A high school teacher can return to the profession after the lifting of a suspension imposed following a physical altercation with a year nine student five years ago.
Teacher “MXQ” was issued a reprimand by the Queensland Civil and Administrative Tribunal (QCAT) last month over the February 2020 incident, with the tribunal critical of the investigation into the fight between the 14-year-old girl and the experienced maths teacher.
In a 33-page judgment published on Friday, Members Roney KC (presiding), Grigg, and Knox outlined how at the time of the incident, the teacher, in his 50s, was on a short-term contract and had an exemplary teaching record.
A month after the incident, the Queensland College of Teachers (QCT) suspended MXQ’s registration. After an investigation, QCT then referred the matter to the tribunal, citing allegations of a “physical altercation with a female student, which included punching and kicking the student and pushing her to the ground”.
The members noted MXQ had been suspended and unable to work as a teacher for more than four and a half years while the matter could be heard and determined.
They pointed to discrepancies in the accounts given by the student to a teacher and to police the same day, as well as with evidence given by witnesses.
“In the two interviews the police conducted with the student, which were recorded by the officer’s body camera and audio, she gave significantly different versions to that given to the teacher, JK,” they said.
The members also pointed to “evident interventions by her mother showing her to have an active role in developing the narrative around what had happened and seeking to have a say in what happened and how serious it was”.
“At one point she was seeking to coach her daughter to say that the teacher had called her disgraceful racist and sexist names and used the particular words he is supposed to have used and suggesting what she should say were the words used. The student did not adopt any of those suggestions,” they said.
“The other significant thing that occurred was that when the police suggested to the student that she might herself be charged with assault as the person who initiated the contact, she wanted to know whether if she had done it in fact, she would be excused because she was a minor.”
The members said MXQ was in no position to call the student or her mother to give evidence.
“It is a most unsatisfactory state of affairs that the person on whom the alleged act of inappropriate behaviour by a teacher was perpetrated was not called and no adequate explanation was given why she was not called apart from the assertion from the bar table that the college had not been able to get in contact with her,” they said.
“What attempts were made to do so and when these were made was not explained to us. No application was made to the tribunal to have a summons issued for her attendance to be compelled.
“Nor is there any explanation for not calling the student’s mother, to whom the student had apparently first reported the incident.”
The student and her mother had made no formal complaint to the police and no charges were brought against the respondent, they noted.
“Furthermore, the police observed that the student was showing no injury of any kind and in particular, no injury to the upper body or head or face consistent with being kicked with any force,” they said.
MXQ’s statement included detail of abuse and threats “which were foul-mouthed racist remarks about his being white, insulting swear words, and statements that her mother was coming to get him and told him to ‘get out of my country'”.
“The respondent stated that he put his arms around the student and dropped her to the ground. She broke free and continued to strike him while the respondent defended himself. The respondent stated that he was then kicked in the testicles as he was trying to get up.”
QCT submitted that a teacher confronted with violence should not respond with like violence.
“That submission does not grapple with the realities of this melee, caused by aggressive, insulting, even humiliating, but legally provocative conduct of the student, nor provide any useful guidance as to how to reconcile the fact that a teacher with a faultless history is subjected to unprovoked violence, is entitled to take action to defend himself from that assault,” the members said.
The members found the disciplinary ground was established in relation to the act of kicking the student.
MXQ said kicking a student was not something he would do again, but the basis for that was to do with the trouble it had landed him in, not acceptance that the kick was inappropriate, they said.
“Sadly, this lack of insight about the inappropriateness of administering a controlled kick to a student, albeit one who had just kicked him severely, and of the potential seriousness of a kick to a student’s head, albeit accidentally landing in the student’s face, must result in the respondent’s downfall,” they said.
“The kick itself was not administered compulsively, without thinking about it or defensively. It was certainly the result of severe provocation, verbal and racial abuse, insults and threats of physical violence as well as significant actual violence perpetrated on him up to that point.
“We do not accept that it was necessary for his own protection or that of his class. We do not accept that he did not have an alternative to taking that course or that he did not have a better choice.”
However the members found there was nothing in the conduct leading up the kick that did not satisfy the standard of behaviour expected of a teacher in that situation.
“We accept his evidence, unchallenged in cross examination, that the teacher was seeking to maintain control of the classroom, and provide some level of protection and safety to the other students, and was acting in self-defence in doing what he did, including in kicking her to try to diffuse the situation,” they said.
The members said the teacher, a father of five daughters, had shown significant remorse and insight.
They said they did not consider he generally posed an unacceptable risk of harm to children and should not be prevented from resuming his career if he chose to.
Other orders made included a non-publication order.
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