BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs

[2023] QSC 266

SUPREME COURT OF QUEENSLAND

CITATION:

BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266

PARTIES:

BZN

(Applicant)

v

CHIEF EXECUTIVE, THE DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS

(Respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(Intervenor)

FILE NO/S:

9271/22

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2023

JUDGE:

Crowley J

ORDER:

1.   The application filed 5 August 2022 is dismissed.

2.   The applicant is to pay the respondent’s costs on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – GENERALLY – where the applicant is a social worker – where a child under the care and protection of the respondent alleged he had been sexually assaulted by the applicant – where the respondent investigated the matter as a harm report under s 14(1) of the Child Protection Act 1999 (Qld) – where the respondent assessed that the allegation of harm had been substantiated – where the respondent conducted three reviews of the original decision – where all three reviews confirmed the original decision – where the applicant challenges the outcome of the final review – whether the outcome of the final review is a reviewable decision under the Judicial Review Act 1991 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY – whether a decision under s 14(1)(a) of the Child Protection Act that an allegation of harm or risk of harm can be substantiated is a decision expressly or impliedly required or authorised by the enactment

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – whether the requirement in s 14 of the Child Protection Act that the Chief Executive reasonably suspects the child is in need of protection is a jurisdictional fact that must exist before the Chief Executive can exercise the power to have an authorised officer investigate and assess an allegation of harm – whether the respondent could have reasonably suspected the child is in need of protection

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – where the final decision referred to the unwitnessed and often undetected nature of child sexual abuse – where the final decision referred to the rarity of false allegations of child sexual abuse – where the final decision said it is important the complainant child is believed – whether   these matters demonstrate reasonable apprehension of bias by the respondent

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant did not have the opportunity to address the allegation at an oral hearing or to cross-examine the complainant child – whether the applicant was denied a fair hearing

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – OTHER RELEVANT CONSIDERATIONS – whether the respondent failed to take into account complaints and accusations previously made by the complainant child – whether the respondent failed to take into account evidence from the applicant’s former employee to the effect the applicant had never been the subject of complaints regarding interactions with young people  

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – whether various other matters raised in the final decision were irrelevant considerations

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the final decision was legally unreasonable

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – whether the final decision was incompatible with the applicant’s human rights – whether, in making the final decision, the respondent failed to give proper consideration to the applicant’s human rights – whether the decision is unlawful under s 58 of the Human Rights Act 2019 (Qld)

Child Protection Act 1999 (Qld), s 4, s 5, s 5A, s 7, s 9, s 10, s 14, s 122, s 123, s 123A, s 124, s 125, s 126, s 129A, s 156
Child Protection Regulation 2023 (Qld), reg 22
Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 26, s 50, s 58, s 59

Judicial Review Act 1991 (Qld), s 4, s 6, s 20

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244, cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1, cited
Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95, cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, applied
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
Castles v Secretary of Department of Justice & Ors (2018) 28 VR 141; [2010] VSC 310, cited
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, cited
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied
EFH17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681, cited
Gedeon v Commissioner of NSW Crime Commission (2007) 236 CLR 120; [2008] HCA 43, cited
George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied
HCF v The Queen [2023] HCA 35, cited
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, cited
Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623; [2020] QSC 293, cited
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, applied
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 713, cited
Lawrence v Fuller & Anor [2023] QSC 156, considered
Lorditano v Commissioner of the Australian Federal Police (2019) 266 CLR 273; [2019] HCA 39, cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40, applied
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, cited
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, cited
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, applied
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; [1980] FCA 85, cited
Minister for Immigration v SZMTA (2019) 264 CLR 421; [2019] HCA 3, cited
Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26, cited
Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250; [2021] QSC 273, cited
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17, cited
Prior v Mole (2017) 261 CLR 265; [2017] HCA 10, cited
RB v Estonia [2021] ECHR 540, cited
Re Kracke v Mental Health Review Board (2009) 29 VR 1; [2009] VCAT 646, cited
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307, cited
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93, cited

WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159, cited

COUNSEL:

P K O’Higgins for the Applicant
F J Chen for the Respondent

K J E Blore for the Intervenor

SOLICITORS:

Shand Taylor Lawyers for the Applicant

Crown Law for the Respondent and the Intervenor

1. BZN is a social worker. In that capacity, he has worked in roles with young people, including those under the care and protection of the Chief Executive of the Department of Children, Youth Justice and Multicultural Affairs.

2. Information was provided to the Chief Executive that BZN had sexually assaulted a young person whilst employed as a residential care worker and working at an accommodation facility for young people in care.

3. Upon receipt of the complaint, the Chief Executive, purporting to act in accordance with s 14(1) of the Child Protection Act 1999 (Qld) (‘CPA’), investigated the matter as a harm report. Following the investigation, the Chief Executive assessed that the allegation of harm had been substantiated. At BZN’s request, three reviews of the decision were conducted. Each review confirmed the original decision.

4. BZN challenges the final review outcome. He says it is a decision reviewable under the Judicial Review Act 1991 (Qld) (‘JRA’). He claims there was no proper basis for the decision, that it was made in breach of the rules of natural justice and that the entire process of the investigation and the subsequent decision are infected by various legal errors. He asks the Court to set aside the decision or declare it invalid. He also asks the Court to declare the allegation of harm is not substantiated.

5. He further claims that the decision was unlawful under s 58 of the Human Rights Act 2019 (Qld) (‘HRA’) as it was not compatible with his human rights, or the decision maker failed to give proper consideration to his human rights. He asks the Court to declare the decision unlawful.

6. Given the nature of the challenged decision and the various grounds of review raised by BZN, the following issues emerge for determination:

   (1)Is the final review outcome a reviewable decision?

   (2)Is the requirement that the Chief Executive reasonably suspects the child is in need of protection a necessary jurisdictional fact for the making of the decision?

   (3)Could the Chief Executive have reasonably suspected that the child is in need of protection?

   (4)What standard of proof was required to substantiate the risk of alleged harm to the child?

   (5)Was the decision made in breach of the rules of natural justice?

   (6)Is the decision legally invalid because the Chief Executive took into account irrelevant considerations and failed to take into account relevant considerations?

   (7)Was the decision legally unreasonable as there was no evidence or material to substantiate the allegation of harm?

   (8)Was the decision unlawful under s 58 of the HRA?

Is the final review outcome a reviewable decision?

1. The Department of Children, Youth Justice and Multicultural Affairs was the former name of the Queensland government agency responsible for child safety matters under the CPA.[1]   The Chief Executive of the Department has certain statutory functions under the CPA for the care and protection of children. One such function is to respond to allegations of harm to children.

   [1]On 18 May 2023, under machinery of government changes, the Department was renamed the Department of Child Safety, Seniors and Disability Services.

2. On 4 January 2021, Ms Lucy West, a Senior Child Safety Officer (‘SCSO’) employed by the Department and located at the Beenleigh Child Safety Service Centre (‘CSSC’), had a telephone conversation with a young person in care named ‘Simon’. Ms West was Simon’s case manager. The conversation was about Simon’s current situation and living arrangements. Simon was 14 years old at the time. During the conversation, Simon disclosed that some years earlier he been sexually abused by a residential care worker when living in accommodation supported by Youth Lifestyle Options(‘YLO’), a licensed care service provider under the CPA.

3. A case note made by Ms West that day contained the following details about the allegation:

   ·   [Simon] continued “ I got slapped by a worker called [BZN]” (think he worked for Procare – [Simon] clarified it was when he was with YLO and that he knows [BZN] was previously “stood down from BYDC [i.e., Brisbane Youth Detention Centre] and I got scared when found out he worked there”. He recalled that “he drove a small Honda and would drive me in car and to V Point shopping.” [Simon] continued “he put my hand on one side of tree and pulled my pants down and made me wank off.”

   …

   ·   [Simon] stated “I have wanted to tell people.” [Simon] was asked “if wants to make a formal complaint against [BZN] to QPS.” [Simon] stated “I do not want to charge him but take further with Child Safety.”

4. The Department actioned the information as a harm report. The Chief Executive authorised an investigation of the matter under s 14 of the CPA. The investigation was principally conducted by Ms West, albeit in collaboration with other Departmental officers.

5. Section 14 of the CPA states:

   14 Substantiation of alleged harm

   (1)If the chief executive becomes aware (whether because of notification given to the chief executive or otherwise) of alleged harm or alleged risk of harm to a child and reasonably suspects the child is in need of protection, the chief executive must immediately—

   (a)have an authorised officer investigate the allegation, assess whether the alleged harm or risk of harm can be substantiated and, if it can, assess the child’s protective needs; or

   (b)take other action the chief executive considers appropriate.

   (2)If the chief executive reasonably believes alleged harm to a child may involve the commission of a criminal offence relating to the child, the chief executive must immediately give details of the alleged harm to the police commissioner.

   (3)Subsection (2) applies whether or not the chief executive suspects the child is in need of protection.

6. In addition to investigating the allegation of harm, the Department concurrently conducted a standard of care review to determine whether the child had been provided with the mandated standards of care prescribed by ss 122(1)(a)–(k) of the CPA. Under s 122(1), the Chief Executive is required to take reasonable steps to ensure a child placed in care is cared for in a way that meets the prescribed standards. Under s 129A of the CPA, a licensed care service provider must ensure that care services provided by it comply with the legislated standards of care.

7. On 12 January 2021, BZN was informed by telephone that a harm report had been received by the Department. He was told it was in respect of an allegation of a sexual nature involving a young person and that the matter would be investigated. He denied the allegation.

8. As part of the investigation, BZN was interviewed by Departmental officers, who further informed him of the details of the alleged sexual abuse. He again denied the allegation.

9. Following the completion of the investigation, the allegation of harm was found to be substantiated.

10. On 12 May 2021, the Department informed BZN by telephone that the allegation of harm had been substantiated. On 26 May 2021, the Department confirmed by letter that the outcome of the investigation and assessment was ‘substantiated – standards not met’. 

11. On 3 June 2021, Ms West recorded the following details of the matter in a document titled ‘Harm report – assessment & outcome’:

    The outcome of this investigation and assessment for [Simon] is Substantiated – standards not met. This means that it is assessed that [Simon] has suffered harm and that the person responsible for this harm is [BZN].  It has also been assessed that the care of [Simon] has not met legislated standards of care in relation to:

    - S122 1(a) The child’s dignity and rights will be respected at all times

    - S122 1(c) The child will receive emotional care that will allow him or her to experience being cared about and valued and that contributes to their positive self-regard.

    …

    [Simon] has articulated consistent and specific details of sexual abuse, perpetrated towards him, by [BZN] whilst he was in the care of Youth Lifestyles Options (YLO) and been able to assert the emotional harm this has caused him such as fear and shame.

    Whilst [Simon] has not engaged in a full interview about this matter, he has engaged, similarly to his typical and expected pattern of behaviour/engagement as to any topic of discussion. Further to this, he has maintained the allegation, has not recanted, has demonstrated feelings of associated shame about the harm and has provided specific and clarifying details such as the time of day and whom his co tenant was.

    It has been further assessed that [Simon] is not at risk of future harm from the alleged person responsible, as he has no current interactions with [BZN] and [Simon] is not currently engaging with YLO. Further to this, [BZN] has since resigned from Youth Lifestyle Options and is no longer an employee with them.

12. BZN sought a review of the assessment outcome.

13. A first internal review was conducted by Ms Louise Cooper, a Senior Practitioner (‘SP’) located at the Department’s Loganlea CSSC. On or about 13 July 2021, Ms Cooper completed her review, concluding that she supported the original assessment outcome.

14. BZN then sought a second review.

15. A second internal review was conducted by Ms Sandy Wilson, a Departmental Director for the Sunshine Coast and Central Region. On or about 26 September 2021, Ms Wilson completed her review, concluding that she too supported the original assessment outcome.

16. BZN then requested a further review, on the basis that certain written submissions that had been provided on his behalf by his lawyers in a letter to the Department, dated 2 August 2021, did not appear to have been taken into account in the second review. The Department agreed to reconsider the matter having regard to those submissions.

17. The third and final review was conducted by Ms Kylie Stevens, another Departmental Director for the Sunshine Coast and Central Region. Her review was set out in an eighteen-page written document titled ‘Review of Standard of Care Outcome Decision’, dated 8 July 2022. In it, she recorded her conclusion as:

    I endorse the original decision making in the Standard of Care for an outcome of Substantiated – standards not met, that [Simon] has been harmed and that the person responsible for this harm was [BZN].

18. BZN’s application for judicial review concerns this ‘decision’ (the ‘Final Review Outcome’) made by Ms Stevens on behalf of the Chief Executive. His application is primarily an application for a statutory order of review under Part 3 of the JRA, but alternatively an application for relief under Part 5 of the JRA.

19. With respect to BZN’s primary application, s 20(1) of the JRA provides that ‘a person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.’ There is no doubt that BZN is a person aggrieved by the Final Review Outcome, as his interests are adversely affected by it. However, the preliminary issue that arises is whether the Final Review Outcome was a ‘decision’.

20. The term ‘decision’ is not defined in the JRA. However, s 4(a) of the JRA states that a decision to which this Act applies means ‘a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)’.

21. Whilst the Final Review Outcome was documented by Ms Stevens, the CPA does not provide for the making of such a report and therefore this is not a case where the report itself is taken to be the making of a decision under s 6 of the JRA.  Rather, whether it constitutes a reviewable ‘decision’ will depend upon the nature and effect of the Final Review Outcome.

22. In Australian Broadcasting Tribunal v Bond,[2] Mason CJ considered the analogous concept of a ‘decision of an administrative character made…under an enactment’ in s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJRA’). His Honour observed that the term ‘decision’ was not defined under the ADJRA, but the fact that the Act was a remedial statute providing for review of an administrative action, rather than some form of appeal from final decisions of issues between parties, indicated no narrow view should be taken of the word.[3] Nevertheless, Mason CJ stated:[4]

    …a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

    [2](1990) 170 CLR 321 (‘Bond’).

    [3]Ibid 335–6.

    [4]Ibid 337.

1. As to whether a decision is made under an enactment, in Griffith University v Tang,[5] the plurality stated:[6]

   The determination of whether a decision is "made ... under an enactment" involves two criteria:  first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.  A decision will only be "made ... under an enactment" if both these criteria are met.  It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise.  Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question.  Affection of rights or obligations derived from the general law or statute will suffice.

   [5](2005) 221 CLR 99 (‘Tang’).

   [6]Ibid, 130–1 [89] (Gummow, Callinan and Heydon JJ).

2. The Chief Executive submits that the Final Review Outcome was not a decision in the sense contemplated by Bond, or one that satisfies either of the two limbs of the Tang criteria. She therefore contends that the finding is not a decision to which the JRA applies and consequently it is not reviewable under Part 3 of the JRA. BZN contends otherwise.

3. The resolution of this issue turns upon the proper construction of s 14 of the CPA.

4. The Chief Executive says that s 14 requires her to have an authorised officer investigate an allegation of harm but does not expressly or impliedly require the authorised officer to make a decision about the matter. She further says that any assessment of substantiated harm made by an authorised officer is merely an investigation finding and not a decision.

5. I do not accept those submissions.

6. The proper construction of s 14 is to be determined having regard to the text of the statutory provision, its context and its purpose.[7]

   [7]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

7. It is pertinent to note that the long title of the CPA is ‘An Act about the protection of children, and for other purposes’ and that s 4 states the Act’s purposes are:

   (a)to provide for the protection of children; and

   (b)to promote the safety of children; and

   (c)to the extent that it is appropriate, to support families caring for children.

8. Section 5 provides that the CPA is to be administered under the principles stated in Part 2, Division and that all other principles stated in the CPA are subject to the principle stated in s 5A. Section 5A identifies the ‘paramount principle’ of the CPA. It states:

   The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount.

9. Section 7 prescribes the functions of the Chief Executive for the proper and efficient administration of the CPA. One particular function, specified by s 7(1)(d), is responding to allegations of harm to children.

10. Section 9 of the CPA defines ‘harm’ to a child as a ‘detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’ and provides that it is immaterial how the harm is caused. The section further stipulates that amongst other causes, harm can be caused by ‘sexual abuse or exploitation’, and that it can be caused by a single act or circumstance.

11. Section 10 of the CPA defines a ‘child in need of protection’ as a child who has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and who does not have a parent able and willing to protect the child from the harm.

12. Section 14 is within Chapter 2 of the CPA, which is headed ‘Protection of Children’. Amongst other things, the provisions of that chapter deal with reporting suspected harm to a child to the Chief Executive, including mandatory reporting obligations for particular persons, the investigation of allegations of suspected harm to a child and the actions that may be taken by the Chief Executive in response to such allegations, which include applying to a magistrate for a temporary custody order or referring a matter to the litigation director under the Director of Child Protection Litigation Act 2016 (Qld), for the purposes of considering whether to apply to the Childrens Court for a child protection order.

13. It is within that context that, by its terms, s 14(1) of the CPA provides that if the Chief Executive becomes aware of alleged harm or alleged risk of harm to a child and ‘reasonably suspects the child is in need of protection’, she must immediately take action in response to the allegation. Section 14(1)(a), which is couched in mandatory terms, requires the Chief Executive to ‘have an authorised officer investigate the allegation, assess whether the alleged harm or risk of harm can be substantiated and, if it can, assess the child’s protective needs’. Section 14(1)(b), which is couched in discretionary terms, permits the Chief Executive to ‘take other action the Chief Executive considers appropriate’.

14. As I read the provision, s 14(1)(a) provides for three related things that the Chief Executive must immediately have an authorised officer do. First, the authorised officer must investigate the allegation. The CPA does not dictate how such an investigation is to be conducted. Second, the authorised officer must assess whether the alleged harm or risk of harm can be substantiated. The CPA does not prescribe how that assessment is to be made or when an allegation may be substantiated. Logic, and the way in which the subsection is framed, suggest that such an assessment necessarily will ordinarily follow and be determined by the authorised officer’s investigation of the allegation. Third, if the alleged harm or risk of harm can be substantiated, the authorised officer must assess the child’s protective needs. The CPA does not identify how that is to be done.

15. In my view, it follows from the wording of the subsection that the final assessment of the child’s protective needs is dependent upon the allegation being substantiated. In that regard, I consider the words ‘if it can’ in s 14(1)(a) obviously refer to the subject of the preceding clause and not to the subject of the subsequent clause. That is, the words relate to whether the allegation of harm can be substantiated and not whether the child’s protective needs can be assessed. It is only where the allegation of harm can be substantiated that the authorised officer is then required to assess the child’s protective needs.

16. There is no definition in the CPA of the phrase ‘the child’s protective needs’. Having regard to the evident purpose of the CPA, including its stated purpose in s 4, the paramount principle in s 5A and the definitions of ‘harm’ and ‘child in need of protection’ in ss 9 and 10 respectively, I consider the phrase refers to that which is necessary to protect the child from the type of physical, psychological or emotional harm, or risk of such harm, that has been alleged and substantiated. The authorised officer’s assessment of the child’s protective needs will necessarily require the authorised officer to consider and determine what further action, if any, should be taken to protect the child from the substantiated allegation of harm or risk of harm. Upon making that assessment, it is then open to the Chief Executive to take other action under the CPA to protect the child.

17. Having regard to the text, purpose and context of the provision, in my view an assessment under s 14(1)(a) of the CPA that an allegation of harm or risk of harm can be substantiated is properly characterised as a decision. Whether an allegation can be substantiated means that it is capable of proof. To my mind, what is contemplated by s 14(1)(a) is plainly a determination that the substance of the allegation has been proven. In terms of the first limb of Tang, I consider that to be a decision that is expressly or impliedly required or authorised by the enactment.

18. Further, whilst I do not consider the decision to be one that is final, in my view it is nonetheless a substantive determination that is operative and determinative of the issue of fact falling for consideration, in the sense discussed in Bond. The relevant issue of fact for consideration is whether the allegation of harm or risk of harm to the child can be substantiated. That is not an end in and of itself, but a determination of that issue of fact is an essential preliminary to the taking of the further action that s 14(1)(a) contemplates, namely that the authorised officer assesses the child’s protection needs, which may then in turn lead to further action being taken by the Chief Executive under the CPA.

19. I note that the CPA does not actually provide for a review of an assessment of substantiated harm, such as occurred in this case. The availability of such a review appears to be a matter of policy. Nevertheless, as it appears to be a matter intimately connected with the original assessment outcome and the Chief Executive did not contend otherwise, I proceed on the basis that the Final Review Outcome may be taken to be the relevant decision in question in this case.

20. Notwithstanding my conclusion that the Final Review Outcome is a decision that satisfies the first limb of Tang, the Chief Executive argues that it does not amount to a reviewable decision under Part 3 of the JRA as the decision does not confer, alter or otherwise affect legal rights of obligations and therefore the second limb of Tang is not satisfied.

21. I do not accept this submission, albeit not for the reasons advanced by BZN. 

22. BZN identified various ways in which he says the decision has adversely affected him and his interests.  Whilst I accept that the decision impacts upon his interests, I do not consider it confers, alters or otherwise affects his legal rights or obligations.

23. BZN says that the decision has impacted upon his eligibility to be a ‘suitable person’ to provide care services under a licensed care service for the purposes of the Child Protection Regulation 2011 (Qld).[8] While that may be so, I do not consider such a state of affairs means that the decision has conferred, altered or otherwise affected legal rights and obligations and in that sense the decision is derived from the enactment.

    [8]The relevant regulation is now the Child Protection Regulation 2023 (Qld).

24. Chapter 4 of the CPA deals with ‘Regulation of Care’. Within that chapter, Part 2 deals with ‘Licensing of care services and approval of carers’. Section 123 identifies the purpose of Chapter 4, Part 2 as:

    …to provide a system of licensing services, and approving individuals, to provide care for children to enable the chief executive to ensure the care of children in the chief executive’s custody or guardianship meets the standards of care in the statement of standards.

25. The statement of standards are the standards set out in s 122.

26. Pursuant to ss 124 and 125, only corporations, and not individuals, are eligible to hold a licence to provide care services. Section 126 provides that the Chief Executive must not grant a corporation’s application for a licence to provide care services unless it is a suitable applicant and certain persons are ‘suitable persons’. Section 126(b)(iv) identifies one such class of persons as ‘the persons who will be, or are, performing risk-assessed roles for a care service the subject of the application’. A ‘risk-assessed role’ is defined in s 123A(1) as a ‘a role for which the normal duties are likely to require, permit or facilitate contact with a child, that is of a type, or happens in a context, that may create an unacceptable level of risk for the child’. Section 123A(2) provides that such contact will include ‘physically touching a child’ or ‘building a rapport with a child as an integral and ordinary part of the performance of the duties’.

27. Section 129A sets out the obligations of a licensee who is granted a licence to provide care services. Under s 129A(b) a licensee must ensure that each person performing a risk-assessed role for a licensed care service operated under the licence is a suitable person.

28. Regulation 22 of the Child Protection Regulation provides that a person is a suitable person to be a person performing a risk-assessed role for a licensed care service if the person does not pose a risk to the safety of children.

29. Even if it may be accepted for present purposes that BZN would be a person who would be required to be a ‘suitable person’ under s 126(b)(iv) for the purposes of an application to provide care services, that does not mean that the decision affects any legal right or obligation. Eligibility to be a ‘suitable person’ is not a legal right. To the extent that there is any ‘right’ to apply for a licence to provide care services, it is the right of a corporation and not a right of BZN as an individual. Further, any such right would be a right to apply for the licence, not to be granted a licence. Further still, any refusal to grant a licence on the basis that BZN was determined not to be a suitable person would not derive from s 14 of the CPA. Rather, it would derive from the Chief Executive’s decision to refuse to grant the licence under s 129 of the CPA.

30. In a similar vein, BZN says he is unable to renew his membership of the Australian Association of Social Workers as the decision is an eligibility factor that he would need to disclose on his renewal. There is no evidence before me of what the membership application process might entail. Nevertheless, I again do not consider this to be a matter that affects any legal right or obligation derived from the decision. Any membership renewal application would be entirely separate and would be determined according to some other regulatory scheme aside from s 14 of the CPA.

31. BZN further says that he is at risk of losing the opportunity to apply for custody or guardianship of his niece’s son on the basis that he would not be deemed to be a ‘suitable person’. There is no evidence before me that BZN has applied for custody or guardianship, nor how such applications might be determined. In any event, I again conclude that this is not a matter that affects any legal right or obligation derived from the decision. If BZN made such an application and was determined not to be a suitable person, then that might be a decision that alters or otherwise affects a legal right or obligation, but it would not be a result derived from s 14 of the CPA. Rather, it would be the product of a decision made under some other legislative scheme or policy.

32. BZN also says he has suffered from loss of income as he was stood down without pay from his position with YLO as a result of the allegation, and then subsequently resigned his employment due to high levels of stress and anxiety he was experiencing whilst the matter was being investigated. It is pertinent to observe that BZN resigned before the original harm assessment had been made. Neither of these matters involves a legal right or obligation altered or affected by the decision. BZN resigned before the decision was made.

33. BZN says his reputation as a social worker has been adversely affected by the decision as it is visible to all employees of the Chief Executive on the Department’s Integrated Child Management System (‘ICMS’). Even if I accept that to be the case, I do not consider it to be a matter that alters or affects any legal rights or obligations.

34. Finally, BZN says that the decision is clearly one which affects his human rights under the HRA. In support of that argument, BZN cited a recent decision of Applegarth J in Lawrence v Fuller,[9] where his Honour had declared that the applicant there, who was subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), was entitled to a statement of reasons under s 33 of the JRA in respect of a decision made by the Chief Executive of Queensland Corrective Services to give him a direction that permitted him to have telephone contact with a particular individual but prohibited in-person contact. The respondent in that case had argued that there was no entitlement to reasons under the JRA as the decision was not a reviewable decision.

    [9][2023] QSC 156.

35. In rejecting that argument, Applegarth J considered the second limb of Tang was satisfied because the decision to give the direction clearly affected the legal rights or obligations of the applicant, including his legal right to liberty to speak to or otherwise have personal contact with another person. His Honour relevantly stated:[10]

    It is unnecessary to list the legal rights stated in the Human Rights Act2019 (Qld) (“HRA”) that are affected by a direction to not have contact with another person. The legal rights that may be affected include freedoms that are recognised by the general law and by the HRA, including freedom of expression and freedom of association.

    [10]Ibid [34].

36. BZN relies upon this statement as authority for the proposition that, for the purposes of the second limb of Tang, legal rights which may be affected by a decision include the human rights set out in the HRA.

37. I do not accept that submission. The decision of Applegarth J in Lawrence v Fuller is of course not binding upon me as an authority. The Attorney-General, who appeared as an intervening party in this application pursuant to s 50 of the HRA, submitted this aspect of the decision is wrong and informed me that it is being appealed. Irrespective, it is not apparent that his Honour did in fact conclude that human rights recognised and protected under the HRA are legal rights that may be affected by a decision for the purposes of the second limb of Tang. In that respect I note that his Honour’s conclusion is grounded in a finding with respect to legal rights arising under the general law and it was in that context that his Honour made passing reference to rights stated in the HRA.

38. Moreover, BZN’s argument cannot be accepted because the HRA does not create legal rights that have free-standing operation.[11] Rather, it identifies certain human rights that are to be protected and promoted by public entities. It does so by operation of s 58, which makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights or to make a decision which fails to give proper consideration to human rights relevant to the decision. The Act then further provides, by s 59, that a person may seek a declaration of unlawfulness in respect of an act or decision of a public entity which affects their recognised human rights under the Act, but only if they may seek relief or a remedy in respect of the act or decision other than because of s 58. In other words, the human rights recognised by the Act do not establish legal rights that may be independently vindicated or enforced, but a declaration of unlawfulness in respect of an act or decision that affects those human rights may be ‘piggybacked’ on another claim for relief or a remedy that arises independently of the HRA.

    [11]Innes v Electoral Commission of Queensland (No 2) (2020) 5 Qd R 623, 667 [197] (Ryan J).

39. I conclude that none of the matters identified by BZN amount to a legal right or obligation on his part that is conferred, altered or affected by the decision.

40. However, there is, in my view, clearly a legal obligation upon the Chief Executive that arises from the decision, namely the obligation to assess the child’s protective needs.

41. Accordingly, I am satisfied that the Final Review Outcome is a decision that is reviewable under Part 3 of the JRA as it is a decision made under an enactment that satisfies each of the Tang criteria.

Is the requirement that the Chief Executive reasonably suspects the child is in need of protection a necessary jurisdictional fact for the making of the decision?

1. BZN says that the requirement in s 14 that the Chief Executive must reasonably suspect that the child is in need of protection is a jurisdictional fact that must exist before the Chief Executive can exercise the power to have an authorised officer investigate and assess an allegation of harm.

2. The Chief Executive says that the reasonable suspicion required to be held is not a jurisdictional fact.  Rather, she submits, it forms part of the statutory formulation of the power to investigate and assess the allegation of harm.

3. Both parties agree that whether the state of reasonable suspicion is a jurisdictional fact will depend upon the proper construction of the statutory provision.

4. In Gedeon v Commissioner of the New South Wales Crime Commission,[12] the High Court observed that the expression ‘jurisdictional fact’ was generally used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question and that if the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.[13] That description is apt in this case.

   [12](2008) 236 CLR 120.

   [13]Ibid 139 [43] (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).

5. In my opinion, the requirement that the Chief Executive reasonably suspects the child is in need of protection is a jurisdictional fact.

6. That it is so is evident, in my view, from the structure, text and purpose of s 14, construed in the context of the Act as a whole.

7. It is obvious from the wording of s 14 that the obligation to immediately authorise an investigation into an allegation of harm arises only where:

   (a)the Chief Executive becomes aware (whether because of notification given to the Chief Executive or otherwise) of alleged harm or an alleged risk of harm to a child; and

   (b)reasonably suspects the ‘child is in need of protection’, as that phrase is defined in s 10 of the CPA.

8. The text of the provision makes plain that the Chief Executive must exercise the power to authorise the necessary investigation and assessment where the Chief Executive reasonably suspects the child is in need of protection, but that it may not be exercised unless the Chief Executive holds that state of mind. It is a threshold requirement for engagement of the duty and the exercise of the power in s 14(1).

9. Action taken by the Chief Executive to investigate and assess an allegation of harm to a child has the potential to cause a great deal of distress, disruption and trauma to individuals, families and, of course, the children involved, particularly where the allegation is unfounded or lacks substance. On the other hand, inaction by the Chief Executive may have even greater consequences, particularly for the child in question.

10. In my view, it is because of these kinds of consequences and considerations that the threshold of ‘reasonably suspects’ is employed as a restriction on the obligation of the Chief Executive to act in response to an allegation of harm or risk of harm to a child, albeit one that is deliberately set at a low level in order to fulfil and promote the CPA’s primary purpose of the protection of children and to give effect to the principle in s 5A that the safety, wellbeing and best interests of a child are paramount.

11. Upon that characterisation, it is plain in my opinion that the requirement that the Chief Executive reasonably suspects the child is in need of protection is a jurisdictional fact.

Could the Chief Executive have reasonably suspected that the child is in need of protection?

1. BZN characterises the requisite state of mind as a ‘subjective jurisdictional fact’, albeit one that necessarily requires that there be objectively reasonable grounds for the suspicion that the child is in need of protection.  He submits that this objective element enables the Court to consider the relevant facts and circumstances known to the Chief Executive at the time and determine for itself whether any suspicion formed was a reasonable one.

2. BZN further submits that there is a crucial temporal aspect of the requisite reasonable suspicion, contained within the phrase ‘is in need of protection’, which was of real importance in this case given that the allegation of harm was in respect of an incident that allegedly occurred in the past. He submits that it is apparent that the Chief Executive misunderstood the temporal requirement and failed to have any, or any proper, regard to whether the terms of the definition of a ‘child in need of protection’ in s 10 of the CPA were satisfied.

3. Having regard to those matters, BZN says that the facts and circumstances known to the Chief Executive at the time she authorised the investigation were not sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance that Simon was a child ‘in need of protection’. Accordingly, he says that the Chief Executive could not have been satisfied of the existence of the necessary jurisdictional fact that would enliven the power to authorise the investigation and assessment of the allegation. It follows, BZN argues, that the decision was beyond power or not authorised by the CPA.

4. The Chief Executive agrees that if formation of the state of mind of ‘reasonably suspects’ is a jurisdictional fact, then it is a subjective jurisdictional fact. However, she argues that consideration of whether such a fact existed is restricted to the question of whether formation of the requisite state of mind was unreasonable in the Wednesbury[14] sense of unreasonableness.

   [14]Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1.

5. As to the temporal requirement in s 14(1), when read together with the definition of a ‘child in need of protection’ in s 10, the Chief Executive points to the fact that harm may be occasioned by a single act of past sexual abuse and submits that there was clearly evidence here to satisfy the requirement that the Chief Executive reasonably suspects the child is in need of protection.

6. I accept that the requirement in s 14 of the CPA that the Chief Executive ‘reasonably suspects the child is in need of protection’ may properly be characterised as a subjective jurisdictional fact. I also accept that the lawful exercise of the power to investigate and assess an allegation of harm or risk of harm requires that the Chief Executive must necessarily have considered the relevant information and material available and have actually formed the requisite state of mind.

7. However, I do not agree with the submission that I must consider whether, on the relevant information and material that then existed, I would have reasonably suspected that Simon was a child in need of protection.  Nor do I agree with the Chief Executive’s submission that the existence of the subjective jurisdictional fact can only be impugned by demonstrating Wednesbury unreasonableness.

8. The distinction between a challenge to the existence of a jurisdictional fact and the review of a decision for jurisdictional error must be borne in mind. Where, as here, there is a challenge to the existence of a subjective jurisdictional fact, it is for the applicant to persuade the Court that the state of mind did not exist because it was not reached in the way contemplated by the legislature.[15] It is implicit that the repository of power must reach the required state of mind logically, rationally and upon logical fact-finding. If not, then the state of mind required by the legislature will not have been formed. But if the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material in compliance with the relevant legislative requirements, it is a state of mind which will enliven the relevant power.[16] 

   [15]S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307, [32] (Bond J).

   [16]EFH17 v Minister for Immigration and Border Protection (2019) 272 FCR 409, 433–4 [84] (Derrington J).

9. It is with these matters in mind that the existence or otherwise of the requisite state of mind, in this case of ‘reasonably suspects’, must be assessed. I accept that there is an objective aspect of that state of mind, imported by the legislative requirement that the Chief Executive must not only suspect that the child is in need of protection but must ‘reasonably’ suspect that is so.  A suspicion is ‘a state of conjecture or surmise where proof is lacking’; it is ‘more than a mere idle wondering’; ‘it is a positive feeling of actual apprehension or mistrust’. To be reasonable, a suspicion or apprehension requires a positive feeling of actual apprehension or mistrust that has an objective basis in fact.[17] When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind of suspicion it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[18] Although s 14 does not in terms require that there be ‘reasonable grounds’ for the Chief Executive to suspect that the child is in need of protection, for present purposes I do not see any material distinction between ‘reasonable grounds’ to suspect and ‘reasonably suspects’.

   [17]HCF v The Queen [2023] HCA 35, [13] (Gageler CJ, Gleeson and Jagot JJ), citing George v Rockett (1990) 170 CLR 104, 115 and Lorditano v Commissioner of the Australian Federal Police (2019) 266 CLR 273, 308 [89].

   [18]George v Rockett, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Prior v Mole (2017) 261 CLR 265, 270 [4] (Kiefel and Bell JJ), 277 [24] (Gageler J).

10. Accordingly, what was required in this case to establish the subjective jurisdictional fact was the existence of facts sufficient to induce a suspicion in the mind of a reasonable person that Simon was a child in need of protection.

11. The thrust of BZN’s argument is that the information and material available at the time the Chief Executive authorised the s 14 investigation was not capable of inducing that state of mind in a reasonable person.

12. I do not accept that submission.

13. The relevant time in question here is the point at which the Chief Executive authorised the s 14 investigation into the allegation of sexual abuse. Although s 14 requires that it be the Chief Executive who ‘reasonably suspects’, I assume that the power to authorise a s 14 investigation is one which is able to be delegated, and was in fact delegated, to an appropriately qualified officer or employee of the Department, in accordance with s 156 of the CPA. The available evidence does not clearly identify the particular person within the Department who formed the requisite state of mind. It seems that the decision to record the allegation as a harm report and seek approval to authorise an investigation under s 14, was made after a series of Departmental consultations on 5, 6 and 7 January 2021. It also seems that approval was given on 11 January 2021 by Laura Stephenson, a Senior Team Leader (‘STL’). As no point was taken in respect of these matters, I am content to proceed on the same basis that the parties contested the issue, namely that whomever authorised the investigation did so on behalf of the Chief Executive and it was that person who was required to hold the relevant state of mind.

14. I agree that the phrase ‘child is in need of protection’ in s 14(1) imposes a temporal requirement. The Chief Executive must therefore reasonably suspect that the child is presently in need of protection at the time she becomes aware of the alleged harm or risk of harm to the child.

15. However, that does not mean that there must be a current incident of harm or a future risk of harm before a child is in need of protection. The definition in s 10(a) makes plain that a ‘child in need of protection’ includes a child who ‘has suffered significant harm’. Therefore, the concept may refer to a past incident which has resulted in that consequence.

16. Further, although the requirement in s 10(b) that the child ‘does not have a parent able and willing to protect the child from the harm’ also speaks in the present tense, that does not mean that there must be a current incident of harm or a future risk of harm. What is presently required by s 10(b) is the absence of a parent able and willing to protect the child from the harm referred to in s 10(a). However, the harm referred to in s 10(a) is the past, present or future effects or consequences upon the child that have been, are being or will be, caused by an act or acts. Where such acts have occurred in the past, harm or a risk of harm caused by those acts may still be present. The definition in s 9 makes plain that ‘harm’ is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. It is obvious that a past incident of sexual abuse may cause ongoing detrimental effects of that kind to a child, which may continue to be present at the time the Chief Executive becomes aware of the allegation of sexual abuse of the child.

17. It is not in dispute that Simon was in the care of the Chief Executive and did not have a parent able and willing to protect him from the alleged harm at the time the s 14 investigation was authorised.

18. In this case, there was information available to the Chief Executive sufficient to induce a suspicion in the mind of a reasonable person that Simon was a child in need of protection. The Chief Executive became aware of the allegation as a result of a disclosure made by Simon to a Departmental Child Safety Officer (‘CSO’) during a telephone call on 4 January 2021. The relevant information was recorded in what appears to be a contemporaneous file note headed ‘CP case note’, documenting the discussion had during the telephone call made at 12:34 pm that day, and in a subsequent ‘Harm report’ which appears to have been created on 7 January 2021, but which noted that the concerns were received at 4:00 pm on 4 January 2021.

19. The file note records that Simon gave some details of the alleged incident of sexual abuse and described the alleged perpetrator as a worker whom he knew by a name which is the same as BZN’s first name. It records that Simon said that he knew the worker was previously ‘stood down from BYDC and I got scared when found out he worked there’. It further records that when Simon was asked if he wanted to take the matter forward, he was not willing to tell the officer information but stated, ‘I have wanted to tell people.’ The file note further indicates that when directly asked if he wanted to make a formal complaint to police, Simon stated, ‘I do not want to charge him but take further with Child Safety.’

20. Under the heading of ‘Notified concerns’, the harm report states that the ‘following information was provided to Beenleigh CSSC’. The report then sets out a description of the alleged sexual abuse to which Simon was subjected and concludes with the following:

    [Simon] added, that he knows [BZN] has done something else to another child when at BYDC and that made him fearful when [Simon] was at BYDC as he worried about [BZN] being there. [Simon] states he has not talked about this. [Simon] reports this continues to impact him greatly.

21. Under the heading ‘Harm category’, the harm report nominates ‘Sexual abuse’ and ‘Emotional harm’.

22. According to the information received on 4 January 2021, Simon had been subjected to a single past incident of sexual abuse, but he continued to suffer emotional harm caused by the incident and was presently impacted greatly by it. I conclude that the Chief Executive considered the information received and formed the state of mind required by s 14(1) and that it was logically and rationally open for her to do so on the information known to her at that time.

23. Accordingly, I reject BZN’s arguments that the Chief Executive could not have reasonably suspected that Simon was a child in need of protection and that the requisite subjective jurisdictional fact did not exist.

What standard of proof was required to substantiate the risk of alleged harm to the child?

1. BZN contends that the Chief Executive’s decision involved an error of law or was otherwise contrary to law because it was made without regard to the principles in Briginshaw v Briginshaw.[19] BZN says the Chief Executive misunderstood what was required in order to find that the alleged harm was substantiated. He says there was no cogent and compelling evidence to substantiate the allegation and the failure to observe the principles stated in Briginshaw constitutes jurisdictional error of a kind that invalidates the decision.

   [19](1938) 60 CLR 336 (‘Briginshaw’).

2. I reject that those submissions. They wrongly equate the investigation and assessment of the allegation of harm to an accusatorial and adversarial curial process and ignore the purpose and context of the decision. They also ignore the information and material that was available to substantiate the allegation of harm.

3. The relevant principle in Brignishaw is contained in the following statements made by Dixon J in that case, which was a divorce case about whether an allegation of adultery was capable of proof:[20]

   … reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

   [20]Ibid 362.

4. I accept that a finding made under s 14(1) of the CPA that an allegation of harm has been substantiated is one which may have serious consequences for an alleged perpetrator. It is for that reason that it may not be reasonable for the relevant decision maker to act on ‘inexact proofs, indefinite testimony or indirect references’ to find the allegation substantiated. It is reasonable to conclude that s 14 requires a decision maker to be satisfied, on the balance of probabilities, before finding an allegation of harm substantiated. In so finding, the decision maker must act on ‘logically probative material’ and not ‘mere suspicion or speculation’.[21] However, it is not necessary for the decision maker to overtly refer to or apply the principles stated in Briginshaw. Rather, what must be apparent from the reasons given for the decision is that the decision maker was aware that conclusions carrying serious or grave consequences ought not lightly be made and that such an understanding has permeated the reaching of the conclusion.[22]

   [21]Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, 67–8 (Deane J, with whom Evatt J agreed).

   [22]Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, 562 [16]–[17] (Logan J); 583 [106], 586 [120]–[122] (Flick and Perry JJ).

5. The CPA’s purposes include to provide for the protection of children and to promote the safety of children. Section 14 is a provision that operates to give effect to those purposes and to the Chief Executive’s function under the CPA of responding to allegations of harm. In that context, the focus of s 14 is the child that is the subject of the alleged harm and the assessment of their protective needs. A finding that an allegation of harm has been substantiated is an essential preliminary finding to the Chief Executive’s obligation to assess the child’s protective needs. It is not a finding made for other purposes. It is not intended to be a finding of guilt or an attribution of blame for which a person is to be punished or penalised.

1. Whilst a decision maker must have  due regard to matters such as the nature and seriousness of the allegation, the inherent unlikelihood of the alleged act’s occurrence and the gravity of the consequences for the alleged perpetrator in assessing whether an allegation of harm can be substantiated, the focus remains squarely at all times on the protection of the child. Even if, as was the case here, the standard of proof employed is whether the allegation is more likely or not on the balance of probabilities, the level of satisfaction required to meet that standard and substantiate the allegation of harm must necessarily be considered in the context of the purposes of the CPA and the paramount principle stated in s 5A.

2. In documenting the Final Review Outcome, Ms Stevens set out the various sources of information and material she relied upon to reach her conclusion to endorse the original decision of ‘Substantiated – standards not met’ and to find that Simon had been harmed and the person responsible for the harm was BZN. That material included various communications and interviews between the Department and BZN, during which reference had been made several times to the serious nature of the allegation and the personal effects the allegation had upon BZN. Further, Ms Stevens noted and took into account written submissions prepared by BZN’s legal representatives, which contained extensive arguments as to why it was said the harm report could not be substantiated on the balance of probabilities and which emphasised the personal and professional impacts and consequences of the decision for BZN.

3. In reaching her conclusion, Ms Stevens expressly noted that she supported the view that ‘on the balance of probability’ Simon had been harmed by BZN. She expressly recognised that the decision would have a negative impact upon BZN.

4. In those circumstances, it cannot be inferred that Ms Stevens failed to have regard to the seriousness of the allegation and the serious consequences a substantiated harm finding would have for BZN. 

5. It should be noted that for present purposes I accept that the information and material Ms Stevens based her decision on was logically probative of the allegation. However, I will return to consider the probative value and weight of that information and material when I consider the issue of whether the decision was legally unreasonable.

Was the decision made in breach of the rules of natural justice?

1. BZN contends there was a breach of the rules of natural justice in two respects. First, he says the decision was made in circumstances where there existed a reasonable apprehension of bias on the part of the Chief Executive. Second, he says he was denied a fair hearing.

2. Whilst the first complaint probably falls within the ambit of the second, as BZN made separate arguments about each matter I will address them in that way.

3. I accept that BZN was entitled to procedural fairness and that the Chief Executive was required to observe the rules of natural justice in assessing whether the allegation could be substantiated. It is unnecessary to precisely determine what procedural fairness or the rules of natural justice might require in a case like this. It is sufficient to note that I accept that BZN was entitled to be informed of the allegation and the basis for it, to be given the opportunity to be heard in respect of it before any decision was made and to have the allegation assessed by an impartial decision maker, without any pre-judgment of the outcome

4. As to a reasonable apprehension of bias, BZN says the Chief Executive expressed and held a clear predisposition to accept the veracity of the allegation without any, or any proper, regard to the merits of the allegation. BZN says this is revealed by the following matters referred to by Ms Stevens in the Final Review Outcome under the concluding section headed ‘Reviewer’s Opinion’:

   [61].Child sexual abuse is largely an unwitnessed and often undetected act. It is not an uncommon situation in the child protection realm where a child makes a disclosure and the alleged adult involved denies the allegations…

   …

   [64].…The key messages section of the Practice Kit outlines: ‘Disclosure is accidental in approximately 74% of cases. ‘False allegations’ are very rare (approximately 2%)…

   …

   [74]It is important that [Simon] is believed in his disclosures…

5. The test for reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the decision maker was required to decide.[23] The test has two steps: first, it requires the identification of what it is said might lead the decision maker to decide a matter other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[24] Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then be assessed.

   [23]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Charisteas v Charisteas (2021) 273 CLR 289, 296 [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).

   [24]Isbester v Knox City Council (2015) 255 CLR 135, 146 [21] (Kiefel, Bell, Keane and Nettle JJ).

6. I do not accept the matters identified by BZN demonstrate reasonable apprehension of bias by the Chief Executive.

7. The statements recorded by Ms Stevens in her Final Review Outcome must be read in the context of the entirety of the documented review. The statements cannot be considered in isolation, divorced from that context. In my view, when that is done, the identified statements take on an entirely different character.

8. It is evident that the ‘Reviewer’s Opinion’ section of the Final Review Outcome was the conclusion section, based upon the entirety of the information cited and canvassed by Ms Stevens. It is apparent that the first two identified statements, appearing at paragraphs 61 and 64 of the Final Review Outcome, are drawn from the Department’s Child Safety Practice Manual, Child Sexual Abuse Practice Kit, which is an information resource the Department provides for its CSOs. The Practice Kit notes that it is ‘a practical resource to support child protection practitioners to understand, assess and respond to child sexual abuse’. The Practice Kit is based upon published literature and studies in the field of child protection.

9. There is no substance to BZN’s complaint about the references to these matters. It is a gross understatement to say that child protection practitioners work in a difficult environment. The decisions they make each day may have profound impacts, both positive and negative, for children, carers, families, communities and individuals. The gravity of such decisions and the pressures placed on practitioners to make the ‘right’ decisions are self-evident. It is therefore to be expected that the persons making such decisions will be provided with the necessary training, education and support to perform their roles and discharge their duties. To that end, it is entirely appropriate that the Department provide them with relevant and up to date information and resources on child abuse and child protection.  Materials such as the Child Safety Manual and the Child Sexual Abuse Practice Kit do just that, by providing reliable expert information to assist practitioners to make decisions. Whilst there is no substitute for individual assessment and the exercise of considered judgement by child protection practitioners, it is entirely appropriate, and indeed necessary, that they consult such resources to inform themselves of the practices, methodologies and learning in the field of child protection relevant to the performance of their own roles and the discharge of their weighty responsibilities.

10. In my opinion, Ms Stevens’ references to, or inclusion of, material from the Child Safety Manual and the Child Sexual Abuse Practice Kit is uncontroversial and does not provide any logical basis for a conclusion of reasonable apprehension of bias by the Chief Executive. I do not consider that Ms Stevens was providing her own personal opinions by drawing upon or citing this material. In any event, to the extent that she was, her opinions accorded with the literature and studies she referenced. The inclusion of these statements in the Final Review Outcome was not evidence of pre-judgment of the allegation. Rather, it formed part of the judgement of the allegation. It was information Ms Stevens considered to enable her to assess whether the allegation could be substantiated. That it provided a context against which Simon’s allegation might not be dismissed out of hand as implausible or inherently unreliable, according to general misconceptions or outdated stereotypes about ‘typical’ child abuse complainants or sexual abuse allegations, did not mean Ms Stevens was not bringing an impartial mind to the required assessment.

11. The other statement made by Ms Stevens, at paragraph 74 of the Final Review Outcome, is also missing important further context. The statement was made after Ms Stevens had already expressed her conclusion in the preceding paragraph that based on her review of the available information she supported the view that, on the balance of probability, Simon had been harmed by BZN. Further, only half the relevant statement was reproduced by BZN in his written submissions. The full sentence reads:

    [74].It is important that [Simon] is believed in his disclosures and that he is given an opportunity for therapeutic intervention and support to heal.

12. In my opinion, it is clear that in making this statement Ms Stevens was addressing the protection needs of Simon, having already concluded that she agreed with the finding that the allegation of harm was substantiated. In its proper context, the statement does not give any support to BZN’s complaint of a reasonable apprehension of bias.

13. As to the complaint that he was denied a fair hearing, BZN says that he should have had the opportunity to address the allegation at an oral hearing and to cross-examine or otherwise put questions to Simon.

14. I reject those submissions. Again, they appear to be premised on ignorance or misunderstanding of the purposes of the investigation and assessment required by s 14 and the fundamental purposes of the CPA. The focus was at all times on the protection of Simon from harm. Procedural fairness did not require that the allegation be tested and determined in the way an accusation might be challenged in a court or tribunal. BZN was fully apprised of the allegation. He had the opportunity to make written submissions, through his legal representatives, about the allegation and whether it could be substantiated.. No doubt it was incumbent upon Ms Stevens to critically consider the allegation in light of the known facts, circumstances and other information, including BZN’s submissions, but to suggest that procedural fairness necessitated an oral hearing or cross-examination of the child is simply untenable. No such procedures were required by the CPA, either expressly or by implication. Indeed, they would be completely contrary to the primary purpose and principles of the CPA.

Is the decision legally invalid because the Chief Executive took into account irrelevant considerations and failed to take into account relevant considerations?

1. BZN submits the Chief Executive took into account irrelevant considerations and failed to take into account relevant considerations. By doing so, BZN contends that the making of the decision was an improper exercise of the power conferred by s 14 of the CPA.

Legal principles

1. A contention that a decision is legally invalid because the decision maker failed to take into account a particular consideration can only succeed if the decision maker was bound to take the matter into account in making the decision. Where the statutory provision under which the decision is made does not expressly identify matters that are to be considered by the decision maker, the relevant matters that must be taken into account will be determined by the proper construction of the statutory provision in question, having regard to the Act’s subject matter, scope and purpose.[25]

   [25]Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39–40 (Mason J).

2. The converse situation applies to a decision that is said to be legally invalid because the decision maker took into account an irrelevant consideration. For such an argument to succeed, what must be shown is that the decision maker was forbidden from taking the matter into account. Again, if the prohibition is not expressed in the relevant statutory provision itself, the matter will only be a forbidden matter for consideration if the proper construction of the statutory provision requires such an implication.

3. Whilst it has been said that where a consideration is required to be taken into account the decision maker is to engage in an ‘active intellectual process’[26] or give the matter ‘proper, genuine and realistic consideration’,[27] such descriptions must be understood in their proper context.  The limited role of judicial review of an administrative decision must constantly be borne in mind.[28] The Court is not conducting a merits review of the decision. The focus is upon the legality of the purported exercise of the statutory power by the decision maker.

   [26]DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177, 189 [12] (Kiefel CJ, Gageler, Gordon and Steward JJ).

   [27]Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J).

   [28]Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 426 [26] (Kiefel CJ, Keane, Gordon and Steward JJ).

4. Accordingly, where the decision maker is bound to take a consideration into account, how it is to be taken into account and what weight it is to be accorded in all the circumstances are matters within the authority of the decision maker.[29] Furthermore, even if it be shown that a decision maker has failed to take into account a relevant consideration or taken into account an irrelevant consideration, that will not necessarily justify the Court setting aside the impugned decision. The particular factor might be so insignificant that it could not have materially affected the decision.[30] A factor will be material if there is a reasonable possibility that, had it been taken into account, or not taken into account as the case may be, the decision-making process could have resulted in a different outcome.[31] An applicant must establish the materiality of the particular factor.  However, the test of materiality is not a demanding one and is to be determined as a matter of ‘reasonable conjecture’.[32]

   [29]Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, 448–9 (Basten JA, McColl and Macfarlan JJA agreeing).

   [30]Minister for Aboriginal Affairs v Peko-Wallsend, 40 (Mason J); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134–5 [30] (Kiefel CJ, Gageler and Keane JJ).

   [31]Minister for Immigration v SZMTA (2019) 264 CLR 421, 445 [45] (Bell, Gageler and Keane JJ).

   [32]Nathanson v Minister for Home Affairs (2022) 403 ALR 398, 410 [33] (Kiefel CJ, Keane and Gleeson JJ).

What considerations were relevant?

1. Section 14 of the CPA does not expressly identify any matters that must be taken into account by the decision maker in assessing whether an allegation of harm can be substantiated. Nor does s 14 state any matters that the decision maker must not take into account.

2. Without attempting to comprehensively identify and detail all possible relevant considerations, having regard to the subject matter, scope and purpose of s 14, I consider it is implicit that the decision maker would be bound to take into account the following matters:

   (a)the purposes and principles of the CPA and the Chief Executive’s functions under the Act, set out in Part 2 of the CPA;

   (b)the terms of s 14 of the CPA and the purpose for which a finding that an allegation of harm can be substantiated is to be made;

   (c)the sources of information and means by which the Chief Executive became aware of the alleged harm to the child;

   (d)the nature and circumstances of the alleged harm to the child;

   (e)the nature and circumstances of the act or acts alleged to have caused the harm to the child;

   (f)the personal background and circumstances of the child;

   (g)the personal background and circumstances of the alleged perpetrator of the harm;

   (h)any matters relevant to assessing the plausibility, credibility or reliability of the allegation; and

   (i)that whether the allegation of harm can be substantiated is to be assessed on the balance of probabilities.

Supposed relevant considerations not taken into account

1. BZN says the Chief Executive failed to take into account the following relevant considerations in making the decision:

   (a)that the complainant had previously made untrue allegations and made complaints and accusations for the purpose of eliciting a response from workers responsible for him;

   (b)evidence from BZN’s former employer, YLO, to the effect that BZN had never been the subject of complaints regarding interactions with young people.

2. With respect to point (a), during the hearing of BZN’s application I was not directed to any evidence or material said to be capable of supporting the complaint that Simon had previously made untrue allegations of harm, and ultimately that matter was not pursued by BZN.

3. As to the alleged failure by the decision maker to take into account that Simon had made complaints and accusations for the purposes of eliciting a response from workers responsible for him, when I asked for the source of that information, BZN’s counsel referred me to the letter dated 2 August 2021 from BZN’s solicitors containing the submissions that were sent to the Department for consideration when conducting the second review of its initial decision regarding the harm report.

4. In both the Final Review Outcome and in her affidavit evidence, Ms Stevens confirmed that she had considered that document in conducting her review. Accordingly, there is no substance to BZN’s complaint. In any event, the information provided by BZN’s solicitors did not suggest that any previous complaints and accusations made by Simon were in fact untrue. Further, the nature of those matters is entirely different to an allegation of sexual abuse. I do not therefore consider Ms Stevens failed to take into account a relevant consideration by omitting express reference to this information.

5. As to point (b), Ms Stevens clearly noted in the Final Review Outcome that ‘YLO confirmed that [BZN] has not been involved in any previous critical incidents/concerns/allegations with this service’. Accordingly, I do not accept that this was not information taken into account by Ms Stevens when making her decision.

Supposed irrelevant considerations taken into account

1. BZN says the Chief Executive took into account the following irrelevant considerations in making the decision:

   (a)that ‘false allegations’ are very rare (approximately 2%);

   (b)that ‘it is important that [Simon] is believed in his disclosures’;

   (c)that BZN’s previous employment with BYDC had involved misconduct, which was not alleged to have been of a sexual nature, and in circumstances where, to the Chief Executive’s knowledge, such information was provided in breach of an obligation of confidentiality;

   (d)that BZN had not been ‘open and transparent’ about his previous employment with BYDC in circumstances where to the Chief Executive’s knowledge BZN was bound by obligations of confidentiality in relation to that employment, as was his employer, BYDC;

   (e)that there was no ‘conflict of interest declaration’ regarding BZN’s employment with BYDC and YLO;

   (f)that during his employment with BYDC, BZN ‘had numerous matters referred to PSU for alleged inappropriate and unauthorised use of force’, in circumstances where the Chief Executive knew that there had been no disciplinary action against BZN;

   (g)that BZN had previously had an adverse finding against him, regarding inappropriate use of power against vulnerable clients in an employment situation, overturned by successfully engaging in legal proceedings and that BZN is ‘again in a situation regarding inappropriate use of power against a vulnerable client where [he] is engaging with legal proceedings’; and

   (h)that BZN availed himself of the right to legal representation in the course of the Chief Executive’s investigation and assessment of the allegation of harm.

1. There was, of course, nothing about BZN’s general character or personal background that Ms Stevens could act upon as supporting the likelihood that the alleged sexual abuse had occurred. BZN had no prior recorded incidents of concern in relation to child safety or in performing his role with YLO. There was no evidence that he had engaged in any similar type of behaviour before. Simon’s remark that BZN had ‘[done] it to another kid’ was noted by Ms Stevens but could not have been considered to be such evidence and she made no finding about that assertion.

2. However, there were the substantiated findings of misconduct from BYDC. Whilst Ms Stevens referred to the fact that BZN had had numerous matters referred to PSU for alleged inappropriate force, she wrongly stated that he had had an adverse finding of inappropriate use of power against a vulnerable client in an employment situation overturned through legal proceedings.  The information was that he had been found guilty of misconduct for unauthorised use of force upon young persons on three separate occasions. Further, in respect of the incident that led to his initial termination, which involved the inappropriate and unauthorised use of force on a 15-year-old male, an allegation that BZN had made an inaccurate incident report of the matter that was false and misleading was substantiated. In my view, these were all matters that would logically have counted against BZN in both the standard of care review and the allegation of harm review.

3. I agree that it may be inferred from the Department’s change of view about the intended outcome of the investigation that the BYDC information must have been given significant weight. I do not agree, however, that it was given disproportionate weight or that it was the only reason why the original decision was made to find the allegation substantiated. In that respect, it is again to be noted that neither the 27 April 2021 case note which documented the change of position, nor Ms West’s Harm report – assessment & outcome, refer to the BYDC information. They each instead refer to the various matters I have outlined above that were considered by Ms Stevens as information and material supporting the occurrence of the alleged sexual abuse.

4. I also do not consider the process undertaken by Ms Stevens displayed irrationality or illogicality.  Ms Stevens’ process, as documented in the Final Review Outcome report, demonstrates a logical identification of relevant considerations and sufficient exposure of a logical reasoning process.

5. In my view, the information and material reviewed by Ms Stevens provided a logical and rational basis for her decision. There was information and material that justified the making of the decision. The weight to be given to that information and material was ultimately a matter for Ms Stevens. The decision does not demonstrate that any one or more matters was given such disproportionate weight that the decision itself was unreasonable. The decision was within the range of legally and factually justifiable outcomes available to a reasonable decision maker in the circumstances.

Was the decision unlawful under s 58 of the HRA?

1. Section 58(1) of the HRA provides that it is unlawful for a public entity:

   (a)to act or make a decision in a way that is not compatible with human rights; or

   (b)in making a decision, to fail to give proper consideration to a human right relevant to the decision.

2. Ms Stevens was a public entity for the purposes of the HRA. She was therefore required to comply with s 58 in making her decision to endorse the original harm report assessment outcome.

3. As noted already above, as part of her review Ms Stevens had regard to a range of information and material obtained by the Department through its investigation. That included personal information about BZN’s background and employment. The employment information considered by Ms Stevens included the information provided by BYDC in respect of the previous incidents of concern involving BZN and the ‘termination’ of his employment.

4. When detailing the information she had reviewed concerning BZN’s child protection history, Ms Stevens noted he had no recorded history as an adult or a parent but that he had a recorded history as a ‘subject child’ in relation to physical abuse perpetrated by his father.

5. When referring to the case notes concerning contact with Simon, Ms Stevens noted that the 6 January 2021 case note recorded that after Ms West had spoken to Simon, she then spoke to his father, who had stated:

   …I know this [BZN] (that bugger has bad reputation – in jail they say to you here brother, watch out for that big grey (or gay) [BZN], be careful.

6. As part of her decision-making process, Ms Stevens created a separate file note which commenced:

   This file note is to sit alongside the Review of the Standard of Care Outcome Decision that I completed. As part of the review process (as detailed in the scope of review) I have given due consideration to the provisions of the Human Rights Act 2019 in order to ensure the human rights of both [BZN] and [Simon] were properly protected and promoted.  Listed below are the matters that I have given due consideration to.

7. The file note then set out the human rights stated in ss 15 (Recognition and equality before the law), 25 (Privacy and reputation), 26 (Protection of families and children), 31 (Fair hearing) and s 58 of the HRA. Ms Stevens included a comment beneath each identified human right, explaining her consideration of that section. With respect to the s 25 rights of privacy and reputation, Ms Stevens wrote:

   The Standard of Care matter could be argued that is around [BZN’s] reputation.  In my review, I have managed all information sensitively and respectfully to the best of my ability.

8. In considering the rights of children expressed in s 26, Ms Stevens wrote:

   …I have noted that in relation to [Simon], guidance can be obtained from the Child Protection Act, because in fulfilling the requirements of the Act, the paramount principle at section 5A, applying the Statement of Standards at 122 and the Schedule 1 Charter of Rights for a Child in Care, this tends to afford an approach that addresses his human rights as a child. Also, [Simon] has been given the opportunity to speak with the department and put his understand [sic, understanding] of events to you so that they could be assessed in terms, for instance, of veracity.  I attempted to re-engage [Simon] in an interview as part of this review, however unfortunately this was not possible at the time.

9. As to the requirements imposed by s 58, Ms Stevens recorded:

   In balancing the human rights owed, I have given proper consideration to Section 58 and note in particular the provision of the Child Protection Act 1999 and have, nevertheless made every effort to afford human rights considerations to both parties.

Submissions

1. BZN says that in making her decision in the Final Review Outcome, Ms Stevens acted, or made a decision, in a way that was not compatible with human rights, contrary to s 58(1)(a) of the HRA. He further says that in making her decision, Ms Stevens failed to give proper consideration to his human rights relevant to the decision, contrary to s 58(1)(b) of the HRA.

2. Consequently, he seeks declarations under s 59 of the HRA that the decision is unlawful.

3. BZN identifies his relevant human rights as the right to privacy and the right to reputation, described in s 25 of the HRA. As to the scope of those rights and their potential engagement in this case, he adopts the submissions made by the Attorney-General.

4. With respect to s 58(1)(a), BZN says the decision is not compatible with his rights of privacy and reputation. He says the Department obtaining, and Ms Stevens considering, the personal information about his recorded child safety history as a young person impermissibly limited his right not to have his privacy unlawfully and arbitrarily interfered with. So too, he says, did Ms Stevens’ consideration of the ‘homophobic comments’ made by Simon’s father. BZN further says that the decision impermissibly limited his right not to have his reputation unlawfully attacked, as the decision is damaging for his reputation in his chosen field of work and generally.

5. With respect to the claimed unlawfulness of the interference with his rights to privacy and the attack upon his reputation, in each instance BZN relies upon the matters alleged by the substantive grounds of his judicial review application. In addition, with respect to interference with his right to privacy, BZN says the decision was arbitrary, as it was at least capricious or unjust. Furthermore, he contends the decision was unreasonable in that it was not proportionate to any legitimate aim, particularly in circumstances where no consideration or assessment was actually made of Simon’s protection needs.

6. With respect to s 58(1)(b), BZN says that in making the decision, Ms Stevens failed to give proper consideration to his human rights of privacy and reputation. He submits that more was required of Ms Stevens than simply acknowledging that information had been managed ‘sensitively and respectfully’. He further submits Ms Stevens was required to seriously turn her mind to the possible impacts of the decision on his human rights and to identify countervailing interests or obligations and that it was insufficient to simply recite provisions of the HRA and then reach a decision.

The HRA

1. One of the main objects of the HRA is to protect and promote human rights. The Act achieves that object, in part, by stating the human rights that Parliament specifically seeks to protect and promote. 

2. The particular human rights of privacy and reputation that BZN says are engaged here are contained in s 25, which states that a person has the right:

   (a)not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

   (b)not to have the person’s reputation unlawfully attacked.

3. These rights are not absolute. In that regard, it is pertinent to observe that, unlike the right of reputation, the right to privacy includes freedom from arbitrary interference. The notion of arbitrary interference extends to those interferences which may be lawful, but are unreasonable, unnecessary and disproportionate.[41] Arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness – in the sense of not being proportionate to the legitimate aim sought.[42]

   [41]Explanatory Note, Human Rights Bill 2018 (Qld), 22.

   [42]WBM v Chief Commissioner of Police (2012) 43 VR 446, 471–2 [114] (Warren CJ, with whom Hansen JA agreed).

4. The right to privacy is a broad right, with many dimensions. It includes informational privacy but also extends to physical and mental integrity.[43]

   [43]Explanatory Note, Human Rights Bill 2018 (Qld), 22.

5. The human rights of Simon were also relevant to the decision made in this case. In that regard, s 26(2) of the HRA provides that every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.

6. Although the HRA identifies various human rights a person may have, the Act does not give those rights any free-standing operation. Rather, the HRA sets out the human rights which Parliament seeks to protect and promote and contains operative provisions by which those human rights may be protected and promoted.[44]

   [44]Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623, 667 [197] (Ryan J).

7. Section 58 is one such operative provision.

8. Section 58(1) imposes substantive and procedural obligations upon a public entity decision maker. Under the s 58(1)(a) substantive limb of the section, it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights. Under the s 58(1)(b) procedural limb of the section, it is unlawful for a public entity, in making a decision, to fail to give proper consideration to human rights relevant to the decision. Section 58(5) provides non-exhaustive elaboration of what is required for giving proper consideration to a human right in making a decision for the purposes of s 58(1)(b). It includes, but is not limited to, identifying the human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.

9. The notion of a decision being ‘compatible with human rights’ thus pervades both the substantive and procedural limbs of s 58. Section 8 of the HRA provides that a decision is compatible with human rights if it does not limit a human right; or limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.

10. Section 13 states:

    13       Human rights may be limited

    (1)A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

    (2)In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

    (a)the nature of the human right;

    (b)the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

    (c)the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

    (d)whether there are any less restrictive and reasonably available ways to achieve the purpose;

    (e)the importance of the purpose of the limitation;

    (f)the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

    (g)the balance between the matters mentioned in paragraphs (e) and (f).

11. It follows from these provisions of the HRA that compatibility with human rights may be considered in three stages: engagement, limitation and justification. In Austin BMI Pty Ltd v Deputy Premier, Freeburn J described the three stages in these terms:[45]

    (a)Engagement: A measure will ‘engage’ a human right, if the right is ‘relevant’ or ‘apparently limit[ed]’. ‘The relevance may be that the right is interfered with (i.e. a negative effect) or promoted’. A human right can only be limited if it is engaged, but it is possible that a human right may be engaged but not limited (for example, property might be deprived so that the right in s 24(2) is ‘engaged’, but the deprivation may not arbitrary, so that the right is not in fact ‘limited’).

    (b)Limitation: A measure will ‘limit’ a human right for the purposes of s 8 of the Human Rights Act, if it ‘places limitations or restrictions on, or interferes with, the human rights of a person’. That necessarily involves considering whether the impact comes within the scope of the right. When determining scope, ‘rights should be construed in the broadest possible way’, by reference to the right’s ‘purpose and … underlying values’. Because ‘[t]he protection of human rights crosses borders’, the scope of human rights may also be informed by international jurisprudence, including the jurisprudence of the Human Rights Committee (the treaty-monitoring body for the International Covenant on Civil and Political Rights (ICCPR)). Any recourse to international authority must take into account the particular legal and constitutional context in which those cases were decided.

    (c)Justification: A limit will be ‘justified’ if it satisfies the proportionality test in s 13 of the Human Rights Act. It is at this stage that the overall protection of the right is narrowed to ‘mitigat[e] any damage to society that may arise from upholding an individual’s right.’ It is important that this be done at the third stage using the transparent reasoning process set out in s 13.

    [45][2023] QSC 95, [306] (‘Austin BMI’).

12. BZN bears the onus of establishing that his human rights have been limited. If he is able to discharge that onus, the Chief Executive then has the onus of showing that the limit was justified under s 13.[46] The standard of justification is stringent. The evidence required to prove that a limit on a human right is justified, having regard to the matters set out in s 13(2) should be cogent and persuasive.[47]

    [46]Ibid [307].

    [47]Ibid; Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, 297 [133] (Martin J) (‘Owen-D’Arcy’).

13. With respect to the procedural limb in s 58(1)(b), the tasks in ss 58(5)(a) and (b) must be approached in a ‘common sense and practical manner’.[48] Public entities ‘are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge’.[49] Proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. It will be sufficient in most circumstances that there is some evidence that shows the decision maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.[50] It is not necessary for a decision maker to expressly relate their consideration of human rights to the specific sections of the HRA.[51] 

    [48]Austin BMI, [355]; Owen-D’Arcy, 298–9 [137].

    [49]Owen-D’Arcy, 298–9 [137].

    [50]Owen-D’Arcy, 298–9 [137], quoting Castles v Secretary of Department of Justice & Ors (2010) 28 VR 141, 184 [185]–[186] (Emerton J).

    [51]Austin BMI, [362].

14. A further operative provision of the HRA is s 59. Under s 59, a person may seek a declaration that a decision made by a public entity is unlawful, but only where the person may seek any relief or remedy in relation to the decision on the ground that the decision was, other than because of s 58 of the HRA, unlawful. In other words, where a person has a basis, independent of s 58, for claiming the decision was unlawful, then the person may also seek a declaration of unlawfulness under s 58.

Consideration

1. BZN is entitled to seek a declaration of unlawfulness arising under s 58 because he independently claims the decision was unlawful and has sought consequential remedies by his judicial review application.

2. In terms of BZN’s argument concerning the failure to comply with the substantive limb obligation under s 58(1)(a), I accept that BZN’s human rights of privacy and reputation were engaged by the decision made in this case.

3. A right to privacy includes a right to informational privacy. That aspect was engaged here because Ms Stevens had access to and considered what was said to be confidential or private information about BZN received from BYDC.  The right to privacy also encompasses a person’s right to be free from interference with their mental integrity.[52] I accept that aspect was engaged here as there was clear evidence that the investigation and assessment process had compromised BZN’s mental health and the decision would necessarily have had the potential to further adversely affect BZN’s mental health.

   [52]Re Kracke and Mental Health Review Board (2009) 29 VAR 1, 131 [619]–[620] (Bell J).

4. What must be considered, therefore, is whether Ms Stevens acted, or made her decision, in a way that was compatible with those human rights. That, in turn, requires consideration of whether BZN’s human rights were limited and, if so, whether they were limited only to the extent that was reasonable and justifiable in accordance with s 13.

5. As I have rejected each of BZN’s substantive judicial review application grounds, he has not established that his human right of privacy has been unlawfully interfered with, nor that his human right of reputation has been unlawfully attacked.  Without such unlawfulness being demonstrated, there is no limitation of BZN’s rights in that way.

1. What remains to be considered, however, is whether his right of privacy has been arbitrarily interfered with and thus limited.

2. I do not consider it was. In my view, the interference with BZN’s right of privacy was not unreasonable, unnecessary and disproportionate in the circumstances. On the contrary, I consider the interference with that right was clearly proportionate to the legitimate aim of the protection of children and their human rights.

3. The State owes positive human rights obligations to protect children from sexual abuse, including by ensuring the effective investigation of allegations of sexual abuse.[53] Children have human rights under the HRA that are to be protected and promoted, including the right under s 26 to be protected by the State.

   [53]RB v Estonia [2021] ECHR 540, [78]–[84].

4. The Department’s investigation of the allegation made by Simon and the subsequent decision that the allegation was substantiated were conducted and made for the purposes of, and in accordance with, the CPA. In particular, each of those things was done in furtherance of the Chief Executive’s statutory function to respond to allegations of harm to children, as prescribed by s 7(1)(d) of the CPA. The personal information of BZN was obtained and considered for that legitimate purpose and only to the extent necessary for achieving that purpose.

5. It is not correct to assert, as BZN does, that the decision was unreasonable and not proportionate to any legitimate aim as no assessment was made of Simon’s protection needs. Whilst there was no ongoing risk of harm posed to Simon by BZN, it was assessed that Simon had been emotionally harmed by the sexual abuse perpetrated by BZN. Further, Ms Stevens assessed, and documented in the Final Review Outcome, that it was important that Simon be given an opportunity for therapeutic intervention and supports to heal. Moreover, the finding vindicated Simon’s human rights as a child.

6. In order to properly investigate the allegation and make an informed assessment about whether it could be substantiated, it was necessary that the Department obtain and consider relevant personal information about BZN. That included information about his past employment with both YLO and BYDC and the previous incidents of concern at BYDC. The BYDC information was treated confidentially and only used for the purpose of the investigation and assessment.

7. Whilst the Department had accessed personal information about BZN’s past child safety background as a young person, that seems to have been done simply as part of a general review of Departmental records. It was not an arbitrary or capricious interference with BZN’s privacy. Neither was Ms Stevens’ brief reference to that information in her Final Review Outcome. It is to be noted that Ms Stevens made plain in her report that she had no further information available to her other than what had been stated in the Standard of Care information, that she had not sought to read the material and therefore had not considered it in formulating the outcome of her review.

8. Similarly, whilst Ms Stevens referred to an apparently homophobic comment made by Simon’s father in her report, she noted that she placed no weight on BZN’s sexuality in conducting her review. The mere reference to this information does not constitute arbitrary interference with BZN’s privacy.

9. As to the procedural limb in s 58(1)(b), I am satisfied that Ms Stevens complied with her obligation to give proper consideration to human rights relevant to her decision. The relevant human rights were not just those of BZN. They also included those of Simon.

10. In my view, the contents of Ms Stevens’ file note and the Final Review Outcome show that Ms Stevens was aware of the need to balance the competing rights of BZN and Simon and that she undertook that exercise. She specifically referred to s 58 in her file note and stated that she had made every effort to afford human rights considerations to both parties. She made specific reference to the relevant human rights of each in her file note. She also noted at the commencement of the Final Review Outcome report that, as part of the review, consideration had been given to the provisions of the HRA in order to ensure the human rights of both BZN and Simon were properly protected and promoted.

11. Whilst Ms Stevens’ file note contained only a brief comment in respect of BZN’s s 25 human rights of privacy and reputation, that was not the extent of her consideration of those matters. She expressly noted that her file note was to be read together with the Final Review Outcome report. When read together, I consider that they show that Ms Stevens was aware that the relevant human rights of BZN were his privacy and reputation. Furthermore, in respect of BZN’s right of privacy, it is apparent that Ms Stevens was cognisant that this included not only BZN’s right to informational privacy but also his right to mental integrity.

12. The report made several references to the adverse impacts of the investigation and decision upon BZN’s mental health. In particular, at the conclusion of the report, Ms Stevens stated:

    [75].…I recognise this decision will also have a negative impact for [BZN].  Likewise, it will be important that [BZN] has access to a support team around him to move forwards and support his mental health functioning and his own therapeutic interventions to heal.     

13. Ms Stevens also further demonstrated her awareness of BZN’s informational privacy by noting in her Final Review Outcome report that the Department had determined that it was not for the Department to be disclosing confidential or private information received from BYDC to YLO.

    In my view, the contents of the file note and the Final Review Outcome show that Ms Stevens had a sufficient understanding in general terms of BZN’s rights of privacy and reputation and how her decision would interfere with those human rights. I am satisfied that the considerations and process she documented show she seriously turned her mind to the possible implications of the decision for BZN and properly identified and considered the countervailing interests of both BZN and Simon, having regard to the purpose and nature of the review she was undertaking.

Conclusion

1. Although I am satisfied that the Final Review Outcome is a reviewable decision for the purposes of Part 3 of the JRA, BZN has not established any of his grounds of review.

2. BZN has not established a basis for any of the relief sought by his application for a statutory order of review or alternatively by his application for review.

3. BZN has also not established a basis for a declaration of unlawfulness under s 59 of the HRA.

4. Accordingly, his application must be dismissed.

Orders

1. I make the following orders:

   1.The application filed 5 August 2022 is dismissed.

   2.The applicant is to pay the respondent’s costs on the standard basis.