CITATION:	Queensland College of Teachers v RCJ (No 2) [2015] QCAT 540	

PARTIES:	Queensland College of Teachers
(Applicant)	
	v	
	RCJ
(Respondent)	

APPLICATION NUMBER:	OCR265-14	

MATTER TYPE:	Occupational regulation matters 	

HEARING DATE:	8 December 2015	

HEARD AT:	Brisbane	

DECISION OF:	Member Hughes, Presiding Member 
Member Rogers
Member MacDonald 	

DELIVERED ON:	18 December 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	That the referral of The Queensland College of Teachers of Teachers be dismissed.
2.	That the decision to suspend the registration of RCJ be set aside. 
3.	The following matters are prohibited from publication under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):
a)	the name of and other identifying information about the teacher who is the subject of this disciplinary matter; 
b)	the names of and other identifying information about the students and former students referred to in this disciplinary matter; and 
c)	the names of the schools referred to in this disciplinary matter.	

CATCHWORDS:	DISCIPLINARY MATTERS - FITNESS TO TEACH –where complaints by students of inappropriate touching – consideration of appropriate test to be applied – whether significant harm to students

Education (Queensland College of Teachers) Act 2005 (Qld), s 12, s 92, s 167 
Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2

Queensland College of Teachers v Smith [2011] QCAT 704 
Queensland College of Teachers v Armstrong [2010] QCAT 709
Queensland College of Teachers v GHI [2012] QCAT 182	

APPEARANCES:

APPLICANT:	Queensland College of Teachers 	

RESPONDENT:	RCJ 	

REPRESENTATIVES: 

APPLICANT:	Queensland College of Teachers represented by Mr J Gormley, Principal Legal Officer, Queensland College of Teachers 	

RESPONDENT:	RCJ represented by Mr L Dollar of Counsel instructed by Tresscox, Solicitors 	

REASONS FOR DECISION

[2]	RCJ has a long history as a teacher. He was first registered in 1974. He wants to be able to continue working as a relief teacher. He has had no disciplinary action before the charges resulting in this referral. 
[3]	RCJ was working as a relief primary school teacher for one day at XXXX State School in late August 2012. He was assigned to teach a composite class of grade 5/6/7 students. He had not taught at that school before and he did not know the students he was teaching. Many of the boys and girls were poorly behaved during the day.
[4]	In early August the students had received instructions from the Queensland Police Service about the need to report any interactions between themselves and any other person that made them feel uncomfortable. They were instructed to acknowledge that such contact was inappropriate.
[5]	During the day RCJ physically interacted with three female students in a way that made them feel uncomfortable and they made complaints to the school principal.
[6]	Following the complaints from the three students, RCJ was charged on 8 February 2014 with two counts of ‘indecent treatment’ and The Queensland College of Teachers suspended his registration as a teacher under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘EQCT Act’), on 12 February 2013. 
[7]	RCJ was ultimately indicted on six counts of ‘indecent treatment’. On 20 June 2014, following the pre-recording of the children’s evidence, the Director of Public Prosecutions entered a nolle prosequi on all charges. This was done, after consultation with the parents, on the basis that there were ‘insurmountable difficulties in proving beyond reasonable doubt that the touching of the children was a deliberate indecent act’.
[8]	On 24 November 2014 the Queensland College of Teachers brought a referral to QCAT, the disciplinary body under the EQCT Act, on the ground that RCJ is ‘not suitable to teach’. It is the responsibility of this Tribunal to determine if the ground for disciplinary action has been established and, if so, to decide what disciplinary action should be taken. 
[9]	It is accepted that RCJ is a ‘relevant teacher’ as defined by the Act.
What is the ground of the referral? 
[10]	The Queensland College of Teachers relies on one ground to establish disciplinary action, namely that ‘the teacher is not suitable to teach’. This is based on the charges of ‘indecent treatment of children’, which constitute ‘serious offences’ for the purpose of the EQCT Act. The referral was supported by the extensive information received from the investigation; including the police brief, the indictments, records of interviews and the transcript of pre-recorded evidence in the Ipswich District Court dated 14 May 2014. This material was provided to the Tribunal and we also had the benefit of the videos of the pre-recorded evidence. 
[11]	The parties filed an agreed statement of facts and issues in dispute. The following summary of the allegations that led to the charges is based on that statement.
a)	Allegation 1: At the start of the school day Complainant 1 told RCJ she did not feel well, he put his arm around her waist and held her wrist. Part of his arm between his elbow and his shoulder very lightly brushed against her body near the side of her breast as they walked together. It is agreed the brushing occurred by accident. Complainant 1 reported she felt that this was within her personal space. 
b)	Allegation 2: Later in the day, while playing sport outside, Complainant 1 told RCJ she was again feeling sick. He told her she did not have to play and took her wrist in a manner that caused his arm between his elbow and his shoulder to brush against her side, against her breast area under her armpit. She felt the brushing was a bit harder than the last time it occurred and she pulled away because she felt uncomfortable. The brushing occurred by accident. 
c)	Allegation 3: At lunchtime, Complainant 2 was on the deck to put her lunchbox away. RCJ approached her from behind and placed his elbow on her shoulder then his hand on her clavicle. He said words to the effect she was a good girl for ignoring all the misbehaving students. While she did not feel uncomfortable at the time, after discussing the incident with other students Complainant 2 did feel uncomfortable. 
d)	Allegation 4: At the end of the outside sport time Complainant 3 collected all the balls except one, which RCJ handed to her. As he did so his fingertips brushed against her body. The brushing occurred by accident as the ball was released. 
e)	Allegation 5: After sport Complainant 3 told RCJ she was feeling sick, he took her to the staff room, directed her to a couch, patted her on the clavicle and said ‘You’ll be right’ in an attempt to comfort her. Complainant 3 felt uncomfortable.
What is the test to be applied when assessing the behaviour?
[12]	A person is ‘not suitable to teach’ if that person ‘behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher’ or ‘otherwise behaves in a disgraceful or improper way’.
[13]	There is no suggestion RCJ has behaved in a ‘disgraceful or improper way’ so it is left to be determined whether his behaviour, involving five instances of physical contact with students, failed to satisfy the standard of behaviour generally expected of a teacher.
[14]	None of the contact was violent, indecent or sexual. It was not accompanied by indecent or provocative comments. It did not occur over an extended period of time. It is accepted the contact complained of was accidental and resulted from physical contact initiated by RCJ to either comfort or encourage a child. In the case of Allegation 4 the contact itself was accidental and minimal.
[15]	Both parties have relied on the decision in Armstrong which relevantly states:
The standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.
[16]	The Queensland College of Teachers submits that the physical conduct was discretionary and educationally unnecessary and the children’s emotional wellbeing was affected. It submits that ‘physical contact should relate to valid educational purposes such as behaviour support, management and care of students. It should otherwise be responsive and age appropriate’. Thus consideration of community/professional expectations and standards requires contact to be limited to what is necessary. We refer to this as the ‘necessary test’.
[17]	RCJ submits that the proper standard is whether the conduct is reasonable in the circumstances. We refer to this as the ‘reasonable test’. He argues this is a test that is well understood and widely used in many areas of the law, both civil and criminal. It is referred to in Blackstone’s Commentaries in 1825. He says it would be absurd if it could be said conduct was reasonable but not necessary and it was therefore inappropriate. This would result in a burden on teachers that is simply too high.
[18]	The parties agreed that the necessary test does result in a higher threshold for the standard of behaviour than the reasonable test. 
[19]	We have carefully considered the arguments presented and formed the view that the appropriate test to adopt is the reasonable test. 
[20]	Certainly, the necessary test would be more proscriptive and easier to articulate. If it established very limited grounds for physical contact, it could be more easily incorporated into school policies. It could be argued it would give students a higher level of protection from physical contact with teachers or staff. 
[21]	But is it desirable? No harm has been identified which demonstrates a need for a higher standard. There is no evidence to suggest those children who respond well to spontaneous physical contact, such as a tussled head, or a ‘high five’, accompanied by a ‘well done’ should be denied it. It would be sad to think that celebration of a victory, or commiseration for a loss, would be restricted to singing the school song and passing a water bottle without fingers touching.
[22]	The reasonable test gives sufficient protection to students without imposing artificial restrictions that remove their school life one step further from their after school world. Some schools may choose to develop policies which would implement the ‘necessary test’ and they are entitled to do so. That would then become relevant to what is reasonable in their school environment. Diversity requires it to be a choice each school environment is free to make.
Did RCJ act contrary to the standard of behaviour generally expected of a teacher?
[23]	When assessing the incidents of physical touching against the standard of expected behaviour both parties agreed many factors could be considered to establish the context of the interaction. These include: the age of the students, whether they have a rapport with the teacher who is in turn aware of their needs and requirements, the level of distress of the student, the extent of physical injuries, whether they are ‘special needs’ students and the policy of the school, which would in turn impact on the expectations of the students.
[24]	The Queensland College of Teachers argued the students were older primary school students, therefore more aware of their personal space, RCJ did not know them, they did not know him and they were informing him they were not well, rather than showing distress. In these circumstances, The Queensland College of Teachers argues, it was disproportionate for RCJ to comfort the students by physical contact and words would have been more appropriate. The Queensland College of Teachers relies on the responses of the students to show they suffered harm, being ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’.
[25]	The Queensland College of Teachers referred to the case of Smith involving inappropriate physical touching of students on back, bottom and below the hip bone and submitted that was comparable to the present case. 
[26]	It submitted that RCJ’s conduct, considered in the context of unnecessary physical contact, the response of the students resulting in harm and comparable cases, established the ground for disciplinary action ‘not suitable to teach’.
[27]	RCJ submitted that each incident does not establish to the requisite standard that he is not ‘suitable to teach’. He points to the evidence that the students had identified feeling uncomfortable before any of the physical contact occurred. He draws attention to the fact that the students labelled his behaviour as inappropriate and said he made them feel uncomfortable, within weeks of their receiving instructions on inappropriate interactions that might make them feel uncomfortable. 
[28]	RCJ submits that when considering the impact on the students, and whether they suffered harm, his conduct should be assessed in the light of this heightened awareness. He challenges the assertion of The Queensland College of Teachers that the students experienced harm being ‘any detrimental effect of a significant nature’, when they reported feeling ‘uncomfortable’. 
[29]	We accept that with the benefit of hindsight and in the totality of the circumstances it would have been prudent for RCJ to be more circumspect with his physical contact. RCJ has acknowledged he will adjust his behaviour in the future. However we are not satisfied that his behaviour was contrary to the standard of behaviour generally expected. 
[30]	One incident, namely Allegation 4 was purely accidental and we find as a matter of law that such accidental contact cannot constitute a breach of the required standard of behaviour because there is an absence of intent.
[31]	Of the other four incidents, we find the physical contact did relate to valid educational purposes such as behaviour support, management and care of students. In three cases RCJ was attempting to care for students who reported feeling sick. He actions and words, taken together and within context, indicate an appropriate response. In the fourth incident, Allegation 3 RCJ was providing behaviour support by praising a student for good behaviour. This incident did not involve touching a sensitive body area.
[32]	We can test his behaviour against his own performance history. With no evidence that he did anything differently to his normal behaviour on this day it is a behaviour that has passed scrutiny for 40 years in many different schools. This suggests there were other factors contributing to the student’s response rather then the physical contact alone.
[33]	His brushing against the students’ breast region was incidental to an action of physical contact, rather than the intended location. This distinguishes this case from Smith, which involved intentional touching to sensitive areas of the students’ bodies. 
[34]	We accept the submission that the students did not experience harm as this is defined in the Act. We accept they identified feeling uncomfortable with a new teacher and had to process how to handle that feeling in light of the recent instruction to acknowledge that contact between themselves and any other person that made them feel uncomfortable was inappropriate. This was a great responsibility for students of this age. However, there is no medical or other evidence supporting the contention they experienced any detrimental effect of a serious nature.
Is there a risk that RCJ would harm students?
[35]	Assessment of risk requires something more than a bare possibility, which is present in most human interactions. There must be a risk, based on evidence, greater than this bare possibility. To assess risk we are not limited to a consideration of the charges. Anything relevant can be considered and suitability must be assessed at the time of the hearing. We have considered RCJ’s long involvement with children as a teacher and the absence of previous complaints. We have considered the impact of the legal process, which took nearly two years and would have been a difficult period for all concerned.
[36]	RCJ’s suspension from teaching provided him the opportunity for reflection. He states ‘I can see in future it would be prudent to have less physical contact with students, especially during my first interactions with them’ and ‘I would use this experience to adopt a more restrained approach given the current social/media climate’. This evidence is not challenged and demonstrates the insight RCJ gained during this process.
[37]	We are satisfied that it is unlikely that RCJ poses a risk of harm to students at this time.
Has a ground for disciplinary action been established? 
[38]	On the basis of the above arguments we have decided that the ground for disciplinary action has not been established and we dismiss the referral. It is therefore appropriate that RCJ’s suspension be set aside immediately.
Non-publication Order
[39]	We have made a non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). It is in the interests of justice that those affected by the conduct of teachers come forward to make complaints. When the complainants are children it is important that their identity be protected as far as possible. This requires the non-publication of the name of the school, teacher, and all witnesses.