REC v Director-General, Department of Justice and Attorney-General
[2024] QCAT 508
•26 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
REC v Director-General, Department of Justice and Attorney-General [2024] QCAT 508
PARTIES:
REC (applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO/S:
CML399-23
MATTER TYPE:
Childrens matters
DELIVERED ON:
26 November 2024
HEARING DATE:
11 October 2024
HEARD AT:
Southport
DECISION OF:
Member Hemingway
ORDERS:
1. That the decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of any statements, documents or other materials relating to these proceedings is prohibited to the extent that such could identify or lead to the identification of the Applicant, any child, witness or third party in these proceedings.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where Applicant seeks a review of decision to issue a negative notice and cancellation of working with children clearance – where change in criminal history without any serious or disqualifying offences – where offences domestic violence protection order and breaches of the order – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice.
Working with Children (Risk Management and Screening) Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Human Rights Act 2019 (Qld)
Director-General, Department of Justice and Attorney-General v Gavin Anthony Dickson [2024] QCATA 38
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171
Briginshaw v Briginshaw (1938) 60 CLR 336SSJ v Director-General, Department of Justice and Attorney General [2020] QCAT 252
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 39
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210WAS v Director-General, Department of Justice and Attorney-General [2017] QCAT 243
AVJ v Director-General, Department of Justice and Attorney-General [2023] QCAT 267
Bailey v Director-General, Department of Justice and Attorney-General [2023] QCAT 211
APPEARANCES & REPRESENTATION:
Applicant:
Richard Smith, Consultant: Attwood Marshall Solicitors
Respondent:
Vinson Facer: Representative: Director-General, Department of Justice and Attorney-General
REASONS FOR DECISION
The Applicant is a single man aged 64 who seeks a blue card in order to obtain placements to complete the course requirements for a teaching degree. He holds a working with children clearance in New South Wales. He currently is employed in a number of part-time positions in four schools in New South Wales. His duties there include ground maintenance, working with staff, following directions and having minimal contact with children when they request assistance. He states that he commenced this work in 2015 in one of the schools. The overall student cohort in the schools comprises students at the different schools from kindy to year twelve.
The Applicant first held a blue card (working with children clearance) in 2003 and 2005. In 2015, he applied to renew his blue card and upon reassessment he was issued with a negative notice on 18 November 2015 following a change to his criminal history in 2014. The decision to issue the negative notice was confirmed by the Tribunal on 1 April 2016.
In 2018, the Applicant applied to cancel the negative notice and again his eligibility was reassessed, and his negative notice was continued on 13 August 2019.
On 25 August 2021, the Applicant once again applied to cancel the negative notice and after his eligibility was reassessed, he received a further negative notice notification on 16 November 2023. On 14 December 2023, the Applicant applied to the Queensland Civil and Administrative Tribunal to review the decision of the Respondent.[1]
[1]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 24.
The Nature of this Review
The Negative Notice Decision is a ‘chapter 8 reviewable decision’ defined in s 353 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) under which the Tribunal exercises its review jurisdiction.
The purpose of the review by this Tribunal is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.[2] On a review the Tribunal considers questions of law and fact and has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it to the Tribunal for reconsideration.
[2]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20(2).
In undertaking the review, the Tribunal considers the objects of the WWC Act which are to promote and protect the rights, interests, and well-being of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children or who operate relevant child- related businesses.[3] Importantly the blue card is transferable and cannot be made subject to conditions. The holder of the card can work or volunteer in any child- related business or activity.
[3]WWC Act, s 5.
The chief consideration in this review is that the welfare and best interests of children is the paramount consideration.[4] The Tribunal must apply the paramount principle in its review of the Respondent’s decision to issue a negative notice.
[4]Ibid, s 6(a).
Section 221 of the WWC Act provides for the issue of a positive notice, except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 is rebutted.
“Exceptional case” is not defined in the Act. Section 226 of the Act sets out the criteria that the Chief Executive must have regard to in deciding whether or not there is an exceptional case. It is a matter which should be determined on an individual case basis not hampered by a general rule.[5] The Tribunal must find an exceptional case exists if, based upon all considerations, it would harm the best interests of children to issue a positive notice allowing the holder an unfettered right to work with children in any capacity.
[5]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28].
The Appeal Tribunal in Director-General, Department of Justice and Attorney-General v MAP[6] stated: ‘It is settled law that the determination of whether there is an ‘exceptional case’ involves the exercise of a broad discretion that should be ‘unhampered by any general rule and is to be construed in the particular context of the legislation’’.
[6][2022] QCATA 39, [19].
Therefore, because the Applicant has not been convicted of a serious offence or disqualifying offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case.
The standard of proof required by the Tribunal is that it must be satisfied on the balance of probabilities. Neither party bears the onus of proof. The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice in conducting the review.[7]
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
In reaching a decision, the Tribunal must also consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6(a) of the WWC Act and any other relevant factors.
It has been established that any hardship or prejudice suffered by the Applicant due to the Tribunal’s decision is not relevant to the finding of an exceptional case.[8] The process is not intended to punish the Applicant but to protect children. This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations.
Criminal History and Circumstances of the Offending
[8] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).
Court
Date
Offence
Order
Brisbane Magistrate
25/02/1984
Drive motor vehicle whilst blood alcohol content was (.07%) (on 25/02/1984)
Convicted
Fined $100
Motor driver licence disqualified for 1 month
Fitzroy Crossing Magistrates Court (WA)
27/05/2014
Breach of violence restraining order
$300 undertaking
6 months from 27 May 2014
Fitzroy Crossing Magistrates Court (WA)
11/06/2014
Breach of violence restraining order
Fined $600
Fitzroy Crossing Magistrates Court (WA)
05/08/2014
Breach of violence restraining order
Suspended imprisonment order 7 months (from 05/08/2014)
Concurrent
Fitzroy Crossing Magistrates Court (WA)
19/08/2014
Breach of suspended imprisonment order of 5 August 2014
Breach of violence restraining order
Suspended imprisonment order to continue
Fined $500
Fined $400
Specific factors a decision maker must consider in deciding if a case is an exceptional case
The Tribunal must consider the mandatory considerations under section 226 of the WWC Act. These include any sentencing remarks. Section 226 of the WWC Act contains these requirements:
Whether the Offence is serious and whether it is a disqualifying offence
The Applicant has not been charged with or convicted of any serious or disqualifying offences.
Serious offence is defined in section 15 of the WWC Act. It includes an offence against a provision of an Act mentioned in schedule 2 or 3, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
Disqualifying offence is defined in section 16 of the Act. It includes an offence against a provision of an Act mentioned in schedule 4 or 5, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
Any information about the person given under sections 226(e), 318, 319, 335, 337, 338 of the WWCAct and under section 138ZG of the Disability Service Act 2006 (Qld)
No relevant information about the person was provided to the Chief Executive by the Director of Public Prosecutions or by the Corrective Services under section 318 or 319. No report about the Applicant’s mental health was given to the Chief Executive under section 335. No information about the Applicant was given to the chief executive under sections 337 or 338 by the Mental Health Court or the Mental Health Review Tribunal.
Any decision or order regarding a review of or appeal against the decision or order and the reasons for the decision of order.
There is no information in this regard.
Length of time since the event of conduct
Despite the fact that the offences occurred ten years ago they remain relevant to the eligibility of the Applicant to hold a blue card.
It has been established that although the offences occurred some time ago, the passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.
Relevance to employment, or carrying on a business, that involves or may involve children
The Respondent states they hold concerns about the Applicant’s suitability to work or interact with children. The Applicant currently works in a school environment and his evidence is that he has done so since 2015 without incident. The offending in 2014 is of particular concern because of the repetitive nature of the offending and the fact that a four-year-old child was present and was spoken to by the Applicant so that the child was directly involved in communication which was under a court prohibition.
The Respondent holds concerns about the Applicant’s ability to exercise restraint, utilise appropriate communication strategies and to deal with difficult and or stressful situations in a rational and law-abiding manner. These skills are essential to adults working with children because children are totally dependent on the adults around them to exercise control and self-regulation.
In the case of a conviction -the penalty imposed by the court and if decided not to impose an imprisonment order for the offence or decided not to make disqualification order under section 357, the court’s reasons for its decisions
In relation to the offences relating to the restraining order, the Applicant was fined on 27 May 2014 an amount of $300 and placed on an undertaking for six months. In relation to the breach of the domestic violence order on 11 June 2014, the Applicant was fined $600. In relation to the breach of the domestic violence order on 25 August 2014, the Applicant was given a suspended term of imprisonment order which was continued on 19 August 2014 and fined a total of $900 on that occasion. These offences occurred in Western Australia when the Applicant was 54 years of age. The complainant was a woman some 23 years his junior.
The circumstances of his offending are outlined as follows.
On 17 January 2014 the Applicant was served with a Violence Restraining order which prohibited communication with the complainant and being within five metres of her, her workplace or residence. On 13 May 2014 the Applicant attended the complainant’s residence and went to the open front door on his bicycle. The complainant’s four-year old son was looking out of the closed screen door. The complainant grabbed her son and hid behind a wall. The Applicant remained at the front door but left when the complainant yelled at him to go away. The complainant complained to police. The Applicant was arrested and participated in an interview with police. The Applicant admitted the breach and told police he was lonely and bored.
On 28 May 2014, the Applicant went to the complainant’s home. He drove to the home with flowers in his hand. He went to the front door. The Applicant said that he wanted to talk to the complainant when asked by the complainant’s father. The Applicant was told twice to leave by the complainant’s father who was present. The Applicant was arrested and participated in an interview with police. The Applicant admitted the breach.
On 1 July 2014, the Applicant was in his front yard at 4.20pm. The complainant walked on the opposite side of the road from her place of work. The Applicant called out to the complainant and tried to speak with her. She ignored him and continued walking home. The Applicant was arrested and sentenced to seven months imprisonment fully suspended. The Court renewed the restraining order and fined the Applicant $500 for the breach.
On the 6 August 2014, the Applicant attended the hospital where the complainant worked and approached the pharmacy counter. He passed a note to the hospital employee requesting that the complainant meet him after work to discuss a personal matter. The Applicant was arrested. He gave the explanation that he wanted to meet the complainant after work to discuss a few things. He was fined $400.
On the occasion of his sentencing on 16 January 2014, His Honour, Judge Sharrat, stated that:
(a)One of the ‘dominant features’ of the application was that the Applicant appeared to believe that he was in a relationship with the complainant. Based on the evidence produced by the complainant, the relationship consisted of an ‘imagined personal relationship”, as defined by the legislation.
(b)Sharatt J also made the comments:
The [complainant] has pleaded only a few incidents, but there have been repeated visits to her house often when various members of her family have been there. There’s presents bought and left. So when she wakes up there’re on the doorstep. She thinks that he has visited her about 30 times. It makes her feel extremely uncomfortable. His behaviour was previously directed towards the [complainant’s] sister, I think but now he has directed his attentions towards her.
His letter is very strange. It indicates that, as far as he’s concerned, she has played with her hair and that indicates she wants to talk to him. She wears a bikini top under a shirt, and he thinks that that means she’s available to him, and although he makes no threats he has unsettled [the complainant]. His behaviour, in my view, amounts to emotional abuse. [The complainant] is extremely stressed because of his repeated unwanted attention. The fact that she has to walk past his house and the oddness of his responses indicate that he's clearly not thinking in a manner that most people do. He’s acting inappropriately.
So this imagined personal relationship is another personal relationship, and, in my view, means that [the complainant] only has to demonstrate that unless restrained he’s likely to commit an act of abuse. The act of abuse would be this sort of repetitive stalking behaviour, the unwelcome and unsolicited leaving of presents, the declarations of relationship. This sort of thing, in my view, amounts to emotional abuse. Because he has done it before since May, because he has visited the house a number of times and because he is consistent, she is able to prove that it’s likely to happen again.
(c)He acknowledged that although the Applicant has not threatened the complainant, his conduct constituted emotional abuse.
(d)He also acknowledged that as the Applicant and the complainant lived in a small town they may “bump into each other accidentally”. However, this was differentiated from approaching the complainant.
(e)The complainant’s four-year-old son had not been included in the Order as there was no evidence that the son had been approached by the Applicant.
Respondent’s Submissions
The Respondent’s filed material BCS1-190 included:
(a)Reasons for refusing to cancel a negative notice;
(b)Reasons for Respondent’s decision;
(c)Applicant’s criminal history and police report regarding the offending;
(d)Broome Magistrate’s Court transcript of proceedings;
(e)Applicant’s submissions and references and certificates;
(f)Material produced to Respondent under the Notice to Produce by the Broome Magistrates Court.
Mr P was a referee for the Applicant. He is the school principal, who confirmed that the Applicant held a Working with Children Check in New South Wales. His letter was dated 31 January 2022 in which he stated that the Applicant has held a role working 1-2 days per week as a part-time general assistant in which he reported directly to Mr P. He stated that the Applicant does not have a direct role with children, but Mr P said he observed his interactions with children to have been respectful and appropriate. He further stated some knowledge about the offences in 2014 but stated that he believed that the Applicant had some offences relating to domestic violence involving a past domestic relationship. The Respondent has inferred from this remark that the Applicant stated to Mr P that he was in a domestic relationship with the complainant.[9]
[9]Email reference Mr P dated 31 January 2022.
The Respondent made submissions dated 24 September 2024. The submissions state the views of the Respondent as follows.
The Respondent holds the view that the Tribunal should give limited weight to the witness Ms L, his former landlord, who described the Applicant as a person of good character who was quiet and respectful. The Respondent states that she gave her opinion without knowledge of his criminal offending. She was not available for cross examination. Mr P also provided a reference. He was unavailable for cross examination and did not have direct knowledge of the circumstances of the 2014 offending. Further it appeared to the respondent that Mr P believed that the Applicant was in a domestic relationship with the complainant. The Respondent has drawn the conclusion from this that the Applicant had mis-reported his criminal history information to Mr P.
The Respondent cites the network of the Applicant to include his two adult daughters, his study, his pet, his employment, voluntary work and reading. The respondent states that the Applicant has provided no probative evidence as to how his network is a protective factor.
The Respondent relies upon the authority of the decision in Director-General, Department of Justice and Attorney-General v Gavin Anthony Dickson.[10] In that case the respondent contends that there was no evidence of the improved relationship with the wife of the Applicant (in that instance) so that it was unsafe to rely upon the submission of an improved relationship, as it was not supported by evidence. The Respondent contends that this same principle applies to the Applicant in these proceedings.
[10] [2024] QCATA 38.
The Respondent asserts that the Applicant lacks a depth of insight into why his past offending was inappropriate. The Respondent is concerned that the Applicant fails to appreciate the seriousness of his offending. Further the Respondent maintains that this understanding is then a protective factor preventing further offending and provides evidence of a change in behaviour in the Applicant. The Respondent quotes from the decision in WAS[11] as follows:
…community expectations are that people caring for children should at least understand why past transgressions were inappropriate as children depend on adults to have insight into their actions…
…an awareness of this means they are less likely to repeat the behaviour when subjected to similar stressors (as found in the case of TAA).[12]
[11]WAS v Director-General, Department of Justice and Attorney-General [2017] QCAT 243.
[12]Submissions Respondent dated 4 September 24 2 paragraph 27.
The respondent reports the submission of the Applicant to refer to his misreading of the situation, being completely at fault, that it was all a misunderstanding. The respondent quotes the Applicant as saying:
(a)That he has a deep respect for women and that his offending occurred due to feelings of loneliness, his naivety and trying to interpret what was happening around him.
(b)Further the Applicant submits a lack of similar offences since.
(c)The Respondent contends that the Applicant considers he is rehabilitated due to university studies which have provided the Applicant with insight into his offending triggers, interpreting mainstream non-verbal cues and personal boundary setting.
The Respondent submits it continues to hold concerns about the Applicant’s insight as he appears to minimise the seriousness of his offending, triggers and personal boundaries.
It submits that the Applicant’s insight is not developed by a theoretical understanding of certain interpersonal relationships which involve reading social situations, but that the Applicant needs to demonstrate protective strategies that prevent a recurrence of these events.
The Respondent holds concerns about the Applicant’s mental health. The Respondent refers to the report of Dr Dykstra who provided a written report but was not called as a witness.
Dr Dykstra states that a likely diagnosis for the Applicant is autism spectrum disorder level 1.[13] The Respondent refers to the discussion of the Applicant’s behaviours as including these deficits:
(a)Lack of social-emotional reciprocity, deficits in non-verbal communication, deficits in maintaining and understanding relationships;
(b)Repetitive restricted behaviours, interests and activities as manifested by the use of stereotyped idiosyncrasies speech phrases, insistence on sameness and routine;
(c)Fixated and intense focus on a particular interest;
(d)Anxiety around understanding social information.
[13]Dr Dykstra report dated 28 May 2024.
The Respondent does refer to the strengths of the Applicant as including intellectual strengths in verbal and perceptual reasoning, commitment to course of study completion to obtain full time employment, strong psychological resilience and willingness to receive psychological supports.
Ms Ong, a psychologist treating the Applicant, also provided a report. The Applicant has consulted her on 37 occasions since 2015. She states that the initial sessions focussed on social interactions. She states that he initially attended because of a GP referral and treatment plan due to depression resulting from his being unemployed. She reported that he became less distressed over the negative aspects of social interaction. She reported that he has undergone social learning interventions and that he has learnt to apply the skills learnt in therapy. The Respondent disputes this conclusion stating that there is no probative evidence of this occurring.
The Respondent’s concern are summarised as follows:
(a)Whether he is at risk of repeating similar behaviour again in the future;
(b)Whether he is at risk of engaging in this behaviour again in the future;
(c)Whether he has insight into the unlawfulness of his behaviour, or what he understands as to the unlawfulness of his behaviour; and
(d)Whether he understands the impact of his offending on the complainant and/or children who may be in his care.
The Respondent submits that the transferability of the blue card is a significant factor as the Applicant, if granted a blue card, could work with children of any age, gender, or vulnerability, supervised or unsupervised, in any child-related employment or child-related business regulated by the WWC.
The Applicant’s case
The Applicant filed the following material:
(a)Application to Review a Decision and attachments 13 December 2023;
(b)Submissions 29 September 2024;
(c)Reference Mr P 31 January 2022 and 27 September 2024;
(d)Working with Children check NSW expiry 13 December 2025;
(e)Dykstra report 28 May 2024;
(f)Dr Ong report darted 28 June 2024.
The Applicant submits that his is not an exceptional case. He relies upon his current direct supervisor’s (Mr P’s) reference dated 27 September 2024 which contains the observation that this is a four-year relationship and that the Applicant is professional and responsible at all times.[14]
[14]Mr P reference dated 27 September 2024.
The Applicant submits that the interpretation of his and the complainant’s interaction did not include a belief on his part in an on-going relationship with the complainant and that this inference by the Respondent is incorrect.
The Applicant submits that the absence of any re-offence of this nature or indeed any criminal activity is evidence that should dispel the concerns of the Respondent of his likely re-offence particularly in view of the fact that the offences occurred ten years prior.
The Applicant submits that he has demonstrated remorse and contrition by preparing himself for work by further education and regular support and consulting with Dr Ong.
The Applicant submits that there was no allegation of physical injury in the offending.[15]
[15]Affidavit of the complainant dated 15 January 2014.
Despite the difficulties relating to his diagnosis, the Applicant is undertaking a Master of Teaching which would qualify him to seek a position as a primary school teacher at age 65.
The Applicant’s employment history after surviving the flood and homelessness in 2022 is:
(a)Tweed River high school since September 2024;
(b)Tweed River South Public School since September 2024;
(c)Mullumbimby High school since 22 August 2024;
(d)Terranora Public School from 2 February 2023 to 5 August 2024.
Mr P, the school principal confirmed that the Applicant holds a Working with Children Check in New South Wales. In his letter, dated 31 January 2022, he stated that the Applicant has held a role working 1-2 days per week as a part-time general assistant in which he reported directly to Mr P. The Applicant held this role for four years. He stated that the Applicant does not have a direct role with children, but Mr P said he observed his interactions with children to have been respectful and appropriate. Mr P authored a letter dated 27 September 2024 that his views are endorsed by longer term staff that the Applicant is a reliable dependable [sic] and a person of good character.[16]
[16]Letter Mr P dated 27 September 2024.
The Applicant states that he has met the requirements for a working with children check in new South Wales which requires a review by the issuing authority of the Applicant’s criminal history. The Applicant has met the requirements and has a current check which expires on 13 December 2025. The check is reviewed over a five-year period by the issuing authority.
The Applicant submits the reports of Ms Ong and Dr Dykstra and the acknowledgement by the Respondent that the Applicant has provided evidence as follows:
(a)No further offending since 2014;
(b)Current employment at four schools;
(c)Current Working with Children check in New South Wales;
(d)Has a commitment to complete a teaching degree;
(e)Mr P has known the Applicant for a period of seven years in a school context.
The Applicant stresses the Respondent’s submissions that affirm his contention that as a mature person he has taken significant steps to improve himself and that since the events of 2014, he has been free of any offending behaviour, and he has expressed genuine regret for the offending against the complainant in 2014.
The legal representative for the Applicant asked the Applicant if the information given to Ms Ong and Dr Dykstra was true and correct and the Applicant affirmed under oath that it was.
The Applicant stated that he required a blue card to undertake placements in regard to course requirement for his teaching degree.
He stated that he offended, in part due to his misinterpretation of the requirements of the AVO. He had attempted to contact the complainant in contravention of the order as he wanted to seek agreement to vary the order, as it forced the cessation of his then employment. He further stated that he has deep regret for this. He stated that it is always in the back of his mind not to do it again. He stated that Ms Ong provided on-going support and taught him an awareness of doing the right thing.
The Applicant’s evidence is tested
The Applicant stated in cross examination that his role as general assistant is to maintain grounds and buildings.
The Applicant confirmed that he listens to what the children say and redirects them to teachers. He stated that he interacted with people coming to the school and had made simple friendships with these people sometimes assisting them with gardening or small chores.
He agreed that he had been a single person for 22 years. He expressed the view of working on his feelings of isolation.
In response to a question as to what his triggers for social isolation were, he stated that anxiety related to his experiences and a need for self-preservation. He agreed that the negative notice (read by him) was continued because it is an exceptional case because of the risk that he might re-offend.
He stated that the AVO was granted because the complainant felt afraid and threatened by him. He stated it was her way of feeling safe.
He was referred to pages NTP 7-10 which contain the application by the complainant in 2014 and the circumstances put before the Court. The complainant states that the Applicant approached both herself and her sister at her home uninvited, professing love and wanting to marry the complainant’s sister, despite her being pregnant and having a boyfriend. The Applicant states that he has now been taught about boundaries and respect and has gained some clarity around communication and social cues. He stated that going to her workplace was wrong. He stated that he wanted to speak to the complainant in order to regain his job at the place he was employed (TAR Women’s Resource Centre) which he lost as a result of the AVO.
The Applicant was referred to BCS 94-99 which details the offences and the Applicant’s responses when questioned by police. In regard to the 8 August 2014 offending the Applicant stated that he had spoken to a co-worker who said he could attempt to contact the complainant. This was incorrect advice, he now knows. He stated that his trigger is his anxiety. He stated that he understands how he works and is trying to fix it in his mind and develop strategies.
He was asked how the complainant would have felt and he replied that she would have been afraid. He stated that if people do not like something, he should not do it. He stated that her lack of feeling safe would impact her family. He stated that he has deep regret and had never done anything like this again. He stated that his strategies would be to get to know the families of students as this would help the children learn by knowing their families. He understood his supports in a school setting would be staff, the principal and Ms Ong.
He was referred to BCS 5 which contains his written submissions to blue card services. He was asked what he meant by the 2014 events were a misunderstanding. He replied that he did not think he was doing wrong but that he was doing wrong. He stated that he found sessions with Ms Ong helpful. He said they discuss things, and he sees her every couple of months. He stated that he debriefs with her.
He stated that he attended Dr Dykstra three times. He said he knew he had trouble interpreting social and non-verbal cues and what is meant by abstract remarks such as “time for bed”. He restated his fear of the unknown, believes he has progressed and that other people’s rights matter. He stated that it is okay not to force people, to let things go.
He was referred to BCS 148 where he remarked in his written submission as follows concerning his changed conduct:
(a)Appropriate behavioural decisions;
(b)Respect the boundaries of others;
(c)Exercise sound judgment and self-control;
(d)Extensive study in these areas of human interaction;
(e)Understand why his behaviours were of concern to the complainant.
The Applicant maintains his measures to address areas of concern are:
(a)Completion of social work degree;
(b)Course components teach understanding triggers and protective strategies to address them; Domestic and Family violence, Coercive Control, Ethics and Professional Practice;
(c)Identification of his own deficits in interpreting non-verbal cues and difficulty reading social situations leading to misinterpreting the behaviours and intentions of others;
(d)Identification of the effects of environmental factors on an individual, by completion of the Pathways to Change Course - for Men where the Applicant states he was empowered by the course to establish personal boundaries that address his offending behaviour. The Applicant is of the view that his study has rehabilitated him.
He stated that if in doubt in a teaching environment, he would seek guidance from a more senior teacher or principal. He would become familiar with student-teacher interaction protocols.
The Applicant was asked about insight. He stated that it was having a clear perception of the situation with strategies in place.
The Tribunal inquired whether the Applicant had acted on Dr Dykstra’s recommendations.[17] He indicated that he had not seen a psychiatrist as he believed his sessions with Ms Ong were effective and also that medication affected him poorly.
[17]Dr Dykstra report dated 28th May 2024 page 11.
The Tribunal was referred to the case of AVJ v Director General, Department of Justice and Attorney General[18] by the Applicant.
[18][2023] QCAT 267.
The Applicant submits his case is on point with the decision in AVJ’s where the Applicant’s circumstances are the same. The Applicant submits that his absence of further offending and the acquired insight show that this Applicant understands the concerns of the respondent regarding the nature of the offending and the potential risk to children.
Consideration of the Evidence
The Applicant was legally represented. He chose not to call his chief witnesses who provided medical evidence, but who were not available for cross examination. The Tribunal must consider the weight to be given to their evidence on the basis that the respondent did not have an opportunity to test their evidence. This aspect is considered below.
The Tribunal notes that the Applicant was issued with a working with children check in New South Wales which expires on 13 December 2025. He is employed as a general assistant in grounds and building maintenance at four Tweed Heads schools. He has minimal contact with students, but regular communication with staff. His qualifications include a Certificate IV in Community Services Training, a partially completed Bachelor of Social Work, and a partially completed Master of Teaching course with the intention of becoming a primary school teacher. He will be 65 years old when he completes the course. He has references from the principal of one of the schools at which he works and also from a former landlord. He has completed a number of short courses which are referred to in his academic record.
His employment record is frankly presented, comprehensive and includes his employment history from 1977 until the present. His periods of unemployment are brief in his working life. The employment history is diverse, encompassing many areas such as administration, manual work, self-employment in farming, and working with motors as a qualified motor mechanic. His voluntary work includes being a Red Cross Mates Program visitor and working both as a grounds person and in the school canteen, preparing food, ordering stock and handling cash. There are demonstrated comprehensive skills in these roles which involve interaction with others and positions of trust. From 2014 until the present, he has been involved in working at various schools undertaking canteen work and in the grounds.
He attended Dr Dykstra who prepared a medical report for the Tribunal. He has ongoing contact with a physiologist, Ms Ong, who has also provided a report to the Tribunal. He states that he debriefs with her which evidence an understanding of the importance and usefulness of self-reflection. It further illustrates his acquiring skills in communication, which the medical opinion states is an area in which he has a skills deficit.
Dr Dykstra’s report is dated 28 May 2024. Dr Dykstra undertook clinical interviews with the Applicant on 28 March 2024 and 18 April 2024. Further Dr Dykstra completed psychometric testing with the Applicant and his daughter on 28 April 2024. In summary, Dr Dykstra stated that the Applicant appears to meet DSM-5-TR diagnostic criteria for Autism Spectrum Disorder Level 1. Dr Dykstra states significant historical and current difficulties with social communication across multiple contexts, as manifested by deficits in social/emotional reciprocity, deficits in non-verbal, communicative behaviour in deficits in developing, maintaining and understanding relationships. He has also showed significant historical and current restricted, repetitive patterns of behaviour, interests and activities, as manifested by the use of stereotyped idiosyncratic speech phrases, insistence on sameness, routines, and restricted, fixated interests that are abnormal in intensity/focus.[19]
[19]Report Dr Dykstra page 9-10.
Despite these findings which are not disputed, the Applicant has persisted in seeking both an education and employment. The Applicant’s evidence was that he has not engaged with a psychiatrist as recommended by Dr Dykstra, nor is he taking any medication. He indicated that the side effects of the medication did not agree with him. He does however maintain contact with his psychologist, Ms Ong, on a regular basis. He is actively pursuing his degree and requires placements in order to complete course requirements with a view to achieve full time employment.
The Tribunal observed him to be diligent and comprehensive in the preparations of his submissions to the Tribunal and in his responses in the hearing. He sought legal advice, he responded to all questions put to him, though the responses reflected the conclusions of Dr Dykstra as to his imperfect manner of communication and slow processing speed. He has sustained engagement with Dr Ong over a long period of time and the evidence which is not contested is that despite his diagnosis, she considers that he has progressed in his ability to communicate and to address his deficiencies in reading and interpreting social cues. She states that he has progressed as follows:[20]
(a)He has been receptive to social learning interventions;
(b)Including accepting feedback on interactions in sessions; and
(c)Explicit rules for interactions and strategies for dealing with socially challenging situations.
[20]Dr Ong Report 28 June 2024 page 1.
The Applicant has not reoffended since 2014 and there have been no complaints against him in his work or volunteering in schools. I do not find, and the evidence does not support a finding that the Applicant has an ongoing propensity to disobey the law such that he poses a risk to children. There is no logically probative evidence to this effect adduced by the Respondent. In fact, the contrary is the case.
The Applicant leads a relatively solitary life, having separated in 1994 and not remarried. This is common in people with his diagnosis and is not indicative of any particular issue in regard to this review in the Tribunal’s view.
He states that he has a relationship with his daughters, and one participated in the interview with Dr Dykstra. Both the applicant and his daughter participated in a test where the applicant was scored in a variety of aspects of his communication. Interestingly her scores for the Applicant are almost identical to the Applicant’s own scores for himself. This was true for scores in the psychometric testing apart from the scores relating to social communication, restricted interests and repetitive behaviours where she scored her father with higher scores then his own self-evaluation. This aspect of the report supports the Applicant’s contention that he has a network which includes her and that she understands and demonstrates tolerance for his communication difficulties resulting from his diagnosis. 
The Tribunal holds the view that there are protective factors. These include factors such as seeking and maintaining employment, though in varied jobs; continued pursuit of education and knowledge through completion of numerous courses; and the maintenance of a network of friends and family all constitute evidence of a probative nature. They demonstrate characteristics of persistence and adherence to acceptable social norms. This finding is contrary to the submissions of the Respondent that it is not satisfied that he has addressed its on-going concerns about his behaviour, insight, remorse and changes which are supported by probative evidence.
Recent media attention has focused upon the fact that persons with a diagnosis of autistic spectrum disorder (‘ASD’) have considerable disadvantage in gaining and retaining employment post-schooling. This is believed to be attributed to their neuro-diverse symptoms (commented upon by Dr Dykstra) which are not well understood or tolerated. Research undertaken by the Social Research Centre at the Australian Catholic University in Australia found that the unemployment rate for persons with ASD was 31.6% and 10% for people with a disability and 5% for people without a disability.[21]
[21]Sandra Jones, Muhammad Akram, Nicole Murphy, Paul Myers, Natasha Vickers, Community Attitudes & Behaviours towards Autism and Experiences of Autistic People and their Families (Report, Social Research Centre at Australian National University and the Centre for Health and Social Research at the Australian Catholic University, 12 December 2018).
The Tribunal is mindful that the focus of this review is on the interests and well-being of children and not upon any real or perceived disadvantage or discrimination experienced by the Applicant. But the submission of the Respondent is that there is no probative evidence that the Applicant’s triggers have been addressed and that he lacks insight into the significance of his offending, minimising the significance and seriousness of his 2014 offending. His personal history should be seen through the lens of the limitations in communication identified by Dr Dykstra in his diagnosis and analysis of impact of his disability vis-a-vis his risk to the safety and well-being of children.
The Tribunal observed that the failure of the Applicant to fully articulate his remorse and insight was not determinative of the absence of these factors but related to an imperfect way of communicating in keeping with his accepted diagnosis. Dr Dykstra stated that:
His speech was of an appropriate quantity, rate and volume, but lacked tonality and idiosyncratic language was used on several occasions. He showed a tendency to fixate on issues related to his university study and social justice during the session. He exhibited partial understanding of non-verbal gestures.[22]
[22]Dr Dykstra Report dated 28/05/2024 page 4.
Dr Dykstra was not available for cross examination. However, the clinical findings and testing by Dr Dykstra undertaken by the Applicant voluntarily are given considerable weight by the Tribunal and are considered to have been relatively impartial on numerous aspects of concern raised by the Respondent.
In Chief Executive Officer, Public Safety Business Agency v Masri,[23] (‘Masri’) the Appeal Tribunal determined that the absence of criminal convictions is not probative evidence that Mr Masri does not engage in such behaviour only that he has not been caught doing so by police.[24]
[23][2016] QCATA 86.
[24]Ibid, [37].
This remark by the Appeal Tribunal is considered in the context of an appeal on a question of law as to the ability of the Member at first instance to determine a matter in the absence of probative evidence. This case is distinguishable from Masri as this Tribunal has had the benefit of considerable information, freely supplied by the Applicant. In Masri’s case, the respondent was unable to cross examine the Applicant as he did not attend and filed no material. Here there has been ample opportunity for the Respondent to engage the Applicant in its areas of concern.
In this case the Tribunal is satisfied as to the existence of protective factors and the evidence which supports such findings. This includes protective factors such as to his presentation of personal circumstances, his history of both employment and educational achievement, a clear acceptance of the 2014 offending and its implication for the victim though expressed imperfectly. Further the Tribunal finds protective factors in the efforts by the Applicant to understand and acknowledge; support by medical evidence; his diagnosis and its limitation specifically in relation to communication and non-verbal cues.
The Federal Court in Sullivan v Civil Aviation Safety Authority[25] stated that
the procedural flexibility accorded to an administrative tribunal… does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.[26]
[25](2014) 226 FCR 555
[26]Ibid, 580 [97] (Flick and Perry JJ).
This case concerned the obligations of an administrative Tribunal and the standard of proof applicable considering the discussion of the civil standard as stated in Briginshaw v Briginshaw.[27] Further it considers the requirements to apply the rule in Browne v Dunn[28] in these kinds of proceedings.
[27]Briginshaw v Briginshaw (1938) 60 CLR 336.
[28](1893) 6 R 67.
The risk factors of concern to the Respondent are the potential risks the Applicant presents to children because of the outward appearance that he does not understand or accept the wrongdoing in the 2014 offending. The Tribunal finds that the Applicant has particular difficulty in articulating his remorse, rather than failing to accept it.
The Tribunal is not required to balance risk with protective factors; however, it is required to give additional weight to risk factors. The Applicant has expressed remorse for his actions by the acceptance of his penalty, absence of re-offence and the pursuit of a goal of employment.
The Applicant submits he has developed insight into his offending in 2014. He now appreciates that if someone refuses communication with him, this ought to be respected. He fully appreciates the need to keep children safe and to be compliant with all relevant legislation and societal norms of behaviour. This was evident in his responses in cross examination in the 2016 hearing before this Tribunal. He states an understanding of the distinction between becoming friends and becoming close friends [as being] two different things.[29]
[29] Transcript 4 March 2016 page 1-19 at paragraphs 10-20.
The Tribunal concludes from these remarks that the Applicant has insight into why events transpired as they did, but also that his particular ways of interpreting the world create difficulties for him. In regard to the Respondent’s submission that he considered the events of 2014 to be the result of a misunderstanding, the Tribunal is satisfied that the Applicant’s acceptance of his wrongdoing is genuine. He now accepts full responsibility and agrees that he did wrong.
The Applicant has expressed remorse and this is demonstrated by his continuance of his attempts to regain his blue card so that he can fully participate in the education program chosen by him with a view to gaining chosen employment.
As stated already, the Applicant’s goals and aspirations and the fulfillment of them are not the focus of this hearing, rather the wellbeing and safety of children against background of the transferability of a blue card once granted is the primary consideration. In addition to the matters raised by the respondent the Tribunal must comply with the Human Rights Act 2019 (Qld) (‘HR Act’) in that it must:
(a)Give proper consideration to human rights relevant to the decision;
(b)Act and make this decision in a way compatible with human rights;
(c)In making the decision the Tribunal must act reasonably in face of statutory provisions such as the paramount principle.
The Tribunal must consider the provisions of the HR Act when acting as a “public entity”. When acting as a public entity the Tribunal is required to apply the HR Act.[30]
[30]HR Act, s 58.
The Tribunal is required to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights, or if it is not possible to interpret them in a way that is most compatible with human rights then to make a decision that is reasonable and justifiable in the circumstances and is the least restrictive and reasonably available way to achieve the purpose.[31]
[31]HR Act, s 48.
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.[32]
[32]HR Act, s 13(1).
In deciding whether a limit on a human right is reasonable and justifiable the factors set out in s 13(2) of the HR Act may be relevant. The relevant human rights here include the Applicant’s right to a fair hearing,[33] privacy and reputation.[34] I accept that it is appropriate to consider these rights having regard to the requirement of the paramount principle. The right of every child to “the protection that is needed by the child, and in the child’s best interest, because of being a child” is relevant in respect of children generally.
[33]HR Act, s 31.
[34]HR Act, s 25.
The Respondent submits that any finding resulting in limitation of the Applicant’s human rights is still consistent with the object, purpose and paramount principle of the WWC Act which is that the welfare and best interests of children are paramount. The Tribunal concludes that a limitation on the rights of the Applicant to work in a chosen field is subject to legislative intention expressed in the Act which requires the Tribunal to give priority to the interests of children in accordance with the paramount principle.
Conclusion
The Tribunal is satisfied that the totality of evidence in this case leads to a conclusion that the issue of a working with children clearance and blue card to the Applicant does not pose an unacceptable risk to children such that it would be against their safety and best interests. Weighing all these matters, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that the Applicant’s case is not an exceptional case and that the decision to issue a negative notice to the Applicant is set aside.
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