
    In R v Teachers Appeal Board, Ex parte Bilney[26] it was observed that ‘disgraceful’ implies ‘something so dishonourable or disreputable as to warrant strong reprobation’.[27] There, a teacher previously convicted of offences relating to drugs for which he had been sentenced to four months imprisonment was guilty of disgraceful or improper conduct.
  2. [28]
    Further, it has been said that conduct which inappropriately abuses the power relationship between a student and teacher may reasonably be regarded as disgraceful or dishonourable, whatever form the abuse takes.[28]

Is CMF suitable to teach?

  1. [29]
    The conduct as agreed involved CMF tickling two year 5 students around the waist on three separate occasions in the course of a game of ‘hide and seek’ that three female year 5 students were playing. The third student, when asked whether she was ‘ticklish’ by CMF had replied ‘no’ and so CMF had not tickled her. On the fourth occasion, CMF had been alone with one of the same three girls and had tickled her on the waist from behind. CMF touched her on this occasion for at least 20 seconds. All of these events occurred over a period of two months.
  2. [30]
    On the facts as agreed, the conduct was not indecent, violent or sexual. Nor was it accompanied by any comments by CMF of a sexual or suggestive nature. On at least three of those occasions the students had approached CMF, either to help him set up the classroom or to complain about boys that were annoying them. On the fourth occasion, although the student was alone, the conduct occurred while the door to the demountable classroom was open and at a time when the student was just about to leave to go to a pre-Naplan breakfast.
  3. [31]
    While CMF admits his conduct was not appropriate, he denies it was indecent or in any way sexual.
  4. [32]
    The College admits that ‘physical contact and touching between teachers and students is a difficult area’.[29] It submits however that the tickling by CMF fell below standards generally expected of a teacher because ‘it involved a number of students on repeated occasions over two months’. Further, on each occasion that the conduct was ‘not invited or in any meaningful way responsive or related to a valid educational purpose’.[30] The College maintain that the tickling involved a substantial and repeated failure to respect professional boundaries and to respect students.[31]
  5. [33]
    The College also submit that CMF lacked insight into his conduct and has minimised his behaviour by qualifying ‘inappropriate’ to mean not ‘best behaviour’.
  6. [34]
    In deciding whether a person is ‘unsuitable to teach’ the tribunal can take into account ‘any other matter’.[32] In this respect, the tribunal takes into account CMF’s professional history as a teacher. CMF is an experienced teacher who was first registered in 1975. He commenced teaching when he was 21 years old, retired from Education Queensland at 55 and continued to work as a supply teacher. He was 69 years old at the time the relevant conduct occurred. For his entire career as a teacher, spanning nearly 50 years, he has an otherwise unblemished record.
  7. [35]
    The tribunal also takes into account the further submissions by the respondent dated 20 June 2016 and the Medical Report by Dr Alan Keen, a consultant clinical psychologist dated 14 April 2016. Dr Keen said that CMF ‘reported remorse’ for what occurred.[33] Dr Keen also concluded that CMF does not show any disorders which suggest he imposes an elevated risk in dealing with children.[34] Dr Keen concluded, however, that were the tribunal to find that CMF was suitable to teach, that CMF may benefit from 3 months supervised practice under the supervision of a qualified mentor/teacher/colleague as this might increase CMF’s understanding of current rules and regulations in relation to dealing with children.[35]
  8. [36]
    We are not satisfied taking into account the criteria in s 12 and the evidence before the tribunal that CMF is now, at the time of the hearing, not suitable to teach.
  9. [37]
    Although the conduct, when it occurred, fell below the standard of behaviour the community or teaching profession would generally expect of a teacher in that it transgressed professional boundaries, it was not conduct which we find, in view of other relevant matters,[36] makes CMF unsuitable to teach at the present time.
  10. [38]
    The other matters we have taken into account include the expressed remorse by CMF, his long career as a teacher coupled with an otherwise unblemished record and the uncontradicted evidence from clinical psychologist, Dr Keen to the effect that his clinical observations of CMF do not indicate an elevated risk in dealing with children.
  11. [39]
    Accordingly, we find that no ground for disciplinary action has been made out. In view of this, pursuant to s 159 of the EQCT Act we must end the suspension.

Conclusion

  1. [40]
    For the reasons above, the case presented by the College has not established that CMF is, at present, not suitable to teach and has not therefore established that the disciplinary ground in s 92(1)(h) has been met.
  2. [41]
    Accordingly, the suspension of CMF’s teacher registration is ended.

Footnotes

[1]EQCT Act s 48.

[2]Ibid, s 53.

[3]Ibid, s 91; disciplinary information referred to in the Further Amended Referral of the College dated 24 December 2015.

[4]EQCT Act s 97(1).

[5]EQCT Act, s 92(2)(a)(i).

[6]Queensland College of Teachers v CMF [2016] QCAT 137.

[7]Order made 23 May 2016.

[8]EQCT Act, s 97.

[9]Ibid, s 97(4)(a).

[10]Ibid, s 97(4)(b).

[11]“Annexure A” to Further Amended Referral of Disciplinary Matter to QCAT dated 24 December 2015.

[12]EQCT Act, s 158.

[13]Ibid, s 158(2).

[14]Queensland College of Teachers v CMF [2016] QCAT 137; Queensland College of Teachers v GHI [2012] QCAT 182.

[15]EQCT Act, s 12(1)(a)(iv)(B).

[16]Ibid, s 12(1)(b).

[17]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[18]Mills v Meeking (1990) 169 CLR 214 at 235.

[19]EQCT Act, s 3.

[20]R v Teachers Appeal Board; Ex parte Bilney (1984) 35 SASR 492.

[21]Queensland College of Teachers v Armstrong [2010] QCAT 709.

[22]Ibid [33].

[23]Davidson v Victorian Institute of Teaching (Occupational and Business Regulation) [2007] VCAT 920 [145].

[24]EQCT, s 290.

[25]Submissions of the Queensland College of Teachers, 24 December 2015 at [58].

[26](1984) 35 SASR 492.

[27]Ibid 494.

[28]Davidson v Victorian Institute of Teaching (Occupational and Business Regulation) [2007] VCAT 920.

[29]Submissions of the Queensland College of Teachers dated 24 December 2015 at [50].

[30]Ibid, at [51].

[31]Ibid, at [55].

[32]EQCT Act, s 12(2).

[33]Report by Dr Alan Keen, 14 April 2016 at 5 [10].

[34]Ibid at 5 [35].

[35]Report by Dr Alan Keen, 14 April 2016 at 6 [10].

[36]EQCT Act, s 12(2).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v CMF (No. 2)

  • Shortened Case Name:

    Queensland College of Teachers v CMF (No. 2)

  • MNC:

    [2016] QCAT 290

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan, Member Macdonald, Member Traves

  • Date:

    15 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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