• (4) personal and social behaviour that could compromise the professional standing of a teacher, and the profession of teaching
  • (5) understanding the effect of inappropriate relationships between teachers and students
  • (6) awareness of the power imbalance between a teacher and a student, and
  • (7) developing insight into the circumstances in which the teacher's or student's own emotional needs could influence the nature of a relationship with a student.

DISCIPLINARY PROCEEDING - WHETHER SUITABLE TO TEACH - where teacher engaged in inappropriate communication with student by email - where teacher showed remorse and a level of insight and understanding of future protective strategies.

Education (Queensland College of Teachers) Act 2005 ss 12 (3) (a), 92 (1) (h), 160 (2), 161 (2) (c)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied

Falesimatama, I Teachers Disciplinary Committee, 21 October 2009, distinguished

Mann, J Teachers Disciplinary Committee, 14 October 2009, distinguished

Queensland College of Teachers represented by Mr Mark Pollock, Principal Legal Officer.

1. Mr Pau is a registered teacher who was first registered to teach in 1999.

2. The Queensland College of Teachers (QCT) applied to the Queensland Civil and Administrative Tribunal (the Tribunal) for an order prohibiting Mr Pau from reapplying for teacher registration for a period not less than 3 years.

3. The QCT alleges that Mr Pau:
   • (1) engaged in inappropriate communication with a student by email, and
   • (2) breached the policies of the employing authority, the Department of Education and Training (DET) and QCT.

4. A hearing was conducted to determine whether a ground for disciplinary action against Mr Pau existed. The ground for disciplinary action under consideration in this matter is that found in section 92(1)(h) of the Education (Queensland College of

Teachers) Act 2005 (the Act), namely_,_ "the teacher is not suitable to teach."

Allegation 1: Inappropriate Communication with a Student

(1) The respondent teacher engaged in inappropriate communication with a student, by providing to the student a printed copy of an email he had written. The document also contained hand-written comments on it written by the respondent. The text of the document included the following material:

• "...you have a pretty face, a gorgeous smile and a sexy walk. I think I have fallen in love with you. Everything about you attracts me";

• "...how old are you? When do you turn 18?";

• "I am crazy about you. I do not sleep properly, eat very little and am finding my thoughts are always about you..."

• "Can you give me a phone number so I can ring you over the holidays? Do you have a mobil (sic)? Can I buy you one so I can call you?"

• "If you want I want to talk to you tonight so tell me so I can tell you what we need to do"

The handwritten notations on the printed email included:

• "I don't think I am too old for you..."
• "write a note and destroy this one"

Allegation 2 : Breached Employing Authority and QCT Policy

(2) By virtue of Allegation 1 being proved, Allegation 2 is established.

(3) The DET Code of Conduct and Student Protection Policy requires teachers to protect students from harm, and to avoid situations giving rise to the reasonable suspicion that professional boundaries have been breached. These obligations would be breached by the conduct in Allegation 1.

(4) The QCT Ethical Standards for Teachers which operated at the material time stated that teachers will create and maintain appropriate professional relationships with students. This standard would be breached by virtue of the alleged conduct.

Soon after this matter was referred to the Tribunal, Mr Pau wrote to the Tribunal and indicated that he did not want to contest the case against him. Since then he has participated in various directions hearings.

As a result of directions made by the Tribunal, the QCT prepared and filed in the Tribunal a document entitled 'Statement of Agreed Facts and Further submissions as to Penalty' (the document).

At the hearing of the matter Mr Pau agreed with the allegations as detailed above including that the communication, as outlined in allegation one, was inappropriate.

The document also contains a number of relevant facts about Mr Pau:

• (1) Mr Pau was first registered to teach in Queensland on 22 December 1999

• (2) Due to non-renewal of registration in May 2010, Mr Pau's status is presently that of a former approved teacher for the purposes of the Education (Queensland College of Teachers) Act 2005.

• (3) Mr Pau's date of birth is 12 September 1967, making him 39 years of age at the time of the conduct the subject of these proceedings, and 42 years old at the time of the hearing

• (4) At the material time, the respondent was teaching at Thursday Island State High School

• (5) The complainant female student was aged 17 at the material time

The rest of the document provided an outline of what the QCT believed Mr Pau's letter of 8 June 2010 expressed. It repeated the QCT's requests about findings and made further submissions as to penalty.

1. Mr Pollock submitted, for the Tribunal record, the QCT file with its supporting documents, in particular the QCT submissions of 18 June 2010, an amended section 223 certificate, a form 22 and an associated bundle of materials and the draft statement of agreed facts dated 24 August 2010.

2. Section 161 of the Act applies to disciplinary proceedings before the Tribunal if the relevant teacher is a former approved teacher. It was submitted on behalf of QCT that the Tribunal should decide there was a ground established for disciplinary action against a former approved teacher and that section 161(2)(c) should be applied to Mr Pau and that the Tribunal should make an order prohibiting him from reapplying for registration or permission to teach for a period of not less than 3 years.

3. Mr Pau gave evidence on the following matters.
   • He is a Torres Strait Islander by culture, and part of his culture is that young people did not mingle with older people.
   • He had been having marital difficulties and he had not been paying sufficient attention to his marriage.
   • He expressed significant remorse at the sending of the email and noted it was a strain on the young girl, and that he had felt sorry for her. He expressed real remorse and said that she would have looked up to him as an uncle and would have been shocked at what he had done.
   • He has now put some strategies in place to ensure that he could not repeat his mistakes of the past. He said in his evidence he had seen the silliness of what he had done. The result had been very serious in that he had lost his income, he had felt shame and a loss of reputation and further, his wife has continued to suffer.
   • He said he would accept whatever penalty the Tribunal decided. However he would like a second chance to work in his profession which he has worked in all his life.
   • He explained that all his family had been teachers and that his whole family had been involved in Torres Strait Islander education since the 1950's.
   • As to a penalty, he noted that the 3 year penalty sought by the QCT would make it difficult for him to retrain and he was not sure whether he would have the confidence to return to teaching after that time.

1. The determination of a disciplinary matter in this Tribunal is an administrative function where the appropriate standard is the reasonable satisfaction of the decision maker. That degree of satisfaction varies according to the gravity of the fact to be proved: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

2. The Tribunal notes that Mr Pau has agreed that his behaviour was inappropriate. The Tribunal similarly concludes that Mr Pau did engage in inappropriate communication with a student as detailed in allegation one.

3. As to allegation two, that Mr Pau breached the employing authority and QCT policy, the QCT submits that this breach occurred by virtue of the behaviour alleged in allegation one. The Tribunal considered whether this is a separate allegation or merely a necessary implication of the behaviour. That is, whether allegation two is simply a statement that inappropriate communication with a student constitutes a breach of relevant policies. The Tribunal concludes that allegation two is a separate allegation because it contextualises the inappropriate behaviour.

4. The Tribunal is satisfied that pursuant to section 12(3)(a) of the Act Mr Pau's behaviour does not satisfy the standard of behaviour generally expected of a teacher and therefore the Tribunal is satisfied prima facie that Mr Pau is not suitable to teach within the meaning of section 92(1)(h) of the Act and that there are grounds for disciplinary action against him.

1. Mr Pau, both at a directions hearing held on 25 June 2010 and in his letter to the Tribunal has said he does not wish to contest the case against him.

2. At the hearing of the matter Mr Pau admitted to the allegations as set out in the agreed statement of facts.

3. The Tribunal, having accepted both the Applicant and Respondent agreed to the allegations as listed, sought particular submissions on penalty. The QCT submitted Mr Pau is not suitable to teach pursuant to section 92(1)(h) of the Act and that the appropriate penalty should be a 3 year prohibition on Mr Pau reapplying for registration or permission to teach pursuant to section 161(2)(c) of the Act.

4. In his letter and at the hearing Mr Pau did not specifically state what he believed the penalty should be. Instead he asked for a "second chance as I would still like to be involved in the education of indigenous Australians (if only in adult education)".
5. On the important issues of remorse, insight and protective behaviours Mr Pau made the following statements:
   • that he could see the folly of what he had done
   • that his behaviour was wholly inappropriate culturally
   • that he had begun to develop strategies to avoid repeating the situation including beginning training as a visual art teacher
   • that at the time of the incident he did not discuss his feelings with anyone and how if it happened again he would do so
   • that he realised it was not the right thing to do, that it placed strain on the young girl and he felt sorry for her, and that he didn't not deny the allegations
   • that he would accept whatever penalty the Tribunal ultimately imposed.

6. In final submissions Mr Pollock, from the QCT, reiterated that Mr Pau had a clear intention to pursue a relationship with an 18 year old, but he did acknowledge that Mr Pau had greater insight into his behaviour than the original submissions assumed.

7. To assist the Tribunal the QCT provided 2 cases, Mann[1] and Falesimatama.[2] The Tribunal did not find these cases of particular assistance as each was quite distinct on the facts from this case. In Mann's case:
   • over 100 emails were sent
   • there was incremental progression into over familiarity
   • there was no contrition or remorse on the part of the teacher
   • a 3 year penalty on prohibition from registration

8. Importantly Mr Pollock acknowledged that the submissions made by the QCT about this case were prepared in a context of the QCT suggesting a lack of remorse and insight from Mr Pau. As outlined above, Mr Pollock conceded Mr Pau showed a level of insight and remorse not understood by the QCT at the time the submissions were prepared.
9. The second case, Falesimatama, is also of little assistance as it involved:
   • emails over a 2 week period
   • a very sexually explicit email
   • gifts to the student
   • invitation to visit a café
   • an 18 month penalty on prohibition from registration

10. The strong factual difference, especially the explicit nature of the material compared to that given by Mr Pau to the student, is so overwhelming that the same penalty to that given in Falesimatama would clearly be inappropriate. The Tribunal was of the view that a lesser penalty than either of these cases was appropriate but that Mr Pau's return to teaching does require a significant period of prohibition from registration as his actions caused harm to a student.

11. The Tribunal also explored the option of counselling and Mr Pau indicated that he would be prepared to attend counselling. The Tribunal was impressed with Mr Pau's continuing and better understanding of his insight and protective strategies. The Tribunal suggests that further opportunities for counselling or therapy are appropriate so he can continue to gain insight into his actions and provide himself with an opportunity to understand the significant responsibility placed on him as a teacher. Accordingly, the Tribunal places conditions on any future registration related to Mr Pau's further development in this regard.

1. Pursuant to section 160(2)(d)(h) and (j) of the Act that Mr Pau's teacher registration be cancelled, and that he be prohibited from reapplying for permission to teach for a period of 1 year from the date of hearing with a condition attached that prior to any future registration he attend counselling or therapy with a registered psychologist, and a report be prepared for the QCT by the psychologist addressing insight or knowledge he has gained regarding:
   • (1) differentiation between personal and professional relationships
   • (2) development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students
   • (3) risk management and early issue identification of potentially problematic situations, as well as initiating realistic solutions for avoiding risk of harm to students
   • (4) personal and social behaviour that could compromise the professional standing of a teacher, and the profession of teaching
   • (5) understanding the effect of inappropriate relationships between teachers and students
   • (6) awareness of the power imbalance between a teacher and a student, and
   • (7) developing insight into the circumstances in which the teacher's or student's own emotional needs could influence the nature of a relationship with a student.

[1] Mann, J Teachers Disciplinary Committee, 14 October 2009

[2] Falesimata,I Teachers Disciplinary Committee, 21 October 2009