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Queensland College of Teachers v Teacher MWA[2024] QCAT 67

Queensland College of Teachers v Teacher MWA[2024] QCAT 67

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher MWA [2024] QCAT 67

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

Teacher MWA

(respondent)

APPLICATION NO/S:

OCR102-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Burson (Presiding)

Member Robyn Oliver

Member Carrigan

ORDERS:

  1. The ground for disciplinary action under section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established. 
  2. The Respondent is reprimanded.
  3. Under section 66 of the Queensland Civil and Administrative Act 2009 (Qld), other than the parties to this proceeding and until further order of the Tribunal, 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 for the Queensland College of Teachers to meet its statutory obligations and as provided under the Act. 
  4. The Respondent may provide a copy of this decision to any regulatory authority or employer in compliance with any disclosure requirements.
  5. Teacher MWA’s suspension is ended pursuant to section 160 of the Education (Queensland College of Teachers) Act 2005 (Qld).

CATCHWORDS:

EDUCATION – EDUCATORS – REGISTRATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher engaged in inappropriate communications with former students – 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 nonpublication order should be made – where order necessary in the interests of protecting vulnerable young persons – where exceptions required for protection of future students

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

Queensland Civil and Administrative Act 2009 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336.

Queensland College of Teachers v Armstrong [2010] QCAT 709 

Queensland College of Teachers v PPK [2019] QCAT 59

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]
    This is an application for a referral of a disciplinary decision dated 10 May 2022 by the Queensland College of Teachers (‘QCT’). 
  2. [2]
    Teacher MWA’s registration as a Registered Teacher was suspended on 5 September 2016. 
  3. [3]
    Teacher MWA had been charged with one count of indecent treatment of a child under 16 (expose) pursuant to section 210(1)(d) of the Criminal Code of Queensland (‘the Code’) and a further three counts of indecent treatment of a child under 16 pursuant to section 210(1) (a) of the Code. 
  4. [4]
    Teacher MWA did not seek to review this suspension. 
  5. [5]
    QCT obtained an updated criminal history check on 31 December 2020 identifying that Teacher MWA was found not guilty in relation to all offences on 17 February 2020 in the District Court of Queensland and there were three further counts of common assault that were dismissed, prior to any substantive proceedings in a separate Magistrates Court. 
  6. [6]
    Teacher MWA has not provided any response to the Tribunal in these proceedings. 
  7. [7]
    Teacher MWA was first granted registration as a teacher in Queensland in February 1992.   
  8. [8]
    Teacher MWA was employed by the Queensland Department of Education for the first time in April 1996 and held various temporary teaching roles with the Department until his suspension in September 2016. 
  9. [9]
    MWA has been suspended for approximately seven (7) years at the time of decision. 
  10. [10]
    Teacher MWA also worked within the independent education sector for a short period of time from 2005 – 2006. 

Was the ground for disciplinary action established under section 92(1)(h) 

  1. [11]
    The issue for this Tribunal is to determine is the following: 
    1. whether a ground for disciplinary action is established; and 
    2. if so the appropriate sanction to be applied. 
  2. [12]
    The relevant section 92(1) (h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) provides the following ground for disciplinary action;

“the person behaves in a way, connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.” 

  1. [13]
    The Act further outlines, under section 92(2)(a) and 92(5), that the above ground of disciplinary action applies to a teacher who has been suspended and who has been charged with a serious offence that has been dealt with.  The meaning of “dealt with” includes dismissal and acquittal of serious offence. 
  2. [14]
    Section 15 of the Working with Children (Risk Management and Screening Act) 2000 (Qld) provides a definition of “serious offences” under schedule 2 of that Act. 
  3. [15]
    The indecent treatment offences are within the definition of “serious offences” as defined and outlined in paragraph 13 above. 
  4. [16]
    The Tribunal notes that the wording ‘’standard of behaviour” in section 92(1)(h) of the Act is not a defined term. This standard has been addressed in previous decisions of the Tribunal.1 

...the Tribunal agrees that the standard ‘reasonably’ 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 in this turn should reflect the standard that those in the teaching profession should expect of their colleagues and peers. 

(Emphasis added)

  1. [17]
    The Tribunal accepts that the standard is a fluid one and informed by how the community, including the teaching profession would expect a teacher to behave”.2 
  2. [18]
    The Tribunal was provided with the original referral, outlined in exhibit “H” the affidavit of Ms Megan Girvan, Principal Legal Officer, Queensland College of Teachers dated 10 May 2022.  The original referral provides, the facts and circumstances forming the basis of the ground for disciplinary action”.3 

Grounds for disciplinary action and particulars 

  1. [19]
    The facts and circumstances forming the basis of the ground for disciplinary action are as follows: 
    1. On 2 September 2016, the respondent was charged with: 

“indecent treatment of children under 16 (expose) pursuant to section 210 (1)(d) of the Queensland Criminal Code and three charges of indecent treatment of children under 16 pursuant to section 210(1)(a) of the Queensland Criminal Code” 

  1. [20]
    The particulars of the charge included: 
    1. Teacher MWA allegedly indecently dealt with the complainant children by sitting at the front of the classroom and touching his penis whilst using a laptop. 
    2. Teacher MWA allegedly placed his hand on one complainant’s shoulder, moving his hand over her back and through her hair. 
    3. Teacher MWA allegedly placed his hand on another complainant's shoulder and pulled his hand across her chest. 
    4. Teacher MWA allegedly used his hand to rub a complainant’s leg from her knee to her thigh.  
  2. [21]
    The complainants were females between 12 and 14. 
  3. [22]
    On the 18 October 2016, the respondent was charged with: “three counts of common assault pursuant to section 335 of the Queensland Criminal Code.” 

The particulars of the charge included: 

  1. Teacher MWA has allegedly touched the complainant’s (student) hair and attempted to hug her more than once. 
  1. [23]
    The QCT provided an amended referral on 29 July 2022, to be read with the original referral including the following facts and circumstances to form the basis of the ground for the proceedings before the Tribunal:

Teacher MWA (the respondent), a relevant teacher, behaved in a way, that does not satisfy the behaviour generally expected of a teacher in the circumstances below: 

  1. Whilst employed on a temporary contract as a teacher at [School] between 11 July 2016 and 12 August 2016, the respondent engaged in overfamiliar, inappropriate and/or sexualised conduct: 
  2. On 21 July 2016, during term 3, a year 8 ‘ICT’ class, the relevant teacher sat at the front of a classroom whilst using a laptop, and placed his left hand down the front of his trousers (footage was captured on Student A’s phone and sent to Student B via Facebook Messenger). 
  3. During a year 7 ‘DTL’ class in term 3, the relevant teacher placed his hand on Student C’s shoulder, put his head close to her face and asked if she was okay.  Teacher MWA then moved his hand over her back, touched her shoulder area and touched/twirled her ponytail hair. 
  4. During a year 7 science class in week 2 term 3 approached Student D’s desk and put his right hand on her shoulder and asked if she was okay.  Teacher MWA then dragged his left hand across the middle part of her chest under her neck. 
  5. On 3 August 2016 after a year 9 science class, after signing her ‘daily’ Teacher MWA brushed his hand past Student E’s leg from her knee to her thigh. 
  6. Around the end of term 2 the relevant teacher approached a group of female students during lunch.  He looked at Student C’s legs and said something like ‘your skirt is pretty short... but you have very nice legs.’ 
  1. [24]
    The facts and circumstances of the original and amended referrals are in relation to the same charges.  
  2. [25]
    The original referral has provided further information regarding allegations of behaviour occurring at other schools.  This information has not formed part of the facts and circumstances of a disciplinary ground provided to the Tribunal and does not form part of the Tribunal’s deliberation for the determination of the disciplinary grounds as outlined in the original and amended referral. 

Outcome of criminal charges 

  1. [26]
    Teacher MWA was found not guilty after a trial in the District Court of Queensland of one count of indecent treatment (expose) of children under 16 and three counts of indecent treatment of children under 16.   
  2. [27]
    These charges were the facts and circumstances referred to in the original referral, summarised in paragraph 18 (a) of this decision and paragraph 19 (a) outlining the amended referral, in this decision. 
  3. [28]
    The charges of three counts of common assault against Teacher MWA were withdrawn in the Magistrates Court. 
  4. [29]
    The particulars of the three counts of common assault are outlined in the original referral and summarised at paragraph 20(b)-(d) of this decision. 

Material provided to the Tribunal 

  1. [30]
    Teacher MWA at no time has provided material to the Tribunal or engaged in the disciplinary proceedings for the referral. 
  2. [31]
    Teacher MWA denied the behaviour subject of the original and amended referral during police interviews.  
  3. [32]
    The Tribunal considered the Applicant’s submissions.  These submissions included the following material: 
    1. Transcripts of Teacher MWA’s trial days 1 – 4; 
    2. Transcripts of police interviews of seven (7) students; 
    3. Teacher MWA’s criminal history; 
    4. Traffic Record; 
    5. Pre-Sentence Certificate; 
    6. QPS’s and Bench Charge Sheets; 
    7. Transcript of police interview – Teacher MWA; 
    8. 5 x Police Witness Statements; 
    9. QPS notebook notes x 2; 
    10. Indecent Statements x 4; 
    11. School staff timetable; 
    12. Queensland birth certificates x 2 Students; 
    13. Photograph of Teacher MWA; 
    14. Student details printout; 
    15. 2016 Queensland State Schools calendar 
    16. Handwritten notes; 
    17. Diagram; 
    18. Misconduct reports x 2; 
    19. Letter of employment for Teacher MWA; 
    20. Outline of Submissions of Applicant in Separate Trial Application; 
    21. Outline of Submissions of Respondent in Separate Trial Application; 
    22. Section 80 Education (Queensland College of Teachers) Act 2005 Notice; 
    23. Order for pre-recording of evidence  x 2 - Students; 
    24. Application to sever the indictment including the following: 
      1. (i)
        Submissions of Respondent (crown) - severance of indictment;
      1. (ii)
        Submissions of Respondent – application to set aside ruling;
      1. (iii)
        Application of Defendant to set aside ruling;
      1. (iv)
        Submissions of Application – application to set aside ruling;
    25. Undertaking as to bail; 
    26. Passport documentation; 
    27. Objection to bail affidavit; 
      1. (bb)
        Particulars;
      1. (cc)
        Indictment and transmission sheet;
      1. (dd)
        Transcript of pre-trial hearing in R v Teacher MWA;
      1. (ee)
        R v MWA - joinder of charges – separate trial;
      1. (ff)
        Transcript of pre-trial hearing (decision) in R v Teacher MWA;
      1. (gg)
        Transcript of pre-trial hearing in R v Teacher MWA;
      1. (hh)
        Similar prior QPSs (two PDF documents);
      1. (ii)
        Transcript of trial R v Teacher MWA x 3 days
      1. (jj)
        Transcript of pre-recorded evidence R v Teacher MWA (adjourned);
      1. (kk)
        Transcript of pre-recorded evidence R v Teacher MWA (2 x Students);
      1. (ll)
        Transcript of pre-recorded evidence R v Teacher MWA (2 x Students); and
      1. (mm)
        A copy of recorded material by students.
  4. [33]
    The QCT provided to this Tribunal in excess of 1000 pages of material.  The Tribunal is required to consider all of the material.  A large amount of material was irrelevant to consideration of the Tribunal’s decision and this has added substantial amounts of time to the consideration of this decision.  The Tribunal urges the QCT to consider the material that it is providing to the Tribunal and provide material that is relevant to consideration of disciplinary grounds and sanction. 
  5. [34]
    The Tribunal considered all the material provided to the Tribunal and considered Teacher MWA’s denial of the allegations. 

Disciplinary action – Summary paragraph 20(a) and paragraph 23(b)

  1. [35]
    The Tribunal turns firstly to the summary of the original and amended referral summarised in paragraph 20(a) and paragraph 23(b) of this decision.  The ‘video’ allegation. 
  2. [36]
    The Tribunal considered the video material particularly of the touching by Teacher MWA.  There is no exposure of genitals in the video. MWA’s hand is located in his pocket and there is movement of the hand. The location of the movement is unable to be defined.  The Tribunal cannot determine that MWA was touching his penis.  The Tribunal is unable to substantiate that particular of the paragraph 20(a) and cannot determine on the balance of probabilities that this was the nature of Teacher MWA’s action. 
  3. [37]
    The Tribunal considered the statements of the students provided in the criminal matter and the interviews of the students and the cross-examination of the students in the criminal matter. The Tribunal particularly considered the evidence of Student B who provided evidence to the court that he recalled seeing the video footage and calling Teacher MWA out on the day that the matter occurred.  In cross examination, three years after the initial allegations, Student B remained resolute in this recollection of the matter.  Student B recalled the actions of Teacher MWA independent of the video footage. 
  4. [38]
    Upon consideration of this material, the Tribunal finds that Teacher MWA’s behaviour was inappropriate.  
  5. [39]
    The Tribunal finds that there is a ground for disciplinary action in consideration of the original and amended referral summarised in paragraph 20(a) and paragraph 23(a) of this decision. 

Disciplinary action – Summary paragraph 20(b) and paragraph 23(c) 

  1. [40]
    The Tribunal turns to the ‘second allegation’ that is the allegation by Student C of Teacher MWA placing his head close to her face and moving his hands over her back, touching her shoulder and twirling her ponytail hair. 
  2. [41]
    The Tribunal has considered Student C’s interviews with the police and the trial material. 
  3. [42]
    Upon consideration of this material, the Tribunal finds that Teacher MWA’s behaviour was over-familiar and inappropriate. 
  4. [43]
    The Tribunal finds that Student C has been honest in her recollection and that there is a ground for disciplinary action in consideration of the original and amended referral summarised in paragraph 20(b) and paragraph 23(c). 

Disciplinary action - Summary paragraph 20(c) and paragraph 23(d) 

  1. [44]
    The Tribunal turns to the ‘third allegation’ that is the allegation by Student D of Teacher MWA placing his right hand on her shoulder and asking if she was okay and dragging his left hand across the middle part of her chest under her neck.  
  2. [45]
    The Tribunal considered Student D’s interview with police and the trial material. 
  3. [46]
    Upon consideration of this material, the Tribunal finds that Teacher MWA’s behaviour was over-familiar and inappropriate. 
  4. [47]
    The Tribunal finds that there is a ground for disciplinary action in consideration of the facts and circumstances outlined in the original referral and amended referral as summarised in paragraphs 20(c) and paragraph 23(d) in this decision. 

Disciplinary action – Summary paragraph 20(d) and paragraph 23(e) 

  1. [48]
    The Tribunal turns to the ‘fourth allegation’ that is the allegation by Student D of Teacher MWA brushing his hand from Student D’s knee to thigh. 
  2. [49]
    The Tribunal considered Student D’s interview with police and the trial material. 
  3. [50]
    The Tribunal finds that there is a ground for disciplinary action in consideration of the facts and circumstances outlined in the original referral and amended referral as summarised in paragraphs 20(d) and 23(e) in this decision. 

Disciplinary action – Summary paragraph 23(f) 

  1. [51]
    The Tribunal turns to the ‘fifth allegation’ that is the allegation by Student C that Teacher MWA approached her whilst looking at her legs, stated, “your skirt is very short... but you have very nice legs”. 
  2. [52]
    The Tribunal has considered Student C’s interview and the trial material. 
  3. [53]
    The Tribunal has determined in accordance with the trial material that the recollection of “you have very nice legs” was a statement that was not originally considered by Student C.  It is determined that this matter cannot be substantiated. 
  4. [54]
    The Tribunal does not find that there is a ground for disciplinary action in consideration of the facts and circumstances outlined in the original referral and amended referral as summarised in paragraph 23(f) in this decision. 

Disciplinary action – Summary paragraph 22(a) 

  1. [55]
    The Tribunal has considered the matters of common assault which have been loosely outlined as a ground for disciplinary action in consideration of the facts and circumstances. 
  2. [56]
    The referrals have not particularised the allegations sufficiently to enable the Tribunal to make determination with relation to this ground. 
  3. [57]
    The Tribunal does not find that there is a ground for disciplinary action in consideration of the facts and circumstances outlined in the original referral as summarised in paragraph 22(a) of this decision. 
  4. [58]
    The Tribunal’s standard of proof is that as outlined in Briginshaw4 and the relevant paragraph is provided below: 

“... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.5 

  1. [59]
    The Tribunal in consideration of the facts and circumstances outlined have weighed the evidence in accordance with Briginshaw principles when considering whether or not a ground for discipline has been made in this matter. 

Factors Relevant to Sanction 

  1. [60]
    Section 160 applies to approved teachers.  It sets out the relevant actions that can be taken against an approved teacher. 
  2. [61]
    The QCT has outlined that Teacher MWA is currently suspended and the Tribunal is unaware of any evidence that MWA is no longer an approved teacher. 
  3. [62]
    Sanctions in a disciplinary action are not a ‘punishment’ nor are sanctions a punitive action against a teach or former teacher.  This is a well-established principle in these matters. The purpose of the sanction is to uphold the objects of the Act6 
  4. [63]
    Factors that are relevant to sanction in this matter are as follows: 
    1. Teacher MWA’s determined inappropriate behaviour towards the students; and
    2. Teacher MWA’s experience as a teacher. 

MWA’s inappropriate behaviour 

  1. [64]
    The students the subject of Teacher MWA’s inappropriate behaviour were aged between 12 and 14.   
  2. [65]
    The behaviour of Teacher MWA for the substantiated allegations number two to four, are all similar in nature and involved touching the students or brushing of the students on the outside of their clothing.  These allegations involved more than one student. 
  3. [66]
    The behaviour was inappropriate and over-familiar.  Each student made comments on Teacher MWA’s nature ranging from “creepy” to “weird”. 
  4. [67]
    In terms of the first allegation, the ‘video’ allegation, the Tribunal had the benefit of viewing the video, given the nature of the video, it is clear that Teacher MWA’s hand is in his pocket and that he is moving that hand.  The Tribunal cannot make any further inference about this action.   

Experience as a teacher 

  1. [68]
    It is noted that MWA has not held a permanent role as a teacher notwithstanding his original registration in 1996. Teacher MWA had twenty (20) years’ experience in various temporary positions. 
  2. [69]
    The Tribunal is unable to make comment as to any training or ongoing education that Teacher MWA has had over this time, as no evidence has been provided to the Tribunal of this experience. 

QCT Submissions 

  1. [70]
    The QCT has provided a number of previous decisions for consideration of Teacher MWA’s matter.7 
  2. [71]
    Submissions were provided by QCT and referenced material that was not the subject of the facts and circumstances forming the basis of the ground for disciplinary action. The decision-making for this matter had an added layer of complexity with material provided in submissions and referred to by QCT that was not part of the disciplinary grounds.  This was confusing as to the determination that was sought by QCT and ultimately the Tribunal determined that the material that was not in accordance with facts and circumstances and was irrelevant to the consideration of the disciplinary grounds. 
  3. [72]
    The Tribunal has taken into consideration the standards expected of Teacher MWA by the community at large when making this determination. 
  4. [73]
    The Tribunal determines that it is appropriate for a non-publication order in this matter. 
  5. [74]
    The students affected by this matter may request that the non-publication order is lifted at any time, as the order is for the protection of the identity of the students and the school, not for the protection of Teacher MWA. 

Considerations as to orders 

  1. [75]
    MWAs registration as a teacher has been suspended since 5 September 2016.  This is a period of seven (7) years.
  2. [76]
    The Tribunal considered a suspension of a period of time under section 160(2)(e) of the Act.  There is no utility to a declaration of a suspension or any continued suspension period given the period of seven (7) years suspension awaiting decision, though the Tribunal notes that a period of suspension would have been imposed but for the length of suspension that Teacher MWA has already served. 
  3. [77]
    The Tribunal also considers that given that Teacher MWA has not been teaching for in excess of five (5) years since his previous teaching experience that Teacher MWA would need to meet criteria in accordance with Return to Teaching guidelines.  It is noted that mandatory elements include review of ethics and key legislation including the Child Protection Act 1999 (Qld). 
  4. [78]
    Given the nature of the allegations, length of time of the suspension and the Return to Teaching requirements that Teacher MWA will need to meet, it is the Tribunal’s decision that Teacher MWA receive a reprimand, taking into account these factors.
  5. [79]
    Teacher MWA’s suspension is ended under section 160 of the Act. 

Orders 

  1. [80]
    The ground for disciplinary action under section 92(1)(h) of the Act is established. 
  2. [81]
    Teacher MWA is reprimanded under section 160 (2)(c) of the Act. 
  3. [82]
    Under section 66 of the Queensland Civil and Administrative 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 the respondent, a relevant student or former student, or the relevant school other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations and as provided under the Act. The respondent may provide a copy of this decision to any regulatory authority or employer in compliance with any disclosure requirements. 
  4. [83]
    may provide a copy of this decision to any regulatory authority or employer in compliance with any disclosure requirements.
  5. [84]
    MWA’s suspension is ended pursuant to section 160 of the Education (Queensland College of Teachers) Act 2005 (Qld).
Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher MWA

  • Shortened Case Name:

    Queensland College of Teachers v Teacher MWA

  • MNC:

    [2024] QCAT 67

  • Court:

    QCAT

  • Judge(s):

    Member Burson (Presiding), Member Robyn Oliver, Member Carrigan

  • Date:

    07 Feb 2024

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
Queensland College of Teachers v Armstrong [2010] QCAT 709
1 citation
Jump To
Cite 1 - [2010] QCAT 709
Queensland College of Teachers v PPK [2019] QCAT 59
1 citation
Jump To
Cite 1 - [2019] QCAT 59

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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