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- Queensland College of Teachers v Teacher WBJ[2024] QCAT 187
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Queensland College of Teachers v Teacher WBJ[2024] QCAT 187
Queensland College of Teachers v Teacher WBJ[2024] QCAT 187
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher WBJ [2024] QCAT 187 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER WBJ (respondent) |
APPLICATION NO/S: | OCR082-23 |
MATTER TYPE: | Occupational Regulation Matter |
DELIVERED ON: | 22 April 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson Member George Member Grigg |
ORDERS: |
|
CATCHWORDS: | EDUCATION – EDUCATORS – REGISTRATION – training and registration of teachers – where teacher engaged in numerous inappropriate and overfamiliar communications with 15 year old student – where teacher invited student to her home and expressed feelings for him – where teacher encouraged the student to be deceptive about meeting with her – whether teacher’s conduct satisfies standard of behaviour generally expected of a teacher – where appropriate sanction discussed ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where publication might lead to identification of child or former student – whether non-publication order should be made – whether in the interests of justice – whether exception needed Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 49, s 92, s 97, s 98, s 108, s 111A, s 123, s 147, s 158, s 160, s 161, s 201, s 285, s 285AA, s 285B, s 287, Sch 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland College of Teachers v ALE [2019] QCAT 143 Queensland College of Teachers v Armstrong [2010] QCAT 709 Queensland College of Teachers v DGM [2018] QCAT 194 Queensland College of Teachers v Genge [2011] QCAT 163 Queensland College of Teachers v NRR [2021] QCAT 152 Queensland College of Teachers v PPK [2019] QCAT 59 Queensland College of Teachers v Teacher BAM [2012] QCAT 694 Queensland College of Teachers v TSV [2015] QCAT 186 Queensland College of Teachers v WAS [2015] QCAT 61 Queensland College of Teachers v XBW [2019] QCAT 240 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
Background
- [1]WBJ held teacher registration in Queensland from 30 November 2015 until 15 February 2019, when the Queensland College of Teachers (‘QCT’) formed the belief that she posed an unacceptable risk of harm to children and suspended her teacher registration pursuant to section 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Education Act’).
- [2]On 20 February 2019, WBJ surrendered her teacher registration, which meant that she was not longer an ‘approved teacher’ but rather a ‘former approved teacher’.[1] On that basis, as suspension under section 49 of the Education Act applies only to an ‘approved teacher’, the suspension was discontinued.
- [3]By section 97(1) of the Education Act, if the QCT reasonably believes that grounds for disciplinary action against a ‘relevant teacher’ exist,[2] it must refer the matter to a ‘practice and conduct body’, which means either the Tribunal or the PC&TC committee.[3] Initially, the matter was referred to the PC&TC Committee. That is because on 21 March 2019, by section 98 of the Education Act, the QCT authorised an investigation into the matter, following which the Senior Investigator found that a ground for disciplinary action exists under section 92(1)(h) of the Education Act. In those circumstances, by section 201(2)(a)(ii) of the Education Act, the written report about the investigation must be given to the PC&TC Committee, in which event, by section 108(b) of the Education Act, the PC&TC Committee was seized of the matter. However, in accordance with section 111A(2)(b) of the Education Act, the PC&TC Committee referred the matter to the Tribunal.
- [4]By section 123(4A) of the Education Act, if the PC&TC Committee refers the matter to the Tribunal, the QCT must inform the Tribunal about the grounds for the practice and conduct matter and the facts and circumstances forming the basis for the grounds. The Tribunal is then to conduct a hearing and make a decision having regard to the information provided by the QCT.
- [5]Relevant to the report and findings of the Senior Investigator, section 147 of the Education Act provides:
During the hearing, QCAT may—
- receive in evidence a transcript, or part of a transcript, of evidence taken in a proceeding before a disciplinary body or a court, tribunal or other entity established under the law of the State, the Commonwealth, another State or a foreign country, and draw conclusions of fact from the evidence it considers appropriate; or
- adopt, as it considers appropriate, decisions, findings, judgements, or reasons for judgement, of a disciplinary body, court, tribunal or other entity that may be relevant to the hearing
- [6]The conduct subject to this disciplinary proceeding occurred in 2018 when WBJ was a registered teacher.
- [7]In deciding whether a ground for disciplinary action is established, 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.[4]
- [8]If the Tribunal is satisfied that a ground for disciplinary action exists against WBJ, the Tribunal may take one or more of the actions under section 161 of the Education Act. That is dealt with separately, below.
Grounds for disciplinary action
- [9]In relation to grounds, the QCT submits that the relevant ground for disciplinary action is the ground contained in section 92(1)(h) of the Education Act, which applies where:
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;
- [10]The standard of behaviour generally expected of a teacher is not defined in the Act. However, in Queensland College of Teachers v Armstrong it was stated:[5]
… 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.
- [11]In Queensland College of Teachers v PPK,[6] it was stated that the standard is fluid and is ‘informed by how the community, including the teaching profession, would expect a teacher to behave’.
- [12]The Tribunal has previously observed that teachers are bestowed with a special trust by parents and the community to act in the best interests of students and to protect them from harm and, with that trust, an expectation that it will not be breached.[7]
- [13]In considering the expected standard it is also appropriate to bear in mind the objects of the Education Act, which are:[8]
- to uphold the standards of the teaching profession; and
- 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.
- [14]The following is a summary of the allegations forming the basis of the grounds for disciplinary action:
- Allegation 1: during Term 3, 2018, WBJ engaged in inappropriate email communication with the student:
- specifically, between 8 August 2018 and 21 September 2018, exchanged more than 1200 emails including on weekends and outside of school hours, including but not limited to:
- I.5.34pm “You don’t like that I’m married do you? And “But I want to see you”; and
- II.7.02pm “teachers aren't meant to be friends (or whatever this is) with students. The professional teacher half of me is actually really relieved that you're leaving. Sorry. You know how the other half feels.”
- I.
- the student ceased his enrolment at the school on 21 September 2018 – end of term three.
- between 21 September 2018 and 27 September 2018, exchanged in excess of 3600 text messages with the now former student that were inappropriate and overfamiliar;
- on 24 September 2018, organised to meet with the former student at a park – messages indicate that WBJ attended the park at 3pm.
- specifically, between 8 August 2018 and 21 September 2018, exchanged more than 1200 emails including on weekends and outside of school hours, including but not limited to:
- Allegation 2: between 21 September 2018 and 27 September 2018, the teacher sent inappropriate electronic communications by in excess of 3600 text messages to the former student, including but not limited to:
- (i)commenting on her attraction towards him when he was her student;
- “Maybe we should stop”;
- “why do you think”, “we aren't acquaintances”, “you're the one leaving” and “rather abandon the relationship”; and
- “I think it would be amazing. If we were closer in age.”
- (ii)making sexualized comments to the former student:
- “You're gorgeous and I'm so sorry I broke you. I had no intention of that.”; and
- “Please don’t leave me” and “You know I want you”.
- (iii)inviting the former student to her home and encouraging him to lie to his parents about meeting with her:
- “Do you want to come to my place I can get you”.
- (iv)telling the student she loved him:
- “I love you too” and “I didn’t say it before” and “But I do”.
- (i)
- Allegation 3: on 27 September 2018, sent an inappropriate and overfamiliar email from her personal email account to the former student’s personal email account, in which she said:
- “Please tell them you're more than welcome to go to the school about it. I know I have done wrong by you but I also have nothing to hide. I will deny nothing and stand by every single word I've ever said to you. My only regret will be not helping your family when it wasn't too late. I will never forgive myself for that. You should know that no matter which of the above is true, you've got me forever. Please come back when you're 18. That's a selfish request, I will understand if you don't. I love you.”
- Allegation 1: during Term 3, 2018, WBJ engaged in inappropriate email communication with the student:
- [15]WBJ has not filed any submission in relation to the substantive allegations, though, as is noted below, in a communication to the Tribunal dated 5 June 2023 she states: ‘I deeply regret my actions and the harm I caused my former student’. She added that she took full responsibility for her actions and, at the time, voluntarily surrendered her teaching registration.
- [16]In deciding whether there is a ground for disciplinary action, section 158(2) of the Education Act provides that the Tribunal, must have regard to any relevant previous decision of which it is aware.
- [17]There are a number of cases where grounds for disciplinary action have been established in circumstances involving overfamiliar or inappropriate communications or interactions with students.
- [18]
- [19]Of those decisions, we consider that Genge and NRR are most relevant. In Genge, the teacher was 22 years old and the student was 17 years old. The teacher had been registered for only one year. There were three allegations concerning the teacher’s conduct regarding the male year 12 student. She engaged in inappropriate communications with the student via Facebook, which were personal and on occasions sexually suggestive in nature. The Tribunal found all three allegations proven and that a ground for disciplinary action under section 92(1)(h) of the Education Act had been established.
- [20]In NRR, the teacher’s conduct involved inappropriate electronic communications with three former students without a valid reason or educational context. The communications included references to drugs, alcohol, and steroid use; intimate and sexual communications; and the exchange of intimate and sexual images. In that case also the Tribunal found that a ground for disciplinary action under section 92(1)(h) of the Education Act had been established.
- [21]Also, as is noted above, following an investigation and a detailed analysis of the allegations and the response of WBJ, the Senior Investigator found that the allegations were substantiated on the balance of probabilities and that a ground for disciplinary action exists pursuant to section 92(1)(h) of the Education Act.
- [22]In the circumstances, the Tribunal finds that a ground for disciplinary action under section 92(1)(h) of the Education Act is established, in that WBJ has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.
Sanction
- [23]The Tribunal considers that the following factors are relevant to deciding the appropriate sanction:
- there was a direct teacher-student relationship. WBJ was the student’s teacher, aged 27 years old at the time, and aware that the student was a 15-year-old child;
- the communications and interactions were without valid educational purpose and were inappropriate and manipulative. The student was a young impressionable 15-year-old boy, and WBJ was coercing him to make decisions about his future when he may not have been ready to do so;
- WBJ used her position as a teacher to pursue and maintain a personal relationship and communication with the student, which did not have a genuine educational purpose. By virtue of a teacher’s position, disparities in age maturity and life experience, and the inherent vulnerability of young people, there is a power imbalance between teachers and students;
- WBJ believed that as the student was leaving her school their relationship was no longer forbidden;
- While WBJ initially rejected the notion that she may have caused any emotional or psychological distress to the student, after the passage of about one year she expressed regret for her actions and for any distress it caused.
- upon receiving notice of the disciplinary referral to the Tribunal, by an email dated 4 June 2023, WBJ expressed significant feelings of shame and regret on reflection of her conduct:
- (i)“…that was the biggest mistake of my life and I deeply regret my actions and the harm I caused my former student. If I could go back in time and change everything I would in a heartbeat. I have taken full responsibility for my actions and voluntarily surrendered my teacher registration at the time of the events.”
- (ii)“I am no longer that person and I cringe with shame and disgust when I think of my actions and how they affected my former student. I truly hope that he has not had any lasting impacts from this and that he is doing ok.”
- (i)
- [24]We consider that a teacher should have sufficient insight to know that this sort of behaviour can harm young people. Her behaviour was plainly wrong because of the inherent power imbalance.
- [25]The decisions in Genge and NRR are also relevant to the question of the appropriate sanction. In Genge, the teacher was prohibited from teaching for 18 months. We consider that WBJ was more experienced as a teacher and therefore her conduct is more serious. In addition, in the present case, the relevant student was only 15 years old, whereas in Genge the student was 17 years old.
- [26]In NRR, the sanction imposed was two years and nine months from the date of suspension. Also, a notation was made that an independent psychological report to the satisfaction of QCT addressing specific matters should accompany any future application for registration. The teacher’s conduct involved inappropriate electronic communications with three former students without a valid reason or educational context. The communications included references to drugs, alcohol, and steroid use; intimate and sexual communications; and the exchange of intimate and sexual images. NRR took responsibility for his conduct, accepting that it was not of the expected standard.
- [27]We consider WBJ’s conduct, albeit with only one student, to have some degree of parity with the conduct in NRR in terms of the appropriate sanction. However, while WBJ eventually accepted responsibility for her conduct, her initial response in 2019 was dismissive, lacked insight and attempted to shift some degree of blame onto the student by reference to his physical appearance and alleged attention that he gave her. Relevantly, that email said:
I reject the assertion that I caused the student any emotional or psychological distress… I also reject the assertion that I was a danger to my students. I am not inclined in that way at all. My feelings for the student developed because he is a wonderful person who physically looks much older than he actually is, and I was in a pathetic enough headspace to not shut down his attentions. Even so, as you have undoubtedly read in our texts, I made it clear that nothing would happen until he was an adult. Not a predator, just pathetic.
- [28]The subsequent change of mind on the part of WBJ is noted above.
- [29]The purpose of disciplinary proceedings is not to punish but to protect children and the community. As discussed above, the objects of the Education Act are to uphold the standards of the teaching profession, maintain public confidence in the teaching profession and protect the public.
- [30]QCT submits that it is appropriate for an order to be made prohibiting WBJ from re-applying for registration or permission to teach for 2.5 to 3.5 years from 15 February 2019, being the date of suspension of her teacher registration.
- [31]The Tribunal considers that an order in the middle of the above range will achieve the objectives of the Education Act. Preventing WBJ from teaching for a period of three years will convey the Tribunal’s strong disapproval of her behaviour, deter others, and allow WBJ to reflect on why her behaviour was inappropriate, as well as on its impact on the student and her profession. As set out in the orders below, we also consider that WBJ should be required to take the specified steps prior to any re-application for registration as a teacher.
Non-publication order
- [32]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) 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. The Tribunal may do so on the application of a party or on its own initiative.[12]
- [33]The parties submit that a non-publication order is appropriate so as to protect relevant students or former students. The publication of the name of the respondent or of any school could lead to such identification.
- [34]In the circumstances, it is appropriate to make a non-publication order. We are satisfied that it would be contrary to the public interest for information to be published that would identify WBJ, or any relevant student, former student, or school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld), or as necessary for WBJ to comply with any disclosure requirements of any regulatory authority or employer.
ORDERS
- [35]The following orders are made:
- The disciplinary ground in section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
- Pursuant to section 161(2)(c) of the Education (Queensland College of Teachers) Act 2005 (Qld), the respondent is prohibited from re-applying for registration or permission to teach for a period of three years from 15 February 2019.
- Pursuant to section 161(2)(d) of the Education (Queensland College of Teachers) Act 2005 (Qld):
- prior to any re-application for 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 the behaviour that might 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 her own triggers and strategies she 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:
- (i)a copy of the Tribunal’s decision and reasons;
- (ii)the referral under section 111A of the Education (Queensland College of Teachers) Act 2005 (Qld);
- (i)
- the report must include:
- (i)the duration and frequency of visits and details of any testing that was undertaken; and
- (ii)the psychologist’s professional opinion regarding the likelihood, if any, of the respondent engaging in conduct that would be contrary to the need to protect children and young people from physical, psychological, or emotional harm.
- (i)
- prior to any re-application for 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:
- The respondent must bear all costs of, and associated with, compliance with these orders.
- Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify Teacher WBJ or any relevant student, or former student, or school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld), or as necessary for WBJ to comply with any disclosure requirements of any regulatory authority or employer.
Footnotes
[1] As to the meaning of those terms, see Schedule 3 of the Education Act.
[2] “Relevant teacher” is defined at Schedule 3 of the Education Act to mean either an approved teacher or a former approved teacher. “Former approved teacher” means a former registered teacher or a former holder of a permission to teach. A “former registered teacher”, in relation to a disciplinary matter, means a person who was a registered teacher when the conduct to which the disciplinary matter relates happened and is no longer a registered teacher.
[3] Education Act, s 97(2)(a)-(b).
[4] Briginshaw v Briginshaw (1938) CLR 336 at 361-2.
[5] [2010] QCAT 709, [33]. See also Queensland College of Teachers v PPK [2019] QCAT 59.
[6] [2019] QCAT 59, [36].
[7] Queensland College of Teachers v DGM [2018] QCAT 194.
[8] Education Act, s 3.
[9] [2011] QCAT 163 (‘Genge’).
[10] [2019] QCAT 240.
[11] [2021] QCAT 152 (‘NRR’).
[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).