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- Queensland College of Teachers v Teacher MUE[2021] QCAT 401
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Queensland College of Teachers v Teacher MUE[2021] QCAT 401
Queensland College of Teachers v Teacher MUE[2021] QCAT 401
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher MUE [2021] QCAT 401 |
PARTIES: | Queensland college of teachers (applicant) |
v | |
Teacher MUE (respondent) | |
APPLICATION NO/S: | OCR085-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 11 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Kent, Presiding Member Lobban Member Robyn Oliver |
ORDERS: |
|
CATCHWORDS: | EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GOVERNMENT INSTITUTIONS – where teacher’s registration was suspended – where conduct occurred in the course of teaching – whether ground for disciplinary action exists – where appropriate sanction discussed Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 92(1)(h), s 97, s 161(1)(c), Schedule 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Liquor Act 1992 (Qld), s 5, s 156(2) Drugs Misuse Act 1986, s 9 Queensland College of Teachers v RTM [2016] QCAT 501 Queensland College of Teachers v SGS [2017] QCAT 383 Queensland College of Teacher v NBL [2019] QCAT 312 Queensland College of Teachers v ATL [2020] QCAT 59 Queensland College of Teachers v RGK [2018] QCAT 180 Queensland College of Teacher v CJK [2019] QCAT 115 Queensland College of Teachers v El-Sayed [2018] QCAT 320 |
APPEARANCES & REPRESENTATION: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Background
- [1]Teacher MUE was initially registered with the Queensland College of Teachers on 15 February 2005. His current registration is suspended. He is 39 years old and is a ‘relevant teacher’ under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘The Act’).[1]
- [2]Teacher MUE was employed full time as a high school teacher of Biology and Physical Eucation, in addition to being the school athletics coach. The teacher held this position from 10 January 2005 until 21 August 2015 when he resigned.
- [3]The Queensland College of Teachers (‘The College’) received notice under section 87 of the Act, about allegations regarding Teacher MUE’s conduct towards a female student whilst he was a teacher.
- [4]On 29 March 2019, pursuant to s 49 of the Act, the College suspended Teacher MUE’s registration on the basis that he posed an ‘unacceptable risk of harm to children’. The College then referred the matter to the Queensland Civil and Administrative Tribunal (QCAT).
- [5]On 21 May 2019 the Tribunal ordered that the suspension be continued.[2]
- [6]Under s 97 of the Act, if the College reasonably believes that one or more grounds for disciplinary action against a ‘relevant teacher’ exist, the College must refer the matter to a disciplinary body.
- [7]The College authorised an investigation into a disciplinary matter under section 98 of the Act.
- [8]On completion of the investigation, a written report was given to the Professional Capacity and Teacher Conduct Committee (‘the PC&TC Committee’) in accordance with section 201(2)(a)(ii) of the Act. The PC&TC Committee referred the matter to the Tribunal, without hearing the matter.
- [9]The ground for disciplinary action under s 92(1)(h) of the Act is that Teacher MUE ‘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’.
- [10]The conduct which the College alleges occurred and establishes a ground for disciplinary action under s 97(1)(h) of the Act is set out in ‘Annexure A’ to the disciplinary proceeding referral of 3 April 2020.
- [11]While the referral alleges that Teacher MUE was charged with unlawful possession of a dangerous drug under section 9 of the Drugs Misuse Act 1986, he was not convicted of this offence therefore the ground for referral in this matter is under section 92(1)(h) of the Act only.
- [12]The issues to be determined by the Tribunal are:
- (a)whether a ground for disciplinary action is established; and
- (a)if so, the appropriate sanction to be applied.
- (a)
Was the disciplinary ground in s 92(1)(h) established?
- [13]This referral has been decided on the papers. This method arose from a direction in QCAT on 27 July 2021.
- [14]The ground for disciplinary action in s 92(1)(h) of the Act is that:
the person 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
- [15]The parties filed an agreed Statement of Facts dated 22 September 2020. While Teacher MUE did not initially agree with all of the facts in relation to the allegations, after having a further opportunity to make submissions on what he did not agree with he declined to submit further submissions and so it was agreed by both parties that the facts within the agreed statement of facts established a ground for disciplinary action.
- [16]Although the parties have now agreed the ground is established, the Tribunal must be satisfied on its own assessment of the relevant facts and circumstances that a ground for disciplinary action exists. For the reasons set out below, the Tribunal finds the ground in s 92(1)(h) of the Act is established.
- [17]‘Standard of behaviour’ is not defined in the Act but has been addressed by the Tribunal in previous decisions:
‘...the Tribunal agrees that the standard ‘reasonably’ expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[3]
In considering the expected standard, the Tribunal must have regard to the main objects of the Act which are:
- (a)to uphold the standards of the teaching profession; and
- (b)to maintain public confidence in the teaching profession; and
- (c)to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.[4]
- [18]These standards for teachers apply to current as well as former students, with whom a power imbalance continues to exist, and to whom continuing professional obligations apply long after graduation from school. Student A was a student being taught by Teacher MUE at the time of the misconduct and she was a former student once she graduated from Year 12.
- [19]Teachers must not engage in romantic or sexual relationships with students. This obligation continues after graduating from high school:
...there is a power imbalance that exists which takes time to dissipate as well as professional boundaries and standards expected of a teacher that extend beyond a student’s completion of secondary school.[5]
- [20]The parties agreed that:[6]
- (a)At all material times, Teacher MUE had a direct teacher-student relationship with Student A when she was in Year 10 in 2013, in Year 11 in 2014, in Year 12 in 2015, and beyond Year 12 until 2018;
- (b)Teacher MUE was the school athletics coach during part of the period of misconduct. Boundaries in this subject area were stretched at first, then broken.
- (c)It was during these athletics sessions that over-familiar behaviour with Student A began. The crossings of professional boundaries were numerous; including
- (d)Teacher MUE sat between Student A’s legs;
- (e)Time alone between teacher and student both during and after school hours grew;
- (f)Teacher MUE transported Student A on his motor bike or in his car after being directed on two occasions by his administrative superiors, not to transport Student A or any other student;
- (g)During 2014 Teacher MUE engaged in sexual intercourse with Student A on up to ten occasions; and
- (h)Teacher MUE engaged in sexual intercourse with Student A outside of school hours at a nearby park;
- (i)During 2014 and 2015, Teacher MUE purchased, paid for, supplied and drank alcohol with Student A outside school hours; and
- (j)Teacher MUE knew or should have known that Student A was 15, 16 or 17 years of age and a minor and prohibited by law to consume alcohol;
- (k)Teacher MUE was not a ‘responsible adult’ under section 5 of the Liquor Act 1992; and
- (l)Teacher MUE has not been charged or convicted under section 156(2) of the Liquor Act 1992, because the offending was not detected by the Police;
- (m)On 11 November 2015, Teacher MUE consumed cannabis with Student A, who was in Year 12 at the time, in a secluded area of a local park;
- (n)This incident happened following a personal training session where during a routine patrol at 4.20pm, the Police noticed the parked car, approached it noticing Teacher MUE lying on the ground next to the passenger side. Student A was in the driver’s seat. Teacher MUE jumped into the car on seeing the police;
- (o)Teacher MUE and Student A were ordered out of the car whereby the smell of burned cannabis was emanating from the vehicle;
- (p)Various drug related items were seized by Police. Student A admitted to Police that the items belonged to her and not to Teacher MUE;
- (q)Teacher MUE knew or ought to have known that consuming cannabis is prohibited by law;
- (r)Teacher MUE knew or ought to have known that consuming cannabis with Student A was a breach of his ethical and professional boundaries as a teacher;
- (s)Subsequently Teacher MUE:
- Was charged with unlawful possession of a dangerous drug under section 9 of the Drugs Misuse Act 2000.
- (a)
- [21]Teacher MUE’s teaching registration was suspended on 29 March 2019, the College having formed a reasonable belief that Teacher MUE posed an unacceptable risk of harm to children.
- [22]The Tribunal was provided with the report and transcripts of the investigation.
- [23]In addition, brief medical letters from a General Practioner, a Psychologist and a Psychiatrist, all dated between June and October 2020, were submitted by Teacher MUE.
- [24]The letters from the GP, Dr David White (dated 3.7.2020), and the letter from Psychologist James Whiting (dated 7.7.2020) gave a brief summary of Teacher MUE’s mental health requesting an extension of time to enable Teacher MUE to make an appropriate response to the submissions sought by QCAT in the Directions of 24 April 2020. The extension of time was allowed. There was no detail of a treatment plan supplied by either practitioner, nor any suggestion of treatment at this time.
- [25]A further letter from Psychologist James Whiting (dated 6.10.2020) states that Teacher MUE had attended regular treatment sessions of psychotherapy, having attended eleven times to date. It was stated that Teacher MUE had ‘gained substantial insight into the personal and contextual factors that contributed to past behaviours that led to the suspension of his professional registration’. Further it states that ‘... he will seek professional psychological support in the future should he require this at any time in the future now that he is more confident to recognise signs of psychological distress in himself’.[7]
- [26]An email from Psychiatrist Dr David Barison states two lines of diagnoses and a statement that he intends to continue to treat Teacher MUE.
- [27]We note from these letters that Teacher MUE only very recently sought any professional help. None of the letters mention Teacher MUE’s acknowledgement of his harm to others, nor any sort of sorrow and remorse for his misconduct. To support this view, it is a fact that Teacher MUE was suspended on 29 March 2019 and had his first Psychologist visit on 23 June 2020.
- [28]Teachers are bestowed with a high level of trust by students, teachers and the wider community, and with that trust comes an expectation that the trust will not be breached.
- [29]The Tribunal finds that Teacher MUE’s conduct towards Student A would be viewed as inappropriate by the community and by the profession generally, as behaviour that falls well below the standard of behaviour generally expected of a teacher.
- [30]We find that Teacher MUE behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher and, accordingly, that the disciplinary ground in s 92(1)(h) of the Act has been established.
Factors relevant to sanction in this matter
- [31]Section 161 of the Act applies to a former approved teacher. It sets out the actions which may be taken by the Tribunal where it has been determined that a ground for disciplinary action has been established.
- [32]The purpose of disciplinary action is not to punish the teacher but to further the objects of the Act.
The sanction to be imposed must be of some general deterrence to teachers as well as being responsive to the particular circumstances of each case. The correct approach of a sanction is to give both a general deterrence to the members of the teaching profession and a specific deterrence to further irresponsible conduct by the teacher in question.[8]
- [33]Other factors relevant to the Tribunal’s consideration of the appropriate sanction include:
the nature and context of the behaviour itself, the level of insight a teacher may have in regard to the impact the behaviour may have on the students, school and community, what actions they have taken to remedy the behaviour, their teaching history, seniority and any leadership role they may hold. Overarching considerations include protecting students from harm and maintaining public trust and confidence in the teaching profession and upholding professional standards.[9]
The following aggravating factors have been considered
- [34]In deciding sanction in this matter the Tribunal has considered the following aggravating and mitigating factors:
- (a)Teacher MUE did not engage with the College during the investigation and suspension phases and did not provide a response to the allegations in the referral as directed by the Tribunal in Directions.
- (b)Letters from a general practitioner, a psychologist and a psychiatrist were submitted by Teacher MUE. The letters were all dated during 2020 and held no details of diagnoses connected with treatments which may offer some insight into the misconduct; indeed, we concur with the College that while they are ‘loath to discourage anyone from seeking medical treatment, the significant delay in seeking medical treatment may be viewed as opportunistic to assist with the current proceedings rather than genuine’.[10]
- (c)Teacher MUE has been a registered teacher since 15 February 2005. He was 32 to 36 years of age during the relevant period of time;
- (d)He was an experienced teacher of more than 10 years experience;
- (e)Teacher MUE ignored two previous warnings in 2014 and 2015 by two different principals to cease and desist with the inappropriate behaviour noted by his school community and reported to the school. Examples of these reports are as follows:[11]
- In February 2015, Student A was seen getting on to the back of Teacher MUE’s motorbike about 100 metres from the school.
- In February 2015, a parent and a group of Year 9 students expressed concern about an inappropriate coaching relationship noted between Teacher MUE and Student A.
- Teacher MUE seen sitting between Student A’s legs
- Teacher MUE was reported for drawing a smiley face on another student’s leg.
- A member of the school community and a group of Year 9 students reporteded Teacher MUE being alone with Student A
- Engaging in one-on-one personal training sessions with Student A.
- (a)
- (f)The length of the boundary breaches by Teacher MUE in this matter went for a period of up to six years.
- (g)Teacher MUE did not engage with the College during the investigation and suspension phases and did not provide a response to the allegations in the referral as requested by the Tribunal in Directions. However, recently Teacher MUE has expressed his apology, and agreed to a joint statement of agreed facts and agreed to work towards resolving the matter.
- (h)Apart from the very short apology, ‘My greatest and humblest apologies for the harm I have caused’,[12] Teacher MUE has displayed no remorse for his actions, and the pain he has caused Student A, his own family and his school community including other students, and his profession.
- (i)Teacher MUE has shown no level of insight into his damaging behaviour and how he could work on various strategies to improve his knowledge and ability in this area. The late date of professional help sought supports this view.
- (j)Although criminal charges for drugs and alcohol did not result in a conviction, but rather a signed agreement that he would attend and comply with a a drug diversion assessment programme,[13] the choices made by Teacher MUE to participate in this behaviour, in a public park, (from when Student A was 15 years old)[14] shows the depth of the disregard of the quality of behaviour he modelled for Student A when he was her teacher.
- (k)Teacher MUE minimised his misconduct by apportioning blame on to Student A when he was charged with drug offenses. For example:
- Student A says ‘...he did pretty much make sure it was my choice type thing, you know what I mean?’[15] thus could be seen to encouraging the student to make an illegal choice.
- Whereas Teacher MUE tried to convince a family member that Student A was strong, had pushed him over, and she had raped him.[16]
- Teacher MUE said that he had a minor drug offence because Student A had had possession of drugs on her when he was meeting her for training at the gym.[17]
- When charged by Police, Teacher MUE and Student A both stated that most of the drug equipment belonged to Student A.[18]
The following mitigating factors have been considered
- (l)Teacher MUE’s registration was suspended on 29 March 2019 and his name was removed from the register of teachers on 4 May 2020 for non-payment of his annual teacher registration fees.
- (m)Recently Teacher MUE has expressed his brief apology, and agreed to a joint statement of agreed facts and agreed to work towards resolving the matter.
- (n)Teacher MUE eventually cooperated fully with the College which saved many others the pain of an oral hearing and the associated and not insignificant costs.
- (o)Teacher MUE was to advise the College and the Tribunal by 24 August 2021 with his own submissions on sanction if he did not agree with that sanction filed by the College on19 November 2020. This advice received on 24 August 2021 was in the affirmative.
- (p)Teacher MUE has no previous disciplinary or criminal history, other than the criminal marijuana charge that was dealt with by Police through a Drug Diversion Assessment Programme.
Previous decisions of the Tribunal
- [35]The College referred the Tribunal to seven previous decisions to assist the Tribunal with coming to the correct decision on the appropriate sanction. [19]
- [36]We do not consider the following cases to be of assistance in our consideration of sanction in this matter due to such widely differing factual, criminal and historical aspects in comparison with the current matter:
Queensland College of Teachers v El Sayed [2018] QCAT 320;
Queensland College of Teachers v RGK [2018] QCAT 180;
Queensland v College of Teachers v NBL [2019] QCAT 312.
- [37]Four previous matters have numerous similarities to assist the Tribunal with the appropriate sanction.
- [38]In Queensland College of Teachers v CJK [2019] QCAT 115, the teacher was a primary school teacher with 16 years experience in the one school. He was charged with seven counts of indecent dealing with children in his care, including providing massages to five students. While the teacher was found not guilty in the District Court on all seven charges, the Tribunal found that the evidence demonstrated consistent and repetitive boundary-crossing behaviour by the teacher, despite the teacher’s attendance at all mandatory staff training and student protection training, which covered ‘professional boundaries’ training specifically.The teacher provided no evidence of insight despite being out of teaching for over four years at the time of the decision. Shallow statements of remorse lacked a convincing understanding of the ongoing harm to the children involved. The Tribunal found that the serious, extended and repetitive nature of the conduct created too great a risk of harm to children in the future to allow CJK to return to teaching. He was prohibited indefinitely from teaching.
- [39]Although the facts in CJK differ considerably from the current matter, and there were not multiple students involved in the more serious aspects of the misconduct by Teacher MUE, the boundary crossing and extended length of time of the misconduct of CJK, in addition to his persistent disregard of training in order to provide safety for children, is reminiscent of numerous aspects of equally serious misbehaviour by Teacher MUE.
- [40]In Queensland College of Teacher v ATL [2020] QCAT 59 the teacher was an experienced teacher of 7.5 years in a highschool. He had a sexual relationship with a year 12 student and was also in a sexual relationship with a former student, which had be on going for 3.5 years. Both students had been taught by ATL. Excessive amounts of academic assistance was also provided to the Year 12 student. ATL’s registration was cancelled and he was prohibited from teaching indefinitely.
- [41]We consider Teacher MUE’s behaviour to be similarly serious and damaging to the behaviour in ATL. Teacher MUE was more experienced than ATL and pursued his misconduct for a far more extended period of time. He too was in concurrent relationships.
- [42]In Queensland College of Teacher v RTM [2016] QCAT 501, the teacher had eleven years teaching experience in a high school. He was 35 years old and had a relationship with a Year 11 Student which continued when the student went into Year 12. The relationship escalated after the student’s 18th birthday. They engaged in sexual activity and intercourse prior to the student’s graduation and continued for a further five months after graduation. RTM’s registration was cancelled and he was prohibited from re-applying for registration for seven years and 8 months from the suspension date and required to undergo a professional boundaries course and provide a psychologist’s report on re-application.
- [43]We view this case as less serious than that of Teacher MUE as the length of time of the misconduct was significantly less. Like Teacher MUE, RTM was un-cooperative during the investigative stage of proceedings and maintained a high level of deceit with his family and his school.
- [44]In Queensland College of Teacher v SGS [2017] QCAT 383, a 42 year old high school teacher engaged in a long-standing sexual relationship with a 17-year-old student. In addition they cohabited together within three months of her graduation from school. The precise length of the relationship is unknown but it continued for at least 10 months. SGS was prohibited from re-applying for registration for seven years from the end of his provisional registration and required to provide a psychological report on re-application.
- [45]Each of these four previous Tribunal decisions involved experienced teachers who had a considerable age gap between themselves and their students. They were teachers who had all undergone the mandatory child protection training and professional standards and code of conduct training given by their school authorities, and they made the choice to ignore it.
- [46]In reference to Teacher MUE, we have considered the length of time of the boundary breaches that occurred, the length of time of the sexual contact involved, the level of deceit displayed, the disgraceful modelling of poor choices to a student under his care including drug and alcohol use, the very late acknowledgement of the harm and damage caused to his student, to his family, to his school, to his school community and to his profession in general. We have also considered the mitigating aspects where Teacher MUE has made a late but appreciated effort to cooperate and save others more pain and further cost.Consideration
- [47]We consider that Teacher MUE provides an unacceptable risk of harm to children that is unlikely to change. Therefore we order that Teacher MUE is prohibited indefinitely from re-applying for registration or permission to teach.
Orders
- The ground for disciplinary action under section 92(1)(h)of the Act is established
- The respondent is indefinitely prohibited from applying for registration or permission to teach from the date of this order
Non-publication order
- [48]On 24 April 2020 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.
- [49]We accept the submissions of the QTC on a non-publication order and the enabling of sharing information for certain purposes and on the 20 September 2021 the Tribunal made the a non-publication order In the following terms:
- [50]Publication is prohibited of any information which might identify the respondent, any of the relevant student or former students or the relevant schools other than to the extent necessary for the QTC to meet its statutory obligations and as provided for under the Eucation (Queensland College of Teachers) Act 2005. The respondent may provide a copy of this decision to any future regulatory authority or employer in compliance with any disclosure requirements.
Footnotes
[1] Education (Queensland College of Teachers) Act, Schedule 3.
[2] Unreported decision Queensland College of Teachers v Teacher MUE, 21 May 2019.
[3] Queensland College of Teachers v Armstrong [2010] QCAT 709, 33.
[4] Education (Queensland College of Teachers) Act 2005, s 3(1)(a)(b)(c).
[5] Queensland College of Teachers v Teacher FDA [2017] QCAT 224, 40.
[6] Agreed Facts in Annexure ‘A’, pp 4 – 7.
[7] Medical Reports and emails under Respondent Statements.
[8] Queensland College of Teachers v Brady [2011] QCAT 464, 55.
[9] Queensland College of Teachers v Teacher BAM [2012] QCAT 694, 41.
[10] QCT Submissions, p10 of 24, 36 (f).
[11] QCT Documents, pp 144-145.
[12] QCT Documents p 30.
[13] QCT Documents p 159.
[14] QCT Documents p 17 of 24, 58.
[15] QCT Documents, Student A Record of Interview, p 77.
[16] QCT Documents, Record of Interview, p 53 and p 58.
[17] QCT Documents, Record of Interview, p 59 [354].
[18] QCT Documents, Police Report, pp 154 – 155.
[19] QCT Submissions on Sanction, pp 11-18.