Nam v Director-General, Department of Justice and Attorney-General
[2023] QCAT 343
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
NAM v Director-General, Department of Justice and Attorney-General [2023] QCAT 343
PARTIES: NAM (applicant)
V
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO/S:
CML 302-21
MATTER TYPE:
Childrens matters
DELIVERED ON:
1 September 2023
HEARING DATE:
9 February 2023
Written submissions 20 February 2023, 9 March 2023, and 23 March 2023
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
(a) the contents of a document or thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal; and
(c) any order made or reasons given by the Tribunal;
(d) is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, or any innocent third party to or referred to in this proceeding, save as is necessary for the parties to engage in and progress this proceeding.
2. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant’s blue card was cancelled for offences against the Criminal Code - where the applicant sought an internal review of the decision to cancel his blue card and issue him with a negative notice - where the applicant seeks to review a decision not to cancel his negative notice – where the applicant contends his criminal activity was between two adults in a private setting – where the applicant demonstrated an absence of insight into his criminal activity in terms of socially acceptable conduct
Criminal Code Act 1899 (Qld), s 227A, s 227B
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66
Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 23, s25, s 26, s 48
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 294, s 354
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
Re TAA [2006] QCST 11
SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
A. Sanders – Advocacy Officer for Blue Card Services
REASONS FOR DECISION
It is not uncommon in proceedings such as this for the Tribunal to give a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATAct) prohibiting the publication of material in such a proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant, any family member of the applicant, any child, or any non-party to the proceeding. When such is done, the reasons for decision are published in a de-identified format.
In this proceeding, no such direction has been made nor has any application been made for same. However, notwithstanding the absence of same, in my opinion such a direction should be made. The reason for this is the sensitive and personal nature of issues raised in this proceeding, particularly the circumstance and nature of the applicant’s offending conduct and the associated effect on the victim, a young lady. It also seemed to me necessary in order to ensure recognition of the rights afforded both the applicant and the victim of his offending conduct as it is enshrined in s 15 of the Human Rights Act 2019 (Qld) (the HRA). Accordingly I made an order to that effect.
Overview
On 25 October 2018, the applicant was issued with a working with children clearance under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). Such is generally referred to as a ‘Blue Card’.[1]
[1]The previously used terminology of ‘Blue Card’ has survived given its well-known reference, although now it is referred to in the WWCA as ‘working with children card’.
Subsequently, the respondent was notified of a change to the applicant’s police information namely that on 25 September 2020 he was charged with offences under the Criminal CodeAct 1899 (Qld) (CCA), the relevant offences having occurred in August 2018. These offences were under CCA s 227A(2) – Observations or recordings in breach of privacy, and CCA 227B(1) – Distribution of prohibited visual recordings. (the Offences)
This resulted in the respondent cancelling the positive notice that supported the Blue Card and issuing a negative notice on 9 November 2021. In response thereto, the applicant requested the respondent to reconsider the negative notice, asserting it was issued on wrong or incomplete information. The respondent then reassessed the applicant’s eligibility. The result of that reassessment was a decision made on 5 August 2021 to refuse to cancel the negative notice (the Decision).
On 3 September 2021, the applicant then applied to this Tribunal for a review of the Decision.
As discussed in these reasons, the applicant fails in that application. A statement made by the applicant in his final closing submissions, namely his written reply to the respondent’s written closing submissions, which I have extracted at paragraph [54] later in these reasons, demonstrates to me that:
(a)the applicant fails to understand the fundamental aspect of respect for privacy that a reasonable adult would expect to be afforded, and as such has failed to demonstrate that he could readily afford a child or young person such privacy;
(b)the applicant fails to understand the relevant factors that must be considered in determining whether his case in an exceptional one within the meaning of the WWCA; and
(c)in the premise of these two factors, the applicant does not possess the requisite degree of insight into his offending conduct such that he presents as a person in whom the care of children or young people in an employment or business circumstance should be entrusted.
It is not a matter of whether his offending conduct occurred only between adults in a private setting as part of a private relationship as compared to conduct in a work setting involving persons, in particular children or young people, in his care. The relevant matter is whether he has insight into this offending conduct such that he possesses the ability to perceive clearly or deeply the inner nature of things, or a penetrating understanding of a complex situation or problem.[2]
[2]These are two dictionary definitions of the word ‘insight’ – see Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London – 1989.
In my opinion, because of his failures as I have just mentioned, he has done neither. As such, I formed the view it would not be in the best interests of children for the applicant to be issued a Blue Card. I was therefore satisfied that the applicant’s case is ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly the Decision was confirmed.
The Nature of this Review Proceeding
This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, more particularly s 354 therein, read together with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation and the Human Rights Act 2019 (Qld) (the HRA), and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[3]
[3]QCAT Act s 19.
The purpose of this review is to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[4] It is not necessary for me to consider whether the decision-maker made an error in making the Decision, rather the focus is on the cogency of the applicant’s case as presented in this hearing.
[4]QCAT Act s 20.
At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[5]
[5]QCAT Act s 24.
Background
At the time of the Offences, the applicant was 34 years of age.
As recorded in the information received by the respondent from the Queensland Police Service on 28 September 2020 pursuant to the WWCA:[6]
(a)the ‘Brief Particulars’ of the Offences was:
[The applicant] allegedly unlawfully recorded the genital region of the complainant and distributed the visual recording without her consent.
(b)The complainant, aged 20, was a female acquaintance of the applicant.
[6]Ex 1 pg BCS-17.
On 11 February 2021, the applicant was convicted in the Magistrates Court of Cairns on both Offences. Whilst no conviction was recorded, he was placed on a two year probation and ordered to perform 120 hours of community service within 12 months.[7] Ultimately this led to the Decision now the subject of the applicant’s application to this Tribunal.
[7]Ex 1 pg’s BCS-14 and 15, see also the Transcript of the sentencing hearing at Ex 1 pg’s BCS 54 to 61. A ‘rectification order’ was also made to be satisfied within one day, such being an order to ensure that all such images and recordings were deleted from his devices. There is nothing before me to suggest that this was not complied with.
In his ‘letter’ to this Tribunal, which I read as his ‘personal history/life story’ submission within this proceeding,[8] the applicant expressed his dream job as becoming a nurse, asserting that he was previously studying Bachelor of Nursing at University but that he had to curtail that course due to the negative notice issued by the respondent. He also described himself in the following way:
I am not perfect I know this much to be true; I am a decent human being who desires the best for everyone. I have never stood in the way of anyone’s progress. I have never caused harm to anyone for I live by this simple rule. Do unto others as I would like them to do unto me. …
[8]Ex 3. Such is as filed 12 November 2021 in satisfaction of Order 1 of the Directions of 7 September 2021 extended by Directions of 1 November 2021.
His application was heard by me on 9 February 2023. Following that, in accordance with directions I gave at the conclusion of the hearing, written closing submissions were made, firstly by the applicant on 20 February 2023, then by the respondent on 9 March 2023, and finally by the applicant in reply on 23 March 2023.[9]
[9]In these reasons I will refer to these sets of submissions as follows - 20 February 2023 (ACS), 9 March 2023 (RCS), and 23 March 2023 (ACSR).
Regrettably, due to a number of issues arising unexpectedly before me since then, my consideration of this matter was substantially delayed such that it has taken until now to reach a decision and provide these reasons. To some degree this has been a result of dealing with a backlog for me that arose from the Covid pandemic.
The Issue
The issue in this proceeding is whether the applicant’s conduct is such as to lead to the conclusion that his case falls within the category of an ‘exceptional case’ so as to deny the applicant a Blue Card. The applicant argued that it was not. The respondent’s representative submitted it was.
In order to resolve that contest, consideration of WWCA s226(2) is necessary. It provides for a mandatory list of factors to be considered in deciding whether it was appropriate to issue a negative notice. In doing so, the following must not be overlooked:
(a)The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[10]
(b)The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing;[11] and
(c)The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[12] such being a principle that I must apply in this review.
[10]WWCA s 5.
[11]WWCA s 6.
[12]As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”
It is this criteria that must be considered in terms of a consideration of fact and degree from which the degree of insight held by the applicant can be determined, but doing so whilst always having regard to the interests of children.
The applicant did not present his case in any way focussed on this criteria and the issue of fact and degree, rather he argued that I should focus on the risk factors and protective factors as he identified and discussed them in his written closing submissions, seemingly suggesting that a balancing exercise should be undertaken.[13]
[13]ACS para’s 12 to 14. See also the second last paragraph of his reply submissions ACSR pg 6 wherein he expressly speaks in terms of presenting to this Tribunal “several protective factors that outweigh the risk factors arising from this solitary incident …”
I do not agree with the applicant. In my opinion, when considering the mandatory criteria, the outcome of this proceeding turns solely on the issue of the applicant’s insight, or more accurately absence of insight, into his offending conduct. It is not whether he has taken steps to implement protective mechanisms to off-set risk factors, but rather that he possesses the requisite degree of insight so as to off-set the risk factors to the extent they might remain a factor should he be placed in a position of trust to care for children and young people in an employment or business situation.
The Relevant Law
Working with Children (Risk Management and Screening Act) 2000 (Qld)
The Decision in issue in this proceeding is a refusal to cancel a negative notice. As such, the pathway through the WWCA starts at s 354 therein because such is a reviewable decision for the purposes of that section. The applicant, not being a disqualified person under the WWCA, was entitled to apply to this Tribunal under that section for a review of the Decision. As noted earlier herein, once that application was made this Tribunal stood in the shoes of the decision maker. That means this Tribunal was asked to decide whether it is appropriate to cancel the applicant’s negative notice.
That invoked the operation of s 294 of the WWCA. The matter to be decided as if it were a decision about a working with children check application. That leads to s 221 of the WWCA which sets out that which the decision-maker is required to consider in determining the application for a Blue Card, namely for present purposes in the circumstances of a conviction or charge being part of an applicant’s history it requires a consideration of that contained in s 226(2) to which I have referred earlier herein.
Given that the applicant has been convicted,[14] but not of a serious offence, under WWCA s 221(1)(b) the starting position is that the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.[15] If that starting position stood without exception, then it would be in order for me to set aside the Decision. It is that exception which looms large in this proceeding. It is that the starting position is subject to the exception, such being that if I am satisfied the applicant’s case is one in which it would not be in the best interests of children for the applicant to be issued with such a clearance, then a negative notice must be issued, and in turn his negative notice should not be cancelled, thus it would be in order for me to confirm the Decision.[16]
[14]No conviction was recorded by the Court in terms of the applicant’s offending, however for the purposes of the WWCA the outcome of his Court proceeding is referred to as a ‘conviction’ the meaning of which is given in Schedule 7 of the WWCA as “a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.”
[15]See WWCA s 221(2) and s 221(3)(a)(iii). Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.
[16]WWCA s 221(2).
That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to be issued with a Blue Card.[17]
[17]Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].
But the WWCA does not define an exceptional case. It thus creates a degree of complexities in matters such as this application. In order to deal with that complexity, it requires consideration of fact and degree with such to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 in reference to the predecessor legislation to the WWCA:
It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.
There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that:
‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion’.
We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.[18]
[18]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.
Neither party bears an onus in determining whether an ‘exceptional case’ exists.[19] It is a matter of discretion ultimately afforded me as the effective decision maker, such that I am required to decide the question of whether an exceptional case exists on the balance of probabilities.[20]
[19]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[20]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34].
But in saying that, contrary to what appeared to me to be the premise of the applicant’s written closing submissions and the course he was urging me to take in reaching a decision in his favour, in undertaking that task it was not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case was an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303:
The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.
The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.
In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.
The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.
What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[21]
[21]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.
The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[22] Accordingly what follows later in these reasons is my consideration of each of those particular criteria.
[22]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
Human Rights Act 2019 (Qld)
There is also the application of the Human Rights Act 2019 (Qld) (HRA) that must be considered.[23] The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only so far as is reasonable and justifiable.[24] That being said, all statutory provisions, so far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[25] Such includes the WWCA.
[23]I pause here to observe that the decision maker properly considered the HRA in reaching the Decision (see Ex 1 BCS 8), and that the respondent’s representative in the hearing appropriately, albeit briefly, referred to the HRA in the respondent’s written closing submissions (see para’s 77 to 79) but that the applicant did not raise any issue in his closing submissions or at any other time during the hearing as to the applicant’s human rights or the application of the HRA.
[24]HRA s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.
[25]Ibid s 48(1) & (2).
In my opinion there are a number of human rights relevant in this proceeding, such which include the applicant’s right to recognition and equality before the law, the right to freedom of expression, the right to take part in public life, and the right to privacy and reputation.[26]
[26]Ibid s 15, s 21, s 23, and s25. I pause here to note that the right to privacy is protected by the de-identification of these reasons.
But there is a competing right that cannot be overlooked in a proceeding such as this, and one that permissibly is considered in limiting the applicant’s rights in the circumstances of him seeking to be the holder of a Blue Card. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[27] In that regard, in my opinion a decision that the applicant’s case is an exceptional case, such which might be said to infringe the applicant’s rights to which I have just referred, will nevertheless be compatible with human rights. This is because, despite any limit the decision places on the applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA, inter alia because it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people. Furthermore, any limitation on the applicant’s human rights remain consistent with the object, purpose and principle of the WWC Act, being that the welfare and best interests of children are paramount.
[27]Ibid s 26.
As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable relevant factors include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.
That being so, it must be recalled that the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right pursuant to the HRA, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That would include the making of a finding that the circumstance the applicant finds himself in is an exceptional case such as to deny him an entitlement to a Blue Card under the WWCA. Such is not inconsistent with s13 of the HRA.
The Evidence & Submissions
This proceeding was not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. My decision turned on the material presented before me at the hearing, both documentary and oral, and the written closing submissions which followed.
The respondent was not participating in an adversarial role advocating for the correctness of the decision by her decision-maker. Her role was to use her best endeavours to help me in making my decision on the review.[28] As she was required to do,[29] the respondent provided relevant material to this Tribunal, namely the Reasons for the Decision and other documents considered relevant.[30] Save only for the provision of the written closing submissions the respondent’s representative before me did not seek leave to produce any further material at the hearing, nor did her representative call any witnesses.
[28]QCAT Act s 21(1).
[29]QCAT Act s 21(2).
[30]Ex 1 – BCS-1 to BCS-61.
The applicant provided a written statement of evidence and a letter to this Tribunal , as noted earlier being a document I have referred to as his ‘Life Story’, affirming it as his evidence in chief.[31] The applicant also tendered, without objection, statements / references from four other persons all who were called as witnesses and presented for cross-examination.[32]
[31]Ex 3 – Applicant’s Life Story; Ex 4 – Applicant’s Statement of Evidence.
[32]W 1 (Ex 2) presented in person; W 2 (Ex 5 and Ex 6), W 3 (Ex 7), and W 4 (Ex 8), all of whom were presented via phone.
After the close of the evidence directions were given for the provision of writing closing submissions, such being received in accordance with the timetable set.[33]
[33]See Footnote 9 herein.
In my opinion it is not necessary for me to set out the evidence or the submissions in detail in these reasons, it being sufficient to address the relevant parts thereof later herein where I discuss it together with the application of the relevant law. But, before doing so, there are some fundamental aspects of it which I consider appropriate to set out here, such in effect setting the premise upon which the subject matters of the application were presented before me.
For the applicant, when under cross-examination he stated he understood his Blue Card had been cancelled because of the Offences, and more particularly because he did not obtain consent from the young lady and so was considered not to have had respect for personal boundaries, he also acknowledged that at the time he applied to the respondent to have his negative notice cancelled he had not developed an understanding of these issues. However, as I understood the presentation of his case before me he sought to demonstrate that he had since developed the requisite level of understanding and thus had the requisite degree of insight.
For the respondent, it was said that is too early to say with certainty that the applicant had developed the requisite insight,[34] because the nature of his offending raises concerns about his ability to respect boundaries and provide a safe and secure environment for others and that there was little evidence before the Tribunal to suggest that he has implemented practical strategies to address the concerns that gave rise to the negative notice being issued.[35]
[34]This was a statement made by the respondent’s representative in opening.
[35]RCS para 82.
My consideration of the issue in this proceeding thus proceeded on that premise of those competing positions.
Discussion on the Evidence, Submissions, and the Relevant Law
The applicant’s evidence
The applicant’s evidence in chief was of little assistance to me. His ‘Life Story’ did not provide me with any meaningful information from which I could discern a basis for the offending behaviour or the manner in which he has since developed insight to it. As to his ‘statement of evidence’, it also was of limited assistance, at its highest it informed me that from the applicant’s perspective his view of his offending conduct was that it was a lapse of judgment on his behalf and that he should have sought the young lady’s consent to make the recording, such which he says he has now learned having “familiarized” himself with the CCA, asserting that a knowledge of that legislation “is necessary in order to understand the victim’s rights in this situation and prevent a similar situation from occurring in the future.” [36]
[36]Ex 4 para 3
That statement alone demonstrates to me that the applicant has not developed the requisite level of insight, at least in terms of understanding the fact that personal boundaries and privacy must be identified and respected. To the extent he asserts he has ‘familiarized’ himself with the CCA, it would be at best an understanding of the relevant provision under which he was convicted and the associated provision of s 227A (2).
For ease of reference I extract s 227A in full here:[37]
[37]For brevity I have excluded the ‘examples’ given in the legislation, subsection (3) being the definitions clause for that section, and references to the maximum penalty applicable.
227A Observations or recordings in breach of privacy
(1) A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—
(a) without the other person’s consent; and
(b) when the other person—
(i) is in a private place; or
(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;
commits a misdemeanour.
(2) A person who observes or visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region—
(a) without the other person’s consent; and
(b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region;
commits a misdemeanour.
The cross-examination of the applicant was extensive. Nothing came from it which showed me the applicant had developed insight, nor that his position had developed any further from that which it was when he prepared his statement to which I have just referred. The concluding questions from the respondent’s representative and then me was telling. The applicant was asked to give some clarification to these points made in his statement. Ultimately, all he could say he that he has now learned consent is required, such having been as a consequence of being charged and convicted, from reading the CCA, and from discussions he had had with his current partner and his psychologist.
His explanation informs me that all he has since learned is that if he wishes to engage in similar conduct he must first obtain the consent of the person. It does not inform me that he understands why he was required to have afforded the young lady privacy, other than to the extent he has since learned it is unlawful to have not first obtained her consent.
The applicant’s witnesses’ evidence
As I noted earlier, the applicant presented four persons as witnesses other than himself. A short statement was tendered as evidence in chief for each, and each were presented for cross-examination. None of that evidence was of any assistance to me.
The evidence of W1, the applicant’s then partner with whom he had been living for approximately one year, was very general in nature. Whilst I accept from her evidence the applicant was remorseful for his conduct and now understand the legal reasons why he was charged for such conduct, she was unable to advance any evidence of substance that showed me the applicant had developed insight into his offending conduct in terms of the socially unacceptable nature of it and the need for him to afford a person privacy.
The evidence of W2, a person who had known the applicant for some time in a community setting was similarly unhelpful. The witness’s knowledge of the applicant’s offending conduct was superficial at best, such being demonstrated when the witness was asked to describe the nature of that conduct with the witness description of such not matching the circumstances, leaving me with the impression that at no time had the witness been informed of the detail and substance of the offending conduct. Nor did the witness have any knowledge of the reasons why the applicant’s request to have his negative notice cancelled was declined. Accordingly the comments the witness made about the applicant did not provide any basis upon which I could gauge and determine the extent to which the applicant had developed insight.
Finally, the evidence of W3 and W4, both persons who stated they knew the applicant in a work setting, was similarly unhelpful. Once again they each had only a superficial knowledge of the offending conduct, and were unable to distil any information that informed me of the extent to which the applicant had developed a relevant degree of insight into that conduct in the capacity of a person who desired to be authorised to care for children as the holder of a Blue Card.
The applicant’s submissions
Whilst the applicant presented as a person who understood the nature of his past conduct as being unlawful, having listened to and observed him during the hearing and read his submissions and statements to this Tribunal he did not present to me as a person who had insight into the effect of his past conduct, nor the need for respect of a person’s privacy in all circumstances. In my opinion such is well demonstrated by the following statement as it appears in his final written closing submissions in reply to those of the respondent:[38]
I would like to remind the respondent and tribunal that the offence that occurred happened between two adults in a private setting. This is not a scenario that happened at work, or towards a client in my care. We were in a relationship at that time, albeit casual, and had frequent sexual encounters (as per the victim’s statement to police). This needs to be taken into consideration when talking about the risk of recidivism. This risk of recidivism has been stretched to include an incident that happened in my private life, within my private relationship, and not based at all on my work history or conduct towards my clients or any minor in my care.
[38]Applicant’s Reply Written Closing submissions filed 23 March 2023 – First paragraph therein in response to the respondent’s paragraph 39. Emphasis by way of italicized words is as it appears in the original.
On reading this submission, and noting the emphasis placed on certain words, it left me with the impression this was the extent of the insight he had developed from ‘familiarizing’ himself with the CCA. It seemed to me that the emphasis he placed on ‘adult’ and ‘private’ was as a result of his understanding of the words of s 227A, particularly subsection (1) thereof, in terms of it being a reference to an adult and a private place, in conjunction with his assertion that he now understands the need to have first obtained consent. It does not in any way demonstrate that he has developed an understanding of the need for afforded a person privacy. Moreover, in the circumstances of which this submission was proffered it demonstrates to me that he has not developed that understanding.
In his submissions, whilst he referred to the evidence from his witnesses, he also referred to statements made by a psychologist, and another person whom he described as his ‘long standing landlord’.[39] Neither of these persons were presented for cross-examination and accordingly the extent to which their knowledge and understanding of the relevant facts and circumstances could not be tested such that I could gain from their statements information that could have assisted me in identifying the extent to which the applicant possessed insight into his offending conduct. Notwithstanding that, I have read these statements and the submissions the applicant makes about them.[40] The submissions merely seek to restate what is already contained in those statements without in any way indicating how they explain he has developed the requisite degree of insight, nor do the statements themselves give any such explanation. The statements and the related submissions carry no weight, and I did not give them any further consideration in reaching my decision in this proceeding.
[39]These appear in Ex 4 (being the applicant’s statement of evidence0 as Annexures 3, 9 and 10 thereto.
[40]ACS para’s 4 and 10.
The respondent’s submissions
As noted earlier, notwithstanding her representative’s role was to assist me in reaching the correct and preferable decision and not to advocate for the correctness of that decision, in that capacity the respondent was entitled to lead evidence for my consideration beyond merely the applicant’s evidence. She did so in terms of the documentary evidence being Reasons for the Decision and associated material. She did not present any evidence from witnesses.
The respondent’s material before me was thus contained solely in that documentation and the written closing submissions filed subsequent to the hearing. In contrast to the relative brevity of the applicant’s written submissions, the respondents’ written closing submissions were extensive which in my opinion can readily be summed up by reference to the following three short submissions extracted therefrom:
… the Applicant’s behaviour demonstrates a complete disregard for the privacy of others and an inability to respect boundaries and provide a safe and secure environment for others. The Applicant’s offending was opportunistic and perpetrated against a victim who was unsuspecting and unaware the Applicant was recording her during sexual intercourse.[41]
After the initial offence, the victim, by words and conduct, made it clear to the Applicant that she did not consent to the Applicant retaining the content, and despite this, the Applicant retained the content, and proceeded to distribute said content to the victim two (2) days later. Accordingly, the Respondent contends the Applicant’s conduct was not a momentary lapse of judgment, rather, he was a man of mature age, who made three (3) distinct decisions which prioritised his own interests over the welfare and best interests of the victim. At the hearing the Applicant maintained that he did not prioritise his own wants and needs over the victim, stating “to be honest, no, because I don’t really watch porn, I was doing it for her in mind, I was doing it for her to share with her … I wanted to surprise here.”. This was one instance, or may during his oral testimony, in which the Applicant attempted to justify or rationalise his conduct and an attempt to portray that his criminal behaviour was really for the benefit of the victim rather than himself.[42]
The Applicant’s behaviour in August 2020, which resulted in convictions for the offences of observations or recordings in breach of privacy and distribute prohibited visual recordings was opportunistic, indecent, and exploitative. Behaviour of this nature is wholly inconsistent with the behaviour required of a person entrusted to care for the safety and wellbeing of children in activities regulated by the WWC Act.[43]
[41]RCS para 45.
[42]RCS para 46. As I read this submission, the reference to ‘content’ was to the video recording made by the applicant, and the reference to a ‘lapse of judgment’ is in response to the applicant’s statement that his conduct was a lapse of judgment, as I have noted it in paragraph [45] herein.
[43]RCS para 50.
The Relevant Criteria
In terms of the evidence and submissions before me, it is necessary for me to discuss the relevant criteria under s226 of the WWCA. I now do so, but pause here to make these three short observations:
(a)The applicant did not make any submissions to me in his written closing material specifically addressing these criteria, and only addressed them superficially in his reply submissions when responding to specific paragraphs of the respondent’s written submissions;
(b)As a preamble to those responses, in replying directly to the respondent’s submission noting the mandatory requirement for me to have regard to this criteria,[44] the applicant made the submission I have extracted earlier in these reasons at paragraph [54] thus seemingly seeking to have me diminish the relevance of this criteria in favour of his argument that the relevant conduct was between two adults in a private setting.
(c)The respondent’s representative did present detailed submissions on this criteria within her written closing submissions which I have read and considered in full although I only refer to a minimal part of it in these reasons.
Whether the Offence is a conviction or a charge[45]
[44]RCS para 39.
[45]WWCA s 226(2)(a)(i).
As I have noted earlier in these reasons in a footnote to paragraph [26] the Offences are both convictions for the purposes of the WWCA although neither amounted to a conviction being recorded by the Court. Notwithstanding that the Offences are the entirety of the applicant’s recorded criminal history, such is not a discounting factor given that his offending conduct did amount to a conviction and as such it remains a relevant factor in my consideration of the matter in issue in this proceeding, namely whether his case is an exceptional one. In my opinion, the fact that it went beyond merely a charge weighs in favour of his case being an exceptional one.
Whether the Offence is a serious offence, and whether it is a disqualifying offence[46]
[46]WWCA s 226(2)(a)(ii).
The Offences are neither a serious nor a disqualifying offence under the WWCA, Notwithstanding that, the Offences remain relevant in determining the eligibility of the applicant to work with children in regulated employment, not only for the same reasons I have just given under the last heading but such being the intention of parliament in enacting this provision within the legislation.[47]
When the Offence was committed[48]
[47]Consider the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.
[48]WWCA s 226(2)(a)(iii).
Unlike the circumstances in many of these types of applications that come before this Tribunal where an applicant’s offending conduct is of an historical age, thus in some instances diminishing the weight to be attributed to it when considering the question of an exceptional case, in this instance the Offences were relatively very recent. They were committed only a little over twelve months before the applicant made his application to this Tribunal.
The passage of time since the offending conduct was engaged in is relevant because it is during this period of time that the applicant should, if he is going to, gain the requisite degree of insight into his offending behaviour. The longer the passage of time, the greater should be the prospect that the applicant would have, and should have, gained that insight.
As I listened to the applicant during the hearing and then read his written submissions, as I have mentioned elsewhere in these reasons, I was unable to find evidence of him having gained that insight within the short period of time nor that extended up to and including the hearing and beyond to the time of his provision of his final written reply submissions. The manner in which he described himself in his ‘Life Story’ as I noted it in paragraph [16] herein, his view of his offending conduct as I have noted it in paragraph [45] herein, and the submission he made as I extracted it in paragraph [54] herein, all support a contrary position. It seems to me that, whilst he now realises that the conduct was unlawful, and asserts to now realising that he should have requested and obtained the young lady’s consent before engaging in such conduct, he seemingly still holds a view that the conduct was permissible in the circumstances that it occurred between two adults in a private setting.
Put simply, on the basis of that material alone in the absence of any submission from the respondent, together with my observations of, and listening to, him during the hearing, it led me to only one conclusion – in this short passage of time the applicant has not developed the requisite degree of insight into the nature and effect of his offending conduct. I was left with the very clear impression that he still considers his conduct not to have been inappropriate or unacceptable in a private setting, regardless of the fact that he now knows it to have been unlawful.
The nature of the Offence and its relevance to employment, or carrying on a business, that involves or may involve children[49]
[49]WWCA s 226(2)(a)(iv).
As I often hear the argument from applicants in these types of matters, the offending conduct did not involve children, thereby seemingly seeking to distant it from being relative in their case for holding a Blue Card. The applicant before me in this proceeding seemingly seeks to do the same. His closing submissions which I extract at paragraph [54] herein demonstrates this.
The nature of the applicant’s offending is disclosed in the various documents that have been filed in this proceeding, with the respondent’s representative properly and appropriately highlighting it her written closing submissions.[50] The first two of the respondent’s submissions which I have extracted at paragraph [58] herein are presented under this heading. Therein the respondent continues and makes this submission:[51]
The Applicant’s offending raises questions about his ability to exercise restraint, self-control and judge appropriate behaviour. Such skills are particularly important when working in areas of regulated employment as they contribute to the creation of safe and protective environments for children. Children have a right to be protected from indecent and exploitative conduct and to have modelled for them appropriate ways of acting protectively towards others.
[50]RCS para’s 43 to 47.
[51]RCS para 47(a).
In response to that submission, the applicant made this submission in his closing reply:[52]
I remind the respondent and tribunal that, prior to this incident, I worked in areas of regulated employment such as disability support work for many years. I have never been the subject of a complaint or any kind of behaviour that is the result of an inability to exercise restraint or self-control or misjudging of what is appropriate behaviour. My current full-time job that I have held since August 2021, though not directly involving children, also requires me to exercise restraint, and self-control, and judge what is appropriate behaviour.
[52]ACSR para in reference to 47(a).
Whilst these factual assertions may be correct, although I make no finding in that regard in the absence of any other evidence on that point, in my opinion it is insufficient to persuade me to accept them is enough in terms of concluding this proceeding in the applicant’s favour. Even though he may never have been the subject of a complaint in terms of behaviour of the kind described, and even though he may hold employment currently that requires him to engage in exercising restraint and self-control, that is not evidence that he is able to exercise restraint, self-control, and judge appropriate behaviour. The applicant did not present any evidence in the hearing to support such an argument and accordingly his submission in that regard remains entirely bare and of no weight. But moreover, the evidence and the submissions he did present, suggest that at the very least he is presently unable to judge appropriate behaviour. It is readily apparent he was unable to do so at the time of the Offences, and his submissions before me, particularly the closing submission to which I have already referred to on more than one occasions showed me he is still unable to do so, at least to the extent of understanding when such behaviour fails to afford a person their privacy, even in a private setting.
I agree with the respondent’s submission, and accept it as being correct. The applicant’s offending is relevant to, and reflects adversely on, an evaluation of his eligibility to work with children and young people. In my opinion there was sufficient material before me to raise questions as to whether, in an employment or business situation, given his demonstrated inability to understand judging of appropriate behaviour, the applicant could act properly in the best interests of children .
In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order for the Offence … the court’s reasons for its decision.[53]
[53]WWCA s 226(2)(a)(v).
In sentencing the applicant, the learned Magistrate made these remarks:[54]
As I said prior, it is what I consider a serious breach of trust and privacy to a young victim who was only 20 years of age, but what I have also taken into account in relation to the circumstances is the distribution did not go beyond the victim herself. It didn’t identify her, I’m told, in the images. It was not done out of malice, as I said, and I’m told that the images have since been deleted. So what I consider those factors and the fact that a term of imprisonment for this type of offence is a sentencing option of last resort, and I do consider on this occasion that community-based orders are still within range because although it’s serious in nature it’s the circumstances in which it occurred, and the likelihood of you reoffending I consider to be low.
… When the court has to decide whether a conviction should be recorded it’s when considering the nature of the offence, whether it’s in the public interest that the public should be made aware of that conviction and balancing that against the impact that’s going to have on your future.
And because yours was done in a situation where I don’t think there was malice intended, there wasn’t anything particularly sinister or sexually devious about this offending, I do accept it was perhaps very misguided judgment. … so I’ve applied discretion on this occasion not to record the conviction.
[54]Ex 1 BCS58 to BCS 59.
From these few remarks, as I have extracted them from a much larger and longer transcript of the sentencing hearing, it is readily apparent that the learned Magistrate was satisfied that there was a low risk of the applicant reoffending, and afforded the applicant a degree of latitude due to the circumstances of the offending conduct and not being premised on some basis intentionally adverse to the young lady in question. It seems to me that it was for that reason the sentence was as it was given and not something more serious.
But that does not mean such is enough to persuade me that the applicant should be entitled to a Blue Card. Whilst the remorse he seemingly showed the Court was sufficient to satisfy the Court in regard to the lower end of the sentencing range being permissible and for the sentencing Magistrate to have made these remarks, it does not equate to a basis upon I can readily find the applicant also holds the requisite level of insight. The issue here is not one of the circumstances in which the offending occurred, nor of a risk of reoffending, nor one of malice, nor of the conduct being sinister or sexually devious, all of which were factors considered by the learned Magistrate. Rather it is whether the applicant understands the fact of his offending conduct is evidence of him having failed to recognise the need for affording the young lady in question the privacy she should have expected and been afforded, as distinct to his understanding that this fact is evidence of him acting unlawfully. That is not something factored into the assessment by the learned Magistrate, nor should her Honour have done so. For the purposes of the Court proceeding, the fact of the offending conduct was nothing more than a fact of his failure to have afforded the young lady her privacy and as such simply being an element of the offence. The Court was not required to consider the extent to which the applicant had insight into that offending conduct.
For this reason, the sentencing remarks made by the learned Magistrate do not lend any weight in favour of the applicant in this proceeding.
Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the applicant[55]
[55]WWCA s 226(2)(f). I need not have regard to ss 226(2) (c) to (e) as they are not relevant.
In my opinion it is within this criterion that the issue of insight more fully falls, particular in terms of whether the requisite degree of insight has been shown to exist to the extent it is relevant to assessing the reduction of risk demonstrated by the offending conduct. That being said, whilst I have already discussed the other criteria in terms of the issue of insight being shown, here I discuss the issue of insight more fulsomely because as I have already indicated earlier in these reasons it is the applicant’s possession of genuine insight which is the critical factor in the consideration of his application to once again effectively obtain a Blue Card.
As it was put by the former Children’s Services Tribunal in Re TAA: [56]
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.
[56]Re TAA [2006] QCST 11, [97] recently cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].
There are however other cases which highlight the importance of insight in assessing whether the risks associated with an applicant’s past conduct have been reduced.
The first is found in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) wherein the Appeal Tribunal considered the issue and expressed this observation: [57]
Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences ….
Ms Lister continues to minimize and justify her conduct …
These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced.
[57]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87,[53] to [55].
I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by the applicant, stating: [58]
Notwithstanding that this all occurred now many years ago, in the circumstances of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable.
[58]SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392,[68].
Whilst these comments were addressed to circumstances where there had been a lengthy passage of time between the offending conduct and the application before the Tribunal, such which might suggest they are distinguishable from the applicant’s case given the short passage of time as I discussed it earlier, in my opinion these comments are equally applicable to the circumstances of the applicant now before me. This is because his case, as it was presented before me, appears to be premised entirely on arguments that suggest he considers his offending conduct to be entirely unrelated to his desire to hold a Blue Card and thus he should be permitted to work with children, such being demonstrated by the submissions I extracted in paragraph [54] herein where he speaks of conduct between adults in a private setting.
He did not present his case in any way showing his understanding of the effect his conduct had on the young lady in terms of an effective invasion of her privacy or a possession of the requisite degree of genuine insight. Concerningly, notwithstanding the applicant having been charged and subsequently sentenced in the Court over his offending conduct, and then effectively be found twice by the respondent to be ineligible for a Blue Card due to the offending conduct, then being the subject of the hearing and cross-examination on the relevant issues, and then having had the benefit of being able to read and presumably reach an understanding on the nature and content of the respondent’s written closing submissions, on my reading of his written closing reply submissions it seemed to me that he still considered his conduct to be to some degree excusable, albeit accepting it was unlawful, given it was, as he expressed it, being conduct occurring between two adults in a private setting. This does not show he possessed insight, recalling that which I referred to in paragraph [8] in these reasons, namely two meanings of insight in the manner in which it applies in this proceeding. Regardless of which meaning is given to ‘insight’, the applicant has not demonstrated it in the evidence and submissions presented before me in a positive manner. To the contrary, on the basis of the material was before me, I was readily able to find that the applicant has not demonstrated possession of insight in terms of what is to be expected of a person being screened for the purposes of being employed or carrying on a business where the interests and wellbeing of children and young people are to be protected.[59] Something more than merely remorse for the past offending behaviour is required, which at best is all the applicant has shown in the presentation of his case before me.
[59]In this regard it is apposite to note the ‘Object’ of the WWCA as it is set out in s 5 therein.
In my opinion the respondent’s representative has correctly expressed the overall position the applicant is in, namely:[60]
54. The Respondent observes that, despite the Applicant’s mature age of 37 years, he has not turned his mind to the feature of his offending which is perhaps most concerning, namely that after the victim conveyed she did not consent to either act, he retained the content and then distributed the content. The Applicant’s failure to recognise these features suggests he has not yet reached an appropriate level of understanding into the seriousness of his actions. …
55. The Respondent contends that the evidence in this matter, when considered in its entirety, demonstrates the Applicant lacks maturity and an understanding as to who a person should conduct themselves in society with respect to others. …
64. The Applicant’s evidence, as a whole, reflects he does not possess the requisite degree of insight as to the seriousness of his offending behaviour, or that he has taken steps to show that the circumstances which informed his conduct have been remedied, to the extent that would ensure the welfare and best interests of a child would be protected should the Applicant find himself in a position of caring for children as a holder of a blue card.
[60]RCS para’s as noted.
As to the last of those submissions, the applicant’s direct response was as follows:[61]
I respectfully disagree. I believe I have taken steps to remedy the circumstances that influenced my behaviour at the time. These have already been outlined in previous submissions. This is a work-in-progress and I welcome the respondent or court to provide me with such ‘steps’ or resources that I could benefit from. Just like my community service hours, I would see that as a learning opportunity.
[61]ACSR – para in response to 64.
Whilst it may be the case that the applicant has taken some steps to remedy the relevant circumstances of which he speaks, clearly one of them being to have obtained, read, and endeavoured to understand the CCA in terms of the issue of consent and now knowing that his conduct amounted to an unlawful act, in my opinion the evidence he has presented only scratches the surface and is substantially against him in this regard. He did not show me, other than to the extent he now knows his conduct to have been unlawful, that he understands that he should have afforded the young lady privacy, even though they were together in a private place and engaging in a private act. It shows an absence of his development of the requisite degree of insight into his offending behaviour in terms of his desire to hold a Blue Card, and at best shows his development of insight is, adopting in his own words, a ‘work-in-progress’.
I do not accept the applicant’s submission and prefer that of the respondent’s representative as being the correct one. I respectfully adopt it as part of my reasons.
Conclusion
What is relevant here is the absence of evidence that shows me the applicant possesses the requisite degree of insight as to his offending behaviour. It left me with the conclusion that the applicant would simply be unsuitable as a holder of a Blue Card, such being a person who must be entrusted to ensure the welfare and best interests of a child would be protected should the applicant find himself in a position of caring for children in an employment of business setting. In the absence any proper demonstration of the requisite degree of insight, I was left with the conclusion that the applicant might allow a child to engage in conduct which is anti-social, at least to the extent to which there was a failure to afford a person privacy, without the applicant knowing it not to be so. Until such time as the applicant can demonstrate the requisite degree of genuine insight as to the difference, in my opinion it is entirely inappropriate for him to hold a Blue Card.
Having considered the evidence, the submissions, and the relevant law, overall the material that was before me shows the absence of the applicant’s insight, such reflecting adversely on his ability to judge appropriate behaviour and present as a positive role model for children. Accordingly, I found the applicant’s case to be an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a blue card.
In my opinion the applicant’s circumstance does not conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct. There will be an order to that effect.
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