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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v PPK (No 2)  QCAT 270
QUEENSLAND COLLEGE OF TEACHERS
Occupational regulation matters
3 September 2019
21 August 2019
EDUCATION – SCHOOLS – GOVERNMENT SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS – where earlier decision found disciplinary ground established – where decision on sanction only – where agreed submissions as to sanction
Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h), s 161
Queensland College of Teachers v ALE  QCAT 143
Queensland College of Teachers v Derbyshire  QCAT 536
Queensland College of Teachers v PPK  QCAT 59
Queensland College of Teachers v SGS  QCAT 383
Queensland College of Teachers v Teacher FDA  QCAT 224
Queensland College of Teachers v WAS  QCAT 61
D Dupree, Acting Principal Legal Officer of the Queensland College of Teachers
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- On 11 March 2019, the Tribunal found that PPK had behaved in a way not generally expected of a teacher and, accordingly, that the ground for disciplinary action under s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Education Act’) was established. The Tribunal ordered that the parties file any submissions as to sanction by 25 March 2019. The Queensland College of Teachers (the College) filed such submissions on 25 March 2019. PPK filed submissions on 16 April 2019 which simply provided that he ‘accept[ed] the decisions and sanctions outlined by the QCT in this matter’.
- On 14 May 2019 PPK was removed from the QCT register for non-payment of the annual fee. PPK is therefore a ‘former approved teacher’ for the purposes of the Education Act.
- The Tribunal relies on the findings in its previous decision. We do not propose to repeat the facts and circumstances which gave rise to our decision, except where necessary in our consideration of the appropriate sanction.
- The QCT has submitted that the appropriate sanction in this case is to prohibit PPK from applying for registration or permission to teach for three years from the date of the decision and to enter a notation on the QCT register requiring PPK, in the event he seeks registration, to obtain a psychology report which assesses PPK’s appreciation of, amongst other things, adherence to professional boundaries between teachers and students and the effect of inappropriate relationships with students and which assesses the status of PPK’s mental health at the time of his application for registration.
- For the reasons below we have determined that the appropriate sanction is to prohibit PPK from applying for registration or permission to teach for four years from the date of this order. We agree with the submissions of the QCT as to the need for a notation to be entered on the QCT register in terms similar to those proposed.
- The purpose of a disciplinary sanction is to further the objects of the Education Act. These are set out in s 3 and include upholding standards in the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring education is provided in a professional and competent way. Although punishment is not the purpose, general and individual deterrence are legitimate goals.
- When a ground for disciplinary action is established against a ‘former approved teacher’ the Tribunal may take action under s 161 of the Education Act. These actions include, where the Tribunal would have cancelled the teacher’s registration had he or she been registered, prohibiting re-registration for a stated period or indefinitely. There is also power to order that a particular notation or endorsement about the teacher be entered in the register.
- Had PPK been registered, we would have cancelled his registration. We have determined, having taken into account the parties’ submissions, that a four-year prohibition on PPK’s re-registration is appropriate. That period runs from the date of this decision. PPK is therefore eligible to apply for re-registration on 21 August 2023.
- QCT referred us to three previous decisions of the Tribunal involving comparable facts: Queensland College of Teachers v Derbyshire; Queensland College of Teachers v WAS; Queensland College of Teachers v Teacher FDA; and Queensland College of Teachers v SGS. The prohibition periods applied in those cases ranged from three years from the date of suspension to seven years from the lapse of registration. Of those decisions we consider Teacher FDA and SGS to be most relevant. In Teacher FDA the teacher was 27 and the student 17. There was no direct teacher/student relationship. The Tribunal found that a relationship commenced in November, around the time of her graduation, and that a sexual relationship commenced the following January. The teacher had not accepted the allegations referred by QCT but had made some admissions in his interview with his employer. A four-year prohibition period was imposed from the date of the order as was a requirement that a satisfactory psychologist assessment and report be submitted with any future registration application.
- SGS involved a relationship with a greater age disparity, namely between a teacher in his 40s and a 16/17 year old student. Again there was no direct teacher/student relationship. The student had disclosed to the teacher that she had been sexually abused and was found by the Tribunal to have been vulnerable. A sexual relationship was conducted over a period of months in the second half of her final year at school and continued the following year. The Tribunal found the conduct more serious than the conduct in WAS due to the length of their relationship, the frequency of their sexual conduct, the intensity of their texts, and the level of deceit. In that case a seven-year prohibition period was imposed from the date the teacher’s registration lapsed (as opposed to a six-year prohibition period from the date of suspension in WAS).
- We have also had regard to Queensland College of Teachers v ALE. In that case the teacher was 26 when the relationship commenced and had been registered a few years earlier. The student was in year 12 and was 16/17 at the relevant time. While they attended the same school, ALE did not teach the relevant student. ALE did however coach a school sporting team of which the student was a member. The relationship began with messaging on social media and quickly developed into a sexual relationship. ALE and the student had sexual intercourse on numerous occasions, including at the student’s home where she lived with her father. A four-year prohibition period from the date of the order was imposed. Relevantly, the Tribunal described the conduct of ALE as ‘exploitative’ and said:
We consider that ALE’s conduct was exploitative. Although the term ‘relationship’ is used, it was not a relationship in a romantic sense. It was, rather, a series of clandestine sexual encounters. The relationship was one that the student had to hide from family and friends in order to protect ALE…Overall, ALE took advantage of his position as a teacher and the availability of a student with limited family support for his own gratification and without regard for her long-term welfare.
- We regard those comments as apposite here.
- In our view, PPK’s conduct was similarly ‘exploitative’. Not only was Student A inherently vulnerable as an 18 year old school student, she was emotionally and financially vulnerable at the relevant time. There was a significant age disparity between PPK and student A (approximately 20 years) and a consequent difference in life experience and maturity. These factors added to the power imbalance already created by the teacher/student relationship.
- PPK was not a young and inexperienced teacher, as was the case in ALE or Derbyshire. He was 38 and was well aware that his conduct towards student A was wrong.
- The messaging between PPK and student A, as we have noted in our earlier decision, was predatory, overbearing and inappropriate. It is not necessary to repeat the content of those messages here but they were highly sexual and graphic and included nude masturbation videos and photographs of PPK’s penis. They were not, for example, on the same level as the more benign communications in Derbyshire (without condoning the teacher’s conduct in that matter).
- There was also, in our view, a disturbing lack of remorse by PPK. His submissions were that his conduct towards student A was not inappropriate and that there was no power imbalance or exploitation between them. This failure to take responsibility for his inappropriate conduct and an apparent lack of insight into the potential harm and long-term impacts of his conduct on student A is also concerning.
- In terms of mitigating factors, we acknowledge that PPK’s registration has been suspended since 18 January 2017 and that PPK made admissions relating to the exchange of text messages and having had sexual intercourse with student A.
- We consider that a four-year period of prohibition from the date of the Tribunal’s order is appropriate when balancing the various factors referred to above and in view of the authorities discussed above.
- We agree that a notation should be imposed on the register in terms similar to those proposed by the QCT.
- On 20 August 2018 the Tribunal made an order that, until further order, the publication of any information that may identify the student, her family, school or staff at the school was prohibited.
- We consider that a permanent order should now be made under s 66 of the QCAT Act to protect the student. Publication of the teacher’s name would potentially identify, or confirm the identity of, the student within the school community. We consider that this would endanger the mental health of student A, particularly in view of the contents of the messages and our findings about the nature of the relationship. We do not agree with the submission by QCT that the publication of any information which identified student A’s identity is ‘not in the public interest’ and for that reason should be prohibited. The test in s 66(2)(d) allows the Tribunal to make a non-publication order where the publication would be ‘contrary to the public interest’. This is more onerous than the test applied by the QCT.
- The QCT have submitted that if a non-publication order is made which includes the name of the respondent, that an exception is made which enables the sharing of information for certain child-protection purposes. We agree and have expressed the non-publication order accordingly.
- We consider a substantial period of exclusion from the teaching profession is warranted due to the serious conduct of PPK. Any application for re-registration should be allowed by QCT only if it is satisfied, in light of a psychologist’s or psychiatrist’s report and any other relevant information, that PPK has gained sufficient insight which would make him suitable to teach.
 Queensland College of Teachers v PPK  QCAT 59.
 Education Act, Schedule 3.
 Queensland College of Teachers v ALE  QCAT 143,  citing Queensland College of Teachers v TSV  QCAT 186, .
 Education Act, s 161(2)(c).
 Education Act, s 161(2)(d).
  QCAT 536
  QCAT 61.
  QCAT 224.
  QCAT 383.
  QCAT 143.
 Ibid .
 QCAT Act, s 66(2)(b).
- Published Case Name:
Queensland College of Teachers v PPK (No 2)
- Shortened Case Name:
Queensland College of Teachers v PPK (No 2)
 QCAT 270
Member Grigg, Member Goodman, Member Traves
03 Sep 2019