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Queensland College of Teachers v Teacher EOL QCAT 108
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v Teacher EOL  QCAT 108
queensland college of teachers
Occupational regulation matters
30 March 2022
18 March 2022
Member Browne, Presiding
EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GOVERNMENT INSTITUTIONS – where teacher charged with ‘serious offence’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) – where teacher’s registration was suspended – where charges were dismissed – where alleged conduct did not occur in the course of teaching – whether ground for disciplinary action exists – where appropriate sanction considered – whether grounds for making non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Criminal Code Act 1899 (Qld), s 210(1)(a), Schedule 1
Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 92(1)(h), s 97, s 158, s 160, Schedule 3
Evidence Act 1977 (Qld), s 29A, s 29AK
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167
Queensland College of Teachers v Armstrong  QCAT 709
Queensland College of Teachers v Teacher BAM  QCAT 694
Queensland College of Teachers v DGM  QCAT 194
Queensland College of Teachers v PPK  QCAT 59
Queensland College of Teachers v QNL  QCAT 100
Queensland College of Teachers v TSV  QCAT 186
Queensland College of Teachers v VK  QCAT 268
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
- Teacher EOL was registered as a teacher with the Queensland College of Teachers on 12 May 2011 until the College suspended his registration on 2 January 2019.
- Prior to suspending EOL’s teacher registration, the College was notified by the Queensland Police Service that EOL had been charged with a ‘serious offence’ namely indecent treatment of children under 16 years pursuant to s 210(1)(a) of Schedule 1 of the Criminal Code Act 1899 (Qld).
- Because the offence was a ‘serious offence’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act), the College was required to suspend EOL’s teacher registration and refer the continuation of the suspension to the Tribunal. The Tribunal continued the suspension by order dated 4 March 2019.
- The College later obtained an updated national police check which indicated that EOL was found not guilty on the charge by the District Court of Queensland. EOL was later discharged on 24 August 2020.
- The present matter before the Tribunal arises from a disciplinary referral made by the College alleging that one or more grounds for disciplinary action against EOL, a ‘relevant teacher’, exist.
- The issue to be determined now is whether a ground for disciplinary action is established, and if so, the appropriate action to be taken, based on the information provided to the Tribunal by the College.
Is a disciplinary ground in s 92(1)(h) of the QCT Act established?
- A ground for disciplinary action has been established as required by s 92(1)(h) of the QCT Act, if:
a 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.
…the standard 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.
- The objects of the QCT Act that provides a legislative regime for, amongst other things, the registration of teachers and certain disciplinary action to be taken for teachers in Queensland, is also important and relevant when considering the standards of behaviour. As reflected in s 3 of QCT Act, the objects are to uphold the standards of the teaching profession, to maintain public confidence in the teaching profession and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
- In the present matter, the College submits and we accept that EOL is a relevant teacher whose registration has been suspended following a charge for a ‘serious offence’ that has now been ‘dealt with’, EOL having been discharged by a Judge of the District Court on 24 August 2020. Teacher EOL is presently 39 years of age.
- Both the College and EOL agree as to the facts giving rise to the referral of this matter. In written submissions filed, the College summarises EOL’s behaviour that we accept is a summary of EOL’s relevant conduct giving rise to the referral, as follows:
In short, [EOL] was heavily intoxicated after a day and night of drinking in [a place] (where the temperature was warm). At an unknown time at approximately 2:00am on 17 November 2018, [EOL] entered the child victim’s bedroom through an open door. [EOL] pulled the sheet and doona back off the bed. He removed a pillow that was between the child’s legs and threw it against the wardrobe door, which made a noise. [EOL] climbed into the child’s bed and positioned himself on his side facing the child, who was now lying on her side. [EOL] placed his head on the child’s sternal notch (upper chest), directly under her chin. The child alleges she could feel [EOL’s] hair on his head on her chin and his nose on her chest. [EOL] placed his left hand on the child’s right hip. [EOL] did not move from this position.
Upon realizing that [EOL] was neither her sister, father or mother, the child pushed [EOL] off her body and sat up in bed. The child said to [EOL], words to the effect of, “Who is this?”. [EOL] replied “Sam”. The child got out of bed and as she was leaving her bedroom [EOL] said to her, words to the effect of, “What’s wrong [FTB, being the child’s name]” The child replied to [EOL], “You’re in my bed”.
- In relation to the charges that were presented against [EOL], the College submits the following:
[EOL] was charged with indecent dealing with a child under 16 and the particulars of the charge at the time were that he climbed into her bed and placed his hand between her legs. This later element of the offence is naturally alarming, and understandably would fall within the realm of “indecent” behaviour. However, once multiple statements were taken by the Police from the child (2 x section 92AK and 1 x 21A Evidence Act 1977 (Qld) statements) it soon became apparent that although [EOL’s] conduct was unsatisfactory, there didn’t appear to be any sexual connotation, gratification or sexual element to his conduct.
- In relation to EOL’s acquittal, the College submits, amongst other things, that [EOL’s] conduct was missing any sexual intent or sexual gratification gained from the conduct as he was asleep. Further, the College says that the Director of Public Prosecutions was unable to locate the sentencing transcript and confirm whether one was produced. The College submits, however, that based on the transcript from the trial and the defence and prosecutions arguments around the ‘indecent’ element, it appears that the presiding District Court Judge accepted the absence of any sexual element, sexual connotation and sexual benefit on the part of [EOL]. This, the College submits ‘was key’ to EOL’s acquittal.
- The College says that it accepts the District Court’s decision and in reviewing all of the material and the transcript of the proceedings, EOL’s actions were those of a heavily intoxicated person who just wanted to sleep.
- After reviewing all of the material filed in support of the referral, we agree with the College’s submissions in relation to EOL’s conduct and the findings of the District Court. We accept the submissions made by the College in relation to EOL’s conduct now set out below:
- (a)After coming home, EOL had been in the front lounge room, where he was due to sleep, as his shirt was found lying on the lounge room floor and he was shirtless when he entered the child’s bedroom;
- (b)It’s speculation, but it’s likely [EOL] has gone to the toilet during the night and after exiting the toilet he entered the child’s bedroom by accident, which was located across the hall from the toilet and the child’s bedroom door was open. This was a fact highlighted by the defence ‘as indicia that [EOL] didn’t have to turn his mind to opening [the child’s] bedroom door’;
- (c)[EOL] removed the sheet, doona and pillow as that was a barrier to him to going to sleep;
- (d)Once [EOL] had “collapsed” on the child, it appears he immediately fell asleep and did not move;
- (e)When the child yelled at him and asked his name, [EOL] answered “Sam”. No on knows who Sam is and it clearly wasn’t [the child’s] name;
- (f)When the child’s mother yelled at [EOL] to get out of the child’s bed, instead of doing so as a reasonable person would, [EOL] stayed in bed and fell back asleep;
- (g)[EOL] did not touch the child in an overtly sexual way and once his body had fallen where it lay, he never moved i.e. his hand that fell on the child’s hip did not move from that position.
- We do not agree, however, with the Colleges submissions that it is open for us to find that EOL’s behaviours amounts to a common assault with the aggravating features such as the behaviour or conduct occurred during the night. We accept and find accordingly that EOL’s behaviour is serious and indeed an aggravating feature of the behaviour is the fact that the conduct occurred in the middle of the night at a time when the child was asleep in her own bed. Further to that, EOL’s behaviour caused the child fear and distress that she needed to undergo counselling. It is, however, a matter for the Queensland Police Service as to how EOL’s conduct is investigated and what charges, if any, are brought, under the relevant Criminal Code against EOL. Here the charge presented against EOL was indecent dealing with a child under 16. The charge has been dealt with by the District Court and EOL has now accepted his behaviour for the purposes of the disciplinary referral that is now before the Tribunal.
- After examining the circumstances of the charge as required under s 92(3) of the QCT Act, we are satisfied that a ground for disciplinary action has been established.
- Teacher EOL accepts that his conduct gives rise to a ground for disciplinary action and agrees with the proposed sanction by the College of a reprimand and a condition that he be of good behaviour. In written submissions EOL says the following:
[EOL] agrees…that his severely drunken behaviour was entirely wrong indeed disgraceful and had a serious impact on the child. He deeply regrets that notwithstanding those features, he respectfully submits the orders sought are appropriate.
- In our view a teacher working with children and young people holds a trusted position in the community to conduct themselves in a way that will not impact on children and undermine public confidence in the teaching profession. Such conduct may occur in the capacity of a teacher or otherwise such that it does not need to be in the context of a teacher/student relationship.
- In the present matter, EOL drank excessive amounts of alcohol in circumstances where he made plans to stay with friends who also have a child staying in the same house. EOL made the decision to stay out on his own after his friends with whom he was drinking had left to return to the place where they were staying (and EOL was staying). EOL returned to his friend’s house heavily intoxicated. In the early hours of the morning, EOL got into the bed of the 15 year old complainant girl while she was sleeping. EOL failed to adopt protective behaviours towards the child and placed himself and the child in a compromising, at risk, or inappropriate situation that caused the child fear and distress. EOL’s actions caused the complainant girl ongoing distress resulting in a need for her to undergo counselling.
- In our view, EOL’s conduct falls short of the standards and expectations of a teacher and undermines the teaching profession as a whole. Teachers hold a trusted position and are expected to conduct themselves in an appropriate and professional way and should not engage in behaviours that cause fear and distress to children and young people.
- We are satisfied that Teacher EOL behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher and that a disciplinary ground has been established.
What action should be taken under s 160 of the QCT Act?
- The Tribunal may take certain action as provided under s 160 of the QCT Act upon a finding that a ground for disciplinary action has been established.
- It is established law that the purpose of disciplinary action is not punitive in nature but to further the objects of the QCT Act and to serve as a deterrence to others not to engage in the conduct.
- In the Queensland College of Teachers v TSV the Tribunal considered the purpose of discipline to include, amongst other things, upholding standards of the profession, maintaining public confidence and protecting the public. In TSV the Tribunal said and we agree as follows (footnotes omitted):
The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way. It is essential that persons registered as teachers do not pose a risk of harm to children. Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”.
- In the present matter, the factors to be considered that are relevant to the consideration of the appropriate sanction include the circumstances of the conduct and behaviour, the impact of EOL’s behaviour on the child and community, EOL’s actions taken to remedy the situation, EOL’s age and maturity and level of experience, EOL’s early acceptance of the referral and insight into his actions, EOL’s character references, EOL’s previous disciplinary history, the level of remorse demonstrated by EOL for his actions and his cooperation in the disciplinary process.
- In determining the appropriate action or sanction to be imposed in all of the circumstances of the matter, the Tribunal is referred to a number of cases that are said to assist in identifying appropriate sanction imposed for matters involving similar conduct. Each matter will, however, ultimately turn on its own facts.
- We find that, EOL’s conduct is serious because it involved a 15 year old female child as the victim. EOL’s conduct occurred in the middle of the night when the child was asleep in her bed, a place where the child ought to have felt safe.
- It is apparent from the material provided to the Tribunal that the child was distressed immediately after the incident and she underwent counselling for her distress. Further, EOL was heavily intoxicated at the time of his conduct. We accept the College’s submission that EOL’s alcohol consumption was not an isolated incident and that, as submitted, ‘[EOL] is adversely affected by alcohol to the detriment of others’ as evidenced by an unrelated publicly reported incident involving EOL and his consumption of alcohol.
- We have considered the other cases referred to us by the College such as QNL that the College says involves conduct described as common assault and is therefore similar to the conduct here.
- The case of QNL was not child related and involved a teacher who was heavily intoxicated who repeatedly tried to sexually touch a fellow female colleague during the night on numerous occasions including touching her breast and trying to put her hands down her pants. It culminated in the teacher placing her hands down the pants of her colleague and touching her genitals. The relevant teacher was reprimanded for the conduct.
- In Armstrong, the teacher developed an inappropriate, over-familiar and intrusive relationship with 3 children. The teacher failed to adopt protective behaviours, thereby placing himself and students in compromising, at risk, or inappropriate situations. The teacher admitted to giving money to one student and visiting the student’s desk after school. The College described the behaviours as ‘grooming’ and the teacher was prohibited from re-applying for registration for a period of 5 years.
- In DGM, the teacher engaged in an inappropriate relationship with a student including exchanging mobile telephone numbers, driving the student home, conducting private tutoring sessions. The conduct was ‘very disturbing’, the teacher was found to have abused the position of trust held as a teacher and was prohibited from teaching for 4 years with a notation endorsed on the register.
- In PPK, the student met the teacher on a dating platform known as ‘Tinder’ and commenced a sexual relationship with the teacher after becoming aware that the teacher had supervised the student’s maths examination. The Tribunal found that there are expectations of a teacher that they will behave in a way generally expected of a teacher and referred to the Guidelines published by the College that provide that amongst other things, a teacher must act professionally at all times in their relationship with students. The teacher was later prohibited from teaching for 4 years with a notation on the register.
- In Teacher BAM, there were sexualised behaviours limited to year 12 students and the conduct did not evidence behaviour that suggested or established a progressing pattern of behaviour or an unacceptable risk of harm. The teacher obtained 2 female students mobile phone numbers and used those contact numbers at inappropriate times and for inappropriate reasons. The communication was found to be ‘overly familiar, inappropriate and sexualised manner and tone’. The teacher was found to engage in conduct that was a departure from a standard of behaviour expected of a teacher. The teacher had an unblemished record, made full admissions in the proceeding. The teacher was suspended from teaching for 12 months and a notation made on the register.
- In TSV, the Tribunal accept the complainant’s version and found that the teacher made unwelcome sexual advances towards a student. The teacher took advantage of the warmth expressed by the student in a letter when she heard about the teacher’s cancer diagnosis. The Tribunal found that there was a significant age difference between the teacher and the relevant student and the teacher demonstrated no insight or remorse. The teacher had a good record. The teacher’s registration was cancelled.
- Unlike the conduct identified in Armstrong, DGM, PPK, Teacher BAM, and TSV in the present matter, the relevant child was not a student of EOL and EOL did not appear to know the child other than the child being the child of his friends and the child was living in the house where EOL had made plans to stay for the night. As discussed above, EOL’s actions were not deliberate and EOL was heavily intoxicated. The evidence before us establishes that EOL’s arm stayed where he placed it after he got into the child’s bed and fell asleep.
- Here, the College and EOL submit and we agree that a reprimand and conditions that EOL be of ‘good behaviour with alcohol conditions’ for a period of 5 years are appropriate in this matter. Further, we agree and find accordingly, that it is appropriate in all of the circumstances to cancel EOL’s suspension of his teacher registration. EOL’s registration was suspended by the College at first instance on 2 January 2019 being a period of more than 3 years from the date of our consideration of this matter. We are satisfied that 3 years is a more than adequate period of time to be away from the teaching profession. It is appropriate for the suspension to be ended so that EOL can return to his profession of teaching.
- We have also taken into account the fact that EOL is an experienced teacher having been registered as a teacher on 21 December 2010. He was 36 years of age and has two children at the time of the conduct. EOL has no previous disciplinary history aside from this matter. EOL also has excellent personal and professional references who are aware of the criminal charges in relation to the current matter.
- In written submission EOL submits that following the incident a colleague was in contact with the child’s family daily for the first ten days after the incident. EOL says that he passed on his apologies a number of times to the family (as that colleague held the view that the family would not be receptive to a personal attendance). Subsequently, EOL says after Police contact it was not appropriate to have any contact with the child’s family.
- As discussed above, this is a matter involving standards of behaviour and more importantly EOL’s failure to adopt protective behaviours in circumstances where he drank excessive amount of alcohol knowing that he was staying at a place where a child was also sleeping. EOL placed himself and the child in a compromising, at risk and inappropriate situation.
- We are satisfied that EOL has demonstrated insight and remorse for his conduct. EOL accepts the conduct and agrees with the orders proposed by the College. EOL accepts that his behaviour was not appropriate and regrets his actions.
- EOL has no previous disciplinary history and as reflected in the College submissions EOL has a number of supportive character references that attest to his professionalism and dedication as a teacher.
- We are satisfied having considered all of the material and the circumstances of the charge that a ground for disciplinary action under s 92(1)(h) of the QCT Act is established. EOL’s suspension of his teacher registration is ended under s 48 of the QCT Act. EOL is to be reprimanded under s 160(2)(c) of the QCT Act and a condition is imposed on his registration for a period of 5 years as follows:
- (a)If any alcohol related conduct (criminal or otherwise) is brought to the attention of the Queensland College of Teachers (‘QCT’) or is within the knowledge of the QCT, within five (5) years from the date of the Tribunal’s order, Teacher EOL must undertake alcohol counselling/training at his own expense and as nominated, approved to the QCT’s satisfaction.
- We order accordingly.
- On 4 March 2019, the Tribunal ordered that the publication of information that would identify EOL, the relevant school or any relevant students or third parties is prohibited.
- The College submits and we agree that the interests of justice require that a non-publication order should be made in this matter to ensure that the complainant child, her family and EOL’s identity and the school where he teaches is not identified.
- Here, it would not be interests of justice to identify the child, her family and EOL and his family having considered all of the circumstances of the matter. The Tribunal therefore prohibits the publication of any information that could identify Teacher EOL and the complainant child in the criminal matter or the school where EOL teaches. We order accordingly.
 See s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act) and s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) that defines a ‘serious offence’. See also Schedule 3 of the QCT Act.
 See s 48 of the QCT Act.
 QCT Act, s 97. See referral filed 3 November 2020 and amended referral filed 29 March 2021.
 QCT Act, s 158 and s 160. The Tribunal is required to examine the circumstances of the charge under s 92(3) of the QCT Act. See also Tribunal’s Direction dated 23 April 2021 listing the matter for a decision on the papers. Matter OCR344-20 is listed before the Tribunal for a hearing (on the papers) on 18 March 2022. See also submissions filed by EOL filed 4 June 2021 and the College’s submissions filed 14 May 2021.
 College’s written submissions filed 14 May 2021.
 Queensland College of Teachers v Armstrong  QCAT 709.
 Ibid, .
 QCT Act, s 92(2)(a) and s 92(1)(h). See also Schedule 3 of the QCT Act in relation to a ‘relevant teacher’ and the College’s submissions filed 14 May 2021.
 College’s submissions filed 14 May 2021, .
 Ibid, .
 Ibid, .
 College’s submissions filed 14 May 2021, .
 EOL’s written submissions filed 4 June 2021, .
 Queensland College of Teachers v PPK  QCAT 59, .
 See s 92(1)(h) of the QCT Act.
 Queensland College of Teachers v TSV  QCAT 186, .
  QCAT 186.
 College’s submissions filed 14 May 2021, . See also Queensland College of Teachers v WAS  QCAT 61.
 See amended referral filed 29 March 2021 and attachments, DPP 17 at , DPP 21 at , DPP 25 at , DPP 26 at , DPP 34 at , DPP 104 at , DPP 123 at  and DPP 144 at , for evidence of the complainant child crying about the incident. See also evidence of the complainant child shaking and scared after the incident (DPP 21 at , DPP 25 at , DPP 26 at , DPP 47, DPP 54, DPP 104 at  and DPP 115). See also DPP 24 at  for the evidence that the complainant child sought counselling (at DPP 44, there is evidence the child also spoke to a school counsellor).
 Ibid, .
 Queensland College of Teachers v QNL  QCAT 100.
 Queensland College of Teachers v QNL  QCAT 100.
  QCAT 709.
 Queensland College of Teachers v DGM  QCAT 194.
 Queensland College of Teachers v PPK  QCAT 59.
 Queensland College of Teachers v Teacher BAM  QCAT 694.
 Queensland College of Teachers v TSV  QCAT 186.
 Queensland College of Teachers v VK  QCAT 268.
 See s 160 of the QCT Act and action that may be taken by the Tribunal. See also s 48 of the Act in relation to ending a suspension.
 See College’s submissions,  and amended referral.
 EOL’s written submissions filed 4 June 2021, .
Reasons and final decision amended on 11 April 2022 (by consent). See Application for reopening, correction, renewal or amendment filed 4 April 2022 and email from the applicant’s legal representatives dated 4 April 2022 consenting to the inclusion of the words “related conduct” in the condition imposed on the Teacher EOL’s registration.
 See s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and Tribunal order dated 4 March 2019.
- Published Case Name:
Queensland College of Teachers v Teacher EOL
- Shortened Case Name:
Queensland College of Teachers v Teacher EOL
 QCAT 108
Member Browne P, Lee, McDonald
30 Mar 2022