Queensland College of Teachers v AB
[2010] QCAT 701
•24 December 2010
| CITATION: | Queensland College of Teachers v AB [2010] QCAT 701 |
| PARTIES: | Queensland College of Teachers |
| v | |
| AB |
| APPLICATION NUMBER: | OCR118-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 9 November 2010 and 20 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Presiding Member Stuart MacDonald, Member Suzanne Brooks, Member |
| DELIVERED ON: | 24 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent’s registration is cancelled; 2. The respondent is prohibited from applying for teacher registration for 3 years from the date of this order; 3. That upon making any re-application for teacher registration the respondent provide evidence that he has undertaken counselling from a registered psychologist, such counselling to include: a. Counselling as to the effects on children being sexualised, and children as victims of child pornography; b. The legal obligations of teachers/tutors; c. Risk assessment and early issue identification of potentially problematic situations as well as initiating realistic solutions for avoiding risk of harm to students; d. An in depth examination of the extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor; e. Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching; f. The awareness of the trust and power granted to a teacher. 4. That a psychologist’s report be obtained by the respondent and provided to the QCT, to include: a. An indication by the psychologist whether the respondent has adequately understood and addressed the above points; b. Reference to the psychologist having been provided with the decision and the facts and circumstances in relation to the matter. 5. That the publication of any information relating to this proceeding which may identify the respondent is prohibited. |
| CATCHWORDS: | TEACHERS – suitability to teach Non-publication order – where necessary to avoid endangering the physical or mental health or safety of a person Education (Queensland College of Teachers) Act 2005, ss 12(3)(a) and (b), 92(1)(h),158(1), 160(2) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr M Pollock, in-house legal officer, for the applicant, the Queensland College of Teachers |
| RESPONDENT: | Mr A Knott, solicitor, Macrossans Lawyers, for the respondent |
REASONS FOR DECISION
The Queensland College of Teachers (QCT or the applicant) made a referral to the Tribunal for a determination about whether a disciplinary ground is established regarding AB (the respondent), an approved teacher. The referral was made by QCT under section 97 of the Education (Queensland College of Teachers) Act 2005 (the Act).
QCT’s Amended Referral of the Disciplinary Matter to QCAT details allegations, in essence, that on or around 27 February 2009, the Queensland Police Service located the following information on the home computer used by AB:
(a)a list of files accessed between late 2008 and 27 February 2009 which included child exploitation material (CEM);
(b)a list of recently visited sites through peer to peer sharing software through a particular internet site which was directly linked to CEM; and
(c)a list of accessed files on Windows Media Player which was directly linked to CEM.
The hearing was initially listed to be conducted on the papers in the absence of the parties on 9 November 2010. However, the Tribunal adjourned the proceeding to an oral hearing on 20 December 2010, and made directions for several witnesses relied upon by the applicant to be available to give evidence and be cross-examined.
The respondent had filed an application for a closed hearing and a non-publication order prior to 9 November 2010. The Tribunal made an order for a closed hearing, but listed the application for a non-publication order on 9 November, and subsequently adjourned it for hearing also to 20 December 2010.
The Legislative Framework
Section 92 of the Act provides for grounds for disciplinary action. The grounds include, in section 92(1)(h), that the teacher is not suitable to teach. Sections 11, 12 and 12A sets out matters which must be considered when considering whether a person is suitable to teach. Section 12(1)(c) provides that in considering suitability to teach, the person’s suitability to work in a child-related field must be considered. Section 12(3) provides as follows:
(3) Without limiting section 11 or subsection (1) or (2), a person is not suitable to teach if the person--
(a)behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
(b)otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
Under section 158(1) of the Act, as soon as practicable, after concluding the hearing the Tribunal must decide whether a ground for disciplinary action against the teacher has been established. If the Tribunal decides that a ground for disciplinary action against an approved teacher has been established, under section 160(2) of the Act, it may do one 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 not more than 5 years from the day the order is made;
(k)make another order QCAT considers appropriate;
(l)accept an undertaking from the teacher.
Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), provides that the Tribunal may make a non-publication order prohibiting, among other things, the publication of evidence given before the Tribunal[1] and information that may enable a person affected by a proceeding to be identified,[2] only if it considers it necessary for reasons including, to avoid endangering the physical or mental health or safety of a person.[3]
[1] Section 66(1)(b).
[2] Section 66(1)(c).
[3] Section 66(2)(b).
The Evidence
Oral evidence was given by Detective Acting Sergeant Klink from Task Force Argos of the Child Safety and Sexual Crimes Investigation Group of State Crimes Operations Command of the Queensland Police Service (QPS), and Ashley James Stevens-Hoare, Forensic Computer Analyst from the Forensic Computer Examination Unit of QPS. Statements of Mark Pollock and Karyn Alton, both Principal Legal Officers with QCT, together with a volume of annexures to each, were relied upon by the QCT. The annexures included a statement given by the respondent’s wife.
The respondent did not present evidence in relation to the disciplinary referral and did not personally attend the hearing on 20 December 2010. The respondent’s material consisted of reports of Dr JS, Dr HM, Dr AC, Dr EL and Dr BJ filed in support of the application for a non-publication order.
AB was first registered as a teacher in the 1980s and he has since been continuously registered as a teacher. His registration is current. AB’s registration as a teacher was suspended and he has remained suspended since. He had been earlier suspended from his employment at DET. However, he was subsequently approved leave without pay from his employment. His leave and employment status with DET at the time of the hearing was unable to be clarified by those present at the hearing.
At the time of the allegations forming the basis of the disciplinary referral, AB was employed by DET as a teacher at a state high school.
On about 27 February 2009, officers of the QPS including Detective Acting Sergeant Klink seized 3 computers located at the residence of AB. The seizure occurred in the execution of a search warrant following a notification to the Australian Federal Police that the French Police had a number of Internet Protocol (IP) addresses for Australian residents who had allegedly received and downloaded a link to 13 CEM images. One of the computers was registered at the home of AB.
The Police were advised by AB that the computer concerned, which was situated in the study, was generally used by AB; indicating that his wife and children used the other computers. AB’s wife subsequently confirmed that the particular computer was only rarely used by her, and was regularly used by AB. She said that the computer was in a study which is very accessible to the living room where the family spends the vast majority of its time. She had not seen her husband access ‘anything inappropriate’ and that the study door was open when he used the computer.
The computers were subsequently forensically examined by Ashley Stevens-Hoare. He saw that an internet service provider’s connection software was installed and that several programs for the downloading of material from the internet were installed and recently used. No physical files containing CEM were located, although Mr Stevens-Hoare observed some text remnants of files which he considered were named as CEM on the computer generally used by AB. The unallocated space on that computer was filled with random data, which in his opinion was indicative of either encryption or intentional deletion.
His investigations revealed that the ‘Z Delete’ Program had been regularly run on the computer concerned. It is software used by the US Department of Defence that wipes hardware 7 times and then creates random data that cannot be reconstructed. His investigations showed that it been run on AB’s computer every 3 to 4 days. The Z Delete Program had not been installed or used on the other computers.
Mr Stevens-Hoare investigated the registry of AB’s computer which contained a ‘most recently used’ section which listed the most common recent movie files, ‘RAR’ archives and torrents opened on the computer. In his experience, the file names suggested that the files contained CEM. He reported his findings to Detective Acting Sergeant Klink. In his opinion, his findings demonstrated that the computer had been used to seek out CEM and then view the material located, rather than someone who randomly stumbled across a CEM file while exploring on the internet. He considered this was so because of the volume of entries suggesting search terms which may locate CEM and because the material/images had been downloaded and viewed. Mr Stevens-Hoare recommended that Detective Acting Sergeant Klink search the internet for CEM using the information he had located in the course of the investigation.
Mr Stevens-Hoare acknowledged that the computers at the AB household operated on a wireless network which was unsecured. He conceded that it was possible for someone other than AB to have hacked into the system and accessed CEM resulting in the information located on the computer. However, he considered this most unlikely because of the information he found in the registry and because the registry indicates the computer mouse was clicked to download material. He indicated that if someone had hacked into the system, that person would have had control of the computer at the dates and times of access occurring and that this would have been visible by the person who used the computer at those times.
The reports provided by Mr Stevens-Hoare to Detective Acting Sergeant Klink and produced to the Tribunal included a list of material of concern from the registry; a Firefox Activity Report; a web history of interest from Mozilla; and a recent file list history from Windows Media Player. Detective Acting Sergeant Klink explained that the reports included internet address references to ‘jpeg’ or photograph image files, ‘rar’ files which are a referral which specifically deals with child pornography, ‘torrent’ files which stream images and facilitate peer-sharing and ‘wmv’ and ‘mpeg’ video files. The file names include references such as ‘preteen’; ‘12yo’; ‘15yo’; (which he explained commonly in his experience referred to 12 year old and 15 year old respectively) and ‘Lolita’ which Detective Acting Sergeant Klink, as a result of his police investigations experience, considered indicated the accessing of CEM.
There were also various references to LS Magazine which he knew to be a suite of images of children dressed and then progressively undressed until they were eventually naked and their genitalia exposed. Additionally, there were a significant number of references to accessing a url named ‘ which he knew from experience to be commonly used to access CEM. Torrent files were in his experience also commonly used to access CEM because they download a stream of images from many individual sites and are a fast way to download a considerable amount of CEM and share images. The recent file list in Windows Media Player listed video files recently played. These included references to ‘teenage anal princess’ and ‘Kara Russian teen model’.
Detective Acting Sergeant Klink instructed one of his team members, Constable Joch, to search the internet using the information located on AB’s computer. Images of CEM were located when this was done, and these were downloaded and printed. Detective Acting Sergeant Klink had viewed the material. He considered this established a direct link between the information on the computer and CEM.
AB declined to be interviewed by the Queensland Police Service representatives. Criminal charges were not brought against AB. Detective Acting Sergeant Klink advised that in light of the criminal standard of proof, because no child exploitation images were found on the computer the QPS ultimately did not charge AB with an offence.
In these proceedings, AB has denied the allegations.
Discussion of the Evidence
The applicable standard of proof for the disciplinary referral is the balance of probabilities, having regard to the factors set out in Briginshaw v Briginshaw.[4] This is a variable standard, which requires that regard be had to the consequences which flow in the event of an adverse finding. The consequences in disciplinary proceedings are potentially very serious. The standard is accordingly high. The respondent’s primary submission is that no adverse finding should be made against him given the requisite standard of proof.
[4] [1938] HCA 34.
AB did not give evidence to the Tribunal. Nor did his legal representative cross-examine the witnesses for the QCT. Accordingly, the evidence given by Detective Acting Sergeant Klink and Mr Stevens-Hoare was unchallenged. The Tribunal accepts their accounts of events regarding the execution of the search warrant and subsequent investigations undertaken by each of them.
Constable Joch, whom Detective Acting Sergeant Klink caused to search the internet using the information from the computer used by AB did not give evidence. The Tribunal had hearsay evidence from Detective Acting Sergeant Klink to the effect that this had been done and this resulted in location, downloading and printing of CEM. However, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[5] The applicant urged the Tribunal to accept the hearsay evidence as proper evidence of the investigating authority because the chain of evidence was not broken as Detective Acting Sergeant Klink and Constable Joch were investigating professionals within a team. The respondent made no submissions about the issue.
[5] QCAT Act, s 28(3).
The Tribunal is mindful of the standard of proof and the serious consequences of an adverse finding for AB. Ultimately, it considered that the evidence should be accepted as proper evidence of the QPS. Detective Acting Sergeant Klink had instructed the steps taken by Constable Joch to search the internet using the information located on the computer used by AB and he had seen the CEM downloaded as a result of the steps taken.
The Tribunal considered the expert opinion evidence of Mr Stevens-Hoare regarding the possibility of compromise of the network. Mindful of the standard of proof, the Tribunal accepted his evidence that because the forensic examination indicated that the CEM was downloaded from the internet to AB’s computer that it is most improbable that the information which was found in the registry resulted from hacking activities of another person.
The Tribunal also considered the likelihood of the CEM being accessed by any other person in the household. Given the apparently deliberate course of conduct to repeatedly access CEM, the Tribunal considers it highly improbable that one of the children in the household could have accessed the material accidentally or intentionally, especially given that the evidence indicates that neither of them used the particular computer to their parents’ knowledge. The Tribunal also considers it most improbable that Ms AB accessed the CEM, in view of the evidence that she almost never used the computer concerned and the repetitive nature of the accessing of CEM.
The Tribunal considers that the presence and regular running of the Z Delete program on only the computer generally used by AB suggests that he was accessing material about which he was sufficiently concerned about to systematically destroy evidence of it, after downloading and viewing.
In all of the circumstances, the Tribunal considers it is reasonable to draw the inference, and it does draw the inference, that that the person who generally used the computer, namely AB, located, downloaded and viewed the CEM which was subsequently identified and located as a result of the police investigation. Further, the Tribunal draws the inference that he regularly ran the Z Delete program to destroy evidence that he had downloaded the CEM.
The Submissions of the Parties
In essence, QCT urges the Tribunal to accept the available evidence as sufficient to satisfy the Tribunal that a ground for disciplinary action exists, namely that AB is not suitable to teach.
The QCT acknowledges that placement of conduct on a continuum is complicated, and that
…….The gravity of professional misconduct is not to be measured by reference to the worst cases, but to the extent to which it departs from proper standards….[6].
QCT submits that the conduct constitutes indirect participation in child sexual abuse and it stresses the seriousness of such behaviour in the context of considering a person’s suitability to teach and the child protection focus of the Act. In this regard, QCT places reliance on Victorian Institute of Teaching v Nolan[7] (Nolan). In that case, comments were made regarding the inappropriateness of a teacher having images of young children and adolescents engaged in sexual activity and poses stored on his laptop computer in a profession which focused on providing a safe and nurturing environment. Further, it was noted that such behaviour had significant potential to bring teachers and the teaching profession into disrepute. It further submits that the respondent did not demonstrate insight or remorse.
[6] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638.
[7] Decision 061 (17/4/08).
QCT submits that it is appropriate to cancel AB’s registration and prohibit him from seeking registration for a period of 4 years. It was argued that Medical Radiation Technologists Board of Queensland v Groves[8] (Groves) in which the radiologist was prohibited from reapplying for registration for 3 years and 6 months was analogous. Additionally, QCT submits that conditions should be imposed regarding any re-application for teacher registration made by AB, as follows:
[8] [2010] QCAT 528.
1.That upon making any re-application for teacher registration the respondent provide evidence that he has undertaken counselling from a registered psychologist, such counselling to include:
(a) Counselling as to the effects on children being sexualised, and children as victims of child pornography;
(b) The legal obligations of teachers/tutors;
(c) Risk assessment and early issue identification of potentially problematic situations as well as initiating realistic solutions for avoiding risk of harm to students;
(d) An in depth examination of the extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor;
(e) Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
(f) The awareness of the trust and power granted to a teacher.
2.That a psychologist’s report be obtained by the respondent and provided to the QCT, to include:
(a) An indication by the psychologist whether the respondent has adequately understood and addressed the above points;
(b) Reference to the psychologist having been provided with the decision and the facts and circumstances in relation to the matter.
The respondent concedes through his lawyers that if the Tribunal determined the allegations against AB, that cancellation of registration should follow. However, it was argued that the prohibition period before possible reapplication should be for a period not exceeding 2 years. It was noted that unlike the situation in Nolan, it was not alleged that material had been stored on a work computer, and it was not alleged that some offensive material might be accessible by other staff and students on the school server as a result. It is argued that 4 years would be disproportionate. In making the submission reliance was placed on the decision of QCT v Ashton.[9] In that case, the teacher’s registration was cancelled for 2 years after engaging in a sexual relationship with a student from the high school at which she taught.
[9] [2010] QCAT 80.
In the event that the disciplinary matter was determined against AB, it was accepted that the conditions proposed by the QCT would be appropriate.
The respondent’s representative argued that AB demonstrated insight by conceding that if the Tribunal found the allegations against him established, that cancellation of the registration should follow. Further, it was argued that his denial of the allegations should not increase his penalty.
In respect of the decision in Groves, the respondent argued that case was distinguishable as Mr Groves had pleaded guilty to criminal charges of possessing CEM and knowingly participated in criminal conduct and the Tribunal in that case doubted that he was remorseful, whereas AB had not been charged with an offence.
Is a ground for disciplinary action established?
A teacher works closely with many children and is in a position of trust and authority over them. A teacher at a high school works specifically with teenage children. Parents and the community repose a high level of trust in a teacher to act appropriately.
Young teenage girls in particular were the focus of the CEM accessed by AB. The Tribunal considers that AB’s actions in seeking out, downloading and viewing CEM, represents a significant departure from the expected standards of behaviour of a teacher. It is participation in indirect child sexual abuse and indicates an inappropriate sexual interest in young teenage girls. The Tribunal considers that the behaviour engaged in is not only highly inappropriate but has significant potential to undermine the standing of teachers and to bring the profession of teaching into disrepute.
The Tribunal is therefore satisfied that AB has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher and the actions render AB unsuitable to work in a child-related field. Accordingly, the Tribunal finds AB unsuitable to teach and that accordingly, a ground for disciplinary action exists.
What disciplinary action should be taken?
This is a difficult decision. The Tribunal must make its decision having regard to the individual circumstances of the behaviour and the extent to which it departs from acceptable standards. The decided cases relied upon by the parties provide limited assistance.
AB did not have sexual contact with a student. Also, it is not alleged that the CEM accessed by him involved teenage girls engaged in sexual acts, rather it involved them being in sexualised poses and with their genitalia exposed. The images were not accessed and downloaded on a work computer and were not available or viewed by AB while he was attending the school community, and there was no risk of other members of the school community viewing them accidentally.
Notwithstanding that these potential aggravating features are not present, as the Tribunal has earlier observed, young teenage women were the focus of the CEM accessed by AB. This is most concerning given that as a high school teacher he would be expected to have daily close unsupervised contact with many young teenage girls who fit this description. Further, AB was in a senior position at the time the behaviour occurred and accordingly in a senior role within the school community.
It is not apparent to the Tribunal whether he has insight into the inappropriate nature of the behaviour, notwithstanding his concession that cancellation of registration must follow an adverse finding. The Tribunal does not accept that the concession demonstrates insight into the inappropriateness of the behaviour; rather it may suggest that he is prepared to take legal advice about likely outcomes in the event of an adverse finding. The use of the Z Delete program to destroy evidence of the behaviour suggests that he is aware that the law considers it inappropriate and that it would be to his detriment if his activities were discoverable. However, his personal insight into the behaviour and any remorse he may have experienced is unknown.
The Tribunal takes into account that the age group which was a focus of the CEM is an age group with which AB might expect to have regular contact in his teaching role, and also that he held a senior role within the school community. It views the actions as most serious and considers that a significant period of prohibition is warranted.
The Tribunal considers that the respondent’s registration should be cancelled and that he should be prohibited from reapplying for registration for a period of 3 years. In doing so, the Tribunal takes into account the date that AB’s registration was suspended. Further, the Tribunal considers it appropriate to impose the conditions sought by QCT regarding any reapplication. Orders are made accordingly.
Application for non–publication order
The Evidence and Submissions
The application for a non-publication order in respect of the Tribunal’s decision and information that may enable AB to be identified is supported by reports from various medical practitioners and psychologists who express opinions that publication of the information may endanger the mental health and safety of the respondent; and the mental health of his wife and one of his children.
In respect of the respondent, reports are provided by Dr EL, a general practitioner, and Mr BJ, a psychologist. BJ considers AB has a Major Depressive Disorder. He says that AB is seriously considering suicide in order to avoid the further distress to his wife and child that public identification of him as a person being investigated for ‘child exploitation matters’ would cause them. It is his opinion that for the sake of the respondent’s mental health and possibly his life, that any public information about the matter should not identify him.
Dr EL also opines that it would be extremely likely that the respondent’s mental health would deteriorate should he be identified in the media or in public, and that this may exacerbate his depression and the propensity for suicide.
Reports were also provided about Ms AB by Dr JS, psychiatrist; Dr HM, general practitioner; and Dr AC, psychologist. Dr JS is treating her for a Major Depressive Disorder which has developed following the investigation and allegations against her husband. She considers that it is likely that her mental health will be adversely impacted if information or findings are made publicly available. Dr AC considers that her mental health has deteriorated as a result of the proceedings against her husband and describes it as ‘precarious’. She expresses the view that it is highly likely that it will deteriorate further should information about the QCAT proceedings be publicly released. Dr HM expresses a similar view.
Dr HM has provided a report about one of the respondent’s children. She reports that she considers the child has developed an adjustment disorder with very anxious mood as a result of an issue and the dramatic impact it has had on her parents and the household. The child does not know the details of the issue. She considers that public identification of AB and the allegations made would endanger the mental health of the child.
The respondent seeks a non-publication order regarding the Tribunal’s decision and information that may enable him to be identified. The applicant concedes that the available evidence supports a finding that the physical or mental health or safety of a person may be endangered by the publication of identifying information. However, the applicant considers that the concession would not be readily given if not for the potential harm to the respondent’s wife and child. In this regard the applicant submits that there is deterrent effect in the naming of persons who might otherwise depart from acceptable professional boundaries.
Consideration and Decision
The Tribunal may only make an order under section 66 of the QCAT Act if the criteria set out in that section are met. The criteria include that it is necessary for reasons including to avoid endangering the physical or mental health or safety of a person.
The reports are unchallenged. The reports suggest that the mental health of the respondent, his wife and his child is likely to further deteriorate if publication of the reasons for decision or any other identifying material is made publicly available. The Tribunal is satisfied that it is appropriate to exercise its discretion to make a non-publication order to avoid endangering the mental health of Ms AB and the child and makes orders accordingly.
The legislative provision contemplates that a non-publication order may be made in these circumstances in respect of the respondent’s mental health. However, it does not require that an order be made. It permits an order to be made in the Tribunal’s discretion. The Tribunal considers that there is considerable deterrent effect in publicly naming professional persons whose conduct attracts disciplinary sanction. It is likely that there would rarely be a proceeding in which a respondent whose behaviour has resulted in a disciplinary ground being established who does not experience symptoms of anxiety and depression and who would prefer to escape the public embarrassment and humiliation associated with the public exposure of their behaviour. In this regard, the Tribunal notes the approach and comments made in QCT v Stark.[10] Accordingly, the Tribunal may have been inclined to refuse the application for a non-publication order in the absence of evidence regarding the endangerment of the mental health of the respondent’s wife and child.
[10] [2010] QCAT 592.
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