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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v ATL  QCAT 59
Queensland College of Teachers
Occupational regulation matters
24 February 2020
On the papers
Member Kanowski, Presiding Member
EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GENERALLY – where teacher had a sexual relationship with a current student and a former student – whether the teacher provided extra academic assistance to the current student because of the relationship – whether the teacher should be excluded permanently from the teaching profession
Education (Queensland College of Teachers) Act 2005 (Qld), s 92, s 160
Queensland College of Teachers v Mills  QCAT 476
Queensland College of Teachers v RTM  QCAT 501
Queensland College of Teachers v SGS  QCAT 383
Queensland College of Teachers v VK  QCAT 268
REASONS FOR DECISION
- ATL gained registration as a teacher in Queensland in November 2010. He taught as a high school teacher at a school from 2011 until the Queensland College of Teachers (‘the College’) suspended his registration on 9 July 2018. The College suspended his registration after it became aware of reports that he had been in a sexual relationship with one of his year 12 students in 2017. This student, whom we will call Student A, was in ATL’s geography class. The College also became aware of reports that ATL had a relationship with a former student, whom we will call Student B, over a number of years. Student B had been in ATL’s English class when she was in years 11 and 12, in 2012 and 2013.
- ATL’s registration as a teacher remains suspended.
- The College has referred to the Tribunal the matter of whether a ground for disciplinary action exists against ATL and, if it does, what disciplinary action should be taken. Disciplinary proceedings are under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Queensland College of Teachers Act’).
- The College made the referral to the Tribunal on 29 March 2019.
The allegations made by the College
- The allegations made by the College, in the order they are listed in the referral, are summarised below.
- First, that after 17 May 2017, ATL engaged in electronic communication by text message with Student A.
- Second, that between 17 and 19 May 2017 on a geography excursion to an island, he spent time alone with Student A looking at the stars.
- Third, that after 19 May 2017, ‘he continued an ongoing inappropriate and/or intimate and/or sexual relationship’ with Student A, including:
- (a)on more than one occasion, allowing her to attend his residence outside of school hours;
- (b)on more than one occasion, he engaged in sexual intercourse with her;
- (c)he kissed Student A on the shoulder during a FaceTime call between Student A and Student C (another year 12 student in 2017);
- (d)he received gifts, namely shorts and a watch, from Student A; and
- (e)between 18 and 20 August 2017, he travelled with Student A to Hervey Bay (which is some hundreds of kilometres from the town where the school is located).
- Fourth, that he provided ‘an inappropriate and excessive amount of assistance with assessments’ to Student A including:
- (a)on 18 June 2017 he emailed Student A a ‘substantially completed English advertising presentation’;
- (b)on 9 August 2017 he emailed Student A answers to the questions on her geography examination;
- (c)around 24 August 2017 he completed a substantial part of Student A’s geography examination by writing her answers on the examination paper; and
- (d)on 7 September 2017 he completed and emailed to Student A an ‘English Hamlet presentation’.
- Fifth, on a date between 18 November 2017 and 22 February 2018, he commenced living with Student A, who was by then a ‘former student’.
- Sixth, on 2 September 2017 he sent a message on Facebook Messenger to Student D (another year 12 student in 2017) saying:
Hey [contraction of Student D’s first name], could you check if [Student A] is ok? She left my house really suddenly just before and I don’t know why. Kinda worried.
- Seventh, in August 2014 he commenced an intimate relationship with Student B (the student who had finished school in 2013).
- Eighth, between August 2014 and December 2017, he engaged in sexual intercourse on numerous occasions with Student B.
- We note that ATL was born in April 1986. He was therefore 31 years of age during the events of 2017. Student A was 17.
- When the relationship with Student B started, ATL was 28 and Student B was 18.
ATL’s response to the allegations
- ATL was initially legally represented in the proceeding, though that representation ended by August 2019.
- On 8 July 2019 ATL’s lawyer filed a response indicating that ATL agreed with all of the allegations except the fourth.
Hearing on the papers
- The referral has been decided on the papers. This method arose from a direction made at the conclusion of a compulsory conference in July 2019.
- The Tribunal made directions for the parties to file a joint statement of agreed facts and list of questions for determination; for submissions to be filed by the College; then submissions by ATL; and then submissions by the College in reply. However, a joint statement was not filed. We accept the College’s explanation for that, which is as follows. The College says it emailed ATL a proposed joint statement. He responded by email that everything was in order except for a comment that he had been Student A’s form teacher, as this was incorrect. The College then amended the proposed joint statement accordingly, with a request for ATL to sign and return it, but he did not.
- The College filed its written submissions on 5 September 2019. ATL’s submissions were due by 30 September 2019, but he has not filed any. He did, however, sign a procedural application on 23 October 2019.
The allegations other than the fourth allegation
- The allegations have been set out above, at paragraphs 6 to 13. As has been mentioned, ATL agrees with the allegations other than the fourth (which relates to academic assistance to Student A). The allegations relate mainly to his relationship with Student A, but also to his relationship with Student B, and his interactions with Students C and D.
- The College has filed a large volume of investigation records. These provide detail and context, as well as denials of several critical matters by ATL and Student A. The records include transcripts of interviews with various students, ATL and other teachers. There are also numerous emails, text messages and social media exchanges. Some of these are between ATL and Student A, and confirm the intimate nature of their relationship in 2017. There is also a copy of a star picture emailed by Student A to her school email account in August 2017. It shows the position of the stars above the island visited on the geography trip, as at 17 May 2017. The picture bears the message: ‘On this night, under these stars, we started our journey. I love you [ATL’s first name]’.
- Students A, B, C and D were all interviewed by investigators in 2018.
- Student A told investigators in September 2018 that ATL was her geography teacher in years 11 and 12, in 2016 and 2017. She denied any sexual relationship with him in 2017, and she denied having travelled to Hervey Bay with him in August 2017. We note that these denials are inconsistent with ATL’s admissions in the current proceeding. Student A told investigators that she started a relationship with ATL just before May 2018, and they moved in together in May 2018. We note that this is later than ATL has admitted.
- Student B told investigators that ATL was her English teacher in years 11 and 12, in 2012 and 2013. She said that in about April 2014 she and ATL began communicating on social media. They then met up in about August of that year, and soon after that they started a sexual relationship. The relationship was on/off until 2017. The relationship became an ‘online sexual relationship’ after she moved a long distance away in May 2017. It ended in December 2017. ATL cut off contact when Student B found out about ATL’s relationship with Student A.
- Student C told investigators that she had been a friend of Student A, and that she learned from Student A in 2017 about her sexual relationship with ATL. She also saw pictures of the trip to Hervey Bay. She described the shorts and the watch that Student A gave ATL. Student C also described a FaceTime call between herself and Student A. During that call, Student A was in ATL’s bedroom and he kissed her on the shoulder.
- Student D told investigators that she had been a friend of Student A. She gave a similar account to Student C, describing how Student A had told her in 2017 about the sexual relationship. She discussed gifts exchanged between ATL and Student A, the trip to Hervey Bay, and how and where ATL and Student A would meet up. Student D also described Student A receiving text messages from ATL during class. Student D showed investigators the message she received from ATL on Saturday 2 September 2017, which is quoted in paragraph 11 above. The screenshot shows that the message was received at 9.08 pm.
- Several of the students and teachers who were interviewed spoke of strong perceptions amongst the senior students that ATL favoured the girls. For example he would sit with or near the girls at lunchtime. One teacher described it as over-familiarity. Some students mentioned signs of particular interest by ATL in Student A, and favouritism toward her.
- Students and teachers described rumours that swirled around the school, as the year progressed, of the relationship. Friends of Student A described how she became upset by this and demanded that they delete messages that might provide evidence of the relationship. Not all complied.
- ATL was interviewed by investigators in April 2018. During the interview he discussed having had a relationship with Student B. In relation to Student A, he said that in 2017 he was concerned about her when he learned that she ‘had been kicked out of home and a few other things’. He denied spending time alone with Student A, looking at the stars, on the geography trip. He denied receiving gifts from her. He said that she had not been to his home. When he was asked about the message of 2 September 2017 from him to Student A’s friend, he said he did not remember it. After investigators described information from other students about the circumstances of that evening, ATL said he recalled messaging Student A because of concerns about her mental health. Asked why the message was sent on a Saturday night, he said he could not recall. After investigators described messages between Student A and ATL discussing whether they had a future together, ATL said that as at September 2017 he and Student A were contemplating a future intimate relationship. However, he said, no physical intimacy occurred between them in 2017. He said that they had spoken of living together in the future, but that never eventuated.
- In light of the admissions that ATL has made in the current proceeding, it is apparent that he was far from frank during the interview and that he lied about several matters concerning Student A. These include the incident on the island, the development of a sexual relationship, Student A visiting his home, Student A giving him gifts, and them living together after Student A graduated.
- Taking into account ATL’s admissions in this proceeding, the evidence of other students, and the circumstantial evidence such as electronic messages obtained by investigators, we find that a sexual relationship developed between ATL and Student A in 2017, after the geography trip in May. We find that the matters described in the first to third, and fifth to eighth allegation made in the referral occurred.
Fourth allegation: excessive academic assistance to Student A
- The four instances of alleged excessive academic assistance are set out in paragraph 9 above. Emails relied on for three of the instances are in the bundle of documents supplied by the College. The examination paper referred to in the other instance is also in the bundle of documents. ATL accepts that he provided assistance to Student A, but he says it was appropriate in the circumstances.
- The allegations are serious. Before we could be satisfied on the balance of probabilities that they are proved, we would have to be reasonably satisfied of their truth on the basis of solid evidence.
- In evaluating the evidence, it is relevant to note that special provisions were put in place for Student A under an individual student plan from 11 August 2017. Student A’s teachers were notified by memorandum on 11 August 2017 that Student A had become an ‘independent student’ and was eligible for special provision. The memorandum explained that Student A had experienced difficult family circumstances and she was finding school difficult as a result. She was having to work in paid employment most days of the week to support herself. She was now living in a different location, resulting in extra travel time. She was short of time and exhausted. The memorandum said that Student A might require some extensions for assignments. Teachers were asked to annotate Student A’s folio to indicate ‘where special provisions have been applied’.
- The first instance of alleged excessive assistance concerns an advertising presentation for English. Students were required to make presentations discussing the strategies and effectiveness of two product advertisements. ATL taught English, but Student A was in another teacher’s English class.
- The emails show that on 18 June 2017, Student A emailed ATL a draft of her presentation. There was no explanation in the email of why she was sending this. About 50 minutes later, ATL sent an email back to Student A attaching a considerably expanded draft and eight still images from one of the advertisements. His email said:
I may have gotten carried away …
I've done your analysis and target audience stuff. You just need to say whether they are effective ads or not. I’ve also clipped a few images from the video you can use in your presentation.
If you want more help, let me know.
- The presentation given by Student A incorporated the text provided by ATL with some amendments and additions. She used the images he had sent.
- When investigators interviewed ATL, they asked him if he had informed Student A’s teacher of the assistance. He said he could not recall doing so. He said he helped other students as well. He added that he thinks he was helping Student A ‘because of the special provisions’.
- The College, however, points out that the special provisions did not come into effect until 11 August 2017.
- It is apparent that ATL completed a substantial part of the work for Student A. His own email to the student acknowledged that he may have become ‘carried away’. There was a sexual relationship between ATL and the student. The assistance was given informally, and without notification to Student A’s English teacher. In all of the circumstances, we consider it highly likely that ATL provided this assistance as a favour for Student A, rather than as part of any effort to carry out his duties as a teacher.
- We find that the assistance provided by ATL was excessive.
- This involves providing answers to questions on a geography examination.
- On 9 August 2017 ATL emailed Student A an attached document entitled ‘Study notes – 12Geo’. As has been mentioned, ATL was Student A’s geography teacher. This was a few days before the geography students were to sit a ‘short response test’, on 15 August 2017.
- The only comments in the email itself were:
Head of Year
English and Humanities Teacher
- The attached study notes were three pages in length. The College submits, and we accept, that Student A’s answers on the examination were substantially similar to the information in the study notes. Further, as the College submits, the study notes contained the ‘minimum required answers’ for the examination. For example, the notes contained definitions of four terms, and the examination called for students to give the definitions for four out of six terms which included the four in the study notes. We accept that in this way the study notes were directed specifically to the test, rather than revising a larger number of definitions covered in the course.
- When ATL was interviewed by investigators, he described the notes as a study guide. He said they contained information that was provided to all students in the class, although not by email. ATL said that while he cannot recall why he sent the email, it may have been that Student A missed the examination preparation dates at school. Asked about the ‘love ya’ comment, he described it as ‘tongue in cheek joke’.
- We do not find ATL’s explanations convincing. We accept the College’s submissions that in providing the study notes to Student A, ATL gave greater assistance to Student A than to other students. We find that the motivation was the personal, rather than the professional, relationship between ATL and Student A. The comment ‘love ya’ was not merely a joke. The study notes were provided two days before the special provisions commenced, though the test was done two days after. Nonetheless, as the College submits, ‘the assistance exceeded what might be appropriate under the special provisions’.
- This involves assistance in a geography examination on or about 24 August 2017.
- There is no dispute that the answers in Part B of Student A’s examination paper are in ATL’s handwriting. His explanation to investigators was that he merely acted as a scribe for Student A:
She was pretty stubborn, occasionally, and wouldn't want to work. And I didn’t want her to throw away her assessment.
But in the exam, under the guidance of special provisions I did not see a problem with writing down her responses, cause she was having like a mini panic attack or something, whatever, just refusing to do anything.
- ATL said that other students would not have overheard, because there would not have been many students and they were spread out over two rooms.
- Student D gave a different version of events to investigators. She said that Student A was frequently absent from school and would often miss examinations. Student D added:
ATL would be like alright, you need to at lunchtime come to the library and do your exam. But he’d sit like from me to you away with her and like tell her the answers.
… he was literally writing on the paper.
… she would just pretty much sit there saying oh, I don’t know (ui) oh, come on, I've nearly done like (ui) nearly done your whole exam, you need to do at least one question. She’s like I can’t be bothered and he’s like come on, I’m not going to let you fail and all this stuff.
- The College submits, and we accept, that Student D was probably referring to the examination paper we have discussed. Although the focus of the examination paper was population growth and economic development, rather than ‘global warming’ specifically, one of the country variables to be addressed in drawing ‘development diamonds’ was ‘C02 emissions (metric tonnes per capita)’.
- While it appears that the friendship between Student D and Student A had ended, after arguments, by the time of Student D’s interview, there has been no suggestion put forward of any particular motivation that Student D would have to lie to investigators. On the other hand, we are satisfied that ATL did lie to investigators about a number of matters. When we also take into account the nature of the relationship between ATL and Student A, and the other academic assistance he had been willing to give her, we prefer Student D’s version to ATL’s about the circumstances of the geography examination.
- We find that ATL provided at least the majority of the answers that he wrote, rather than merely acting as a scribe. We find that this assistance to Student A went well beyond any assistance that may have been warranted under the special provisions.
- This relates to the Hamlet presentation for English.
- On 9.27 pm on 7 September 2017 ATL emailed to Student A an attached document ‘Hamlet Speech’. The email itself said:
Head of Year
English and Humanities Teacher
- The attached text for the speech ran to almost a page.
- The next day Student A gave the presentation, and provided the text of her speech to her English teacher. It reproduced the document sent by ATL, with a few lines added.
- ATL told investigators that he recall helping Student A in the library with a Hamlet assignment. He said her computer was broken, so the text was written on his and he emailed it to her that night or the next night. He said he would have provided similar assistance to other students. While he said he would not have informed Student A’s English teacher in writing of the assistance, he ‘wouldn't have kept it a secret’.
- He went on to justify the assistance he had provided to Student A on various occasions on the basis of the special provisions but he conceded ‘stepping over the line in terms of English’.
- Again, Student D gave a different version to investigators:
Like she would go to his house and there would be times where I would be Facetiming [Student A] and he’d be at, she’d be at his house and yeah, she’s, be like doing her English and [ATL] is sitting there pretty much actually doing it for her.
- Asked to explain more about a specific incident, Student D said:
… he was typing and she’s like oh, she’d kind of make a joke out … she’s like look, I don’t have to do anything pretty much.
… it was an oral for Shakespeare, it was due the day after like the day before that and she hadn't started yet. And she, yeah, she hadn't read the book or anything either.
- Again, in all of the circumstances, we regard Student D’s version of events as more credible than ATL’s. We find that ATL provided assistance well beyond what might be justified on the basis of the special provisions. Again, the comment ‘luv ya’ was telling. We also find, contrary to ATL’s assertions, that he kept the assistance a secret from Student A’s English teacher.
Is a ground for disciplinary action established?
- The College submits, and we accept, that a ground for disciplinary action against ATL under the Queensland College of Teachers Act is established: that he has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher. Clearly, conducting a sexual relationship with a current student, and favouring that student by giving excessive academic assistance, are behaviours inconsistent with community expectations of teachers. Teachers are expected to act professionally, and to avoid over-familiarity and favouritism.
- Available sanctions range from taking no further action through to cancellation of registration and prohibiting the teacher from reapplying for registration or permission to teach for a stated period or indefinitely.
- The purpose of sanction is not punishment, but furtherance of the objects of the Queensland College of Teachers Act. These include upholding standards in the teaching profession, maintaining public confidence in the profession, and protecting the public.
- The College submits, and we accept, that ATL breached professional boundaries in multiple ways in conducting himself with Student A. He was an experienced teacher and she was only 17. In addition to the personal relationship, he provided excessive academic assistance.
- Although the relationship with Student A was not hidden from some of her friends, it is apparent that she felt the increasing pressure of trying to hide evidence of the relationship from the authorities as rumours escalated.
- The College also notes that Student B had been in ATL’s classes in years 11 and 12. The College’s submissions also refer to messages between ATL and another former student, with whom he said he had an online relationship. The College concedes that there is no evidence that the relationship was sexual. However, it is apparent from the messages that it was some sort of close relationship. The College points out that the relationships with the two former students overlapped with the relationship with Student A. Although there are no allegations in the referral about this other former student, ATL has had the opportunity to respond to the College’s submissions but he has not done so.
- A matter of significant additional concern, in our view, is ATL’s approach when interviewed by investigators. Far from acknowledging fault, he was evasive and he told lies about many critical matters.
- In the referral in March 2019, the College sought cancellation of ATL’s registration. It also sought a prohibition on reapplying for registration for six to eight years, together with a requirement for a detailed psychological report to be submitted with any reapplication for registration. In its submissions of September 2019, however, the College said that it had reconsidered the question of sanction. Its primary submission is now for cancellation with an indefinite prohibition on reapplying for registration.
- The College has drawn our attention to three previous decisions, by way of guidance.
- Queensland College of Teachers v VK involved a teacher in her late thirties who was approximately three years into her teaching career. She socialised with senior students at her home. She formed a close friendship with a student, and had sex with seven former students. Not all of the students had been taught by VK, though all had attended the school at which she had taught. There was psychological evidence that the conduct happened in a period when the teacher was depressed and needy, and that the risk of further similar conduct was low. There was also evidence of positive behavioural change by the teacher. The Tribunal cancelled the teacher’s registration and prohibited her from reapplying for five years.
- Queensland College of Teachers v RTM involved a teacher who began an over-familiar relationship with a year 11 student. The relationship became sexual after the student turned 18, near the end of year 12. The teacher was then aged 35 and had been registered for 11 years. The relationship continued for several months after the student graduated. The teacher denied the allegations when interviewed, but did not contest the allegations in the proceeding before the Tribunal. There was no indication of insight or remorse. The Tribunal cancelled the teacher’s registration and prohibited him from reapplying for seven years.
- Queensland College of Teachers v SGS involved a sexual relationship between a 42 year old teacher and a 17 year old student. The relationship commenced soon after the teacher was transferred from the school the student attended to another school. He had not taught her. The relationship also continued after the student’s graduation. The teacher ‘acknowledged his wrongdoing’. The teacher was no longer registered by the time of the Tribunal’s decision. The Tribunal decided to prohibit him from reapplying for seven years.
- In all of these cases, the Tribunal imposed a requirement that a detailed psychological report must accompany any reapplication for registration. The reports would need to address whether the teacher had gained awareness of the importance of professional boundaries, and so on.
- We consider that the conduct in ATL’s case was, overall, more serious and brazen than the conduct in the other cases. He was an experienced teacher who conducted a sexual relationship with a current student. He gave her excessive academic assistance because of their relationship. He lied about many relevant matters when interviewed. His propensity to pursue relationships with current and former students is apparent.
- ATL has accepted most of the allegations in the current proceeding, but he must have realised that there was a very strong case against him. There is no indication of any extenuating circumstances, remorse, insight or behavioural change.
- The community places trust in teachers to conduct themselves appropriately with students, who inevitably have a degree of vulnerability because of their youth and inexperience. There will be many students who have added vulnerability because of unsettled personal circumstances. ATL has demonstrated that the trust placed in him was misplaced. He not given us any reason to suppose that he now warrants this trust or that he has any commitment to change.
- Cancellation of registration is clearly required, together with a prohibition on reapplication. Whether that prohibition should be for a stated period or indefinite depends on whether a prohibition that is less than permanent will adequately meet the objectives of the Queensland College of Teachers Act. In the absence of any evidence that ATL has reformed or is likely to change his behaviour, we consider that an indefinite prohibition is required in order to maintain standards in the profession, uphold public confidence in the profession, and protect future students.
Should the non-publication order continue?
- On 15 May 2019 the Tribunal ordered that publication was, until further order of the Tribunal, prohibited of any information that may identify ATL, any of the relevant students, or the relevant school. This should now be reconsidered, at the conclusion of the hearing process.
- The Tribunal may prohibit publication of information where that is necessary for specified reasons or necessary in the interests of justice.
- In Queensland College of Teachers v Mills, the Tribunal observed:
The ordinary course is that full publication of the proceedings will occur. This reflects the principle of open justice. This principle aims to ensure that court proceedings are fully exposed to public scrutiny and that the integrity and independence of the courts is maintained.
In disciplinary matters there is a deterrent effect in publishing details of the person the subject of the sanction.
… The discretion [to prohibit publication] is not to be exercised lightly …
… a non-publication order is not appropriate in order to avoid the unfortunate consequences of a person’s behaviour.
- The College submits that publication of ATL’s name is likely to lead to identification of the students, and that it is not in the interests of justice for student witnesses to be identified. ATL indicated in an email to the College in August 2019 that he does not want the case to be on the ‘public record’.
- We accept that it would be contrary to the interests of justice for the students to be identified. Students A and B, as young people taught by ATL, should not be subjected to public attention as a result of his conduct. Other students who provided information should also not be subjected to public attention: they are young people who provided information to the College in the course of its investigation. The flow of information to the College about misconduct by teachers would be impacted if students could not expect confidentiality when assisting the College.
- As the events in question are recent, and they happened in a fairly small community, we consider it likely that identification of the teacher or the school would lead to identification by many in the community of the students. Therefore it is necessary to prohibit publication of the identity of the teacher and school.
- The College has suggested a number of exceptions, to enable it to inform authorities and for ATL to inform his health practitioners. We will adopt those suggestions.
- It is also appropriate to make an order that the file not be available for inspection by the public. Without such an order, members of the public could learn the identity of the students by inspecting the file.
- The effect of the Tribunal’s orders is that ATL will not be allowed to teach again in Queensland.
 Bundle of documents, 331.
 Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
 Bundle of documents, 482.
 Ibid, 408.
 Ibid, 362.
 Ibid, 428.
 Applicant’s submissions filed 5 September 2019, .
 Bundle of documents, 369.
 Applicant’s submissions filed 5 September 2019, .
 Bundle of documents, 352-353.
 Ibid, 30.
 Ibid, 32.
 Ibid, 455.
 Ibid, 433.
 Ibid, 372.
 Ibid, 373.
 Ibid, 29.
 Ibid, 33-34.
 Section 92(1)(h).
 Queensland College of Teachers Act, s 160.
 Ibid, s 3(1).
  QCAT 268.
  QCAT 501.
  QCAT 383.
 Ibid, .
 QCAT Act, s 66.
  QCAT 476, [2-3], footnote omitted.
 Ibid, .
- Published Case Name:
Queensland College of Teachers v ATL
- Shortened Case Name:
Queensland College of Teachers v ATL
 QCAT 59
Member Kanowski, Member Fitzpatrick, Member Grigg
24 Feb 2020