Queensland College of Teachers v PJD
[2024] QCAT 119
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- Queensland College of Teachers v PJD[2024] QCAT 119
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Queensland College of Teachers v PJD[2024] QCAT 119
Queensland College of Teachers v PJD[2024] QCAT 119
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v PJD [2024] QCAT 119 |
PARTIES: | Queensland college of teachers (applicant) v PJD (respondent) |
APPLICATION NO/S: | OCR133-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 18 March 2024 |
HEARING DATE: | 19 February 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Poteri, Presiding; Member Bridgman; Member Robyn Oliver |
ORDERS: |
|
CATCHWORDS: | Where a teacher allegedly engaged in inappropriate behaviour with a female student – where the teacher struck the student on head with rolled up worksheets – whether the teacher’s conduct satisfies the standard of behaviour generally expected of a teacher – whether an agreed sanction is appropriate Criminal Law (Sexual Offences) Act 1978 (Qld) Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 48, s 92, s 97, s 111A, s 158, s 160 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 66 Criminal Code Act 1899 (Qld) Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland College of Teachers v DGM [2018] QCAT 194 Queensland College of Teachers v XYZ [2019] QCAT 283 |
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]On 5 August 2021, the Queensland College of Teachers (‘the college’) suspended the respondent’s registration as a teacher pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’). On 30 August 2021 this suspension was continued until further order of the Queensland Civil and Administrative Tribunal (‘QCAT’, ‘the Tribunal’) in that the Tribunal was not satisfied that it was an exceptional case in which the best interests of children would not be harmed if the suspension were ended.
- [2]Teacher PJD was first granted teacher registration on 18 January 2011. He was 26 to 27 years old with four years teaching experience at the time of the alleged misconduct.
- [3]This disciplinary referral relates to alleged conduct between 27 January 2015 and 4 April 2015. Therefore, the respondent is both a relevant teacher and a former approved teacher under the Act.[1]
- [4]On 5 August 2021, the college received notification from the Queensland Police Service (‘the QPS’) that the respondent had been charged with the following ‘serious offence’: indecent treatment children under 16 child under 12 years lineal descendent/ guardian/carer contrary to section 210(1)(a) & (3) & (4) of the Criminal Code (Qld).[2]
- [5]The particulars were as follows:
The teacher allegedly unlawfully directed the complainant child to lean against a desk facing him. Furthermore, the teacher allegedly unlawfully knelt in front of the complainant child lifted her school skirt up and pulled her underwear off, looked at the child’s vagina and said “nice pussy” and then hit the complainant child on the vagina with a wooden’ ruler. Furthermore, the teacher allegedly stood up, threw the complainant child’s underwear at her and said, “Don’t tell anyone or you’ll be an orphan.”[3]
- [6]The serious offence was discontinued in the Hervey Bay District Court when the DPP entered a nolle prosequi on 9 February 2023.
- [7]Section 92(2)(a) of the Act provides that the ground for disciplinary action mentioned in section 92(1)(h) of the Act is taken to apply to a relevant Teacher whose registration has been suspended under section 48 of the Act where the Teacher has been charged with a ‘serious offence’ and that charge has been ‘dealt with’. For the purposes of the provision, ‘dealt with’ includes where a nolle prosequi is presented in relation to the charge.[4]
- [8]Section 92(3) of the Act states that the ‘object of subsection (2) is to ensure the circumstances of the charge are examined by a practice and conduct body’.
- [9]The applicant referred the matter to the Tribunal to examine the circumstances of the ‘serious offence charge’.[5]
- [10]Section 92(4)(b) of the Act provides that the Tribunal must conduct a hearing and make decisions about the disciplinary matter referred to the Tribunal with regard to the information provided by the applicant. Further, that the applicant must inform the Tribunal about the grounds of the matter and the circumstances forming the basis for the grounds.
- [11]The college refers to the ground for disciplinary action at s 92(1)(h) of the Act, which provides:
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;
- [12]Section 160 of the Act sets out the options available to QCAT after a decision about disciplinary action against a relevant teacher has been made.
- [13]The applicant submits that the available evidence and material do not establish the ground for disciplinary action.
The Issue of Lack of Information Provided by the Applicant
- [14]The Tribunal is required to conduct a hearing and make decisions about the practice and conduct matter referred to the Tribunal with regard to the information provided by the applicant.[6]
- [15]However, the student and the witnesses in this matter are not known to either the applicant or to the Tribunal. This situation means there is little detailed information or documentation arising from the discontinued prosecution that might help the Tribunal come to a careful reasoned decision in order to protect children or indeed to provide a deterrent to the teacher should that be found to be the necessary outcome.
- [16]The criminal allegation against the respondent was serious. The Tribunal does not have access to the necessary evidence to make decisions on the most serious aspects of this referral.
- [17]The document received from the Director of Public Prosecutions (‘DPP’) under the Tribunal’s Notice to Produce had significant redactions (in compliance with the Tribunal’s direction) making the specific documents and three out of the four sources impossible to identify.
- [18]The unredacted portions of the material provided disclosures made by the unidentified student to her unidentified friend.[7] The six-year-late divulgences presented in these text communications show clear indications of many examples of harm done.
- [19]The only identifying information the applicant received was the victim’s date of birth. At the time of the alleged conduct in 2015, the victim student was eight years of age; she is now 17 years of age.
Grounds for Disciplinary Action
- [20]The Tribunal’s task is to decide whether section 92(1)(h) of the Act applies to the respondent, the standard of proof applicable to the Tribunal being the balance of probabilities on the Briginshaw standard.[8]
- [21]
The Briginshaw approach is based on the principal that a court in a civil action should not lightly find that a party has engaged in criminal conduct. The standard of proof does not vary – the civil standard remains the applicable standard. However, in applying the Briginshaw principles we must proceed cautiously in light of the gravity of the allegations made against the respondent and we must be satisfied that the relevant evidence has a high probative value, commensurate with the seriousness and the consequences of the alleged conduct.
- [22]This current matter involves the conduct that was the subject of the criminal charges and extends to include the surrounding circumstances.
- [23]At the time of the indexed events in 2015, the student’s mother said that the student had told her that the respondent had hit her on the head with her classwork in front of the class making her feel embarrassed.[10] This matter was reported in her statement to the police.
- [24]After previous complaints of PJD humiliating the child, this incident became the catalyst for the child’s mother to ask to have the child removed from PJD’s class to an alternative class in the next classroom. The child continued to be bothered by the need to return to PJD’s classroom at various times to retrieve books and items not taken to her new classroom.
- [25]The school principal gave a similar statement to police about the same incident:[11]
PJD had hit the child on the head with a book in class, not intending to hurt her but it was still inappropriate. I investigated that complaint. After my investigation the child’s mother requested that I move the child out of PJD’s class because the child felt unsafe with him. We decided to move her into the other class. That is not our usual policy, but we felt there were extenuating circumstances.
- [26]The school principal was the head of the junior school at the time of the child’s numerous 2015 complaints to her parents about PJD. The police statement from the principal goes further:
I remember PJD being very upset about the initial complaint. He admitted to me that he might have tapped her on the head with some rolled up worksheets. I recall him wanting to apologise and that he felt bad about making a student feel that way. I felt he was genuine in his desire to say sorry. I can’t remember any meeting happening for PJD to apologise, but I do remember asking the child’s mother for permission for a meeting where PJD could apologise. I have no memory of a meeting like that happening and I am sure I would have been involved if it had. It would have been unusual for a meeting to happen where a teacher is apologising to a student without a senior member of staff or a parent present.
- [27]The principal/head of junior school has acknowledged that PJD did in fact cause harm to the child in sufficient ways as for the principal/head of junior school to describe part of the solution to the problem, albeit not the ususal school policy, as acceptable due to ‘extenuating circumstances’.[12]
- [28]There is no evidence that a meeting for the purpose of an apology was ever arranged by the principal in order for PJD to provide restorative justice to the child he admitted to harming.
- [29]As a result, the harm was not resolved by the school leaders, not by parents, and not by the child’s teacher or the perpetrator of the harm. A child suffered at the time and continued to suffer until divulging her pain and humiliation in a text to an unidentified friend six years later.
- [30]The ground for disciplinary action under section 92(1)(h) of the Act is established when ‘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’.
- [31]The Tribunal as presently constituted has been tasked to make decisions about all aspects of the charges in this matter.
- [32]There are numerous other circumstances relevant to the criminal charge, but the non-publication requirement (discussed below) means evidence is presently unavailable to the Tribunal in order to provide a decision. That said, the admission by PJD to his head of department at the time of one of the child’s allegations of misconduct in 2015 is sufficient and probative evidence to be considered for disciplinary purposes.
- [33]The Tribunal finds that PJD behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.
- [34]The examination of this conduct happens through the legislative framework that prioritises the safety, welfare and best interests of the children and students.[13]
- [35]In considering the applicable standard expected of a teacher it is important to bear in mind the objects of the Act which are:[14]
- a.to uphold the standards of the teaching profession;
- 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.
- a.
- [36]Teachers are bestowed with a high level of trust by students, parents and the wider community, and with that trust comes an expectation that it will not be breached. In Queensland College of Teachers v DGM [2018] QCAT 194, the Tribunal said:
Teachers hold a special position of trust arising from the nature of their work. In particular, Teachers exercise powers that have a significant impact on the lives of students. How Teachers behave towards a student may influence that student for life. Consequently, the community expects these powers to be exercised appropriately.[15]
Orders
- [37]The ground for disciplinary action under s 92(1)(h) is established.
- [38]The respondent’s registration or permission to teach is cancelled pursuant to s 160(2)(d) of the Act.
- [39]Pursuant to s 160(2)(j) of the Act, the respondent is prohibited from re-applying for registration or permission to teach for a period of twelve months from the date of this hearing, 19 February 2024. PJD will be eligible to reapply for teacher registration on 19 February 2025 subject to meeting all requirements in these orders.
- [40]Pursuant to s 160(2)(k) of the Act:
- Prior to any renewal of registration, the respondent must provide to the College a psychologist’s report, satisfactory to the College, providing an assessment as to whether the psychologist is satisfied that the respondent has adequately understood and addressed the following matters:
- (i)awareness and understanding of what are and what are not proper ways to engage with students.
- (ii)an in-depth examination of the extent and nature of the student, colleague, parent, and community trust inherently invested in a teacher;
- (iii)awareness of the trust and power granted to a teacher;
- (iv)awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching;
- (v)the need to protect students and children from physical, psychological, and emotional harm;
- (vi)risk assessment and early identification of potentially problematic situations and venues;
- (vii)how to achieve realistic solutions to avoid the risk of harm to students;
- (viii)the identification and awareness of his own triggers and strategies he intends to utilise to ensure there is no future recurrence of the incidents of concern;
- (ix)the importance of full adherence to the Queensland College of Teachers Code of Ethics.
- (i)
- The report must indicate that the psychologist was provided with a copy of the Tribunal’s decision and reasons, the College’s referral under s 90 of the Act and any joint statement of facts and issues.
- The report must include the duration and frequency of visits and details of any testing that was undertaken.
- Prior to any renewal of registration, the respondent must provide to the College a psychologist’s report, satisfactory to the College, providing an assessment as to whether the psychologist is satisfied that the respondent has adequately understood and addressed the following matters:
- [41]The respondent must bear all costs of, and associated with, compliance with these orders.
- [42]Pursuant to s 160(2)(i) a notation of these orders regarding PJD will be entered into the register.
Non-Publication Order
- [43]On 12 June 2023, the Tribunal made the following decision:
Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify the teacher, and any relevant child or complainant, or any relevant school, other than to the extent necessary to enable 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).
- [44]It is appropriate to continue the order pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) with a further exception to permit the respondent to provide a copy of the Tribunal’s decision to any regulatory authority or employer in compliance with any disclosure requirements in particular to address any concerns raised by those who were notified of the suspension of his teacher registration following the serious offence charges being laid.
- [45]As the charge concerned a sexual offence, section 10(1)(a) of the Criminal Law (Sexual Offences) Act 1978 (Qld) prohibits disclosure of the complainant’s name, address, school or place of employment, or any particular that is likely to lead to the identification of the complainant.
Footnotes
[1] Schedule 3 of the Act – A ‘relevant teacher’ is an approved Teacher or a former approved Teacher.
[2] Affidavit of Henri Elias Rantala affirmed 27th May 2023.
[3] Affidavit of Henri Elias Rantala affirmed 25th May 2023, Exhibit “B”.
[4] The Act, s 92(5); See also, eg Queensland College of Teachers v El-Sayed [2018] QCAT 320.
[5] Referral of 29th May 2023, Attachment ‘B’.
[6] The Act, s 97(4)(b).
[7] Texts between unidentified child and unidentified friend. DPP documents of images, p 90.
[8] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2.
[9] Queensland College of Teachers v XYZ [2019] QCAT 283, [41].
[10] Complainant’s Mother, 12.07.2021 statement to QPS, DPP documents p 27.
[11] School Principal, statement of 13.08.2021 to QPS, DPP documents p 45.
[12] Ibid. p 45.
[13] The Act, s 233.
[14] The Act, s 3.
[15] Queensland College of Teachers v DGM [2018] QCAT 194, [34].