Queensland College of Teachers v DGM [2018] QCAT 194

...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;

[7] Section 92(1)(h) was a recent amendment to the disciplinary ground,[8] which previously provided that a disciplinary ground was established when a teacher 'is not suitable to teach'. The amendment to s 92 and other relevant provisions was effective from 8 September 2016. The transitional provisions do not apply to the circumstances in this matter.[9] Accordingly, the referral to the Tribunal is on the amended ground for discipline under s 92(1)(h).

The disciplinary ground in s 92(1)(h)

[8] The ground, as amended, imposes a higher threshold. The ground is established if the teacher behaves in a way that does not satisfy the standard of behaviour generally expected of a teacher. Conduct that falls short of the standard of behaviour generally expected of a teacher may not necessarily have resulted in a finding that a teacher was unfit to teach.

That the amended ground is wider in scope and applies to a broader range of conduct is reflected in the Explanatory Notes to the amending legislation which providesThe clause amends section 92(1)(h) to clarify what is meant by "not suitable to teach" as a ground for disciplinary action. The revised definition covers lower end behaviour (for example that may warrant a reprimand) through to significant misconduct (for example that may lead to suspension or cancellation).[10]

[9] In this case, the parties have filed a Statement of Agreed Facts and Matters,[11] and Joint Submissions on Sanction.[12] The parties have agreed that the ground in s 92(1)(h) has been established. For reasons below, the Tribunal finds the ground in s 92(1)(h) is established.

[10] The parties agreed to the following sanction:

• (a) Cancellation of registration;

• (b) Prohibition from applying for registration or permission to teach for a period of six years from 9 September 2016, the date of suspension of DGM's registration;

• (c) The Register of Teachers is to be endorsed with a notation requiring evidence of completion of certain courses and a report by a psychologist approved by the College accompany any application for registration; and

• (d) No costs be awarded in recognition of the respondent's co-operation by agreeing to the factual matters and by avoiding an oral hearing.[13]

[11] The parties also agreed that there be a non-publication order under s 66 of the Queensland Civil and Administrative Act 2009 (Qld) ('QCAT Act').[14]

Was the disciplinary ground in s 92(1)(h) established?

[12] Although the parties have agreed the ground is established, the Tribunal must be satisfied on its own assessment of the relevant facts and circumstances that a disciplinary ground exists.

[13] The parties filed an agreed statement of facts.[15] The following is a listing of the facts taken from that statement of agreed facts and from the Investigation Report produced pursuant to s 175 and s 176 of the Education Act.[16]

[14] DGM was born on 10 February 1983. He held teacher registration from 11 January 2006 until 12 April 2018. The Department of Education and Training ('DET') employed him from 2006 until 12 May 2017.

[15] In December 2013 DGM completed online Code of Conduct and Ethical Decision-Making programs and an online Student Protection Training and Annual Student Protection Training update.

[16] At the time of the relevant conduct DGM was employed as Marine Co-ordinator (in charge of the marine science and aquatic practices programs), a biology teacher and a year 10 science teacher at X State High School.

[17] Student A was a 17-year-old student in DGM's year 12 biology class in 2015 at X State High School. Student B was a 15-year-old grade 11 student at X State High School. Student B had a direct teacher-student relationship with DGM until she asked to be moved from his class and changed to a different subject.

[18] During 2015 and 2016, while employed as a teacher at X State High School, DGM engaged in an inappropriate relationship with Student A, including (but not limited to):

• (a) Sometime during October/November DGM exchanged mobile telephone numbers with Student A;

• (b) On or around 5 November 2015, DGM commenced frequent and ongoing text message communication with Student A. In November 2015, for example, more than 60 phone calls were made, one of which went for 85 minutes and others for over 50 minutes, and 38 SMS were made;

• (c) On one or more occasions during November 2015, without informing or seeking permission from the school or Student A's parents, DGM:

  • (i) Collected Student A from her home after school;
  • (ii) Drove Student A to his home;
  • (iii) Conducted a private tutoring session with Student A at his home for around 1 to 2 hours while no other person was present;
  • (iv) Drove Student A back to her home.

• (d) On or around 6 and 7 November 2015, without informing or seeking permission from the school or Student A's parents, DGM:

  • (i) Collected Student A from a party held at another year 12 student's house sometime between 8.00pm and 11.00pm.
  • (ii) Drove Student A to his house;
  • (iii) Conducted a private tutoring session with Student A at his home while no other person was present;
  • (iv) Drove Student A back to the house where the party had been. There was disagreement as to when Student A returned to the party. A friend who was at the party and stayed the night and who was getting ready for work the next day told investigators she saw Student A being dropped back at 5am. DGM maintains he dropped her back around 11:30pm the same night he collected her.

• (e) On numerous occasions during November 2015, DGM met with Student A at his home, outside of school hours and while no other person was present, where he and student A socialised, watched movies and ate meals together.

• (f) On occasions during November 2015, DGM met with Student A at his home and engaged in sexual intercourse.

• (g) From November 2015 until mid-2016, DGM engaged in an ongoing sexual relationship with Student A.

• (h) From November 2015, DGM engaged in social media communication (including Facebook Messenger, KIK and Snapchat) with Student A that was inappropriate and/or sexual in nature.

• (i) On occasions during 2015 and 2016, DGM engaged in discussions with Student A regarding Queensland Police Service ('QPS'), DET and College investigations into this matter.

• (j) DGM took steps to conceal his relationship with Student A, including (but not limited to);

  • (i) During 2015/2016, communicated with Student A via social media (including KIK and Snapchat) under false names/aliases.

• (k) During 2016, DGM gave Student A $250 in cash.

[19] It can be inferred from records of messages, although disputed by DGM,[17] that the $250 cash was given to Student A as a reward for providing a version of events surrounding their contact that DGM believed would protect him. A KIK communication was recovered from the alias 'Fraser Williams' to Student A which says:

If you tell me you did the very best you can to protect me then I believe you and the upfront cash is yours to spend as you wish.

[20] Student A said in relation to this message:

Well, he bought me some jewellery as a reward for what I said...to the people who interviewed me.

[21] Student A went on to clarify that DGM gave her the cash because he did not want to give her the jewellery. He had preferred to give her the money so she could buy it herself. Student A used the money to buy herself a Tiffany necklace.

[22] During 2015, DGM engaged in inappropriate conduct with Student B which included (but was not limited to):

• (a) During semester 1 of 2015, DGM sent messages to Student B via Facebook Messenger.

[23] These messages were sent at night and were overly familiar and intrusive. Student B also reported an incident on a boat excursion when DGM rubbed her back which made her feel uncomfortable. Student B said that DGM had said words to her to the effect of, 'lick me, I'm salty' and the next day had made a gesture towards her of licking his finger. Student B told her father who then made a complaint to the school because, in his view, the gesture and statement was a reference to fellatio.

[24] Student B was subsequently removed from DGM's class at her request.

Conclusion as to whether disciplinary ground established

[25] DGM's conduct is very disturbing on a number of levels.

[26] DGM abused the position of trust he held as teacher of Student A and, to a lesser extent, Student B. He engaged in conduct clearly designed to 'groom' Student A for the purposes of his own sexual gratification. This conduct was known by him to be wrong and he confused Student A, not only by having her engage in such conduct, but in making her complicit in covering their tracks, deceiving the school, her friends and, more importantly, her parents and, as we have found, in rewarding her with money when she lied to protect him.

[27] DGM, for many months, not only refused to accept responsibility for his actions, but actively encouraged Student A to lie to protect him and rewarded her when she did. When he did accept some responsibility it was only once the investigation commenced, and then only for inappropriate messaging and after hours tutoring. Moreover, DGM tried to justify his conduct by saying that all of his actions were taken in the best interests of students at the time and blamed the Department for his transgressions, saying there had been inadequate training, in particular around the Code of Conduct and Standard of Practice.

[28] Throughout the investigation process, and in the lead up to the hearing, DGM denied having sexual intercourse with Student A. In his Response to the Show Cause letter of 4 July 2016 DGM admitted only to tutoring Student A at his home and said that this was 'the single worst decision I have made in my 11 years as a teacher'. He then stated:[18]

I have engaged actively, openly and honestly with the department throughout my suspension. I engaged with the interview process in an open and forthright manner. All of the steps I have taken since my suspension in November 2015 have been to support this process as actively as I can; to be honest and to admit errors in judgment.

[29] There is no admission in a further letter from DGM responding to a letter dated

23 February 2017 asking him to respond to a notice to show cause on a proposed penalty of termination of employment.[19] Neither is there any mention of the conduct in the letter from DET to DGM on 10 May 2017, terminating his employment.

[30] DGM also shows a disturbing lack of concern for the short-term and long-term consequences of his actions on Student A. Student A has said that her year 12 was terrible. She was allegedly the subject of gossip and bullying by other students, which included having her formal photographs labelled for collection with the name 'DGM'. DGM while noting with 'concern' the treatment suffered by Student A in her final year of school stated:[20]

...with respect, I am not responsible for the actions of others and question what investigation the school undertook into unauthorised access to the photographs to identify the culprit.

[31] We find DGM's response superficial and illustrative of either a complete lack of insight or a deep callousness and disregard for Student A's emotional welfare.

[32] DGM, on the other hand, said that his treatment by the Department has exacerbated his depression. When asked to respond to the proposal that his employment be terminated, DGM submitted:[21]

...if having carefully considered my submission you are still of a mind to end my career with the department, I invite you to consider making an offer of a confidential financial settlement in exchange for my resignation rather than terminating my employment and dealing with an application to the Queensland Industrial Relations Commission for reinstatement and subsequent protracted proceedings.

[33] DGM has submitted previously that circumstances at the time affected his ability to exercise sound judgment. These included the pressure he felt to assist Student A given the proximity of final exams, the theft of his boat and the custody arrangements in place with his children.

[34] In our view, none of these circumstances lessens the seriousness of the conduct or provides an excuse for it. Teachers hold a special position of trust arising from the nature of their work. In particular, teachers exercise powers that have a significant impact on the lives of students. How teachers behave towards a student may influence that student for life. Consequently, there is a community expectation that these powers will be exercised appropriately. DGM's conduct suggests a complete lack of insight into the special position of trust he occupied, of the vulnerability of the students in his care, and of the consequences of his conduct.

[35] We find that DGM behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher and, accordingly, that the disciplinary ground in

s 92(1)(h) has been established.

[36] The parties agreed to a sanction which included cancellation of DGM's registration, a six-year prohibition from the date of suspension and a notation upon the Register of Teachers.[22] Since then DGM's registration has been cancelled for non-payment of his annual registration fees. As DGM is now a 'former approved teacher', the orders we can make are those prescribed by s 161 of the Education Act.

[37] In arriving at an appropriate order we have taken into account the purpose of the Education Act,[23] and, in particular, of disciplinary proceedings.[24] We have had regard to other like decisions of the Tribunal concerning s 161.

[38] In Queensland College of Teachers v TSV it was said:[25]

The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way (Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1).) It is essential that persons registered as teachers do not pose a risk of harm to children (Queensland College of Teachers v Genge [2011] QCAT 163 at [12].) 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" (Queensland College of Teachers v Brady [2011] QCAT 464 at [55].)

[39] The College has referred to a number of cases involving a teacher engaging in a sexual relationship with a student or recently graduated student. However, these cases were decided under the former s 92(1)(h) ground, that 'the teacher is not suitable to teach'. Of those, in respect of the cases decided prior to 16 January 2012, the Tribunal's power to make an order prohibiting a teacher for re-applying for registration was limited to 5 years from the day the order was made. Since that time, the Tribunal has had the power to prohibit a teacher from re-applying for registration for a stated period from the date the order is made or indefinitely.[26] This legislative change to permit the prohibition of a person indefinitely, as opposed to a maximum 5 year period, in our view, lessens the value of those cases decided prior to 16 January 2012. In those cases any period of prohibition had to be determined within a 5 year spectrum which meant the very worst cases could only ever have a 5 year limit imposed. This constraint now no longer exists.

[40] In Queensland College of Teachers v SGS,[27] a recent case with similar facts, a 42-year-old teacher engaged in a longstanding sexual relationship with a 17-year-old student. The relationship started soon after the teacher was transferred to a different school but while the student was still at school and continued after graduation. There the order made was a seven-year prohibition from the date the teacher's provisional registration lapsed, notation on the Register and $2500 costs. In Queensland College of Teachers v RTM,[28] a seven-year prohibition from the date of the order, notation on the Register and a $5000 costs order was imposed in circumstances where a 35-year-old teacher engaged in a large volume of over-familiar phone calls and text messages with a year 11 student he taught. A sexual relationship commenced when the student was in year 12 and continued for five months after graduation.

[41] The parties have jointly submitted that the proposed sanction fell within the permissible range of sanctions and that it was appropriate for the Tribunal to make an order accordingly.[29] Given recent decisions by the High Court relating to agreed penalties, it is appropriate to consider whether the Tribunal should accept such submissions and, if so, how they may be used.

Agreed Penalties: criminal prosecution vs civil penalty proceedings

[42] In Barbaro v R,[30] the High Court held that the practice of criminal prosecutors providing a range of sentences the Crown considered appropriate in the circumstances was wrong in principle and should no longer be followed.[31] The Full Federal Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union extended the application of this approach to the imposition of civil penalties under the Building and Construction Industry Improvement Act 2005 (Cth).[32] However, the decision was overturned by the High Court. The High Court held:[33]

...the decision in Barbaro does not apply to civil penalty proceedings and a court is not precluded from receiving and, if appropriate, accepting an agreed or other civil penalty submission.

[43] The rationale for the distinction lay in the differences between a criminal prosecution and civil penalty proceedings.[34] These differences were summarised as follows.[35]

[44] A criminal prosecution has the following features:

• (a) it is an accusatorial proceeding;

• (b) the burden is on the Crown to establish the guilt of the accused beyond reasonable doubt;

• (c) the accused cannot be required to assist in proof of the offence charged;

• (d) the prosecution is aimed in securing a criminal conviction;

• (e) criminal penalties import notions of retribution and rehabilitation;

• (f) in the criminal context, the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge and the judge's relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle; and

• (g) the opinion of the Crown as to sentence would, in all probability, be based on an assessment of the facts and relative weighting of sentencing considerations different from that of the judge.

[45] A civil penalty proceeding, on the other hand, has these features:

• (a) it is a civil proceeding and therefore adversarial;

• (b) the issues and scope of possible relief are largely framed and limited as the parties may choose;

• (c) the standard of proof is upon the balance of probabilities;

• (d) the respondent is denied most of the procedural protections of an accused in criminal proceedings;

• (e) the civil penalty proceeding is designed to avoid the notion of criminality;

• (f) the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance;

• (g) there is scope for the parties to agree on the facts and upon consequences, including the appropriate remedy and for the court to be persuaded that it is an appropriate remedy;

• (h) it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate;

• (i) the element of public interest in civil penalty proceedings (which is not an issue in many civil proceedings) does not make the receipt of submissions as to penalty odd or exceptionable; and

• (j) a regulator in a civil penalty proceeding is not disinterested which supports the propriety of a court receiving joint (or separate) submissions as to facts and penalty and imposing the proposed penalty provided it considers it appropriate.

[46] The High Court held, against this backdrop, that it was not inconsistent with the nature of civil penalty proceedings for the court to receive submissions as to penalty and to accept them. Further, it was held that there was nothing in the purpose or text of the relevant legislation (there the Building and Construction Industry Improvement Act 2005 (Cth) ('BCII Act')) which indicated the court should not be willing to receive a submission as to terms and quantum of penalty.[36]

[47] This was subject to the imperative that any submissions regarding penalty, whether joint or otherwise, were to be considered on their merits and supported by findings of fact based upon evidence, agreement or concession.[37]

[48] The High Court did not decide whether a court which rejects an agreed penalty may nonetheless impose a higher penalty than that sought in the originating process.[38] In this respect, the court held it was sufficient to record that if a court is disposed not to impose the agreed penalty, it may be appropriate to give the parties an opportunity to withdraw their consent or otherwise be heard.[39]

[49] This case is a disciplinary proceeding under the Education Act. It is a civil, not criminal, proceeding.[40] The objects of disciplinary proceedings in teacher matters are protective rather than punitive.[41] They are protective in the sense that penalties are imposed with a view to ensuring school age children are safe from harm and,[42] more broadly, to protect the public by ensuring education in schools is provided in a professional and competent way.[43]

[50] In our view, there is nothing in the Education Act to indicate it would be inappropriate for the Tribunal to consider submissions as to an agreed penalty. We also note that, although there is no provision in the Education Act for the College to make submissions as to penalty, this was considered 'unremarkable' by the High Court in the CFMEU case in the context of the BCII Act.[44]

[51] We also note, as observed by the Tribunal in Pharmacy Board of Australia v Jattan,[45] that the practice of considering such submissions is consistent with s 86 of the QCAT Act which permits the Tribunal to make orders necessary to give effect to a settlement reached between the parties to a proceeding.[46] Further, it accords with s 28 of the QCAT Act, which gives broad powers to the Tribunal to inform itself in any way it considers appropriate,[47] and provides it is not bound by the rules of evidence or practice and procedure of courts.[48]

[52] Accordingly, in line with the High Court decision in the CFMEU case, we turn now to consider the submissions as to agreed penalty and, whether we are persuaded to accept them.

[53] The College and DGM have agreed to a six-year prohibition from the date of suspension, which was 9 September 2016. That would mean DGM could re-apply for registration in September 2022.

[54] We are of the view that a six-year period of prohibition from the date of suspension is within the acceptable range of penalties in these circumstances. DGM engaged in a sexual relationship with a year 12 student which began towards the end of her schooling, in November 2015 and continued until mid-2016. He also gave that student cash at a time when investigations into his conduct were on foot. These are, in our view, serious transgressions worthy of a significant period of prohibition.

[55] We therefore make an order that DGM be prohibited from teaching for six years from the date of suspension, that being a period of four years from the date of this order. We agree with the notation to be placed on the Register of Teachers proposed by the College and that there is to be no costs order.

[56] A non-publication order pursuant to s 66 of the QCAT Act was previously made in respect of this matter on review of DGM's suspension from teaching.[49] Those orders prohibited the publication of any information that could identify the students and school referred to in the material before the Tribunal and required that the Tribunal's reasons be published in de-identified format. We are satisfied it is necessary to make an equivalent order in respect of these proceedings to avoid endangering the physical or mental health of a person.[50] This order overrides s 166 of the Education Act which would otherwise have permitted the College to publish the teacher's identity and the nature and outcome of the proceedings.[51]

[57] The orders of the Tribunal are:

• (a) DGM is prohibited from applying for registration or permission to teach for a period of 4 years from the date of this order, pursuant to s 160(2)(j) of the Education (Queensland College of Teachers) Act 2005 (Qld).

• (b) The Register of Teachers is to be endorsed with a notation pursuant to

  s 160(2)(i) of the Education (Queensland College of Teachers) Act 2005 (Qld) as follows.

Should DGM reapply for registration or permission to teach after the period of prohibition, the application must be accompanied by:

(i) Evidence of successful completion of a course of education in the areas of professional boundaries and ethics for teachers, nominated by the teacher and approved by the Queensland College of Teachers; and

(ii) An independent report by a psychologist approved by the Queensland College of Teachers which addresses the following:

1. An assessment from the psychologist as to whether the psychologist is satisfied that the respondent 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;
   5. The respondent's 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 trust and power granted to a teacher;
   11. The nature and extent of the 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;
   13. The importance of full adherence to the Queensland College of Teachers Code of Ethics;
2. Confirmation that the psychologist was provided with copies of:

   1. the Tribunal's orders and reasons for decision;

   2. the QCT referral under s 97 of the Act; and

   3. the statement of agreed facts.

(c) Publication of any information which may identify the students and the school referred to in the material before the Tribunal is prohibited;

(d) The Tribunal's reasons for decision may be published in de-identified format only.

[1] Education Act, s 97(2)(a).

[2] Ibid s 97(4)(a).

[3] Ibid ss 97(4)(b), 158.

[4] Ibid s 97(4).

[6] Ibid: 'former approved teacher' is defined, relevantly, to include a former registered teacher.

[7] Certificate under s 223(e) of the Education Act, dated 17 April 2018.

[8] Amended by the Education and Other Legislation Amendment Act 2016 (Qld).

[9] Education Act, s 363.

[10] Education and Other Legislation Amendment Bill 2016 Explanatory Notes, clause 51.

[13] Statement of Agreed Facts and Matters, 19 December 2017, [13]-[14].

[16] Investigation Report, 1 December 2016.

[18] Response to Show Cause Letter, undated.

[19] Letter from DGM to DET, undated but infer 15 March 2017.

[20] Letter from DGM to Ms Leigh Pickering, Department of Employment and Training, undated.

[22] Joint Submissions on Sanction, 19 December 2017, [28].

[23] Education Act, s 3.

[24] Queensland College of Teachers v TSV [2015] QCAT 186.

[25] [2015] QCAT 186, [25].

[26] Education Act, ss 160(2)(j), 161(2)(c).

[27] [2017] QCAT 383.

[28] [2016] QCAT 501.

[29] Joint Submissions on Sanction, 19 December 2017, [28]-[29].

[30] [2014] HCA 2; (2014) 253 CLR 58.

[31] Note s 15 of the Penalties and Sentences Act 1992 (Qld) (amended by s 6 of the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) which permits a sentencing court to receive submissions which state the sentence, or range of sentences, the party considers appropriate for the court to impose.

[33] Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46, [1] ('CFMEU case').

[37] Ibid [61], citing NW Frozen Foods [1996] FCA 1134; (1996) 71 FCR 285, 298.

[39] Ibid, referring to Mobil Oil [2004] FCAFC 72, [58].

[40] Legal Profession Complaints Committee v Love [2014] WASC 389, [75] in relation to disciplinary proceedings concerning a legal practitioner.

[41] Queensland College of Teachers v TSV [2015] QCAT 186, [25].

[42] 'Harm' is broadly defined in s 7 of the Education Act.

[43] Education Act, s 3(1)(c).

[44] [2015] HCA 46; (2015) 258 CLR 482, [64].

[45] [2015] QCAT 294.

[46] An order under s 86 may only be made if the Tribunal is satisfied it could make a decision in the terms of the settlement or consistent with it: QCAT Act, s 87.

[49] Queensland College of Teachers v Teacher GXM [2016] QCAT 441.

[51] Education Act, s 166(4).