BJM v Director-General, Department of Justice and Attorney-General
[2022] QCAT 372
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
BJM v Director-General, Department of Justice and Attorney-General [2022] QCAT 372
PARTIES: BJM (applicant)
v
Director-general, department of justice and attorney-general (respondent)
APPLICATION NO/S:
CML402-20
MATTER TYPE:
Childrens matters
DELIVERED ON:
26 October 2022
HEARING DATE:
4 March 2022
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set-aside and replaced with the Tribunal’s decision that there is no exceptional case.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – applicant seeks a review of decision to issue a negative notice following charges of ‘sexual assault’ – where the applicant denies the charges – where the Crown entered a nolle proseque on all charges – whether an exceptional case exists.
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66
Human Rights Act 2019 (Qld), s 13, s 26, s 48
Chief Executive Officer, Department for Child Protection v Grinrod (No 2) (2008) WASCA 28
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28Re TAA [2006] QCST 11
TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
Volkers v Commission for Young Children and Young People and Child Guardian [2010] QCAT 243APPEARANCES & REPRESENTATION:
Applicant:
B. Bilic instructed by O’Reilly Stevens Lawyers
Respondent:
C. Davis – Legal Officer for Blue Card Services
REASONS FOR DECISION
On 11 October 2021, this Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATAct) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant, any family member of the applicant, any child, or any non-party to the proceeding. Accordingly, these reasons and the Orders given herein are published in a de-identified format.
Background
On 13 November 2018 the applicant was issued with a working with children clearance (Blue Card) under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA).
On 2 April 2019, the applicant was charged with three counts of sexual assault said to have occurred on 31 March 2019 (the Charges). The alleged victim of the assaults is said to have been a young Japanese girl who was at the time sixteen years of age living in the applicant’s house as an international exchange student, for whom the applicant and his wife were her approved host parents.[1] The assaults, alleged to have been what can simply be described as inappropriate touching of the young girl on her body, are said to have occurred whilst the applicant and the young girl were together on a boat (the Alleged Offences).
[1]Ex 1 – pg’s BCS 12 to 16.
Following the initial complaint but before the charges were laid, the Queensland Police interviewed the applicant during which an extraction exercise was conducted on the applicant’s mobile phone. This exercise showed that, for a period of time leading up the incident in question, google searches had been conducted for terms such as “young Japanese school girls giving blow jobs” (the Google Searches)
Subsequently the Police executed a search warrant at the applicant’s residence. In doing so they seized a number of electronic items which it is said they believed may have contained child exploitation material given the asserted explicit nature of Google Search terms (the Alleged Presence of Child Exploitation Material).[2]
[2]Ibid – BCS 3 at 3.1.1 – see also BCS 17.
On 8 April 2019, the applicant surrendered his then current Blue Card.[3]
[3]Ibid – BCS 1 at 1.
On 13 September 2019, the Department of Public Prosecutions presented an indictment in the District Court of Queensland relevant to the Charges, but on 13 December 2019 the Crown entered a nolle proseque on all counts which resulted in the applicant being discharged with the Charges discontinued. It is said that this was due to the complainant returning to her home country, and that without a complainant for cross-examination the matter could not proceed.[4]
[4]Ibid – BCS 22.
On 26 February 2020 the applicant applied to the respondent for the issuing of another Blue Card. He did so for the purposes of permitting him to coach his daughter’s soccer team.
On 9 April 2020, in response to that application, the respondent provided the applicant with information it had received which, in its words “raises concerns about your eligibility to hold a blue card”. That included a copy of relevant material the respondent had received from Queensland Police relative to the Alleged Offences and the Charges. In doing to the respondent gave the applicant an opportunity to make submissions in response to that information by 23 April 2020.[5]
[5]Ibid – BCS 24. During the hearing it was confirmed that the information enclosed with the respondent’s letter and marked Attachments C and D is that which is contained in Ex 1 – BCS 13 to 21.
Subsequently on or about 14 April 2020 some further information was obtained by the respondent and accordingly a further opportunity was given for the applicant to make submissions in response, extending the time overall to 28 April 2020.[6]
[6]Ibid – BCS 34.
The applicant’s response to these calls for submissions was a series of e-mails to the respondent on 20 April 2020, 2 June 2020, 10 July 2020, and 14 August 2020 (the Applicant’s Initial Submissions).[7] On any reading of that material it did not address in any meaningful manner the issues raised in the information provided to him. Rather it simply expressed the point that the charges against him were dismissed due to what he says was a lack of evidence.
[7]Ibid – BCS 35 to 39.
On 10 September 2021 the respondent, via its Director Blue Card Services (Screening Services), made the decision to deny the applicant another Blue Card and to issue a negative notice (the Decision).[8]
[8]Ibid – BCS 40.
By application filed 2 October 2020, the applicant applied to this Tribunal for a review of the Decision.
The hearing of that application occurred on 4 March 2022 occupying an entire day of hearing time. It was followed by the provision of written submissions by the parties, namely the applicant’s submissions in closing of 15 April 2022 (ASC), the respondent’s submissions in closing of 9 June 2022 (RSC), and the applicant’s submissions in reply of 6 July 2022 (ASR).
Regrettably, due to a number of issues arising unexpectedly before me since mid to late July of this year, my consideration of those submissions together with the evidence received at the hearing was delayed such that it has taken until now to reach a decision and provide these reasons in this proceeding.
For the reasons I give later herein, I am unable to find that the applicant’s case is an exceptional one in which it would not be in the best interests of children in the manner contemplated by s221(2) of the WWCA such that a negative notice must issue. Accordingly, the Decision must be set-aside and replaced with the Tribunal’s decision that there is no exceptional case. The net effect of such is that pursuant to s221(1) of the WWCA, the chief executive must issue a working with children clearance to the applicant.
The Nature of this Review Proceeding
This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, and more particularly s354 therein, read together with the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation, and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[9]
[9]QCAT Act s 19.
The purpose of this review is to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[10] It is not necessary for me to consider whether the decision-maker made an error in making the Decision. At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[11]
[10]QCAT Act s 20.
[11]QCAT Act s 24.
The Issues in this Proceeding
Given that charges were laid but did not proceed to a conviction it remains unresolved at law as to whether the Alleged Offences actually occurred. Similarly, on the material that is before this Tribunal, the Alleged Presence of Child Exploitation Material remains an issue that is not proven. Thus, it is all allegations and not established fact.
Notwithstanding that, as I read the material before me, in my opinion the Decision was one open to be made under the WWCA s221 providing that, upon consideration of the relevant information, namely the Charges and the Google Searches,[12] the decision-maker was satisfied that it was appropriate to issue a negative notice. It is quite obvious that the decision-maker was so satisfied. But the applicant does not agree. Accordingly he applied to this Tribunal to have the Decision reviewed and the issue decided on the merits.
[12]Such fall within the ambit of WWCA s221(1)(b)(iv) and (d). In my opinion the Alleged Presence of Child Exploitation Material was so vague and uncertain it should not have been something properly considered in assessing the application for a Blue Card.
In undertaking this review, the issue is whether these allegations of conduct by the applicant are such as to fall within the category of an ‘exceptional case’ so as to deny the applicant his Blue Card. The applicant argued that it was not. The respondent submitted it was.
In order to resolve that contest, consideration of WWCA s226(2) is necessary. It sets out that which must be considered in deciding whether it was appropriate to issue a negative notice. In doing so, the following must not be overlooked:
(a)The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[13]
(b)The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing;[14] and
(c)As the respondent has appropriately and properly submitted, the principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[15] such being a principle that I must apply in this review.
[13]WWCA s 5.
[14]WWCA s 6.
[15]RSC para’s 24 & 25. As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”
The starting position is that whilst the Charges are for a disqualifying offence they have been dealt with[16] other than by a conviction, and notwithstanding the Alleged Presence of Child Exploitation Material, the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.[17] If that starting position stood without exception, then it would be in order for me to set aside the Decision. However, it is that exception which looms large in these sorts of matters. It is that the starting position is subject to the exception that if I am satisfied that it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with such a clearance, then a negative notice must be issued and so it would be in order for me to confirm the Decision.[18] That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to be issued with a Blue Card.[19]
[16]I pause here to observe that the term ‘dealt with’ in relation to a charge of an offence is defined in Schedule 7 of the WWCA to include where the charge has been dismissed or a nolle prosequi is presented in relation to the charge.
[17]WWCA s 221(1)(b).
[18]WWCA s 221(2).
[19]Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].
But the WWCA does not define an exceptional case, and it has been held that it is a matter of fact and degree to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 in reference to the predecessor legislation to the WWCA:
It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.
There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that:
‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion’.
We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.[20]
[20]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.
Neither party bears an onus in determining whether an ‘exceptional case’ exists.[21] It is a matter of discretion. I must decide the question of whether an exceptional case exists on the balance of probabilities.[22]
[21]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[22]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34].
In undertaking that task it is not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case is an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303:
The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.
The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.
In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.
The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.
What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[23]
[23]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.
The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed in therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[24] Accordingly what follows later in these reasons is my consideration of each of those particular criteria. I do so by addressing them relevant to what I see as being the descriptors of the three main issues in the proceeding as I have identified them earlier in these reasons under the heading ‘Background’, namely ‘the Charges / the Alleged Offences’, ‘the Google Searches’, and ‘the Alleged Presence of Child Exploitation Material’.
[24]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
The Material before this Tribunal
This proceeding is not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time, it is not an inquisitorial process. My decision turns on the material before me at the hearing, both documentary and oral, and the written submissions which followed.
The respondent is not participating in an adversarial role advocating for the correctness of the decision by its decision-maker. Its role is to use its best endeavours to help me in making my decision on the review.[25] As it was required to do,[26] the respondent provided relevant material to this Tribunal, namely its Reasons for the Decision and other documents in its possession considered relevant.[27] At the commencement of the hearing, the applicant confirmed he had received copies of this documentation. Save only for the provision of its written closing submissions, the respondent did not seek leave to produce any further material at the hearing, nor did it call any witnesses.
[25]QCAT Act s 21(1).
[26]QCAT Act s 21(2).
[27]Ex 1 and Ex 2.
The applicant provided an affidavit which was effectively his written statement of evidence, affirming it as his evidence in chief.[28] He also called five witnesses in addition to himself. With the exception of one who was unable to be contacted during the hearing, each of them swore to the correctness of statements each had previously given either by way of affidavit or in the form of a statement as a character reference, and each were made available for cross-examination. They were respectively the applicant’s wife (W1),[29] his brother (W2),[30] his sister-in-law (W3),[31] his father (W4),[32] and his mother (W5).
[28]Ex 3.
[29]Ex 4.
[30]Ex 5.
[31]Ex 6.
[32]Ex 7.
His mother was the witness unable to be contacted during the hearing. Notwithstanding such absence, the respondent’s representative appearing at the hearing did not require her for cross-examination and consented to her statement being tendered albeit on the basis that it should be given little to no weight.[33]
[33]Ex 8.
My consideration of the issue in this proceeding thus proceeded on this evidence and the respective submissions.
The Applicant’s Case
As I understood the applicant’s case, it was that
(a)the Alleged Offences did not occur;[34] and
(b)whilst he did not dispute that evidence of the Google Searches was found and thus accepts as a fact that the searches were conducted, he says that the evidence of the searches was found within the history of a communal google account in his name which members of his family have access to and which can be accessed from various devices, but that no evidence of the searches having been conducted on any of his devices was found.[35]
[34]As stated during cross-examination. Whilst the applicant accepted that he may have touched the young girl on her back, he said it would only have occurred to move her out of the way whilst they were out on the boat, asserting that he was letting her drive it but that she did so in a way that required him to quickly step in a take control of the boat for safety reasons. See also ASC para 20.
[35]Ex 3 para’s 31 to 35. See also ASC para’s 28 to 32.
As to the Alleged Presence of Child Exploitation Material, the applicant’s material is for all intent and purpose silent on this aspect of the case put against him. However, notwithstanding that silence, as I understand his case it is that there is no evidence of any such material having been found on the electronic devices seized.
Consideration & Discussion of the Evidence and Submissions
The cross-examination of the applicant and of his wife was extensive.
What was also extensive was the extent to which both the applicant’s Counsel and the respondent’s representative went in addressing me on the issues, the evidence, and on the law as part of their respective closing written submissions. Whilst I appreciate that extensive attention to the material, it seems to me that it went unnecessarily well beyond that to which each of them needed to go to focus my attention on the relevant evidence and issues. On reviewing my notes of the examination of each witness during the hearing, and then in reading the written closing submissions, I was left with the distinct impression that the applicant was endeavouring to establish his innocence, whereas the respondent was endeavouring to establish his guilt. If my impression is correct, it seems to me that it was entirely unnecessary to have gone to such an extreme and without that added effort this matter might have reached a finality with my decision and reasons being published much earlier.
What was at the very core of this extensive argument was quite naturally the existence of the Charges. I thus start with that aspect of the material before me and make these few observations.
As was stated by this Tribunal in Volkers v Commission for Young Children and Young People and Child Guardian [2010] QCAT 243 when considering the relevance of charges against an applicant which did not result in a conviction:
It is not this Tribunal’s function to adjudicate upon whether the Applicant is, in fact and at law, guilty of not guilty of the non-conviction charges in question. The relevant function involvers an analysis and evaluation of risk. It is not concerned with the proof of offences which the Applicant may have committed previously, but with the prevention of future potential harm.[36]
[36]Volkers v Commission for Young Children and Young People and Child Guardian [2010] QCAT 243,[58] referring to the decision of the Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grinrod (No 2) (2008) WASCA 28
Somewhat later, this Tribunal once again had cause to consider circumstances of a mere charge dealt with other than by conviction in the matter of TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489, with the following observation being made therein by the learned Member:
A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.
This may seem unfair to Mr TNC and many others in his situation, who are entitled to a presumption of innocence. It can be seen as offending a sense of justice.
Parliament considered this tension and stated in the explanatory notes to the Bill introducing the Act at page 10:
The infringements [on the rights of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their well being (sic).
I am therefore required to give some weight to the charges. They do not constitute an exceptional circumstance by themselves, if they did that would have the effect of elevating their importance to the level of convictions, and Parliament drew a distinction, but they must be considered as part of the circumstances.[37]
[37]TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489,[83] to [86].
Shortly after expressing those observations, the learned Member went on to say:
I do not need to be satisfied on a balance of probabilities that the offences occurred and I do not make that finding. …
The assessment of risk is not limited to the charges and I must consider the totality of the evidence.[38]
[38]Ibid, [89] and [90].
These earlier decisions of the Tribunal loomed large in the respondent’s submissions. It submitted that given the Charges and the totality of the evidence, the circumstances raise the possibility of a risk to children such that it would not be in the best interests of children for the applicant to be issued with a Blue Card.[39]
[39]RSC – para 48.
For the reasons I give later herein, I do not agree. Notwithstanding the existence of the Charges and the Alleged Offences, and the consideration of the evidence by the Police that I infer must have been undertaken given that the Charges were raised and ultimately an indictment entered, in my opinion on that which is now before me the evidence is insufficient to reach the conclusion that it would not be in the best interests of children for the applicant to be issued a Blue Card.
Whilst I will address in further detail my consideration of the existence of the Charges in the paragraphs that follow, in my opinion it is relevant and appropriate to pause here and make the following brief observations on the other two aspects of this matter as I identified them in paragraph [27] herein.
Turning first to the Google Searches, in my opinion there is simply an inadequacy of evidence before me to show me that this is a factor weighing upon the question of the best interests of children. Whilst it is, as I understand the evidence, an admitted fact that the searches were done using the applicant’s google account, there is no evidence that could be in any way construed or from which an inference can readily be drawn that the applicant conducted the searches.
There is also a substantial body of written submissions made by both the applicant and the respondent in terms of the evidence that goes to the descriptions used in the searches said to have been conducted. However, with respect to the authors of those submissions I am unable to see the substance within the issue that the authors seem to want to give this evidence. In my opinion, at best, it could only be of substance if there was sufficient evidence to, at the very least, lead to the inference that the applicant himself conducted the searches. But, there is an absence of sufficient evidence to lead to any such conclusion.
Save only for the comments I make later herein as to the question of insight, in my opinion this fact carries no weight in reaching the requisite degree of satisfaction under s221(2) of the WWCA and I need not consider it further in any great detail but will on occasion refer to it later in these reasons
Similarly, in my opinion the issue of the Alleged Presence of Child Exploitation Material is nothing more than mere speculation. At its highest the evidence is that an investigating police officer held a belief that such material might be found on the electronic devices seized. But, importantly and critically, there is no evidence that it was found, or at the very least evidence found that suggests it could have been there but removed.
In all respects, in my opinion this issue carries absolutely no weight and in no way can it bear on reaching the requisite degree of satisfaction under s221(2) of the WWCA, and once again I need not consider it further in any great detail, but will also on occasion refer to it later in these reasons.
That therefore leaves primarily the issue of the Alleged Offences to be dealt with in terms of considering the relevant criteria under the legislation. In order to do so it requires a consideration of the applicant’s evidence relevant to his alleged conduct giving rise to the Charges.
The Applicant’s Witnesses’ Evidence
Before turning to the relevant criteria to be considered under the legislation, I should say something about the evidence led from the applicant’s witnesses.
The majority of it was of little assistance to me. Whilst I appreciate the intentions of W2, W3, W4 and W5 to paint the applicant in a good light by giving what was in effect character reference statements, this evidence did not provide me with anything upon which I could consider the substantive issues in the proceeding, namely the question of the alleged conduct engaged in by the applicant and thus whether it was such to enable me to reach the requisite degree of satisfaction under s221(2) of the WWCA. I gave no weight to the evidence given by W3, W4 and W5.
In contrast, the evidence of the applicant’s wife W1, particularly that given by her under cross-examination, was of substantive weight and of great probative value. In my opinion it is unnecessary for me to lay out in any detail parts of that evidence as I can properly deal with it on a global basis.
The cross-examination of her by the respondent’s representative was extensive and in depth. The witness responded directly to the points raised with her. As I observed her in the witness box during the hearing, she was unwavering, answering the questions without hesitation, and was at all times, as I saw it, frank and candid in her responses. As I understood her evidence, she was well placed to have observed the young girl on her return with the applicant from the boat trip, and her observations were such that she could readily and frankly say there was no exhibition of any behaviour by the young girl to suggest the Alleged Offences occurred.
In all respects, on the strength of this evidence, I am simply unable to reach a conclusion that the applicant might have engaged in such conduct. That being so, it leads me to conclude, consistent with the evidence of the applicant himself, that he would not have engaged in, and does not condone the engaging in, such conduct.
As to the evidence of W2, whilst generally it was also not of any great assistance for the same reasons I have mentioned in respect of the other witnesses, there was one aspect of it that in my opinion I should mention for completeness. It goes to the issue of the Google Searches.
As I noted it earlier, the applicant’s evidence is that his google account, it being the account used to conduct the Google Searches, was treated as a communal account for use by his family members. When W2, the applicant’s brother, was questioned about the use of his brother’s google account, his response was that he does not access his brother’s ‘g-mail account’. Whether he intended this to be a reference to a the google account to which the applicant was referring was entirely unclear. However, even if it was a reference to that account, it is evidence only of the fact that W2 does not use it. It is not evidence that other family members, or even other persons, might use the google account as the applicant suggests occurs.
The Relevant Criteria
With that brief discussion on the evidence being given as a background to and basis for the consideration and discussion which now follows here, I turn to the relevant criteria I must consider under s226 of the WWCA.
Whether the Offence is a conviction or a charge[40]
Whether the Offence is a serious offence, and whether it is a disqualifying offence[41]
[40]WWCA s.226(2)(a)(i).
[41]WWCA s.226(2)(a)(ii).
In my opinion it is convenient to consider these two criteria together.
The Alleged Offences at all times remained solely as the Charges. They were for disqualifying offences. But, they did not proceed to conviction. As I have noted it, the Charges were subsequently dismissed on the basis of a ‘no evidence’ position presented by the prosecution.[42]
[42]I pause here to observe that this seems to me, on the material before me, an entirely appropriate course to have taken. Accordingly it also seemed to me that it was entirely inappropriate for me to give any further consideration to the existence of these charges, and accordingly the alleged conduct that was behind them, albeit historical, in reaching the decision I was required to reach in this proceeding.
Notwithstanding that, the respondent submits that it is clear that Parliament intended that all offences on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.[43] I accept that as being a correct submission. However, in the case that is before me, at best all that exists is the Charges themselves, entirely unsupported by any evidence that can lead to a conclusion, other than by inference, that there is some possibility the applicant might have committed the Alleged Offences.
[43]RCS – para 46 - referring to the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.
Similarly, as I have already expressed it, to the extent the issue of the Google Searches is to be considered an ‘offence’ for the purposes of assessment of this criteria, in my opinion there is simply no substance to it so as to warrant further consideration as part of this criterion.
When the Offence was committed[44]
[44]WWCA s.226(2)(a)(iii).
The Alleged Offences are said to have occurred on 31 March 2019. Whilst the respondent notes this in its closing submissions, it does so without any expansion on the point.[45] It seems to me that was appropriate and no expansion was necessary. In my opinion there is nothing that turns on this fact and I need not consider it.
The nature of the Offence and its relevance to employment, or carrying on a business, that involves or may involve children[46]
[45]RSC – para 51.
[46]WWCA s.226(2)(a)(iv).
As the respondent’s representative has put it in her written closing submissions the nature of the Applicant’s alleged offending is disclosed in the various documents that have been filed in this proceeding. The submissions then continued setting out in summary form the alleged offending, concluding with this submission.[47]
The alleged offending is of direct relevance to the Applicant’s eligibility to work in activities regulated by the WWC Act. The Applicant has been charged with offences categorised as serious and disqualifying under the WWC Act. By designating the offences to be serious and disqualifying, Parliament has demonstrated their relevance to employment, or carrying on a business, that involves or may involve children.
The Applicant’s alleged offending involves the alleged sexual assault of a teenage girl who was living with the Applicant while on exchange from [Country]. The alleged offending is aggravated by the fact that the behaviour is alleged to have occurred at a time the Applicant held a blue card and was a host parent. If one (or more) of the teenage girl’s allegations are true, the Applicant’s behaviour constituted a breach of his position of trust and responsibility as a host parent and as a blue card holder. The Applicant’s alleged behaviour also raises concerns about his ability to:
a) respect personal boundaries and another person’s right to feel safe and free from the fear of being violated against their will;
b) behave in an appropriate manner and control his sexual urges;
c) act in the best interests of children; and
d) provide a safe and protective environment for children.
[47]RSC – para 52 to 54. Italicised text is as it appears in the written submissions. Footnotes omitted. The reference to the Country from which the young girl emanated has been removed as part of the deidentification of these reasons.
Whilst the applicant addressed this criterion in his written closing submissions, he did not do so with any specificity. Rather his Counsel rolled it all up in a general submission addressing the criteria in s226(2)(a) of the WWCA together, making this submission:
In considering the factors listed under s 226(2)(a), it is submitted that the most significant factor is that the matter under consideration is a charge, not a conviction. It is a vehemently denied charge. It is a charge based on a complaint that is inconsistent with the evidence of [W1]. ….[48]
[48]ASC para 56. The applicant did not reply to the respondent’s written submissions on this point.
Whilst I agree with the submission from the respondent as a general proposition, I am unable to accept it in this matter as a basis to find an exceptional case. As I see it, the issue is, as the applicant as highlighted it in his submissions albeit at a fairly general level, that the relevant circumstances going to the ‘nature of the offence’ are mere allegations such which have not been sufficiently met on the evidence to satisfy me on the balance of probabilities that at the very least there is a reasonable chance that the alleged offending behaviour actually did occur. As the applicant has correctly, in my opinion, submitted the alleged offending is inconsistent with the evidence of W1 which I have already stated in these reasons I accept as being of substantive weight and of great probative value in determining the outcome of this proceeding.
Moreover, I am simply unable to accept the respondent’s submission that concerns have been raised about the applicant’s ability to do that which is stated in paragraphs (a) to (d) of the written submission as I have extracted them above. None of the evidence that I read, or heard during the hearing, or that which I observed of the two witnesses appearing in person during the hearing, namely the applicant and W1, showed me in any way that such concerns could readily be held. As I have also already noted it, the cross-examination of the applicant was extensive. None of the questioning posed during cross-examination, nor any of the answers he gave to that questioning, led me to consider that any of these concerns could be made out.
In my opinion, there is no substance to the respondent’s submission on this criterion, and there is no basis for a finding of an exceptional case having regard to it.
Any information about the person given to the Chief Executive Officer under s 318 or 319 of the WWCA[49]
[49]WWCA s226(2)(b).
The respondent addresses this issue only briefly in its written closing submissions. In essence the focus is on the DPP’s brief of evidence relating to the Charges,[50] specifically noting that it contains a statement of the Police Officer who reviewed the extract of the Applicant’s phone.[51] This is a reference to the Google Searches.
[50]RSC – para’ 56 and 57.
[51]BCS – 90 to 95 in particular BCS – m92 para 17.
In my opinion I need not dwell on this aspect of the evidence any further. Whilst its presence is something that cannot be dismissed out of hand, I have already discussed the manner in which I consider the evidence to be relevant to the decision I am required to reach in this proceeding. I need not discuss it further under this criterion.
Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the Applicant[52]
[52]WWCA s.226(2)(f). I need not have regard to ss.226(2) (a)(v) nor (c) to (e) as in my opinion they are not relevant to this proceeding.
The respondent’s submissions in respect of this criterion were extensive. They were expressed under the heading ‘Other Relevant Matters’ and in doing so went beyond merely that contemplated by s226(2)(f) of the WWCA and addressed a large portion of that which was contained in the applicant’s written submissions.[53]
[53]RSC – para 58 to 108. In my opinion there is no issue with the manner in which the respondent has framed these submissions addressing both the provisions of s226(2)(f) and ‘Other Relevant Matters’. In that regard I note the citations of the relevant caselaw in Footnotes 67 and 68 of the respondent’s submissions that makes such an approach permissible. The relevant portion of the applicant’s written submissions addressed are ASC para’s 3(c), 13, 14, 17(6), 19, 23, 26, 29, 30, 32, 33, 35, 36, 37, 39 - 41, 49, 50, 53.
Much of this dealt with caselaw references given the extent to which the applicant raised arguments in his written submissions as to the manner in which I should consider the evidence presented. As a general statement I agree with the respondent’s analysis of that caselaw and what is said to be the errors in, or the need for caution in considering, the applicant’s written submission raising much of that caselaw. However, as I noted it earlier in these reasons, it seems to me that much of this was unnecessary in this proceeding given that it is not about reaching a finding as to whether the applicant did or did not engage in the alleged offending, but rather whether in all of the circumstances on the evidence that is before this Tribunal I can be satisfied that it would not be in the best interests of children for the applicant to be issued again with a Blue Card.
For that reason, and given that which I have already expressed in these reasons as to the extent I accept the evidence of the applicant and W1 which together suggests to me that the alleged offending most likely did not occur, and the absence of anything else to inform me that the ‘concerns’ the respondent asserts are raised on the material as I have noted them from its submissions which I extracted in paragraph [64] herein could be made out, save only for some observations I will raise shortly on the issue of ‘Insight’ which the respondent has raised in its submissions, in my opinion I need not go into a detailed discussion on these extensive submissions. If I was to do so it would unnecessarily extend these reasons by a considerably large number of pages, and would absorb my time and thus the time of this Tribunal in a manner that was simply unnecessary to determine the outcome of the applicant’s application to the Tribunal.
Overall, in my opinion the arguments being raised by the respondent in its role as assisting me to reach the correct and preferable decision do not lead to the outcome the respondent presses upon me to find. As I raised it during the hearing with the respondent’s representative, it seems to me that in order to do so I must make an inference on inference on inference. That is, I must infer that the Alleged Presence of Child Exploitation Material could be answered in the positive, thus I must infer that the applicant was the person who conducted the Google Searches, thus I must infer that the applicant engaged in the Alleged Offences that gave rise to the Charges, and then, on that basis, I must then accept that there are valid concerns about the applicant as the respondent has submitted as I have noted them above. Put simply, I am unable to reach the point in my consideration of the evidence that is before me to make those inferences and reach that point of acceptance.
Accordingly, in my opinion there is nothing under this criterion that leads me to the point of concluding the Decision was the correct one.
The Issue of Insight
In addition to those criterion, there is also a relevant question of the extent of insight possessed by the applicant as to the nature of the alleged conduct relevant to circumstances of that which would be in the best interests of children.
As the respondent has correctly noted it in its written submissions, the applicant was on notice at the commencement of the hearing that his insight into the alleged offending and other behaviours of concern was to be explored.[54] In this regard the respondent submits that the applicant’s evidence at the hearing failed to demonstrate that he possesses the requisite insight required to be entrusted with the care of children and young people,[55] and continues with this detailed submission:
In the Respondent’s view, the Applicant’s evidence raises concerns in two (2) respects.
First, the Applicant’s failure to appreciate the significance of the search evidence to an evaluation of his eligibility to work with children and young people (by responding to the search evidence in his submission) raises questions about his insight. This is particularly so given the suggestion in the police brief of facts that the Applicant’s devices “may contain Child Exploitation Material due to the explicit nature of the search terms used.”
Second, even if the Applicant’s assertions that he did not conduct the searches are accepted by the Tribunal, the Applicant’s evidence raises questions about his appreciation of the need to act protectively of children and young people. Indeed, despite the suggestion by police that the search evidence indicates a potential interest in child exploitation material, the Applicant did not consider it appropriate to take any action to identify the person allegedly using his account to conduct searches. The evidence at the hearing further did not suggest that the Applicant has taken steps to limit access to his google account since the searches were conducted.
In the Respondent’s view, the above matters raise questions about the Applicant’s insight into the protective purposes of the WWC Act, the relevance and gravity of the allegations made against him, and the need to act protectively of child and young people. They further reflect poorly on an evaluation of whether the Applicant has the requisite insight to be entrusted with the care and wellbeing of children/young people.[56]
[54]RSC – para 103.
[55]Ibid.
[56]RSC – para’s 104 to 107.
The applicant responded to these submissions at some length in his reply submissions.[57] In summary, he challenged them drawing my attention to his view as expressed in his written statement of evidence, namely:
I do not condone in any way, shape or form untoward treatment of any child by any person, and I would certainly not be a party to any such conduct, My role as a parent is extremely important to me and I do my best to set a good example.[58]
[57]ASR – para’s 5 to 13.
[58]Ibid – para 10 in reference to Ex 3 – para 37.
There can be no doubt that the applicant’s possession of genuine insight is an important factor in the process of considering his application to obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA [2006] QCST 11:
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.[59]
[59]Re TAA [2006] QCST 11, [97] recently cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].
Whilst it is an important factor, I am unable to agree with the respondent’s submissions on its application in the present matter. I accept as being correct the submissions the respondent makes about the applicant having not, at least on the evidence before me, initially informed the respondent in the Applicant’s Initial Submissions as to the Google Searches having been conducted by somebody else, nor since then that he has he taken steps to identify who it was that conducted the Google Searches and/or to limit access to his google account.
But, I accept the applicant’s explanation as to why this was so, at least in terms of his Initial Submissions. As he explained it during the hearing, it was his naivety as to what he understood he was being asked to respond to. That explanation given is as follows:
… ---Yeah, naivety. Allow me to explain.
My understanding was – and according to the annexures on the letter that were sent, BCS24, I think, or 25, they refer to the charges of sexual assault, so my replies were about what I was accused of doing. I wasn’t ever charged for anything to do with Google searches or child exploitation or – none of that led to anything, so again – and I didn’t think that – I understand Blue Card have a broader remit to look at accusations, but I was never accused of anything beyond the three charges of sexual assault. So again, in my naivety, I didn’t think I was being required to now defend something that I was never charged with, so I stuck to defending myself against what I was charged with.”. [60].
[60]As extracted from the Transcript at T1-42 LL 38-47 in the ASC at para 35.
The applicant then makes this submission:
[My] assumption that “I didn’t think I was required to now defend something I was never charged with” was a rational one.[61]
[61]ASC para 36.
Whilst, as I noted it earlier in these reasons at paragraph [11], the Applicant’s Initial Submissions did not address the issues raised in the information provided to him in any meaningful manner, I do not consider that this, together with an absence of any further information being provided by him as to whom it is said conducted the Google Searches, or the absence of evidence that he has since limited access to his google account, shows a lack of insight. In my opinion, it shows nothing more than either naivety of the applicant, or simply a lack of judgment by him in comprehensively responding to the information when giving his Initial Submissions.
On my reading of the four e-mails he provided, in my opinion at best it could be said to show the conduct of a person who has endeavoured to deal with the matter himself whilst failing to understand the process and what was required of him to properly inform the respondent during the consideration of his application to obtain a Blue Card. Had be taken legal advice at that time he might have then been informed and clearly understood what was being asked and expected of him, and he might have found himself in a different position not being required to have engaged the processes of this Tribunal. But, that does not mean a lack of insight into behaviour that could likely have an effect on children. At its absolute highest, it shows an ignorance of the process and possible a degree of arrogance of the applicant.
Finally, before concluding on this point, for completeness I should make one other observation arising from the written submissions. The applicant argues that he has been denied procedural fairness given what is said to be “the Respondent’s excessive focus on the search evidence at the hearing” arising from what is said to be a failure by the respondent to have identified with certainty the precise wording of the actual searches, the absence of the investigating officer not being called to give evidence about the searches, the absence of any expert evidence about the conduct of the searches, and a failure of the respondent to have placed the applicant on notice as to what the respondent asserts is the relevance of the search evidence to the decision the Tribunal is required to reach.[62]
[62]ASC para’s 36 and 37.
I do not consider that the applicant has been denied procedural fairness in this regard. If it is correct to say that the respondent engaged in an ‘excessive focus’ on the search evidence during cross-examination of the applicant, or that the applicant was ‘not on notice of the issue of relevance’, that does not mean the applicant has been denied procedural fairness by not knowing the case he was being asked to meet. He was squarely on notice of the issues to the extent they were raised by the material the respondent filed in this proceeding.[63] Moreover, he was on notice that the Google Searches were a factor considered by the decision-maker in reaching the Decision.[64] The applicant could have, but did not, address that material. But such is not as a circumstance of a denial of procedural fairness.
[63]Ex 1 and Ex 2.
[64]See Ex 1 – BCS-6 – Section 7 – third sub-bullet point to the second bullet point under the heading ‘Police Information’.
Human Rights Act 2019 (Qld)
Before concluding my reasons and expressing my decision it is necessary that I make a short observation as to the relevance of the Human Rights Act 2019 (Qld) (HRA) in the same manner as the decision maker properly did in the reasons for the Decision, and the respondent’s representative has appropriately done in her written closing submissions.[65]
[65]See Ex 1 – BCS-8 and RSC – para’s 112 to 114. I pause here to observe that the applicant did not raise any issue in his closing submissions or at any other time during the hearing or within any of his evidence given to this Tribunal as to his human rights or the application of the HRA.
The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed in the HRA are not exclusive, nor are the rights protected under the HRA absolute. They may be limited but only so far as is reasonable and justifiable.[66] That being said, all statutory provisions, so far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[67]
[66]HRA – s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.
[67]Ibid – s 48(1)-(2).
The respondent has properly and appropriately acknowledged that there are a number of competing human rights relevant in this proceeding. Whilst not identified in their entirety by the respondent, in my opinion these include the applicant’s right to privacy and reputation, and right to take part in public life.[68] But there is a competing right that cannot be overlooked in a proceeding such as this, and one that permissibly is considered in limiting the applicant’s rights in the circumstances of his application for Blue Card. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[69] In that regard, the respondent correctly made this submission which I respectfully adopt given its succinctness and clarity.
… a decision that the Applicant’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on the Applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA. The decision will be justified, inter alia, because it will have the proper purpose of promoting and protecting the right, interests and wellbeing of children and young people …
Furthermore, any limitation on the Applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act that is, the welfare and best interests of children are paramount.[70]
[68]RCS – para 72. I pause here to note that the right to privacy is protected by the de-identification of these reasons.
[69]HRA – s 26(2).
[70]RCS – para 113 and 114.
As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable, factors which may be relevant include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[71] That being so, it must be recalled as I noted earlier in these reasons, the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield.
[71]HRA – s 13.
Thus, to the extent the applicant is afforded a right, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA, such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That would include the making of a finding that the circumstance the applicant finds himself in is an exceptional case such as to deny him an entitlement to a working with children clearance under the WWCA. Such is not inconsistent with s13 of the HRA.
However, for the reasons I have given herein, I am unable to reach the conclusion that such circumstances gives rise to a finding of an exceptional case. In my opinion, if I was to reach such a conclusion based solely on the paramount principle of the WWCA and the corresponding right under the HRA that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child, it would be to create a restrictive imbalance between that right and the applicant’s human rights as I have noted them earlier. In my opinion there is no less restrictive way that the requisite purpose can be achieved.[72] Thus it must follow that it remains appropriate for the applicant to receive a Blue Card.
[72]Ibid – s.13(2)(d).
Conclusion
The respondent made this submission in its closing:
… when regard is had to the totality of evidence, the Tribunal could be satisfied that an exceptional case exists such that it is not be in the best interests of children and young people for the Applicant to be issued a blue card.[73]
[73]RCS – para 117.
I do not agree. Based on my discussion of the evidence and the competing submissions as I have expressed it in these reasons, in my opinion the applicant’s circumstance is not an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a working with children clearance. Accordingly, his circumstance does conform to the general rule such that a working with children clearance must issue.
It therefore follows that the Decision to cancel the applicant’s positive notice and issue him with a negative notice, as it is expressed in the respondent’s letter of 10 September 2020 to the applicant,[74] is not the correct and preferable decision. Accordingly it should be set aside and substituted with a decision that there is no exceptional case. There will be an order to that effect.
[74]Ex .1 - BCS - 40.
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7
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