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Queensland College of Teachers v Teacher ELP[2025] QCAT 61

Queensland College of Teachers v Teacher ELP[2025] QCAT 61

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher ELP [2025] QCAT 61

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

TEACHER ELP

(respondent)

APPLICATION NO/S:

OCR078-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 January 2025

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown Presiding

Member Carrigan

Member Grigg

ORDERS:

  1. The disciplinary ground in section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
  2. The respondent teacher is prohibited from reapplying for registration or permission to teach until 26 March 2026.
  3. Pursuant to s 160(2)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) there be a condition on the respondent teacher requiring any further re-application for registration or permission to teach to include an independent psychological report, satisfactory to the Applicant, which addresses the following:
    1. Whether the psychologist is satisfied the teacher has addressed the following matters:
      1. differentiating between personal and professional relationships;
      2. the legal obligations of teachers and tutors;
      3. the concept, and importance, of professional boundaries;
      4. the development and maintenance of professional standards and professional boundaries when working with students and how to actively determine and implement professional boundaries with individual students;
      5. an awareness of what constitutes appropriate and inappropriate communication and behaviour with students;
      6. the impact of inappropriate communication, conduct and relationships upon students, families, schools and the profession;
      7. the need to protect children and students from physical, psychological and emotional harm;
      8. risk assessment and early identification of potentially problematic situations and venues;
      9. how to achieve realistic solutions to avoid the risk of harm to students;
      10. the power granted to a teacher;
      11. the extent and nature of trust invested in a teacher by students, colleagues, parents and the community;
      12. conduct that would compromise the professional standing of a teacher and the teaching profession; and
      13. the importance of full adherence to the Queensland College of Teachers Code of Ethics.
    2. The results of any risk assessments completed and the psychologist’s professional opinion regarding the likelihood, if any, of the respondent teacher engaging in conduct that would be contrary to the need to protect children and young people from physical, psychological or emotional harm.
    3. Confirmation that the psychologist was provided with copies of:
      1. the Tribunal’s orders and reasons for decision; and
      2. the referral of disciplinary proceedings under section 97 of the Act.
  4. The respondent teacher must bear the costs of obtaining and providing the psychologist’s report.
  5. Pursuant to section 160(2)(f) of the Education (Queensland College of Teachers) Act 2005 (Qld) the respondent must pay $2,456.00 towards the applicant’s costs.
  6. Under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), other than to the parties to this proceeding or as allowed in order 7, and until further order of the Tribunal, publication is prohibited of any information that may identify the respondent teacher, a relevant complainant, or the relevant school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations pursuant to sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).
  7. The respondent teacher may provide a copy of this decision to:
    1. any psychologist in order to comply with order 3; or
    2. to any regulatory authority or employer in compliance with any disclosure requirements.

CATCHWORDS:

EDUCATION – SCHOOLS – TEACHER – DISCIPLINARY MATTERS – where teacher charged with ‘serious offence’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) – where teacher’s registration was suspended – where charges were dismissed – where teacher engaged in inappropriate conduct leading to exchange of sexually explicit photographs and a sexual act with a student when the student was 16 years of age – charge of use of computer hacking and misuse as a result of unauthorised  use of OneSchool records – whether ground for disciplinary action is established – what proposed disciplinary action should be taken.

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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 CMF (No 2) [2016] QCAT 290.

Queensland College of Teachers v DGM [2018] QCAT 194.

Queensland College of Teachers v DRR [2012] QCAT 671.

Queensland College of Teachers v FPD [2023] QCAT 240.

Queensland College of Teachers v IOP [2022] QCAT 241.

Queensland College of Teachers v HMJ [2016] QCAT 447

Queensland College of Teachers v NBC [2015] QCAT 246

Queensland College of Teachers v NRR [2021] QCAT 152.

Queensland College of Teachers v PPK [2019] QCAT 59.

Queensland College of Teachers v REC [2020] QCAT 178.

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

Introduction

  1. [1]
    This is an application for a referral of a disciplinary decision dated 22 March 2023 by the Queensland College of Teachers (‘QCT’).
  2. [2]
    On 25 March 2020 the respondent teacher was charged with offences of sexual assault and solicitation of child abuse material by using a carriage service[1]. These offences each constitute a serious offence as defined in Schedule 3 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Education Act’), which references section 15 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
  3. [3]
    On 26 March 2020 the QCT suspended the respondent’s registration under section 48 of the Education Act[2]. On 14 May 2020 the Tribunal ordered the suspension of Teacher ELP’s registration continue.[3]
  4. [4]
    In or around March 2021 the respondent teacher was charged with computer hacking and misuse for unauthorised accessing of OneSchool records between 28 January 2020 and 5 March 2020.[4]
  5. [5]
    On 17 December 2021 the charges of sexual assault and solicitation of child abuse material by using a carriage service were discontinued after the prosecution offered no further evidence. On 17 January 2022 the charge of computer hacking and misuse was discontinued after the prosecution offered no further evidence. [5]
  6. [6]
    At the time of the initial suspension, the respondent was a registered teacher. On 2 March 2021 the respondent teacher’s registration as a teacher was cancelled.[6]
  7. [7]
    The Tribunal may consider whether grounds for disciplinary action are established against a ‘relevant teacher’.[7] ‘Relevant teacher’ is defined to mean either an approved teacher or a former approved teacher.[8] Therefore while the respondent teacher’s status changed during the proceedings, he remains a ‘relevant teacher’ for the purposes of these proceedings.[9]  

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

  1. [8]
    The issues to be determined by the Tribunal are:
    1. whether a ground for disciplinary action is established; and
    2. if so, the appropriate sanction to be applied.
  2. [9]
    The ground for disciplinary action primarily relied upon by QCT is 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.[10]
  3. [10]
    The Act further outlines, under sections 92(2)(a) and 92(5), that the ground for disciplinary action in s 92(1)(h) applies to a relevant 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 a serious offence, and therefore would include the circumstances relating to the respondent teacher. The object is to ensure the circumstances of the charges are examined, when determining whether a teacher behaves in a way, that does not satisfy the standard of behaviour generally expected of a teacher.
  4. [11]
    ‘Standard of behaviour’ is not defined in the Education Act but has been addressed by the Tribunal in previous matters:

The ‘standard of behaviour generally expected of a teacher’ is not defined. In our view, ‘generally expected’ means by the community and by the teaching profession [referring to Queensland College of Teachers v Armstrong [2010] QCAT 709; Queensland College of Teachers v CMF (No 2) [2016] QCAT 290, [24]]…[11]

  1. [12]
    The Tribunal agrees with the observations made in Queensland College of Teachers v PPK:

The test in s 92(1)(h) is, in our view, a broad test which focuses on the behaviour of a teacher but not necessarily behaviour which occurs in the capacity of a teacher. This is made clear by the words ‘the person’ as opposed to ‘the teacher’ and by the phrase ‘whether connected with the teaching profession or otherwise’. This means that PPK’s behaviour, to be relevant, does not need to be in the context of a teacher/student relationship or otherwise to have occurred in his capacity as a teacher.[12]

  1. [13]
    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[13] and that the welfare and best interests of children should be the primary consideration in the Tribunal’s consideration of matters concerning the teaching profession.[14]
  2. [14]
    In considering the expected standard, the Tribunal must have regard to the main objects of the Education Act which are:[15]
    1. to uphold the standards of the teaching profession; and
    2. to maintain public confidence in the teaching profession; and
    3. to protect the public by ensuring education in schools is provided in a professional and competent manner by approved teachers.

Criminal charges

  1. [15]
    The initial two charges of sexual assault and soliciting child abuse material relates to the respondent teacher’s engagement with a previous student (referred to as “SJ”) who was 16 years old at the time.
  2. [16]
    SJ had previously been taught by the respondent teacher in 2018, when he was 14 years of age. SJ was a student of the respondent teacher for less than a year as he moved schools before the end of the school year.
  3. [17]
    In terms of the background to the offending, the respondent teacher and SJ interacted on a dating app for gay men called Grindr. SJ told the respondent teacher who he was and that he used to be the respondent teacher’s student. The respondent teacher confirmed that was not an issue and continued to chat to SJ on Grindr and then on other social media apps including Instagram and Snap chat.[16] A number of the messages between the respondent teacher and SJ were of an explicit and sexualised nature.
  4. [18]
    While communicating on the social media apps the respondent teacher sent and requested and received sexually explicit photographs. The photographs were of the respondent teacher and SJ’s bodies and included nudity. Some pictures were of the whole body, and others were zoomed into the genital region.[17]
  5. [19]
    While communicating on the social media apps, the respondent teacher discussed assisting SJ with driving lessons. On 5 March 2020 the respondent teacher agreed to take SJ for a driving lesson. During the lesson, while SJ was driving, the respondent teacher started to rub SJ’s thigh and genital region and attempted to undo SJ’s pants[18].
  6. [20]
    The respondent teacher then grabbed SJ’s penis in his hand and asked if he could give SJ a “blow job”[19]. SJ said “No” and the respondent teacher removed his hand from SJ’s penis.
  7. [21]
    SJ stated he was shocked when the incident occurred and did not want the respondent teacher to touch him and just tried to focus on his driving to prevent an accident. When the respondent teacher asked if he was enjoying it, he just remained silent.[20]
  8. [22]
    The respondent teacher states that he asked SJ if he could touch him and SJ said “yes, that’s fine”. He could then see that SJ looked uncomfortable when he was touching him, so he stopped and removed his hand.[21]
  9. [23]
    The charge of computer hacking and misuse relates to the respondent teacher accessing OneSchool (the portal utilised by the Department of Education to manage student records and information) to view the records of SJ.
  10. [24]
    While communicating on the social media apps SJ asked the respondent teacher whether he had any behavioural record entries on OneSchool. The respondent teacher accessed SJ’s records, utilising his departmental device, on three occasions on 29 January 2020, 7 February 2020 and 4 March 2020.  The respondent teacher then told SJ the information obtained from the OneSchool records.[22]
  11. [25]
    The respondent teacher also accessed the Oneschool records for another student on 4 March 2020. This student was previously in a relationship with SJ and had been a student at a school the respondent teacher taught at in 2017 and 2018 but was no longer a student of the department in March 2020.
  12. [26]
    The respondent teacher acknowledged these acts occurred but stated he did not believe this was breaching policy and or procedure as it was common practise for teachers to access records for students and to discuss them with students.[23]
  13. [27]
    The charges against the respondent teacher of sexual assault and soliciting child abuse material were discontinued during a committal hearing on 17 December 2021 by way of the prosecution indicting they had no evidence to offer to prove the offence (commonly known as NETO).[24]  On 17 January 2022 the charges of computer hacking and misuse was discontinued.[25]

Material provided to the Tribunal.

  1. [28]
    The Tribunal reviewed and considered the QCT’s Material which included:
    1. The application or referral – disciplinary proceedings received 22 March 2023.
    2. Affidavit of Henri Elias Rantala, Principal Legal Officer QCT, affirmed 14 March 2023, which established jurisdiction; provided the details of the criminal charges and the suspension of the respondent teacher’s registration, and set out the basis for the referral. The affidavit also sets out the material relied upon by the QCT, other orders/directions sought and the legislative requirement. The affidavit contained 32 exhibits attaching the material relied upon by the QCT.
    3. Affidavit of Henri Elias Rantala, affirmed 7 June 2023 which attached the material received from the Queensland Police Service (‘QPS’), in response to the notice to produce issued by the Tribunal on 24 April 2023.
    4. Affidavit of Henri Elias Rantala, affirmed 11 July 2023 which attached further material received from the QPS on 12 June 2023.
    5. QCT’s submissions on Ground, Sanction and non-publication orders, received on 13 October 2023.
    6. QCT’s submissions in reply received on 24 November 2023.
  2. [29]
    As the Tribunal is required to consider all evidence, the footage of the body worn camera of the execution of the search warrant and the footage of the s 93A statement of the victim child as provided by QPS was viewed by the Tribunal.
  3. [30]
    The Tribunal reviewed and considered the respondent teacher’s material which included:
    1. The respondent teacher’s statement received 28 September 2023 which confirms the respondent teacher has no further response to submit, as all information was provided to QCT in the interview, of which the transcript has been provided to the tribunal in the Affidavit of Henri Elias Rantala, Principal Legal Officer QCT, affirmed 14 March 2023 at Exhibit H.
    2. The respondent teacher’s submission received on 27 October 2023.
  4. [31]
    The QCT’s position on the grounds for disciplinary action is that the evidence establishes that the respondent teacher engage in inappropriate and sexualised conduct with student SJ by engaging with student over Grindr and Instagram; providing a  driving lesson to SJ during which the respondent teacher touched SJ on the genitals and asked if he could give SJ a “blow job” and sent explicit photographs of himself to SJ and requested and receive explicit photographs of the student via Snapchat.[26]
  5. [32]
    The respondent’s teacher largely does not dispute the circumstances as alleged by the QCT that lead to the disciplinary action and his position on the ground of disciplinary action is that the Tribunal would be satisfied that the respondent’s conduct establishes the grounds for disciplinary action.[27]

Findings

  1. [33]
    The applicable standard of proof for the Tribunal is the civil standard on the balance of probabilities. As set out in Briginshaw v Briginshaw (‘Briginshaw’)[28] the degree of satisfaction varies according to the gravity of the facts to be proven.
  2. [34]
    As stated in Briginshaw:

“… 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.”[29]

  1. [35]
    The respondent teacher has not challenged any of the applicant’s material or submissions in relation to a finding of misconduct and has made admissions to engaging in inappropriate and sexualised conduct with student SJ including by engaging with student over Grindr and Instagram; touching SJ on the genitals while providing a driving lesson and sent explicit photographs of himself to SJ and requested and receive explicit photographs of SJ.
  2. [36]
    We are satisfied to the requisite standard that this conduct was overfamiliar and inappropriate and we find that the respondent teacher has behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher and a ground for disciplinary action exists under s 92(1)(h) of the Education Act.
  3. [37]
    In relation to the respondent teacher’s use of the OneSchool records, we are also satisfied to the requisite standard that in accessing those records in the context of this matter, the respondent teacher has not behaved in a way, that would satisfy the standard of behaviour generally expected of a teacher.
  4. [38]
    While there may be occasions where it is appropriate to access OneSchool to obtain information about a student and then disclose the information to the student, this was not one of them. The respondent teacher accessed the records outside of school hours and late at night after SJ asked him about what information OneSchool held about him. SJ was not a student of the respondent teacher at the time, there was not a legitimate purpose for him to access those records. The access was not in line with standard polices and the respondent teacher had not obtained prior approval from his supervisor to communicate with SJ through social media or to provide this information which was contrary to professional guidelines.
  5. [39]
    The tribunal therefore finds that a ground for disciplinary action has been established.

Appropriate sanction

  1. [40]
    In Queensland College of Teachers v HMJ,[30] the Tribunal said:[31]

The purpose of disciplinary action is not to punish a teacher. Instead, it is to further the objects of the QCT Act. Those objects include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way. 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’.

  1. [41]
    The QCT’s position on sanction is that the respondent teacher should be prohibited from reapplying indefinitely for a teacher registration or permission to teach pursuant to section 161(2)(c) and that the respondent teacher should pay $5,839.50 to the applicant by way of costs relating to the expenses incurred by the applicant in the proceedings before the Tribunal.[32]
  2. [42]
    The respondent teacher does not agree he should be prohibited indefinitely from teaching and his position on sanction is that he should be suspended from applying for teacher registration or permission to teach for a period of time appropriately determine by the Tribunal and gives an example of six years as seen in previous cases and he should pay the applicant by way of costs an amount the Tribunal considers appropriate and reasonable.[33]
  3. [43]
    In making a determination as to misconduct and the appropriate sanction, the Tribunal must have regard to any relevant previous decision by a practice and conduct body of which the Tribunal is aware of (which includes any past relevant decisions of the Tribunal itself).[34] 
  4. [44]
    In their submissions to the Tribunal, both QCT and the respondent teacher identified previous cases to help the Tribunal with guidelines for the appropriate sanction in this matter.
  5. [45]
    Both parties referred to the following cases:
    1. Queensland College of Teachers v NRR (‘NRR’)[35] which concerned a teacher who used electronic messaging to instigate and actively maintain contact with three former students. The nature of the communications contained reference to drugs, alcohol and steroid use, intimate and sexual communications and the exchange of intimate and or sexual images. The teacher had driven a student in his car, gone to her residence and on one occasion kissed her. The Tribunal made a prohibition order of two years nine months from the date of his suspension and required a psychological report on reapplying to teach.
    2. Queensland College of Teachers v NBC[36] which concerned a 34 year old teacher who engaged in inappropriate and sexualised communication with multiple students, both in person and on messaging apps including asking for sex. He communicated from his personal email and sent inappropriate and sexually explicit photographs of himself to the student. He took a student in his car, during which he rubbed her leg and attempted to hold her hand. There was ongoing and clear signed of grooming. The conduct did not extend to sexual conduct with any student; however he did make attempts to do so, but the student’s resisted the advances. The Tribunal prohibited the teacher from re-applying to teach for six years and six months from the date of the suspension, ordered he pay costs of $2,500 and required a psychologist report on re-applying to teach. 
    3. Queensland College of Teachers v DRR[37] which concerned a 29 year old teacher who engaged in text and email communication with a 17 year old student, which continued for four months.  The messages were personal and intimate and included the teacher sending sexually explicit photographs and attempting to arrange to meet the student for sex. However, no sexual intercourse occurred. The tribunal made a 30 month prohibition order from the date of the decision and required a psychologist report on re-applying to teach.
    4. Queensland College of Teachers v IOP[38] which concerned a 24 year old teacher who communicated with two 17 year old students via messaging apps and sent and received sexually explicit photographs to two students and requested they send photographs. Some of the explicit photographs were taken by the teacher whilst at school and some messages referenced the teacher getting sexually aroused by seeing the student at school. The Tribunal prohibited the teacher from applying to teach indefinitely.
    5. Queensland College of Teachers v DGM (“DGM’)[39] which concerned a teacher in his thirties sending sexually explicit messages and had sexual intercourse with a 17 year old student. The teacher used false names and gave money to the student to provide a false version of events. He also engaged in inappropriate conduct with another student aged 15 and took both students to his home where he was alone with them for tutoring.  The teacher refused to accept responsibility for his actions, and actively encouraged the 17 year old student to lie to protect him and rewarded her when she did. The Tribunal made a four year suspension order from the date of the order (nearly six years in total as the teacher had been suspended nearly two years at that time) and required a psychologist report on reapplying.
    6. Queensland College of Teachers v WAS[40] which concerned a 36 year old teacher who exchanged romantic and sexual Facebook messages with a vulnerable 16 year old student and gave her gifts. The teacher had sexual intercourse with the student on at least three occasions. The Tribunal made a six year prohibition order and required a psychological or psychiatric report upon reapplying to teach.
  6. [46]
    In addition the QCT referred to the following additional cases:
    1. Queensland College of Teachers v REC[41] which concerned a young 22 year old relief teacher who exchanged intimate and sexual images with a 16 year old student over a two month period. He had taken the student in his vehicle, kissed her and attended her house on two occasions but no other sexual contact occurred. The respondent teacher cooperated with the process, assisted with an agreed statement of facts, demonstrated remorse and insight and had engaged in counselling soon after the suspension. The Tribunal made a 12 month prohibition order and required a psychologist’s report before granting any future permission to teach.
  7. [47]
    In addition the respondent teacher referred to the following additional cases:
    1. Queensland College of Teachers v ALE[42] which concerned a 26 year old teacher who sent sexually explicit and photographs to a student and had sexual intercourse with a 16 year old student on multiple occasions. The teacher drove the student in his car to the locations to have sex. The teacher was suspended from teaching for four years from the date of the order (five years and two months in total as he had been suspended for 14 months at the date of the hearing) and required a psychiatrist report upon reapplying.
    2. Queensland College of Teachers v Armstrong[43] which concerned a teacher who had been found to exhibit grooming behaviour of three minors, under the age of 12 years including allowing special favours and buying gift. No sexual contact occurred. The Tribunal made a five year suspension order from the date of the decision.
    3. Queensland College of Teachers v FPD[44] which concerned a teacher contacting a former student on the phone, sending sexual messages and images. The teacher drove the student in his vehicle, allowed her to drive and engage with sexual intercourse with her.  He also took sick leave days from teaching at school to go on “dates” with the student. The teacher had previous sanctions against them for breaching professional boundaries at another school. The teacher also engaged in dishonest contact by creating a fake email address of the manager of professional standards and sent a fake email to his school authority. The teacher was prohibited from reapplying to teach indefinitely.
    4. Queensland College of Teachers v TSV[45] which concerned a teacher breaching professional boundaries including driving an ex-student in the vehicle, kissing her on the lips and trying to pressure her to engage in a sexual relationship with him. The teacher was undergoing cancer treatment at the time of the conduct occurring.  The tribunal made a two year prohibition order and required a psychologist report on reapplying.
  8. [48]
    When determining sanction, the Tribunal has said:[46]

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.

  1. [49]
    We have considered the various previous decisions of the Tribunal drawn to our attention. However, as is to be expected, no two matters are the same and while there are similarities in some of these cases, there is no case drawn to our attention where the conduct is directly comparable to this case. Caution also needs to be taken in referring too much to the past decisions which are several years old, as the penalties have increased in the past 10 years as have community expectations and concerns about the need for significant penalties for this type of inappropriate conduct.
  2. [50]
    The QCT submits that the following aggravating factors should be taken into account when considering sanction:
    1. The respondent teacher’s breach of professional boundaries in communicating with the student on social media, arranging a driving lesson alone with the student without informing anyone, providing information from the OneSchool data base and then moving into physical sexual contact and exchanging sexualised and naked images.
    2. The vulnerability of the student and the potential for harm.
    3. The experience of the teacher in that he had just over three years’ experience and completed mandatory training on four occasions which includes the code of conduct of the public service and the department’s standard of practise.
    4. The respondent teacher’s lack of insight and remorse, in that while he acknowledged the inappropriate behaviour, he states he is a trustworthy person who did not intend on harming anyone and instead of focusing on the impact to SJ, complained about the hardship on himself due to the suspension and investigation.
  3. [51]
    The respondent teacher has indicated that he is willing to be analysed by a psychologist to be examined as to his current risk to society and submit the report to the Tribunal to use to determine the correct punishment, but has not sought to engage with any psychologist, and provided no report.
  4. [52]
    The respondent teacher also indicated he would like the Tribunal to have the chance to hear from his former and current colleagues about his professional behaviour and general behaviour in a work environment but has not submitted any character references for the Tribunal to consider.
  5. [53]
    The respondent teacher had stated he apologises to SJ, he is regretful for the incident and that those involved had to go through such circumstances. He states he takes responsibility for his actions and believes that what he did was wrong. He has learnt through the process what is acceptable for a teacher, and he will never again try to put anyone else in a situation similar to this one that could cause harm to them physically, mentally and psychosocially.
  6. [54]
    The Tribunal considers the following factors to be relevant to the appropriate disciplinary action to be imposed:
    1. The conduct involves increasing breaches of professional boundaries, from communicating with the student in the first place on social media, to providing information from the OneSchool data base to the student, taking the student alone on driving lessons without consent from a parent or the school, to the sexual conduct and sexually explicit messages and photographs.
    2. The conduct does not include repeated sexual intercourse, unlike some of the more serious comparatives.
    3. However similar to the conduct in NRR, the respondent teacher was seeking to progress the relationship with the student from messages and images to a more physical sexual conduct, and the only reason the sexual relationship had not advanced further, was due to the student resisting the advances.
    4. However, unlike some of the other more serious cases, there did not seem to be a suggestion of predatory behaviour by the respondent teacher. The teacher did not “select” this student through being their teacher or seeing them at school and groom them into the sexual conduct. While there was still elements of grooming in the respondent teacher’s behaviours, he appeared to be acting from an inappropriate and mistaken belief that SJ was also seeking a “consensual” sexual relationship with him.
    5. The conduct was over a relatively short period for a couple of months, but this is not due to any change of position of the respondent teacher or insight into his behaviour, but because the conduct was discovered, and the teacher was ultimately arrested and charged with criminal offences as a result of the conduct.
    6. From the evidence provided, SJ is the only student the respondent teacher was inappropriate with, unlike in some of the comparable cases provided which involved multiple student victims.
    7. The power imbalance between the respondent teacher and the student.  While the teacher was only in his mid-twenties, there is still a significant power imbalance between the two. In DGM, 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 the student may influence this that student for life. Consequently, the community expects these powers to be exercised appropriately.[47]

  1. While the respondent teacher was a relatively young teacher there was still an imbalance in age, experience and maturity and the respondent teacher had a position of power and influence over the student by virtue of his role as a teacher.
  2. Notwithstanding the fact that in this case the respondent teacher commenced the inappropriate conduct after seeing the student on a website which is generally used for dating and sexual relationship for male adults over 18 years of age, which may have lead the respondent teacher to believe that SJ was seeking a sexual relationship with him or other men, given the significant power imbalance, the respondent teacher should have not engaged with SJ, or ended any communication which commenced. The fact SJ was on this site is neither a legitimate excuse nor a mitigation factor.
  3. The vulnerability of SJ as a 16 year old and the impact of the respondent teacher’s behaviour on SJ, both at the time and throughout his life.
  4. The fact the respondent teacher had been registered for three years and conducted numerous trainings on professional expectations. The Tribunal does not accept that the teacher was “still learning” or did not know (or should not have known) that this conduct was unacceptable and would lead to disciplinary proceeding. This was not the teacher’s first year, and he should have known communicating with a 16 year old student on social media site of any kind, let alone one known for dating/sexual encounters was not appropriate and having sexual contact and/or sending and receiving sexually explicit messages and photographs with a 16 year old was a gross breach of trust and clearly not appropriate or allowed.
  5. The respondent teacher’s young age and limited teaching experience does however give the Tribunal belief that rehabilitation is a possibility, and that the teacher can make the necessary changes to ensure he does not continue to pose a risk to children.
  6. The respondent teacher has not challenged the allegations and has made relative full and frank admissions during the QCT’s investigation. The Tribunal does not put any weight on the fact the respondent teacher did not partake in a record of interview with the police when they approached him. That is the respondent teacher’s right, and many people decline a record of interview with police on legal advice and this does not necessary indicate a lack of remorse or insight.
  7. The respondent teacher has not disputed any significant facts and agreed to the matter proceeding on the papers which has reduced the impact on potential witnesses and has made the proceeding more efficient.
  8. While some of the respondent teacher’s comments in the interview with the department demonstrate a lack of insight or true remorse for his actions and the impact on SJ, during the proceedings, the respondent teacher did apologise to SJ. He also indicated he understands it can cause harm to a student mentally, physically and psychosocially, although did not go into any real detail of this understanding.
  9. The respondent teacher has been suspended for a significant period already since 26 March 2020.
  10. The respondent teacher has indicated a willingness to engage with a psychologist and desire to demonstrate that he has been rehabilitated and will not poses a further risk so he can teach again. However, while he has this desire, he has not taken any real steps to progress towards this in the nearly five years that he has been suspended.
  11. There is no previous disciplinary history of which the Tribunal is aware.
  1. [55]
    The Tribunal has placed no weight and or has not taken into consideration the following factors in considering the appropriate penalty:
    1. The suggestion that the respondent teacher gave SJ favourable treatment when he was his teacher. This is denied by the respondent teacher and QCT does not wish to pursue this issue with any force.
    2. The fact that the victim in this matter was a male and the comparative decisions provided all have female victims. The respondent teacher’s sexual orientation is of no relevance to the tribunal.  Equal weight should be and is placed on the behaviours whether it is with a female or a male student. The   inappropriate conduct is the breach of boundaries and the sexual conduct and sending and receiving of sexualised messages and photographs, regardless of the sex of the student involved.
  2. [56]
    In the present case, considering all of the circumstances and above factors, the Tribunal does consider this a serious breach of trust requiring a significant penalty. The penalty needs to send a clear message to the respondent teacher, and the teaching community as a whole that engaging with students on social media sites such as these and sending and receiving sexually explicit images and attempting to pursue a sexual relationship or sexual contact with a student is completely inappropriate and a clear breach of trust which will result in length suspensions from teaching. However the Tribunal does consider the respondent teacher is able to be rehabilitated and make the necessary changes to ensure he does not pose a risk to children, and the facts are not so severe, considering as a whole the penalties imposed in other like matters, that he should be prohibited from teaching indefinitely.
  3. [57]
    The respondent teacher’s registration is already cancelled and in all of the circumstances, the Tribunal considers that the respondent teacher should be prohibited from seeking registration or permission to teach for six years. The Tribunal considers that the period should commence from the date of the respondent teacher’s suspension, that is 26 March 2020 rather than the date of hearing, meaning the respondent teacher is unable to seek permission to teach until 26 March 2026.
  4. [58]
    Given the circumstances of the case including the lack of demonstrated insight and remorse and acknowledgement of boundary violations, the Tribunal considers it appropriate, pursuant to s 160(2)(h) and s 160(2)(k) of the QCT Act, to impose a condition on the respondent teacher’s permission to teach that, prior to returning to teach, the respondent teacher must provide a psychologist’s report, satisfactory to the applicant, which provides the results of any risk assessments completed and the psychologist’s professional opinion regarding the likelihood, if any, of the respondent teacher engaging in conduct that would be contrary to the need to protect children and young people from physical, psychological or emotional harm. The report will also need to address whether the psychologist is satisfied the respondent teacher has adequately understood and addressed the following matters:
    1. differentiating between personal and professional relationships;
    2. the legal obligations of teachers and tutors;
    3. the concept, and importance, of professional boundaries;
    4. the development and maintenance of professional standards and professional boundaries when working with students and how to actively be determining and implementing professional boundaries with individual students;
    5. an awareness of what constitutes appropriate and inappropriate communication and behaviour with students.
    6. the impact of inappropriate communication, conduct and relationships upon students, families, schools and the profession;
    7. the need to protect children and students from physical, psychological and emotional harm;
    8. risk assessment and early identification of potentially problematic situations and venues;
    9. how to achieve realistic solutions to avoid the risk of harm to students;
    10. the power granted to a teacher;
    11. the extent and nature of trust invested in a teacher by students, colleagues, parents and the community;
    12. conduct that would compromise the professional standing of a teacher and the teaching profession; and
    13. the importance of full adherence to the Queensland College of Teachers Code of Ethics.
  5. [59]
    In providing the report, it will be important that the psychologist has a full understanding of the matter and the behaviour constituting misconduct so the respondent teacher should ensure the psychologist is provided with copies of the Tribunal’s orders and reasons for decision; and the referral of disciplinary proceedings under s 97 of the Act.
  6. [60]
    The respondent teacher must bear all costs associated with obtaining this treatment, assessments and report.

Costs

  1. [61]
    The QCT sought the respondent teacher pay costs of $5,839.50 to QCT, pursuant to section 161(2)(b)(ii) of the Education Act, for the expenses occurred by the QCT in the proceedings before QCAT.
  2. [62]
    The respondent teacher does not overly dispute that there should be an order as to costs but simply states that he should have to pay an amount that Tribunal considers appropriate having regard to the expenses incurred by the applicant in the proceeding, that is reasonable and relevant to the case and should be comparable to other decisions before the Tribunal.
  3. [63]
    The starting point for costs is that each party must bear their own costs.[48] However, the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.[49] There have been divergent views expressed in the decisions of the Tribunal as to whether it is in the interest of justice to award costs in these type of discipline matters.
  4. [64]
    Section 102 (3) sets out the factors the tribunal may have regard to in determining whether to award costs. In relation to this matter, in this regard:
    1. There is no evidence that respondent teacher acting in a way that unnecessarily disadvantages QCT to the proceeding. The respondent teacher largely acknowledged the allegations and agreed to the matter being determined on the papers.
    2. The matter is neither more nor less complex than equivalent disciplinary matters.
    3. In relation to the relative strengths of the claims made by each of the parties to the proceeding; clearly the Tribunal has found that the allegation made have been substantiated and the ground for disciplinary action established.
    4. Section 102(3)(d) does not apply as this is not a review matter.
    5. There is no information about the respondent teacher’s financial circumstances. It is noted that the respondent teacher has not worked as a teacher for nearly five years and given the nature of the suspension there will be a further two years before he can do so. He has however not raised any issues of hardship in relation to the suggestion of payment of costs.
    6. In relation to other relevant factors, the QCT states that it is funded by registration fees of approved teachers in Queensland and not from consolidated revenue for the State of Queensland and submits: ‘It would be unreasonable to expect approved teachers in good standing to subsidise the respondent’s misconduct’.
  5. [65]
    In the circumstances of this matter, particularly the considerations outlined relevant to s 100 and s 102(3)(e) and (f) of the QCAT Act, the factors in favour of making a cost order outweigh those against the making of an order for costs.
  6. [66]
    The QCT has itemised its costs, which total $5,839.50. The costs however noted that the last three costs which make up a substantial part of the costs had not been billed and were projected future costs.  These costs relate to a proposed direction hearing and the cost of the tribunal making a decision on the discipline application. In terms of the Tribunal making the decision, it was unclear from the costs statement how this is “expenses incurred by the college” when the matter was determined on the papers.
  7. [67]
    While the Tribunal agrees that is it in the interest of the justice for the respondent to contribute to the costs involved in the proceedings given the QCT is not funded and the funding comes from the registration fees of teachers, the vast majority of whom perform an important role in ethically educating children and it would not be fair to expect they subsidies the respondent’s misconduct, this does not mean the respondent teacher should pay for the costs of the Tribunal deciding the matter, when it was determined on the papers and required no appearance by the parties.
  8. [68]
    The respondent teacher did not contest he had engaged in inappropriate conduct and agrees there were grounds for disciplinary action. In the circumstances the Tribunal agrees while the respondent teacher should contribute to the costs, the interest of justice does not warrant the respondent to have to pay for the Tribunal to sit to determining the matter.
  9. [69]
    The costs of the QCT, deducting the cost of the Tribunal decision and writing the decision and a direction hearing which had not occurred as of October 2023 (when the QCT submissions were filed) is $2,436.
  10. [70]
    Accordingly the Tribunal orders the respondent teacher to pay costs in the amount of $2436.

Non-publication 

  1. [71]
    It is noted that a prior determination was made on 12 June 2023 that it would be contrary to public interest for information to be published that would identify the teacher, or any complaint, or the school. It is considered by the Tribunal that a permanent order should now be made under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to protect the complainant in this matter, noting the complaint involves allegations of sexual abuse of a minor.
  2. [72]
    The applicant submits that, if a section 66 order is made, that there should be sharing of information for very particular purposes under the Education Act, including to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education Act, and to allow Teacher ELP to provide the decision to any regulatory authority or employer in compliance with any disclosure requirements. It would also be important for the respondent teacher to be able to provide material to the psychologist to enable this treatment, assessment and report. The order is made having regard to that submission.
  3. [73]
    Accordingly, the Tribunal makes a non-publication order in respect thereof, in similar terms to the order made on 12 June 2023, having regard to the above exemption necessary for compliance with this order and purposes under the Education Act.

Orders

  1. [74]
    The tribunal orders are as follows:
  1. The disciplinary ground in section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
  2. The respondent teacher is prohibited from reapplying for registration or permission to teach until 26 March 2026.
  1. Pursuant to s160(2)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) there be a condition on the respondent teacher requiring any further re-application for registration or permission to teach to include an independent psychological report, satisfactory to the Applicant, which addresses the following:
    1. Whether the psychologist is satisfied the teacher has addressed the following matters:
      1. differentiating between personal and professional relationships.
      2. the legal obligations of teachers and tutors.
      3. the concept, and importance, of professional boundaries;
      4. the development and maintenance of professional standards and professional boundaries when working with students and how to actively determine and implementing professional boundaries with individual students;
      5. an awareness of what constitutes appropriate and inappropriate communication and behaviour with students;
      6. the impact of inappropriate communication, conduct and relationships upon students, families, schools and the profession;
      7. the need to protect children and students from physical, psychological and emotional harm;
      8. risk assessment and early identification of potentially problematic situations and venues;
      9. how to achieve realistic solutions to avoid the risk of harm to students;
      10. the power granted to a teacher;
      11. the extent and nature of trust invested in a teacher by students, colleagues, parents and the community;
      12. conduct that would compromise the professional standing of a teacher and the teaching profession; and
      13. the importance of full adherence to the Queensland College of Teachers Code of Ethics.
    2. The results of any risk assessments completed and the psychologist’s professional opinion regarding the likelihood, if any, of the respondent teacher engaging in conduct that would be contrary to the need to protect children and young people from physical, psychological or emotional harm.
    3. Confirmation that the psychologist was provided with copies of:
      1. the Tribunal’s orders and reasons for decision; and
      2. the referral of disciplinary proceedings under section 97 of the Act.
  2. The respondent teacher must bear the costs of obtaining and providing the psychologist’s report.
  3. Pursuant to section 160(2)(f) of the Education (Queensland College of Teachers) Act 2005 (Qld) the respondent must pay $2,456.00 towards the applicant’s costs.
  4. Under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), other than to the parties to this proceeding or as allowed in order 7, and until further order of the Tribunal, publication is prohibited of any information that may identify the respondent teacher, a relevant complainant, or the relevant school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations pursuant to sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).
  5. The respondent teacher may provide a copy of this decision to:
    1. any psychologist in order to comply with order 3; or
    2. to any regulatory authority or employer in compliance with any disclosure requirements.

Footnotes

[1]  Affidavit of Henri Elias Rantala affirmed on 14 March 2023 at [3] and Exhibit B.

[2]  Ibid, Exhibit D.

[3]  Ibid, Exhibit E: Queensland College of Teachers v Teacher ELP (2023) OCR083-20 unreported:

[4]  Affidavit of Henri Elias Rantala affirmed on 14 March 2023 at Exhibit C.

[5]  Ibid, Exhibit F &G.

[6]  Ibid, Exhibit A.

[7]  Education Act s 92.

[8]  Ibid, Schedule 3.

[9]  Ibid, s 97.

[10]  Ibid, s 92(1)(h).

[11] Queensland College of Teachers v PPK [2019] QCAT 59, [13], and see [36].

[12]  Ibid, [35].

[13]  Ibid.

[14] Queensland College of Teachers v Armstrong [2010] QCAT 709, at [34]-[36]; Education Act, s 233.

[15]  Education Act s3.

[16]  Affidavit of Henri Elias Rantala affirmed on 14 March 2023 exhibit H.

[17]  Ibid, pages 427 and 437.

[18]  Ibid, page 109.

[19]  Ibid, page 507.

[20]  Ibid, page 108-109.

[21]  Ibid, pages 461,465 and 469.

[22]  Ibid, pages 397 and 405.

[23]  Ibid, pages 405 and 418.

[24]   Affidavit of Henri Elias Rantala affirmed on 14 March 2023, Exhibit F; Affidavit of Henri Elias Rantala affirmed on 7 June 2023, Exhibit I.

[25]  Affidavit of Henri Elias Rantala affirmed on 14 March 2023, Exhibit G.

[26]  QCT submission on ground and sanction [73].

[27]  The Respondent’s written submissions in response [3].

[28]  [1938] HCA 34; 60 CLR 336.

[29]  Ibid, at page [362].

[30]  [2016] QCAT 447. 

[31]  At [59]. 

[32]  Ibid [81]-[83].

[33]  Ibid.

[34] Education Act s158(2).

[35]  [2020] QCAT 178.

[36]  [2015] QCAT 246.

[37]  [2012] QCAT 671.

[38]  [2022] QCAT 241.

[39]  [2018] QCAT 194.

[40]  [2015] QCAT 61.

[41]  [2020] QCAT 178.

[42]  [2019] QCAT 143.

[43]  [2010] QCAT 709.

[44]  [2023] QCAT 240.

[45]  [2015] QCAT 186.

[46] Queensland College of Teachers v WAS [2015] QCAT 61, [38]. 

[47]  [34].

[48]  QCAT Act, s 100.

[49]  Ibid, s 102.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher ELP

  • Shortened Case Name:

    Queensland College of Teachers v Teacher ELP

  • MNC:

    [2025] QCAT 61

  • Court:

    QCAT

  • Judge(s):

    Member D Brown Presiding

  • Date:

    30 Jan 2025

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
Queensland College of Teachers v ALE [2019] QCAT 143
2 citations
Jump To
Cite 1 - [2019] QCAT 143
Cite 2 - [2019] QCAT 143
Queensland College of Teachers v Armstrong [2010] QCAT 709
4 citations
Jump To
Cite 1 - [2010] QCAT 709
Cite 2 - [2010] QCAT 709
Cite 3 - [2010] QCAT 709
Cite 4 - [2010] QCAT 709
Queensland College of Teachers v CMF (No. 2) [2016] QCAT 290
2 citations
Jump To
Cite 1 - [2016] QCAT 290
Cite 2 - [2016] QCAT 290
Queensland College of Teachers v DGM [2018] QCAT 194
2 citations
Jump To
Cite 1 - [2018] QCAT 194
Cite 2 - [2018] QCAT 194
Queensland College of Teachers v DRR [2012] QCAT 671
2 citations
Jump To
Cite 1 - [2012] QCAT 671
Cite 2 - [2012] QCAT 671
Queensland College of Teachers v FPD [2023] QCAT 240
2 citations
Jump To
Cite 1 - [2023] QCAT 240
Cite 2 - [2023] QCAT 240
Queensland College of Teachers v HMJ [2016] QCAT 447
2 citations
Jump To
Cite 1 - [2016] QCAT 447
Cite 2 - [2016] QCAT 447
Queensland College of Teachers v IOP [2022] QCAT 241
2 citations
Jump To
Cite 1 - [2022] QCAT 241
Cite 2 - [2022] QCAT 241
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 NRR [2021] QCAT 152
1 citation
Jump To
Cite 1 - [2021] QCAT 152
Queensland College of Teachers v PPK [2019] QCAT 59
2 citations
Jump To
Cite 1 - [2019] QCAT 59
Cite 2 - [2019] QCAT 59
Queensland College of Teachers v REC [2020] QCAT 178
3 citations
Jump To
Cite 1 - [2020] QCAT 178
Cite 2 - [2020] QCAT 178
Cite 3 - [2020] QCAT 178
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
3 citations
Jump To
Cite 1 - [2015] QCAT 61
Cite 2 - [2015] QCAT 61
Cite 3 - [2015] QCAT 61

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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