Storch v Director-General, Department of Justice and Attorney-General
[2020] QCAT 152
•6 May 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: PARTIES: | Jamie Luke Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152 JAMIE LUKE STORCH |
| v | |
| DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL | |
APPLICATION NO/S: | CML 329-18 |
MATTER TYPE: | Children’s matters |
DELIVERED ON: | 6 May 2020 |
HEARING DATE: | 13-14 November 2019 |
HEARD AT: | Cairns |
DECISION OF: | Member Stepniak |
| ORDERS: CATCHWORDS: APPEARANCES & REPRESENTATION: Applicant: Respondent: | 1. 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 is confirmed. 2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to that extent that such could identify or lead to the identification of any child, witness, or third party in these proceedings. CHILDREN’S MATTER – BLUE CARD – where charged with a disqualifying/serious offence that has been dealt with other than by a conviction – where issued a negative notice –where police records reveal several complaints for which not charged – where human rights allegedly limited – whether an ‘exceptional case’ Charter of Rights and Responsibilities Act 2006 (Vic) Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 8, 156, 167, 168, 221, 226, 229, 231, 236, 240, 305, 315, 318, 319, 335, 337, 338, 353, 360,361. Chapter 8 Part 4 Division 7, Schedule 1 Part 1, ss 1, 2, 4, 4A, 14; Schedule 4 s Schedules 2 and 7. International Covenant on Civil and Political Rights, Art 14. Bachman v Public Safety Business Agency [2016] QCAT 104. Chief Executive Officer of Child Protection v Scott (No2) [2008] WASCA 171. Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. GP v Commissioner for Children and Young People [2013] QCAT 324. Kent v Wilson [2000] VSC 98. Re Kracke and Mental Health Review Board (2009) 29 VAR 1 TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489. Jamie Luke Storch, self represented Director-General, Department of Justice and Attorney-General, represented by Ms Borger, Government Legal Officer. |
REASONS FOR DECISION
INTRODUCTION AND BACKGROUND
The Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act) stipulates that anyone proposing to undertake ‘regulated employment’[1] must have a positive notice and blue card issued by Blue Card Services, Department of Justice and Attorney-General (the Respondent).[2]
[1] Working with Children (Risk Management and Screening) Act 2000, s 156; Schedule 1, Part 1.
[2]Working with Children (Risk Management and Screening) Act 2000, Chapter 8, Part 4, Division 7.
‘Regulated Employment’ encompasses a wide range of employment involving children. It includes, care of children under the Child Protection Act 1999,[3] Educational and Care Services,[4] Child Care,[5] Residential Facilities,[6] School Boarding Facilities,[7] and Child Accommodation Services.[8]
[3]Working with Children (Risk Management and Screening) Act 2000, Schedule 1, s 14.
[4]Working with Children (Risk Management and Screening) Act 2000, Schedule 1, s 4.
[5]Working with Children (Risk Management and Screening) Act 2000, Schedule 1, s 4A.
[6]Working with Children (Risk Management and Screening) Act 2000, Schedule 1, s 1.
[7]Working with Children (Risk Management and Screening) Act 2000, Schedule 1, s 2.
[8]Working with Children (Risk Management and Screening) Act 2000, Schedule 1, s 9.
In order to undertake such regulated employment involving children, 28 year old Jamie Luke Storch (the Applicant) was issued a positive notice and blue card on four separate occassions.[9]
[9]A positive notice remains current for up to 3 years. The blue card remains current for the same period as the
positive notice.: Working with Children (Risk Management and Screening) Act 2000, s 231(2),(3).
The Applicant was first issued a positive notice and blue card on 25 August 2009, when he was 18 years of age. The blue card was for his work at the residential campus of Spinifex State College in Mt Isa. The College described his work as being in ‘student child care’.[10]
[10] Occurrence Report Number QP0900930484, 27 January 2010, Materials produced by Queensland Police Service; G, 4.
On 19 August 2011, the Applicant was issued his second positive notice and blue card for his work at the Mt Isa Institute of TAFE. On 17 August 2012, this positive notice, the Respondent advises, was ‘transferred to a paid employee blue card for the purposes of working with Uniting Care Community ‘where he worked as a night supervisor at the Uniting Care Residential Facility’.[11]
[11] Respondent’s Outline of Submissions, 12 November 2019, 38.
The Applicant’s employment records[12] reveal that from 16 April 2013 until 18 August 2013 he worked at various Goodstart Early Learning Centres as an Assistant Educator. Following this, from 19 August 2013 until 18 May 2014, he worked as an Assistant Educator at the Goodstart Mooroobool Centre. Then, from 19 May 2014 until 13 December 2015 he worked as a full time and part time Early Childhood Teacher at the Goodstart Edmonton Centre.
[12], Materials produced by the Queensland Police, BCS-179.
The Applicant’s most recent positive notice and blue card was issued on 24 August 2015 for his work with Goodstart Early Learning Centres at Edmonton and Mossman. On 14 December 2015 he commenced working at the Mossman Centre as a full time Early Childhood Teacher.
From 27 March 2015 the Applicant had also been an approved foster carer with the Department of Child Safety, Youth and Women. In the following two years, he had a total of five children in his care, three for respite care and two as primary placements. In order to be a foster carer, the Applicant required a foster carer certificate,[13] which in turn required a positive notice.[14]
The Applicant took annual leave from his Early Childhood Teacher position at the Goodstart Mossman Centre, (the Centre) from 19 May 2017. He did so because in order to complete his study towards a Bachelor of Education with a major in Early Childhood Education, he needed to complete a Practice placement at Wonga Beach State School.
[13] Child Protection Act 1999, ss 131, 132, 133(1).
[14] Child Protection Act 1999, s 133(3)(d)(i), (e).
On 1 June 2017, KW, the mother of A, a five-year-old boy, who had attended the Centre’s preschool in 2016, met with KJ, the Centre’s Director and told her that A had informed her and his father, MW, that while attending the Centre in 2016, the Applicant had touched his (A’s) genitals.[15]
[15] Statement by KJ to police on 9 June 2017, Queensland Police Service materials BCS-186.
According to the Centre’s records, A had commenced at the Centre on 4 January 2016 and left on 22 January 2017.[16] He was three-years of age when he commenced, turned four in March 2016, and was five when he told his parents of the alleged incident.
[16] Statement by KJ to police on 9 June 2017, Queensland Police Service materials BCS-186.
Following KJ’s meeting with A’s mother, she advised Goodstart’s Area Manager and their Critical Incident Team of the complaint. The following day, 2 June 2017, the Centre’s Director also informed the Police and the Department of Education.[17]
[17] Statement by KJ to police on 9 June 2017, Queensland Police Service materials, BCS-186.
Police immediately informed the Department of Child Safety, Women and Youth of A’s complaint against the Applicant, and of several historical complaints about the Applicant. This resulted in the two children then in the Applicant’s care being removed from his care on 2 June 2017.
On Saturday, 3 June 2017, KJ received a phone call from the Applicant. He told her that he was worried that his blue card would be taken away from him. He told her that somone had made a report about him and that on the previous day his two foster children had been taken away from him.
On 6 June 2017, NR, an Internal Investigator with Goodstart Early Learning, whose role it was to investigate serious misconduct involving Goodstart employees, arrived in Cairns. An assessment relating to the allegation against the Applicant had been sent to her on 2 June 2017.[18]
[18] BCS 208 NR’s statement to police on14 June 2017D, Queensland Police Service materials, BCS-208.
On the afternoon of 6 June 2017 NR conducted a recorded interview with the Applicant. Earlier that day, she had also interviewed two other of the Centre’s employees. On 7 June 2017 she interviewed one more Centre employee. She described two of the employees (KJ and JH) as having had worked closely with the Applicant.[19]
[19] Materials produced by the Queensland Police Service, Statement by NR,14 June 2017, BCS-211.
On 7 June 2017, following a phone conversation with the Applicant, NR interviewed him for the second time.
On 7 June 2017, in a child friendly interview, pursuant to s 93A of the Evidence Act 1977, A made a statement to the police. A’s mother, KW, and his father, MW made their statements on 10 June 2017.
On 12 June 2017, the Applicant was interviewed by police. After an informal but recorded interview at his home he participated in a formal interview and made a statement to the police at a police station. Following the formal interview he was charged with indecent treatment of a child.
At this time, Blue Card Services were also notified of the change to the Applicant’s police information, due to the indecent treatment of a child charge. Although there is some suggestion that police may have earlier notified Blue Card Services of earlier complaints and other information,[20] the Respondent states that there was record of any such notification.[21] In any event, both the Police Service and the Respondent agree that without a charge, the pre-existing information, would not have been sufficient to trigger a reassessment of the Applicant’s eligibility to hold a blue card.[22]
[20] Materials produced by the Department of Education, 183; NTP-213.
[21] Respondent’s Outline of Submissions, 12 November 2019, 25.
[22] Respondent’s Outline of Submissions, 12 November 2019, 25.
As this charge related to an offence, deemed, for the purposes of the Working with Children Act, to be a ‘disqualifying offence,’[23] the Respondent suspended the Applicant’s positive notice on 12 June 2017 and notified the Applicant’s employers.[24]
[23]Working with Children Act,(Risk Management and Screening) Act 2000, s 240(1); s168; Schedule 4, 4.
[24]Working with Children Act,(Risk Management and Screening) Act 2000, s 240(6).
On 14 July 2017 the Department of Education issued the Applicant with a notice to show cause why he should not be ‘prohibited from providing education and care to children’.[25] On 1 August 2017, the Applicant responded to the Department of Education’s notice to show cause, but was issued a prohibition notice on 30 August 2017.
[25] ‘Show Cause Notice before Prohibition Notice’, Catherine O’Malley, Executive Director, Regulation,
Assessment and Service Quality, Early Childhood and Community Engagement , 14 July 2017, Materials produced by theDepartment of Education and Training, p 1.
On 29 May 2018, in the District Court of Queensland in Cairns, the Applicant pleaded not guilty to ‘one count of indecent treatment of a child under 16, under 12, under care’. Following a two-day jury trial, the Applicant was found not guilty of the charge.
On 1 June 2018 the Applicant asked the Department of Education to lift his prohibition. After considering the Applicant’s submission, including that received on 26 July 2018, the Department of Education cancelled his prohibition notice on 1 August 2018.[26]
[26] ‘Decision Regarding Cancellation of Prohibition Notice’, Catherine O’Malley, Executive Director,
Regulation, Assessment and Service Quality, Early Childhood and Community Engagement, 1 August 2018.
As the Applicant had been acquitted, for the purposes of the Working with Children Act, his charge for a disqualifying offence had been dealt with ‘other than by a conviction’.
Such an outcome generally requires the chief executive (the Respondent) to issue a positive notice.[27] However, the Respondent formed the view that the Applicant’s case was ‘an exceptional case in which it would not be in the best interests of the children for the chief executive to issue a positive notice’.[28] Consequently, as the Respondent had found the Applicant’s case to be an exceptional case, the Working with Children Act required the Respondent to issue a negative notice.[29]
[27] Working with Children Act,(Risk Management and Screening) Act 2000, s 221(1).
[28] Working with Children Act,(Risk Management and Screening) Act 2000, s 221(2).
[29]Working with Children Act,(Risk Management and Screening) Act 2000, s 221(2).
As required by the Working with Children Act,[30] on 12 June 2018, the Applicant was notified of the Respondent’s proposal to issue a negative notice. The Applicant was provided with all relevant information and invited to make submissions about the proposal, and especially about, ‘whether or not there is an exceptional case’. After considering the Applicant’s submissions, the Respondent completed the assessment, and issued a negative notice to the Applicant on 23 October 2018.
[30]Working with Children Act,(Risk Management and Screening) Act 2000, s 229(2)(b)(i).
On 16 November 2018 the Applicant filed an application with the Queensland Civil and Administrative Tribunal (the Tribunal) seeking, pursuant to s.18 of the Queensland Civil and Administrative Act 2009 (QCAT Act), a review of the Respondent’s 23 October 2018 decision that the Applicant’s case was ‘an exceptional case’ in the context of the Working with Children Act, as it would not be in the best interest of children for the Applicant to be issued with a positive notice and blue card’.
NATURE OF THE TRIBUNAL’S REVIEW
This Tribunal has jurisdiction to review the Respondent’s decision, as a ‘reviewable decision’,[31] is defined in s 353 of the Working with Children Act as including—
353(a) a decision of the chief executive as to whether or not there is an exceptional case for the person, if because of the decision the chief executive—
(i)issued a negative notice or negative exemption notice to the person
[31]Queensland Civil and Administrative Act 2009, s.17.
The QCAT Act states that when exercising its review jurisdiction, the Tribunal
19(a) Must decide the review in accordance with this [the QCAT] Act and the enabling Act under which the reviewable decision being reviewed was made [the Working with Children Act].[32]
[32]Queensland Civil and Administrative Act 2009, s 19(a).
In such a review, the Tribunal ‘has all the functions of the decision-maker for the decision being reviewed’[33] and ‘must hear and decide a review of a reviewable decision not as an appeal but by way of a fresh hearing on the merits’.[34]
[33]Queensland Civil and Administrative Act 2009, s 19(c).
[34]Queensland Civil and Administrative Act 2009, s 20(2).
Consequently the Tribunal’s review is not a review in the sense of an examination and assessment of the correctness of the earlier decision. Instead, the Tribunal takes on the role of the previous decision maker, to hear the matter afresh and ‘to produce the correct and preferable decision.’[35]
[35]Queensland Civil and Administrative Tribunal Act 2009, s 20(1).
As the Tribunal’s review of the Respondent’s decision is by way of a fresh hearing, it is required to consider not only the materials before the Respondent at the time of the decision under review, but also new materials tendered by the parties. Additionally, materials may also be secured by the Tribunal, as the QCAT Act provides that the Tribunal ‘may inform itself in any way it considers appropriate’.[36]
[36]Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(c).
Exercising this power, the Tribunal issued Notices to Produce on 2 May 2019 and 23 May 2019, 13 June 2019, 16 July 2019, 19 July 2019 and 19 August 2019. In response, materials were produced by the Department of Child Safety, Youth and Women, the Townsville Magistrates Court, and the Queensland Police Service. Copies of these materials were provided or were otherwise made available to the parties.
As to the possible outcomes of the reviw, when reviewing a reviewable decision the Tribunal may —
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or(c) set aside the decision and return the matter for reconsideration to the
decision-maker for the decision, with the directions the tribunal considers appropriate.[37]
[37]Queensland Civil and Administrative Tribunal Act 2009, s 24(1).
The Human Rights Act 2019 (Qld) (the Human Rights Act) requires the Tribunal to give ‘proper consideration to a human right relevant to the decision’.[38]
[38]Human Rights Act 2019, s 58.
The main objects of the Human Rights Act are—
(a) to protect and promote human rights; and
(b) to help build a culture in the Queensland public sector that respects and promotes
human rights; and(c) to help promote a dialogue about the nature, meaning and scope of human rights.[39][39]Human Rights Act 2019, s 3.
The Act’s ‘primary objects’ are to be achieved by means including—
(a) requiring public entities to act and make decisions in a way compatible with human
rights, and….(f) requiring courts and tribunals to interpret statutory provisions, to the extent possible
that is consistent with their purpose, in a way compatible with human rights.[40][40]Human Rights Act 2019, s 4.
Many of the Act’s provisions relate to public entities. The Human Rights Act states that ‘a public entity does not include…a court or tribunal except when acting in an administrative capacity’.[41] Consequently, whether, for the purpose of the Human Rights Act, the Tribunal is a ‘public entity’ depends on whether it can be said to be acting in an ‘administrative capacity’.
[41]Human Rights Act 2019, s 9(4)(b).
As Queensland’s relatively new Human Rights Act 2019 is based on Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), Victorian courts’ consideration of the Charter’s provisions provides some guidance to the interpretation of the Queensland Human Rights Act. [42]
[42]PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327; Re Kracke and Mental Health Review
Board (2009) 29 VAR 1, [279].
In Patrick’s case[43] Justice Bell, drew on his judgment in Kracke[44] to set out a rationale and test for determining whether a Tribunal is acting as a judicial or a public entity. Justice Bell observed that as ‘quasi judicial’ ‘tribunals act in both judicial and administrative capacities’, ‘an administrative decision made by a decision-maker, who is required to act judicially, remains administrative in character’.[45]
[43]PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327.
[44]Re Kracke and Mental Health Review Board (2009) 29 VAR 1.
[45]PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 32, [117].
On this basis his Honour went on to hold that when acting in an administrative capacity in its original and review jurisdiction, a tribunal is a public [entity].[46] This led Justice Bell to conclude that to determine in what capacity a Tribunal is acting in a particular case, calls for an examination of the jurisdiction and the powers then being exercised.[47]
[46]PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 32, [123].
[47]Re Kracke and Mental Health Review Board (2009) 29 VAR 1, [279].
Adopting Justice Bell’s approach, to determine whether the Human Rights Act’s provisions directed at public entities apply to the Tribunal depends on whether the Tribunal is acting in an administrative capacity when exercising its review jurisdiction under the Working with Children Act.
As noted above, in reviewing the Respondents decision, the Tribunal undertakes a fresh review on the merits and in accordance with the enabling Act. In so doing, it performs the administrative functions of the Respondent as decision maker.
On this basis, it is my view that, for the purposes of the Human Rights Act, when reviewing the Respondent’s decision regarding screening for child related employment, the Tribunal is acting in an administrative capacity, and therefore is a ‘public entity’ for the purposes of the Human Rights Act.
Consequently, the Tribunal is required to comply with the Human Rights Act’s provisions directed at public entities, including those requiring public entities ‘to act and make decisions in a way that is compatible with human rights’,[48] to give proper consideration to a human right relevant to the decision[49], and to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights.[50]
[48]Human Rights Act s 4(b); 58(1)(a).
[49]Human Rights Act s 59(1)(b).
[50] Human Rights Act s 4(b),(f); s 48(1).
Compliance with the Human Rights Act and giving proper consideration to relevant human rights requires the Tribunal to take specific steps in this review.
First, in order to comply with the relevant requirements of the Human Rights Act the Tribunal must identify the protected human rights that may be affected by statutory provisions and their interpretation, as well as the Tribunal’s decisions and other actions.
The Human Rights Act lists a number of key Civil and Political Rights[51] as well as Economic, Social and Cultural Rights.[52] With respect to other human rights, the Human Rights Act states in section 12 that—
A right or freedom not included or only partly included in this Act that arises or is recognised under another law must not be taken to be abrogated or limited only because the right or freedom is not included in this Act or is only partly included.
[51]Human Rights Act, Part 2, Division 2.
[52]Human Rights Act, Part 2, Division 3.
The Act states that the term ‘other laws’, includes not only international law conventions but also the common law, the Commonwealth Constitution and Commonwealth laws.[53]
[53] Examples of another law in Human Rights, Act s 12.
Secondly, having identified the relevant rights or freedoms, the Tribunal must determine whether the relevant statutory provisions and their interpretation by the Tribunal and the Tribunal’s decisions and actions are compatible with such human rights.
The Human Rights Act specifically requires ‘courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights.’[54] Section 48(1) repeats this requirement of all those interpreting laws and adds a qualification in subsection 48(2)
(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
[54]Human Rights Act, s 4(f).
If a statutory provision, or a Tribunal’s action or decision does not limit or interfere with human rights, it is said to be compatible with human rights.[55]
[55]Human Rights Act, s 8 (a).
Thirdly, even where a a limit or an interference with a human right is identified, it may nevertheless be deemed compatible with human rights as long as the limitation is ‘reasonable and justifiable.[56]
[56]Human Rights Act, s 8 (b)
The Human Rights Act acknowledges that human rights may be limited, but only on specific grounds. In section 13(1) the Act states—
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.
Consequently the Tribunal must identify any limits on human rights and then determine whether such limits are ‘reasonable and justifiable’, and consequently compatible with human rights.
The Applicant’s Allegation Regarding His Human Rights
In the Tribunal hearing, the Applicant submitted that in deciding to issue him a negative notice, the Respondent had not acted as directed by the Act or within the spirit of the legislation.
More specifically, he argued that while the intent of the legislation is to protect children, the decision of whether a case is an exceptional case is not to be undertaken at the expense of the rights of others.
However, the State Parliament has recognised that in seeking to protect the welfare and best interests of children, the Act infringed the rights of others. The justification offered for such a limitation of rights is that—
The infringements [on the right of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their well being.[57]
[57]Commission For Children And Young People Bill 2000, Explanatory Notes at p.10 - With respect to Part 6
of the Bill, dealing with Employment Screening for Child Related Employment.
This does not mean that the extent of consequent infringement on human rights is unlimited. The Human Rights Act requires any limits on human rights to be reasonable and justifiable. Section 13(2) of the Human Rights Act lists factors that may be relevant to the determination of ‘whether a limit on a human right is reasonable and justifiable’. These are—
(a) the nature of the human right;
(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom.
(c) relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e) the importance of the purpose of the limitation;
(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g) the balance between the matters mentioned in paragraphs (e) and (f).
Consequently, in considering and applying the the Working with Children Act’s criteria, set down for determining whether the Applicant’s case is an exceptional case, and for acting in accordance with the provisions of the QCAT Act, I will identify the protected human rights that may be affected by particular decisions, actions and statutory provisions.
In determining whether the specific statutory provision or the Tribunal’s decisions and actions are compatible with the human right, I will, to the extent possible that is consistent with the purpose of the limit imposed, interpret the statutory provision appearing to limit the right in a way that is compatible, or if not possible, most compatible with human rights.[58]
[58]Human Rights Act 2019, s 48(2).
If the Applicant’s rights appear to be constrained by statutory provisions, or the Tribunal’s actions, statutory interpretation or decisions, the Tribunal will need to determine whether the limits imposed on the Applicant’s human rights are reasonable and justifiable. In so doing, the Tribunal is guided by the criteria set out in s 13(2) of the Human Rights Act.
WHAT CONSTITUTES AN ‘EXCEPTIONAL CASE’?
A review of the Respondent’s decision that, in the context of the Working with Children Act, the Applicant’s case was ‘an exceptional case’, must commence with a determination of what constitutes an ‘exceptional case’.
To determine the ordinary meaning of ‘exceptional’, dictionary definitions are of assistance. According to the Macquarie Dictionary, exceptional means ‘beyond what is ordinary’, while the Oxford Dictionary defines ‘exceptional’ as ‘forming an exception, be unusual, or not typical’.
As the Working with Children Act does not define ‘exceptional case’ the meaning needs to be determined by giving the words their ordinary meaning, in the context of the Act, and taking into account the intention of the legislation.
In addition, as Justice Hedigan has held, determining the meaning of ‘exceptional case’ calls not only for a consideration of ‘the context of the legislation [but also] the intent and purpose of the legislation and the interests of the persons whom it is designed to protect’.[59]
[59]Kent v Wilson [2000] VSC 98 at [22], cited with approval by the Tribunal in Commissioner for Children
and Young People v FGC [2011] QCATA 291 at [31].
The meaning of ‘exceptional case’ is determined in the context of the Act as a whole to ensure that the meaning adopted is consistent with the express or implied intention of the legislature. This includes consideration of the Act’s stated object,[60] the term’s location in the Act, it’s employment elsewhere in the Act, the context of the specific sections in which it is employed, and where referring to the review, the purpose of a review.
[60]Working with Children (Risk Management and Screening) Act 2000, s 5.
The stated object of the Working with Children Act is ‘to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring…the screening of persons employed in particular employment or carrying on particular business’.[61]
[61]Working with Children (Risk Management and Screening) Act 2000, s 5. See also, the Long Title.
On this basis, it is clear that the Act intends to benefit the interests of children by protecting them from harm through the screening of those who work with, or intend to work with them. Consequently, for the Tribunal to find the Applicant’s case is an exceptional case the Tribunal needs to find that even though the Applicant’s case is one in which the Respondent would otherwise be obliged to issue a psositive notice, it is exceptional in that issuing a positive notice would not be in the best interests of children.
Clearly, what makes a case exceptional will vary from case to case, as different factors may lead to the conclusion that a case is, or is not, an ‘exceptional case’. Therefore, what constitutes an exceptional case needs to be decided on its own facts, and has been described as a ‘question of fact and degree in the whole of the circumstances of each particular case.’[62] Such determinations have also been judicially described as ‘matters of discretion’.[63]
[62]LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244 citing Re FAA
[2006] QCST 15, [22].
[63]Re Imperial Chemical industries Ltd’s patent Extension Petitions [1983] VR 1.
Ultimately, whether the Applicant’s case is an ‘exceptional case’ is for the Tribunal to determine, weighing the evidence presented by the parties, and reaching a decision on the balance of probabilities, bearing in mind the gravity of the consequences involved.[64]. Neither of the parties bears an onus of proof to prove or disprove the existence of such an ‘exceptional case’.[65]
[64]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30].
citing as authority, the test in Briginshaw v Briginshaw & Anor [1938] HCA 34.
[65]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
The Working with Children Act provides the decision maker with a detailed guide and check list by which to determine whether a particular case is ‘exceptional’.
Mandatory Considerations
Section 226 of the Working with Children Act lists specific factors to which the decision maker must have regard when deciding whether or not the Applicant’s case is an ‘exceptional case’. The addition to the specific factors the Act requires the decision maker to also have regard to,
anything else relating to the commission, or alleged commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.[66]
[66]Working with Children (Risk Management and Screening) Act 2000, s 226 (2)(e).
I turn to consider evidence presented to the Tribunal, as it relates to each of the mandatory considerations set out in s 226(2)(a), to which the decision-maker must have regard in relation to the alleged commission of the offence by the Applicant.
First - Whether the case concerns a conviction or a charge.[67]
[67]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(i).
The charge laid against the Applicant was that on a date unknown between the 1st day of March 2016 and the 1st day of February 2017 at Mossman in the State of Queensland the Applicant unlawfully and indecently dealt with A, and that A was under 12 years of age and under the Applicant’s care for the time being.[68]
[68] As per indictment to which Applicant pleaded ‘Not guilty’. Transcript of proceedings on 29 May 2018 in District Court of Queensland in Cairns, before Judge Fantin, Document produced by the District Court of Queensland, BCS-82. He was charged under the Criminal Code 1899, s 210(1)(a).
On 30 May 2018, following a two-day trial in the District Court of Queensland in Cairns, the jury found the Applicant not guilty.
The Working with Children Act defines a ‘charge’ as, ‘a charge in any form’ and ‘conviction’ 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’.[69]
[69]Working with Children (Risk Management and Screening) Act 2000, Schedule 7.
Consequently, while not convicted, and having his charge dismissed by a jury, for the purposes of the Working with Children Act, the Applicant’s case still concerns a charge.
Why a charge is considered?
Why a charge that has been dismissed by a jury is neverthelesss considered, is addressed in TNC Chief Executive Officer, Public Safety Business Agency.[70]
A charge is not the same as an allegation. Before a charge is brought, consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. This legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.
[70]TNC Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489 at para [83].
Any consideration of the nature and relevance of this offence clearly needs to acknowledge that the Applicant was found not guilty of this offence. However, the Working with Children Act makes it clear that even where, as in this case, the chief executive is aware of ‘a charge for a disqualifying offence that has been dealt with other than by a conviction’,[71] and the chief executive is satisfied that it is an exceptional case, the chief executive must issue a negative notice.
[71]Working with Children (Risk Management and Screening) Act 2000, s 221(1)(b)(iv).
Consequently, ‘whether the offence was committed, or is alleged to have been committed’,[72] it is required to be taken into account in deciding whether a case is an ‘exceptional’ case.
[72]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iii).
Having been found not guilty of the alleged offence, the Applicant is aggrieved that he has not been issued a positive notice and blue card. He clearly feels that he is being retried or punished despite the fact that a jury has found him to be not guilty.[73] It is important that I address this allegation, which, for the Applicant, appears to be at the core of this review.
[73] Applicant’s Submission to QCAT received by the Tribunal on 14 January 2019.
Retried or punished for what he didn’t do?
If this process was in fact a retrial or a punishment for an offence for which the Applicant was acquitted, then it would be incompatible with section 34 of the Human Rights Act, which states that—
A person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law.
In the course of parliamentary debates of the Working with Children Bill, a simple, yet significant explanation was given for why the Working with Children Act appears to impose additional punishment or place again on trial those convicted or acquitted, and why the Act makes it so difficult for those with a criminal history or about whom there exists police or disciplinary information, to be permitted to work with children.
It is about putting gates around employment to protect children. It is not about punishing people twice; it is about protecting children from future abuse. [74]
[74]Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard,
14 November 2000, 4391. Ms Bligh cited by Member McConnell in Luong v Director-General, Department
of Justice and Attorney-General [2019] QCAT 302 at [9].
However, a refusal to issue a positive notice does not constitute a retrial as the Tribunal’s role is not to determine whether the Applicant is guilty of the charge. The Tribunal’s function is to undertake an analysis and evaluation of risk that would be posed to children if a positive notice was issued. It is not concerned with proving or disproving the commission of offences which the Applicant may have committed previously, but with the prevention of future potential harm.[75]
[75]Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 referring to
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28 at para 84.
Referring to the Western Australian Court of Appeal decision in Grindrod[76] the Tribunal held that—
It is not this Tribunal’s function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non conviction charges in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of future potential harm.[77]
[76] Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28 at para 84.
[77] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 para 58.
In the matter of TNC[78], the Tribunal held that it is not a matter for the Tribunal to be satisfied on a balance of probabilities that the offence occused. But rather it was sufficient for the decision maker to be satisfied ‘that the circumstances raise the possibility of a risk to children.’[79] Consequently, in focusing on the risk to children and young people, rather than on the evidence regarding the commission of the offence, the Tribunal held that ‘in making that assessment of risk the totality of the evidence was to be considered, not merely the charges’[80]
[78]TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489.
[79]TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para 89.
[80]TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para 90.
Clearly, the Tribunal’s finding that an exceptional case exists must be based on the best interests of any children that the Applicant would be able to work with if issued a positive notice. For this reason the decision to be made by the Tribunal is unrelated to any findings as to the Applicants criminal culpability.
It is also important to differentiate criminal liability from suitability to work with children. The Applicant’s acquital in a criminal trial is not necessarily a finding that concerns responsible for the charge being laid were without foundation. Unlike the jury, the Tribunal is able to consider all available evidence relating to the alleged commission of the offence that the chief executive (in this case, the Tribunal] reasonably considers to be relevant to the assessment of the person.
In a criminal case the prosecution bears the onus of establishing beyond reasonable doubt that a person charged with a crime is guilty. Criminal trials are also governed by strict rules of evidence, restricting what a jury may consider. On this basis not all available evidence was presented at the Applicant’s trial. In fact the Applicant chose not to present any evidence and relied solely on testing the prosecution case. That the jury found the Applicant not guilty does not necessarily mean any more than that the prosecution failed to persuade the jurors[81] that the Applicant is guilty beyond any reasonable doubt. It does not necessarily mean that the charge lacked substance or veracity.
[81] Or at least 11 out of 12 jurors, see: Jury Act 1995, s 59A.
In contrast, the Tribunal reviews all available evidence without any party bearing the onus of proof, and without the strictures of the rules of evidence.
Most importantly, I stress that the focus of this hearing is not on The Applicant’s culpability but on whether facts suggest that the Applicant’s case is an exceptional case, in that it would not be in the best interests of children for a positive notice to be issued.
Another cause for the Applicant’s dissatisfaction at not being issued a positive notice is his perception of being denied natural justice and being treated unfairly.
The right to be accorded natural justice
In his opening statement at the Tribunal hearing, the Applicant argued that while the intent of the legislation is to protect children, the decision whether a case is an exceptional case is not to be undertaken at the expense of natural justice.
He submitted that he had been denied natural justice in that the decision that his case was an exceptional case had not been based on all the evidence, but rather on negative and unfounded inferences with little attention given to evidence favouring his submissions.
As discussed earlier, the Tribunal ‘is not bound by the rules of evidence,’[82] and in line with the inquisitorial nature of reviews ‘may inform itself in any way it considers appropriate’[83] However, the Tribunal is required to ‘act fairly and according to the substantial merits of the case,’[84] and in proceedings, ‘must observe the rules of natural justice.’[85]
[82]Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b).
[83]Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(c).
[84]Queensland Civil and Administrative Tribunal Act 2009, s 28(2).
[85]Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(a).
The term ‘natural justice’ refers to common law principles that are also described as procedural fairness or due process. Natural justice has been described as a right to be treated fairly and applies to a wide range of judicial, quasi judicial and administrative decision making processes. Consequently precisely what constitutes Natural Justice may vary in accordance with what is deemed to constitute fairness in the particular circumstances.
At its core, natural justice refers to the right to a fair hearing. A fair hearing generally entails appropriate notice of a hearing, a right to present one’s case, and a decision maker who is impartial, competent and unbiased. Furthermore it recognises that a party to proceedings has the right to present their own case, and be provided with a logically probative decision based on all the evidence presented.
The Human Rights Act list the the right to a fair hearing as a human right. Section 31 provides that—
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice.
(3) All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
The provisions of the QCAT Act, the enabling Working with Children Act and other legislation such as the Evidence Act, set out many provisions designed to ensure that parties to Tribunal proceedings are accorded natural justice.
In my examination of records of hearings, directions and orders made leading up to the hearing in this matter, I have not identified any denials of natural justice. Adequate notices and extensions have been granted as requested. Appropriate care has been taken to ensure that parties, and especially the Applicant, has been provided with all documents to be considered by the Tribunal. The Applicant has been provided with adequate opportunity to respond to submissions and to present his own case. I also note that the hearing was originally set down for 19 August 2019 but was vacated and relisted on 13 and 14 November 2019 in order to ensure that the parties had sufficient time to consider all materials, and to provide adequate time for the Tribunal to hear all the evidence that parties wished to present.[86]
[86] Tribunal directions on 9 August 2019 issued on 15 August 2019.
The Applicant was provided with the opportunity to be legally represented prior to and in this hearing.[87] While opting to represent himself, the Applicant availed himself of his right to be accompanied by a support person of his choice.[88]
[87] Notice of hearing, 26 March 2019.
[88] Queensland Civil and Administrative Tribunal Act 2009, s 91(2).
In the course of the hearing I was conscious of the fact that the Applicant was not legally represented and took some unopposed steps to ensure the Applicant received a fair hearing.
Transparency of proceedings, or the right to a public hearing is also a part of natural justice. I discuss this aspect of Natural Justice later when I address the Applicant’s closed hearing and non publication application.
Second - Whether The Offence Alleged To Have Been Committed Is A Serious Offence, And If It Is, Whether It Is A Disqualifying Offence.[89]
[89]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(ii).
Section 167, of the Working with Children Act defines ‘serious offence’ by reference to schedules 2 or 3 of the Act. Schedule 2 lists Current Serious Offences, including the Criminal Code, section 210 offence, ‘Indecent treatment of children under 16’.
A ‘disqualifying offence’ is defined in section 168 of the Working with Children Act by reference to schedule 4 or 5 of the Act. Schedule 4 lists current disqualifying offences, including Criminal Code, section 210, ‘Indecent treatment of children under 16’.
Consequently, the offence that the Applicant was alleged to have committed is a serious offence that is also a disqualifying offence.
The classification of an alleged offence determines how the decision maker is to consider the issuing of a a positive or negative notice.[90]
[90]Working with Children (Risk Management and Screening) Act 2000, s 221 and Chap 8, Pt 4, Div 9 in general.
As the Applicant’s case falls into the category of cases with ‘no known convictions’ but ‘a charge for a disqualifying offence’ that ‘has been dealt with other than conviction’[91] the chief executive is required to issue a positive notice, unless satisfied that it is an exceptional case.[92]
Third - When The Offence Is Alleged To Have Been Committed.[93]
[91]Working with Children (Risk Management and Screening) Act 2000, s 221(1).
[92]Working with Children (Risk Management and Screening) Act 2000, s 221(2).
[93]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iii).
The offence was alleged to have been committed between 1 March 2016 and 1 February 2017. The timing of the alleged offence appears to be relevant in several ways.
1. There was a gap of between several months to over a year between the time of the alleged offence and the child making the allegation. In addition, there was a further gap of almost a month between the child’s allegation and the Applicant being charged with the offence. These periods could be said to provide a basis for questioning the accuracy with which an event that allegedly occurred so long ago was accurately recalled.
Consequently, the Applicant has argued that the time-frame of between five and seventeen months from the alleged incident was a ‘long period in the memory of a young child and [provided] plenty of time for others’ words to impact on their thinking.’[94]
[94] Jamie Storch, letter to the Department of Education, dated 1 August 2017.
However, the evidence given by the six year old boy did not appear to be affected by the passage of time,[95]and no evidence was presented that would substantiate the suggestion that the boy’s testimony was influenced by his parents. In this respect, I note that the boy’s mother was almost apologetic when she emailed the statement requested by the Centre’s Director to record what she had said her five year old son had told her and her husband. In the final paragraph she stated
This has been such a hard decision to tell you as I know Mr Storch is nearly at the end of his education degree and has two foster children. We just needed to make sure we notified you in case other cases had or ever come forward and for[sic] [A] had never mentioned anything about this until this date. [96]
[95] Matrerials produced by the District Court of Queensland, Trans BCS-140, per Her Honour Judge Fantin.
[96] Materials produced by the Department of Education and Training, p 142.
Her Honour, Judge Fantin, the District Court Judge in the Applicant’s trial, described the delay between the offence and the complaint as ‘not unusual’[97] Her Honour also noted that ‘Although he is young, he withstood a lengthy police interview and also whilst not lengthy in the time he spent in court, he maintained what happened to him under cross examination’.[98]
[97] Transcript of Proceedings District Court of Queensland, Cairns Day 2 pp 2, 4.BCS-140, 142.
[98] Transcript of Proceedings District Court of Queensland, Cairns Day 2 p 3. BCS-141.
Consequently, I accept that as the evidence given by the complainant has not been discredited, it cannot be ignored, particularly in light of related issues, discussed below, raised by other early learning age children taught by the Applicant.
2. The length of time is arguably all the more relevant where the child in question was alleged to have been taught to report such improper touching education straight away, yet did not do so.
The Applicant has argued that A’s delay in telling his parents is not what a child taught to immediately report improper touching would do. This he argued is particularly so in A’s case, as he was a child who enforced the rules.[99]
[99] Police Record of Interview, 12 June 2017, Queensland Police Service materials , BCS-75-76; Life Story, p 4.
However, I note that there is clear evidence as to the Applicant’s development of Early Childhood learning materials. Relevant materials included ‘Safety’, a Kindergarten Safety Unit, created by the Applicant in March 2016,[100] materials relating to curriculum content, development goals, learning breakdown and end of term reflection, and the Applicant’s letter to parents and guardians, dated 10 June 2015, in which he outlines a proposal to discuss personal safety with children. However, the extent to which they were employed in 2016 classes attended by A is unclear.
[100] Additional Materials, dated 2 August 2019,submitted to the Tribunal by the Applicant.
When counsel for the Applicant sought to introduce the argument as to what A would have done, the trial judge referred to judicial directions about ‘avoiding preconceived notions of how complainants ought to behave in a sexual assault case’. In particular Judge Fanton cited the 2003 Queensland Court of Appeal case R v Cotic,[101] in which Justice Holmes cited with approval the summing up remarks of Judge McGill that, ‘there are no rules about how people who engage in sexual abuse of children behave and no rules about how their victims behave’. Illustrating the point Judge Fanton observed how ‘dangerous it is to make assumptions about how people behave in this position.’[102]
[101]R v Cotic [2003] QCA 43.
[102]R v Cotic [2003] QCA 43, 5-6.
3. Because the Applicant’s alleged commission of the offence and its disclosure are quite recent, the alleged offence is less likely to be assessed as something the Applicant may have once done, but due to passage of time is unlikely to do again.
It could also be said that the Applicant is also less likely to have taken steps to address the behaviours and actions which led him to be charged with the offence. However, this argument needs to be considered in the context of judicial reluctance to make findings based on conjecture about how a person ought to behave rather than actual evidence of the actual behaviour .
4. As the Applicant was 26 years of age at the time of the alleged offence, his actions at the time cannot be dismissed as having been committted before he acquired the judgment and maturity to know better.
On the other hand, the mitigating factor of youth has more relevance to the Applicant’s alleged actions when complaints regarding his inappropriate interactions with children were made in 2009, when he was 18 years of age.
5. The offence was alleged to have been committed seven years after the Applicant was repeatedly warned by his then employer and by police about the manner of his dealing with children.[103] This suggests, as the Respondent has maintained, that the Applicant has failed to heed warnings regarding his behavior, and how it is perceived by others – including by some children. The period of time also suggests that he has had ample time to address these behaviours.
[103] Notice to produce materials, Queensland Police Service NTP-27, NTP-401.
6. That the perceived pattern of behaviour leading up to the charge continued for over seven years prior to the charge being laid in 2016, appears to evidence not only a pattern of behaviour but entrenched behaviours. This undermines any suggestion that the alleged offence (or the incident with C) was merely a lapse of judgment, as the Applicant maintains.
Fourth - The Nature Of The Alleged Offence And Its Relevance To Employment, Or Carrying On A Business, That Involves Or May Involve Children. [104]
[104]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iv).
I begin the consideration of the nature of the alleged offence by outlining the events surrounding the Applicant’s alleged offence, as recounted in interviews by A and A’s parents and the Applicant.
I do not do so in order to re-evaluate the Applicant’s culpability on the balance of probabilities rather than on the higher criminal standard of proof of beyond reasonable doubt. As the Tribunal held in TNC,[105] it is not the Tribunal’s role to determine whether the Applicant committed the alleged offence. Instead, the evidence is assessed in order for the Tribunal to determine whether on the balance of probabilities it is ‘sufficient for a decision maker to be satisfied that the circumstances raise the possibility of a risk to children.’[106]
[105]TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489.
[106]TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para 89.
As the Tribunal’s focus is not confined to the assessment of criminal culpability for the offence, it follows that the Tribunal must consider all available evidence related to the alleged offence and relevant to the assessment of the Applicant.
A, is a young boy who attended Goodstart Early Learning Mossman from 4 January 2016. He turned 4 in early March 2016.
According to his parents, on the evening of 7 May 2017, when aged 5 and at home with his parents, A said to them ‘Do you remember when I was four and I went to kindy? Mr Storch touched my privates’. When questioned by his parents, A told them that he had gone to the bathroom and did not have his ‘jocks’ on. When asked how the Applicant had touched him, he made a cupping motion with his hand over his genital area. When asked to explain, he told his parents that he had gone to the toilet and was not wearing underpants. He also told his mother, ‘[the Applicant] gave me dry shorts because mine were wet’.[107]
[107] Statement dated 10 June 2017, materials produced by the Queensland Police Service, BCS-175.
When asked how that made him feel, according to his mother A said ‘It made me feel really sad’. He also told her that when the Applicant had left the bathroom he was ‘Really happy that he’d left’[108] KW also states that while discussing the incident A became upset and said ‘Don’t talk about it I just want to forget it.’[109]
[108] Statement of MK dated 10 June 2017, materials produced by the Queensland Police Service, BCS-175.
[109] Statement of MK dated 10 June 2017, materials produced by the Queensland Police Service, BCS-175.
KW states that as A had waterplay at kindy on most days over summer she would pack extra clothes in his bag. Noting that A was fully toilet trained when he went to the Centre, she says she was surprised when on one occasion the Applicant informed her that A ‘had a toileting accident and that he had wet clothes in the bag’.[110] But I note that A’s father says that at the start of 2016 he would collect A and there would be ‘a bag of wet clothes in his bag and I would be told he had a toileting accident’.[111]
[110] Statement of MK dated 10 June 2017, materials produced by the Queensland Police Service, BCS-176.
[111] Statement of WM dated 10 June 2017, materials produced by the Queensland Police Service, BCS-191-192.
In his statement, A’s father, MW also recounted that, referring to the Applicant allegedly touching A, he had asked ‘Why did he do that?’ to which A replied. ‘I don’t know’. WM says that they also asked A ‘had you weed?’ Was he checking for something?’ A reportedly replied, ‘I hadn’t weed. We were playing having wet time and he just came in’.[112]
[112] Statement of WM dated 10 June 2017, materials produced by the Queensland Police Service, BCS-190.
MW also observed that interactions between the Applicant and A were ‘friendly’ and ‘they would give each other high fives’ when running into each other outside of the Centre. He added, ‘I had an impression that A was a favourite at the kindy’.[113]
[113] Statement of WM dated 10 June 2017, materials produced by the Queensland Police Service, BCS-190.
In a child-friendly interview with police, conducted on 7 June 2017 in accordance with s 93 of the Evidence Act, A is reported to have said said that the offence occurred when after ‘waterplay’ at the Centre he was in the bathroom changing out of his wet clothes. He said that when he had taken off his wet clothes and was putting on a dry t-shirt, the Applicant came into the bathroom. According to A the Applicant then placed his hand between his legs and over his ‘privates’ and moved his hand on A’s penis. A said that the Applicant did not say anything to him in the bathroom.
The Applicant has pointed out a number of discrepancies in A’s evidence as to what occurred. The main discrepancy appears to relate to what was or was not said at the time of the alleged incident. The account of A’s story as given by A’s parents in their statements to the police and in their testimony at the trial was that the Applicant had asked A whether ‘it was sore’ and that A had told the Applicant that ‘it was not sore’. However, in his statements to police A did not mention this verbal exchange, and even stated that the Applicant did not say anything to him at the time.[114]
[114] Summary of section 93A interview with the complainant on 7 June 2017, Materials produced by the Queensland Police Service, BCS-216-217.
As to when this incident may have taken place, A’s parents and KJ, the Director at the Centre mentioned a period of time late in the year when A was in ‘kindy’ and did not want to go to the Centre. The dates in the charge relate to the period when A was in the Applicant’s care at the Centre.
A’s parents’ offer an explanation for why they did not bring the allegation made by A on 7 May 2017 to the attention of the Centre until 1 June 2017. They state that at first they were unsure how to proceed, and when they decided to tell the Centre’s Director, they had to wait as she was on leave.
On 6 June 2017, the Applicant participated in an interview with NR, the Goodstart Internal Investigator. The meeting record,[115] which the Applicant co- signed on the same day, listed the matters to be discussed as being, ‘To ascertain whether you have inappropriately touched a child – A in the toilet area (of the Centre).[116]
[115] Notice to Produce Materials from Queensland Police Service, NTP- 383-385.
[116] Notice to Produce Materials from Queensland Police Service, NTP- 383.
The interview began with the Applicant stating that ‘the only contact I would have had with A in the bathroom was if he was wet during a wet play experience, or he would have had an accident’. He added that he recalled ‘a few accidents last year’.[117]
[117] Notice to Produce Materials from Queensland Police Service, NTP- 383.
The Applicant explained that he had ‘implemented a process, where if I am changing a child, I encourage the children to do this themselves. If the children need help, I will help them. I always ask the children for permission to assist, if they ask me to stop helping , I do.’[118]
[118] Notice to Produce Materials from Queensland Police Service, NTP- 383.
He also mentioned that wherever possible he avoided toileting duties if colleagues are available to assist. He added, ‘I do this so parents don’t get the wrong idea, and to also protect myself.’ He told NR that he also avoided changing nappies and changing children with wet clothes. At swimming lessons last year, he said he stood in the bathroom entrance where a parent could see him clearly.[119]
[119] Notice to Produce Materials from Queensland Police Service, NTP- 383.
The Applicant told the Applicant that he could not recall any interactions with children that may have led to allegations being raised. Asked about his specific interactions with A during 2016, the Applicant described A as an outgoing child, very talkative, not afraid to stand up for himself or others. He was the leader of the class. ‘A would speak up, it surprises me that he didn’t say anything last year, if and when it happened’[120].
[120] Notice to Produce Materials from Queensland Police Service, NTP- 384.
Asked whether he recalled an incident with A of this nature during 2016, the Applicant said ‘No’. He said he didn’t recall any incident unless it was accidental. A would have said ‘Hey stop that’. He stated that he did not know how the allegation came about.
A handwritten note at the end of the record of interview record the Applicant saying I see A ‘at our local junior football each week and he is always happy when he sees me’.[121]
[121] Notice to Produce Materials from Queensland Police Service, NTP- 385.
In his 2 January 2009 ‘Life Story’ the Applicant states, ‘After the interview, I spoke with the union and told them there was not enough information. The union requested more information and a second interview’. The following day in a telephone conversation with the Applicant, NR recounts in her statement that she asked to reinterview him later that day, and offered to provide specific details of the alleged incident.[122]
[122] Notice to Produce Materials from Queensland Police Service, NTP-386.
At the commencement of the second interview on 7 June 2017, NR read out the alleged incident in its entirety but reiterated that she was not able to provide the Applicant with a copy of the complaint. The Applicant then took a break to obtain legal advice by phone in private.
In his Life Story document dated 2 January 2019, the Applicant states that NR informed him that A was the complainant. He says that he ‘was in utter shock’ as he ‘didn’t understand how A could say [he] touched him.
According to NR’s account of the interview (cosigned by the Applicant on 7 June 2017), when the interview resumed, the Applicant said that having heard the allegations at the start of the year (perhaps intended to read as ‘at the start of the interview’) he remembered that a male child was getting changed in the Kindergarten bathroom and ‘his private area was red and very swollen’.
On 2 January 2019, the Applicant wrote that when he heard the account of the incident in which he was reported to have said ‘oh that looks sore’, he remembered ‘an incident, ‘[he] did tend to in the bathroom in 2016’.
In the second interview he said that he was concerned that A may need to see a Doctor, and consequently asked an assistant to come and have a look while he stood witness. He also said he told the child’s mother of the incident at the end of the day. He said that he could not remember touching the child’s penis on any occasion.
In further explanation, the Applicant told NR that the reason he noticed the child’s red and swollen genitalia, was that he had been helping the boy ‘get his clothes together after he had had an accident’. He added that he never helped a child in the bathroom without first getting his permission.
Asked by NR why he had not told her about this incident in their first interview, the previous day, he replied ‘I didn’t remember this yesterday’.
The Applicant also explained why on a number of occasions he had said that he may have accidentally touched a child. He said that he had been trying to come up with reasons for why A would have said what he said. He added that he couldn’t recall a time when I had to touch a child in the bathroom.
On 2 January 2019, in his Life Story, the Applicant explained why he had indicated that A was the child involved in the incident. ‘I thought this was the indecent incident that was reported and was relieved this was the incident that was reported because that was the only time I ever helped a child in the bathroom with something of this magnitude.’[123]
[123] Life Story dated 2 January 2009, p 4.
On 12 June 2017, five days after his second interview with NR, police spoke with the Applicant at his home. He was then asked to accompany the police to the police station. After availing himself of the opportunity to obtain legal advice by phone, and despite legal advice not to participate in a formal interview without legal representation, he accompanied the police officers to the police station.[124]
[124] Life Story dated 2 January 2009, p 4.
At the police station,[125] the Applicant was advised that police were investigating a complaint of indecent treatment of a child and that the child was A. When asked to tell police what he knew about the matter, he mentioned being interviewed by NR and being told that A had recently disclosed the allegation to his mother.
[125] Police Record of Interview 12 June 2017, Materials produced by the Queensland Police Service, BCS-51.
Asked to comment on the allegation by A, the Applicant stated that he did not recall ever touching A in an inappropriate way, and later stated more definitively, ‘I did not touch [A].’ He further stated that he had ‘ no idea’ when or that it could ever have happened and that he had ‘no need to ever touch him in an inappropriate way.’
He also noted that he did not like being alone with a child in the children’s bathroom as this could be ‘taken out of context’. For that reason he said he did not know why A would say that he was in the bathroom. He added that ‘a lot of people are sceptical about males’ working in early childhood education.
The Applicant said that if anything needed to be done in the bathroom such as a child having ‘an accident’ and needing help, he would let his assistant deal with those matters’.
The Applicant accepted that A was capable of dressing and toileting himself without any assistance from adults. Asked about the procedure for getting children dried and dressed afterwards, the Applicant said that his assistant would do that ‘unless we’re strapped for time and we’ll both do that, but we’re right next to each other usually’.
When asked about Goodstart’s policy with respect to staff assisting children who had a toileting mishap, the Applicant said, ‘I can’t recall the procedure off the top of my head’.
On being asked about water play, the Applicant told police that water play occurred ‘not very often’ and explained ‘Once – once a term’. When he was asked about a time when children were sliding on mats during water play, the Applicant stated that he couldn’t recall that ever happening while he was in the room.
Asked to make any additional comments, the Applicant said that he had ‘no idea when or that it could have happened. I have no need to ever touch him in an inappropriate (like that) way ever.’ He also said ‘I wholeheartedly believe that if I’d done something inappropriate to A he would have said something when it happened’. Asked how he knew that A would have said something at the time, the Applicant replied that it was because ‘we did a lot of work about what to do if someone’s doing anything inappropriate to you.’
Allegations regarding child C and possibly others were investigated and revealed that the incident/s recalled by the Applicant related to at least one other child, C. Consequently all refererences in statements by the Applicant and witnesses in which A appeared to have been mistaken for C were omitted and not presented to the jury at the District Court trial.
The Respondent draws the Tribunal’s attention to inconsisistencies in the Applicant’s evidence as to the offence for which he was charged and to the other incidents. The relevance of what appear to be inconsistencies is considered further below.
Evidence relating to incidents involving C and possibly other children, whom the Applicant mistook for A, were deemed irrelevant or inadmissible in the Applicants trial for the indecent treatment of A. However the excluded evidence of the other incidents, and particularly the one relating to child C, are relevant to this review’s determination of whether the Applicant would pose a risk to children if issued a positive notice.
The offence with which the applicant was ultimately charged was ‘indecent dealing with a child under 16, under 12, under care’.[126] It is is a serious criminal offence punishable by up to 20 years imprisonment. The core offence of unlawfully and indecently dealing with a child under the age of 16 years[127] carries a maximum penalty of 14 years imprisonment.[128] Where, as in this case, the alleged victim is a child under 12, or for the time being [the accused] has the child under his care, the maximum penalty is increased to 20 years imprisonment.[129]
[126] Criminal Code 1899 (Qld), s 120.
[127] Criminal Code 1899 (Qld), s 120(1)(a).
[128] Criminal Code 1899 (Qld), s 120(2).
[129] Criminal Code 1899 (Qld), s 120(3) and (4).
When such an offence is committed against a child by an offender caring for them. The offence is deemed to be particularly heinous as it is perceived to pose the most feared risk and lasting harm to child victims. For this reason, the breach of responsibility, duty of care and trust is deemed to aggravate culpability.
The effect of such a breach of trust on young victims of sexual offences is memorably stated by South Australia’s Supreme Court Justice Mullighan in R v Liddy (No2).[130]
They are offences that cause a feeling of outrage and revulsion in the community…They involve a serious breach of trust…There is every likelihood that the effects of the harm will be prolonged and perhaps lifelong. The courts must do what they can to protect children from such conduct…Although reasons for the offending vary…it seems clear that such offenders are not usually persons who are unable to control their sexual instincts…
[Offences involving child victims of sexual offences] have an insidious effect upon the community…They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.[131]
[130]R v Liddy (No 2) [2002]SASC 306.
[131]R v Liddy (No 2) [2002]SASC 306, at [7].
Consequently even a charge or allegation relating to such an offence impacts the trust and care, which is an implicit requirement for regulated employment, and especially early childhood education.
The nature of the offence and its direct relevance to the care of children has been held to justify a careful approach that emphasises the Act’s principles - that ‘the welfare and best interests of a child are paramount,’[132] in that every child is entitled to be cared for in a way that ‘protects the child from harm and promotes the child’s well being.’[133]
[132]Working with Children (Risk Management and Screening) Act 2000, s 6(a).
[133]Working with Children (Risk Management and Screening) Act 2000, s 6(b).
It is for this reason, that even where the concerns do not lead to a conviction, decision makers have adopted a conservative and protective approach.
For the purposes of this review, the relevance of the Applicant being charged with indecent dealing with a child under 12, under his care is not only relevant to the risk that he may reoffend and be charged with further offences of a sexual nature against children.
The charge was a catalyst to the reassessment of the Applicant’s case and whether in view of matters related to the offence and now disclosed as relevant to the assessment of the Applicant, it would not be in the best interest of children for the Applicant to be issued with a positive notice.
Consequently, the Act requires the chief executive to determine not just whether the Applicant is likely to reoffend but also more broadly whether it would be in the best interests of children for the Applicant to be permitted to engage in regulated employment, including teaching and child care.
The consequent finding and decision as to the existence of an exceptional case must be a conclusion on the best interests of any children that the Applicant would be able to work with, if issued a positive notice. It is unrelated to any findings as to the Applicants criminal culpability.
What is not in the best interests of children or may harm them is wide ranging. As the Working with Children Act accepts, ‘it is immaterial how the harm is caused’.
The Working with Children Act adopts the meaning of ‘harm’ as defined in section 9 of the Child Protection Act 1999.
(1) Harm, to a child is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a) physical, psychological or emotional abuse or neglect; or
(b) Sexual abuse or exploitation.
(4) Harm can be caused by—
(c) a single act, omission or circumstances; or
(d) A series or combination of acts, omissions or circumstances.
Much of the material submitted for this hearing relates to a range of the Applicant’s behaviours, and how some parents, children, police and others have perceived them to affect children. The decisive question is whether on the basis of the evidence, I am satisfied that any of the Applicant’s behaviours are such as would not be in the best interests of children if he were to be issued a positive notice.
While the focus of criminal allegations, charges and trials is on how the harm was caused, the focus of this review is on identifying whether on balance the Applicant’s participation in regulated employment creates a risk of harm to children or would not be in their best interest. The risk of harm may flow from a pattern of behaviour, none of which individually may be criminal in nature.
Fifth- Information About The Person Received By The Respondent Under Section 337 And 338 Of The Act
The chief executive was not provided with any relevant information about the Applicant by the Chief Executive of Corrective Services under section 319[134] No report about the Applicant’s mental health was given to the chief executive under section 335,[135] and 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.[136]
[134]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(b).
[135]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(c).
[136]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).
Information received from the Director of Public Prosecutions under s 318 of the Working with Children Act by the Tribunal’s Orders To Produce includes the statements of several witnesses and police officers, the summary of the police interview with A on 7 June 2017, the police record of interview with the Applicant on 12 June 2017, and the transcript of the Applicant’s trial in District Court of Queensland before Judge Fantin on 29 and 30 May 2018.
There is little doubt that the disclosure of this and other information obtained for the purposes of this review intrudes into the Applicant’s privacy and may tarnish his reputation.
However, as legally recognised human rights, rights to privacy and reputation are qualified. The Human Rights Act s 25 states,
A person has the right—
(a) Not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and
(b) Not have the person’s reputation unlawfully attacked
Various legislative provisions authorise, regulate and limit the disclosure of personal information to the chief executive with respect to prescribed notices. For example the Child Protection Act 1999 prohibits the publication of information likely to identify a child, the subject of an investigation or a notifier of a harm or risk of harm.[137]
[137]Child Protection Act 1999, ss 189, 186(2).
While the Applicant has dismissed the investigative information provided to the chief executive as unproven allegations, the information had to meet the criteria of ‘investigative information’ set down in s 305 of the Working with Children Act. Similarly confined are the circumstances in which the police commissioner must notify the chief executive of investigative information[138], what qualifies as a change in a person’s criminal history,[139] and when the police commissioner must notify the person if investigation information about the person is given to the chief executive.[140]
[138]Working with Children (Risk Management and Screening) Act 2000, s 317(3).
[139]Working with Children (Risk Management and Screening) Act 2000, s 317(8).
[140]Working with Children (Risk Management and Screening) Act 2000, s 315.
In this matter, the Tribunal’s Orders to Produce directed that those from whom documents were sought must ‘redact any names and addresses that may identify any child or third-party to the proceedings.’[141]
[141] See, for example, Tribunal Order to Produce, in this matter, dated 19 July 2019.
The Applicant asserts that disproportionally, he is denied work extending well beyond his early childhood teaching. This highlights the transferability of the blue card which is issued withut condition. Where suitability and identified risks were able to be shown to apply only to certain forms of prescribed employment or categories of children or young people, it could be argued that a restriction rather than a cancellation of a person’s capacity to work with children and young people would be a more proportionate response to his alleged offences and concern raising police information.
The right to work enhrined in Article 6 of the ICESCR is qualified by article 4 which provides that ‘the State, may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
In this respect I find that that the restrictions of the Working with Children Act constitute a legally determined limitation. Whether the purpose of the statutory limitation is the ‘promotion of welfare in a democratic society’ will, therefore determine whether it is compatible with this human right.
The object of the Working with Children Act is to ‘promote and protect the rights, interests and wellbeing of children and young people’.[203] Whether the implementation of the provisions of the Act limit the right to work in a manner that is compatible with the right may well depend on whether they can be justified by and proportionate in the manner they limit or fall within the qualified scope of the right.
[203]Working with Children (Risk Management and Screening) Act 2000, s 4.
Whether the limitations resulting from the implementation of the legal rather than arbitrary limitations of the Working with Children Act bring it within the qualifications of the scope of the right or whether they are seen as a limit of the right in a manner permitted by the human right, I find that the interpretation and application of the provisions of the Working with Children Act are compatible with the right to work.
Risks
The evidence discloses the following risk elements:
First – the Risk of ‘Re-offending’
Perhaps the foremost risk factor, is the concern that the Applicant is likely to again engage in conduct that previously elicited expressions of concern for the welfare of children in his care, and which most recently led him to be charged.
Even though a jury found the Applicant not guilty of the charge of indecent treatment of a child, the Working with Children Act requires not only convictions but charges of criminal offences to be considered in assessing his application for a blue card.
As noted above, the charge of indecent treatment of a child is categorised as a serious and disqualifying offence. Consequently, as the Respondent submits, it must be treated with utmost gravity for the protective purposes of the Act. For the many reasons raised throughout this statement of reasons, a verdict of not guilty, does not necessarily negate concerns relating to behaviours relevant to the charge or identified in the course of consequent investigations.
What must be emphasised is that this risk factor is not confined to the risk of the Applicant engaging in conduct likely to lead to him being charged with indecent dealing with a child. The Applicant’s history of behaviours perceived not to be in the best interests of children suggests that even though he is made aware and seemingly accepts the need to change his behaviours, he is unwilling or unable to do so.
Thus the Respondent submits that the evidence, when viewed as a whole, creates ‘concerns about the possible risks posed by the Applicant to children within the context of the current review and when considering the purposes of the Working with Children Act’.
Police records reveal how the record of incidents relating to the Applicant grew to the extent that it could no longer be considered a coincidence.[204] I agree that as the incidents took place in different locations, occurred over a lengthy period of time, raised similar concerns, and involved unrelated persons, a pattern of behaviour appears to have emerged.
[204] Notice to produce material, Department of Child safety, Youth and Women, NTP-20.
Second -The Serious Nature Of The Alleged Offence
For the purpose of this review, the nature of the alleged offence extends well beyond the charge of indecent dealing with a child under 12. As discussed above, it also encompasses the breach of trust evident in the Applicant’s behaviours in 2009, and the Applicant’s disregard for the protective regulations evident in the incident relating to child C, and alleged to have occurred in relation to child A.
It is a breach of trust towards the most vulnerable members of our society aggravated by evidence that the Applicant may have previously indecently treated children and engaged in grooming behaviours while issued with a positive notice and blue card and engaged in regulated employment.
Third - Inconsistencies In The Applicant’s Evidence
The Respondent submits that inconsistencies in the Applicant’s evidence require the Tribunal to carefully consider evidence given by the Applicant.
I have noted the inconsistencies in the Applicant’s evidence. I have also considered the Applicant’s explanations for such discrepancies and note in particular the limitations the risk of self incrimination regarding past and other complaints.
Nevertheless, inferences may be drawn from discrepancies in his evidence and from the various behaviours which were identified or disclosed during the investigations.
Confusing A with C
The Applicant’s various and often inconsistent statements in relation to the alleged incident with child C made him an unreliable witness. While alleging to have a poor memory and recollection, the Applicant tended to provide clear answers and recall events with great detail, only to change his mind. For example his statements as to having been in the bathroom assisting a child ranged from total denial to admission of having touched a child’s genitalia. It is also difficult to reconcile the Applicant’s statement of how well he knew A, with his mistaken identification of A as the student he assisted in the bathroom.
The Applicant categorically ruled out ever having touched or changed A. Yet with reference to other touching incidents he seemed to be at pains to distinguish touching and indecent touching.
While the Applicant cites stress, lack of information and lack of legal representation as reasons for his differing accounts of incidents with children in the Centre’s bathroom, his explanations appear to be self serving, and even on his own versions of events do not diminish broader concerns for the children involved.
These inconsistencies did not present a problem in his trial as the Applicant’s statements as to the incidents he had with a child or children were not presented to the jury. This was due to evidence that suggested that he had been talking about another child or children.
Regarding the incident with C, the Applicant observed that as an experienced colleague said that she may have touched to have look, and that ‘perhaps the policy was not written in a way that was clear.’ However he appeared to agree that his dealings with C were inappropriate, stating ‘I had a lapse in judgment’ and allowed myself to be in a compromising position. He added that this is still not abuse and not a sign of a pattern of behaviour.’
His answers to questions put to him in the hearing appeared to suggest that in his view, to be relevant to suitability to hold a blue card, inappropriate touching must not merely be inappropriate but be intentionally indecent. In so doing he appeared to ignore the reality that it is the victim’s perception rather than the perpetrator’s intent that matters. He also appears not to recognise that while evidence of merely inappropriate behaviour was insufficient for the purposes of his criminal charge, it is relevant and can be considered by the Tribunal for the purposes of Working with Children Act reviews.
Water Play
Water play was the context in which the alleged offence occurred. The Applicant agreed that the Centre’s program usually included waterplay, which he described to police as a spontaneous activity in the kindergarten yard.
What is surpring is that while the Applicant stated that ‘water play’ did not occur very often - maybe once a term’, all other staff members who were interviewed (and A’s mother) stated that it occurred frequently, and even daily in warm weather.
The Respondent suggests that in downplaying the role of waterplay, the Applicant was distancing himself from the setting of the alleged offence.[205]
[205] Respondent’s Outline of Submissions, 12 November 2019, p. 36.
His explanation for this discrepancy is unconvincing and somewhat concerning when he alleged that he misunderstood the purpose for which he was asked the question.[206]
[206] Applicant’s closing submissions, p.6.
The Applicant’s statement that it occurred once a term rather than frequently and in warmer months often daily lends itself to being viewed, as the Respondent submits, as the Applicant wanting to distance himself from that day of water play.[207]
[207] Respondent’s Outline of Submissions, 12 November 2019, p. 36.
Evidence Given by Children
At the hearing, the Applicant stated that all complaints by children must be taken seriously. Yet this is not the tenor of his submissions with respect to the allegations made by A, or the allegations made by the residential college boys in 2009. In his submissions, the Applicant repeatedly states that the allegations are unsubstantiated and that A was mistaken.
For example, in his closing statement at the Tribunal hearing, the Applicant offered an explanation for why A may have made the allegation against him. He stated that A must have been mistaken, and as a four year old ‘what he perceived to have occurred did not’.
As someone who has focused on the development of programs designed to make it easier for children to speak out, he has sought to dismiss the veracity of this allegation on the misleading grounds that he had a blemish free record of working with children.
Fourth - Blue Card
The relevance of the allegations and charge against the Applicant could not be more direct. All allegations and complaints made and recorded against the Applicant occurred in context of child related employment for which the Applicant held a blue card.
All incidents relate to the core concern of indecent treatment of children or at least inappropriate behaviour with children while a holder of a blue card working with children. The particular relevance of the offence that was the subject of the charge and earlier allegations have been addressed above.
Fifth – Pattern of Behaviour
Police records clearly establish a number of incidents where the Applicant has acted in breach of accepted practice or acted around children in ways that have made the children or others uncomfortable. As the police have suggested ( and I am inclined to agree), ‘there appears to be a pattern emerging and …it is now more than just bad luck that [the applicant] has attracted this number of reports’.[208]
[208] Notice to Produce materials, Queensland Police Service, NTP-20
One of the common features has been the Applicant’s unwillingness or inability to heed and act on the warnings that he had been given.
In the light of evidence gathered by police, Goodstart, and the Education Department ,the Applicant’s submission that the charge was the first time that such an allegation had been made against him is patently wrong. While it is true that this is the first time he was charged with an offence, allegations of similar conduct and improper conduct, that he himself regrets, span a number of years.
Sixth - Limited Insight and Lack of Remorse
The Applicant has exhibited limited or no remorse and insight into the impact of his actions on children. As noted earlier, the only such remorse expressed by the Applicant has been for the boy he repeatedly says he bullied in the residential College in Mt Isa. References to this alleged incident are puzzling as it was apparently not the subject of any complaint against the Applicant, nor behaviour from which any inferences have been drawn.
It could be suggested that, at least with respect to complaints dating back to 2009, expressions of remorse or regret may be self incriminatory. However, expressions of sympathy or understanding regarding the children involved need not be tantamount to admissions of criminal liability. They may be expressions of concern or regret of (unintended) consequences or harm occassioned to children by others.
In defending accusations levelled aginst him, the Applicant has challenged the correctness of views and any standards at odds with his practices. He displayed this attitude towards prevailing views as to grooming through gifts, attention and favouritism, possession of pornography and the keeping of a gun in a house in which children reside. He clearly views his contrary views to be correct and even suggested that they are likely to be recognised as such in the future.[209]
[209] Applicant’s closing submissions at Tribunal hearing on 13 November 2019.
The Applicant’s statements, submissions and references to allegations by children tend to be preoccupied with declarations of innocence and criticism of the actions of authorities and even of some of the children concerned.
Seventh - Insight Into His Own Behaviour
When pressed the Applicant has conceded that his behaviour may on occasion have been such that it created negative perceptions. However, this has not led the Applicant to accept that his behaviour is at fault, but rather that it is the misunderstanding and perceptions of others that require him to alter his behaviour.
Consequently, when asked in cross examination whether his behavior, (the subject of complaints) had posed a risk to children, the Applicant’s reply was ‘Yes, when seen out of context’. When later asked what he meant by ‘out of context’ he said, ‘ a child comes forward to say he was touched, he was mistaken, there could be other reasons.’
This may explain why the Applicant has taken some drastic measures to protect himself but at the same time has failed to comply with mandatory guidelines and reporting obligations.
Having been made aware of how his behaviours are perceived by others, the Applicant has not taken steps to alter his behaviours accordingly. Instead through seemingly excessive precautions, he implements what he says are measures intended to minimise the risk of being perceived to be acting inappropriately.
These precautions sit uneasily alongside the Applicant’s questioned adherence to guidelines and policies and his continuation of practices that have continued to cause concern. In this way the Applicant appears to be determined that irrespective of what others think, he will decide what is appropriate.
Evidence presented reveals his failure to demonstrate an understanding of the impact of his behaviour on children at risk. His breach of guidelines and his own unwillingness or inability to alter behaviours perceived, or found to threaten children, suggest that any protective benefits of his safety courses would be outweighed by the potential risks of his behaviour.
Even where there are doubts as to the existence of any intention to harm children, actions may nevertheless be found to be harmful. In such a case, how a person responds to being made aware of such perceived or actual harm to children is crucial.
That such an effect was caused by a misunderstanding of the perpetrator’s actions may be relevant to criminal liability. It is, however, largely irrelevant to a determination of whether the case is ‘exceptional’.
In his written and oral submissions the Applicant displays a level of self assuredness that appears to dismiss the views of others as to what behaviour is in the best interest of children. He does not appear to recognise a need to be familiar with, and follow guildelines and policies developed by those in authority, preferring to develop his own. Such an attitude has resulted in the Applicant acting in ways perceived by at least some of his his colleagues and others, to be detrimental to children.
While the Applicant criticises the perceptions of those who ‘misconstrue’ his actions, he fails to acknowledge that not only the ‘misconstrued’ actions, but also how those are perceived by children and others, may be harmful to children. This is undoubtedly the case when he causes children to feel uncomfortable because they feel that his behaviour crosses boundaries.
When his behaviour is perceived negatively, yet is not adjusted in response to warnings or through compliance with the policies of employers, its continuation cannot be said to be in the best interests of children, irrespective of whether the motivation is ulterior, supported by theorists, or whether there is insufficient evidence to lead to charges being laid or to a criminal conviction.
What the Tribunal requires, is to see clear and demonstrated insight not merely into how and why his behaviours are perceived by others to pose a risk to children. More importantly, the Tribunal needs to see insight into how the behaviours that are claimed to be misunderstood may pose a risk to the safety and welfare of children.
Eighth - Lacking Acknowedgement Of The Rationale For And Criteria Of The Blue Card Assessment Process
As the Respondent submits, there is ‘No acknowledgement by [the Applicant] of the fundamental reason for, and the purpose of the blue card screening process’.[210]
[210] Respondent’s Outline of Submissions, 12 November 2019, p. 43.
While some of the Applicant’s witnesses have suggested that he has been a aware of and compliant with regulations and guidelines, he displays little understanding of the basis on which positive and negative notices are issued
While the Applicant is apparently an intelligent and educated young man, he has chosen to focus on the detrimental impact on him of the Respondent’s decision – a factor that is not relevant to the decision in question.. He has done so even though the statutory criteria for the issuing of positive and negative notices (which exclude consideration of any detriment suffered by the Applicant) have also been clearly, and in some detail, set out for him by the Respondent in the reasons for the decision to issue a negative notice.
This is particularly surprising as the Applicant has emphasised his interest in and commitment to promoting children’s awareness of their right to say no to improper behaviour by adults (including teachers).
Ninth - Transferability
As the Respondent notes, a blue card is transferable to any child related employment or the conduct of any child related business regulated by the Act.
The Applicant’s work plans, if he is reissued a positive notice and blue card, are unclear. He told the Tribunal that he intends to work in primary schools rather than in early childhood education which was too risky for a male teacher. Yet only minutes earlier he also told the Tribunal that he no longer intended to work as a teacher.
Earlier complaints alleged that the Applicant posed a risk to older children, while the more recent charge and allegations related to concerns of potential risks to preschool children. The issuing of a positive notice is not conditional and cannot be confined to a particular type of work with children.
The Applicant overlooks the transferability of the blue card when he submits that in being prevented from undertaking other child related work or being a kinship carer he is being punished and the scope of protection offered to children extends beyond that which may be justified by the allegations.
Weighing Up Risks And Protective Factors
My consideration and weighing up of risks and protective factors has revealed that in large measure factors previously identified, or alleged to pose risks to children, remain ‘real and appreciable’ risks.
While the Applicant is perceived as a committed early childhood teacher, he has yet to gain insight into how and why certain of his behaviours have posed and continue to pose risks to children, and continue to preclude him from being assessed as suitable to enagage in regulated employment. Only when he has acquired such insight will he be able to meaningfully address the underlying causes.
Overall Findings
I have considered all the materials before the Respondent at the time the reviewable decision was made, the materials submitted for the review hearing, in response to the Tribunal’s notices to produce, and the sworn evidence given at that hearing.
The evidence has been considered against the mandatory statutory criteria listed in the Working with Children Act, s 226(2), the Act’s object and principles, and other evidence relevant to both the alleged offence and to the assessment of the Applicant. I have also weighed the evidence in terms of identified risks against protective factors.
In Maher[211] the Court of Appeal held that in a case such as this a Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interest of children for a positive notice to be issued.’[212] The nature of the offence has also led me to adopt a cautionary approach.[213]
[211]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[212] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [30].
[213] Chief Executive Officer of Child Protection v Scott (No2) [2008] WASCA 171.
With that in mind, and on that basis of my earlier consideration and findings I am satisfied that the Applicant’s case is, in the terms of Working with Children Act s 221(2), ‘an exceptional case in which it would not be in the best interest of children for the chief executive to issue a positive notice.’
OTHER APPLICATIONS
The Applicant has applied for a Tribunal direction prohibiting the publication of witness names and statements.
This application also raises the related question of whether the hearing should be conducted in public or in a closed hearing.
Non Publication Order
Pursuant to s 66 (3) the Applicant has also applied for non publication that would identify witnesses to proceedings. The tribunal may make a non-publication order if if considers the order is necessary for one of several reasons specified in QCAT Act s 90(2), including
(b) to avoid endangering the physical or mental health or safety of a person; ….or
(e) for any other reason in the interests of justice.
As the proceedings concern child-related employment under the Working with Children Act, the interests of justice require that nothing be published that could identify any child that was a party to these proceedings or a child in anyway identified or referred to in the materials or proceedings in this matter.
The publication of the names or otherwise identifying the witnesses or any third party to these proceedings, which the Applicant seeks to be suppressed, I also consider to be necessary. The publication of some names may unintentionally lead to the identification of the child or children. The identification of some witnesses and third parties may also disclose confidential information.
In addition, the disclosure of their names is not essential to ensuring that the decision and reasons for the decision are made public. The publication of their identities may also not be in the interests of justice in that it may have the undesirable effect of deterring witnesses in similar cases from coming forward to testify.
With respect to the identification of the Applicant, I accept that the publication of his identity may cause embarrassment, adversely affect his reputation and disclose certain confidential information. However, in view of the seriously nature of the charge and allegations and their direct relevance to the safety and welfare of children, I am guided by judicial authority that in a case of this kind, public interest outweighs the detriment to the Applicant.
On that basis, I find it necessary to make a non-publication order prohibiting the publication of statements, documents and any other information in these proceedings that may be capable of identifying any child, witness or third party in these proceedings.
Closed Court
For the non publication order to be effectively, the publication of protected information through the presence of members of the public or media needs to also be addressed.
Section 90(1) of the QCAT Act provides that ‘Unless an enabling Act, that is an Act, provides otherwise, a hearing of a proceeding must be held in public. Section 361(1) of the Working with Children Act, the enabling Act, states that ‘A hearing of a proceeding for a QCAT child-related employment review must be held in private.’
Consequently, the hearing of this matter is to be held in private in a closed hearing.
Where ‘a hearing of a proceedings is to be held in private’ the QCAT Act imposes an obligation on the Tribunal to ask parties and witnesses to such a proceedings whether they need the support of someone else to be present in the hearing with them.[214] On this basis the Tribunal granted leave for KL to accompany and support the Applicant throughout the hearing.
[214]Queensland Civil and Administrative Tribunal Act 2009, s 91.
HUMAN RIGHTS
I have considered the relevant human rights as set out in the Human Rights Act and other laws. In this review the Tribunal has acted in an administrative capacity and consequently, is ‘a public entity’ for the purposes of the Human Rights Act.
Acting as a public entity the Tribunal is required to state ‘the human rights Parliament specifically seeks to protect and promote’[215] and to act and make decisions in a way compatible with human rights’.[216] The Tribunal must also interpret statutory provisions ‘to the extent posible that is consistent with with their purpose in a way that is compatible with human rights’.[217]
[215]Human Rights Act 2019,s 4(a).
[216]Human Rights Act 2019, s 4(b).
[217]Human Rights Act 2019, s 48(1).
On the basis of my specific findings above about the applicant’s:
·right to not be tried or punished more than once for an offence in relation to which he has been finally convicted or acquitted in accordance with law,
·right to be accorded natural justice,
·right to be presumed innocent until proved to be guilty, and
·right against self incrimination and his right to a public hearing,
relevant provisions of the Working with Children Act and the QCAT Act, as well as the actions and decisions of this Tribunal, I am satisfied that any limits imposed by the Tribunal’s decisions and actions are reasonable and justified in accordiance with s 13 of the Human Rights Act.
DECISIONS
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 confirmed.
Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to that extent that such could identify or lead to the identification of any child, witness, or third party in these proceedings.
Key Legal Topics
Areas of Law
-
Administrative Law
-
Human Rights Law
Legal Concepts
-
Jurisdiction
-
Human Rights Act 2019 (Qld)
-
Working with Children (Risk Management and Screening) Act 2000 (Qld)
-
Breach of Trust
-
Unconscionable Conduct
-
Inconsistencies in Evidence
5
12
0