Queensland College of Teachers v Teacher BMT [2024] QCAT 94

(1) This section applies if the PC&TC committee reasonably believes that, in relation to a matter mentioned in section 108 -

(a) a ground for disciplinary action against a relevant teacher may exist; and

(b) if the ground is established -

(i) for an approved teacher - disciplinary action mentioned in section 160(2)(d) to (h) or (j) should be taken against the teacher; or

(ii) for a former approved teacher - disciplinary action mentioned in section 161(2)(b) or (c) should be taken against the teacher.

(2) The PC&TC committee may refer the matter to QCAT without -

(a) authorising an investigation into the matter; or

(b) hearing the matter.

• [3] Section 160(2) of the Act is set out at [18], below. In relation to grounds, the College refers to the ground for disciplinary action at s 92(1)(h) of the Act, which provides:

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

• [4] Initially, the referral listed 12 allegations that formed the basis of the grounds for disciplinary action. Certain of the allegations were not admitted by the respondent. Subsequently, in an application for decision/order by consent filed by the parties on 16 January 2024 and a further communication from the respondent on 18 January 2024, the applicant withdrew allegations 10, 11 and 12(b) and the remaining allegations were admitted by the respondent. Those remaining allegations are:

1. On an unknown date in 2017 or 2018 Teacher BMT exchanged phone numbers with the year 8 or year 9 female student. 2. On an unknown date in 2019 Teacher BMT drove the year 9 female student in her vehicle while she viewed houses for sale. 3. On an unknown date during term 2 in 2020 and while children were not attending school and were learning from home, Teacher BMT allowed the now Year 10 female student to attend her private residence. 4. Between 28 September 2019 and 29 September 2020 Teacher BMT exchanged text messages with the female student including messages which were over familiar and had no educational context. 5. Prior to September 2020 Teacher BMT exchanged messages on Instagram with the female student and later told the student to delete the messages. 6. During 2020 Teacher BMT engaged in over familiar conversations with the school students including but not limited to:

(i) discussed her ex-partners and previous relationships. > > (ii) discussed school administrative issues including finance related matters. > > (iii) discussed problems she was having with other school staff members. > > (iv) discussed student relationships.

1. On an unknown date around 20 February 2020 Teacher BMT engaged in inappropriate conversation with the year 10 female student, regarding that female student having sexual intercourse with her boyfriend, a year 10 male student from a different school. 2. On an unknown date around 20 February 2020 Teacher BMT purchased condoms, provided them to the year 10 male student from another school, and told him how to use them. 3. On an unknown date [a]round May 2020 Teacher BMT purchased items for the year 10 male student for him to provide to the year 10 female student for birthday gifts.

1. It is alleged that between May 2020 and September 2020 Teacher BMT failed to report suspected harm of the female year 10 student as per the school Child Protection Policy, including:

(a) that the female year 10 student had sexual intercourse with the male year 10 student.

(1) The ground for disciplinary action is established.

(2) The respondent is issued with a reprimand under s 160(2)(c) of the Act.

(3) A condition is imposed under s 160(2)(h) of the Act, which, in essence, requires the respondent to provide a psychologist's report providing an assessment, satisfactory to the College, as to whether the respondent has adequately understood and addressed a number of specified matters.

• [6] In submissions filed on behalf of the respondent by her legal counsel, the respondent accepted the orders sought as outlined at [5], above.
• [7] By s 158(1) of the Act, the Tribunal must decide whether a ground for disciplinary action has been established. Where the Tribunal decides that a ground has been established, s 160(2) of the Act sets out the decisions that may be made by the Tribunal. That provision is set out at [18], below.

Whether grounds for disciplinary action established

• [8] The standard of behaviour generally expected of a teacher is not defined in the Act. However, in Queensland College of Teachers v Armstrong it is stated:[1]

... the standard expected should be the standard 'reasonably' expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.

• [9] As submitted by the College, citing Queensland College of Teachers v PPK,[2] the standard is fluid and is 'informed by how the community, including the teaching profession, would expect a teacher to behave'.
• [10] It is also appropriate to consider the objects of the Act:

(a) to uphold the standards of the teaching profession;

(b) to maintain public confidence in the teaching profession; and

(c) to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.[3]

• [11] The Tribunal has previously observed that teachers are bestowed with a special trust by parents and the community to act in the best interests of students and to protect them from harm and, with that trust, an expectation that it will not be breached.[4]
• [12] In deciding whether there is a ground for disciplinary action, the Tribunal must have regard to any relevant previous decision of which it is aware.[5] It is also noted that the standard of proof is the civil standard, mindful of what was said in Briginshaw v Briginshaw.[6]
• [13] There are a number of cases where grounds for disciplinary action have been established in circumstances involving sexualised conversations or interactions with students. In its submissions, while stating that it was not aware of previous cases involving similar facts, the College refers to a number of cases involving what were considered by the Tribunal to be inappropriate interactions between teachers and students. These included the sending of sexualised texts and nude photographs,[7] transporting the student in the teacher's car and allowing a student to stay overnight at her home,[8] transporting students and giving them gifts and swearing and sexualised comments in class.[9]
• [14] Other cases are referred to below, in the context of the discussion of the appropriate sanction.
• [15] As noted, the respondent does not dispute the amended allegations set out at [4] above. It is also agreed that a ground for disciplinary action under section 92(1)(h) of the Act has been established.
• [16] We are satisfied that on the basis of the accepted allegations a ground for disciplinary action has been established. That is, in terms of s 92(1)(h) of the Act, the respondent has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.

• [17] It remains to determine the appropriate sanction in the present case.
• [18] Section 160(2) of the Act provides:

If QCAT decides a ground for disciplinary action against the relevant teacher has been established, QCAT may do 1 or more of the following -

(a) decide to take no further action in relation to the matter;

(b) if the teacher's registration or permission to teach is suspended under section 48 or 49 - end the suspension;

(c) issue a warning or reprimand to the teacher;

(d) cancel the teacher's registration or permission to teach;

(e) suspend the teacher's registration or permission to teach for a stated time;

(f) make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to -

(i) any expenses incurred by the college in investigating the matter; and

(ii) the expenses incurred by the college in the proceedings before QCAT;

(g) make an order requiring the teacher to pay to the college, by way of penalty, an amount fixed by QCAT but not more than the equivalent of 20 penalty units;

(h) impose conditions on, or amend or remove conditions on, the teacher's registration or permission to teach;

(i) make an order that a particular notation or endorsement about the teacher be entered in the register;

(j) if QCAT cancels the teachers' registration or permission to teach - make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely;

See also section 350 (Decision about disciplinary action against approved teacher).

(k) make another order QCAT considers appropriate;

(l) accept an undertaking from the teacher.

• [19] The purpose of disciplinary action is not to be punitive but to impose a sanction in order to serve as a 'general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question'.[10]
• [20] In deciding the appropriate sanction, the Tribunal will consider a variety of factors. These include the nature and context of the behaviour; the impact the behaviour may have had on relevant students, children, the school and community; any actions the teacher has taken to remedy the situation; the teacher's level of experience and teaching record; and the teacher's level of insight in relation to the conduct.[11]
• [21] In addition, the Tribunal should have regard to the impact the behaviour may have had on the families of relevant students and on other staff members, and the level of remorse expressed by the teacher through words and actions. The Tribunal should also consider matters such as the teacher's participation and cooperation in the investigation and disciplinary process.
• [22] Both the College and the respondent submit that the appropriate sanction is to issue a reprimand under s 160(2)(c) of the Act. It is further submitted that a condition should be imposed under s 160(2)(h) of the Act in terms of providing a report from a psychologist, satisfactory to the College, giving an assessment of whether the psychologist is satisfied that the respondent has adequately understood and addressed specified matters.

• [23] The respondent was first registered to teach in 2013. There was an earlier incident of misconduct on her part in 2014 to 2015, which resulted in a reprimand by the then Professional Practice and Conduct Committee. There were three multilayered substantiated allegations involved in that earlier matter, where the respondent engaged in overfamiliar and unprofessional behaviour towards students at her high school. It seems that no suspension was involved in that instance and she continued to teach. At that time the respondent was in her early twenties.
• [24] As noted at [1] above, in relation to the present matter the teacher's registration has been suspended since November 2020.
• [25] From 2016, the respondent was the relevant female student's dance teacher, classroom teacher and pastoral care teacher. She was an experienced teacher with the authority that accompanies the position. Her teaching experience (including two years at other schools) suggests that she participated in several sessions of Ethics, Code of Conduct and Child Protection training, amongst other important mandated policy training.
• [26] The allegations that form the basis for the grounds for disciplinary action are set out at [4], above, and are not disputed by the respondent. At relevant times the female student was under 16 years of age, as to which see s 210 of the Criminal Code (Qld). In that context, Teacher BMT engaged in conversation with the female student regarding her having sexual intercourse with a male student from another school. She purchased condoms for the male student and told him how to use them. There is at least the potential that giving the student access to condoms facilitated the sexual relationship, and at a time when the student was 15 years of age. Also, as alleged at allegation 12(a) Teacher BMT made no report as per the school Child Protection Policy.
• [27] The respondent's conduct occurred both on and off the school grounds during and outside of school hours, when the relevant female student was in school years 8 to 10. Meeting a student outside of school without a valid context or taking a student on an unauthorised outing for a purpose outside of an educational context in itself is a clear breach of professional boundaries. Clearly, other allegations noted above are more serious.
• [28] The female student in question was particularly vulnerable, given that she and her family had moved to Australia only at the beginning of 2016. In that event, the student would have been learning the norms of a new school, new friends and a new country.
• [29] The College submits that, in response to the section 98 notice, the respondent 'demonstrated a lack of insight and remorse by defending her position of naivety which led to her behaviour'. It is also submitted that she has shown 'no acknowledgment of or change of attitude regarding her behaviour towards the student and showed a lack of understanding of her professional boundaries and obligations'. It is further submitted that:

the respondent does not provide any evidence of her appreciation of the negative impacts upon the student with respect to the overfamiliar relationship she formed with the student, the favouritism she displayed towards the student, the damage she did to her own position of authority and the extent to which she undermined the student's parents' authority over the student.

• [30] The College acknowledges that the respondent engaged in independent therapy with a psychologist and occupational therapist, though notes that in each report there is inconsistency between the allegations the College found to be substantiated and the respondent's recount of the previous 2014 disciplinary incident.
• [31] In response to that submission, the respondent submits that she was 'forthcoming and frank in her disclosure' and that 'any mistake or truncated summary in their reporting is not the fault of the Respondent'. It remains that full disclosure could have been achieved by providing to the psychologist and occupational therapist all relevant communications from the College.
• [32] The response of the respondent to the submissions of the College is limited. It is submitted that 'the early and voluntary participation in psychological and occupational therapy and reporting is a clear demonstration of remorse.' It is then submitted that the respondent:

has demonstrated both remorse and a deeper understanding of the issues and her responsibilities as a schoolteacher, especially as they relate to professional boundaries and the need for her to demonstrate that she is not an 'at risk' person for the purpose of teacher registration and/or working with children.

Notwithstanding her previous experience in Ipswich, the facts of the current breach involve the Respondent, being a long way from family and her traditional support network, and being befriended and used by a parent of a student of (the school), including using the Respondent as a pickup and drop-off service, child minding, taxi service for the parent when she was intoxicated and unable to drive and associated menial tasks. It is submitted here that the Respondent should have known better, and that is conceded by the Respondent in her personal statement (Annexure 5). Having said that, the conduct of the relevant parent should be taken into account as a significant mitigating factor when considering an appropriate sanction,

• [34] It might be said that the last sentence of that submission in itself reflects a lack of insight into the role and responsibilities of a teacher. In the occupational therapist's report, the suggestion of being drawn into the student's family circle and the attitude of the student's mother relative to the conduct of the respondent is also referred to by way of explanation of the conduct.
• [35] In the document Professional Boundaries: A Guideline for Queensland Teachers, August 2019, Queensland College of Teachers, p 9, it is stated:

The way a teacher behaves towards a student in the sphere of their private life, or in another professional (non-teaching) capacity, is relevant to the professional standards and responsibilities of a teacher. If there is no recognition of appropriate boundaries in a teacher's private or other professional relationships with children, it is reasonable to infer that appropriate boundaries in professional teacher-student relationships may also be unrecognised and appropriate standards transgressed in the school setting.

• [36] In a statement of January 2023, the respondent reflects on her own background of seeking constant approval and validation and that 'this ingrained behaviour manifested in unfavourable and inappropriate ways'. She further states: 'There is no excuse for my behaviour, and I own, that as a consequence I have already served in essence more than a two years ban on my career which has forced me to reflect upon my choices and accept responsibility'.
• [37] In neither the statement nor submissions does the respondent specifically refer to the impact on or actual or potential harm done to any student or to the potential undermining of parental authority, other than the general recognition of wrongdoing in breaching professional boundaries.
• [38] On the other hand, it is noted that the respondent cooperated with the investigation and disciplinary processes and independently engaged a psychologist and an occupational therapist in an endeavour to address the criteria sought by the College, demonstrating some insight into the nature of her behaviour.
• [39] The respondent submits that a significant period of time has elapsed since she has been in paid teaching work, so that she has suffered significant hardship in paying for a mortgage, living costs and therapeutic costs. However, the focus of any disciplinary sanction is not on the impact on the teacher. Almost invariably, any sanction will impact the teacher. Rather the purpose of disciplinary action in the present context is to protect children and the community,[12] by way of imposing a sanction that will dissuade similar conduct in the future, both by the teacher in question and other teachers.
• [40] In relation to the appropriate sanction, as noted by the College, there is a lack of earlier decisions involving equivalent facts. Nevertheless, some earlier decisions are of assistance.
• [41] In Queensland College of Teachers v CMK,[13] the teacher engaged in inappropriate and overfamiliar behaviour towards senior dance students, including spray-tanned students at school and at the students' homes, discussed with students matters such as parties she had attended and her breast enhancement surgery, asked students for advice about her boyfriends, and drove a student home without the consent of her supervisor or the student's parents. Further, the teacher engaged in an overfamiliar and/or intimate relationship, including physical intimacy, with a recently former student. The teacher was prohibited from applying for registration or permission to teach for a period of three years from the date of her suspension.
• [42] In Queensland College of Teachers v Teacher CMH,[14] the respondent was an inexperienced teacher in her twenties, who engaged in inappropriate interactions over a 12-month period with a 14 year old student whom she coached in extra-curricular sport. They spent time together alone outside of school and the teacher transported the student, allowed the student to stay overnight at her home, and gave her gifts. The teacher engaged in a 'counselling' role when the student was suicidal and ran away from home. It was found that the period of suspension of approximately two years and eight months, from the date of the initial suspension until the decision of the Tribunal, was adequate and the suspension was ended.
• [43] Queensland College of Teachers v Brady[15] involved a teacher's inappropriate relationship with two 15 to 16 year old students. There was a protracted pattern of conduct with the students which included transporting them, extensive interaction and gift giving, and the inappropriate use of swearing and sexualised comments to his class. This continued despite repeated intervention, warnings and guidance by administration personnel at his school. The teacher suffered depression, and was relatively inexperienced, but cooperated with the investigation. He was banned from re-applying for registration for three years less the 10 months during which he was suspended.
• [44] In Queensland College of Teachers v WXY,[16] the teacher was employed in a Special Education Program and was the program manager for a student involved in the program. The student developed a crush on the teacher and texted him. The teacher advised the head of the special education services and said that he was uncomfortable with the messages. The student was allocated another program manager. However, the student and teacher commenced a sexual relationship shortly after the student graduated at the age of 18. It was considered that at that time the student remained a vulnerable person. The teacher was prohibited from applying for registration or permission to teach for a period of four years from the date of initial suspension.
• [45] In Queensland College of Teachers v Teacher CXJ,[17] the teacher communicated with a vulnerable year 12 student in a highly sexualised way, hugged her and touched her leg with his leg. Aggravating factors were that the teacher had a pastoral role in the school and with the student in question and was aware of the student's vulnerability. He downplayed the seriousness of his conduct by insisting that the emails were merely "roleplaying". The teacher was prohibited from reapplying to teach for four years from the date of his suspension.
• [46] In each of those cases, other than CMH, orders were made requiring a notation on the register in terms similar to those proposed in the present case.
• [47] In the present matter, the undisputed allegations are very serious, particularly given that the female student was under 16 years of age. We do not agree that the proposed reprimand is appropriate, particularly given the earlier history of the respondent. Taking into account the undisputed conduct of the respondent, the earlier incident of misconduct and the guidance given by other decisions of the Tribunal, we consider that the appropriate sanction is that the respondent's registration or permission to teach be cancelled and that she be prohibited from re-applying for registration or permission to teach for a period of four years from 27 November 2020. In addition, prior to any re-application for registration, the respondent should obtain a further psychologist's report in terms set out in the orders proposed by the parties.

1. The ground for disciplinary action under s 92(1)(h) of the Act is established. 2. The respondent's registration or permission to teach is cancelled pursuant to

s 160(2)(d) of the Act. 3. Pursuant to s 160(2)(j) of the Act, the respondent is prohibited from re-applying for registration or permission to teach for a period of four years from 27 November 2020. 4. Pursuant to s 160(2)(k) of the Act:

(a) Prior to any re-application for registration, the respondent must provide to the College a psychologist's report, satisfactory to the College, providing an assessment as to whether the psychologist is satisfied that the respondent has adequately understood and addressed the following matters: > > > (i) awareness and understanding of what are and what are not proper ways to engage with students; > > > > (ii) an in-depth examination of the extent and nature of the student, colleague, parent, and community trust inherently invested in a teacher; > > > > (iii) awareness of the trust and power granted to a teacher; > > > > (iv) awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching; > > > > (v) the need to protect students and children from physical, psychological, and emotional harm; > > > > (vi) risk assessment and early identification of potentially problematic situations and venues; > > > > (vii) how to achieve realistic solutions to avoid the risk of harm to students; > > > > (viii) the identification and awareness of her own triggers and strategies she intends to utilise to ensure there is no future recurrence of the incidents of concern; > > > > (ix) the importance of full adherence to the Queensland College of Teachers Code of Ethics. > > (b) The report must indicate that the psychologist was provided with a copy of the Tribunal's decision and reasons, the referral under s 111A of the Act and any joint statement of facts and issues. > > (c) The report must include the duration and frequency of visits and details of any testing that was undertaken.

1. The respondent must bear all costs of, and associated with, compliance with these orders.

• [49] The parties submit that a non-publication order is appropriate in particular so as to protect relevant students or former students. The publication of the name of the respondent or of any relevant school could lead to such identification.
• [50] In the circumstances it is appropriate to issue a non-publication order, pursuant to

s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Accordingly, other than to the parties to this proceeding and their legal representatives, and until further order of the tribunal, publication is prohibited of any information that may identify the respondent, or any relevant student, former student, or school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations, in particular those arising under ss 285, 285AA, 285B and 287 of the Act.

[1] [2010] QCAT 709, [33]. See also Queensland College of Teachers v PPK [2019] QCAT 59.

[2] [2019] QCAT 59.

[3] Section 3 of the Act.

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

[6] [1938] HCA 34; (1938) 60 CLR 336. Though it is noted that the Tribunal is not bound by the rules of evidence:

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

[8] Queensland College of Teachers v Teacher CMH [2019] QCAT 282.

[9] Queensland College of Teachers v Brady [2011] QCAT 464.

[10] Queensland College of Teachers v TSV [2015] QCAT 186, [25], quoting Queensland College of Teachers v Brady [2011] QCAT 464, [55].

[11] Queensland College of Teachers v Teacher BAM [2012] QCAT 694, [41].

[12] Queensland College of Teachers v Genge [2011] QCAT 163, [12]; Queensland College of Teachers v Banyai [2013] QCAT 180, [21].

[13] [2019] QCAT 271.

[14] [2019] QCAT 282.

[15] [2011] QCAT 464.

[16] [2019] QCAT 42.

[17] [2018] QCAT 117.