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- Unreported Judgment
Queensland College of Teachers v ALE QCAT 143
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v ALE  QCAT 143
QUEENSLAND COLLEGE OF TEACHERS
Occupational regulation matters
29 May 2019
On the papers
Member Robyn Oliver
EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher engaged in sexual relationship with a student – whether disciplinary action warranted
Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h), s 161
Queensland College of Teachers v Derbyshire  QCAT 536
Queensland College of Teachers v Teacher FDA  QCAT 224
Queensland College of Teachers v TSV  QCAT 186
D Dupree, Acting Principal Legal Officer with 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) (‘QCAT Act’).
REASONS FOR DECISION
- The Queensland College of Teachers (‘QCT’) has made a disciplinary referral to the Tribunal in respect of a teacher whom we will identify as ALE. The referral was made because QCT became aware of sexual interactions between ALE and a female student.
- ALE’s teacher registration was suspended in March 2018. He did not seek to renew his registration later in 2018, so his registration was cancelled in September 2018. He is therefore a ‘former approved teacher’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Education Act’).
- There is no dispute about what happened, and the parties have provided an agreed statement of facts. Additional details are contained in the interview and statement of the student. ALE does not dispute her account of events.
- The conduct occurred between mid-2017 and January 2018. ALE was aged 26 for most of the time, but he turned 27 in January 2018. He had gained his teaching qualification in early 2014. He was first registered as a teacher in April 2014. It appears that he was overseas for a year or more from mid-2015.
- The student in question was in year 12 in 2017. She was aged 16 for most of the period in question. She turned 17 in December 2017.
- The student attended the school at which ALE taught, though he did not teach her. He coached a school sporting team to which she belonged. In mid-2017 the student apologised to the teacher for an incident that happened during a game. That night the teacher contacted the student on Instagram and apologised to her. Over the following days they communicated further on Instagram and Snapchat. Within a week or so, the communications gained a sexual edge, and ALE and the student had sexual intercourse. During the remainder of 2017, and into January 2018, ALE and the student had sexual intercourse on numerous occasions. The student lived with her father, and mostly the sex occurred at the student’s home while her father was at work. On other occasions they had sex at ALE’s father’s house. The teacher often drove the student to these locations. Meanwhile, the social media communications continued. They contained sexualised content, including the exchange of nude photographs of ALE and the student. They used aliases in their electronic messaging to reduce the risk of detection.
- According to the agreed statement of facts, ALE and the student decided to ‘end their relationship in January 2018’. By that time, of course, the student had finished school.
- The matter came to the attention of the school in late January 2018 when parents of other students notified the school. In February 2018, both ALE and the student were aware that the matter had been reported. According to the student, they were ‘both angry about the situation’.
- Several of the student’s friends had figured out that there was a sexual relationship between the student and ALE, though she denied it. Her father found out about it when the police rang him. According to the student, she had been terrified about her father finding out. The police investigated the matter but no charges were laid. The student told the police that ALE had not pressured her into having sex with him.
- ALE’s conduct breached various provisions of the Code of Conduct for staff that applies in the relevant school system. The Code forbids sexual relationships with students, and with ex-students ‘for a significant time’. The Code forbids driving students in teacher’s cars without the written permission of parents and the Principal. It forbids visiting students at home ‘without appropriate authority’. It permits social media communication with students only for educational purposes.
- School records indicate that ALE had undertaken student protection training in both July 2016 and January 2017.
- 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. He had used a pretext of concern to initiate private contact. However, his goal was gratification rather than assistance. Had the student been unwilling, she would have found herself in the very awkward situation of having to resist the advances of a significantly older man who was both a teacher and her sports coach. ALE then took advantage of the fact that the student did not have a parent at home after school to provide oversight. 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.
Is a ground for disciplinary action established?
- QCT contends, ALE accepts, and we agree that ALE behaved in a way that does not satisfy the standard of behaviour generally accepted of a teacher. Far from maintaining proper professional boundaries, ALE engaged in repeated sexual encounters with the student in breach of community standards and the Code of Conduct. He abused the trust which the school and the community placed in him to advance the welfare of students.
- As QCT submits, the position of teachers, disparities in age, maturity and life experience, and the inherent vulnerability of young people lead to ‘a power imbalance between teachers and students which must not be exploited’. In this case, that imbalance was exploited by ALE. As QCT submits, ALE ‘put the student … at risk of psychological and emotional harm’.
- The ground for disciplinary action of behaviour ‘in a way … that does not satisfy the standard of behaviour generally expected of a teacher’ is established.
- The purpose of a disciplinary sanction is to further the objects of the Education Act. These include upholding standards in the profession, maintaining public confidence in the profession, and protecting the public. While the purpose is not punishment of the teacher, individual and general deterrence are appropriate goals.
- When a ground for disciplinary action against a former approved teacher is established, the Tribunal may take action under section 161 of the Education Act. These actions may include, where the Tribunal would have cancelled registration had the teacher remained registered, prohibiting re-registration for a stated period or indefinitely.
- Had ALE remained registered, we would have cancelled his registration.
- QCT submits that the appropriate action would be for the Tribunal to prohibit re-registration for between four and five years from the date of suspension, and to order that a notation be entered in the register that a psychologist’s report must accompany any application for re-registration.
- QCT has drawn our attention to four previous decisions of the Tribunal involving broadly similar facts. The prohibition periods that were applied ranged from three to six years, variously from the date of suspension or the date of the Tribunal’s order. None of the other cases are precisely equivalent, of course. There are some differences in the ages of the teachers and students, the duration of the conduct, how long the teacher had been in the profession, whether the student had additional vulnerabilities, and so on. We are not bound by such cases, though we would strive for reasonable consistency where possible. On the other hand, we are conscious of the evolving community appreciation, in the wake of commissions of enquiry, prosecutions, and so on, of the potential for long-term harm in young people who are sexually exploited. Some of the earlier sanctions may not match current community standards.
- We consider that the most comparable of the cases are Derbyshire and FDA.
- In Derbyshire, the teacher was 26 and the student was 17. The conduct occurred over a couple of months. The prohibition period imposed was three years. We consider that the conduct of ALE was more serious because the student was younger and the conduct persisted over a longer period.
- FDA also involved a 17 year old student. The teacher was 27. Inappropriate but not overtly sexual conduct commenced at around the time the student graduated, and then progressed to sex in January of the following year. FDA participated in an interview with investigators but did not otherwise cooperate in the disciplinary process. A four year prohibition period was imposed. In our view, the conduct in ALE’s case is more serious in light of the age of the student and the fact that the sex started while the student was still at school. On the other hand, ALE has been cooperative in the investigation and disciplinary process. When interviewed by QCT, he accepted the student’s version of events. He cooperated in the preparation of an agreed statement of facts for the referral. He consented to the matter being decided on-the-papers, which would have saved costs for QCT. He has expressed remorse.
- ALE in his submissions indicates that he does not oppose the sanction sought by QCT. He says that counselling has made him aware of the vulnerabilities of students and the power imbalance between teachers and students. He says that his judgment at the time of the conduct was clouded by emotional turmoil from his mother’s divorce. He has provided a letter from a psychologist who has counselled him. However, the psychologist is ALE’s uncle, and so the Tribunal does not place substantial weight on the letter. ALE has also provided some brief correspondence from another psychologist indicating a diagnosis of anxiety disorder in 2018. ALE has provided a character reference from a police officer who believes that ALE is committed to rehabilitation.
- No doubt the revelation of the conduct to a portion of the school community, the loss of employment, and the disciplinary proceeding have had a chastening effect on ALE. Nonetheless, we consider that a substantial period of exclusion from the teaching profession is warranted. First, it serves to underscore the Tribunal’s denunciation of the conduct. Second, in light of the immaturity and lack of insight evident in the conduct, a significant period to enable ALE to gain maturity is required.
- We consider that a four year period of prohibition from the date of the Tribunal’s order is appropriate when balancing the various relevant factors in this case. As there is no guarantee that ALE will have gained sufficient maturity and lasting insight in four years, any application for readmission to the teaching profession should be accompanied by a detailed report relating to ALE’s mental health and relevant issues. This will help QCT decide whether ALE has become suitable to teach.
- QCT has proposed a number of issues that should be addressed, and we have adopted these in substance. QCT has proposed that the assessment should be by an independent psychologist and that it should be satisfactory to QCT. We consider that the report should be by a psychiatrist, rather than a psychologist, as we consider that a psychiatric assessment is likely to be more relevant and rigorous in this case. We do not propose to require that the report itself be satisfactory to QCT because the function of the report would be to help QCT reach a conclusion on whether or not ALE had become suitable to teach.
- On 16 November 2018 the Tribunal made an order that other than to the parties to the proceeding, and until further order, publication was prohibited of any information which might identify the respondent, any of the relevant students or the relevant school.
- We consider that a permanent order should now be made under section 66 of the QCAT Act to protect the student. Publication of the name of the teacher would tend to identify, or confirm the identity of, the student within the school community. We consider that this would be unfair and damaging to the student, particularly in light of our comments about how the student was used by ALE.
- While QCT in its submissions does not favour a non-publication order in respect of ALE’s identity, it submits that if such an order is made it should enable the sharing of information for certain purposes. We have expressed the non-publication order accordingly.
- Because of the serious nature of the conduct engaged in by ALE, a substantial period of exclusion from the teaching profession is warranted. Any readmission should be allowed by QCT only if it is satisfied, in light of a psychiatric report and any other relevant information, that ALE has gained maturity and insight which would make him suitable to teach.
Education Act Schedule 3.
Education Act, s 92(1)(h).
Queensland College of Teachers v TSV  QCAT 186, .
Ibid, s 161(2)(c).
Queensland College of Teachers v Derbyshire  QCAT 536 (‘Derbyshire’); Queensland College of Teachers v Teacher FDA  QCAT 224 (‘FDA’); Queensland College of Teachers v Grasso  QCAT 292; Queensland College of Teachers v WAS  QCAT 61.
- Published Case Name:
Queensland College of Teachers v ALE
- Shortened Case Name:
Queensland College of Teachers v ALE
 QCAT 143
Member Kanowski, Member Roney, Member Oliver
29 May 2019