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  4. Queensland College of Teachers v XYZ (No. 2) - [2022] QCAT 47

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Queensland College of Teachers v XYZ (No. 2)[2022] QCAT 47

Queensland College of Teachers v XYZ (No. 2)[2022] QCAT 47

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v XYZ (No. 2) [2022] QCAT 47

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

 

v

 

XYZ

(respondent)

APPLICATION NO/S:

OCR266-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Quinlivan

Member Grigg

ORDERS:

  1. XYZ’s registration is cancelled;
  2. XYZ is prohibited from reapplying for registration or permission to teach indefinitely;
  3. The Queensland College of Teachers (QCT) may provide a copy of the decision and the reasons for decision to:
  1. Any employing authority for a school or any other employer in relation to child related employment;
  2. Other teacher regulatory authorities;
  3. The Chief Executive (Employment Screening);
  4. The Chief Executive of the Department of Education;
  5. The Minister of Education;
  6. Any other entity relevant to the respondent’s practice of the teaching profession;

where the QCT is satisfied the provision of the decision and reasons for decision are necessary for the person/entity to perform their/its functions.

  1. The non-publication order made 15 December 2017 is otherwise continued.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS – where a ground of disciplinary action is established against an approved teacher, whether a sanction of an indefinite period is warranted – where the abusive conduct towards children is at the most serious end of the range of breaches of conduct – where the respondent is found to pose an unacceptable risk of harm to children – where considerations of denunciation and deterrence are strongly enlivened, the appropriate sanction is to cancel the respondent’s teacher registration and prohibit him from reapplying for registration or permission to teach indefinitely.

PROCEDURE – OTHER MATTER – where a non-publication order should be continued, subject to the necessary exceptions to enable compliance with s 164 and s 165 of the Education (Queensland College of Teachers) Act 2005 (Qld).

Education (Queensland College of Teachers) Act 2005 (Qld) ss 3(1), 3(2), 160, 164, 165, sch 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 66(1), 66(2)

Queensland College of Teachers v Crisp [2018] QCAT (unreported)

Queensland College of Teachers v El-Sayed [2018] QCAT 320

Queensland College of Teachers v Teacher VK [2014] QCAT 268

Queensland College of Teachers v TSV [2015] QCAT 186

Queensland College of Teachers v XYZ [2019] QCAT 283

XYZ v Queensland College of Teachers [2021] QCATA 1

 

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

  1. [1]
    The Tribunal found that a ground for disciplinary action against the respondent had been established.[1] The respondent’s appeal against the decision was unsuccessful.[2]
  2. [2]
    The question of sanction falls for determination. The respondent has informed the Tribunal that he does not intend to make submissions on sanction.

The legislative framework

  1. [3]
    Section 160 of the Education (Queensland College of Teachers) Act 2005 (Qld) (EQCT Act) provides:

160  Decision about disciplinary action against approved teacher

  1. (1)
    This section applies if the relevant teacher is an approved teacher.
  1. (2)
    If QCAT decides a ground for disciplinary action against the relevant teacher has been established, QCAT may do 1 or more of the following—
  1. (a)
    decide to take no further action in relation to the matter;
  1. (b)
    if the teacher’s registration or permission to teach is suspended under section 48 or 49—end the suspension;
  1. (c)
    issue a warning or reprimand to the teacher;
  1. (d)
    cancel the teacher’s registration or permission to teach;
  1. (e)
    suspend the teacher’s registration or permission to teach for a stated time;
  1. (f)
    make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to—
  1. (i)
    any expenses incurred by the college in investigating the matter; and
  1. (ii)
    the expenses incurred by the college in the proceedings before QCAT;
  1. (g)
    make an order requiring the teacher to pay to the college, by way of penalty, an amount fixed by QCAT but not more than the equivalent of 20 penalty units;
  1. (h)
    impose conditions on, or amend or remove conditions on, the teacher’s registration or permission to teach;
  1. (i)
    make an order that a particular notation or endorsement about the teacher be entered in the register;
  1. (j)
    if QCAT cancels the teachers’ registration or permission to teach—make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely;

Note—

See also section 350 (Decision about disciplinary action against approved teacher).

  1. (k)
    make another order QCAT considers appropriate;
  1. (l)
    accept an undertaking from the teacher.
  1. [4]
    An ‘approved teacher’ means a person who is a registered teacher or holds permission to teach.[3]
  2. [5]
    XYZ’s registration has been suspended.[4]

What do the parties say?

  1. [6]
    The Queensland College of Teachers (QCT) says:
    1. (a)
      The respondent’s conduct was opportunistic;
    2. (b)
      The respondent was partly responsible for creating that opportunity by volunteering to relocate to the particular residential block so that he was the only teacher supervising the children in the block;
    3. (c)
      The respondent is an experienced teacher, having been employed in a variety of roles including classroom teacher, key learning regional co-ordinator and deputy principal;
    4. (d)
      As deputy principal of the school at the time of the relevant events the respondent was in a position of trust, power and responsibility. The abuse occurred in the performance of his duties as a teacher and deputy principal;
    5. (e)
      The abuse is at the most serious end of the spectrum of conduct and has the potential to cause enduring and serious psychological and emotional harm to the child victims;
    6. (f)
      The respondent’s conduct is the most serious breach of trust vested in teachers by students, parents and carers, the profession and the community at large. The respondent has failed to uphold the standards of the profession and his conduct seriously undermines public confidence in the teaching profession;
    7. (g)
      The respondent poses an unacceptable risk of harm to children. He is not suitable to work in a child related field and he is not fit to hold registration or permission to teach;
    8. (h)
      The appropriate order is to cancel the respondent’s teacher registration and prohibit him from reapplying for registration or permission to teach for an indefinite period;
    9. (i)
      An indefinite prohibition order is warranted to prevent the respondent from ever being able to apply for teacher registration or permission to teach and is necessary to protect children.
  2. [7]
    The respondent makes no submissions on sanction.

Consideration

  1. [8]
    The taking of disciplinary action against approved teachers is one of the ways in which the main objects of the EQCT Act are to be achieved.[5] Those objects include upholding the standards of the teaching profession, maintaining public confidence in the teaching profession, and protecting the public by ensuring education in schools is provided in a professional and competent way by approved teachers.[6]
  2. [9]
    The purpose of disciplinary action is not to punish the teacher. In Queensland College of Teachers v TSV[7] the Tribunal stated:

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”. (footnotes omitted)

  1. [10]
    The respondent was first registered as a teacher in 1990. The respondent’s registration was suspended on 26 May 2016. By subsequent order of the Tribunal, the suspension was continued.  By operation of s 52 of the EQCT Act, the respondent’s registration remains suspended until the Tribunal decides to end the suspension or the respondent’s registration is cancelled. The respondent is an approved teacher.[8]
  2. [11]
    The QCT says that there are no directly comparable decisions of the Tribunal which concern similar facts to the present case.
  3. [12]
    In Queensland College of Teachers v El-Sayed[9] the respondent was a relief support worker for an intellectually impaired, female adult. The respondent was found to have felt the complainant’s breasts, kissed her face and chest and licked her bottom. The Tribunal accepted that the respondent’s behaviour was at the most serious end of the spectrum and that cancellation of his registration was required. The Tribunal considered that the risk of harm in allowing the respondent to return to teaching was too great and cancelled his registration for an indefinite period.
  4. [13]
    In Queensland College of Teachers v Crisp[10] the respondent was charged with seven charges of indecent dealing with children while working as a teacher. Five of the charges related to indecent treatment of children under 12 years and two charges related to indecent treatment of children under 16 years. The charges ultimately led to three separate trials the results of which were findings of not guilty.  In the disciplinary proceedings the respondent admitted to massaging students aged 10 and 11 including massaging their thighs and ‘groinal’ area. The Tribunal considered, inter alia, that there was a lack of evidence that the respondent accepted or acknowledged that his conduct was inappropriate, and that he had reflected on the appropriateness of the conduct or the potential harm caused to the students involved. The Tribunal also noted the absence of evidence as to the steps that the respondent had taken to ensure that he would not engage in such conduct in the future. The respondent’s registration was cancelled indefinitely.
  5. [14]
    The circumstances of the respondent’s behaviour resulting in the finding that the ground for disciplinary action had been established are set out in the previous decision of the Tribunal.[11] We do not propose to set out again in these reasons the details of the respondent’s conduct.
  6. [15]
    It is necessary to consider the aggravating and mitigating circumstances in determining the appropriate sanction.
  7. [16]
    The aggravating circumstances are:
    1. (a)
      The respondent was an experienced teacher, having been first registered some 26 years prior to the relevant conduct;
    2. (b)
      The respondent was in a position of authority, being not only a teacher but the deputy principal of the school;
    3. (c)
      The conduct of the respondent was calculated and predatory having placed himself in a position where he could engage in the relevant conduct;
    4. (d)
      The students were extremely young and vulnerable and therefore likely to be more trusting of the respondent and in a position of a considerable power imbalance, factors which the respondent was undoubtedly aware of;
    5. (e)
      The respondent’s conduct occurred in the performance of his duties as a teacher and deputy principal;
    6. (f)
      The respondent has demonstrated a complete absence of insight into the seriousness of his conduct and the impact of such conduct upon the students affected. He has displayed no remorse for his actions. Rather, the respondent has steadfastly maintained that the conduct did not occur.
  8. [17]
    As we have observed, the respondent has elected not to engage further in the proceedings. He has therefore made no submissions that might be relevant to mitigating factors. We do not consider there are any mitigating factors favouring the respondent in the particular circumstances of the relevant conduct.
  9. [18]
    In our view, the conduct of the respondent is at the most serious end of the spectrum. It is as egregious as the conduct in El-Sayed and more serious than the conduct in Crisp. In both of those cases the teacher’s registration was cancelled for an indefinite period.
  10. [19]
    We have considered the following in determining the appropriate sanction:
    1. (a)
      The need to uphold the standards of the teaching profession;
    2. (b)
      The need to maintain public confidence in the teaching profession;
    3. (c)
      The need to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers;
    4. (d)
      The need to provide general deterrence to members of the teaching profession.
  11. [20]
    The circumstances of the respondent’s conduct are such that considerations of denunciation and deterrence are strongly enlivened.[12] Indeed, it is difficult to conceive of more egregious conduct than that engaged in by the respondent and that conduct must be denounced in the strongest terms.
  12. [21]
    In the present case, nothing short of cancellation of the respondent’s teacher registration is required. We have considered whether the respondent should be prohibited from reapplying for registration for a stated period or indefinitely.  In our view, the risk of harm to children posed by the respondent is simply too great to permit him to return to teaching at any time. The cancellation of the respondent’s registration should be indefinite.

Non-publication

  1. [22]
    The QCT submits that the non-publication order be varied to allow the QCT to provide the decision and the reasons for decision to:
    1. (a)
      Any employing authority for a school or any other employer in relation to child related employment;
    2. (b)
      Other teacher regulatory authorities;
    3. (c)
      The Chief Executive (Employment Screening);
    4. (d)
      The Chief Executive of the Department of Education;
    5. (e)
      The Minister of Education;
    6. (f)
      Any other entity relevant to the respondent’s practice of the teaching profession;

where the QCT is satisfied the provision of the decision and reasons for decision are necessary for the person/entity to perform their/its functions.

  1. [23]
    After the Tribunal makes a decision about practice and conduct proceedings against a relevant teacher, the QCT may give notice of the decision to certain persons and entities.[13]
  2. [24]
    The Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the tribunal or is affected by a proceeding to be identified.[14] The Tribunal may make such an order if it considers it is necessary to avoid endangering the physical or mental health or safety of a person, to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice.[15]
  3. [25]
    We are satisfied that it is appropriate to continue the non-publication order made 15 December 2017 subject to the necessary exceptions to permit the QCT to comply with s 164 and s 165 of the EQCT Act.
  4. [26]
    We make final orders in accordance with these reasons.

Footnotes

[1] Queensland College of Teachers v XYZ [2019] QCAT 283.

[2] XYZ v Queensland College of Teachers [2021] QCATA 1.

[3]  EQCT Act, schedule 3 - Dictionary

[4]  QCAT decision 21 July 2016

[5]  EQCT Act, s 3(2)(b)(iii).

[6]  Ibid, s 3(1).

[7]  [2015] QCAT 186.

[8]  EQCT Act, sch 3.

[9]  [2018] QCAT 320.

[10]  [2018] QCAT (unreported).

[11] Queensland College of Teachers v XYZ [2019] QCAT 283.

[12] Queensland College of Teachers v Teacher VK [2014] QCAT 268

[13]  EQCT Act, ss 164, 165.

[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).

[15]  Ibid, s 66(2).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v XYZ (No. 2)

  • Shortened Case Name:

    Queensland College of Teachers v XYZ (No. 2)

  • MNC:

    [2022] QCAT 47

  • Court:

    QCAT

  • Judge(s):

    Member Brown, Member Quinlivan, Member Grigg

  • Date:

    04 Feb 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Queensland College of Teachers v El-Sayed [2018] QCAT 320
2 citations
Jump To
Cite 1 - [2018] QCAT 320
Cite 2 - [2018] QCAT 320
Queensland College of Teachers v Teacher VK [2014] QCAT 268
2 citations
Jump To
Cite 1 - [2014] QCAT 268
Cite 2 - [2014] QCAT 268
Queensland College of Teachers v TSV [2015] QCAT 186
2 citations
Jump To
Cite 1 - [2015] QCAT 186
Cite 2 - [2015] QCAT 186
Queensland College of Teachers v XYZ [2019] QCAT 283
3 citations
Jump To
Cite 1 - [2019] QCAT 283
Cite 2 - [2019] QCAT 283
Cite 3 - [2019] QCAT 283
XYZ v Queensland College of Teachers [2021] QCATA 1
2 citations
Jump To
Cite 1 - [2021] QCATA 1
Cite 2 - [2021] QCATA 1

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v Teacher MXQ [2025] QCAT 602 citations
1

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