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Queensland College of Teachers v CHR[2023] QCAT 509

Queensland College of Teachers v CHR[2023] QCAT 509

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v CHR [2023] QCAT 509

PARTIES:

Queensland College of teachers

(applicant)

v

CHR

(respondent)

APPLICATION NO/S:

OCR083-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 December 2023

HEARING DATE:

22 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

Member Bridgman

Member Robyn Oliver

ORDERS:

  1. CHR’s registration is cancelled.
  2. CHR is prohibited from reapplying for registration or permission to teach until 26 March 2024, a period of four years and six months after the date of suspension on 26 September 2019.
  3. CHR is reprimanded.
  4. The Tribunal orders a notation on the register to ensure that, should CHR reapply for registration after the period of prohibition, then he must provide a report prepared by a psychologist addressing the following:
    1. assessment as to whether the psychologist is satisfied that CHR has adequately understood and addressed the following matters:
      1. (i)
        differentiating between personal and professional relationships.
      2. (ii)
        legal obligations of teachers and tutors.
      3. (iii)
        the concept, and importance, of professional boundaries.
      4. (iv)
        development and maintenance of professional standards and professional boundaries with students.
      5. (v)
        awareness of what constitutes appropriate and inappropriate communication and behaviour with students.
      6. (vi)
        awareness of the impact of inappropriate communication, conduct and relationships upon students, families, schools, and the profession.
      7. (vii)
        the need to protect children and students from physical, psychological, and emotional harm.
      8. (viii)
        risk assessment and early identification of potentially problematic situations and venues.
      9. (ix)
        how to achieve realistic solutions to avoid the risk of harm to students.
      10. (x)
        the power granted to a teacher.
      11. (xi)
        the extent and nature of the trust invested in a teacher by students, colleagues, parents, and the community.
      12. (xii)
        conduct that would compromise the professional standing of a teacher and the teaching profession.
      13. (xiii)
        the importance of full adherence to the Queensland College of Teachers Code of Ethics.
    2. confirmation that the psychologist was provided with copies of:
      1. (i)
        the Tribunal’s orders and reasons for decision; and
      2. (ii)
        the Queensland College of Teachers’ referral under section 97 of the Education (Queensland College of Teachers) Act 2005 (Qld).
  5. CHR must bear the costs of obtaining and providing the psychologist’s report.
  6. Upon receipt of the psychologist’s report the Queensland College of Teachers must decide if the report addresses the issues to the satisfaction of the Queensland College of Teachers. If the Queensland College of Teachers is so satisfied, it will be noted on CHR’s details on the Register of Approved Teachers that the requirement has been fulfilled and its monitoring will be deactivated. If the Queensland College of Teachers is not so satisfied, then the Queensland College of Teachers must consider whether to commence new proceedings by referring the matter to this Tribunal on the basis that CHR has failed to provide a report to the satisfaction of the Queensland College of Teachers.
  7. Other than to the parties to this proceeding and for the exceptions listed below, publication of any information which may lead to the identification of CHR, the relevant students or relevant schools is prohibited.
    1. Exceptions to allow to the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).
    2. Exceptions to allow CHR to comply with disclosure obligations required by employers and authorities and by this decision.

CATCHWORDS:

Where teacher engages in inappropriate electronic communication with two students – where no direct teaching relationship exists – where teacher pressures student to begin relationship – where teacher does not fully cooperate with investigation – where a statement of agreed facts is filed – where a ground for disciplinary action is established – where disciplinary action is taken

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Education (Queensland College of Teachers) Act 2005 (Qld)

Queensland College of Teachers v Armstrong [2010] QCAT 709

Briginshaw v Briginshaw [1938] HCA 34

Queensland College of Teachers v Teacher FDA [2017] QCAT 224

Queensland College of Teachers v NBC [2015] QCAT 246

Queensland College of Teachers v TSV [2015] QCAT 186

Queensland College of Teachers v WAS [2015] QCAT 61

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

  1. [1]
    Teacher CHR is an ‘approved’ and therefor ‘relevant’ teacher under the Education (Queensland College of Teachers) Act 2005 (‘the Act’) and first received teacher registration on 21 December 2015.[1]
  1. [2]
    His first appointment began on16 June 2016. He was suspended under s 49 of the Act on 26 September 2019 with a little over three years of teaching experience in a primary school for conduct involving intimate relationships with student not under his care.
  2. [3]
    The Queensland College of Teachers (‘the College’) may suspend a teacher’s registration under s 49 if it reasonably believes the teacher poses an unacceptable risk of harm to children. While ‘unacceptable risk of harm’ is not defined by the Act, s 7 of the Act, provides that ‘harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’.
  3. [4]
    The notice of suspension of 26 September 2019 set out the College’s reasons for coming to the view that CHR posed an unacceptable risk of harm to children, including allegations that he engaged in a sexual relationship with a 16-year-old school student (Student A) and an intimate relationship with a 17-year-old second school student (Student B). Both students attended school in a different town from CHR’s school’s location. It is further alleged that there were ongoing communications with the students, including unwanted communication and the exertion of pressure.
  4. [5]
    CHR’s suspension was continued on 14 November 2019after Queensland Civil and Administrative Tribunal (QCAT) found that it could not be satisfied that that CHR did not pose an unacceptable risk of harm to children.[2]
  5. [6]
    Following the 28 days of notice of this decision, the Teacher was able to provide any additional material to support a submission that he does not pose an unacceptable risk of harm to children.
  6. [7]
    CHR advised the College by way of a letter dated 9 September 2020 that, whilst making no admissions, he did not wish to make any submissions to the Tribunal.
  7. [8]
    The issues to be decided by the Tribunal are:
    1. whether the grounds for disciplinary action are established,[3] namely 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,[4] and
    2. if so, the appropriate disciplinary action to be applied.[5]
  1. [9]
    The Tribunal may impose one or more of the sanctions set out in s 160 of the Act.
  2. [10]
    The College relies on the agreed statement of facts of 4 September 2023, the referral of the disciplinary proceeding of 27 March 2023, and the affidavit of Julia Louise Maccarone of 16 March 2023 together with associated documents.
  3. [11]
    CHR met both students separately but through activities associated with a 4WD drive club they all attended.
  4. [12]
    On 21 May 2019 the employer notified CHR of allegations of his sexual misconduct in early 2019 with the two students. An investigation by the QCT began soon after on 30 August 2019.
  5. [13]
    The allegations are set out in a statement of agreed facts dated 4 September 2023. CHR does not dispute the conduct set out in Annexure A attached to the referral application of 27 March 2023.
  6. [14]
    A basic outline of the four main allegations is as follows:
    1. On 2 and 3 February 2019, while on a camping trip, Teacher CHR engaged in sexualised physical contact with Student A, aged 16 years old, knowing that she was a student.
    2. In semester 1 of 2019 Teacher CHR engaged in overfamiliar and/or inappropriate electronic communication with Student A, including Teacher CHR attempting to initiate a relationship with student A, attempting to conceal the communication, and communicating the comment ‘think I may love you’.
    3. In semester 1 of 2019 Teacher CHR engaged in inappropriate electronic communication with Student B, aged 17 years old, knowing that she was a student.
    4. On 11 May 2019, Teacher CHR transported Student B to and from a beach during which return journey engaged in sexualised physical contact, kissing, with Student B knowing that she was a student.

Submissions as to Sanction

  1. [15]
    In determining this matter, the Tribunal must be reasonably satisfied to the required civil standard, that the allegations have been proven taking into the seriousness of the matter.[6]
  2. [16]
    If the Tribunal is so satisfied, it must then consider disciplinary options.[7]
  3. [17]
    The disciplinary options available to the Tribunal are addressed in s. 160(2) of the Act which provides that if the Tribunal decides a ground for disciplinary action against the relevant teacher has been established it may make various orders under s. 160(2)(a) to (l).
  4. [18]
    The College submits that the evidence supports a finding that all allegations listed above are proven and that based on those facts and circumstances, CHR has behaved in a manner that does not satisfy the standard of behaviour generally expected of a teacher.
  5. [19]
    The College further submits that CHR placed his sexual and personal desires ahead of the wellbeing of two year 12 students and his professional obligations and therefore it is open for the Tribunal to find that CHR engaged in calculated and predatory behaviour.
  6. [20]
    Both students informed CHR repeatedly that a relationship would be inappropriate because he was a teacher. The conduct was instigated by CHR and did not cease until it was exposed by other students who reported the conduct to the School Youth Support Coordinator.
  7. [21]
    CHR sought to mislead and frustrate the employer’s investigators by providing false and misleading answers to their questions, and falsely blaming the students for leading him on and for pursuing him for a relationship.[8]
  8. [22]
    The interview was suspended prior to all allegations being put to CHR and he declined to assist with later enquiries by refusing to provide his mobile phone and by refusing to participate in a recorded interview with the College.
  9. [23]
    CHR has provided no information to the Tribunal that might have given support to a demonstrated understanding of his insight into his behaviour or a demonstrated understanding of his remorse for the damage caused to the students involved, or to provide confidence that the conduct would not be repeated.
  10. [24]
    The evidence before the Tribunal therefore is uncontested by CHR.
  11. [25]
    After discussion of the uncontested facts and examination of the extensive investigative material, the Tribunal is satisfied that the grounds for disciplinary action have been established. The admissions made by CHR in the statement of agreed facts have provided further foundation for the Tribunal to consider the appropriate sanctions.

Legal considerations

  1. [26]
    The purposes of disciplinary proceedings under the Act were conveniently stated by the Tribunal in TSV as follows:

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, 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.”[9]

  1. [27]
    A relevant comparative case where the teacher has engaged in sexual contact and inappropriate communication with multiple students has been suggested by the College to assist the Tribunal in this process. There is no case that is directly analogous:

Ultimately, of course, each case turns on its own facts. There is a range of relevant factors: the age of the teacher, the age of the student, the nature of the conduct, any psychological vulnerability, the level of cooperation in the proceedings, and so on. It is therefore not easy to rank cases in terms of seriousness.[10]

  1. [28]
    Queensland College of Teachers v NBC [2015] QCAT 246 is suggested by the College as a suitable comparison with the current matter.
  2. [29]
    NBC was 34 years old at the time of the conduct, the year 12 coordinator, with nine years of teaching experience, numerous examples of highly inappropriate sharing of personal information including images, with a student.  Numerous gifts which could be interpreted as grooming were given. At least two other students were involved in NBC’s inappropriate communication and conduct, some welcome and some unwelcome. One of the students involved was in year ten and vulnerable with mental health issues.
  3. [30]
    Teacher NBC was in a leadership position, a very experienced teacher and a direct teacher of all students involved in his misconduct.  The Tribunal prohibited Teacher NBC from teaching for six and a half years.
  4. [31]
    In comparison, CHR was 24 years old, with three and a half years of experience in a primary school at the time of his misconduct. He was not a direct teacher of any of the students involved nor a teacher at their schools He was not a very experienced teacher and was not in a leadership position. However, his behaviour also involved multiple students and inappropriate use of electronic communication.
  5. [32]
    Both teachers were aware their conduct was inappropriate, both made efforts to conceal that misconduct, and both tried to pressure a student inappropriately for their own purposes.
  6. [33]
    The College submits that CHR’s behaviour is more serious than that of NBC. The following aspects could be seen as more serious than NBC:
    1. When presented with evidence of his erroneous statements, such as text messages and photographs, CHR ceased cooperation in the investigation and subsequent College investigation.
    2. CHR attempted to shift responsibility onto Student A to downplay his actions.
    3. There was intimate sexualised contact with two students over a period of four months.
  7. [34]
    The Tribunal finds that while both examples of teacher misconduct are serious, NBC is seen as the more serious misconduct because NBC was considerably older, more experienced as a teacher, and in a respected leadership position within his school.
  8. [35]
    In Queensland College of Teachers v Teacher FDA [2017] QCAT 224, a sanction of four years cancellation was imposed.
  9. [36]
    This matter involved a 27 year-old high school teacher forming an inappropriate relationship with a student who soon became a former student. There was inappropriate electronic communication, gifts, time spent together including sleepovers and eventually a sexual relationship.
  10. [37]
    The similarities with the current matter are as follows: that a relationship with a person he knew to be a student was formed; that inappropriate electronic communication went back and forth between FDA and former student on numerous electronic media platforms; and that inappropriate meetings and activities were pursued. FDA cooperated in the disciplinary process.
  11. [38]
    However, CHR pursued two students involved in his misconduct; pressured students to form a relationship with him; endeavoured to cover up his misconduct; 
  12. [39]
    Neither teacher had a direct teaching relationship in the classroom with the students involved in the misconduct.
  13. [40]
    The Tribunal is satisfied that CHR’s misconduct is comparable with that of FDA.
  14. [41]
    The teacher in Queensland College of Teachers v Teacher QKE [2013] QCAT 548 was an experienced teacher who undertook sexualised communications with a student from a different school. Age difference was considered significant (Queensland College of Teachers v REC [2020] QCAT 178 [26]). The Tribunal prohibited QKE from reapplying for 2 years.
  15. [42]
    The Tribunal was mindful of CHR’s youth and inexperience. Inexperience was also considered in:
    1. Queensland College of Teachers v Teacher GBJ [2018] QCAT 135 (no time prohibition, psychologist’s report required before applying);
    2. Queensland College of Teachers v Rudd [2011] QCAT 367 (a first-year teacher who sought a quasi-parental relationship with a student. No time limit, psychologist’s report required before applying);
    3. Qld College of Teachers v Limpus [2011] QCAT 99 (first year teacher who had sexual intercourse with student, a minor; the maximum time limit, then 5 years);
    4. Queensland College of Teachers v REC [2020] QCAT 178 (a young relief teacher exchanged naked and near naked photos with a student. Prohibited from reapplying for 12 months; psychologist’s report required).
  16. [43]
    CHR has demonstrated no insight or remorse for his behaviour or the consequences of his pressure on the students involved, his profession, or his community.
  17. [44]
    The Tribunal considers CHR’s conduct, youth and inexperience and lack of insight and remorse warrant sanction at the more serious end. Accordingly, considering his suspension on 26 September 2019, he should be prohibited from reapplying for a period of 4 years and 6 months, ending therefore on 26 March 2024.
  18. [45]
    He must produce to the Queensland College of Teachers an appropriate psychologist’s report addressing to the College’s satisfaction his understanding of professional boundaries and other matters specified in orders made here.
  19. [46]
    The costs of the psychologist’s report should be borne by CHR.

Costs

  1. [47]
    Where a ground for disciplinary action is established, the Tribunal may make an order requiring the Teacher to pay costs as part of the disciplinary action taken against the teacher.[11]
  2. [48]
    The College sought an order for costs of its investigation. There was no material before the Tribunal particularising those costs. Whether this was by omission or design, it was apparent to the Tribunal major elements of the costs included extracting mobile phone information and production of transcripts. Given the facts of the matter, including the students’ volunteering production of mobile phones, and CHR’s choice not to contest facts and agree to a hearing on the papers, it appears to us that an order for those costs is disproportionate to the circumstances.
  3. [49]
    Accordingly, the Tribunal declines to exercise its discretion to make an order for investigation costs under s. 160(2)(f).

Orders

  1. [50]
    The disciplinary options available to the tribunal are addressed in section 160 (2) of the Act which provides that if QCAT decides a ground for disciplinary action against the relevant teacher has been established QCAT may do one or more of the actions listed from (a) to (l).
  2. [51]
    The Tribunal is satisfied, for the reasons stated above, that the ground for disciplinary action under section 92(1)(h) is established.
  3. [52]
    The Tribunal orders that a r reprimand be issued to CHR.
  4. [53]
    The Tribunal orders that CHR’s registration is cancelled under section 160 (2)(d).
  5. [54]
    CHR is prohibited from reapplying for registration or permission to teach until 26 September 2024, a period of four years and six months the date of suspension on 26 September 2019, under section 160(2)(j) of the Act.The period will therefore end on 26 March 2024.
  6. [55]
    The College submits and the Tribunal agrees, given the uncontested facts stated above, that it is appropriate to order a notation on the register to ensure that should CHR reapply for registration after the period of prohibition, then he must provide a psychological report which addresses the following, to the satisfaction of the Queensland College of Teachers:
  1. An assessment as to whether the psychologist is satisfied that the respondent has adequately understood and addressed the following matters:
  1. (i)
    Differentiating between personal and professional relationships.
  2. (ii)
    The legal obligations of teachers and tutors.
  3. (iii)
    The concept, and importance, of professional boundaries.
  4. (iv)
    The development and maintenance of professional standards and professional boundaries with students.
  5. (v)
    The respondent’s awareness of what constitutes appropriate and inappropriate communication and behaviour with students.
  6. (vi)
    The impact of inappropriate communication, conduct and relationships upon students, families, schools, and the profession.
  7. (vii)
    The need to protect children and students from physical, psychological, and emotional harm.
  8. (viii)
    Risk assessment and early identification of potentially problematic situations and venues.
  9. (ix)
    How to achieve realistic solutions to avoid the risk of harm to students.
  10. (x)
    The power granted to a teacher.
  11. (xi)
    The extent and nature of the trust invested in a teacher by students, colleagues, parents, and the community.
  12. (xii)
    Conduct that would compromise the professional standing of a teacher and the teaching profession.
  13. (xii)
    The importance of full adherence to the Queensland College of Teachers Code of Ethics.
  1. Confirmation that the psychologist was provided with copies of:
    1. (i)
      the Tribunal’s orders and reasons for decision; and
    2. (ii)
      the QCT referral under section 97 of the Act.
  1. The teacher must bear the costs of obtaining and providing the psychologist’s report.

Non-publication orders

  1. [56]
    The Tribunal previously ordered that publication of any information which may identify the teacher, the relevant children or the relevant schools is prohibited.[12]
  2. [57]
    The QCT accepts that publication of the teacher’s name is likely to lead to identification of the students involved and therefore a non-publication order is necessary. The Tribunal agrees with this view.
  3. [58]
    In circumstances where the suspension of a teacher has been continued, exemptions should be made consistent with enabling the College to meet its statutory duties.
  4. [59]
    The exceptions to this order allow the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Act.
  5. [60]
    A further exception is appropriate to allow the teacher to comply with disclosure obligations required by employers and authorities.

Footnotes

[1]  Schedule 3 of the Act.

[2]  Section 53(3)(b) of the Act.

[3]  Section 158 of the Act.

[4]  Section 92(1)(h) of the Act.

[5]  Section 160 of the Act.

[6] Briginshaw v Briginshaw (1938) 60 CLR 336.

[7]  s. 160.

[8]  QCT Documents pp 537 – 541.

[9]Queensland College of Teachers v TSV [2015] QCAT 186 at [25].

[10] Queensland College of Teachers v WAS [2015] QCAT 61 at [38].

[11]  Section 160(2)(f) of the Act.

[12]  QCAT continuation of suspension document, 14 November 2019.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v CHR

  • Shortened Case Name:

    Queensland College of Teachers v CHR

  • MNC:

    [2023] QCAT 509

  • Court:

    QCAT

  • Judge(s):

    Member Poteri, Member Bridgman, Member Robyn Oliver

  • Date:

    19 Dec 2023

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Qld College of Teachers v Limpus [2011] QCAT 99
1 citation
Jump To
Cite 1 - [2011] QCAT 99
Queensland College of Teachers v Armstrong [2010] QCAT 709
1 citation
Jump To
Cite 1 - [2010] QCAT 709
Queensland College of Teachers v NBC [2015] QCAT 246
2 citations
Jump To
Cite 1 - [2015] QCAT 246
Cite 2 - [2015] QCAT 246
Queensland College of Teachers v REC [2020] QCAT 178
2 citations
Jump To
Cite 1 - [2020] QCAT 178
Cite 2 - [2020] QCAT 178
Queensland College of Teachers v Rudd [2011] QCAT 367
1 citation
Jump To
Cite 1 - [2011] QCAT 367
Queensland College of Teachers v Teacher FDA [2017] QCAT 224
2 citations
Jump To
Cite 1 - [2017] QCAT 224
Cite 2 - [2017] QCAT 224
Queensland College of Teachers v Teacher GBJ [2018] QCAT 135
1 citation
Jump To
Cite 1 - [2018] QCAT 135
Queensland College of Teachers v Teacher QKE [2013] QCAT 548
1 citation
Jump To
Cite 1 - [2013] QCAT 548
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 WAS [2015] QCAT 61
2 citations
Jump To
Cite 1 - [2015] QCAT 61
Cite 2 - [2015] QCAT 61

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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