Queensland College of Teachers v Teacher LQN
[2023] QCAT 410
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- Queensland College of Teachers v Teacher LQN[2023] QCAT 410
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Queensland College of Teachers v Teacher LQN[2023] QCAT 410
Queensland College of Teachers v Teacher LQN[2023] QCAT 410
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher LQN [2023] QCAT 410 |
PARTIES: | Queensland COLLEGE OF TEACHERS (applicant) v TEACHER LQN (respondent) |
APPLICATION NO/S: | OCR270-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 4 October 2023 |
HEARING DATE: | 29 September 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Poteri (Presiding) Member Robyn Oliver Member D. Katter |
ORDERS: |
|
CATCHWORDS: | EDUCATION – EDUCATORS – REGISTRATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher engaged in inappropriate conduct with a former student of the school where the teacher was then teaching – whether teacher’s conduct satisfies standard of behaviour generally expected of a teacher – consideration of appropriate disciplinary action ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether non-publication order should be made – where order necessary in the interests of protecting vulnerable young person – where exceptions required for protection of future students Education (Queensland College of Teachers) Act 2005 (Qld), s 49, s 50(5), s 76, s 97(1)(d), (h), (i), (j), (4)(a), (b), s 158, s 160(2)(b), (d), (j), (i) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Queensland College of Teachers v IOP [2022] QCAT 241 Queensland College of Teachers v REC [2020] QCAT 178 |
APPEARANCES & REPRESENTATION: | |
Applicant: | E. Houston, Executive Manager Legal, Queensland College Teachers |
Respondent: | E. Burke, Solicitor, Holding Redlich Lawyers |
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- [1]An application was filed with the Tribunal on 14 October 2022 by the Applicant, the Queensland College of Teachers.
- [2]At part C of that form 22 application form, the orders sought by the Applicant refer to an Affidavit sworn 7 October 2022 filed with that form. Paragraph 6 of that Affidavit states that the application is a referral pursuant to section 97 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the “Act”).
- [3]Section 97 of the Act states:
“Requirement for college to start practice and conduct proceedings
- If the college reasonably believes, other than on the basis of interstate information, that 1 or more grounds for disciplinary action against a relevant teacher exist, the college must refer the matter to the practice and conduct body stated in subsection (2).
- The practice and conduct body to which the matter must be referred is—
- for a general matter—QCAT; or
- for a PC&TC matter—the PC&TC committee.
- However, subsection (1) does not apply to a matter in relation to which the college and the relevant teacher have entered into a practice and conduct agreement.
- If a matter is referred to QCAT—
- the college must inform QCAT about the grounds for the practice and conduct matter and the facts and circumstances forming the basis for the grounds; and
- QCAT must conduct a hearing and make decisions about the practice and conduct matter referred to QCAT having regard to the information provided by the college.”
- [4]The Applicant informed the Tribunal, by material exhibited to the Affidavit sworn 7 October 2022, about the ‘grounds for the practice and conduct matter and the facts and circumstances forming the basis for the grounds’, further to section 97(4)(a) of the Act.
- [5]On 29 September 2023 the Tribunal conducted an ‘on the papers’ hearing and made decisions about the practice and conduct matter referred to the Tribunal, having regard to the information provided by the Applicant, further to section 97(4)(b) of the Act.
Background
- [6]The Respondent was first granted registration as a teacher in Queensland on 1 December 2014.
- [7]From 2015 until 2016, the Respondent was employed as a registered teacher at a school in Queensland. In 2017 the Respondent was employed at another school in Queensland. From 2018 onwards the Respondent was employed at a third school in Queensland.
- [8]On 25 October 2019 the respondent resigned from employment at the third school in Queensland.
- [9]On 28 October 2019 the Applicant received a notification pursuant to section 76 of the Act from the third school in Queensland where the Respondent was then employed. That notification referred to alleged inappropriate conduct towards a former student of that third school.
- [10]The Respondent then was employed at a fourth Queensland school in 2020.
- [11]On 3 September 2020 the Applicant suspended the Respondent’s teacher’s registration pursuant to section 49 of the Act.
- [12]Further to section 50(5) of the Act the Applicant referred the suspension to the Tribunal to decide whether to continue the suspension of the Respondent.
- [13]On 6 October 2020 the Tribunal ordered, with reasons, that the suspension of the registration of the Respondent as a teacher is continued and that other than to the parties to the decision and until further order, publication is prohibited of any information that may identify the Respondent, a relevant student or former student, or the relevant school, other than to the extent necessary to enable the school to meet its statutory obligations.
Ground
- [14]The Applicant submits that the relevant ground for taking disciplinary action against the Respondent is section 92(1)(h) of the Act.
- [15]The applicable standard of proof for the Tribunal is the civil standard on the balance of probabilities, with the degree of satisfaction varying according to the gravity of the facts to be proven.
- [16]Section 92 of the Act relevantly states:
“Grounds for disciplinary action
- Each of the following is a "ground for disciplinary action" against a relevant teacher— …
- 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; … ”
- [17]Schedule 3 of the Act defines a relevant teacher as:
“ … (b) otherwise, means—
- an approved teacher; or
- a former approved teacher.”
- [18]There is evidence that the Respondent had personal dealings of an intimate nature with a recently graduated former year 12 student from the school at which the Respondent had been teaching, in the year after that student had completed school. The Respondent did not teach the student when that student was at the school but was the coach of the student’s sibling’s sporting team.
- [19]There is evidence that, in or about June to August 2019 there was intimate behaviour by the Respondent with the former student from 2018.
- [20]The referral by the Applicant filed 14 October 2022, as referred to above, describes that behaviour in that period ‘broadly’ as allegations 2-6. In the response, by the Respondent to the Application of the Applicant, the Respondent “agrees with allegations 2-6 listed in the referral”.
- [21]The Respondent stated that the Applicant’s investigation of allegation 1 considered that the allegation was unable to be substantiated. In the response to the referral of 13 December 2022, the Respondent stated that: “I cannot agree or deny allegation 1 as I cannot recall doing the thing alleged. However, I acknowledge that it is possible that I did so.” The Applicant in the reply submissions filed 10 May 2023 stated that the Applicant did not include the unsubstantiated allegation 1 in the referral to the Tribunal.
- [22]Section 158 of the Act states:
“Decision about whether ground for disciplinary action is established
- As soon as practicable after finishing the hearing, QCAT must decide whether a ground for disciplinary action against the relevant teacher has been established.
- In making its decision, QCAT must have regard to any relevant previous decision by a practice and conduct body of which QCAT is aware.
- Subsection (2) does not limit the matters QCAT may consider in making its decision.
- In this section—
former PP&C committee means the PP&C committee under the Act as in force before the commencement.
former Teachers Disciplinary Committee means the Teachers Disciplinary Committee established under this Act before its abolition by the QCAT Act.
practice and conduct body includes the former Teachers Disciplinary Committee and the former PP&C committee.”
- [23]There is a ground for disciplinary action against the approved teacher, according to section 92 of the Act, in that the Respondent has behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher. That is that a ground for disciplinary action under section 92(1)(h) of the Act is therefore established.
Discipline
- [24]Section 160 of the Act relevantly states:
“Decision about disciplinary action against approved teacher
- This section applies if the relevant teacher is an approved teacher.
- If QCAT decides a ground for disciplinary action against the relevant teacher has been established, QCAT may do 1 or more of the following—
- decide to take no further action in relation to the matter;
- if the teacher’s registration or permission to teach is suspended under section 48 or 49—end the suspension;
- issue a warning or reprimand to the teacher;
- cancel the teacher’s registration or permission to teach;
- suspend the teacher’s registration or permission to teach for a stated time;
- make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to—
- any expenses incurred by the college in investigating the matter; and
- the expenses incurred by the college in the proceedings before QCAT;
- 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;
- impose conditions on, or amend or remove conditions on, the teacher’s registration or permission to teach;
- make an order that a particular notation or endorsement about the teacher be entered in the register;
- 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).
- make another order QCAT considers appropriate;
- accept an undertaking from the teacher.”
- [25]The Tribunal has decided, as referred to above, that a ground for disciplinary action against the relevant teacher has been established under section 92(1)(h) of the Act.
- [26]In Queensland College of Teachers v IOP [2022] QCAT 241, the Tribunal stated factors relevant to sanction:
- [26]Sanctions in a disciplinary action are not a ‘punishment’ nor are sanctions punitive action against a teacher or former teacher. This is a well established principle in these matters. The purpose of the sanction is to uphold the objects of the Act.
- [27]Factors that are relevant to sanction in this matter are as follows:
- … breach of professional boundaries;
- vulnerability of the students and risk of harm;
- experience as a teacher; and
- lack of insight into his behaviour.”
- [27]In the submissions by the Applicant filed 28 February 2023, the Applicant submitted that pursuant to section 160(2)(d) and (j) of the Act that there be an order to cancel the Respondent’s registration and to prohibit the Respondent from re-applying for registration or permission to teach for a period of four years from the date of the order. Further, the Applicant also submitted that pursuant to section 160(2)(i) of the Act, that there be an order that a particular notation or endorsement about the teacher be entered into the register requiring any further re-application to include a psychological report from the teacher’s treating psychologist, satisfactory to the Applicant, addressing specific matters.
- [28]The Respondent submitted on 21 April 2023 that it is appropriate for the Respondent to return to teaching and that there be an order pursuant to section 160(2)(b) of the Act that the suspension of the Respondent teacher’s registration end as and from the date of the order by the Tribunal.
- [29]In submissions in reply the Applicant submitted pursuant to section 160(2)(d) and (j) that there be an order cancelling the Respondent’s registration and prohibiting the Respondent from re-applying for registration or permission to teach for a period of four years from 3 September 2020, being the date of the suspension and pursuant to section 160(2)(i) that there be an order that a particular notation or endorsement about the teacher be entered in the register requiring any further re-application to include a psychological report from the treating psychologist satisfactory to the Applicant addressing particular matters. The Applicant further submitted in the reply submissions filed 10 May 2023 that:
“In the event the Tribunal considers, at the time of making its decision, that the appropriate period of prohibition is less than the time that the respondent has been prevented from teaching since the suspension of her teacher registration, it would remain appropriate for the Tribunal to order that (lesser) period of prohibition to provide a general and specific deterrent to similar conduct, even though the respondent may be able to immediately apply for registration.[1]”
- [30]There is a breach of professional boundaries as to a recent former student from the same school where the Respondent was then employed.
- [31]As to insight, the Applicant in the submissions of 10 May 2023 refers to “significant points” in the report of a treating clinical psychologist dated 9 December 2022 as to the: ‘confidence of the Respondent’s capacity to implement ethical and legal boundaries more generally, but also proactively assess risk, identify problematic situations early and implement solutions to ensure that any risk of harm to students is avoided in the future.’ Further, the Applicant refers to the evidence of the ‘completion by the Respondent of the professional practice and professional boundaries for teachers program, being a customised learning program tailored to meet the identified needs of the Respondent, designed to address the boundary violations identified by the Applicant, with an assessment methodology aimed at determining the Respondent’s understanding of and insight in relation to the core concepts of professional practice and professional boundaries.’
- [32]As to mitigating factors, the Respondent’s then partner died in February 2018. The Respondent thereafter began seeing a psychologist who diagnosed the Respondent with an adjustment disorder, with mixed anxiety and depressed mood. The Respondent continues seeing the psychologist, on the information available to the Tribunal.
- [33]The Tribunal, having regard to the evidence before the Tribunal, as referred to above, which evidence is not contradicted, pursuant to section 160(2)(d) and (j), orders, as submitted by the parties, that there be a cancellation of the Respondent’s registration and to prohibit the Respondent from re-applying for registration or permission to teach for a period from 3 September 2020, being the date of suspension. As referred to above, the Applicant submits that the prohibition from reapplication should be until 3 September 2024, although submitted at paragraph 19 in the reply submissions that in the event the Tribunal considers at the time of making its decision that the period of prohibition be less, that it remains appropriate when ordering that lesser period of prohibition to provide both general and specific deterrence.
- [34]There is no indication of previous inappropriate dealings by the Respondent, unrelated to this particular former student. Having regard to the submissions of the Applicant and the Respondent, there will be an order to cancel the registration and to prohibit re-application for a period of 3 years and 2 months from 3 September 2020.
- [35]As submitted by the Applicant, as referred to above, there will also be an order pursuant to section 160(2)(h) of the Act imposing a condition on the Respondent requiring any further re-application to include a psychological report from the Respondent’s treating psychologist satisfactory to the Applicant addressing the following matters:
- an indication from the psychologist about whether the Respondent teacher can implement appropriate strategy to identify potential professional boundary issues and effectively manage professional boundary issues that may arise both in the Respondent teacher’s personal and professional capacities; and
- confirmation that the psychologist was provided with copies of the Tribunal’s disciplinary decision and the Applicant’s referral under section 97 of the Act.
- [36]The Respondent is to bear all costs of and incidental to the compliance with the section 160(2)(h) order referred to above.
Non-publication
- [37]It is considered by the Tribunal that a permanent order should now be made under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to protect the former student involved. Any publication of the name of the Respondent would tend to identify the former student and the schools. Any identification may have ramifications for the former student.
- [38]The Applicant submits that, if a section 66 order is made, that there should be the sharing of information for very particular purposes and the order is made having regard to that submission.
Footnotes
[1] See for example Queensland College of Teachers v REC [2020] QCAT 178.