TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA and SOOKRAJ - [2022] WASAT 62

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: TEACHER REGISTRATION ACT 2012 (WA)
CITATION:   TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA and SOOKRAJ [2022] WASAT 62
MEMBER:   MR J O'SULLIVAN, SENIOR MEMBER
MS N OLDFIELD, MEMBER
MS L POTTER, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   26 JULY 2022
FILE NO/S:   VR 80 of 2021
BETWEEN:   TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA
Applicant
AND
HEERAMAN SOOKRAJ
Respondent

Catchwords:

Registration Teacher Registration Act 2012 (WA) Application seeking the Tribunal's approval to register a teacher whose registration was cancelled by the Tribunal without any period being set as to when the teacher could reapply for registration Whether the respondent is a fit and proper person to be registered as a teacher

Legislation:

Restraining Orders Act 1997 (WA), s 41, s 41(1), s 41(2)
State Administrative Tribunal Act 2004 (WA), s 32(4)
Teacher Registration (General) Regulations 2012 (WA), reg 19(2)(b)
Teacher Registration Act 2012 (WA), s 5, s 6, s 7, s 10, s 13, s 13(1), s 13(1)(c), s 13(1)(d), s13(1)(e), s 13(2), s 13(3), s 15, s 16, s 18, s 20, s 20(2), s 20(2)(b), s21, s 21(2), s 24, s 32(1), s 32(1)(a), s 38(1), s 38(1)(a), s 38(1)(b), s38(10)(b), s41, s 42, s47, s 49, s62, s 63, s 70, s 80, Pt 3, Pt 5, Pt 6

Result:

Application to grant nonpractising (intend to teach) registration approved

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42
Singh v Medical Board of Australia (2019) WASCA 51
Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52
Teacher Registration Board of Western Australia and Richardson VR 23 of 2020
Teacher Registration Board of Western Australia and Richmond VR 14 of 2017
Teacher Registration Board of Western Australia and Sookraj VR 160 of 2017
Teacher Registration Board of Western Australia and Weickhardt VR 1 of 2020
Teacher Registration Board of Western Australia and Willessee VR 44 of 2020

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 19 July 2017, Dr Sookraj's registration as a teacher was suspended as a consequence of an investigation carried out by the Teacher Registrations Board's (the Board) Investigations and Compliance Branch into incidents that took place between February 2016 and April 2017.
On 30 October 2017, Dr Sookraj's registration was cancelled as a consequence of a finding by the State Administrative Tribunal (the Tribunal) that his conduct in breaching professional boundaries with students constituted serious misconduct.[1] The agreed statement of facts on which the Tribunal's decision was based is Annexure A to these reasons.
[1] Teacher Registration Board of Western Australia and Sookraj VR 160 of 2017.
In cancelling Dr Sookraj's registration the Tribunal did not stipulate a period of time after which he was able to re-apply for registration.
Had the Tribunal set such a period, upon the expiry of that period, it would be up to the Board to determine if Dr Sookraj should be reregistered and if so, when.[2]
[2] Subject to a right of review by the Tribunal if the Board refused to register him.
As the Tribunal did not set a period during which Dr Sookraj was precluded from being re-registered, the Board cannot register him unless the Board has applied for, and obtained, the approval of the Tribunal: s 21(2)(b) of the Teacher Registration Act 2012 (WA) (TRAct).
On 17 March 2020, Dr Sookraj applied for full registration as a teacher. Subsequently, his application was amended to non-practising (intend to teach) registration.
On 26 October 2020, the Board purported to grant Dr Sookraj's application, however, it failed to seek the Tribunal's approval to do so.
Upon discovering its error, on 15 October 2021, the Board cancelled Dr Sookraj's registration and on 18 October 2021 lodged an application with the Tribunal seeking approval to register him.
The Board's application acknowledged that Dr Sookraj was the subject of a misconduct restraining order (MRO) but failed to identify to whom the MRO was granted or the circumstances surrounding its imposition. Moreover, none of the documents accompanying the application shed any light on these issues.
At our request, the Board ultimately provided two bundles of documents which revealed that the MRO was granted by consent to Witness A (Witness A) in relation to conduct alleged to have taken place after the cancellation of Dr Sookraj's registration as a teacher.
Witness A is a female former student of Dr Sookraj with respect to whom he was found to have breached professional boundaries resulting in the cancellation of his registration by the Tribunal in 2017. Witness A is referred to as Student 1 in the agreed statement of facts that is Annexure A to these reasons.
Having expressed concern about the lack of information accompanying the application to the Tribunal and the investigation carried out by the Board in relation to the MRO, ultimately, on the material provided, we were unable to find to the requisite standard that Dr Sookraj had engaged in the serious misconduct the subject of the MRO. Accordingly, we approved Dr Sookraj's non-practising (intend to teach) registration.

The statutory framework

One of the main purposes of the TR Act is to provide for the regulation of the teaching profession in Western Australia.[3] The TR Act achieves that purpose by prohibiting persons who are not registered teachers from teaching in an educational venue,[4] by prohibiting the employment of unregistered persons to teach in such venues,[5] by imposing requirements for the registration of teachers,[6] by imposing requirements concerning the personal conduct of persons who are registered as teachers,[7] and by establishing the Board which occupies a key role in administering the TR Act.[8]
[3] Long title to the Act.
[4] See s 6 of the TR Act.
[5] See s 7 of the TR Act.
[6] See Pt 3 of the TR Act.
[7] For example, the requirements that a person be a fit and proper person to be registered as a teacher, and that he is she is of good character: see s 15(c) and s 24(d) of the TR Act.
[8] See Pt 6 of the TR Act; see generally Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52.
The underlying objective of the regulation of the teaching profession in these various ways is the protection of children who are taught by teachers in educational venues. That underlying objective is reflected in s 5 of the TR Act which provides that:
Best interests of children paramount
A person or body with functions under this Act must, in the performance of those functions, regard the best interests of children as the paramount consideration.
That legislative command applies to the Board, and it also applies to the Tribunal in the performance of its functions under the TR Act.[9]
[9] See Clarke at [10].
Under the TR Act applications can be made to the Board for registration as a teacher in one of the following categories:[10]
(a)full registration;
(b)provisional registration;
(c)limited registration;
(d)non-practising registration.
[10] See s 10 of the TR Act.
So far as the requirements for full registration are concerned, the TR Act requires that a person seeking registration has specified educational qualifications,[11] meets prescribed standards for English language skills,[12] meets professional standards approved by the Board[13] (the purpose of which is to detail the abilities, experience, knowledge or skills expected of registered teachers),[14] and is a fit and proper person to be registered as a teacher.[15]
[11] See s 15(a) of the TR Act.
[12] See s 15(d) of the TR Act.
[13] See s 15(h) of the TR Act.
[14] See s 20(2) of the TR Act.
[15] See s 15(c) of the TR Act.
Common to all categories of registration is a requirement that the applicant be a fit and proper person. As the Tribunal observed in Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52 (Clarke):[16]
13In assessing whether a person is a fit and proper person to be registered as a teacher, the Board is to have regard to a variety of matters. These include the person's history of compliance with the Act, or with the law of any other State or Territory, or of New Zealand, in relation to teacher registration;[17] any refusal of registration, or suspension or cancellation of the person's registration as a teacher (or their equivalents in other jurisdictions);[18] the person's criminal history;[19] whether the person has contravened any order of the Board, a disciplinary committee, the Tribunal, or any other similar body in another jurisdiction;[20] any behaviour of the person that does not satisfy a standard of behaviour generally expected of a teacher or that shows that the person is not of good character;[21] and any other matters that the Board considers appropriate.[22]
14Secondly, the Act provides that certain conduct will mean that a person is not entitled to be registered as a teacher. That conduct includes: if the person has been convicted of a sexual offence involving a child; if a negative notice has been issued to the teacher under the Working with Children (Criminal Record Checking) Act 2004 (WA); if the person refuses to consent to a criminal record check by the Board; if a teaching qualification has been withdrawn or cancelled by the institution which conferred it; or if a teaching qualification was obtained fraudulently.[23]
15Thirdly, a registered teacher is obliged to give the Board written notice if they are ordered to pay damages or compensation as a result of civil proceedings arising out of the teacher's practice as a teacher or out of events while the person was engaged in teaching;[24] or if the teacher is convicted of an offence the statutory penalty for which includes imprisonment.[25] The Director of Public Prosecutions and the Commissioner of Police are also obliged to notify the Board if they become aware of certain matters, including that a registered teacher is charged with, or convicted of, a sexual offence involving a child; or is convicted of an indictable offence.[26] In addition, an employer of a registered teacher at an educational venue is to give written notice to the Board if it undertakes an investigation of certain kinds into a teacher, and if as a result of that investigation, the teacher is suspended, dismissed, resigned or otherwise no longer teaches at the venue. The investigations liable to trigger this obligation are an investigation into the conduct of a registered teacher at the venue, or an investigation held because the employer had reason to believe that the teacher was seriously incompetent, or engaged in serious misconduct.[27]
[16] Clarke at [13][15].
[17] See s 24(a) of the TR Act.
[18] See s 24(b) of the TR Act.
[19] See s 24(c) of the TR Act.
[20] See s 24(e) of the TR Act.
[21] See s 24(d) of the TR Act.
[22] See s 24(g) of the TR Act.
[23] See s 27(2) of the TR Act.
[24] See s 38(1)(a) of the TR Act.
[25] See s 38(1)(b) of the TR Act.
[26] See s 41 of the TR Act.
[27] See s 42 of the TR Act.
In considering an application for registration as a teacher the Board may, in writing, request that the applicant:[28]
a)provide the Board with such further information relevant to the application as the Board requires;
b)verify any further information by statutory declaration;
c)provide the Board with the applicant's written consent to seek, from another person or body specified by the Board information about the applicant relevant to the application.
[28] See s 13(1) of the TR Act.
The Board can also request that an applicant attend before the Board for the purpose of satisfying the Board as to any matter relevant to the application. In the event an applicant fails to comply with a request issued under sections 13(1) or 13(2) of the TR Act, the Board may refuse the application.[29]
[29] See s 13(3) of the TR Act.
Relevantly for present purposes, non-practising registration can be granted to an applicant who intends to teach in an educational venue and meets the requirements for:[30]
i)full registration as set out in s 15, other than the requirement regarding professional standards set out in para (b) of that section; or
ii)provisional registration as set out in s 16, other than the requirement regarding professional standards set out in para (b) of that section.
[30] See s 18 of the TR Act.
Before making a decision to refuse an application or grant an application subject to a condition, the Board is required to give the applicant a reasonable opportunity to show cause why the decision should not be made.[31]
[31] See s 32(1) of the TR Act.
The Board may grant to an applicant, registration in a particular category if the Board is satisfied that the applicant meets the requirements for registration applicable to the category of registration the subject of the application.[32]
[32] See s 21(1) of the TR Act.
However, as in this case, the Board cannot grant registration to a person whose registration has been cancelled or suspended by an interim disciplinary order or an order by the Tribunal under Pt 5 (Disciplinary and Impairment matters) unless the Board has applied for, and obtained, the approval of the Tribunal.[33]

The role of the Tribunal

[33] See s 21(2) of the TR Act.

Broadly speaking, the TR Act provides a mechanism for dealing with complaints which concern disciplinary matters[34] and impairment matters. For present purposes we will focus on complaints in relation to disciplinary matters.
[34] See s 47 of the TR Act.
Following the investigation of a complaint, the Board may refer a complaint concerning a disciplinary matter to a committee known as a disciplinary committee.[35]
[35] See s 49 of the TR Act.
A disciplinary committee is required to make a preliminary assessment of the complaint and then deal with the complaint by either, dismissing the complaint, making an interim disciplinary order, dealing with the complaint, requesting that the Board undertake further investigation, deferring consideration of the complaint pending enquiries by another body, or referring the complaint to another body to deal with it.[36]
[36] See s 62 of the TR Act.
Should the disciplinary committee consider that a disciplinary matter may exist in relation to a teacher, and if the teacher consents to the disciplinary committee conducting an inquiry, the disciplinary committee may do so.[37]
[37] See s 63 of the TR Act.
Upon doing so, the disciplinary committee may deal with the complaint in one or more of the following ways, including by:
a)dismissing the complaint;
b)order that the teacher be cautioned or reprimanded;
c)order that the teacher pay a fine to the Board not exceeding $5,000;
d)order that the registration of the teacher be suspended for a period not exceeding two years;
e)order that a condition or conditions be imposed (or modified) on the registration of the teacher or order that an existing condition, or conditions, be modified;
f)if the disciplinary committee has found that a teacher who holds full registration has been seriously incompetent as a teacher, order the cancellation of that registration and the substitution of provisional registration; and
g)recommend to the Board that the complaint be referred to the impairment review committee or the Tribunal.[38]
[38] See s 70 of the TR Act.
In the event the Tribunal finds that a disciplinary matter exists, the powers available to the Tribunal depend on whether the person is still registered as a teacher. If the person is registered as a teacher, the Tribunal may take any action or make any order that a disciplinary committee may take or make under s 70(1)(a) to s 70(1)(f) of the TR Act.
If the person the subject of a disciplinary matter is no longer registered as a teacher, the Tribunal may take any action or make any order that a disciplinary committee may take or make in respect of a teacher under s 70(1)(a), s 70(1)(b) or s 70(1)(c) of the TR Act.
The Tribunal also has a role in reviewing a range of Board decisions. These include decisions refusing an application for the grant or renewal of registration, the imposition of conditions when granting or renewing a person's registration, the imposition, modification or cancellation of a condition during the currency of a teacher's registration, the cancellation of a teacher's registration and the making of an order under s 80 of the TR Act.
The Tribunal is also empowered to review decisions of a disciplinary committee to make an order against a person under s 70 of the TR Act.
The Tribunal's role with respect to this application differs from those roles typically carried out by the Tribunal outlined above.
As we explained earlier, so far as Dr Sookraj is concerned, the Tribunal has already imposed a penalty as a consequence of a disciplinary matter referred to it by the Board. However, when ordering the cancellation of Dr Sookraj's registration, the Tribunal did not specify a period before which he could re-apply for registration. As a consequence, the Board cannot grant Dr Sookraj registration without the approval of the Tribunal.

What principles should guide the Tribunal in deciding whether or not to approve a person's registration as a teacher?

We are mindful of the following observations made by the Tribunal in Clarke:[39]
29That the Act makes such extensive provision for maintaining the professional qualifications and personal conduct of persons registered as teachers is hardly surprising. By their registration, teachers occupy a privileged position. They, and they alone, are permitted by the Act to engage in teaching in educational venues. For that purpose, they are entrusted with the supervision and control of the students they teach. It is essential that teachers achieve, and maintain, appropriate qualifications and skills to enable them to provide the highest quality of education to their students. And given teachers' roles in the supervision and control of the children they teach, it is essential that parents and guardians, children (that is, students at educational venues), and the community generally, have confidence that teachers are persons who can be entrusted with the care of children, so that the safety and wellbeing of those children will be maintained at all times.
[39] Clarke at [29].
Other than to require that the approval be in writing, the TR Act does not define the term 'approved'.[40] Its ordinary meaning is 'sanction, official permission'.[41]
[40] See s 3 of the TR Act.
[41] Macquarie Dictionary (6^th ed), page 67.
Given that Dr Sookraj's registration was cancelled as a consequence of disciplinary matters, the principles that apply to the imposition of penalties in disciplinary matters under the TR Act set down in Clarke[42] provide some useful context in considering whether the Tribunal should approve his application for registration:
33First, the purpose of disciplinary proceedings under the Act is to protect the children who are taught by teachers in educational venues, rather than to punish the teacher in the sense in which punishment is imposed under the criminal law. Children are protected by the making of orders which will prevent a person who is unfit to practise as a teacher from teaching in educational venues, or by making orders which secure the maintenance of proper professional standards.
34Secondly, the protection of children under the Act is liable to be achieved in various ways. There may be a need to protect children from the risk of inappropriate conduct by a teacher (including serious misconduct, or serious incompetence), there may be a need to bring home to the teacher the seriousness of the conduct which constitutes the disciplinary matter, and there may be a need to deter the teacher from future conduct constituting a disciplinary matter. The protection of children may also require an order which emphasises to other members of the teaching profession, or which reassures parents and guardians, children, and the public generally, that a certain type of conduct by a teacher is not acceptable conduct. The purpose of an order of that kind may thus be regarded as akin to 'general deterrence'.
35Thirdly, as the purpose of disciplinary proceedings under the Act is the protection of children who are taught in educational venues, the impact that an appropriate penalty will have on a teacher for whom a disciplinary matter is found to exist, and any personal hardship to the teacher, are necessarily secondary considerations.
36Fourthly, of particular significance in any given case will be whether the finding that a disciplinary matter exists reveals that the teacher is unfit to be registered as a teacher. Where a teacher who is registered to teach is, by their conduct, regarded as permanently or indefinitely unfit to teach, the cancellation of their registration rather than its suspension will (at least ordinarily) be the appropriate response. While permanent or indefinite unfitness to teach will ordinarily be a sufficient basis for cancelling the teacher's registration, it is not a necessary condition for cancellation of a teacher's registration under s 84(1)(b)(ii) of the Act.
37Whether or not a person is registered as a teacher at the time of the finding that a disciplinary matter exists, the Tribunal has the power, under either s 84(1)(a)(ii) or s 84(1)(b)(iii), to make an order specifying a period within which the person is disqualified from applying for registration as a teacher. That power is to be exercised for the protective purposes that apply to the disciplinary proceeding generally.
38All of the various aspects of the protection of children (discussed at [34] above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be.
[42] Clarke at [33]-[38].

For present purposes, it is relevant to observe that as the Tribunal confirmed the consent orders filed by the parties, it must be accepted that the Tribunal agreed that the cancellation of Dr Sookraj's registration in 2017 was the appropriate penalty.
While ordinarily cancellation of registration reflects the view that the teacher, by his or her conduct, is regarded as permanently or indefinitely unfit to teach,[43] the Tribunal was not called upon to make a specific finding in that regard. Moreover, having reviewed the Minute of Consent Orders filed by the parties, it did not specify a period before which Dr Sookraj could seek reregistration.
[43] Singh v Medical Board of Australia (2019) WASCA 51 at [38].
Against that background, it follows that it is not open for us to assume that in cancelling Dr Sookraj's registration, without setting a specified time after which he can re-apply, the Tribunal intended that Dr Sookraj's registration be cancelled permanently.
The task, as we understand it, is to assess Dr Sookraj's suitability to be a teacher having regard to the principles set out above and taking into account not only the conduct that resulted in the cancellation of his registration but his conduct since that time. Bearing in mind that disciplinary proceedings are protective, are we satisfied that Dr Sookraj is now fit to teach?

The Board's deliberations

Following the cancellation of his registration by the Tribunal on 30 October 2017, in March 2018, Dr Sookraj made a request to the Board pursuant to reg 19(2)(b) of the Teacher Registration (General) Regulations 2012 (WA) (TRRegulations) for advice as to whether the Board considered him a fit and proper person. On 11 April 2018, the Board determined that Dr Sookraj was not a fit and proper person to be registered.
Subsequently, on 12 September 2018, Dr Sookraj once again sought the Board's advice as to whether it considered him a fit and proper person. On this occasion the request was accompanied by a submission from a solicitor, Mr Christopher Cole, and a psychological report and references. Mr Cole referred to evidence of Dr Sookraj's contrition in that Dr Sookraj had made full admissions to the breaches, co-operated with the Board's investigation and consented to the orders cancelling his registration. According to Mr Cole, evidence of Dr Sookraj's insight is apparent from the report prepared by the psychologist.
The psychological report is dated 27 June 2018. It was prepared in response to a series of questions asked by Mr Cole. The report confirms that Dr Sookraj attended three appointments with the psychologist. Among other things, the author of the report expresses the following opinions:
…
c.Opinion as to your client's capacity to maintain professional teacherstudent boundaries:
I am satisfied that your client has developed a proper capacity to maintain professional teacherstudent boundaries. In his second session with me on 22^nd May, 2018, your client and I reviewed the document that your client provided, "TeacherStudent Professional Boundaries A Resource for WA Teachers", designed to raise awareness of issues and situations that may arise, and provide some guidance relating to unwise or 'atrisk' behaviours which may breach professional boundaries associated teacherstudent relationships.
…
I am satisfied that your client has developed a significantly enhanced awareness of the appropriate professional boundaries described in this document, so that the student's welfare is a priority at all times.
d.Your opinion as to your client's insight into both the reason for his previous disciplinary matters and the importance of maintaining professional boundaries:
Your client has reported and displayed an increased awareness and insight in relation to the reason for his previous disciplinary matters, and the importance of maintaining appropriate teacherstudent boundaries, (sic) He has acknowledged an essential requirement "to readapt" his style of communication with students[.]
Although we did not reproduce the report in its entirety, we note that the psychologist took Dr Sookraj in detail through the key passages of the guidelines set down in 'Teacher-Student Professional Boundaries - A resource for WA Teachers'.
Notwithstanding the psychological report and the positive references, as at 21 November 2018, the Board remained of the view that Dr Sookraj was not a fit and proper person.
On 17 March 2020, Dr Sookraj applied to the Board for full registration (in contrast to the previous requests for advice as to whether he was a fit and proper person) pursuant to s 15 of the TR Act.
Dr Sookraj's application was assessed by the legal officer assisting the Board who noted that under s 15 of the TR Act, to be eligible for full registration, an applicant must satisfy the following requirements:[44]
•Teaching Qualifications
•English Language skills
•Professional Standards at a Proficient level
•Fit and Proper status
[44] Briefing Note (BN), 14 August 2020, para 11.
The legal officer concluded that the first two requirements had been met, leaving the two remaining requirements to be further assessed by the Board.
On 14 May 2020, pursuant to s 13(1)(c) and s 13(1)(d) of the TR Act, the Board requested Dr Sookraj provide a statutory declaration setting out any:
a)contact with any students or former students; and
b)restraining orders, including transcripts of proceedings, currently or previously in force which restrain him from contact with any current or former students.[45]
[45] BN, 14 August 2020, para 13.
On 8 June 2020, Dr Sookraj provided the Board with a statutory declaration, a copy of the MRO, and the transcript of the MRO proceedings.
That information confirmed that on 24 December 2019 the Midland Magistrates Court granted a former student, Witness A, a MRO which prevented Dr Sookraj having contact with Witness A.
Witness A was known to the Board as a Year 10 student with respect to whom Dr Sookraj had breached professional boundaries in 2016 and 2017 resulting in the cancellation of his registration by the Tribunal on 30 October 2017.
In her application for a MRO, Witness A alleged:[46]
1.In April 2019, Dr Sookraj called her house at which time she hung up the telephone immediately.
2.On or about 10 November 2019 she received a letter purportedly from a boy named Jaidyn inviting her to meet him at a fast-food restaurant on 15 November 2019. She made enquiries with the only boy named Jaidyn she knew, which revealed he had not sent the letter. Witness A believed Dr Sookraj had sent the letter.
3.On 22 November 2019, she received a Facebook friend request from Dr Sookraj on her phone.
[46] MRO application.
Dr Sookraj consented to the imposition of the MRO on 24 December 2019. Dr Sookraj's reasons for doing so are set out in his statutory declaration:
… I consulted a legal team, as none of the allegations were true. Upon advice from the legal team, I gave my consent, without admitting to any of the allegations, to be bound by a restraining order as it would be beneficial to both parties[.][47]
[47] Statutory declaration, 8 June 2020.
On 9 June 2020, the Board sought and obtained Dr Sookraj's written consent to seek information from Witness A pursuant to s 13(1)(e) of the TR Act. On 15 June 2020, Dr Sookraj provided his consent.[48]
[48] BN, 14 August 2020, para 16.
On 1 July 2020, Witness A was interviewed and on 7 July 2020, she signed a witness statement. Witness A also provided the letter referred to in [55.2] above and a screenshot of the Facebook friend request which appears to be from Dr Sookraj.
In providing a briefing note to the Board, the legal officer noted that an examination of the purported Facebook friend request did not mention Facebook or the name of the person's account to whom the request was issued. As a consequence, the legal officer examined a Facebook friend request on a colleague's mobile telephone which confirmed it looked just like the page provided by Witness A.[49]
[49] BN, 14 August 2020, paras 46 and 70.
The legal officer said further:[50]
Witness A has signed a witness statement … in which she alleged that [Dr Sookraj] attempted to make contact with her during 2019. She also wrote the same allegations in the application for a MRO … . As the matter did not go to a hearing, the evidence was not tested in Court, however the very fact that [Dr Sookraj] chose not to dispute the allegations which formed Witness A's reasons for seeking the MRO is significant in itself.
…
[Dr Sookraj's] action in consenting to the granting of the MRO without disputing the allegations speaks for itself.
[50] BN, 14 August 2020, para 32.
The legal officer remarked:[51]
Given the fact that [Dr Sookraj] did not dispute Witness A's allegations in Court, when he could have disputed them and contested the MRO as unnecessary, and given that the Board is to ensure that in its deliberations, the best interests of children are the paramount consideration, pursuant to s 5 of the Act, it is open to the Board to form a preliminary view that [Dr Sookraj] is not a fit and proper person to be registered, pursuant to s 24 of the Act.
[51] BN, 14 August 2020, para 73.
The legal officer also made the following observations:[52]
In his submission to the Board … included with his request for F&P advice in March 2018, [Dr Sookraj] stated, inter alia:
I have not made any contact with any of the teachers or students involved in the investigation that led to my registration being cancelled since April 2017. This statement appeared to show that Dr Sookraj realised that, it would not be appropriate to contact any of the teachers or students involved in the investigations. If he then attempted to contact Witness A in 2019, as she alleges, it could be seen that [Dr Sookraj] engaged in conduct he had known, in 2018 was not appropriate.
[52] BN, 14 August 2020, para 31.
The legal officer submitted that because of Witness A's allegations and the imposition of the MRO, it is open to the Board to conclude that Dr Sookraj had not met the following standards:[53]
4.4Maintain student safety; ensure students' wellbeing and safety, taking into account service, school and/or system requirements and curriculum and legal requirements.
7.1Meet professional ethics and responsibilities. Meet codes of ethics and conduct established by regulating authorities, systems, services and schools.
7.2Comply with legislative, administrative and organisational requirements. Understand the implications of and comply with relevant legislative, administrative, organisational and professional requirements, policies and processes.
[53] BN, 14 August 2020, para 59.
Ultimately, the legal officer recommended that the Board form the preliminary view that Dr Sookraj meets the teaching qualifications and English language skill requirements for full registration but does not meet the professional standards and the requirement to be a fit and proper person as set out in s 24 of the TR Act.
In the event that the Board accepted the legal officer's recommendation, it was also invited to provide Dr Sookraj with a reasonable opportunity to show cause why the decision to refuse to grant him full registration should not be made pursuant to s 32(1)(a) of the TR Act.
On 23 August 2020, the Board accepted all of the legal officer's recommendations. By letter dated 31 August 2020, the Board provided Dr Sookraj with the following reasons for its preliminary view:
…
Fit and Proper Reasons:
1.The seriousness of your actions which led to the State Administrative Tribunal's (SAT) order on 30 October 2017 (SAT Order) to cancel your registration from the date of the SAT Order.
2.Your behaviour since the SAT Order, particularly:
·your attempts, in 2019, to contact Witness A, who was the recipient of your serious misconduct behaviour in 2016 and 2017, which led to the SAT Order and to your loss of registration. The facts may reasonably be accepted on the basis that:
oWitness A provided evidence to that effect; and
oyou did not dispute the allegations against you made out in the [MRO] application, when you had the opportunity at the MRO proceedings, which you attended; and
·the fact that you have a MRO against you, granted on 24 December 2019, protecting Witness A.
3.The Board's requirement that it must and does, in the performance of its functions under the Teacher Registration Act 2012, regard the best interests of children as the paramount consideration.
On 14 September 2020, Dr Sookraj responded to the show cause notice. The following extract from Dr Sookraj's response addressed the Board's concerns about Witness A's allegations:
Witness A initiated and served a restraining order summons via the Midland Magistrates Court. Her grounds for the application was that she felt I was making repeated attempts to contact her, which she felt was inappropriate as she felt unsafe if she had to be out in public or at home, alone. Witness A made three claims of perceived contact with her: the first being a telephone conversation, a second being a friend request on her phone, and a third claim of a letter sent to her. I found this a bit startling as firstly, none of the contacts were made as I do not have access to her home or personal mobile phone numbers. Secondly, Witness A feeling insecure, requesting a restraining order nearly two years after my registration was cancelled. I immediately sought legal advice (Tang Law) and the advice I received was that an MRO would still be granted as Witness A was the recipient of my misconduct behaviour and the fact that she was a female, the court would grant an MRO. As an MRO would be of no blight on my character (unless if breached) it would be better if I did not acknowledge any of the claims made by Witness A and consented to the issuing of an MRO. As the Board was provided a copy of the court transcript, the [sic] was no evidence provided by Witness A or an opportunity to dispute any of the allegations, just a mere consent agreed in granting an MRO.
The board claims that Witness A has provided evidence to the effect that I made attempts to contact her. As no thorough investigation has occurred in this regard, namely, I have not been given an opportunity to dispute the claims and reject the evidence in court or through the Board, I urge the Board to conduct a proper scrutiny of the evidence it has and provide me an opportunity to set the record straight as this seems to me an attempt by Witness A to provoke me.
Dr Sookraj also addressed matters related to the circumstances giving rise to his de-registration in 2017 and whether he meets the professional standards.
On 13 October 2020, the legal officer, upon reviewing Dr Sookraj's response, prepared a further briefing note for the Board.
The legal officer referred expressly to the second of the two paragraphs from Dr Sookraj's response to the Board reproduced in [67] above.
The legal officer noted that:[54]
After further consultation between the Legal Officer and A/Assistant Director ICB on 7 October 2020, the decision not to interview [Dr Sookraj] regarding Witness A's allegation was confirmed.
[54] BN, 13 October 2020, para 35.
With respect to the Board's concerns as to Dr Sookraj's ability to meet the professional standards, the legal officer noted that he provided three statutory declarations from the parents of children he tutored during the last three years which refer to:[55]
•"their children being safe during tutoring lessons";
•"Dr Sookraj doing an excellent job in encouraging the children";
•"recommending Dr Sookraj to anyone requiring maths tutoring"; and
•"always feeling safe as Dr Sookraj acts in a professional and amicable manner".
[55] BN, 13 October 2020, para 36.
Dr Sookraj also referred to the letter concerning his dismissal from Swan Valley Anglican Community School sent by the Principal to parents on 19 March 2017 in which the Principal confirms that 'no child was affected by Dr Sookraj's actions'.[56]
[56] BN, 13 October 2020, para 38.
The briefing note also refers to counselling Dr Sookraj has undertaken focused on 'Teacher-Student Professional Boundaries - A Resource for WA Teachers'.[57]
[57] BN, 13 October 2020, para 39.
Reference is also made in the briefing note that, as at that time, three years had passed since Dr Sookraj's registration had been cancelled by the Tribunal and three and a half years since he last engaged in any known concerning conduct.[58]
[58] BN, 13 October 2020, para 40.
The briefing note concludes with a recommendation that the Board either confirm its preliminary decision to deny Dr Sookraj's application for registration or now find that he is a fit and proper person pursuant to s 24 of the TR Act and meets the professional standards at a proficient level.
On or about 21 October 2020, the Board resolved that Dr Sookraj met the teaching qualifications and English language skills but did not meet the professional standards at the proficient level. However, the Board agreed to provide Dr Sookraj with the opportunity to change his application to non-practising (intend to teach) registration.
Pursuant to s 18 of the TR Act there is no requirement that an applicant meet the professional standards where nonpractising registration is sought.
Turning to the matters in s 24 of the TR Act, the Board concluded that Dr Sookraj was a fit and proper person to be registered. The Board's reasons for so concluding are as follows:[59]
1.[Dr Sookraj] has reflected on the counselling he had undertaken of his own volition since the Tribunal's order.
2.There has been approximately three years effluxion of time as [Dr Sookraj] has not been registered since 31 October 2017.
3.[Dr Sookraj] has committed to avoiding such conduct again and maintaining his registration.
4.[Dr Sookraj] has been tutoring students during the period he has not been registered and provided statutory declarations from three parents of his students, who provided positive comments about his tutoring and their trust in him.
[59] Resolution, 11 October 2020.
Other than to stipulate that in making its decision the Board noted 'the circumstances around the misconduct restraining order', there is no mention as to how the Board resolved the question as to whether Dr Sookraj had attempted to contact Witness A.
Having taken up the Board's invitation to seek nonpractising registration, on 26 October 2020, Dr Sookraj's application was purportedly finalised, and he was granted non-practising (intend to teach) registration with the condition that within 14 days after commencing teaching he is to provide written notice to the Board.[60]
[60] Minute, 16 November 2021, para 10(e).
Subsequently, the Board discovered that Dr Sookraj could not be reregistered by the Board without the approval of the Tribunal.[61]
[61] Minute, 16 November 2021, para 14.
As a consequence, on 15 October 2021 the Board resolved to cancel Dr Sookraj's registration and seek the Tribunal's approval to register him.[62]
[62] Minute, 16 November 2021, para 15.
During the period Dr Sookraj was re-registered by the Board, he was unable to find work as a teacher, in part, as a consequence of the Department of Education's refusal to re-instate his eligibility for employment.[63]

The proceedings in the Tribunal

[63] Letter to the Tribunal from Dr Sookraj, 14 February 2022. The Board did dispute this assertion.

On 18 October 2021, the Board lodged an application with the Tribunal seeking approval to grant registration to Dr Sookraj.
The application was accompanied by a Minute of Consent Orders dated 18 October 2021, which is signed by a representative on behalf of the Board and Dr Sookraj.
The application contains the following passage:
… [I]n making the decision [to seek approval] the Board has noted the seriousness of the previous conduct, which led to a complaint about Dr Sookraj being referred to the State Administrative Tribunal (SAT) and Dr Sookraj's registration being cancelled effective 31 October 2017 and the circumstances around the Misconduct Restraining Order against Dr Sookraj[.] (emphasis added)

Other than an acknowledgment as to the existence of a MRO, neither the application itself nor any of the accompanying documents provided by the Board referred to the identity of the person to whom the MRO was granted, the terms of the MRO, or the circumstances surrounding its imposition.
Moreover, other than to observe that the MRO had not dissuaded the Board from seeking the Tribunal's approval to re-register Dr Sookraj, the material provided did not include any information that would enable the Tribunal to appreciate the deliberative process undertaken by the Board in concluding that the MRO should not preclude Dr Sookraj's registration.
As a consequence, the matter was listed for a directions hearing on 12 January 2022, at which time the Board was requested to provide any further information concerning the MRO.
On 13 January 2022, the Board provided the Tribunal with a bundle of documents, which included, among other things, the documents Dr Sookraj had provided to the Board referred to in [44] and [52] above, together with his response to the show cause notice and Witness A's witness statement and the documents she provided. Upon reviewing those documents, it remained unclear as to what evaluation the Board had undertaken in relation to the MRO.
Accordingly, the matter was listed for a directions hearing on 9 February 2022, following which the Board provided a further bundle of documents which was received by the Tribunal later that day. Included in this bundle were the two briefing notes prepared by the legal officer assisting the Board and the Board's resolutions to which we referred earlier.
An examination of the further documents provided by the Board also failed to illuminate the Board's deliberative process. At a subsequent directions hearing, on 9 March 2022, at the urging of the Tribunal, the Board agreed to further investigate the circumstances pertaining to the MRO.
The Board wrote to the Tribunal on 27 April 2022 attaching an Out of Session Resolution assented to on 27 March 2022 which said the Board:
(1)noted that all available material and evidence has been examined and reviewed in regard to the Misconduct Restraining Order (MRO) [Dr Sookraj] consented to on 24 December 2019.
(2)agreed to the following reasons being provided to State Administrative Tribunal (SAT):
•In the absence of independent and objective evidence, the allegations underpinning the application made by Witness A for an MRO against [Dr Sookraj] were not supported by the evidence.
•The claims made by Witness A that [Dr Sookraj] continued to contact her, cannot be tested nor can any of the evidence she put forward as part of her application for the MRO be properly scrutinised and investigated.
•The Board in considering the available materials and deciding whether or not registration is suitable for [Dr Sookraj] also took into account that Witness A does not wish to engage with any further Board matters in regard to [Dr Sookraj],
(3)maintained the view that [Dr Sookraj] is still a Fit and Proper person to be registered as a teacher; and
(4)advised the State Administrative Tribunal (SAT) the matters underlying the MRO which was entered into by consent of the parties has been further considered and accordingly, approval is sought from the SAT for [Dr Sookraj] to be granted teacher registration as required in this matter by s 21(2) of the Teacher Registration Act 2012 (WA).
We pause to make some observations about the Board's approach to this application.
An assessment of whether Dr Sookraj is a fit and proper person to be registered as a teacher necessarily involves consideration of the conduct that resulted in the cancellation of his registration. However, it also calls for an examination of his conduct since that time.
A proper assessment of any application to re-register Dr Sookraj therefore must include consideration of the circumstances surrounding the imposition of the MRO granted to Witness A. The importance of this matter being properly and thoroughly investigated should not be understated.
If, having been de-registered for, among other things, breaching professional boundaries in relation to Witness A which he knew made her feel uncomfortable,[64] Dr Sookraj contacted or attempted to contact Witness A again, this would seriously undermine any submission which he now makes that he has learned from his mistakes, is remorseful and now possesses insight.
[64] Annexure A at para 19.
Importantly, the three allegations made by Witness A are all said to have occurred after Dr Sookraj submitted the report from a psychologist to the Board which says he has insight.
With respect, we agree with the observations made by the legal officer assisting the Board:[65]
If [Witness A's] allegations are accepted, [Dr Sookraj's] actions therefore do not support any assertion [he] is of good character.
[65] BN, 14 August 2020, para 37.
As we explained earlier, when the Board lodged the application seeking the Tribunal's approval to re-register Dr Sookraj, all we were told was that the Board had noted the circumstances around the MRO against Dr Sookraj. Not a single document was provided with the application that shed any light on the circumstances giving rise to the imposition of the MRO. We are left to wonder how the Board could have expected us to approve Dr Sookraj's registration when we were provided with no information about what is, quite obviously, an issue of considerable significance.
In stipulating that the Tribunal 'approve' a teacher's registration as required by s 20(2)(b) of the TR Act, Parliament can hardly have intended that the Tribunal merely 'rubber stamp' the Board's decision. As we explained earlier, the Tribunal is obligated to consider the same principles that guide the Board in determining the suitability of a person to be registered as a teacher.
Two directions hearings were required before the Board provided what purports to be all of the documents concerning the MRO. A review of those documents revealed that a limited investigation had been caried out that did not even involve interviewing Dr Sookraj.
Moreover, the two bundles of documents eventually provided by the Board did not enable us to determine what conclusions the Board had come to with regard to the alleged conduct the subject of the MRO.
At a further directions hearing on 9 March 2022, we urged the Board to further investigate the matter. On behalf of the Board, it was said that the Tribunal was taking too long to determine the application, that we should take a practical approach and that there was no evidence Dr Sookraj had breached the MRO. In addition, on a previous occasion the Board had argued it had no power to investigate Witness A's complaint as Dr Sookraj had been de-registered.
We do not find any of these submissions persuasive. The central issue in these proceedings is not concerned with whether Dr Sookraj breached the MRO, but whether there is evidence to support the allegations said to ground its imposition. The delay in resolving this application is primarily a consequence of the Board's failure to provide the relevant documents in a timely manner.
Nor do we accept that the Board had no power to investigate Witness A's complaint. Section 13 of the TR Act enables the Board, when considering an application, to request all or any of the following:
•provide the Board with such further information relevant to the application as the Board requires;
•verify any further information by statutory declaration; and
•provide the Board with the applicant's written consent to seek, from another person or body specified by the Board, information about the applicant relevant to the application.
Importantly, the Board may refuse an application if the applicant does not comply with such a request.
So far as the Board's conclusions in the Out of Session Resolution assented to on 27 March 2022 with respect to the allegations underpinning the MRO are concerned, we note that it does not appear any further inquiries were made. The investigation was confined to examining material already in the possession of the Board.
The conclusion that Witness A's evidence is not supported by the evidence because of an absence of independent and objective evidence is problematic for three reasons. First, there is no requirement that a witness's evidence can only be accepted if it is supported by independent and objective evidence. Second, apart from Dr Sookraj's bare denials, the Board does not identify what evidence contradicts Witness A's allegations. Third, the Board does not appear to have investigated whether there is any evidence to support Witness A's allegation.
While Witness A has now indicated she does not wish to cooperate with the Board, that does not mean that her allegations could not have been properly tested and scrutinised at an earlier time when she was cooperating with the Board.
We are of the view that the Board could have, for example, requested Witness A to make her mobile telephone available for the purpose of having it examined to determine whether she had received a Facebook friend request from Dr Sookraj. Also, not only could Dr Sookraj have been requested to participate in an interview, he could have been asked to provide access to his Facebook account and produce or authorise the production of his telephone records. It was also open to the Board to investigate whether the handwriting on the envelope containing the letter to Witness A matched that of Dr Sookraj.
Given the important role entrusted to the Board under the TR Act in relation to the protection of children and to ensure that only those persons who are fit and proper are registered as teachers, it is imperative that the Board assiduously investigate allegations of serious misconduct.

Should the Tribunal approve Dr Sookraj's re-registration?

Dr Sookraj's registration as a teacher was suspended as a consequence of an interim disciplinary order on 19 July 2017 and then cancelled by the Tribunal on 30 October 2017. It has now been just over five years since he has been permitted to teach at an educational venue. We note that for almost a year of that time Dr Sookraj was registered by the Board without the approval of the Tribunal, however, he was unable to find work.
The length of time a teacher is suspended or de-registered, particularly when it is considerable as it is in this case, serves a number of objectives. First, it operates to deter the teacher concerned from engaging in similar conduct in the future (specific deterrence). Second, ordinarily with time comes greater insight and the opportunity to take steps to ensure there is unlikely to be any reoccurrence of the conduct that resulted in the registration being cancelled. Third, hopefully, it operates as a deterrent to other teachers so as to dissuade them from engaging in conduct of that kind (general deterrence).
As we pointed out earlier, Dr Sookraj provided a psychological report and references in support of the proposition that he is a fit and proper person.
While the report does not provide any insight into how it was or what it is about Dr Sookraj's psychological profile that explains why he engaged in the conduct that resulted in the cancellation of his registration, the report supports the view that Dr Sookraj has gained a better appreciation of his professional obligations in relation to students.
So far as the statutory declarations from the parents of students Dr Sookraj has tutored since his registration as a teacher was cancelled are concerned, they are only of limited assistance in assessing whether Dr Sookraj is a fit and proper person.
While they are positive so far as his ability to teach is concerned, two of the three references are from the parents of boys and the third does not identify the sex of the student. We note that Dr Sookraj's registration was cancelled for breaching professional boundaries primarily with female students, and in particular, Witness A.

We have also had regard to the two references provided to the Board on behalf of Dr Sookraj. The reference from the Principal of North Shore Coaching College, Mr Bill Ng, confirms that Dr Sookraj tutored at the College from April 2017 to 22 August 2018 (when the letter was written) without incident.
Inevitably, we turn to consider the circumstances concerning the MRO granted to Witness A.
The briefing notes provided to the Board referred to the fact of Dr Sookraj's consent to the imposition of the MRO as, in effect, an admission.
The power to grant an MRO is derived from the Restraining Orders Act 1997 (WA) (RO Act). To encourage the settlement of applications for MROs, s 41 of the RO Act provides that if, as in this case, the respondent consents to a final order being made, the court may make the order without being satisfied there are grounds for making the order.[66] Moreover, the respondent's consent to an order does not constitute an admission by the respondent of all or any of the matters alleged in the application.[67]
[66] See RO Act, s 41(1),
[67] See RO Act, s 41(2).
It follows that it is not permissible to treat Dr Sookraj's consent to the MRO as an admission concerning any of the facts alleged by Witness A.
In considering whether we can be satisfied that Dr Sookraj has engaged in the conduct alleged by Witness A, we are mindful of the Tribunal's approach to the proof of such matters. Given the nature of the allegations and the consequences for Dr Sookraj of an adverse determination, it is well recognised that clear and cogent evidence will be required before a finding of serious misconduct is made.[68]
[68] Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63].
That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at [361]-[362] (Briginshaw).
Witness A has indicated she will not engage further with the Board. Furthermore, the Board maintains it has finalised its investigation. While the Tribunal may inform itself on any matter as it sees fit,[69] there is little utility in progressing further inquiries having regard to the stated position of both Witness A and the Board. Therefore, we must assess Dr Sookraj's application on the material provided.
[69] See State Administrative Tribunal Act 2004 (WA), s 32(4).
That material does not enable us to be satisfied on the balance of probabilities having regard to the principles in Briginshaw that Dr Sookraj has engaged in serious misconduct as alleged by Witness A. As the matter stands, we do not know where the truth lies. We are not permitted to engage in conjecture and supposition. We are also concerned that Dr Sookraj was not provided with an opportunity to test Witness A's evidence. As we are unable to make positive findings concerning Witness A's allegations, we cannot take them into account in deciding whether or not to approve Dr Sookraj's registration.
We are also mindful that Dr Sookraj co-operated with the investigation carried out by the Board in that he provided all the material requested by the Board. Moreover, when the Board asked him to show cause, Dr Sookraj pointed out that a thorough investigation had not occurred and that he wanted an opportunity to dispute the claims and reject the evidence in court or through the Board.
We have also had regard to the conduct that resulted in the cancellation of Dr Sookraj's registration as a teacher. Whilst we note the seriousness of the conduct in which Dr Sookraj engaged, when compared to the penalties handed down in similar cases resulting in cancellation, generally the period before which the person can re-apply for registration is considerably less than five years.[70]
[70] See Teacher Registration Board of Western Australia and Willessee VR 44 of 2020; Teacher Registration Board of Western Australia and Richardson VR 23 of 2020; Teacher Registration Board of Western Australia and Weickhardt VR 1 of 2020; and Teacher Registration Board of Western Australia and Richmond VR 14 of 2017.
Notwithstanding our misgivings as to the Board's handling of this matter, based on the material provided, we approve the grant of Dr Sookraj's application for non-practising (intend to teach) registration. We note, as the Board observed, that it is a condition of nonpractising registration that, within 14 days after a teacher first commences teaching, the teacher gives written notice of that fact to the Board.[71]

Orders

[71] See reg 16 of the TR Regulations.

The Tribunal makes the following order:
1.The applicant for nonpractising (intend to teach) registration in accordance with section 18(b)(ii) of the Teacher Registration Act 2012 (WA) is approved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J O'Sullivan, SENIOR MEMBER
26 JULY 2022

Annexure A

The parties have agreed the following relevant facts:

General Matters and Investigations

The Teacher is a 55 year old male registered as a teacher, employed as the head of department for science at a non-government school ("the School").
On 14 March 2017, the Board was informed by notification pursuant to section 42 of the Teacher Registration Act 2012, from the School that Teacher had been suspended from his employment. Allegations of serious misconduct that took place during 2017, involving a Year 10 Student, were subject of an employee investigation.
On 19 March 2017, the Board received a further notification from the School that Teacher was dismissed from employment after the employer investigation established the Teacher had engaged in serious misconduct.
On 8 May 2017, the Board considered the matter and formulated a complaint that the Teacher may have engaged in serious misconduct pursuant to section 47(f)(ii) of the Act. The matter was referred to the Board’s Investigations and Compliance Branch (“ICB”) to conduct further investigations.
The ICB investigation identified additional concerns with the Teacher's conduct. These incidents took place between February 2016 and April 2017.
On 19 July 2017, an Interim Disciplinary Order (“IDO”) was made by the Board to suspend the Teacher's registration pursuant to section 59(b) of the Act. On 9 August 2017, the Board resolved to refer a complaint to the State Administrative Tribunal on the basis that the Teacher had failed to maintain professional boundaries and such conduct constituted serious misconduct which rendered him unfit to be registered.

Failure to maintain professional boundaries

At the time of the misconduct, the Teacher, in addition to his role as head of the science department, he was also assigned the role as Pastoral Care Group (“PCG”) Tutor for a student group who included Student 1 (aged 15), Student 2 (aged 15), Student 3 (aged 15) and Student 4 (aged 16).
On 1 November 2016, Students 2 and 3 were Year 9 Students. The Teacher conducted a Melbourne Cup sweepstake with his PCG students. Students were assigned horses by the Teacher. At the conclusion of the race, the Teacher gave students cash depending on where their horses finished. This included the Teacher giving Student 2 $15, and Student 3 $3. The money was given by the Teacher without the knowledge of the School and the student’s parents.
In Term 4, 2016, the Teacher provided money to Student 1 in order for her to purchase items from the School’s cafe. This occurred approximately 8 times during the term, and amounted to about $3 on each occasion. Student 1 borrowed more money than other students and was less consistent in repaying that money than the other students, constituting preferential treatment towards Student 1.

10. On 5 December 2016, the Teacher emailed Student 1 from his personal email account with the subject line ‘More Photos’, and signed the email "Ross". In the body of the email the Teacher stated:

‘Dear [Student 1] I hope I am not imposing on you as you are my only dependable student and prepared to do something for the group and I appreciate it. I have found four more pictures (from 2013) that you can use on the powerpoint. Best regard Ross’.

By signing his name "Ross", the Teacher allowed an impression that it was acceptable for Student 1 to use his first name, in a school environment where first names were not used by teachers.

11. In the 2016 Christmas school holiday period, the Teacher sent Student 2 a notification on Facebook, requesting she be his friend on Facebook. There was no valid educational context for the Teacher to contact Student 2

12. On 30 and 31 January 2017, staff at the School, which included the Teacher, received two days of Professional Development at the School. All staff including the Teacher had their attention directed to the Board’s Teacher-Student Professional Boundaries – A Resource for WA Teachers, and the School's "Staff Code of Conduct and Statement of Commitment to Child Safety".

13. On 1 February 2017, when Student 1 was a Year 10 Student, the Teacher had a private conversation with Student 1 in which he informed her that his wife was diagnosed with breast cancer. Student 1’s mother had died from breast cancer when Student 1 was aged 8. The Teacher asked Student 1 about what treatment her mother had received for breast cancer and whether treatment had been obtained in Australia or South Africa (where both Student 1 and the Teacher originate).

14. The Teacher engaged in several conversations during Term 1, 2017, with Student 1, during which there were discussions surrounding the Teacher's wife’s treatment plan. This included a conversation on 28 February 2017, where the Teacher discussed the medical procedures his wife was undergoing. Student 1 felt uncomfortable because she did not like discussing the fact that her own mother had passed away from breast cancer in 2010.

15. On 13 February 2017 at noon, Student 1 had been crying outside the classroom prior to the commencement of the PCG class. The Teacher asked Student 1 twice what was wrong but she refused to answer and went to the female toilets with her friend, Student 2.

16. On 14 February 2017, Valentine’s Day, the Teacher emailed Student 1 from his personal email account with the subject line ‘Just checking on you.’ The body of the email stated:

‘Hope you are feeling a lot better today than you did yesterday. Have a memorable day!’.

Student 1 thought it was unusual for the Teacher to contact her on his day off and from his private email. She did not reply to his email. The Teacher did not raise the email further with Student 1.

17. In Term 1, 2017, the Teacher continued providing money to Student 1 for her to purchase items from the School’s cafe. This occurred two to three times per week and amounted to about $6 on each occasion. About half of the money was repaid by Student 1. Student 1 borrowed more money than other students and was less consistent in repaying that money than the other students, constituting preferential treatment towards Student 1.

18. On 3 March 2017, the Teacher had a conversation with Student 1 in the Science Preparation area where he told Student 1 that his wife required a second round of operations and that he would be absent.

19. On Sunday 5 March 2017, the Teacher attended Muffin Break, Ellenbrook, Student 1’s workplace without the permission of Student 1's parents. The Teacher gave Student 1 a Hallmark card titled ‘With Special Thanks’. The card contained handwritten notes, which stated:

‘[Student 1] (the Ponytail Princess!)
Just saying a big Thank you for cheering me up when I need it – especially the week that passed. At least you listened to my problems and showed that you care.

I know that I will need more cheering up in the next few days – so if you have time – text me a cheerful message on Tuesday or Wednesday when I will be away.
MOBILE: XXXX XXX
PS: Your lunch for the next Tues & Wed is on me!”

A $20 note was also contained in the card with the message. The written note contained a pet name, being the "the Ponytail Princess".
Student 1 was taken by surprise at work and telephoned her step mother and asked to meet her for a coffee on her work break. When her step mother met her, Student 1 showed her the card. Student 1 was shocked and felt uncomfortable as a result of receiving the card. Her step mother contacted the School on 8 March 2017 and the school commenced an investigation.

20. On 19 March 2017, the Teacher was dismissed from employment following the employer investigation which established the Teacher had engaged in serious misconduct.

21. In 2016, Student 4 was a Year 9 Student in the Teacher's PCG. Student 4 ceased enrolment at the School in December 2016. At around the 7 or 8^th March 2017, the Teacher sent Student 4 a notification on Facebook, requesting he be his friend. The request was accepted by Student 4. The Teacher then engaged in Facebook messaging with Student 4. Sometime after the Teacher's dismissal, the School disciplinary proceedings were discussed, and Student 4 provided him with a letter which was sent home to School parents regarding the Teacher's dismissal from employment.

22. On 14 April 2017, after being dismissed from employment, the Teacher sent Student 3, Year 10 Student, a notification on Facebook, requesting that she be his friend on Facebook. The purpose of the request was to facilitate contact with Student 1 or otherwise see any comments about Student 1 or made by Student 1 on Facebook.

Admission

23. The Teacher admits his conduct with the Students constituted serious misconduct of the nature which renders him unfit to be registered pursuant to section 47(f)(ii) of the Act.

Teacher's Submission:

24. "Whilst I acknowledge that my conduct was not that expected of a registered teacher, I would have not given Student 1 any money since term 3 last year, had the Assistant Principal made it clear to me that it was Student 1 that was uncomfortable with me. Furthermore, I would have not confided in her regarding my wife's illness, nor given her a Thank you card, if I had knowledge of her discomfort. I would have been extremely circumspect if a student came to me for money, after complaining about me, and also giving a card with money."