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Queensland College of Teachers v NBL QCAT 312
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v Teacher NBL  QCAT 312
Queensland College of Teachers
Occupational regulation matters
10 October 2019
On the papers
EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GENERALLY – where teacher alleged to have had inappropriate, including sexual, interactions with students – whether allegations proven – whether teacher should be excluded from profession
Education (Queensland College of Teachers) Act 2005 (Qld), s 92, s 161
Queensland College of Teachers v CJK  QCAT 115
Queensland College of Teachers v El-Sayed  QCAT 320
Queensland College of Teachers v RGK  QCAT 180
E J Houston, Principal Legal Officer, 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
- Queensland College of Teachers (‘QCT’) has referred this matter to the Tribunal for a disciplinary proceeding. The referral was made because QCT alleges that ‘NBL’ engaged in inappropriate conduct as a teacher, including having sex with a student.
- The matter was decided on the papers. We made findings of fact on 2 August 2019, on the basis of the documentary evidence and written submissions from the parties. We then required further submissions from the parties before deciding what sanction is appropriate. After sending reasons setting out our findings and observations to the parties, we received a further submission from QCT on 22 August 2019, and a further submission from NBL on 9 September 2019.
- Orders have previously been made prohibiting publication of the identity of the teacher (except for limited purposes), the students and the school.
- NBL was registered as a teacher in Queensland from September 2011, though it seems that he had taught elsewhere before that. His registration lapsed on 12 September 2016. Meanwhile, his registration had been suspended with effect from 8 April 2016.
- The disciplinary referral to the Tribunal was made on 15 April 2016, and amended on 29 July 2016. The matter has only reached hearing in 2019. The delay occurred because the proceeding was put on hold pending the finalisation of a criminal prosecution of NBL. The criminal matter related to conduct that did not involve a student and which does not form part of the subject matter of the referral. The outcome of the criminal proceeding has rendered NBL an ‘excluded person’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Teachers Act’), so he cannot regain registration without an ‘eligibility declaration’. However, as the criminal matter is separate, we will disregard it and decide the referral on the basis of the conduct alleged in the referral.
- The allegations made by QCT in its referral are set out in Annexure A to the Amended Referral. The overall allegation made by QCT is that between around 2012 and 2016, NBL engaged in inappropriate and/or sexual contact and communication with students and a former student of the school at which he taught. QCT contends that NBL is therefore not suitable to teach. During the period in question, NBL was aged between 32 and 36. Initially his role was simply teacher, but in January 2015 he was promoted to the position of middle leader – head of department. QCT says that NBL, like other teachers, had undertaken annual professional training in the areas of student protection and maintaining professional boundaries.
Summary of alleged conduct
- The following is a summary of the particular conduct alleged by QCT.
- NBL regularly swore in the presence of students. This included an occasion at a school camp immediately after another teacher had cautioned students not to swear.
- The next allegations relate to student A, a female student who completed year 12 in 2014. It is alleged that NBL was student A’s home form teacher in years 10 to 12, and that he was a support teacher in an outdoor recreation subject she studied in years 11 and 12.
- At a camp in November 2013, NBL and student A participated together with another student in a simulated caving activity in a darkened maze. NBL touched student A’s thigh, waist and bottom at times during the activity. He then touched and/or held her hand and kissed it as she was exiting the maze. During a rock-climbing and abseiling activity, NBL touched student A’s bottom unnecessarily. He complimented her on how she looked in the pants she was wearing. During dinner with a group of students, NBL offered to rub student A’s injured ankle. He later told her that he would never cheat on his wife. On a hiking outing in August 2014, NBL spent a large amount of one-on-one time with student A on the bus and during the hike. This prompted another teacher to caution him.
- The next allegation relates to former student B. She had completed year 12 at the school in 2014 and then worked as a teacher aide at the school in 2015.
- In around July 2015, NBL commented to former student B that he had heard she had a boyfriend, and that this was a shame because he had been ‘waiting out’ for her.
- The next allegations relate to student C. She was in a class taught by NBL in years 10 to 12, between 2014 and 2016.
- NBL approached student C and her group of female friends, and asked them if they had boyfriends. He told them that they should have, as they were so pretty. He referred to them as ‘chick’ and ‘babe’. He also made jokes in class about boys and girls having sex.
- The next allegations relate to female students D and E. Both finished year 12 in 2016. NBL did not teach either student, but he attended their year 11 camp in October 2015. NBL was Student E’s activity leader at the camp. She was 16 at the relevant times.
- On three occasions at the camp, NBL approached student D during a group activity in a lake and brushed his hands against her bottom area, causing her to move away. NBL sat next to student E in a circle of students around a bonfire at night at the camp. Students were linking arms and holding each other by the waist. NBL held student E by the waist and/or bottom area. He also placed his hand on her thigh or thigh area and held it there. During a group activity in the lake, student E was holding onto an inflatable tube. NBL lifted his leg under her, so that she was then sitting on his knee. He held her by the waist and/or touched her waist with both hands. On the final night of the camp, he told a group of students, including student D, that he wanted to attend a party with them and get high.
- At school after the camp, while students D and E were walking together, NBL said to either student D or both students: ‘nice arse’.
- On another occasion after the camp, student E told NBL that his conduct at the camp had caused a lot of students to feel ‘really uncomfortable’, and that he should desist from that type of conduct. In conversations after that, NBL asked student E how she was going, how her friendships were going, and whether she could keep a secret.
- During a block study week near the end of the 2015 school year, NBL asked student E what she was doing over the holidays. He suggested they catch up, and they exchanged phone numbers. On around the final day of school, NBL again suggested that they catch up over the holidays. He told her of a place they could go: a cycling track. He had entered her address on Google maps on his phone, and he showed her the route from her home to the cycling track. He told student E that he had got her address from the school.
- From around the start of the summer holidays, NBL started communicating with student E by WhatsApp and texting. This continued until February 2016. Some of the communication was late at night.
- In December 2015, NBL arranged to take student E to the cycling track. This included asking her to send him her address. He collected her from a location near her home. He had a key to the cycling facility. They went to a toilet block where they kissed, touched, and had sexual intercourse. NBL then dropped student E back to the place where he had collected her.
- On a later occasion in December 2015, NBL went by arrangement to student E’s home while the rest of her family was out. They kissed, touched, and had sexual intercourse in her bedroom.
- Early in the 2016 school year, NBL and the student arranged to meet after school in a classroom. They had sexual intercourse there. Before the meeting, NBL had suggested that student E not wear underwear to the meeting. He noted that the senior girls’ skirts were long, and mentioned that he preferred short skirts.
- NBL told student E she should not tell anyone about their liaisons because he could get locked up.
NBL’s response to the allegations
- NBL opted to have the disciplinary referral determined in his absence. He has relocated interstate. He said in his March 2019 submission that he did not wish to be present at a hearing because of anxiety, and also because he was working very hard to re-establish himself for the benefit of his young family.
- The following summary of NBL’s response is drawn from his August 2016 Response and his March 2019 submission.
- NBL acknowledges that he swore in the presence of students, and that this was unprofessional. He says he was drawn into that mode of communication with young people, especially while engaging in activities with a lot of excitement, but he now realises he should have set a good example.
- NBL says he was not student A’s home form teacher. He denies any inappropriate comments to her, and any inappropriate touching of her. He says she has misconstrued innocent comments and actions. For example, he complimented her in the presence of other students on her practical choice of pants for the abseiling. The alleged kissing was simply his face bumping into the student’s hand when he slipped as he left the maze.
- Similarly, says NBL, former student B has not accurately reported what he said. His reference to someone waiting out for her was to a fellow student of hers.
- NBL disputes any inappropriate touching of students, including the alleged sex with student E. He also denies the other allegations of impropriety such as that he made sexual comments or talked about wanting to get high. Students have misrepresented conversations. NBL points out that the outdoor activities on camp were in full view of other students and colleagues. The only touching that occurred was inadvertent or necessary. Some touching is unavoidable on camps which involve demanding physical activities. The linking of arms around the bonfire was innocent. Had he done anything wrong in these activities, colleagues and students nearby would have called him to account. There were no complaints from the students at the time. The allegations were made later: between four months and two years later. Further, the water was not deep enough in the lake for him to have a student sit on his knee, NBL says. Further, NBL says that in her interview Student E said that the bonfire incident was the only occasion of touching at the camp.
- In relation to the alleged ‘nice arse’ comment, NBL says that what he actually said was ‘Go to class’, and that student E who was present has not said that he made the comment.
- NBL says the request to student E about keeping a secret was actually about the fact that his brother would be joining the school staff.
- NBL says that the reason he supplied his phone number to Student E was because she said her father wanted advice about cycling. NBL says he offered to Student E to help her father fix his bike and to take Student E and her father to the cycling track, but she did not take up these offers. NBL says that he and Student E did exchange messages, but it was mostly cycling-related, or just general chat and greetings. The late night text was in response to texts from Student E about his brother’s newborn child.
- NBL denies that he obtained Student E’s address from school records. Rather, NBL says, she put her address on his phone while he was not looking. Student E has said that later he asked for her address. Why, NBL asks, would he have done this if she had already given him her address?
- NBL also says that Student E misdescribed his vehicle in regards to the make and other features. NBL says his vehicle is quite distinctive but Student E was unable to nominate any distinguishing features when she was interviewed.
- When Student E was asked by interviewers whether there is anything distinctive about NBL’s body, she answered in the negative. However, NBL submits, if Student E had seen him naked, she would surely have commented on him being circumcised and that his entire body is shaven.
- NBL says he would not have had opportunities to meet with Student E during the summer holidays because his relatives from overseas were visiting.
- NBL disputes QCT’s interpretation of the messages about what Student E should wear. Firstly, NBL says, it sounds like a conversation between people between whom ‘nothing has happened before’. NBL says the conversation was really about Student E wearing cycling attire – which does not include underwear – for a photograph of her posing with a bicycle. NBL says that only fragments of the exchange have been recovered.
- NBL says that the students and staff who made allegations against him are people who dislike him.
- The main evidence from the students is in the form of interview transcripts. There are also statements by teachers about surrounding circumstances. The investigation was triggered by information provided to the school by one of the students, so there is also a professional standards notice describing the information she supplied.
- The students in their interviews gave detailed and seemingly straightforward accounts. Student E’s account, in particular, was very comprehensive. At one point she acknowledged feeling ‘so mad’ at NBL for making student D feel uncomfortable at the camp, but we did not gain the impression from her account overall that she was motivated by malice. Similarly, we did not detect signs of malice in the other students’ accounts. Student A’s account was provided a few years after the event. She is now a university student, and her account impresses as thoughtful and reflective.
- NBL contends that students and staff would have spoken up if he had behaved inappropriately in public settings. We do not accept that this is necessarily so. Others may not have seen the conduct; they may have given NBL the benefit of the doubt; or they may have been reluctant to make a scene. Student D says she saw NBL’s hand on Student E’s bottom around the bonfire, and she thinks others saw it too, but none of them spoke up at the time. Some of NBL’s alleged comments over an extended period were quite brazen, and he may have thought that he could also get away with brazen conduct. There are also some comments in the material from students that they chose not to voice concerns to the school authorities about NBL because they knew it may take a long time to find a replacement teacher in his area of specialisation.
- A senior teacher has said in a statement that NBL had attended a number of outdoor recreation camps, but the senior teacher decided in August 2014 not to allow NBL to participate in any further camps that the senior teacher led. This was because the senior teacher observed unprofessional conduct by NBL, such as swearing in front of students, which persisted despite the senior teacher talking to NBL and NBL making assurances that he would modify his behaviour.
- So far as the alleged ‘nice arse’ comment is concerned, it is surprising that NBL would remember an innocuous comment such as ‘Go to class’. It is not all that surprising that the ‘nice arse’ comment does not feature in Student E’s account, which includes so many more intense events.
- We have taken into account NBL’s other criticisms of Student E’s account, but we are not persuaded that they detract from her credibility. In particular, it is unsurprising that someone like Student E might not be able to give an accurate description of a vehicle in which she travelled a couple of times. Her impressions of the vehicle would, presumably, have been of much less significance to her than the events of the clandestine meeting that she described. That she did not remark on NBL being uncircumcised and hairless not does not strike us as remarkable. When people are asked about distinguishing features, they tend to think of things like tattoos and piercings.
- In relation to NBL’s knowledge of Student E’s address, we note that in her interview, Student E said that in the conversation at the end of the 2015 school year about meeting up, NBL already had her address in his phone. She also said that she thinks that when they were later arranging to meet up at her home, he asked her to send him her address. We do not regard this as necessarily inconsistent. It may be, for instance, that on the earlier occasion NBL had input the address into Google maps, but had not retained it, or that he did not have the address readily available at the time of the later discussion.
- QCT has not been able to access most of the text and WhatsApp messaging, but the exchanges between NBL and Student E in January and February 2016 that it was able to access are revealing. We do not accept NBL’s suggestion that these are mere fragments of exchanges that give some sort of misleading impression. They include NBL addressing Student E as ‘bb’, and her adding ‘xx’ to some of her comments. They include an exchange about Student E contemplating walking around school without underwear, him expressing a preference for short skirts over longer ones, and references by both of them to begging for something unspecified. The exchanges are clearly inconsistent with NBL’s version of a platonic relationship.
- We are conscious that serious allegations against a person should not be accepted on the basis of flimsy and unreliable evidence. However, we are satisfied that the students’ versions of events paint a strong and convincing picture of misconduct on the part of NBL. The picture is of a teacher persistently ignoring professional boundaries, acting inappropriately, and placing students at great risk of harm. We accept the allegations made by QCT in their entirety. We find that NBL engaged in the conduct alleged by QCT.
- The material gathered by QCT also highlights the effects of such conduct on students. Students were mostly unwilling to speak out, for various reasons, and only revealed information under the compulsion of a formal investigation. Student A reflected on feeling uncomfortable about aspects of NBL’s behaviour at school but she did not speak out at the time. NBL was on friendly terms with her family, but in retrospect and with maturity she questions his motivations for that friendship and for his interest in her welfare. Student E had to conceal the true nature of her relationship with NBL from her family and friends. When she wished to end the sexual part of the relationship, she felt very uncomfortable. She did not feel able to directly confront NBL, so she tried to avoid him at school. Later, when her parents were contacted by investigators and became aware of what had happened, Student E was left feeling very upset and guilty.
- These experiences reflect the power imbalance between teachers and students, and the implications that flow from taking advantage of students who are inevitably younger, less mature and less experienced.
- It is also noteworthy that the material indicates that there was friction amongst students, when NBL’s conduct was being investigated by the authorities, about whether students should have made their allegations against him.
Is a ground for disciplinary action established?
- Section 92 of the Teachers Act sets out grounds for disciplinary action. At the time of the referral, in April 2016, the ground relied on by QCT was that the teacher ‘is not suitable to teach’: section 92(1)(h). That provision was amended in September 2016 to substitute the ground that ‘the person behaves in a way … that does not satisfy the standard of behaviour expected of a teacher’. QCT submits that the previous ground remains the applicable one. QCT has referred us to QCAT decisions going both way on the issue, though predominantly in favour of QCT’s position. QCT submits, and we accept, that its position is consistent with section 20 of the Acts Interpretation Act 1954 (Qld) which, broadly speaking, provides for the continuation of a proceeding under the laws that were in force when the proceeding was started. Accordingly, we proceed on the basis that the relevant question is whether NBL is not suitable to teach and that the surrounding provisions as at April 2016 apply.
- This requires us to consider, relevantly, whether NBL is suitable to work in a child-related field. A person is not suitable to teach (as per the provisions in force in April 2016) if the person behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher, or otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach. Suitability is to be assessed as at the date of the Tribunal’s hearing.
- We are satisfied that NBL was not suitable to teach at the time of the conduct in question. He behaved in a predatory fashion. He had no regard for professional boundaries, though he was well aware of them and tried to maintain the image amongst his peers of respecting those boundaries. He was not suitable to work in a child-related field. His behaviour fell well below the standard generally expected of a teacher. He behaved in a disgraceful and improper way such that he was not fit to be granted registration or permission to teach.
- NBL has made only very limited admissions of wrongdoing. He has not demonstrated significant insight or remorse. We have no reason to suppose that he has become suitable to teach. Accordingly, we find that he is not suitable to teach. The ground for disciplinary action is established.
- Section 161 of the Teachers Act sets out the actions that the Tribunal can take against a former approved teacher once a ground for disciplinary action has been established. That provision has not changed since April 2016. The actions range from taking no action through to prohibiting the teacher from reapplying for registration or permission to teach for a stated period or indefinitely. Such prohibition is available only if the Tribunal would have made an order cancelling the teacher’s registration or permission to teach had the teacher remained registered. Section 161 also allows for a costs order, and an order for a notation on the register.
- The purpose of sanction is not to punish the teacher, but to promote the objects of the Teachers Act. These include upholding standards in the profession, maintaining public confidence in the profession, and protecting the public by ensuring that school education is provided in a professional way. Individual and profession-wide deterrence is relevant.
- It is not suggested that NBL has any prior disciplinary history.
- QCT submits that NBL’s conduct would warrant cancellation of his registration if he remained registered: it includes over-familiarity; repeated physical contact indicative of NBL initially testing the waters and then becoming bolder; and serious boundary violations especially with Student E. There was a significant imbalance in age, experience and maturity. NBL had a position of power and influence over Student E by virtue of his role as a teacher, QCT submits.
- We accept these submissions. We agree that prohibition from re-registration is warranted.
- In its March 2019 submissions QCT submitted that the appropriate sanction would be to prohibit NBL from reapplying for registration or permission to teach for a period of between six and eight years, and for a notation to be placed on the register that any reapplication be accompanied by a psychological report. QCT referred us to a number of cases for the purposes of comparison, involving periods of prohibition of six or seven years together with other orders such as costs and/or notations. All of those cases involved sexual relationships between teachers and senior students, though in most of the cases only one student was involved. In one case, the teacher pursued a second student but it did not result in a relationship, and the teacher also gave the first student $250 for providing a version of events that he believed would protect him.
- We did not consider that the conduct in any of those cases was as serious as the conduct in the present case, and so we sought submissions about any cases where longer or indefinite periods of prohibition were imposed. We noted that NBL was a teacher in his thirties whose conduct became so pervasive and predatory, and so dismissive of professional boundaries, that the prospect of him ever truly reforming and becoming suitable to teach must be questionable. We also noted that NBL was well aware that his conduct was transgressive but that did not stop him. His misbehaviour occurred across a number of years in the classroom and on school premises, on school camp, on social media and in his private meetings with Student E. The students have given evidence of the distress his behaviour caused, including the pressure which the female students felt from the male students not to report his behaviour, their concern that his behaviour and subsequent suspension could leave them without a specialist teacher in the high-pressure environment of grade 12, and their lingering distaste for his behaviour. NBL has denied most of the allegations. Beyond the issue of swearing, there has been no indication of insight or remorse.
- QCT, in its August 2019 submissions filed in response to the Tribunal’s directions for further submissions, drew our attention to some further cases.
- The first two were ones where the Tribunal had imposed periods of indefinite prohibition. One is Queensland College of Teachers v El-Sayed. In that case the Tribunal found that the teacher, while working as a support worker, had engaged in sexual activity with an intellectually disabled adult. The teacher denied the conduct. The other case is Queensland College of Teachers v CJK. In that case, the teacher had inappropriately touched a number of students aged between ten and 12, and transported one of the children alone in his car. The teacher admitted the touching and the driving, but did not consider it inappropriate.
- The third case discussed by QCT is Queensland College of Teachers v RGK. That case involved sexual contact between a teacher aged 37 and a student aged 17. The contact continued for some six months after the student graduated. The Tribunal found that the student had been psychologically damaged by the teacher’s insistence on rough sex. The Tribunal imposed a prohibition period of eight years.
- The fourth case is Queensland College of Teachers v Appo. In that case, the teacher masturbated while spying on a young man using a toilet at a shopping centre. The young man was 18, but the teacher did not know his age. The teacher caused the young man embarrassment and emotional pain when the teacher initially denied the conduct and besmirched the young man’s character. The Tribunal imposed a prohibition period of ten years.
- In its August 2019 submissions, QCT submits that an indefinite prohibition would be appropriate: it would be the only way of protecting the welfare and best interests of children, and it would have a deterrent effect. QCT submits that if the Tribunal instead considers that a fixed period of prohibition is appropriate, that period should be eight years.
- NBL, in his September 2019 submissions, argues that an indefinite prohibition would be harsh and punitive. He says it would restrict his other work options by preventing him obtaining a card for working with vulnerable people.
- Having considered the sanctions imposed in the various other cases, as well as the particular features of NBL’s case, we consider that the conduct here is toward the more serious end of the spectrum. There was repeat misconduct, with NBL seeking out sexual encounters with many students. On the other hand, the aggravating features of intellectual disability (as in the El-Sayed case) and much younger students (as in the CJK case) were not present. On balance, we consider that a ten year period of prohibition is appropriate. Whether NBL can reform to the extent necessary to regain registration is by no means certain, but we consider that a requirement for a psychological report, along the lines suggested by QCT, would be an adequate safeguard.
- We consider that the objects of the Teachers Act, and the need for general and specific deterrence, would be best met by an order prohibiting NBL from reapplying for registration or permission to teach for ten years from the date he was suspended. Further, any reapplication would need to be accompanied by a detailed psychological report indicating awareness of the role and responsibilities of a teacher.
Eligibility applications are dealt with under Part 1A of Chapter 2 of the Teachers Act.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Though QCT acknowledges that it favoured the alternative position in its submissions in Queensland College of Teachers v El-Sayed  QCAT 320.
Teachers Act, s 12(1)(b).
Ibid s 12(3).
Teachers Act, s 3(1).
Queensland College of Teachers v DGM  QCAT 194; Queensland College of Teachers v HMJ  QCAT 447; Queensland College of Teachers v RTM  QCAT 501; Queensland College of Teachers v SGS  QCAT 383; and Queensland College of Teachers v WAS  QCAT 61.
 QCAT 320.
 QCAT 115.
 QCAT 180.
Unreported, QCAT, 28 March 2012.
- Published Case Name:
Queensland College of Teachers v Teacher NBL
- Shortened Case Name:
Queensland College of Teachers v NBL
 QCAT 312
Member Kanowski, Member Goodman, Member Grigg
10 Oct 2019