Queensland College of Teachers v Brooker
[2010] QCAT 320
•2 July 2010
CITATION: PARTIES: | Queensland College of Teachers v Brooker [2010] QCAT 320 Queensland College of Teachers |
| v | |
| Dr Ross Alfred Brooker |
| APPLICATION NUMBER: | OCR023-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 22 June 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | M McLennan – Presiding Member R Joachim – Member R Kyburz - Member |
| DELIVERED ON: | 2 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Dr Ross Alfred Brooker is prohibited from reapplying for registration or permission to teach for a period of five (5) years. |
| CATCHWORDS : | Education (Queensland College of Teachers) Act 2005; former approved teacher; not suitable to teach; prohibited from reapplication for maximum period; child sexual offences |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland College of Teachers represented by Mr M D Pollock, Solicitor |
| RESPONDENT: | No Appearance |
REASONS FOR DECISION
The Queensland College of Teachers (“QCT”) has applied to the Queensland Civil and Administrative Tribunal (‘the tribunal”) for an order under s.161(2)(c) of the Education (Queensland College of Teachers) Act 2005 (“the Act”) prohibiting Dr Brooker from reapplying for teacher registration or permission to teach for five years, which is the maximum period provided under the Act.
Background
Dr Brooker commenced registration as a teacher in Queensland on 2 January 1986.
On 29 November 2007 the Queensland Police Service (“QPS”) notified the QCT that Dr Brooker had been charged with five (5) counts of “indecent treatment of girls under 16” pursuant to s.216 of the Criminal Code.
On 30 November 2007 Dr Brooker’s registration as a teacher was suspended pursuant to s.48 of the Act. This section requires the QCT, once it becomes aware of a charge for a disqualifying offence, to immediately suspend a teacher.
On 21 December 2007 Dr Brooker ceased to be a registered teacher when his name was removed from the Register of Approved Teachers (“Register”). Dr Brooker was removed from the Register at his own request.[1]
[1] In letters from Dr Brooker dated 8 April 2010 to the Principal Registrar of the tribunal and 6 February 2008 to the Registrar of the former Teachers Disciplinary Committee (“TDC”), he refers to his cancellation of his registration and his decision to resign from the QCT. In the Brief dated 15 January 2008 for Members of the TDC, the Registrar refers to a lack of clear documentary evidence of Dr Brooker’s registration status: while the QCT database listed him as “suspended”, it also stated that “on 21 December 2007 Mr Brooker requested his details be removed from the register.”
On 21 October 2008 Dr Brooker was convicted in the Brisbane District Court of five (5) counts of “indecent dealing with a girl under 16 years” pursuant to s.216 of the Criminal Code. He was sentenced to two years and six months imprisonment suspended for a period of 30 months after serving 10 months imprisonment.
Issue
The tribunal must determine if there is established the ground for disciplinary action as provided for in s.92 of the Act, specifically whether Dr Brooker is a teacher not suitable to teach as provided in s.92(1)(h).
QCT submissions
Mr Pollock submitted the QCT file with its supporting documents into the tribunal record in particular the QCT submissions dated 12 January 2010 and filed in the tribunal 13 January 2010 as well as further QCT submissions filed on 30 April 2010 in the tribunal. Mr Pollock drew the tribunal’s attention to the certificate issued by the QCT pursuant to s.223(h) of the Act which evidenced the cancellation of registration or permission to teach.
He stated that the period during which the offences for which Dr Brooker was convicted was between 1 January 1987 and 31 October 1987. Pursuant to Schedule 3 of the Act, Dr Brooker is a “former approved teacher” which means that he is “a former registered teacher”.
10. In disciplinary proceedings in the tribunal, s.161 applies if the relevant teacher is a former approved teacher. It was submitted that the tribunal should decide that there was established a ground for disciplinary action against the former approved teacher. It was further submitted that the provision of s.161(2)(c) should be applied to Dr Brooker that is, that the tribunal make an order prohibiting him from reapplying for registration or permission to teach for not more than 5 years from the day the order is made.
11. Mr Pollock drew the tribunal’s attention to the sentencing remarks of his Honour Griffin SC in the Brisbane District Court where he described the conduct as: “Appalling because you were 33,34 years of age at the time and it was carried on with a 14 year old student.” [2]
[2] State Reporting Bureau Transcript of Proceedings District Court Criminal Jurisdiction Indictment No 1850 of 2008 The Queen v Ross Alfred Brooker Brisbane 21/10/2008 page 152.
12. The Judge stated: “the offences involved upper scale behaviour of this type involving oral sex and simulated intercourse and digital penetration.”[3]
[3] Ibid page 152
13. It was submitted that s.11(2) of the Act provides that where the QCT is aware of a conviction for a serious offence, it “must decide the person is not suitable to teach unless it is an exceptional case in which it would not harm the best interests of children for the person to teach”. In this case, the QCT submitted that the tribunal must apply the same test to examine if there are exceptional circumstances in Dr Brooker’s case. The onus of establishing the exceptional case rests with Dr Brooker.
Submissions of Dr Brooker
14. In a letter dated 14 May 2010 Dr Brooker informed the Principal Registrar of the tribunal that he had received correspondence in relation to the hearing on 22 June 2010. He advised that he would not be appearing in person or by telephone and he would not be represented at the hearing by any other person. He referred to his written submissions and requested they be considered by the tribunal.
15. The tribunal considered Dr Brooker’s written submissions dated 8 May 2010 and 8 April 2010. In particular his letter dated 8 May 2010 to the Principal Registrar queried why character references attesting to his exemplary behaviour since 1987 and presented to the court as well as two independent psychologists’ reports were not included in documents before the tribunal.
16. The tribunal raised this question with Mr Pollock and accepted his assurance that these documents were not in the possession of the QCT since they formed part of the criminal trial pre-sentencing proceedings before the Brisbane District Court. In relation to the two psychologists’ reports Mr Pollock directed the tribunal to the transcript where Dr Brooker’s lawyer informed the court that in the case of the first psychologist’s report, it was “very short . . only of four pages” and “no formal testing was done”. [4] His lawyer then stated that “it is of little value”[5] and “might be considered self-serving in not having been tested any way formally through any process.”[6] The Judge queried the value in tendering the document but accepted that the report contained an expression of Dr Brooker’s remorse. A second report by a different psychologist was unsigned. Both reports were tendered in evidence.[7]
[4] State Reporting Bureau Transcript of Proceedings District Court Criminal Jurisdiction Indictment No 1850 of 2008 The Queen v Ross Alfred Brooker Brisbane 21/10/2008 at page 1-8
[5] Ibid 1-8
[6] Ibid 1-9
[7] Ibid at 1-9
17. The tribunal, made aware of this exchange in the transcript took the view that, were these reports before the tribunal, they were unlikely to assist Dr Brooker in this disciplinary matter.
18. Dr Brooker submitted that the QCT in contending he was unsuitable to teach relied on his conduct in 1987 and subsequent conviction and imprisonment rather than assessing his behaviour since that time.
19. Dr Brooker provided no further material for the tribunal’s consideration.
Assessment of evidence and application of law
20. In relation to the standard of proof applicable in this tribunal, the determination of a disciplinary matter is an administrative function where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-62 (“Briginshaw”).
21. Dr Brooker’s conviction on five counts of indecent treatment of a girl under 16 years and his subsequent imprisonment are facts to which the tribunal must give appropriate weight in its consideration of the issue of suitability to teach. Considerations of criminal history relevant as guidance in this matter are set out in s.11(2) and s.11(4) of the Act:
11 Suitability to teach—criminal history information
(2) If the college is aware the person’s criminal history includes a conviction for a serious offence, the college must decide the person is not suitable to teach, unless the college is satisfied it is an exceptional case in which it would not harm the best interests of children for the person to teach.
. . .
(4) The Criminal Law (Rehabilitation of Offenders) Act 1986 does not apply in relation to the college’s decision under subsection 2.
22. The effect of s.11(4) is that in the case of a conviction for a serious offence such as the ones in Dr Brooker’s case, irrespective of the passage of time, it is mandatory that the QCT find that an approved teacher is not suitable to teach unless it is satisfied it is an exceptional case.
23. The public policy is stated where relevant in the Explanatory Notes to the Billl:
“Importantly, if the College is aware that the person’s criminal history includes a conviction for a serious offence the College must decide the person is not suitable to teach unless the College is satisfied it is an exceptional case in which it would not harm the best interests of children for the person to teach. As outlined in the Dictionary in Schedule 3, the meaning of ‘serious offence is contained in 99C of the Commission for Children and Young People and Child Guardian Act 2000”[8]
[8] Education (Queensland College of Teachers) Bill 2005 Explanatory Notes page 3 Fundamental Legislative Principles
24. The tribunal notes that the Act provides that when an approved teacher is convicted of a disqualifying offence and receives a sentence of imprisonment there is a mandatory cancellation of the teacher’s registration: s.56(2) of the Act. At the time of the commission of the offences in 1987, Dr Brooker was a registered teacher. The distinction here is that Dr Brooker is a former approved teacher because on 21 December 2007 his registration as a teacher was cancelled so that at the time of his conviction and imprisonment on 21 October 2009, he was not on the Register.
25. Can it be established that Dr Brooker’s is an exceptional case for the tribunal’s consideration?
26. At the time of the five offences for which he was convicted he was a mature adult aged 33 -34 while the child was 14 years of age. He was in a position of trust and authority as the child’s school teacher and was known to her family through attendance at the same church as the family and the mother’s participation on the school Board. There were camping activities and occasions where Dr Brooker transported the child to her home. The five offences occurred over an eight month period in 1987.
27. Factors of mitigation that the tribunal considered were, upon the complainant’s report to relevant authority in 2007, Dr Brooker was “full and frank in [his] co-operation with authorities;” displayed unusual and appropriate remorse for [his] behaviour”. [9] At the time of sentencing in October 2008, His Honour Judge Griffin SC recognised that “A long lasting punishment for someone of your age, you are now 55, is a significant loss of your career.”[10] These mitigating circumstances were not sufficient however to prevent a custodial sentence.
[9] State Reporting Bureau Transcript of Proceedings District Court Criminal Jurisdiction Indictment No 1850 of 2008 The Queen v Ross Alfred Brooker Brisbane 21/10/2008 at page 1-3
[10] Ibid
28. As already noted, the offences were serious and a term of imprisonment was imposed. The Act particularly in ss.11(2) and 11(4) requires that neither the passage of time nor changed behaviour is a consideration when Dr Brooker’s offences were of such a serious nature that they must impact on his suitability to teach.
29. Dr Brooker advanced no further reasons to assist the tribunal in an assessment of what might be considered exceptional. His assertions of changed behaviour that demonstrated his rehabilitation were not supported by independent evidence before the tribunal.
30. “Exceptional case” is not defined in the Act. Judicial opinion in case law establishes its ordinary meaning as being “unusual, special, out of the ordinary course”.[11] In consideration of the facts in this case and the policy intention evident in the Act, the tribunal does not find anything exceptional to override what would, for an approved teacher, be a mandatory cancellation.
[11] Kent v Wilson [2000] VSC 98
31. Section 161 provides where relevant:
161 Decision about disciplinary action against former approved teacher
(1) This section applies if the relevant teacher is a former approved teacher.
(2) If QCAT decides a ground for disciplinary action against the relevant teacher has been established, QCAT may do 1 or more of the following—
. . .
(c) if QCAT would have made an order cancelling the teacher’s registration or permission to teach if the teacher had been an approved teacher—make an order prohibiting the teacher from reapplying for registration or permission to teach for not more than 5 years from the day the order is made;
d) make an order that a particular notation or endorsement about the teacher be entered in the register.
32. The tribunal is satisfied that Dr Brooker is a former approved teacher and is further satisfied that the ground for disciplinary action has been established that he is not suitable to teach.
Tribunal’s determination
33. The tribunal orders that pursuant to s.161(2)(c) Dr Brooker is prohibited from reapplying for registration or permission to teach for five years from the date of this order.
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