Queensland College of Teachers v Galletly

[2010] QCAT 82

CITATION: Queensland College of Teachers v Galletly [2010] QCAT 82     

PARTIES:	Queensland College of Teachers
v
Mark GALLETLY

APPLICATION NUMBER:            OCR009-09              

MATTER TYPE:

HEARING DATE:   3 March 2010

HEARD AT:   Brisbane

DECISION OF: C Endicott R Joachim B Day

DELIVERED ON:   16 March 2010     

DELIVERED AT:   Brisbane

ORDERS MADE:  Ground for disciplinary action not established

CATCHWORDS :  Teacher- acquitted of criminal offence – whether ground for disciplinary action – whether suitable to teach – section 92(2) of Education (Queensland College of Teachers) Act 2005 examined.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Queensland College of Teachers represented by Karyn Alton, principal legal officer, Queensland College of Teachers.
RESPONDENT:	Mark Galletly represented by Andrew Knott, Macrossans Lawyers.

REASONS FOR DECISION

History of the matter

1. On 26 October 2004 a series of events began which were to have a significant impact on Mark Galletly, then a registered teacher in Queensland, who was employed by Education Queensland at the School of Distance Education in Charleville.  On that day a compact disc (CD) containing child pornographic images was found in one of the school’s laptop computers at the school. 
2. According to the school records, the computer had been signed out to Mr Galletly between 17 September 2004 and 4 October 2004. The computer had also been in Mr Galletly’s possession from the afternoon of 15 October 2004 until the morning of 18 October 2004. 
3. Some days after 26 October 2004, a search of the computer revealed that a private internet account set up on the computer in the name of Mr Galletly and his wife contained two internet sites with sexual content.  
4. Mr Galletly was suspended from duties on full remuneration by Education Queensland on 3 December 2004.   A police investigation was conducted and in April 2005 police executing a search warrant at Mr Galletly’s residence found child pornography images on the hard drive of a computer at the residence and on a CD which matched the images on the CD found in the school laptop computer in October 2004.
5. On 8 June 2005 Education Queensland changed the terms of Mr Galletly’s suspension to suspension without remuneration.  As a result of submissions from his lawyers, the suspension from duties was lifted on 11 August 2005 and Mr Galletly was able to return to work at the School of Distance Education.    
6. On or about 23 November 2005 Mr Galletly was charged with possession of an objectionable computer game under the Classification of Computer Games and Images Act 1995, copying or attempting to copy computer games under that same Act and possession of child exploitation material under the Criminal Code 1899.
7. Education Queensland suspended Mr Galletly from his duties without remuneration from 28 November 2005 although through an administrative error by Education Queensland Mr Galletly accessed paid sick leave and then sick leave without pay until 1 December 2006. 
8. On 9 February 2006 a decision was made by the Queensland College of Teachers to suspend Mr Galletly’s registration as a teacher under section 49 of the Education (Queensland College of Teachers) Act 2005 on the basis that he was considered an imminent risk to children.  At a hearing held by the Teachers Disciplinary Committee of the College on 3 May 2006 Mr Galletly made an application to have the suspension of his registration set aside but on 12 September 2006 the Teachers Disciplinary Committee dismissed that application and upheld the suspension of his registration. 

1. On 10 September 2008 Mr Galletly was found not guilty by the District Court of the charges brought against him.  

10.Mr Galletly’s teacher registration was cancelled on 8 April 2009 as he failed to renew his registration.    

11.From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) is the disciplinary body with responsibility under the Education (Queensland College of Teachers) Act 2005 to determine whether grounds for disciplinary action exist with regard to registered teachers or persons who were formerly registered teachers. The Queensland College of Teachers has referred for the Tribunal’s determination the matter of whether a ground for disciplinary action exists in the case of Mr Galletly.

Preliminary issue

12.Written submissions had been lodged with the Tribunal prior to the date of hearing in compliance with directions made by the Tribunal on 8 December 2009. The submissions of the Queensland College of Teachers in paragraphs 21 and 22 were as follows:  

21  The issue to be determined by QCAT pursuant to s.158 of the Act is whether a ground for disciplinary action against Mr Galletly has been established, and specifically whether Mr Galletly is not suitable to teach pursuant to ss.92(1)(h) & (2)(c) of the Act. 

22 By virtue of s.92(2)(c) of the Act, the ground for disciplinary action on the basis that Mr Galletly is not suitable to teach under s.92(1)(h) is necessarily established.

13. At the hearing the representative of the Queensland College of Teachers confirmed that the submissions were based on an interpretation of section 92(2)(c) of the Education (Queensland College of Teachers) Act 2005 as having statutorily established that Mr Galletly was unsuitable to teach by the mere fact that his teacher’s registration had been suspended under section 49 of that Act. It was submitted that the only task left to the Tribunal was to determine what penalty should be imposed on Mr Galletly.
14. Such an interpretation was based on the wording in section 92(2) that the ground for disciplinary action mentioned in section 92(1)(h), i.e. the teacher is not suitable to teach, is taken to apply to a teacher who has been suspended under section 49 of that Act. The submissions of the Queensland College of Teachers equated the wording “taken to apply” with “necessarily established”. The Tribunal did not agree with that submission.
15. It is clear from section 97(4) that the role of the Tribunal when conducting a disciplinary proceeding is to make decisions about the disciplinary matter referred to the Tribunal. Section 158 provides that the Tribunal must decide whether a ground for disciplinary action against a teacher has been established. If the Tribunal decides that no ground for disciplinary action has been established, section 159 requires the Tribunal to end any suspension that had been imposed under section 49.
16. The Tribunal considers that the provisions contained in sections 158 and 159 are inconsistent with the interpretation placed on section 92(2) by the Queensland College of Teachers. The Tribunal considers that all section 92(2)(c) achieves is to regulate what ground of disciplinary action is to be relied on by the Queensland College of Teachers when a case of a teacher suspended under section 49 is referred to the Tribunal for determination. It is the responsibility of the Tribunal to determine whether the ground is made out or not.
17. The Tribunal made a preliminary determination that rejected the submissions made by the Queensland College of Teachers on this point in order to provide the representative of the Queensland College of Teachers with the opportunity at the hearing to expand on her written submissions as to whether there was evidence to establish that Mr Galletly was unsuitable to teach.  

The Evidence

18. Evidence was adduced to the Tribunal by the Queensland College of Teachers via tendered documents (exhibits 1, 2 and 3).  In essence, the evidence of the Queensland College of Teachers was that a CD containing child and adult pornographic images had been found by a student on 26 October 2004 in a laptop computer belonging to the School of Distance Education in Charleville.  An examination of the same computer found that a private internet account had been set up on the computer in the name of Mr Galletly and his wife and contained two internet sites with sexual content. 
19. A search of Mr Galletly’s residence by police located a hard drive containing two child pornography images that had been located on the CD in the school laptop, additional child pornography images and a CD containing the same child pornography images located on the CD found in the school laptop computer.  
20. Mr Galletly was charged with criminal offences and at his trial in the District Court the judge directed the jury to acquit Mr Galletly of all charges on the ground that as a matter of law the Crown could not prove that Mr Galletly knowingly had possession of the material in question.          
21. Mr Galletly gave evidence that on Friday 15 October 2004 he was in possession on about dozen computers belonging to the School of Distance Education after returning from a mini school at Roma. The computers had been in a van in which he had been driven back to Charleville from Roma and on Saturday 16 October 2004 he and members of his family had moved the computers from the van into a corner of the lounge room of his house as he considered that it was too hot for the computers to remain in the van all weekend.  

22.Mr Galletly gave evidence that his family went out to dinner on that Saturday night and after they returned home, he permitted his young daughters to use one of the school computers to connect with the internet and his wife to check their emails.  He gave evidence that the computer was then packed up and returned to the corner with all the other school computers.  On Sunday Mr Galletly and his family spent all day away from home.  Mr Galletly clarified during the hearing that his daughters but not his sons accompanied he and his wife on the outings on that Saturday and Sunday. 

23.Mr Galletly could recall returning the laptops to the van but he was no longer certain as to whether he did so on the Sunday evening or the Monday morning. He did not check any of the computers before returning them to the school. 

24.He did not see anyone using the computers apart from his daughters and his wife on the Saturday evening and he did not use the computers himself during the period they were at his home.  He considered that his sons were trustworthy and that they knew that they could not use the school computers. There had been no issues with his sons using school computers on other occasions and Mr Galletly had not considered there was any reason to expressly tell his sons not to use the school computers on the weekend of 16/17 October 2004.  

25.Under cross-examination Mr Galletly stated that he was not aware of the existence of any departmental policy about the use of school computers outside the school environment.  He had used at his home a computer from the school on only a few occasions to do school reports or to prepare PowerPoint slides.  He had not on those occasions used the school computer to access the internet from home.

Findings of fact

26.The Tribunal found Mr Galletly to be truthful in the evidence he gave to the Tribunal and accepts his evidence. 

27.The Tribunal makes the following findings of fact:    

• From the afternoon of 15 October 2004 to the morning of 18 October 2004 about twelve laptop computers belonging to the School of Distance Education, Charleville were in the possession of Mark Galletly at his home;
• During that time some person used one of the school’s computers and accessed via the computer images containing adult and child pornography;
• A CD containing images of child pornography was found by a student at the School of Distance Education, Charleville in one of the computers that had been in the possession of Mr Galletly during the period 15 October 2004 to 18 October 2004;
• Mr Galletly did not use any of the computers during the time they had been in his possession during that period and he had no knowledge of the presence of child pornographic images on a CD in one of the computers before the CD was found by a student on 26 October 2004.

Whether ground for disciplinary action exists

28. The Tribunal is required by section 92(2) of the Education (Queensland College of Teachers) Act 2005 (the Act) to consider whether in this case Mr Galletly is not suitable to teach.  The phrase “suitable to teach” is not defined in the dictionary in schedule 3 of the Act.  The phrase is given meaning to some extent in sections 11, 12 and 12A of the Act in a chapter about registration of teachers. 
29. Submissions were made to the Tribunal that the statutory meaning assigned to the phrase “suitable to teach” in the chapter about registration should not necessarily be applied in the same manner when consideration of disciplinary issues rather than registration issues was being undertaken. No case law authority was provided for this submission other than the Tribunal being assured that it had been the practice of the former Teachers Disciplinary Committee to differentiate the use of the phrase between disciplinary matters and registration matters.    
30. The Tribunal does not agree that the wording of the Act requires any differentiation to be made between the meaning of the phrase “suitable to teach” in registration matters and the meaning in disciplinary matters.  It is logical that the factors mandating a person’s eligibility for registration as a teacher would also mandate a person’s suitability to teach. 
31. The Tribunal considers that when assessing a person’s suitability to teach, for whatever purpose, the Tribunal must have regard to:
• the person’s criminal history (section 11(1)(a))
• other information obtained during a criminal history check (section 11(1)(b))
• matters relating to information about the commission, or alleged or possible commission, of an offence including when the offence was committed, the nature of the offence and its relevance to the duties of a teacher (section 11(3))
• information held by the Queensland College of Teachers about any conviction for an offence, refusal of registration by an interstate or overseas regulatory authority, reasons for ending employment  relating to competency or suitability, the imposition of any condition on registration, suspension or cancellation of registration or other action affecting registration (section 12(1)(a))
• whether the person is suitable to work in a child-related field (section 12(1)(b))
• any other relevant matter even if the matter happened outside Queensland (section 12(2)
• whether the person poses a risk of harm to children (section 12A(1) as explained in subsections 2,3,4 and 5)
32. In addition, section 12(3) provides:

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.

33. According to exhibit 2, Mr Galletly had been registered as a teacher on 11 January 1999, his registration was suspended on 9 February 2006 and on 8 April 2009 his name was removed from the register. The Tribunal was told that Mr Galletly had failed to renew his registration in 2009 as he had moved address and he did not receive the renewal notice. 
34. The Tribunal is required by section 158(2) of the Act to have regard to any relevant previous decision by a disciplinary committee when making its decision. The Tribunal has noted the decision of the Teachers Disciplinary Committee of 12 September 2006 which found there were prima facie grounds for disciplinary action to be taken against Mr Galletly.   
35. Section 8 of the Act provides that a person is eligible for registration as a teacher if the Queensland College of Teachers is reasonably satisfied of specified professional practice requirements and the person is suitable to teach.  As a result of his name being removed from the register in 2009, Mr Galletly will have to take the steps of applying to be registered as a teacher and satisfy the Queensland College of Teachers that he is suitable to teach before he can resume his teaching career in Queensland.   
36. Those steps will be rendered difficult if this Tribunal is satisfied that the stated ground for disciplinary action i.e. that he is not suitable to teach, has been established.  Section 167 of the Act provides that the decision of the Tribunal is binding on the Queensland College of Teachers and that College is required by section 168 to give effect to the Tribunal’s decision.     
37. Turning to the matters in sections 11 and 12 set out above, it has been established that Mr Galletly has a criminal history as defined in schedule 3 of the Act as he had been charged with several criminal offences.  Although he was acquitted of all charges, being charged with those offences is sufficient to constitute a criminal history under the Act. 
38. The offences involved possession of child pornography and were directly relevant to the duties of a teacher who is in a position of trust with children and who has an obligation to exercise care to protect children from harm.  It would be difficult in most circumstances for the Tribunal to be satisfied that a person is suitable to work in a child-related field if that person is found to have been knowingly in possession of child pornography.   
39. The representative of the Queensland College of Teachers did not submit that Mr Galletly was not suitable for work in a child-related field or that Mr Galletly posed a risk of harm to children.  The submissions directed the Tribunal to section 233 which require the Tribunal to have as primary considerations the welfare and best interests of children. 
40. The main submissions made by the Queensland College of Teachers relied on section 12(3)(a) of the Act that states 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.  It was submitted that Mr Galletly had failed to exercise adequate supervision and control over the school computer while it was in his possession and that failure had resulted in pornographic and inappropriate material being able to be accessed by school students. 
41. In particular it was submitted Mr Galletly failed to secure the computers in such a way that they could not have been accessed by anyone without his knowledge. This submission criticised the actions of Mr Galletly in storing the computers in a corner of the lounge room of his house and not in a locked room or area.  While there was also some criticism during cross examination that some electronic barrier had not been in place to prevent access to the operations of the computer without using a password, the Tribunal is satisfied by the evidence that Mr Galletly had no part to play in setting passwords or inserting another form of electronic control preventing access to the school computers. 
42. It was submitted that Mr Galletly should have taken action to check the computers before they were returned to the school to ensure that they did not contain any material that should not be accessed by children at the school. 
43. The Tribunal has already stated that it found Mr Galletly to be a truthful witness.  The Tribunal accepts that there was no lockable room or area where the computers could reasonably have been securely stored.  The Tribunal accepts Mr Galletly’s evidence that he had no reason to be concerned about the security of the computers when stored in his house or to be concerned about his children using the computers without his knowledge.
44. The Tribunal has found that Mr Galletly had no knowledge of the presence of child pornographic images on a CD in one of the computers when it was in his possession. The Tribunal accepts that in the circumstances he would have had no reason to check the computers for the presence of inappropriate images before the computers left his possession. 

33. The Tribunal finds that Mr Galletly had not acted unreasonably in the circumstances.  The question however for determination is whether he is not suitable to teach i.e. whether he had acted in a manner that did not satisfy the standard of behaviour expected of a teacher.   
34. The Tribunal was not provided with evidence as to the existence of any policy in place at the School of Distance Education which regulated the manner in which teachers were expected to exercise care for school property in their possession off campus.  There was no evidence of published material setting out the standard of behaviour expected of teachers in the circumstances in which Mr Galletly had found himself in October 2004.  
35. Mr Galletly was required to act in accordance with the standard of behaviour of a teacher expected by the public when properly informed about the facts of a case.  In some cases it may be established that there is a difference between the expectations of the public and the expectations of the teaching profession over the behaviour of a teacher but this is not one such case. 
36. The Tribunal considers that the public as well as the members of the teaching profession would expect that a teacher takes all reasonable action to avoid the risk of offensive material being accessed by students.  A teacher may take all reasonable action in the known circumstances of a particular case but nevertheless may make an error of judgment in placing trust in a person who later is found not to be trustworthy.   The standard of behaviour must be evaluated on the basis of the knowledge available to the teacher at the time of the actions under examination and not at some later stage augmented with the benefit of hindsight.    
37. Taking into account the finding made by the Tribunal that Mr Galletly had not acted unreasonably in the manner in which he had dealt with the school computers stored at his home in October 2004, the Tribunal is satisfied that Mr Galletly had acted in accordance with the standard of behaviour generally expected of a teacher.  He appears to have made an error of judgment in trusting members of his household or their friends but on the evidence adduced to the Tribunal placing that trust at the time was not unreasonable. 
38. The case presented by the Queensland College of Teachers has not established that Mr Galletly is not suitable to teach and has not established that a ground for disciplinary action exists. 
39. As Mr Galletly is no longer a registered teacher, the Tribunal cannot make an order under section 159(2) to end the suspension of his teacher registration but it should be noted that no adverse findings have been made against Mr Galletly.  His registration had been cancelled due to his failure to renew and not from any factor involving his suitability to teach.

Matter for consideration

52. The Tribunal wishes to draw attention to an apparent incongruity in the Act that may only be remedied by an amendment of the legislation.  It would appear that the Tribunal, having determined that a ground for disciplinary action exists in a case of a teacher whose registration has been suspended under section 48 or 49, must find that that teacher is not suitable to teach.  Under section 160 of the Act the Tribunal is not bound to cancel the teacher’s registration but can impose a penalty that enables the person to continue to teach with either a full or conditional registration depending on the outcome imposed by the Tribunal.   However, applying the provisions in section 8 of the Act, that person is ineligible for registration as a teacher. 
53. If the phrase “suitable to teach” was intended to have the same meaning in chapter 2 as in chapter 6, then section 160(2) of the Act should be amended to provide that the subsection does not apply when a finding has been made that an approved teacher is not suitable to teach.  A new subsection may be needed in section 160 to provide that registration must be cancelled when an approved teacher has been found to be not suitable to teach.  Amendments may also be required for section 161.    
54. If the phrase “suitable to teach” was not intended to have the same meaning in chapter 2 as in chapter 6, then the wording in the Act should be amended to state that position.  The Tribunal considers that the present wording gives rise to ambiguity that should be resolved in the interests of the teaching profession, the Queensland College of Teachers and the public.