Queensland College of Teachers v Nairn
[2010] QCAT 387
•10 August 2010
| CITATION: | Queensland College of Teachers v Nairn [2010] QCAT 387 |
| PARTIES: | Queensland College of Teachers |
| v | |
| Mark Leonard Nairn |
| APPLICATION NUMBER: | OCR102-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe – Presiding Member Beverley Day – Member Ron Joachim – Member |
| DELIVERED ON: | 10 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1) The teacher’s registration be cancelled and he is prohibited from reapplying for registration for a period of 12 months from the date of the hearing 2) The teacher is to attend a minimum of 6 counselling sessions with a registered psychologist or psychiatrist within 12 months of the date of this order. These sessions are to address the following: a) The implementation of protective strategies to reduce the chances of the teacher engaging in behaviours inappropriate for a teacher; b) Reducing the teacher’s anxiety arising from trauma relating to the break down of his marriage, his move to Charters Towers and financial loss ; c) Identification of situations and management strategies for situations that could expose the teacher to allegations of inappropriate behaviours. The psychologist or psychiatrist consulted is to provide a report to the Queensland College of Teachers outlining the teacher’s progress in these sessions after the conclusion of the 6th session. 3) The cancellation of Mr Nairn’s registration be wholly suspended for a period of 12 months from the date of hearing. If, at the conclusion of that period: a) Mr Nairn has successfully undertaken the counselling required by paragraph 2 of this order; and b) He has not engaged in any conduct that would give rise to a breach of section 48 or 49 of the Act; paragraph 1 of this order is of no effect. |
| CATCHWORDS : | Fitness to teach – where teacher attended a student poker party – where teacher provided alcohol to students – where teacher gambled with students – where teacher used inappropriate language – where teacher was alone in with female student at night in her car – where incident was “one-off” – whether exceptional circumstances - McBride –v- Walton - QCT –v- Ashton - QCT –v- Mann - QCT –v- Falesimatama - QCT –v- Fields – ss 12(3), 48, 49 and 92(1)(h) Education (Queensland College of Teachers) Act |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Mark Pollock, legal officer of the Queensland College of Teachers |
| RESPONDENT: | Mr Andrew Knott of Macrossans Lawyers |
REASONS FOR DECISION
The teacher in these proceedings is Mark Leonard Nairn, an approved teacher whose registration certificate is due to expire on 31 December 2010.
He was first registered to teach in Queensland on 3 February 1997 and at the time of this hearing was 41 years old.
In October 2009, information was received from the Queensland College of Teachers from Mr Nairn’s employing school, notifying the College about an investigation and Mr Nairn’s resignation.
The College authorised an investigation into a disciplinary matter in November 2009 and on 19 March 2010, the Professional Practice and Conduct Committee referred the matter to QCAT under section 115(1) (b) of the Education (Queensland College of Teachers) Act 2005.
For the purposes of these proceedings, Mark Leonard Nairn admits he:
a) attended a student poker party on a weekend at the residence of a student during the school holiday period;
b) whilst at the student party, gambled and used inappropriate language;
c) commented to a female student on her short shorts;
d) allowed a female student to drive him home after the poker party;
e) whilst employed as a teacher, contacted a female student on Facebook and apologised for being a “wanker”;
f) whilst employed as a teacher, contacted a student using the school email stating “we need to talk”;
g)whilst employed as a teacher, breached the policies of the employing authority and the Queensland College of Teachers (“QCT”) as the professional registration authority for teachers in Queensland that are aimed to protect the welfare and best interests of children and to uphold the standards of the teaching profession.
Mr Nairn could not recall, and was therefore not in a position to challenge, these events alleged by the QCT:
a) that, whilst in a vehicle, he touched a student on the leg;
b) that, whilst in the vehicle, he questioned a student as to why she didn’t lie to her mother;
c)that he invited a student to stay with him for the night and repeated this invitation frequently.
Mr Nairn specifically denies these allegations:
a) that he allowed his son to travel in the boot of a student’s vehicle;
b)that he smacked a female student on the bottom.
As to the allegations in paragraph 6, the tribunal finds that there is sufficient evidence to support these findings:
a) that, whilst in a vehicle, Mr Nairn touched a student on the leg;
b)that, whilst in the vehicle, he questioned a student as to why she didn’t lie to her mother.
As to the allegation in paragraph 6(c), the tribunal finds that there is sufficient evidence to support a finding that he did invite a student to stay with him for the night and that he repeated that invitation more than once. The nature and extent of that invitation is a matter for consideration when determining penalty.
10) The QCT’s evidence as to whether or not Mr Nairn allowed his son to ride in the boot of the car is contained in:
a) paragraph 40 at pages 101 to 102 of the QCT material;
b) paragraph 100 at page 113
c) paragraphs 103 to 112 on page 114;
d) paragraph 28 at page 164;
e)paragraphs 42 to 54 at pages 178 to 179.
11) Mr Nairn admits that his son travelled in the back of the car but says that he thought it was a seven seater four wheel drive with drop down seats in the back. One of the QCT’s witnesses confirms that view; at paragraphs 62 to 64 on page 135, the witness says “In the four wheel drive, sometimes there’s a back thing…” and at paragraph 64 on the same page “…I think Nairn’s kid was like in a seatbelt, like fine…”.
12) The tribunal finds that Mr Nairn allowed his son to travel in the back of the car but is not satisfied that this area of the car can be described as a boot. Although “boot” is defined as “the luggage compartment of a motor car, usu. at the rear”[1], normal usage of the term usually indicates an enclosed space that is not visible from the main section of the car. This connotation was implicit in the QCT’s questioning of the witness recorded at paragraphs 103 to 112 at page 114. On balance, the tribunal is not satisfied that the allegation as stated has been proven.
13) The tribunal is satisfied that there is sufficient evidence that Mr Nairn touched a female student in the region of her bottom. Again, the tribunal has difficulty with QCT’s terminology. The only evidence of a “smack” is some students’ recollection of what the student in question told them. The student subjected to the behaviour did not use that terminology in her interview with the QCT. Another student who witnessed the behaviour described it as a pat. The tribunal is satisfied that Mr Nairn did touch the student but is not satisfied that it constituted a “smack”.
14) The tribunal is satisfied that, pursuant to section 12(3)(a) of the Education (Queensland College of Teachers) Act, Mr Nairn has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. The tribunal is further satisfied that, prima facie, Mr Nairn is “not suitable to teach” within the meaning of section 92(1)(h) of the Act. The tribunal is also satisfied that grounds for disciplinary action exist within the meaning of section 158(1) of the Act.
[1] The Australian Concise Oxford Dictionary 3rd edition
Penalty
15) Mr Knott, on behalf of Mr Nairn referred the tribunal to the decision of Justice Kirby in McBride –v- Walton[2]. At paragraph 26, His Honour said:
[2] Unreported, Supreme Court of New South Wales BC9402907 15 July 1994
“Once the impugned conduct is properly found and classified, it is then necessary for it to be seen in he wider context of the …”character” including evidence of “good character” as demonstrated by his or her service in the profession and the community….They may lead the tribunal to the view that the particular character impugned and proved is to be regarded as exceptional and as such will not require the ultimate conclusion that the practitioner is not of good character or if that conclusion is found, that some order short of removal from practice is appropriate to the case.”
16) Mr Knott submitted:
a) Mr Nairn was thoroughly and fairly cross-examined. Throughout, he presented as an honest, careful and reliable witness.
b) The evidence shows that this event was out of character.
c) Mr Nairn admitted in evidence that, on the face of it, behaviour of this sort should result in de-registration. It is only the exceptional circumstances of this case that make de-registration inappropriate. He accepts full responsibility for his behaviour and blames no one for it.
d)Mr Nairn clearly understands, and did understand, his obligations as a teacher. The behaviour described in paragraphs 5(e) and (f) above demonstrate that understanding, rather than the contrary.
17) It is necessary to examine the proposition that this behaviour is out of character. Mr Nairn gave evidence that:
a) He was diagnosed with depression in 2006.
b) He was prescribed a course of 75 mg daily of Effexor. Mr Nairn complained to his physician about the side effects of the drug so, in 2008, the physician increased the dosage to 150 mg. Mr Nairn was given multiple prescriptions at both 75 mg and 150 mg. Mr Nairn continued use of the drug at 75 mg but stopped any use of the drug in about July 2008.
c) In May 2009 Mr Nairn’s marriage broke down. He was feeling extremely stressed so he started taking the remaining Effexor. Within days, he felt calmer. He took whatever was left of the previous prescriptions. He did not discriminate between the dosages.
a)On the day in question, Mr Nairn took 150 mg of Effexor around lunchtime. He consumed a large quantity of alcohol when at dinner with his son and at the student party. He records that his condition and capacity to remember things declined as the evening progressed. He remembers the early part of the evening and getting out of the student’s car, but not much else. He knew he was showing off.
18) Mr Nairn telephoned his father shortly after the incident. Mr Nairn senior is a retired school principal. Mr Nairn told his father what he could remember of the night, expressing concern at what he had done. He knew that he had done the wrong thing and it was serious. His father gave him some advice which he followed. His father thought that the behaviour described was out of character.
19) Mr Knott pointed out that nearly all the students recorded that Mr Nairn was acting “weird” or was not himself. The evidence also shows impulsive behaviour, such as throwing down $50 in the poker game.
20) The tribunal had the benefit of two reports from Dr Allan Friend. The doctor:
a) noted that Mr Nairn had been traumatised by a number of events over the last four years;
b) thought that the combination of Effexor and alcohol would have affected Mr Nairn’s judgment significantly, the onset of which would be within an hour and may have lasted twelve hours;
c)The Australian Medicines Handbook records that an anti-depressant-induced manic episode may develop in some patients through the use of Effexor. One of the characteristic traits of such an episode is impulsivity.
21) Dr Friend was also available by telephone to assist the tribunal. He told the tribunal that the combination of Effexor and alcohol was a potent mix that could lead to impulsive behaviour, distorted perception and dis-inhibition. When he was asked if these were also symptoms of excessive alcohol intake, Dr Friend told the tribunal that it was possible but unlikely, given that Mr Nairn had not exhibited such behaviour in the past in circumstances where excessive alcohol consumption was the only factor. Dr Friend thought the behaviour described in the reports was out of character for Mr Nairn.
22) Mr Knott also submitted that there was no pre-meditation, no repetition, no planning and no follow up. The students were not harassed; there was no course of conduct. He therefore submitted that Mr Nairn simply receive a warning.
23) In support of the proposed penalty, QCT submitted:
a) There was evidence of minimisation. Mr Nairn’s admissions were limited and, when he did admit facts, he contextualised them. Mr Nairn lacks insight into his behaviour.
b) Mr Nairn put himself in the position of consuming a prescription drug and excessive alcohol. He did not follow the prescribed directions for use of Effexor. He put himself in a position of intoxication when with students.
c) This is very serious conduct. The behaviour was face-to-face and, in one case, Mr Nairn was alone in a car with a female student at night. The conduct is very high on the spectrum of unacceptable conduct.
d) Mr Nairn failed to report the incident.
e) The incident may have been out of character but it was not an exceptional case. There is no guarantee that similar conduct will not occur in the future.
f)The tribunal cannot give much weight to the evidence of Mr Nairn’s otherwise good character.
24) When questioned, QCT told the tribunal that Mr Nairn was not suspended pursuant to section 49 of the Act because it could not establish an imminent risk of harm to children at the time. That assessment does not sit well with the QCT’s current submission that there is no guarantee that Mr Nairn will not engage in similar conduct in the future nor its request for a three year prohibition.
25) Before the hearing, the tribunal invited the parties to make submissions on penalty, including any relevant cases. QCT referred the tribunal to the following cases:
a) QCT –v- Ashton[3];
[3] [2010] QCAT 80
b) QCT –v- Mann[4];
[4] 14 October 2009
c) QCT –v- Falesimatama[5];
[5] 21 October 2009
d)QCT –v- Fields[6].
[6] OCR 032-10 QCAT
26) The tribunal finds little assistance from these cases. Unlike Mr Nairn’s case, they all involved a protracted period of contact between the teacher and student with explicit sexual references:
a) Ashton was de-registered and prohibited from reapplying for a period of two years. Through repeated physical contact and gifts, she groomed the student for a sexual relationship which did, in fact, occur. She showed no remorse and took no mitigating steps.
b) QCT argues that it sought a stronger penalty. That is not the test. The case can only be submitted to the tribunal on the basis of the penalty imposed, not the penalty that was sought.
c) QCT also argues that the Mr Nairn’s behaviour is more serious because it was direct contact with a female student, alone and at night. The tribunal does not agree. Mr Nairn did not make any explicit sexual references, he did not groom the student for sex and the behaviour was limited to one incident.
d) Mann was de-registered and prohibited from reapplying for a period of three years. He made explicit sexual references in a series of emails, grooming the student for sex. He also gave the student gifts. Although he cooperated with QCT in the investigation, the tribunal found that he showed no insight into the potential consequences of his actions.
e) QCT argues that the Mr Nairn’s behaviour is more serious because it was direct contact with a female student, alone and at night. The tribunal does not agree. Mr Nairn did not make any explicit sexual references, he did not groom the student for sex and he has shown significant insight and remorse.
f) Falesimatama was de-registered and prohibited from reapplying for a period of eighteen months. He made explicit sexual references in a series of notes, grooming the student for sex. He had a number of meetings with the student outside school, albeit always in the presence of another person.
g) QCT argues that the Mr Nairn’s behaviour is more serious because it was direct contact with a female student, alone and at night. The tribunal does not agree. Mr Nairn did not make any explicit sexual references and he did not groom the student for sex.
h) Fields was de-registered and prohibited from reapplying for a period of five years. She, too, engaged in a course of conduct involving communication with explicit sexual references. She continued this course of action even after receiving a warning from her employer.
Mr Nairn did not make any explicit sexual references, he did not groom the student for sex and he has shown significant insight and remorse.
27) The tribunal accepts that the conduct established in this case is very serious. As Mr Knott conceded in his submissions, conduct of this nature would ordinarily require a cancellation of the teacher’s registration. The tribunal also accepts Mr Knott’s concession that, if the event arose simply from the excess use of alcohol, there would be serious concerns about Mr Nairn’s fitness to teach.
28) However, the tribunal accepts that this is an exceptional case where the combination of a prescription drug and alcohol affected Mr Nairn’s judgment, clarity of mind and perception and in an unexpected and unforeseen way leading to impulsivity and dis-inhibition. The evidence supports a finding that this event was a one-off incident. Although, as QCT pointed out on a number of occasions, Mr Nairn was in direct contact with a female student, alone and at night, there was no ongoing contact of a “grooming” nature, there were no explicit sexual comments and no evidence that this behaviour is likely to recur.
29) The tribunal acknowledges Mr Nairn’s remorse and insight, that he ceased the use of Effexor and has modified his attitude to alcohol. It does not consider that Mr Nairn has attempted to minimise his behaviour; on the contrary, Mr Nairn fairly admitted what he could remember and did not offer evidence or argument about most of the things he could not remember. The “contextualisation” to which QCT refers was, in the tribunal’s view, simply an explanation as to how or why the behaviour arose.
30) Under section 160 of the Act, the tribunal has wide powers to determine penalty. The tribunal must consider the public interest in child protection and the deterrent nature of the penalty. The tribunal is of the view that there are no child protection issues in this case, but that it is necessary to register its disapproval of the conduct.
31) Mr Knott told the tribunal that Mr Nairn wants to keep teaching. He has secured a position at another school. That school is aware of these proceedings but has placed significant trust in Mr Nairn.
32) The tribunal orders that:
a)Mr Nairn’s registration be cancelled and that he be prohibited from reapplying for registration for a period of 12 months from the date of the hearing;
b)Mr Nairn is to attend a minimum of 6 counselling sessions with a registered psychologist or psychiatrist within 12 months of the date of this order. These sessions are to address the following:
a) The implementation of protective strategies to reduce the chances of the teacher engaging in behaviours inappropriate for a teacher;
b) Reducing the teacher’s anxiety arising from trauma relating to the break down of his marriage, his move to Charters Towers and financial loss;
c) Identification of situations and management strategies for situations that could expose the teacher to allegations of inappropriate behaviours.
The psychologist or psychiatrist consulted is to provide a report to the Queensland College of Teachers outlining the teacher’s progress in these sessions after the conclusion of the 6th session.
c)The cancellation of Mr Nairn’s registration be wholly suspended for a period of 12 months from the date of hearing. If, at the conclusion of that period:
a) Mr Nairn has successfully undertaken the counselling required by paragraph 2 of this order; and
b) He has not engaged in any conduct that would give rise to a breach of section 48 or 49 of the Act;
paragraph 1 of this order is of no effect.
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