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Queensland College of Teachers v Henderson[2018] QCAT 449

Queensland College of Teachers v Henderson[2018] QCAT 449

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Henderson [2018] QCAT 449

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

JAMES PETER KIRWAN HENDERSON

(respondent)

APPLICATION NO/S:

OCR105-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Kanowski

Member Grigg

Member Quinlivan

ORDERS:

  1. A notation is to be entered in the register of teachers that should James Peter Kirwan Henderson apply for registration or permission to teach, the application must include a psychologist’s report for which the following conditions are met:
    1. prior approval has been obtained from the Queensland College of Teachers for the preparation of the report by that psychologist;
    2. the psychologist has been provided with copies of the disciplinary referral made by the Queensland College of Teachers to the Tribunal on 26 April 2018 and the Tribunal’s disciplinary orders and reasons;
    3. the report includes an assessment of James Peter Kirwan Henderson’s appreciation of:
      1. differentiating between personal and professional relationships;
      2. the legal obligations of teachers and tutors;
      3. the development and maintenance of professional standards and physical boundaries when working with young people;
      4. how to actively determine and implement professional boundaries with individual students;
      5. how to assess risk and identify potentially problematic situations early;
      6. how to initiate realistic solutions for avoiding the risk of harm to students;
      7. the nature and extent of the trust and power invested in teachers by students, colleagues, parents and the community;
      8. behaviour that would compromise the professional standing of a teacher and the profession of teaching;
      9. the effects of inappropriate relationships with students; and
      10. the importance of adherence to the Queensland College of Teachers’ Code of Ethics;
    4. the report describes any therapy undertaken by James Peter Kirwan Henderson since June 2017; and
    5. the report describes James Peter Kirwan Henderson’s mental health at the time of the assessment.
  2. Publication of the names or other identifying details of any students involved in the matter, and of the school, is prohibited, except pursuant to Order 3.
  3. The name of the school may be provided to the psychologist for the purposes of Order 1.

CATCHWORDS:

EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher assaulted students – where teacher now a former teacher – whether a psychological report required before any re-registration 

Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(b), s 92(1)(h), s 161

Queensland College of Teachers v Smith [2011] QCAT 704

Queensland College of Teachers v Utz [2015] QCAT 247

REPRESENTATION:

Applicant:

C Lloyd, Principal Legal Officer, Queensland College of Teachers

Respondent:

Self-represented

APPEARANCES:

 

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

REASONS FOR DECISION

Introduction

  1. [1]
    This case is about whether Mr Henderson should be disciplined under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’). He was registered as a teacher in Queensland from 2005 until his registration was suspended on 11 August 2017. It was suspended because two female primary school students had complained of being assaulted by him. Subsequently, Mr Henderson did not seek to renew his registration, so it was cancelled on 26 June 2018.
  2. [2]
    Disciplinary action can be taken against former, as well as current, teachers.[1]
  3. [3]
    Meanwhile, in October 2017, Mr Henderson pleaded guilty in the Magistrates Court to two charges of common assault on the girls. The Magistrate fined Mr Henderson $1,200 but did not record a conviction.
  4. [4]
    The Queensland College of Teachers (‘QCT’) has referred the matter to the Tribunal. QCT submits that grounds for disciplinary action are established, and that the Tribunal should impose a requirement that before Mr Henderson can gain re-registration, he must obtain and provide a satisfactory psychological report.

The offences

  1. [5]
    The facts are undisputed.
  2. [6]
    The assaults occurred in June 2017. Mr Henderson was then 58 years of age. He was relief teaching a year 5/6 class. He had not previously taught the students. The girls assaulted were aged 10 and 11. The assaults occurred in class. Mr Henderson massaged one girl’s shoulders. While doing so he made a noise similar to blowing raspberries, and asked the girl: ‘Do you like back rubs?’ He massaged the back of the other girl and made a joke about her becoming a foot massager in the future. This amused other students.
  3. [7]
    When the matter was investigated, various students commented that they found the behaviour ‘weird’ and that it made them feel uncomfortable.
  4. [8]
    The Magistrate accepted that Mr Henderson massaged the girls ‘in a misguided effort to have rapport with the class’.

Are disciplinary grounds established?

  1. [9]
    ‘Conviction’ in the QCT Act includes the acceptance of a plea of guilty, whether or not a conviction is recorded.[2] There is no dispute that Mr Henderson has been convicted of indictable offences within the categories of offences mentioned in section 92(1)(b) of the QCT Act. Accordingly, a ground for disciplinary action arises.
  2. [10]
    QCT submits that a ground also arises under section 92(1)(h) of the QCT Act: that the teacher has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.
  3. [11]
    Mr Henderson’s behaviour was odd. It would have been disturbing not only for the two girls but also for other students in the classroom. It would have made many students uncomfortable and anxious.
  4. [12]
    We agree that the behaviour fell below the standard of behaviour generally expected of a teacher. We therefore accept that a ground for disciplinary action also arises under section 92(1)(h). 

What action is appropriate?

  1. [13]
    The purpose of disciplinary action is not to punish the former teacher, but to promote the objects of the QCT Act.[3] In summary, these relevantly involve upholding standards in the profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[4]
  2. [14]
    The actions that QCAT may take against a former approved teacher are set out in section 161 of the QCT Act. In summary, they are to take no further action, to order the payment of costs, to order that a particular notation be entered in the register, and, if QCAT would have cancelled the teacher’s registration if the teacher had still been registered, to prohibit the teacher from reapplying for registration for a period or indefinitely.
  3. [15]
    QCT submits that cancellation would have been appropriate if Mr Henderson had remained registered, but it does not press for a further period of exclusion from the profession in view of the time that has elapsed since Mr Henderson’s registration was suspended. Instead, QCT submits that the appropriate action would be for QCAT to order that a notation be entered in the register to the effect that a satisfactory psychological report will be required before Mr Henderson can be re-registered.
  4. [16]
    QCT has drawn our attention to the case of Queensland College of Teachers v Smith[5] where similar action was taken. That case also involved a mature, experienced teacher. He put his arm around two girls in class. They were aged 10 and 11. Additionally, he made sexual comments to those students. He displayed images of naked or scantily-clad women on his computer, and some students observed this. He also roughly handled an 11 year old boy.
  5. [17]
    It is apparent that the conduct in the Smith case was, overall, worse than in Mr Henderson’s case, but the Tribunal in the Smith case did not consider that a period of prohibition was warranted. This may have been influenced by the fact that the teacher had resigned soon after the conduct in question. He had been out of the classroom for some two years by the time the QCAT decision was made.
  6. [18]
    While we have had regard to the Smith decision in an effort to foster consistency, we are not bound by the approach taken in that case: we could for example impose a heavier sanction in this case if we felt that the approach does not meet current community expectations.
  7. [19]
    Mr Henderson has not made formal submissions on what action QCAT should take. In an email to the Tribunal dated 15 June 2018, he said that he completely accepts that massaging students is not considered acceptable behaviour. He said he had been ‘sin binned for long enough’ and added that he would be willing to undergo a psychiatric assessment. He mentioned that he had been under great stress at the time of the assaults, because his wife was unwell, but he added that he accepts full responsibility for his conduct. In an email to the Tribunal and QCT dated 27 August 2018, Mr Henderson again acknowledged that his behaviour had not been acceptable. He also advised that he would pursue alternative employment.
  8. [20]
    QCT has also drawn our attention to the fact that Mr Henderson has a previous conviction for assault. That offence was committed in 2004. It involved the uninvited hugging of a 16 year old girl who was Mr Henderson’s neighbour, when she returned a borrowed item to him. The offence summary indicates that the girl was distressed by the assault.
  9. [21]
    Taken together with the later assaults, it can be seen that Mr Henderson has a history of occasionally interacting inappropriately with young people. This may indicate a lack of understanding of what behaviour is appropriate and a lack of appreciation of how his behaviour affects others. In these circumstances, we agree with QCT’s proposal that a satisfactory psychological report should be provided before Mr Henderson can be re-registered as a teacher, should he seek re-registration.
  10. [22]
    On balance, we do not consider that we would have made an order cancelling Mr Henderson’s registration had he remained registered. In reaching this conclusion, we have had regard to the fact that the conduct was not hidden and was less serious than the conduct in the Smith case. We have also taken into account the fact that Mr Henderson underwent a period of suspension. This would have reinforced in his mind the need to avoid similar conduct in future. Accordingly, it is not open to us to prohibit Mr Henderson from reapplying for registration. 
  11. [23]
    We will adopt the substance of the proposals made by QCT in relation to the requirements for a psychological report. However, we will add a requirement for the prior approval of QCT for the particular psychologist to prepare the report. This will allow QCT to veto any proposed use of a psychologist without relevant expertise. 

Should a permanent non-publication order be made?

  1. [24]
    On 10 May 2018 QCAT prohibited, until further order, the publication of information which may identify the students, the school and the teacher. QCT submits that it would be in the interests of justice to make a similar order on a permanent basis, but to allow QCT to provide the QCAT decision to future employers, health practitioners, other teacher regulatory authorities, and the chief executive (employment screening).
  2. [25]
    It is important to ensure that students who make complaints against teachers are not identified in public. Otherwise, the students could be exposed to the glare of publicity, and other students would be deterred from coming forward with complaints.
  3. [26]
    In this case, identification of the school may lead to identification of the complainant students.
  4. [27]
    We consider it necessary in the public interest to prohibit publication of the names and other identifying details of the students and the school. We will prohibit publication, under section 66 of the QCAT Act, of those names and details. We are not, however, persuaded that it is necessary to prohibit publication of the name of the teacher. We do not consider that there is any real risk of harm to the students involved if the name of the teacher is known. There is a public interest in making available information about teachers who have been subject to disciplinary action. On this occasion, we consider that this public interest outweighs any risk of harm to the students involved in the investigation.
  5. [28]
    As the Tribunal’s reasons do not identify the students or the school, there is nothing stopping QCT making available the Tribunal’s reasons to any other entity it is entitled to supply with such information.
  6. [29]
    It is desirable to make a minor exception to the non-publication order in respect of the supply of information to a psychologist preparing a report under Order 1. This is to allow publication of the name of the school to the psychologist, simply because the name of the school (though not the students) is mentioned in the QCT’s referral documents.

Conclusion

  1. [30]
    The assaults committed by Mr Henderson raise legitimate concerns about his suitability to teach. Accordingly, we have imposed a requirement that with any application for re-registration he must provide detailed psychological evidence that will assist QCT in determining whether he is suitable to teach.

Footnotes

[1]QCT Act, s 161.

[2]QCT Act, Schedule 3.

[3]Queensland College of Teachers v Utz [2015] QCAT 247, [13].

[4]QCT Act, s 3(1).

[5][2011] QCAT 704.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v James Peter Kiran Henderson

  • Shortened Case Name:

    Queensland College of Teachers v Henderson

  • MNC:

    [2018] QCAT 449

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski, Member Grigg, Member Quinlivan

  • Date:

    19 Dec 2018

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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