Queensland College of Teachers v Armstrong
[2010] QCAT 709
•6 August 2010
| CITATION: | Queensland College of Teachers v Armstrong [2010] QCAT 709 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Mr Norman Wayne Armstrong (Respondent) |
| APPLICATION NUMBER: | OCR010-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 9 April 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Booth, Presiding Senior Member Julie Ford, Member Stuart McDonald, Member |
| DELIVERED ON: | 6 August 2010 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Norman Wayne Armstrong is prohibited from re-applying for teacher registration or permission to teach in Queensland for a period of 5 years from the date of the decision. That the names, addresses and schools of the complainant child and child witnesses be subject to non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS : | Teacher Registration - grooming behaviour - unprofessional conduct - protective behaviours - teaching standards - no criminal conviction recorded |
APPEARANCES and REPRESENTATION (if any):
The hearing was on the papers in the absence of parties
DECISION
Norman Wayne Armstrong is prohibited from re-applying for teacher registration or permission to teach in Queensland for a period of 5 years from the date of the decision.
That the names, addresses and schools of the complainant child and child witnesses be subject to non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Introduction
From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) is a disciplinary body with responsibility for teacher discipline under the Education (Queensland College of Teachers) Act 2005 (the Teachers Act). The Queensland College of Teachers (the College) is required by the Teachers Act to refer certain disciplinary matters to the Tribunal, and it referred the matter of disciplinary action affecting a registered teacher, namely, Mr Armstrong.
Background and Legislative Framework
In March 2007, the College was notified by Mr Armstrong’s employing authority, the Department of Education and Training (DET) that it had begun an investigation into allegations that Mr Armstrong, then a deputy principal at a Queensland primary school, had engaged in conduct that had caused or was likely to cause harm to a 10 year old child. The conduct in question was referred to as “grooming behaviour”.
This notification, made under s 76 of the Education (Queensland College of Teachers) Act 2005, was followed by 2 lengthy investigations. The first was by DET. This investigation also revealed allegations of similar behaviour with two other students over a period of five years.
DET concluded that Mr Armstrong’s actions demonstrated a repeated pattern of behaviour with three children of similar age and in similar circumstances, where Mr Armstrong breached his position of trust and authority and crossed over the professional teacher-student boundaries. Further, DET found that Mr Armstrong developed inappropriate, over-familiar and intrusive relationships with the three children with evidence of his isolating each of them on varying occasions. DET dismissed Mr Armstrong in September 2008 on the basis of its investigations and findings.
No criminal charges were brought.
As a result of the notification to the College, and given the serious nature of the allegations raised, the College considered that grounds for disciplinary action may have existed. The College authorised a further investigation in May 2008, and an Investigation Report was prepared. The report reviewed the DET investigation and other background information and concluded similarly that the allegations were substantiated.
Under section 49 of the Teachers Act, the College may suspend a teacher’s registration if the College reasonably believes the teacher poses an imminent risk of harm to children and it is necessary to immediately suspend the teacher’s registration to protect children. There is no requirement for the teacher to be charged with a criminal offence.
In January 2010, the College suspended Mr Armstrong’s registration under section 49 of the Teachers Act. The basis of this suspension was that Mr Armstrong formed special relationships with three individual students over a long period, affording the student special favours, testing teacher-student boundaries, and attempting to establish trust and favour with a student’s family.
An interim order issued by the Tribunal continued the suspension under section 152 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
The disciplinary hearing and evidence
10. Section 97(3) of the Teachers Act provides that if a teacher is suspended under section 49 then the College must refer the disciplinary matter to the Tribunal immediately after suspension. The Tribunal must then conduct a hearing and make a decision whether there is a ground for disciplinary action against Mr Armstrong. The ground for disciplinary action was under section 92(1)(h), namely, “the teacher is not suitable to teach”.
11. If the Tribunal decides that a ground for disciplinary action exists against an approved teacher, the Tribunal can cancel the teacher’s registration or permission to teach and make an order prohibiting the teacher from reapplying from registration or permission to teach for a stated period that is not more than 5 years (Teachers Act section 160(d)and (j)).
12. Under section 32(2) of the QCAT Act, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without the parties’ representatives or witnesses appearing at the hearing. Mr Armstrong was initially represented by Macrossans Lawyers. His lawyers continue to be a point of contact for service, and the Tribunal is satisfied that that Mr Armstrong had notice of the hearing and chose not to contest the nature of the proceedings.
13. Due to the uncontested nature of these proceedings it was appropriate to proceed by way of hearing on the papers.
14. The following evidence was provided to the Tribunal by the College:
·an Investigation Report dated 28 August 2007 prepared by the employer the Department of Education;
·the decision of the Industrial Court of Queensland and the Queensland Industrial Relations Commission dated 26 November 2009;
·transcript of the College interview “MR”;
·transcript of police record of interviews between “KR” and “MAC” at 16 July 1998.
·further Investigation Report dated 1 February 2010 (provided on 3 computer disks)
15. The College submitted that the further Investigative Report dated 1 February 2010 was prepared because of the serious nature of the allegations made against Mr Armstrong and the limited disciplinary information which was essentially by way of complaint or information. The College considered it could not reasonably establish that a ground for disciplinary action existed against Mr Armstrong without a further investigation despite the disciplinary information received indicating that grounds for disciplinary action may have existed. This further report concluded that Mr Armstrong:
(a)acted in a unprofessional and overly-familiar way involving interactions and associations with students;
(b)failed to adopt protective behaviours, thereby placing himself and students in compromising, at risk, or inappropriate situations;
(c)breached policies of the employing authority and the College intended to protect the welfare and best interest of children and to uphold the standards of the teaching profession.
16. The College made the following allegations in relation to Mr Armstrong:
1.that he formed a special relationship with a student (Student One);
2.afforded Student One special favours;
3.allowed Student One to overstep the rules;
4.tested student-teacher boundaries with Student One;
5.formed a special relationship with another student (Student Two);
6.attempted to establish trust and favour with the family of a third student (Student Three);
7.tested student-teacher boundaries with Student Three.
17. The College submits that for each of these allegations there is supporting evidence and examples:
Allegation one
Mr Armstrong formed a special relationship with Student One. The College submitted that he attended Student One’s sporting event outside of school hours, made social visits to student one’s home. Mr Armstrong demonstrated common interests with Student One including taking him on an unscheduled visit to a motorbike shop. Further, Mr Armstrong gave Student One gifts including stickers, badges and food.
Allegation two
Mr Armstrong allowed Student One inappropriate access to computer websites on the deputy principal’s computer and showed him inappropriate emails and provided him with lollies and chocolates that had not been earned as a reward.
Allegation three
Mr Armstrong permitted Student One to overstep the rules and his approach to Student One’s behaviour management was not consistent with his approach to behaviour management of other students.
Allegation four
Mr Armstrong tested student-teacher boundaries with Student One including:
·showering alongside students;
·sitting directly outside Student One’s shower cubical during a school camp; and
·taking Student One to the shower block that was only accessible by key and showering alongside him and not advising any other member of staff of his whereabouts or intentions.
Allegation five
In relation to Student Two (9 – 11 years old at the relevant time), Mr Armstrong gave student Two gifts, including but not limited to food and a Nike cap for his birthday. Further, Mr Armstrong transported Student Two in his personal car. On a holiday interstate Mr Armstrong shared a bunk bed in a bedroom area with the then year seven student for a period of five days.
Allegation six
In relation to Student Three, Mr Armstrong attempted to establish trust and favour with Student Three’s family by contributing to school camp costs.
Allegation seven
Mr Armstrong tested teacher-student boundaries with Student Three by taking the student in his car without notifying the school.
18. The College submits that the evidence establishes the allegations. Further, the College submits the evidence is overwhelming and credible and is supported by independent witnesses and sources.
19. Mr Armstrong did not give evidence before the Tribunal. However, the Tribunal does have access to interviews and transcripts of recorded interviews in the Investigation Report. Although unsworn evidence, Mr Armstrong willingly participated in these interviews which were conducted in the regional District Office. The interviews were recorded. During the interview Mr Armstrong was supported by the then principal of the school.
20. At these interviews the following admissions and comments were made Mr Armstrong:
·Mr Armstrong admitted giving money to Student One to buy a sausage roll which Student One shared with his brother;
·Mr Armstrong was observed on a number of occasions visiting Student One’s desk after school although Mr Armstrong denied it was everyday;
·Mr Armstrong allowed Student One access to the internet via the computer in his deputy principal’s office;
·Mr Armstrong allowed Student One to surf the internet and play computer games although he said access to the internet was only to find a particular screen saver;
·Mr Armstrong showed Student One inappropriate emails and admitted he had not sent similar emails to other students;
·Mr Armstrong admitted he attended a number of football games on Saturday mornings to watch Student One and that telephone numbers were exchanged to confirm dates and times of events;
·Mr Armstrong attended Student One’s home on three occasions. It is disputed whether he was invited or, as the student’s parents alleged, they felt pushed and manipulated into inviting him;
·Mr Armstrong admitted that on two occasions he went into Student One’s bedroom to listen to him play the guitar and that on one of those occasions it was only two of them in the bedroom;
·Mr Armstrong admitted taking Student One in his car (with the student’s mother’s permission) and taking him to McDonalds and buying the student a meal;
·Mr Armstrong admitted taking Student One to a motorbike shop and buying him a sticker;
·Mr Armstrong admitted giving Student One chocolates and money for food for the tuckshop;
·On school camp, Mr Armstrong admitted to showering towards the end of the boys showering as cubicles became available. Mr Armstrong admitted that only he and Student One were in the shower block at the same time;
·Mr Armstrong admitted he may have been in Student One’s cabin on his own with the student for a short period of time;
·Mr Armstrong admitted that he and Student Two were “mates”. Mr Armstrong admitted to buying food for Student Two but alleged that the student had paid for the food;
·Mr Armstrong had contact with Student Two and his family outside the school. Student Two’s parents alleged Mr Armstrong was not invited to watch Student Two’s elder brother play football but Mr Armstrong, who recalled attending, did not know who invited him;
·Mr Armstrong attended a regional show and took Student Two to the show in his car;
·Mr Armstrong admitted to attending Student Two’s 12th birthday party, but there is a dispute as to who had invited Mr Armstrong;
·Mr Armstrong gave Student Two a cap for his birthday
·Mr Armstrong stated he did not believe it was inappropriate for him to attend Student Two’s birthday party;
·Mr Armstrong was alleged to have invited himself on an interstate trip with Student Two’s family. Mr Armstrong disagreed. He admitted attending the trip but he considered it was a mutual decision;
·Mr Armstrong shared bunk beds with Student Two but he did not believe it was inappropriate;
21. The College submits that Mr Armstrong’s conduct can be described as ‘grooming behaviour’ of three students.
22. Whether or not the allegations and evidence reach the threshold for criminal charges, the College asserts the evidence warrants cancellation of his teaching registration and prohibition from re-applying for the maximum period of five years.
Discussion and Findings
23. The question for the Tribunal whether the College has established a ground for disciplinary action against Mr Armstrong.
24. Mr Armstrong is presently 50 years of age. He was registered as a teacher in Queensland in 1993.
25. In January 2010 he was suspended under section 49 of the Teachers Act. This followed notification to the College from DET, alleging inappropriate interactions with young students. An Investigation Report was provided to the College by its Professional Practice and Conduct Committee. This Committee referred the matter to the Tribunal under section 115(1)(b) of the Teachers Act.
26. There are a significant number of examples provided for each allegation made against Mr Armstrong. The College has sought to rely on the various reports, particularly the Investigation Report and a further proceeding conducted in the Queensland Industry Relations Commission.
27. Mr Armstrong admitted to over one-third of the total allegations made in the Investigation Report. The Tribunal has only relied on those allegations that have been admitted by Mr Armstrong.
28. The Tribunal was urged to take into account the conclusions in the decision of the Queensland Industrial Relations Commissions. The Tribunal is not limited in any material at all that it takes into consideration making a determination. Under section 147 of the QCAT Act the Tribunal may adopt, as it considers appropriate, findings and decisions of other tribunals. The Queensland Industrial Relations Commission decision was detailed and thorough and touched on many of the issues that also concern this Tribunal. However the focus of the Commission’s decision and evidence was whether Mr Armstrong’s dismissal was harsh, unjust or unreasonable. For those reasons it is of a marginal relevance to the Tribunal’s decision, although the findings are consistent with the investigative report provided by the College.
29. The College sought to describe Mr Armstrong’s behaviour as “grooming”. The Tribunal notes that the literature describes grooming behaviour as consistent patterns of behaviour that explains the grooming of children by adults. It is a process by which an adult, who may have a position of responsibility for the child, creates opportunities to be alone with the child and eventually to sexually abuse that child. The trust of the child is gained and a “special” relationship is developed with the child. Grooming involves making the child feel important and special by giving the child special attention, privileges and gifts. The family can be engaged by the adult to gain access to the child. The child can be encouraged to see the adult as a friend. Opportunities will be created to be alone with the child. Adults who groom children may target those from a specific age and degree of vulnerability[1].
[1] Sanderson, C The Seduction of Children. 2004.
30. The standard of proof in disciplinary proceedings is civil not criminal. It is based on the test in Briginshaw[2]. It requires the Tribunal to find on the balance of probabilities but must have regard to the serious consequences for Mr Armstrong.
[2] Briginshaw v Briginshaw (1939) 60 CLR 336.
31. The issue for the Tribunal is whether a ground for disciplinary action under section 158 of the Teachers Act has been established.
32. Section 12(3)(a) of the Act provides that a person is not suitable to teach if that person… behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher.
33. The …standard of behaviour generally expected of a teacher is not defined. However, the Tribunal agrees that 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.
34. Section 12(1)(b) of the Act also provides for consideration of whether a teacher is suitable to work in a child-related field. This test had been explored in the field of child protection, and specifically in the Family Law jurisdiction, where the paramountcy principle of what is in the best interests and welfare of children can be transported over to the field of child protection.
35. This principle is reflected at section 233 of the Act which provides an obligation upon the College in performing its functions, and the College submits that the teaching profession is one that falls squarely within a ‘child-related field’, and that Mr Armstrong’s actions are contrary to the welfare and best interests of children. In Commission for Children, Young People and Child Guardian v Maher [2004] QCA 492, McPherson JA confirmed the principle that the welfare and best interests of a child was the paramount consideration “to which all others yield”.
36. The Tribunal agrees both that the teaching profession is clearly within the child related field and that Mr Armstrong’s admitted actions are not consistent with the welfare and best interests of children.
37. The admissions about access to the computer; giving money to students; and attending out-of-school events support the Investigation Report’s conclusion that Mr Armstrong acted in an unprofessional and over-familiar way with students.
38. The incident of showering in the student block, allowing students in the car without other adults, being alone with students indicates a failure to adopt protective behaviours and breaches of the employer’s policies.
39. The Investigative Report, including the admissions on the transcript by Mr Armstrong, establish the College’s case that there is credible evidence that Mr Armstrong engaged in unprofessional behaviour with student one and had inappropriate relationships with students two and three.
40. Mr Armstrong’s actions reveal a repeated pattern of behaviour with three children of a similar age and in similar circumstance, where Mr Armstrong breached his position of trust and authority and crossed over the professional teacher-student boundaries.
41. The Tribunal concludes that Mr Armstrong’s behaviour that does not satisfy a standard of behaviour generally expected of a teacher and that pursuant to section 92(1)(h), Mr Armstrong is unsuitable to teach and the Tribunal is satisfied the material presented raises grounds for disciplinary action.
42. Having established that the College has satisfied the Tribunal that Mr Armstrong is unsuitable to teach on the basis of the Investigative Report, it is unnecessary for the Tribunal to decide whether Mr Armstrong engaged in grooming behaviour.
43. The College sought a penalty of prohibition from re-applying for teacher registration for a period of 5 years under section 160(2)(d) and (j). This was because at the time of the hearing on 9 April 2010, Mr Armstrong was a registered teacher. However, on the 10 May 2010, the College advised that Mr Armstrong’s status had changed from approved teacher to former approved teacher after the non-renewal of his registration. The College has sought the same sanction under S161(1)(c) which similarly provides for a prohibition from applying for registration for 5 years.
44. Mr Armstrong did not provide any instructions to his solicitor about this penalty. The Tribunal was advised that Mr Armstrong asked that his lawyer contact him when the matter was finalised and that he be advised on the outcome.
45. The Tribunal considers that the penalty sought is appropriate. This is because almost all his actions, on their own, may not be described as serious misconduct, together, over a period of a decade, Mr Armstrong demonstrated unprofessional, over-familiar interactions with three different children and a failure to adopt protective behaviours. There were clear and consistent breaches of Mr Armstrong’s employer’s policies that are aimed to ensure the welfare and best interests of children and the teaching profession.
46. The Tribunal concludes that the ground for disciplinary action is established against Norman Wayne Armstrong that he is not suitable to teach. Further he is prohibited from re-applying for teacher registration or permission to teach in Queensland for a period of 5 years from the date of the decision. Non-publication is warranted to protect the children concerned.
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