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Queensland College of Teachers v CQS QCAT 71
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v CQS  QCAT 71
QUEENSLAND COLLEGE OF TEACHERS (applicant)
Occupational regulation matters
15 March 2019
7 December 2018
EDUCATION – REGISTRATION – Standard of behaviour usually expected of a teacher – inappropriate use of Facebook – suitability to teach – unacceptable risk of harm to children – non-publication order
Education (Queensland College of Teachers) Act 2005 Qld, s 49, s 92(1)(h), Schedule 3
Coppa v Medical Board of Australia  NTSC 48
Briginshaw v Briginshaw  HCA 34
Queensland College of Teachers v Utz  QCAT 247
APPEARANCES & REPRESENTATION:
C Lloyd, Principal Legal Officer, Queensland College of Teachers
CQS – Self represented
REASONS FOR DECISION
- CQS (the Respondent) is a former registered teacher in Queensland who was first registered in 2003. His registration was cancelled following his decision not to pay his annual renewal fee on 20 February 2018.
- These proceedings arose after the Queensland College of Teachers (QCT) received anonymous information on 13 September 2017 alleging that the Respondent had been operating a Facebook social network account under another name and that during 2017 he had posted a number of inappropriate comments..
- On 14 September 2017 the QCT determined that he posed an unacceptable risk of harm to children and suspended his teacher registration under section 49 of the Education (Queensland College of Teachers) Act 2005. The suspension was immediately referred to the Tribunal which continued his suspension on 9 November 2017.
- The QCT referred the matter to the Professional Capacity and Teacher Conduct Committee (PC&TCC) which then referred the matter to the Tribunal on 30 April 2018, having formed a “reasonable belief” that a ground for disciplinary action existed pursuant to section 92(1)(h) because the Respondent had acted in a way that did not satisfy the standard of behaviour generally expected of a teacher.
- The particulars identified by the QCT regarding the ground for disciplinary action under s.92(1)(h) of the Act are set out below.
- It is alleged by the QCT that the Respondent made a series of posts on Facebook as follows:
- 7 July 2017 - a picture on Facebook depicting a male person with the caption “Those who want total equality between the sexes are criminals” and a personal comment by the Respondent: “Men and women are not equal. If you read this article and reject it, I fear for you”.
- 16 July 2017 - a post: “So here it is. A distant relative from my wife's family took off her niqab and also took the hijab off her daughters’ heads. She says that hijab is not part of Islam. Her husband is now giving dawah to other relatives to become shia.
A message to my in-laws, please knock these two idiots out and throw them in the Nile River to wake them up.
Egypt is a cess pool at the moment. I have even seen a dog online openly promote atheism and belittle the Quran even though he is based in Egypt.
(A person) and his secularist cadre are pigs because these issues are now becoming more and more common. There will come a time when swords will have to be drawn because there is nothing worse than the promotion of kufr!”
- 14 August 2017 - a post: “Western Imam's have been challenged and are on notice.
1. Western Imams MUST OPENLY CONDEMN Western armies killing Moslems and the parliaments that send these armies.
2. Western Imams MUST STOP calling to democracy, and if not make mubahala (invoking the curse of Allah upon the liar)…”.
- 21 August 2017 - a post: “Teaching, in many cases is glorified babysitting. I need to change my career”.
Comment on the same post by the Respondent: “Yep. I loathe this profession. I only stay in it to keep myself busy and earn an income” and “Anyone got any ideas as to what I can retrain as? Serious discussion, because I am at wits end with this job.”
- 27 August 2017 - a post: “Nation of sheep, Ruled by wolves, Owned by pigs, I think this aptly describes many communities”. The Respondent then commented, “I am a shepherd of sheep. I kill wolves and I despise pigs.”
- 4 September 2017 - shared a video with the following post: “Burma, may you become a land of jihad. May the oppressive Buddhists swim in rivers of their own blood.”
- 5 September 2017 - shared a post … that stated “The only way to stop the blood in Burma is blood. Our brothers need to climb to the pinnacle of Islam. Only then will they be safe.”
- 6 September 2017 - a post: “So a kid yesterday grabbed his crotch during lunch. Then he later feinted/baulked to hit me in my private area. I reported it. Now admin has to ‘unpack’ this incident and is more concerned with defending the student.
I have come to a conclusion. Education is dominated by liberal retards. Kids have a never ending list of rights but very few responsibilities. Some middle-aged white women neuter male students, by not holding them accountable for their action, and attempt to do the same with strong willed male teachers.
Collectively I would like to say this. I hate you. You are a part of the reason why male students grow up to become irresponsible men.”
- 6 September 2017 - a post: “Muslims, take note. Just cause you act like a whitey doesn't make you an anglo.”
- 8 September 2017- a post: “ISIS are Muslims. I don't agree with them, but they are Muslims. Thus, it is prohibited to join hands with the kuffar to fight them. Furthermore, the atrocities committed by the USA, Russia, Turkey, YPG, Shia militias from Iraq etc. etc. etc FAR OUTWEIGH anything ISIS has ever done. If I have an issue with my Muslim brother, he and I address it, I never involve a kuffar and I certainly don’t fight him with aid from the kuffar. I think the USA and Russia deserve to be bombed.”
- September 2017 - a post: “Irma, I love you” (believed to be a reference to Hurricane Irma that affected the Caribbean Islands and southern states of the USA). He then commented, “I am happy because Irma will punish the US, insha’allah. They are a disbelieving nation and may refer to this as the power of ‘mother nature’ rather than referencing it has the power of Allah, Subhanala wa’taalah. Let Allah remind them of who is in control of this dunya.”
- It is alleged that the Respondent, while a registered teacher during 2017, posted inappropriate comments on Facebook that were publicly accessible by other Facebook users and do not satisfy the standard of behaviour generally expected of a teacher:
- 20 August 2017 - a post: “Liberalism, as it relates to the social well-being of children is firmly entrenched within the western education system. This discourse permeates decisions made by key policy-makers, school administrators and even classroom teachers.
To be quite honest, from my anecdotal experience as a parent and teacher, this industry is choc-full of passive aggressive, left wing ‘do-gooders’ who are usurping traditional values and replacing it with hedonism. These militant leftists, who often claim moral superiority, act authoritatively to enforce their ideology. Just look at the ‘Safer Schools Program’ as an example.
Do not misinterpret me, I am certainly not a right wing neo-con. However, it is clear that extreme leftists are just as militant, if not more militant, than their ‘alt-right’ counterparts. Frankly, I consider them quite dangerous, even more dangerous than people like Donald Trump and Pauline Hanson. This is because leftists often claim to be friendly towards minority groups, but they are indeed the ‘trojan horse’, they embody the ‘wolf in sheep’s clothing’ to the ‘tee’ if you doubt me, then simply disagree with the hegemony over social affairs and then wait for their collective sledgehammer to fall upon you’.
- 18 September 2017 - a post of a screen shot of a document titled “School Policy Advisory Guide” with the following personal comment: School Principals in Victoria, Australia, can decide if your child participates in LGBTI support groups and sex education WITHOUT your consent as a parent. Parents it is time to push back, even in a physical manner if required against principals like this. #Liberal Retards.
- It is also alleged that on 21 September 2017 the Respondent behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher when he said during a phone call with a representative of the QCT, “fuck you cunt” and ended the phone call.
- In considering these allegations, the Tribunal has had the benefit of the evidence as set out in the confidential Investigation Report commissioned by the QCT, dated 16 November 2017 and supporting documentation. That documentation provides details of each of the allegations detailed in these Reasons.
- The Respondent has chosen not to present any independent evidence contesting the Allegations but has filed 2 personal Statutory Declarations, both dated 14 November 2018 and declared pursuant to the provisions of the Oaths Act 1867.
- In his first Declaration, the Respondent acknowledges that his registration to teach was suspended in September 2017 by the QCT. He states that he has not worked as a teacher since then and his registration certificate was returned to QCT shortly thereafter.
- He asserts that the QCT suspended his registration based on comments and posts made in an account on Facebook under another name. He states that the QCT cited that they formed a reasonable belief that this account was operated by him and thus claimed that he posed an unacceptable risk to children in his role as a registered teacher. He submits that the QCT has not proven that he operated this Facebook account and the conjecture they have offered as proof is actually not evidentiary in nature.
- He states that the Facebook account is not in his “legal” name.
- He “categorically” rejects that the account be attributed to him in any way, method or manner. He insists that any views, posts, comments or opinions linked to the account are not attributable to him. He categorically repudiates any claim made by any group, body, organisation or individual stating otherwise. He therefore rejects the premise used by the QCT to link him to the account and use it as a basis to smear his professional reputation and suspend his teaching registration.
- He insists that he has never spoken to any student in his time as a teacher in a manner that in any way relates to the screenshots collated by the QCT. He acknowledges that it is to their credit that the QCT has stated that he has never ‘proselytized’ the views raised in the screenshots to any students. He points out that the screenshots collated by the QCT relate to religious segregation, misogyny and acts of violence that he vehemently rejects being attributed to him.
- He challenges communication from QCT dated 25 October 2017 that states “… The teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children” and questions how he could possibly prove that the account which is the subject of a number of the allegations, was not operated by him. He describes the evidence proffered by the QCT as actually not evidentiary in nature rather it is speculation and conjecture.
- He refers to the authority cited by the QCT in the matter of Coppa v Medical Board of Australia,  NTSC 48 namely that Justice Barr stated “It is necessary that the Board hold a reasonable belief about the requisite matters not about whether those matters were the fact. Most decisions in respect of such matters would be made on incomplete evidence which had not been tested or fully tested leaving at least something to surmise or conjecture”. He submits that it is quite unsettling to see that establishing facts has been usurped by ‘surmise or conjecture’. He suggests that if this is the level of justice that he is entitled to then the phrase “kangaroo court” comes to mind.
- The Respondent concludes that “in ALL my career I have never had any serious complaints raised against me by students, staff or administrators that remotely indicate any support for the screenshots proffered by the QCT relating to religious segregation, misogyny or acts of violence”.
- In his second declaration the Respondent submits strongly that any orders made by the Tribunal should be published in the form of an ongoing and indefinite non-publication order.
- He submits that “…ruining my name, career and reputation based on screenshots of a defunct Facebook account operated in a name that does not correspond to my legal name and has not been attributed to me in an evidentiary manner is nothing short of defamatory”.
- The Respondent expresses his grave concern “that in this digital age, Islamophobia is rampant, and acts of violence have been perpetrated against Muslims by members of the public in my locality”. He submits that as he has a wife and young family, he does not wish his name to be published online, in print, or communicated in any way in a public manner regarding his teaching suspension either now or at any time in the future.
- The Respondent further discloses that he has recently been diagnosed by his cardiologist with Chronic Obstructive Pulmonary Disease. He is now taking medication to address his heart problem and the undue stress since having his teaching license suspended has contributed to a deterioration in his health. He therefore requests that this “unnecessary investigation” cease.
- He submits that an ongoing and indefinite non-publication order should be made, binding the QCT under section 68 (presumably section 66 of the QCAT Act) or any other relevant section of the Queensland Civil and Administration(sic) Tribunal Act 2009, prohibiting the QCT from publishing his name and details now and in the future, in a public fashion relating to his teaching license suspension.
- The Respondent then makes the following submissions:
- The QCT in the past has not opposed the making of a non-publication order. It is not in the interest of the public or justice that he be publicly identified based on the “reasonable belief” proffered by the QCT when this “reasonable belief” is not evidentiary in nature. If he is identified publicly, it is possible that his wife and children who share his surname may also be identified by Islamophobes within the local community. Islamophobia is rampant, and acts of violence have been perpetrated against Muslims by members of the public in his locality. He provides two examples of incidents that have previously occurred.
- He discloses that he has been recently diagnosed with chronic obstructive pulmonary disease and is taking medication to address his heart problem.
- Due to his poor health and desire to secure an ongoing and indefinite non-publication order he would be prepared to do the following:
- Sign a legal document affirming that he will not seek to re-register with the QCT now or at any time in the future;
- Sign a legal document affirming that he will not appeal or re-appeal his teaching suspension now or anytime in the future with the QCT or QCAT;
- If he signs these documents, it in no way means that he has admitted that the Facebook account in question was operated by him at any stage or that he agrees with religious segregation, misogyny or acts of violence as indicated in the screenshots submitted by the QCT.
- He will never return to teaching or submit himself to a professional registration authority such as the QCT because of his experience in this matter.
- In summary, the Respondent’s major submission is that he denies any involvement with any of the activities identified on Facebook or in the course of his employment as a teacher. Due to his health issues he argues that he is willing to give the undertakings outlined above to avoid any possibility that he or his family may in any way be disadvantaged as a result of these proceedings. In return he seeks that of these proceedings only be reported in a de-identified manner.
- The QCT indicated that it does not cavil with the making of a non-publication order and in the circumstances supports it.
Has a disciplinary ground been established?
- Section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 sets out that it is a ground for disciplinary action against a relevant teacher if the teacher “behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher”.
- In proceedings involving the determination of a Teacher’s disciplinary matter, the standard of proof requires the matter to be determined on the balance of probabilities according to the gravity of the fact to be proved.
- In Briginshaw v Briginshaw, Dixon J made the following comments as to the standard required in a matter that is not a criminal case, but goes beyond a civil case in its ramifications:
“The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists which may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
- As outlined in these Reasons, the Respondent categorically rejects any suggestion that he had any involvement in the Facebook account, or the matters posted on it. However, other than his denials he offers no other evidence or explanations as to how the Account was established.
- The Tribunal was provided with clear evidence that demonstrates that the Respondent was known by the name that was used in the account and was involved in presenting an information session in the same name.
- Section 28 of the QCAT sets out how proceedings under the Act should generally be conducted:
- (2)In all proceedings, the Tribunal must act fairly and according to the substantial merits of the case.
- (3)In conducting a proceeding, the Tribunal–
- (a)must observe the rules of natural justice; and
- (b)is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices orprocedures; and
- (c)may inform itself in any way it considers appropriate; and
- (d)must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
- (e)must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
- (4)Without limiting subsection (3)(b), the Tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.
- Whilst the QCT has not been able to furnish the Tribunal with the actual subscriber details of the Facebook account, the Tribunal is satisfied that the operator of the account and the Respondent are one and the same person because the Respondent has previously announced on public radio his conversion to Islam and his change of name which is the same as the Facebook name.
- The You Tube video clearly identifies he is same person and the reference to a school student in September 2017 are the same allegations the Respondent raised with his school about this incident.
- The allegation appeared on the Facebook account within hours of the incident. The evidence confirms that the details were only known to the Respondent and the school. The Facebook account was publicly available and accessible up until the Respondent was advised by the QCT of its concerns, the account was made inaccessible within minutes of that conversation finishing.
- The QCT, as part of its Investigation of the Respondent in September 2017 obtained a video downloaded from YouTube titled “GUIDED2ISLAM” that started with a caption detailing the Respondent’s actual name but prefaced with his assumed Muslim name. The video commences with a male person, who is clearly the Respondent speaking. He introduces himself according to his original given name and an explanation as to how he took his Muslim name when he reverted to Islam in 2003.
- In reaching its conclusion, the Tribunal has carefully considered the Confidential Investigation Report dated 16 November 2017 including 25 annexures and the Video Guided2Islam provided by the QCT.
Standard of Proof
- In disciplinary proceedings, the Tribunal must be reasonably satisfied on what is commonly referred to as the Briginshaw standard, that the alleged events occurred. The Respondent’s ability to earn a livelihood in his chosen career of teaching is at stake in this matter. This is a serious issue and the Tribunal must therefore be satisfied there is credible evidence not mere surmise or conjecture.
- The Tribunal is satisfied that the Respondent was responsible for the activities and the posting of the material on Facebook described in these Reasons.
- The Tribunal finds that the material was of a nature and type that constituted behaviour that does not satisfy the standard of behaviour generally expected of a teacher;
- These communications had the capacity to compromise the Respondent’s professional standing as a teacher and betray the trust and power granted to him. The community expects a teacher to have sufficient insight to know that this conduct could potentially harm young people.
- The Tribunal therefore accepts the establishment of a ground for disciplinary action.
What is the appropriate outcome?
- The Tribunal has previously stated that the purpose of disciplinary action is not to punish the former teacher, but to promote the objects of the QCT Act. In summary, this involves upholding the standards of the profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional manner.
- The Tribunal is satisfied that there has been no evidence presented to suggest that the Respondent has caused any actual harm to any child. There has been no other inappropriate behaviour attributed to the Respondent other than that identified in the Investigation Report. There does not appear to have been any alleged harm or impact to any student.
- However, while the Tribunal accepts that the Respondent is entitled to his own private thoughts and beliefs, the Tribunal finds that the evidence establishes that he has engaged in behaviour that could undermine the community’s confidence in the teaching profession and that there is evidence to indicate that he endorses the use of violence as outlined in these Reasons. He has also expressed concerning views that could tend to undermine the role of women in Australian society.
- The orders that the Tribunal may make against a former approved teacher are set out in section 161 of the QCT Act:
The Tribunal makes the following orders:
- The ground for disciplinary action under section 92(1)h of the Act is established.
- The Respondent is prohibited from applying for registration or permission to teach for 18 months from the date of this Order.
- The following notation is to be entered into the Register:
- After the expiry of the prohibition period, should the respondent reapply for registration as a teacher, such application must include an independent psychological report acceptable to the QCT addressing the following:
- The Respondent’s suitability to teach and suitability to work in a child-related field;
- An assessment of the likelihood of the Respondent engaging in similar types of behaviour outlined in the disciplinary decision in the future;
- The Respondent’s awareness of personal and social behaviour that would compromise the professional standard of a teacher and the profession of teaching;
- The Respondent’s understanding of what constitutes appropriate communication as a registered teacher;
- The Respondent’s understanding and demonstrated insight with respect to women and equality in the workplace;
- The Respondent’s understanding and demonstrated insight with respect to the general teaching profession;
- The Respondent’s understanding of and full adherence to the Queensland College of Teacher’s Code of Ethics. The psychologist report must include:
- An opinion from the psychologist as to whether the psychologist is satisfied that the Respondent has adequately understood and addressed the above points;
- Confirmation from the psychologist about being provided with copies of the Tribunal's decision and the QCT’s section 97 referral.
- The Respondent must bear all costs of and associated with compliance with the Tribunal's orders
- Publication of any information which may enable the identification of the Respondent, his wife or his children is prohibited except that the fact that the Respondent is the teacher named in this decision may be published to:
(a) any employer who employs him in a teaching role or in child-related employment;
(b) His current or future health practitioners;
(c) Other teacher regulatory authorities;
(d) The Chief Executive (Employment Screening)
- The Tribunal’s Reasons for decision are to be published in de-identified format only.
 QCT Referral of Disciplinary Proceedings Annexure B, 8 June 2018 at para 6.
 Ibid at para 7
 Name deleted
 Coppa v Medical Board of Australia,  NTSC 48 at para 54 commencing: “Therefore, the matters the subject of belief do not need to be proven on the balance of probabilities…”
 Respondent’s second statement at para 2.
 Briginshaw v Briginshaw  HCA 34
 Ibid at page 362
 Emphasis added
 See Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 as clarified by cases including Rejfek v McElroy (1964-5) 112 CLR 517, 521; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170,171.
 QCT Act, Schedule 3
 Queensland College of Teachers v Utz  QCAT 247,
- Published Case Name:
Queensland College of Teachers v CQS
- Shortened Case Name:
Queensland College of Teachers v CQS
 QCAT 71
Member Quinlivan, Member Grigg, Member Clifford
15 Mar 2019