Queensland College of Teachers v Teacher CMH [2019] QCAT 164

(i) The likelihood of the respondent engaging in similar type behaviour in the future;

(ii) Whether the psychologist is satisfied that the respondent has adequately understood and addressed the above matters;

(iii) The status of the respondent's current mental health;

(iv) Whether the psychologist was provided with a copy of this decision and reasons for the decision.

4 The publication of any information that could identify the respondent, the tutor, any relevant students or the relevant school in any way is prohibited.

5 Despite Order 4, the College may provide a copy of the decision and the Tribunal's reasons to:

(a) Any future employers who employ the respondent in a teaching role or in child-related employment;

(b) The respondent's current and future health practitioners;

(c) Other teacher regulatory authorities;

(d) The Chief Executive of Employment Screening.

EDUCATION - TRAINING AND REGISTRATION OF TEACHERS - DISCIPLINARY MATTER - where teacher involved in discussions with students of a sexual and personal nature - whether behaviour of teacher satisfied the standard of behaviour generally expected of a teacher.

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - whether nonpublication order should be made - where order necessary in the interests of justice.

Education (Queensland College of Teachers) Act 2005 (Qld) s 3(1), 49, 92(1), 97, 158(2), 160

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v Teacher BAM [2012] QCAT 694

Queensland College of Teachers v Banyai [2013] QCAT 180

Queensland College of Teachers v CXJ [2018] QCAT 117

Queensland College of Teachers v Doherty [2010] QCAT 614

Queensland College of Teachers v Genge [2011] QCAT 163

[1] CMH was first registered with the Queensland College of Teachers ('the College') in 1995. He holds full registration which is currently suspended. On 23 October 2017 the College suspended CMH's teacher registration under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) ('the Act') on the basis that the College reasonably believed he 'posed an unacceptable risk of harm to children.'

[2] The College referred the continuation of the suspension to the Tribunal on 24 October 2017. On 28 November 2017 the Tribunal ordered the continuation of the suspension. On 02 February 2018 the College referred the matter to the Tribunal under s 97 of the Act for a disciplinary action.

[3] The College relies on s 92(1)(h) of the Act as the relevant ground for disciplinary action:

A 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] The standard of behaviour generally expected of a teacher is not defined in the Act. However, in Queensland College of Teachers v Armstrong [2010] QCAT 709 at [33] it is stated:

... 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.

[5] 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.[1]

[6] The allegations against CMH may be summarised as follows:

• (1) During an after-school drama tutorial:
  • (a) CMH told two male students (students A and B) about 'casting couch' situations in which young actors have to perform sexual acts in order to secure acting roles. CMH told the students about sexual acts he had performed in order to secure acting roles, including giving oral sex. He used the term 'blow jobs' and spoke of the need to wear knee pads and offered to buy knee pads for the students.
  • (b) Whilst working one-on-one with Student B, CMH shared his own personal sexual experiences and feelings and desires, discussed his marital issues relative to his sexuality, described the experience and sensations of homosexual sex, asked the student about his feelings and sexual experiences with boys, told him that he would listen and not tell anyone, and asked the student to keep their conversation a secret.
• (2) On numerous occasions, interacting with students in an inappropriate manner, including:
  • (a) Being alone with student B in the drama room and assisting him to dress and undress in costumes, many of which were tight and revealing, unnecessarily touching him on the thigh, leaving the student for periods of time in his underpants, asking the student to walk around the stage and jump and squat in speedos and commenting on his "very big bulge".
  • (b) In a separate one-on-one rehearsal session in the drama room, CMH took photos of student A in tight shirts for a proposed audition, suggesting a further photo shoot for possible modelling work and suggesting that the student should wear his speedos.
• (3) On numerous occasions, being overfamiliar and unprofessional with students, including:

  • (a) During drama classes making jokes of a sexual nature, including in relation to oral sex and allowing students to make jokes of a sexual nature.

  • (b) Telling students A and B that they were physically attractive and telling student A that he should take his shirt off during a forthcoming audition to help his chances of being accepted and that every girl is going to want him and every boy is going to want to be him because of his physical appearance.

  • (c) Sharing personal information with students in relation to his divorce and issues concerning his family members.

[7] As outlined below, the respondent admitted certain of the allegations, but denied other allegations.

[8] Transcripts were provided of interviews conducted with two male students (students A and B), who at all relevant times were year 12 students at the respondent's school. Transcripts were also provided of interviews with a part-time drama tutor (the tutor) who assisted the respondent and was present at some of the times relevant to the present matter. The material before the Tribunal also included a written statement dated 11 May 2018, with attachments, provided by the respondent (the Respondent's Statement); a response to referral allegations provided by the respondent; emails with attachments from the relevant school; and written submissions filed by both the respondent, with attachments, and the College. The emails from the relevant school included a written two-page statement made by student B which was sent to the school by the student's parents. Submissions, with attachments, were also made by the respondent in relation to a non-publication order. The respondent gave oral evidence and was cross-examined at the hearing.

[9] For the purposes of this decision, we do not rely on the content of the interview conducted with student B, other than to the extent that it is consistent with: his written statement provided to the relevant school, evidence provided by student A, evidence provided by the tutor, or acknowledgments made by the respondent. That is because the interview with student B included leading questions, the student's mother was present throughout the interview, and in circumstances where the student had discussed the matter with his mother prior to the interview, the mother and father had reported the matter to the school, and where, during the course of the interview, the mother was asked questions by the interviewer and spoke at length about her reaction, and that of other family members, to what had previously been recounted by the student and, at other times, intervened or asked questions of the interviewer. In that context, we cannot be satisfied that at the interview student B was in a position to give a considered, independent and unprompted account of what took place.

[10] In relation to allegation 1(a), the respondent admits that he made reference to the need to be aware of the "casting couch" and that in a "blokey way" said that some directors expected emerging actors to invest in a pair of 'knee pads', that he had been a victim of this when he was a young director, that he asked the two students what they would do in that situation, and that he asked the tutor of her opinion.[2] The respondent submitted that this was an important topic and one of which students needed to be aware.[3] The respondent denied that he offered to buy the students knee pads or that he used the term 'blow jobs'.[4] He said that that topic of conversation was not planned and that he "can now see" that it was inappropriate.[5]

[11] In his interview, student A states that he could recall the reference to oral sex, though could not recall exactly what the respondent said in that regard, and to the need "to strap your knee pads on".[6] He added that the respondent stated that it could be a scenario they would have to face because of their looks.[7] In his written statement, student B states that the respondent spoke of giving "blow jobs" and needing "knee pads" and told stories of sex favours and male celebrities. Both students indicated discomfort with the conversation and student A said that there was awkward laughter and that they both thought that it was "weird".[8] On the other hand student A said that "I just kind of copped it, because it didn't, it never went too far".[9] The tutor said that she couldn't recall whether the term 'blow jobs' was used, but that it was "that kind of thing". She added that: the respondent spoke "colourfully", she would not have spoken in those terms, the language used was highly inappropriate, and she felt uncomfortable.[10] While at times it is evident that the interviewer was badgering the tutor, it is apparent from her answers that she was able to respond as she considered appropriate. She also stated that "it seemed like he (the respondent) had the boys' best interests at heart".[11]

[12] As is noted above, the respondent admits much of what was said. However, he denies offering to buy the students knee pads and there is no clear evidence that he did so. Whether or not the term 'blow jobs' was used, the tutor said that it was "that kind of thing" and that the respondent spoke "colourfully".[12] In part, the respondent justifies his conduct on the basis that it is an important topic and one of which students need to be aware.[13] Assuming it is an important topic, it begs the question of why it was not incorporated into a formal lesson and offered to all students taking the subject, rather than being presented only to the two students in question and dealt with in an evidently facetious manner that tended to trivialise the issue. In oral evidence the respondent said that he would not have that conversation in a classroom "because lots of students do drama with absolutely no intention of going on to participate in the industry".[14] This does not accord with the Respondent's Statement at [2], where it is stated that the class contained 16 students, that it was "highly competitive" and that "at least six of these had discussed exploring drama or acting as a career option and studying at university". We accept the evidence of the students and the tutor that the language used was "highly inappropriate" and that they felt uncomfortable. As noted above, the respondent acknowledged that he "can now see" that it was inappropriate.[15]

[13] In relation to allegation 1(b), the respondent states that in the context of the character student B was choosing to play and in the interest of understanding how he would portray a gay character, they discussed one-on-one the student's sexuality.[16] The respondent also stated that, "in a supportive way", he discussed with the student his own sexuality, including in relation to his marriage, his struggles with his sexuality, and how it felt to be in a relationship with a man, adding that he respected the student's privacy and hoped that the student would respect his privacy.[17] The respondent denied that he made explicit references to his sexual experiences or feelings, but stated that he "can now see" that what he did say was "too personal".[18]

[14] In his written statement, student B said that the respondent spoke explicitly about his sexual experiences and described the experience and sensations of homosexual sex, that he asked the student about whether he wanted to have experiences with boys and that the student responded that he had a girlfriend. Student A said that though he could not hear the conversation he could see that student B looked "very uncomfortable".[19]

[15] We accept the account of the conversation set out in the statement made by student B. Relative to the accounts of all relevant events provided by students A and B and the tutor, it is evident that the respondent tended to downplay what occurred and what was said and the tone and manner of its delivery. The respondent could offer no explanation as to why the students and the tutor might make the allegations or provide the responses as recorded in the records of interview.[20] Also, student A stated that while he could not hear the conversation between student B and the respondent, he could see that student B looked "very uncomfortable".[21] Even if the conversation were as limited as claimed by the respondent, it is unclear as to why the respondent felt qualified to engage in such a conversation, given the uncertain impact it might have on the student, and as to why he continued the discussion even after, on the respondent's account, the student indicated that he had already discussed the matter with his parents.[22]

[16] In relation to allegation 2(a), the respondent acknowledges that on one occasion he was alone in the drama room with student B. The respondent denies that he assisted him with dressing or undressing (other than helping him to adjust a jacket or shirt), that the costumes were tight, that he touched him on the thigh, or that he said that he had a "very big bulge".[23] He stated that in accordance with standard practice he did ask the student to move around the stage to ensure that the costume looked good from all sides and that he did suggest trying on swimwear speedos as part of the costume.

[17] Student B makes no reference to these allegations in his written statement and while there is reference to these matters in the record of interview with student B, for the reasons noted above, we are not satisfied that those allegations have been made out on the balance of probabilities, mindful of the decision in Briginshaw.[24]

[18] In relation to allegation 2(b), the respondent states that he had discussed the photo shoot with student A's mother, he took photos from the waist up, that speedos were appropriate as the scene took place on the beach, that the shirts were not very tight, and that he recommended a further photo shoot because of the quality of the shots taken.[25]

[19] In the record of interview, student A said that he felt that he would rather not wear speedos but that he went along with it and that the respondent was "not vigorous" in suggesting he wear them.[26]

[20] In relation to allegation 3(a), while the respondent acknowledges there was often light hearted "blokey" banter in the classroom, he stated that he did "not recall" any jokes involving oral sex.[27] Student A makes only passing reference to this issue, though does refer to comments made in that context in relation to particular students.[28]

[21] In relation to allegation 3(b), the respondent acknowledges that he did tell students A and B that "according to industry standards" they would be considered physically good looking and that this was said "partly as a means of supporting their self esteem".[29] He also acknowledged that he told student A that he should take his shirt off during a forthcoming audition, but that this was appropriate given that his character was on the beach, and that he looked a lot like a young Mel Gibson and "if he developed an acting profile" young women would be attracted to him and that young men would want to be like him.[30] The respondent added that it was a common statement about actors and that he did not mean it in an inappropriate context. Student A refers to "overly enthusiastic" compliments being made, adding that "at first" they made him feel "a little bit" uncomfortable.[31]

[22] In relation to allegation 3(c), the respondent acknowledges that he did share "limited" information with some senior students about his divorce and family members and circumstances, but did so in the context of explaining how actors use their own experiences to assist in their stage performances.[32] In his interview, student A said that these observations did not make him feel "overly" uncomfortable.[33] It remains, as submitted by the applicant, that students "shouldn't have the responsibility and burden of having to absorb or take on such personal detail and respond to it".[34]

[23] On the evidence before us we are satisfied that 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. The reasons for that conclusion are noted above in the context of the separate allegations, particularly allegations 1(a) and 1(b). We are not satisfied that the allegations have been made out in relation to allegation 2(a) and there is little in the way of acceptable evidence to enable firm conclusions to be drawn in relation to allegations 2(b), 3(a) and 3(b). With regard to allegation 3(c), it is evident that the respondent did inappropriately share personal information with students, though there is little evidence of the impact this might have had on students. Student A states that it did not make him feel "overly" uncomfortable.[35]

[24] The purpose of disciplinary proceedings is not to punish, but, in the present context, to protect children and the community.[36] The objects of the Act, by s 3(1), are to uphold the standards of the profession, maintain public confidence in the teaching profession and protect the public.

[25] The disciplinary action available to the Tribunal is set out in s 160 of the Act and includes, at s 160(2)(e), suspending the teacher's registration or permission to teach. We consider that to be the appropriate disciplinary action in the present case. There remains a question as to the appropriate length of the suspension. Several precedents were cited by the College, including the first three cases cited below.

[26] In Queensland College of Teachers v Teacher BAM,[37] the teacher made sexualised comments to students, made comments about the physical appearance of students, talked about his wife in a derogatory fashion, and asked students about their sexual experiences. There is no reference to any direct impact of the behaviour on students and acknowledgment was made of admissions made by the teacher to facilitate an early end to the matter.[38] The teacher's registration was suspended for 12 months.

[27] In Queensland College of Teachers v Doherty,[39] the relevant conduct included making comments about a student's sexuality, commenting on the physical appearance of a student, swearing in front of students and pulling a student's bra strap. The teacher was prohibited from reapplying for registration for a period of 12 months.

[28] In Queensland College of Teachers v Heath James Banyai,[40] the relevant conduct included over-familiar and sexualised communications with former students aged 14 to 15 via Facebook, comments made to the former students on the attractiveness of other teachers, his past drug use, and his desire for sex. The teacher's registration was cancelled and he was prohibited from applying for registration for a period of 12 months.

[29] In Queensland College of Teachers v Teacher CXJ,[41] 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 4 years from the date of his suspension.

[30] In each of those cases, orders were made requiring a notation on the register in terms similar to those proposed in the present case.

[31] Relative to the above cases, it is evident that the behaviour of the respondent as outlined in allegation 1(b) has had a significant psychological impact on student B.[42] It is also evident that the respondent has tended to downplay his conduct. On the other hand, the respondent has been registered since 1995 and has not been the subject of previous disciplinary proceedings.

[32] The respondent has been suspended since 23 October 2017. In the circumstances, we consider it appropriate to cancel the respondent's registration as a teacher and prohibit the respondent from applying for registration or permission to teach before 23 October 2019, giving a total suspension/cancellation period of 2 years. Further, pursuant to s 160(2)(h) of the Act, a notation is to be entered on the register of teachers that before the respondent's teacher registration is reinstated, he must give to the College a psychological report satisfactory to the College that provides an assessment of the respondent's appreciation of the following:

• (ix) The legal obligations of teachers and tutors;
• (x) The differentiation between personal and professional relationships;
• (xi) The development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;
• (xii) Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
• (xiii) What constitutes inappropriate communication;
• (xiv) The effect of inappropriate relationships with students;
• (xv) The trust and power granted to a teacher;
• (xvi) The Queensland College of Teachers Code of Ethics and the need to adhere to that Code;

(i) The likelihood of the respondent engaging in similar type behaviour in the future;

(ii) Whether the psychologist is satisfied that the respondent has adequately understood and addressed the above matters;

(iii) The status of the respondent's current mental health;

(iv) Confirmation that the psychologist was provided with a copy of this decision and reasons for the decision.

[33] Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. By s 66(3), the Tribunal may do so on the application of a party or on its own initiative.

[34] Based on the report of a psychologist relating to the respondent's mental health and with reference to the interests of students A and B, the respondent has submitted that the existing non-publication order should remain in place. That submission was not opposed by the applicant.[43]

[35] We are satisfied that it would not be in the interests of justice for information to be published which would identify the respondent, the tutor, any relevant students or the relevant school.

[36] We make orders pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) prohibiting the publication of that information.

[1] Education (Queensland College of Teachers) Act 2005 (Qld) s 158(2).

[2] Respondent's Statement at [18]-[22]; See also Respondent's Submissions, [20]-[52].

[3] Respondent's Submissions, [23]-[27]; Transcript of Hearing, 7.

[4] Respondent's Statement, [35]-[37]; Transcript of Hearing, 7-8.

[6] Record of Interview with Student A, 12-13.

[10] Record of Interview with Tutor, 34, 35, 37, 39-44. The respondent acknowledged at the Hearing that the tutor "had knowledge of higher education in terms of drama and the industry in terms of drama": Transcript of Hearing, 20.

[11] Record of Interview with Tutor, 35, 41.

[12] Record of Interview with Tutor, 35.

[13] Respondent's Submissions, [23]-[27]; Transcript of Hearing, 7-8.

[14] Transcript of Hearing, 12; See also Transcript of Hearing, 20, 24-26.

[15] Respondent's Statement at [36]; Transcript of Hearing, 20.

[16] Respondent's Statement, [25]-[27]; Transcript of Hearing, 19. See also Respondent's Submissions, [53]-[59].

[17] Respondent's Statement, [30], [46].

[19] Record of Interview with Student A, 30.

[21] Record of interview with student A, 30.

[22] Respondent's Statement, [27]; Transcript of Hearing, 19.

[23] Respondent's Statement, [52]-[56]; It was added that ultimately students choose their own costumes: at [53]; See also Respondent's Submissions, [60]-[80].

[24] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362.

[25] Respondent's Statement, [59]-[68]; See also Respondent's Submissions, [81]-[94].

[26] Record of Interview with student A, 27-29.

[27] Respondent's Statement, [70]; See also Respondent's Submissions, [96]-[101].

[28] Record of Interview with Student A, 18-19.

[29] Respondent's Statement, [72]; See also Respondent's Submissions, [102]-[104].

[30] Respondent's Statement, [75]-[77]; See also Respondent's Submissions, [95].

[31] Record of Interview with student A, 17-18.

[32] Respondent's Statement, [78]; Transcript of Hearing, p 31; Respondent's Submissions, [105]-[107].

[33] Record of Interview with student A, 33.

[35] Record of Interview with student A, 33.

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

[37] [2012] QCAT 694.

[39] [2010] QCAT 614.

[40] [2013] QCAT 180.

[41] [2018] QCAT 117.