Director-General, Department of Justice and Attorney-General v CMH

The appellant, the Director-General of the Department of Justice and Attorney-General, brought an appeal against a decision of the Tribunal, which had denied the respondent, CMH, a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The respondent had been charged with disqualifying offences, which included charges of indecent treatment of a child under 16 years and engaging in sexual activity with a child under 16 years. The Tribunal had determined that the respondent did not meet the eligibility criteria for a blue card because the disqualifying offences were relevant to the risk of harm to children.

The legal issues before the court were whether the Tribunal had applied an incorrect standard of proof, whether the Briginshaw principle had been applied incorrectly, whether the Tribunal had failed to take account of certain provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld), whether the Tribunal had erred in determining that no exceptional case existed, and whether the Tribunal had erred in relation to the question of proof. The court was also asked to consider whether the proper account had been taken of the charges that were dismissed.

The court found that the Tribunal had erred in its approach to the question of proof, as it had applied an incorrect standard of proof. The court held that the Briginshaw principle should have been applied, which requires the court to determine whether the evidence makes it more likely than not that the disqualifying offence was committed. The court also found that the Tribunal had failed to take account of certain provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld), which required the Tribunal to consider the nature and seriousness of the offence, the circumstances in which it was committed, and the age and vulnerability of the victim. The court further held that the Tribunal had erred in determining that no exceptional case existed, and that the proper account had not been taken of the charges that were dismissed.

The appeal was allowed, and the order made by the Tribunal on 23 January 2020 was set aside. The proceedings were remitted for rehearing by a differently constituted Tribunal at a date and time to be fixed. Publication was prohibited of any information that may identify the respondent, any member of his family, any witness, or any person named in the evidence.