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

 

[2020] QCAT 152

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

(Applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(Respondent)

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:

  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.
  1. 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.

CATCHWORDS:

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)

Child Protection Act 1999 (Qld) ss 131, 132, 133, 186.

Criminal Code 1899 (Qld) s 210(1)(a).

Evidence Act 1977 (Qld) ss 10(1), 23(2),(3).

Human Rights Act 2019 (Qld) ss 3, 4, 8, 9, 10, 12, 13, 15, 24, 25, 31, 32, 34, 48, 58.

Jury Act 1995 (Qld) s 59A.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 18, 19, 20, 24, 28, 66, 90.

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.

International Covenant on Economic, Social and Cultural Rights, Articles 4 and 6.

Bachman v Public Safety Business Agency [2016] QCAT 104.

BKV and Children’s Guardian [2015] NSWTAD 65.

Chief Executive Officer of Child Protection v Grindrod (No2) (2008) WASCA 28.

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 Maher and Anor [2004] QCA 492.

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.

LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244.

PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VCS 32.

R v Cotic [2003] QCA 435.

R v Liddy (No 2) [2002] SASC 306.

Re FAA [2006] QCST 15.

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

Re Kracke and Mental Health Review Board (2009) 29 VAR 1.

TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489.

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.

APPEARANCES & REPRESENTATION:

Applicant:

Jamie Luke Storch, self represented

Respondent:

Director-General, Department of Justice and Attorney-General, represented by Ms Borger, Government Legal Officer.

REASONS FOR DECISION

INTRODUCTION AND BACKGROUND

  1. [1]
    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]
  2. [2]
    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. [3]
    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]
  4. [4]
    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]
  5. [5]
    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]
  6. [6]
    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.
  7. [7]
    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 14December 2015 he commenced working at the Mossman Centre as a full time Early Childhood Teacher.
  8. [8]
    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. 

  1. [9]
    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]
  2. [10]
    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.
  3. [11]
    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]
  4. [12]
    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.
  5. [13]
    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.
  6. [14]
    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]
  7. [15]
    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]
  8. [16]
    On 7 June 2017, following a phone conversation with the Applicant, NR interviewed him for the second time.
  9. [17]
    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 10June 2017.
  10. [18]
    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.
  11. [19]
    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]
  12. [20]
    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]
  13. [21]
    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.
  14. [22]
    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.
  15. [23]
    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]
  16. [24]
    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’.
  17. [25]
    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]
  18. [26]
    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.
  19. [27]
    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

  1. [28]
    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—

  1. (i)
    issued a negative notice or negative exemption notice to the person …
  1. [29]
    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]

  1. [30]
    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]
  2. [31]
    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]
  3. [32]
    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]
  4. [33]
    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.
  5. [34]
    As to the possible outcomes of the reviw, when  reviewing a reviewable decision the Tribunal may —

(a) confirm or amend the decision; or

  1. (b)
    set aside the decision and substitute its own decision; or
  1. (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]
  1. [35]
    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]
  2. [36]
    The main objects of the Human Rights Act are—
  1. (a)
    to protect and promote human rights; and
  1. (b)
    to help build a culture in the Queensland public sector that respects and promotes human rights; and
  1. (c)
    to help promote a dialogue about the nature, meaning and scope of human rights.[39]
  1. [37]
    The Act’s ‘primary objects’ are to be achieved by means including—
  1. (a)
    requiring public entities to act and make decisions in a way compatible with human rights, and….
  1. (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]
  1. [38]
    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’.
  2. [39]
    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] 
  3. [40]
    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]
  4. [41]
    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]
  5. [42]
    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.
  6. [43]
    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. 
  7. [44]
    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.
  8. [45]
    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]
  9. [46]
    Compliance with the Human Rights Act and giving proper consideration to relevant human rights requires the Tribunal to take specific steps in this review.
  10. [47]
    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.
  11. [48]
    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.

  1. [49]
    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]
  2. [50]
    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.
  3. [51]
    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. (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. (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.
  4. [52]
    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] 
  5. [53]
    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]
  6. [54]
    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.

  1. [55]
    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

  1. [56]
    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.
  2. [57]
    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.
  3. [58]
    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]

  1. [59]
    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—
  1. (a)
    the nature of the human right;
  1. (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.
  1. (c)
    relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. (d)
    whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. (e)
    the importance of the purpose of the limitation;
  1. (f)
    the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. (g)
    the balance between the matters mentioned in paragraphs (e) and (f).
  1. [60]
    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.
  2. [61]
    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]
  3. [62]
    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’?

  1. [63]
    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’.
  2. [64]
    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’.
  3. [65]
    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. 
  4. [66]
    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] 
  5. [67]
    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.
  6. [68]
    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]
  7. [69]
    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.
  8. [70]
    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]
  9. [71]
    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]
  10. [72]
    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

  1. [73]
    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]

  1. [74]
    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]

  1. [75]
    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]
  2. [76]
    On 30 May 2018, following a two-day trial in the District Court of Queensland in Cairns, the jury found the Applicant not guilty.
  3. [77]
    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]
  4. [78]
    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?

  1. [79]
    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.

  1. [80]
    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.
  2. [81]
    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.
  3. [82]
    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.

Retried or punished for what he didn’t do?

  1. [83]
    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.

  1. [84]
    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]

  1. [85]
    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]
  2. [86]
    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]

  1. [87]
    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]
  2. [88]
    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.
  3. [89]
    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.
  4. [90]
    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.
  5. [91]
    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.
  6. [92]
    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.
  7. [93]
    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

  1. [94]
    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.
  2. [95]
    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.
  3. [96]
    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]
  4. [97]
    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.
  5. [98]
    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.
  6. [99]
    The Human Rights Act list the the right to a fair hearing as a human right. Section 31 provides that—
  1. (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.
  1. (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.
  1. (3)
    All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
  1. [100]
    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.
  2. [101]
    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]
  3. [102]
    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]
  4. [103]
    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. 
  5. [104]
    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]

  1. [105]
    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’.
  2. [106]
    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’. 
  3. [107]
    Consequently, the offence that the Applicant was alleged to have committed is a serious offence that is also a disqualifying offence.
  4. [108]
    The classification of an alleged offence determines how the decision maker is to consider the issuing of a a positive or negative notice.[90]
  5. [109]
    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]

  1. [110]
    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.
  2. [111]
    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.
  3. [112]
    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]
  4. [113]
    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]

  1. [114]
    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]
  2. [115]
    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.
  3. [116]
    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.
  4. [117]
    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]
  5. [118]
    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.
  6. [119]
    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] 
  7. [120]
    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.
  8. [121]
    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 .
  9. [122]
    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.
  10. [123]
    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.
  11. [124]
    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.
  12. [125]
    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.
  1. [126]
    Fourth - The Nature Of The Alleged Offence And Its Relevance To Employment, Or Carrying On A Business, That Involves Or May Involve Children.[104]
  2. [127]
    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.
  3. [128]
    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]
  4. [129]
    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.
  5. [130]
    A, is a young boy who attended Goodstart Early Learning Mossman from 4 January  2016. He turned 4 in early March 2016. 
  6. [131]
    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]
  7. [132]
    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]
  8. [133]
    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]
  9. [134]
    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]
  10. [135]
    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]
  11. [136]
    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.
  12. [137]
    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]
  13. [138]
    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.
  14. [139]
    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.
  15. [140]
    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]
  16. [141]
    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]
  17. [142]
    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]
  18. [143]
    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]
  19. [144]
    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].
  20. [145]
    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.
  21. [146]
    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]
  22. [147]
    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]
  23. [148]
    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.
  24. [149]
    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.’
  25. [150]
    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’.
  26. [151]
    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’.
  27. [152]
    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.
  28. [153]
    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.
  29. [154]
    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’.
  30. [155]
    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.
  31. [156]
    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]
  32. [157]
    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]
  33. [158]
    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.
  34. [159]
    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.’
  35. [160]
    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.
  36. [161]
    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.
  37. [162]
    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’.
  38. [163]
    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’.
  39. [164]
    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. 
  40. [165]
    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.’
  41. [166]
    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.
  42. [167]
    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.
  43. [168]
    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.
  44. [169]
    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]
  45. [170]
    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. 
  46. [171]
    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]

  1. [172]
    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.
  2. [173]
    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]
  3. [174]
    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.
  4. [175]
    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.
  5. [176]
    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.
  6. [177]
    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.
  7. [178]
    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.
  8. [179]
    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’.
  9. [180]
    The Working with Children Act adopts the meaning of ‘harm’ as defined in section 9 of the Child Protection Act 1999.
    1. (1)
      Harm, to a child is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
    2. (2)
      It is immaterial how the harm is caused.
    3. (3)
      Harm can be caused by—
    1. (a)
      physical, psychological or emotional abuse or neglect; or
    2. (b)
      sexual abuse or exploitation.
    1. (4)
      Harm can be caused by—
    1. (c)
      a single act, omission or circumstances; or
    2. (d)
      a series or combination of acts, omissions or circumstances.
  1. [181]
    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.
  2. [182]
    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

  1. [183]
    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]
  2. [184]
    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.
  3. [185]
    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.
  4. [186]
    However, as legally recognised human rights, rights to privacy and reputation are qualified. The Human Rights Act s 24 states,

A person has the right—

  1. (a)
    Not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and
  2. (b)
    Not have the person’s reputation unlawfully attacked.
  1. [187]
    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]
  2. [188]
    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]
  3. [189]
    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]
  4. [190]
    In addition, by Order of the Tribunal, parties’ access to material produced was able to be viewed and copied only for the ‘purposes that are necessary to engage in and progress the proceedings’.[142]
  5. [191]
    Pursuant to s 66(1) of the QCAT Act, the Tribunal has also prohibited publication of documents, evidence or orders if such ‘could identify the applicant, any family member of the applicant, any child or any innocent third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.’[143] 
  6. [192]
    The disclosure of what would otherwise be confidential information is authorised by the Working with Children Act, the QCAT Act, the Evidence Act and legislation governing the protection of information held by those required to produce information to be used in these proceedings.
  7. [193]
    I find that these proceedings have been governed by statutory provisions, decisions and conduct compatible with s 24 of the Human Rights Act. While the Applicant’s privacy and reputation have no doubt suffered in the course of these proceedings, his  privacy has not been interfered with in a manner that can reasonably be described as being unlawful or arbitrary, nor can the Applicant’s reputation be said to have been unlawfully attacked.

Sixth - The Final Mandatory Consideration Concerns - Anything Else Relating to the Alleged Commission of The Offence that the [Decision-Maker] Reasonably Considers to be Relevant to the Assessment of the Person.[144]

  1. [194]
    This criterion requires the decision maker to consider anything else that both, relates to the commission of the offence, and that the decision maker, on reasonable grounds, considers to be relevant to the assessment of a person’s suitability to work with children.
  2. [195]
    In this case this criterion relates primarily to earlier recorded incidents of  the Applicant’s dealings with children while he held blue cards and engaged in child related employment. It also relates to more recent allegations regarding the Applicant’s interactions with children in the Centre, and in his work as a foster carer.
  3. [196]
    The  allegations and complaints recorded by police clearly played a key role in police deciding to charge the Applicant.[145] When A’s allegations against the Applicant were conveyed to the police, a check of police records disclosed complaints and intelligence reports regarding several earlier incidents of relevance to the allegation raised by A. These were  forwarded to Blue Card Services.
  4. [197]
    Some issues disclosed by this information related to the alleged offence for which he was charged are also  relevant to this review of the basis of the decision not to issue him a positive notice. While not amounting to charges, the earlier alleged incidents appear relevant, for example, as they appear to show a pattern of behaviour that led the police to bring charges regarding the offence of indecent dealing with A.
  5. [198]
    I consider the evidence as to these other factors in chronological order. 
  6. [199]
    The earliest two instances are diclosed in police records of complaints filed in Mt Isa in late 2009.

The first 2009 complaint

  1. [200]
    On 25 August 2009 the Applicant was issued with his first positive notice and blue card  for his work at Spinifex State College Residential Campus, which the College described to police as being for ‘student child care’.
  2. [201]
    On 9 November 2009 a report was lodged with police after a 12 year old child, resident at Spinifex Residential Campus told staff that he was friends with a year 12 male who came into his room at night and touched his genitalia (‘did things to him’). The school Principal spoke with the Applicant about the allegation and asked him to leave the residential campus.[146] When examined about this at the hearing, the Applicant said he could not remember what he had been told, except that ‘we agreed it was better for me to move out.’
  3. [202]
    On 12 Nov 2009, the boy’s  mother told police that as she and her husband knew that police would speak to the Applicant about the seriousness of the offence, they would not be making an official complaint or statement to police. Police records show that the recorded reason for why the allegation was not pursued further was due to the parents not wanting to expose their child to the court process.[147] The Applicant has made it clear that the inference he draws from the matter not being further pursued is the complaint was unfounded.
  4. [203]
    As police had foreshadowed, on 15 November 2009 they met with the Applicant. They spoke to him about the age of consent for sex for males and females. Police also warned the Applicant that ‘befriending younger boys and buying them gifts was being perceived by others to be that of a paedophile’ and that he needed to readdress his behaviour to ‘avoid further allegations’.[148]
  5. [204]
    When examined at the Tribunal hearing, the Applicant stated he had no intention to groom. He cited being lonely in partial explanation of his behaviour. He noted that he told the boys that ‘people don’t think that it looks good’ and adjusted his behaviour accordingly. The Respondent  is reported to have told the police that he understood what they had told him.[149] In giving evidence in the hearing, the Applicant said he was ‘scared’ and reevaluated his actions to try to be more professional around children.
  6. [205]
    The warning issued by the police may have ‘scared’ the Applicant, but should not have come as a surprise. Repeat warnings about the consequences of grooming underage children had earlier been issued to the Applicant by the Principal. When he advised police that the Applicant appeared to be ‘almost “grooming” the younger boys as he befriends them and buys them gifts’, the Principal also told police that he had spoken to the Applicant about this on several occasions.[150]
  7. [206]
    In spite of this, the evidence suggests that the Applicant will not, or cannot adjust his behaviour in a way that would no longer  invite others, including some colleagues,  children, parents and others to consider it as grooming.
  8. [207]
    While on the one hand, the Applicant has spoken of his recognition of the need to alter his behaviours, he also makes it clear that he does not see such changes as required by the best interests of children, but rather to protect himself. Thus at the hearing, and with reference to alleged grooming through gifts, he suggested that what he was doing may in the future be recognised as good practice.

The second 2009 incident

  1. [208]
    The other 2009 incident also concerned allegations of indecent dealings with children at Spinifex State College Residential Campus.
  2. [209]
    The incident was triggered when two underage students were found watching a pornographic video, titled, ‘Legal Pink - Cute Little Asses’.[151]
  3. [210]
    One of the boys told the Principal that the Applicant had given him the pornographic video and had previously shown him such movies.  He also mentioned that he had watched ‘lots of porn’ on the Applicant’s computer. The Principal filed a complaint  with the police on 26 November 2019.[152]
  4. [211]
    At the Tribunal hearing, the Applicant was defensive about his right at the time to have pornographic material securely loaded on his computer. He suggested that boundaries were different then, and that in 2009 he was not aware of any problem created by a blue card holder having pornography on a school campus.
  5. [212]
    He insisted that he had not given the adult video to the boy directly, but rather that the boy himself had accessed the hidden video.  Asked whether he had pornography on his computer while he was a foster parent, he replied that he used filters and password protection.
  6. [213]
    In addition, this boy also alleged that the Applicant had touched him sexually on a number of occasions. He alleged that on 3 to 4 occasions a week in the third and fourth term of 2009 the Applicant had come to his room to ‘tuck him in’. According to the boy this entailed the Applicant putting his hands under the boy’s bed covers, while the boy was in bed, and rubbing his stomach while slowly moving his hands down towards the boys genitals, and only stopping when the boy would tell him to stop. Once stopped, the Applicant was alleged to hug the boy before going to ‘tuck in’ the other boy in the room..[153]  The Applicant told the Tribunal that he did not remember doing this.
  7. [214]
    In addition the boy told police that in the third and fourth term of 2009, the Applicant would send other boys out of the common room before lying down and placing his head near the boy’s crotch. The boy stated that he prevented the Applicant’s head touching his genitals by placing his hands under the Applicant’s head. When lying down in this manner, the boy alleged that the Applicant would play pornographic videos on his laptop.
  8. [215]
    The same boy also alleged that when he watched videos with the Applicant, the Applicant had been lying with his head on the child’s head and shoulders, ‘violating his personal space’. The Applicant told the Tribunal that he does not remember watching pornography with the boy but said that he could now see how having his head on  a boys upper leg while watching television ‘may have been misunderstood’.
  9. [216]
    When examined at the hearing, the Applicant denied any sexual contact with the boys, preferring to describe the contact as ‘rough-housing’.
  10. [217]
    Finally, the same boy also said that apart from the laptop containing pornographic videos, the Applicant had given him a mobile phone and $20. The Applicant said that he simply loaned his computer to the boy so that he could play videogames and got him a phone to use and money because he needed to use the phone.
  11. [218]
    The boy made a formal statement to police at the Mt Isa Police Station on 28 November 2009. However the matter was not pursued any further as the boy’s father told police that he felt that his son was too young to go to court. It was on that basis that they did not want to continue with the complaint.  
  12. [219]
    However, police records further reveal that seven and a half years later on 12 July 2017, the boy, now a 20 year old adult, when  informed that the Applicant had been charged with indecently dealings with A,  contacted police to say that he would like to assist as ‘he did not wish this to happen to anyone else’. However, after speaking with his father, he advised police on 12 Nov 2017 that (once again) he was not prepared to continue with his complaint.[154] Asked to comment, the Applicant underlined the fact that 12 years later the complainant has still not chosen to go  ahead. He also  suggested that the allegations have not been tested, adding. ‘If we believed every accusation…’

The 2010 police information

  1. [220]
    The following year police received information that the Applicant had moved to Tolga and was displaying ‘grooming’ tendencies with younger boys. Dismissing this information, the Applicant told the Tribunal that he was not in Tolga at the time.
  2. [221]
    A further year later, on 19 August 2011, the Applicant was issued his second positive notice and blue card for his work at Mt Isa Institute of TAFE .

The 2012 police information

  1. [222]
    This blue card, the Respondent advises, was required as the Applicant was transferring to a paid employee blue card for the purposes of working with Uniting Care Community on 17 August 2012.[155] There, the Applicant worked as a night supervisor at the Uniting Care Residential Facility.
  2. [223]
    At this time police were advised of concern that the Applicant was attending a children’s activity and that through his employment as night supervisor at Uniting Care Residential Facility he ‘had access to young and at-risk volatile substance misuse dependent children.’[156]
  3. [224]
    FM, a character witness for the plaintiff, presents a positive  view of the Applicant’s work in Mt Isa in 2012. In her reference dated 29 July 2017, she writes that

[the Applicant] turned to Uniting Care community Services later in 2012 where he began as a youth worker and found himself implementing more strategies in child development and communication skills with our distressed youth in community. In this position, the Applicant would have shifts that called on him to stay overnight as a youth worker. I know the children were so connected with [the Applicant]. At this point I worked in recovery services in Mt Isa, and although through the adversity and hardship these children had been exposed to, [JLS] had personally given some of these children new hope and mentored them with a kindness and compassion…they had not experienced before.

  1. [225]
    Another of the Applicant’s character witnesses, MT,  was a  trainer at the UCC Mount Isa group home in 2012. In her 31 July 2017 statement, she notes that the Applicant ‘always followed protocols and procedures [and] there were never any issues concerning the wellbeing and protection surrounding young person or person’s.’
  2. [226]
    The Applicant has voiced his concern that just because he worked with high risk kids did not mean that he was grooming them. He said that he had a clear record for this work, and had not heard about these allegations.

Incident concerning child C

  1. [227]
    In the course of an his interview with NR on 6 and 7 June 2017 and the police on 12 June 2017, the Applicant made reference to an incident bearing great similarity to the allegations made by A.
  2. [228]
    While not directly relevant to the Applicant’s culpability for the alleged offence against A, the incident or incidents are of great relevance to this review. Of particular relevance are the accounts of the incident given by the Applicant and his colleagues. The incident provides a focus for an assessment of the Applicant’s interactions with children and the concerns raised.
  3. [229]
    As outlined above the Applicant says that it was only after reading statements made by his colleagues that he realised that he was mistaken in believing that this incident related to A and not another boy, C.
  4. [230]
    He claimed he ‘did not have clarity of the event and was confused by the  details’. He referred to lengthy hours of work and working with up to 32 different children  - ‘I had a lot on my plate’, so when asked to recount an event between January and December 2016 in June 2017 it was an impossible task. He observed that ‘I do know one thing I never touched [A] in any way’ ‘I was mistaken through lack of clarity and trying to help the investigation’.
  5. [231]
    At the time of the incident he had been criticised by colleagues for not following procedure when dealing with such a situation. He has continued to defend interaction with the young boy in the incident.
  6. [232]
    The Applicant’s colleagues, who criticised what he did, also made some observations about his interactions with staff and the children.
  7. [233]
    In her statement to the police on 21 June 2017, BW, a casual employee at Goodstart Early Learning Centre Mossman told police of a 2016 incident involving C, a young boy attending the Centre.
  8. [234]
    BW’s account of the incident is notably different to the 2017 and 2019 accounts  recalled  by the Applicant. BW states that she saw another teacher JO, ‘standing outside the bathroom door of the kindergarten room’, watching. BW also saw the Applicant standing in the bathroom with gloves on, while C who was also standing in the bathroom was completely naked. She then saw saw the Applicant bent over touching C’s penis. She stated that

He had his finger on the child’s penis and moved the penis to one side to expose a redened  area on his testicles. He was talking to C and asking him where it stings. I said ‘you’re not supposed to touch him there, you’re supposed to ask the child to show you.[157]

  1. [235]
    BW stated that the Applicant did not say anything to her. Outside the bathroom the Applicant told BW he was going to call C’s father to pick him up and take him to a Doctor. C was picked up by his father. An incident report was not filed, as BW did not believe it was required in that circumstance.
  2. [236]
    In a statement dated 7 July 2017 PV, C’s father confirmed that he had received a telephone call, and consequently had collected  C from the Centre.  He recalls the Applicant telling him that C ‘had a sore penis.’ He took C to a medical centre where a cream was prescribed.[158]
  3. [237]
    JO, another employee of Goodstart early learning in 2016, made two statements to the police. In her first statement on 21 June 2017[159] she said, ‘I do not recall any incidents involving a male child having sore genitals during my time at that centre. I am sure that I would remember such an incident having occurred.’[160]
  4. [238]
    However, she did state that ‘if a child was observed by an Educator to have red, sore or swollen genitals then an incident report would have to be completed.[161]
  5. [239]
    JO also observed that she never felt particularly comfortable around the Applicant. This, she said was one of the reasons why she asked to be moved from kindergarten to nursery.
  6. [240]
    As to the Applicant’s interactions with children, she stated that the Applicant when taking meditation activities, would lie on the floor with the children, and behaved differently towards male and female children. She told police that the Applicant appeared to spend more time with  boys, by keeping boys behind class. She also observed that he had have favourite children who would be given more ipad time and gifts such as pens and stickers.[162]
  7. [241]
    JO made an addendum statement to the police two days later on 23 June 2017.[163] Her stated reason for providing an Addendum Statement was, ‘to include an incident which I did not recall at the time of providing my first statement’.[164] She said that on 22 June 2017 she had a telephone conversation with a police officer, who asked her whether she remembered an incident involving the Applicant in the bathroom with a child named C. This, she says,  led her to recall the incident.[165] She estimated the incident to have occurred ‘between January 2016 and June 2016’.[166]
  8. [242]
    JO stated that she remembered the Applicant, being in the bathroom with child, C, and calling her over. This caused  her to walk over and stand in the doorway. JO told police that the Applicant was crouching facing C, and that he said to her ‘I had a look at his ball bag. I moved it to have a look.’[167] She recalled that the child said it was hurting. She also stated that she could not actually see the Applicant touching C.[168]
  9. [243]
    JO also recalled hearing BM going to the bathroom and shouting ‘What are you doing?’ and the Applicant replying ‘I’m just checking’ to which BW replied ‘You’re not allowed to touch him’.
  10. [244]
    According to JO, after C’s father had come to collect him, BW had said to the Applicant and to her ‘You’re not allowed to do that ‘ to which the Applicant replied ‘But how can you see if its hurt or not.’ BM’s reply was ‘The child can touch themselves. You never touch skin on skin.’[169]
  11. [245]
    BW was a Kindergarten Assistant at Goodstart Early Learning Mossman until ‘about June 2016’. She stated that she ‘did not ever remember being asked to look at A’s private parts or being told that A’s private parts were red, sore or swollen. I have never had a look at A’s genitals. I do not remember ever being spoken to by [the Applicant] in relation to A’s genitals. Or any other child’s genitals.’[170]
  12. [246]
    BW expressed clear views as to the Incident Report policy. She stated that ‘If such an incident had occurred it should have been reported in an Incident Report.’ ‘If such an incident had occurred [the Applicant] should have filled in an Incident Report with me as a witness, the Director signing it and the parents signing it at pickup’. As to why othe members of the staff would be aware of this requirement she stated that, ‘Completing Incidents Reports is part of training when studying for a Diploma and it is Policy within any Childcare Centre’.[171]
  13. [247]
    In her statement dated 9 June 2017, KJ notes that she was the Director of the of the Centre in 2017 and had been assistant educator working with the Applicant for 5 months in 2016 and had developed a ‘professional friendship’ with the Applicant when they both worked in another Centre in 2015. She observed that the Applicant ‘ran a strict schedule’.
  14. [248]
    She remembers having had ‘some disagreements with Jamie as to his personal pedagogy…I felt that [the Applicant] used rewards and consequences with children and had strict boundaries’. She recalls that he used to reward children with icy-poles, gel pens and bouncy balls. She did note that the Applicant ‘had theory to back up his actions’.[172]
  15. [249]
    She also recalls that Jamie made it clear that he was the teacher and she was the support. Consequently it was her role to change children, assist them with toileting. Noting his unwillingness to offer children such assistance she recalls that ‘[the Applicant] has also asked me to assist with toileting a child now that I am Director’.
  16. [250]
    KJ remembered the Applicant regularly rewarding about five children, including A, for good behaviour. However she states that she does not ‘recall ever seeing any unusual interactions between the Applicant and A.
  17. [251]
    KJ also states that ‘there is a lot of training surrounding assisting children in the bathroom. There is training during Diploma study, compulsory on-line training and both formal and informal discussion surrounding respectfully assisting children.’[173]
  18. [252]
    RC was the Director of the Centre throughout 2016. She made a statement on 22 June 2017. She notes that as Director she ‘struggled to find assistant educators that could develop a good working relationship with Jamie‘. Consequently, she reported that assistants were not willing to work with him for a long time.[174]
  19. [253]
    Contradicting the Applicant’s statement that water play occurred about once a term, RC observed that during the warmer months water play probably occurred every second day.
  20. [254]
    While she doesn’t recall speaking with the Applicant about a child  having sore and swollen private parts she did state that if a child had told a teacher that his privates were sore  then his behaviour would be monitored and parents notified. With respect to a child of kindergarten age, RC observed ‘it wouldn’t ordinarily be expected that an educator would be investigating his private parts, or be close enough to see if they are swollen or not’.[175]
  21. [255]
    As to the incident relating to child C, RC stated ‘There would have been an incident report completed by Jamie and signed by me if this incident happened as described, but I do not recall reviewing and signing any such report.’
  22. [256]
    The  Applicant has submitted that as the relevant policies have not been submitted, they should be excluded from evidence. However, I have no need to make findings as to whether the Applicant complied with policies regarding attending to children in the bathroom. While differing perspectives have been offered as to the applicable policies, the evidence appears to suggest that almost all of the Applicant’s colleagues did not approve of aspects of his interactions with children. The most contentious areas related to gifting, favouring certain children, physical contact with children and the Applicant’s handling of the incident with C.  
  23. [257]
    At the Tribunal hearing the Applicant was asked questions relating to his alleged  touching of children’s genitalia, gifting and non sexual physical contact.
  24. [258]
    The Applicant produced witnesses who voiced the view that at times it was appropriate for a teacher in his position to touch a child’s genitals for medical reasons. Yet I note that they also unequivacly stated that if this occurred, a report needed to be completed, which he did not do.

Other Complaints from the Centre

  1. [259]
    Other matters of relevance were disclosed in materials from the Department of Education. These documents reveal that the Centre wrote to families of children attending the Centre advising parents and guardians of the concerns regarding Applicant.
  2. [260]
    In response, the  Department was contacted by a parent of a child who was said to be withdrawn about attending kindy when the Applicant was there, and who said that he felt uncomfortable  and did not like it when the Applicant made him sit on his lap; When this boy was told that the Applicant would be doing his university practice at the school where the child was now attending the child refused to go to school.[176]
  3. [261]
    Another child was reported to have revealed that the Applicant had touched her on the bottom.[177]

Concerns About the Applicant as Carer

  1. [262]
    Materials  produced by the Department of Child Safety, Youth and Women also reveal a number of  concerns regarding the Applicant’s role as an approved carer since 27 March 2015.
  2. [263]
    On 25 November 2016 the Department had been notified that the Applicant yells and swears at the two foster children in his care. In subsequent discussions, the Applicant conceded that he was struggling with the two boys in his care and had been advised of suitable strategies.[178]
  3. [264]
    On 27 April 2017, the Department also recorded a ‘standards of care event’ noting concerns regarding the Applicant’s employment of excessive discipline.[179]
  4. [265]
    In addition, on 5 June 2017 the Department was informed that the Applicant had a firearm at his home. A Departmental inspection of the premises revealed that he had a pistol and a firearms licence in a safe. In the hearing the Applicant was defensive about any criticism or suggestion that keeping a gun in the house was at odds with a carer’s responsibility towards children in his care.[180]
  5. [266]
    When the Department was notified of A’s complaint to police regarding the Applicant and earlier police information, the Department conducted interviews with foster children who had been in his care. The interviews failed to disclose any incidents of inappropriate behaviour towards them by the Applcant.[181]
  6. [267]
    At the hearing, when asked to reflect on particularly earlier concerns about his interactions with children and young people, the Applicant conceded that he could have behaved differently and observed that he had put himself through intense training to protect himself and children, and cited his own rules for interacting with children at the Centre.
  7. [268]
    At the same time, when  asked to comment on the suggestion that this history of incidents painted a disturbing picture, the Applicant replied that it was because only negative factors had been highlighted. He dismissed most of the allegations, declaring that  four of the six concerns raised were clearly malicious.
  8. [269]
    The Applicant has expressed frustration with the review’s focus on identifying negatives or risks. Yet, this is understandable as the purpose of the review is not to assess whether the Applicant is a good teacher or whether he has made a worthwhile contribution to teaching, community or society. The review considers the available evidence to determine whether the Applicant’s case is one ‘in which it would not be in the best interests of children for the chief  executive  to issue a positive notice’.
  9. [270]
    The early incidents are also relevant in that they disclose how the Applicant has responded to concerns regarding his behaviour being brought to his attention. The materials and this review disclose that concerns had been brought to the Applicant’s attention from 2009 until the hearing itself, when the Applicant once again indicated that he had ‘taken all the preacautions’ but conceded making ‘mistakes’, errors or ‘lapses in judgment’.
  10. [271]
    Perhaps, most telling is the Applicant’s, ‘I don’t know what I can do’ concession at the hearing. Answering his own question he suggested that he would not be alone with a child in the bathroom and ‘I could work with a psychologist’.  This late 2019 statement is particularly telling when viewed in the light of a police warning in 2009 that he says left him ‘scared’ and determined to revaluate  his actions to try to be more professional around children.
  11. [272]
    Also significant, is the fact that these incidents occurred in the context of the Applicant working in regulated employment as a holder of a blue card. In this respect, they demonstrate how the Applicant understood and performed his responsibilities as blue card holder. Consequently, they are of particular relevance to the assessment of whether the Applicant’s case is an exceptional case making his engagement in employment involving children to not be in the best interest of children.  
  12. [273]
    Apart from the complaints in 2009, police information regarding the Applicant’s interactions with children or young people, although clearly  of concern to others, does contain  supported evidence of indecent treatment of children. However, the complaints and information do appear to establish a pattern of behaviour at times culminating in  behaviour which the Applicant recognises may at least be misundrstood or a lapse of judgment requiring a review of his practices in dealing with children.
  13. [274]
    Having considered the factors that appear to be relevant to this review I stress again, that in considering these allegations I do not seek to make findings as to the Applicant’s guilt or otherwise. My role as decision maker is distinctly different[182]and requires that I take into account evidence which I reasonably consider to be relevant to the assessment of the Applicant.

Presumption of Innocence

  1. [275]
    In the course of this review the Applicant has argued that by being based on unsubstantiated allegations and a criminal charge for which he was acquitted, the Respondent’s decision deprived him of his right to be presumed innocent until proved guilty according to law. As I am also taking such evidence into account, the allegation is equally applicable to this review.
  2. [276]
    The relevant human right is to be found in a number of international conventions including Article 14(2) of the International Covenant on Civil and Political Rights which Australia signed in 1972 and ratified in 1980. 
  3. [277]
    It is also found in s 32(1)  of the Human Rights Act which states—

A person charged with a criminal offence has a right to be presumed innocent until proved guilty according to law.

  1. [278]
    As already explained, the purpose of this review is not to determine the Applicant’s guilt or innocence. It is to determine whether when viewed in its entirety the evidence suggests that on the balance of probabilities, the Applicant may  pose a risk to children.
  2. [279]
    Also, as previously discussed, while the prosecution bears the onus of proof in criminal proceedings, neither parties bears the onus of proof in this review and the hearing merely considers all the evidence to assess whether the Applicants case is an exceptional one.
  3. [280]
    The question appears to be, whether the Act’s provision permitting the Respondent to consider allegations or a charge for which he was acquitted is a breach of his right to a presumption of innocence in the absence of a criminal conviction.
  4. [281]
    The reassessment of whether the Applicant should hold a positive notice and blue card was  triggered by the Applicant being charged with the criminal offence of indecently treating a child under 12 in his care. In the absence of the charge, such information alone would have been insufficient to trigger a reassessment  of his positive notice as it had not been registered as a change in police information.[183] 
  5. [282]
    However this  review is not about whether the Applicant did or did not commit the act for which he was charged.   This reassessment considers all matters related to this alleged offence that are also considered relevant to the assessment of the Applicant.
  6. [283]
    Such matters include another incident at the Centre in which the Applicant touched another boy’s penis while attending to a boy with a genital rash and swelling.
  7. [284]
    Also considered were earlier complaints received by police which alleged that the Applicant had indecently dealt with children or had groomed children.
  8. [285]
    I find that this additional information  does raise concerns relating to the Applicant’s behaviour involving children that are reasonably capable of being perceived as a patter of behaviour.
  9. [286]
    One or two of the complaints lodged with the police or Departments may reflect views formed on the basis of subjective perspectives, and personal differences. However,  most of the alleged incidents and behaviours brought to the attention of authorities appear to amount to indecent dealings or related criminal offences or at least behaviour which if not rectified, would render a person unsuited for work with children in regulated employment. 
  10. [287]
    In his written and oral testimony and submissions, the Applicant has suggested that his behaviour has been misunderstood. Even if that were the case, it  does not mean that the exposure of children to such behaviour is necessarily in their best interests. This is especially the case where the inappropriateness of the behaviour is brought to the attention of the perpetrator, (as has been the case with the Applicant), and he has failed to take reasonable steps to address such concerns and numerous warnings.

Self incrimination

  1. [288]
    The Applicant’s presentation of evidence at the hearing raised one other human right that could appear to have been infringed. The common law has long recognised the privilege against self incrimination. It is now recognised as a right not to answer questions or provide documents if doing so may incriminate that person.[184]
  2. [289]
    The right is recognised as an element of a fair criminal trial by the International Covenant of Civil and Political Rights, in which Part III, Article 14(3)(g) states

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality:

(g) Not to be compelled to testify against himself or confess guilt.…

  1. [290]
    The Human Rights Act also lists as a human right, the  right of persons charged with a criminal offence ‘not to be compelled to testify against themselves or to confess guilt’[185]
  2. [291]
    In addition I note that the Evidence Act 1977 provides protection against self incrimination in section 10(1), which states—

Nothing in this Act shall render any person compellable to answer any question tending to incriminate the person.

  1. [292]
    The High Court has also observed that the right

Protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character.[186]

  1. [293]
    In addition, the High Court has held that the right is available, not only in judicial proceedings, but also in non-judicial proceedings.[187]
  2. [294]
    The relevant statutory provision governing the Tribunal’s ‘powers relating to witnesses’ can be found in the QCAT Act. The Act provides that the Tribunal has the power to ‘call any person to give evidence,’[188] and ‘compel a witness to answer questions the tribunal considers relevant to the proceeding’.[189] However the QCAT Act also states that ‘it is a reasonable excuse for a witness to refuse to answer a question if answering the question might tend to incriminate the person.’[190]
  3. [295]
    In accordance with this statutory provision and broader related principles, the Tribunal ensured that when the Applicant gave oral evidence and was examined by the Respondent’ legal representative and the Tribunal about alleged criminal acts allegedly committed by the Applicant, he was advised of his right not to answer any questions or make statements, if to do so ‘might tend to incriminate him.’
  4. [296]
    On that basis I find that in warning the Applicant about self incrimination the Tribunal recognised that the right is not only a protection against compulsion, but also a protection against voluntary self incrimination.
  5. [297]
    In so doing the Tribunal gave proper consideration to this right, applied statutory provisions compatible with human rights, and acted in a manner compatible with human rights.[191]

RISKS AND PROTECTIVE FACTORS

  1. [298]
    With respect to the Tribunal’s task of determining whether the circumstances of the case and matters related to it make it an exceptional case, the Court of Appeal in Maher[192] endorsed the Tribunal’s approach of identifying and balancing potential risk factors and potential protective factors.
  2. [299]
    When identifying risk factors, the Tribunal in GP v Commissioner for Children and Young People[193] adopted the approach of New South Wales courts in corresponding cases, by defining ‘risk’ in this context to mean ‘real and appreciable risk’.[194] The Tribunal held that when identifying risks,

as part of its consideration of whether an exceptional case exists ... the tribunal is not concerned with what may be mere possibilities but rather will require foundation in fact. The Tribunal is looking at whether, in all the circumstances, there is a real and appreciable risk.[195]

  1. [300]
    The evidence discloses the following protective factors:

Protective Factors

  1. [301]
    First, As The Respondent Submits, The Applicant Demonstrates The Support Of A Number Of People In The Community And Has Provided A Total Of 17 References
  2. [302]
    The Applicant has produced a large number of letters of support and character references, even if most of them were written in 2017 in support of a different application by the Applicant.
  3. [303]
    These statements  include those from his clinical psychologist, a senior early childhood education academic who taught the Applicant, one of the Applicant’s TAFE teachers,  co-workers from an UCC group home, a Director of an early childhood centre where the Applicant worked, a number of co-workers at early childhood centres, a long term family and personal friend, a fellow early childhood teacher, a social worker who had been a fellow university student and those from several parents whose children had been taught by the Applicant in early childhood learning centres.
  4. [304]
    I note that except for the testimony of the witnesses who testified at the hearing of the review, the evidence in the character references and statements supporting the Applicant have not been tested. In addition, apart from witnesses who gave evidence at the hearing, the witnesses’ level of knowledge of the Applicant’s alleged offence and/or other registered complaints is unknown.            
  5. [305]
    Nevertheless, the number of statements submitted, and the fact that almost all of those making the statements were well placed to comment on the Applicant’s teaching and care of children, underlines the significance of the high regard in which they hold the Applicant, as a teacher, member of the community and individual.
  6. [306]
    These statements note the Applicant’s ‘gift to bond and communicate with children’, his dedication and commitment to his work, and his awareness of protocols regarding working with children.
  7. [307]
    Some character witnesses also express their surprise at the allegations, and observe that the allegations are out of character.
  8. [308]
    Other referees observed that the Applicant was a caring, and passionate teacher, ‘fabulous with children,’ and respectful of both parents and children.
  9. [309]
    The references also contain the views of those who emphasised that they had not noticed or heard of any issues or any untoward behaviour by the Applicant.
  10. [310]
    Referees who address the Applicant’s attitude towards rules and regulations governing interaction of children with teachers/carers observe that he was  professional, ‘highly aware of rules,’ and an advocate for the safety of children. They also note his emphasis on safety and wellbeing of the children and his development of  relevant learning materials.
  11. [311]
    Other positive traits that the referees mention include the Applicant’s reliability, honesty, high level of integrity, that he was an honourable person and that he is highly respected in the community.
  12. [312]
    Having earlier made written statements, several witnesses gave sworn evidence at the hearing, either in person or by telephone.
  13. [313]
    The Respondent’s legal representative foreshadowed her intention to question the Applicant’s witnesses about  earlier allegations and complaints made against him. As the witnesses’ statements did not indicate their awareness of the allegations, the  Applicant was provided and accepted the opportunity to speak with witnesses he wished to call,  and to request that they provide written statements attesting to their level of knowledge of the earlier allegations. Such additional statements were submitted  to the Tribunal and made available to the Respondent.
  14. [314]
    Witness RC testified that the Applicant taught her two children, She stated she had become a friend of the  Applicant and saw him two to three times a month.
  15. [315]
    In her additional statement, RC states that she is ‘aware of an incident that occurred while the Applicant was enrolled and resided at a residential school’. When cross-examined about her knowedge of the prior allegations made against the Applicant, RC stated that she knew about the ‘porn’ and the two allegations about non-sexual contact, but did not know about the alleged ‘sexual touching’.
  16. [316]
    She also conceded that she had not read the reasons for the issuing of the negative notice. In her view, while it was appropriate for teachers to touch children’s genitals for valid medical reasons, she would expect an educator to comply with applicable guidelines.
  17. [317]
    In her written statement[196] witness  SK states that she has known the Applicant as a colleague since he commenced work with Goodstart Early Learning in 2014.  She notes that she had been made aware of the allegations against the Applicant, and that, ‘It saddens my heart to think such a caring passionate teacher could be thought of that way’.
  18. [318]
    As to the current allegation for which the Applicant had been charged,  she writes, ‘He never went into the bathroom while the children were in there, asking me to supervise instead, never once did I find him to prefer one child over another…’ She describes the Applicant as  ‘a passionate, empathetic, empowering teacher….[who] cares for each and every child that comes into his life with a passion that only wishes to encourage and nurture each child as best he can.’
  19. [319]
    In her testimony, SK stated that the Applicant did not get down on the floor and cuddle children as it had been alleged he did at Goodstart Mossman. She told the Tribunal that the Applicant had taught the children about personal safety. She also disputed other allegations, stating that the Applicant rewarded every child and gave equal time to boys and girls.
  20. [320]
    She observed  that the child who had been taken out of the Applicant’s class had posed a danger to others and was taken out due to disagreements between the child’s mother and Goodstart teaching staff.
  21. [321]
    Under cross examination, SK conceded that she saw the Applicant rarely and generally kept in touch online.
  22. [322]
    SK stated that she heard about the other allegations a few months ago, but didn’t pay attention or believe them. She stated that she was aware that one boy had allegedly been touched inappropriately by the Applicant. This she further explained apparently happened when the child was changing in the bathroom. She conceded that she had not read, and had no reason to read, the reasons for the negative notice.
  23. [323]
    She stated that she did not believe that the Applicant would ever indecently touch a child. She was not aware of any incidents of the Applicant touching a child’s penis. She stated that if a child had sore genitals the procedure was to call someone over or call parents but never to touch genitals, as a child can never consent to having genitals touched.
  24. [324]
    Witness, PH, also provided  an updated written statement[197] in which she says that she had ‘known [the Applicant] for about 4 years now and consider him to be a close personal friend.’ She states that she is well aware of ‘the allegations against [the Applicant]’.
  25. [325]
    She notes that her son had been in the Applicant’s ‘kindergarten class’ and that she would often come and help out in the classroom. In this way, she says, she observed his interactions with children, ‘and not once did [she] witness anything untoward to any of the children’. The Applicant, she states,  had also looked after her children  and she had ‘never had any worry when they were in his care.’
  26. [326]
    In her oral evidence PH stated that a four year old would require assistance in the toilet and that she would not expect less. Regarding allegations at Goodstart, she stated that she knew that the Applicant had been accused of inappropriately touching child, and had been in court with him. However, she stated that she only knew of that one incident at Goodstart Mossman.
  27. [327]
    Asked regarding the Centre policy that a teacher was not entitled to a touch child’s genitals, she stated that her expectation was that when required teachers would touch children’ genitalia.  However, she also  stated that she would expect that a report would be prepared of such an incident. In her view an incident report should have been filed by whoever saw the incident.
  28. [328]
    As to her familiarity with earlier allegations PH said that this had been conveyed to her in a quick discussion. The Boarding School incidents, she said related to the Applicant giving another student ‘porn’ and bullying another student. 
  29. [329]
    In closing PH reiterated that she remained happy to leave her children, including her older daughter, in the Applicant’s care.
  30. [330]
    The Applicant’s clinical psychologist, DT also testified. She stated that she had worked in private practice for 10 years and had gained risk assessment and sex offender profiling experience in work at the Lotus Glen Correctional Facility.
  31. [331]
    When asked, she clarified that her written statement was a character reference and not a psychological report.
  32. [332]
    She told the Tribunal that she had seen the Applicant every couple of months since August 2017 and described him  as being ‘currently stable’.
  33. [333]
    When the Applicant asked her to comment on his personality assessment inventory, DT replied  that it suggested that he  would work well in a caring role. She also noted that he had strong intuition.
  34. [334]
    DT informed the Tribunal that in her sessions with the Applicant she had focused on addressing his anxiety, improving his mood, and on motivation, in view of him being ‘stuck in limbo’.
  35. [335]
    She explained the reason for her written expression of ‘unreserved support’ for the Applicant on the basis that she ‘did not see any red flags’.
  36. [336]
    As to her knowledge of the Applicant’s offending, she stated that the allegation of inappropriately touching a child was unsubstantiated. As for prior incidents, she knew of the Applicant sharing porn with a younger boy. She described the allegations as vague. When cross examined as to  why she felt that the allegations had been vague, DT replied that the Applicant’s legal advice was that allegations were vague.
  37. [337]
    She stated that she also knew that while a holder of a blue card the Applicant had been the subject of two complaints withdrawn by the parents of the alleged victims, and that the principal of a college had spoken with the Applicant on a number of occasions about what appeared to be grooming of young students by the Applicant.
  38. [338]
    She further indicated that she was aware that the Applicant had a conversation with police about how his practice of gifting children could be misunderstood, and that he realised that it would be wise to stop. The Applicant, she said, was aware that he was creating an unfavourable impression, but had justified his actions by pointing out that others were also doing it.
  39. [339]
    Questioned as to the incident with child C, that the Applicant had at first identified as child A, DT stated that the Applicant remembered that he had moved C’s penis to one side, and considered that this was not a wise thing to do.
  40. [340]
    When asked to comment on the Applicant’s insight into his alleged offence, DT stated that he was aware of the dangers of being alone with children and of being awkward or over anxious around others. She also stated that the Applicant had expressed understanding of what is most likely to offend others and what people might think.

Conclusion as to Witnesses

  1. [341]
    I find that the evidence of those who have provided the Applicant with supporting character references and statements, and those who also testified and were cross-examined at the hearing, presents a most positive picture of the Applicant. He is presented as a highly motivated, caring and professional teacher who has been wronged by allegations that are out of character and at odds with his commitment to promote the welfare and safety of  children.

Second, the Applicant’s Education Studies and Work as an Early Childhood Teacher

  1. [342]
    The Applicant has a Diploma in Children’s Services and has testified that in order to complete his Bachelor of Education (Early Learning) he must undertake a five week practicum, which he cannot do with without a positive notice.
  2. [343]
    The Applicant’s TAFE and University teachers, a fellow university student and early childhood centre colleagues have all attested to the Applicant’s commitment to his studies and chosen career. Of particular relevance to this review are references to his focus on the incorporation of child safety learning in early childhood programs.
  3. [344]
    Some of the Applicant’s referees also note his initiative and self motivation in preparing for his chosen career.
  4. [345]
    The Applicant has provided several documents attesting to his commitment to his studies and to his interest in promoting child awareness of personal safety. The submitted documents include a very extensive ‘Professional Experience Report’ and assessments of other practical work undertaken in the course of his studies.
  5. [346]
    The evidence appears to establish that throughout his studies and practical training the Applicant has shown himself to be particularly well suited and committed to taking on the challenges of a teaching area still somewhat resistant to male teachers.
  6. [347]
    Evidence presented to the Tribunal also suggests that the Applicant is a well regarded, and committed teacher. 
  7. [348]
    This evidence appears to be a  protective factor in that it  suggests that the negative notice deprives children of the benefits of being taught and looked after by such a dedicated teacher and denies the Applicant the opportunity to complete his studies and pursue his chosen career.
  8. [349]
    However, judicial authority suggests that the benefits to children of having a committed and popular teacher are not to be taken into account as a protective factor. Justice Buss (referring to the equivalent Act in Western Australia) has stated that, ‘The Act is only intended to benefit children in so far as it is intended to protect them.’[198]
  9. [350]
    The courts have held that in making such a determination, factors highlighting the benefits to children of issuing a positive notice to the Applicant are only relevant if they relate to the reduction or prevention of  risks to children and need to be weighed against any likely risks, established on the balance of probabilities,  posed by the Applicant being issued a positive notice.
  10. [351]
    This, however,  does not render the Applicant’s teaching proficiency and skills irrelevant, if they can be shown to be protective of, or to lessen risks to children. There is  clear evidence of his work in developing suitable materials for children designed to make them aware and to protect them from the risk of sexual abuse. There is also evidence that in developing such programs, the Applicant has sought to establish links with, and gain the approval and support of parents.[199]
  11. [352]
    On this basis I find that the Applicant’s pending completion of his studies and return to teaching are a protective factor, not because he is a good or devoted teacher, but because through his materials and teaching of child safety, he is likely to reduce risks to children. In so doing, the Applicant would be furthering the object of the Working with Children Act ‘…to promote and protect the rights, interests and wellbeing of children and young people’.[200]
  12. [353]
    The Applicant has stressed that what was alleged that he had done was inconsistent with his teaching of child awareness of personal safety. In my view it does not necessarily follow that an interest in, and the teaching of child awareness precludes indecent dealings with children. Indeed such a link may serve to facilitate or provide the opportunity for offending,  although I am not aware of any evidence indicating that such is the case in this matter.
  13. [354]
    In addition, I note that the evidence of those working with the Applicant suggests that he may be overstating the prominence of his child safety awareness work.[201] This may explain the Applicant’s  unconvincing evidence and submissions as to the impact of his behaviours on children, his unwillingness to apply relevant guidelines and policies as well as his lack of understanding of the impact of inappropriate sexual behaviour on children.
  14. [355]
    It could be said that the Applicant’s teaching and development of materials to keep children safe and willing to speak up, ought to have made him more aware of those of his behaviours that concerned some children and parents. That he persisted in some of these behaviours, while taking excessively cautionary measures with others, in itself creates cause for concern.

Right To Work

  1. [356]
    I turn to consider the human rights aspect of the Applicant being denied the opportunity to undertake various forms of regulated employment involving children and being an approved or kinship carer of children. This he argues is an injustice, as he has been found not guilty of the only charge brought against him, and because other allegations have not led to charges being laid.  
  2. [357]
    The Human Rights Act does not list the right to work amongst its 23 fundamental human rights. However the Act states that a right or freedom recognised under another law should not be interpreted as being abrogated or limited simply because it is not included in the Act.
  3. [358]
    Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises ‘the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right’.  Australia became a signatory to the Covenant on 18 December 1972 and ratified the covenant on 10 December 1975. Article 4 provides that

The State Parties to the present Covenant recognise that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, 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.

  1. [359]
    That Australia has ratified the ICESCR does not mean that the provisions of the ICESCR are binding on decision makers in Australia. For that to be the case, Australia would need to incorporate the provisions into Australian law. However as the High Court Court held in Teoh[202]Australia’s ratification of a rights instrument may create ‘legitimate expectations’ that Australia will fulfil it’s oblications by recognising the right. As the ICESCR’s provisions about right to work  has not been enacted as Australian law, it is not binding on Australian decision makers, but must be taken into account. This can occur through the interpretation of statutory provisions to the extent possible that is consistent with their purpose in a way that is most compatible with human rights.
  2. [360]
    The right to work is implicitly qualified by the requirement that a person possesses the appropriate skills and qualifications to undertake particular work. For that reason the ICESCR describes the right as a ‘right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’. The right to have the opportunity to undertake particular work cannot be said to be denied simply through the regulation of the employment. Therefore it could be said that the right to undertake ‘regulated employment’ is a right to be assessed and if deemed suitable to be  issued a positive notices.
  3. [361]
    The Working with Children Act establishes and regulates the screening of persons wishing to work with children. Rather than being perceived as a statute that limits the Applicant’s right to work, the  Act may be said to safeguard the Applicant’s right to undertake work of his choice within the context of the primary object of protecting the safety and best interest of children.
  4. [362]
    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 without 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.
  5. [363]
    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.’
  6. [364]
    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.
  7. [365]
    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.
  8. [366]
    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

  1. [367]
    The evidence discloses the following risk elements:

First – the Risk of ‘Re-offending’

  1. [368]
    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.
  1. [369]
    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.
  2. [370]
    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.
  3. [371]
    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. 
  4. [372]
    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’.
  5. [373]
    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.

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.

  1. [374]
    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

  1. [375]
    The Respondent submits that inconsistencies in the Applicant’s evidence require the Tribunal to carefully consider evidence given by the Applicant.
  1. [376]
    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.
  1. [377]
    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

  1. [378]
    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.
  1. [379]
    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.
  2. [380]
    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.
  3. [381]
    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.
  4. [382]
    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.
  5. [383]
    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

  1. [384]
    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.
  1. [385]
    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.
  2. [386]
    The Respondent suggests that in downplaying the role of waterplay, the Applicant was distancing himself from the setting of the alleged offence.[205]
  3. [387]
    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]
  4. [388]
    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]

Evidence Given by Children

  1. [389]
    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.
  1. [390]
    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’.
  2. [391]
    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

  1. [392]
    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.
  1. [393]
    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

  1. [394]
    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]
  1. [395]
    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.
  2. [396]
    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 

  1. [397]
    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.
  1. [398]
    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.
  2. [399]
    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]
  3. [400]
    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

  1. [401]
    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.
  1. [402]
    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.’
  2. [403]
    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.
  1. [404]
    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.
  2. [405]
    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.
  3. [406]
    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.
  4. [407]
    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.
  5. [408]
    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’. 
  6. [409]
    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.
  7. [410]
    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.
  8. [411]
    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.
  9. [412]
    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

  1. [413]
    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]
  1. [414]
    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.
  2. [415]
    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.
  3. [416]
    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

  1. [417]
    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.
  1. [418]
    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.
  2. [419]
    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.
  3. [420]
    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

  1. [421]
    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.
  2. [422]
    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

  1. [423]
    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. 
  2. [424]
    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.
  3. [425]
    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]
  4. [426]
    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

  1. [427]
    The Applicant has applied for a Tribunal direction prohibiting the publication of  witness names and statements.
  2. [428]
    This application also raises the related question of whether the hearing should be conducted in public or in a closed hearing.

Non Publication Order

  1. [429]
    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
  1. (b)
    to avoid endangering the physical or mental health or safety of a person; ….or
  1. (e)
    for any other reason in the interests of justice.
  1. [430]
    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.
  2. [431]
    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.
  3. [432]
    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.
  4. [433]
    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.
  5. [434]
    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

  1. [435]
    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.
  2. [436]
    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.’
  3. [437]
    Consequently, the hearing of this matter is to be held in private in a closed hearing.
  4. [438]
    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.

HUMAN RIGHTS

  1. [439]
    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.
  2. [440]
    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]
  3. [441]
    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

  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 (Qld) 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.

Footnotes

[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.

[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.

[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)

[10] Occurrence Report Number QP0900930484, 27 January 2010, Materials produced by Queensland Police Service; G, 4.

[11] Respondent’s Outline of Submissions, 12 November 2019, 38.

[12] Materials produced by the Queensland Police, BCS-179.

[13] Child Protection Act 1999,  ss 131, 132, 133(1).

[14] Child Protection Act 1999,  s 133(3)(d)(i), (e).

[15] Statement by KJ to police on 9 June 2017, Queensland Police Service materials BCS-186.

[16] Statement by KJ to police on 9 June 2017, Queensland Police Service materials BCS-186.

[17] Statement by KJ to police on 9 June 2017, Queensland Police Service materials, BCS-186.

[18] BCS 208 NR’s statement to police on14 June 2017D, Queensland Police Service materials, BCS-208.

[19] Materials produced by the Queensland Police Service, Statement by NR,14 June 2017, BCS-211.

[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.

[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).

[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.

[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.

[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).

[30] Working with Children Act(Risk Management and Screening) Act 2000,  s 229(2)(b)(i).

[31] Queensland Civil and Administrative Act 2009, s.17.

[32] Queensland Civil and Administrative Act 2009, s 19(a).

[33] Queensland Civil and Administrative Act 2009, s 19(c).

[34] Queensland Civil and Administrative Act 2009, s 20(2).

[35] Queensland Civil and Administrative Tribunal Act 2009, s 20(1).

[36] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(c).

[37] Queensland Civil and Administrative Tribunal Act 2009, s 24(1).

[38] Human Rights Act 2019, s 58.

[39] Human Rights Act 2019, s 3.

[40] Human Rights Act 2019, s 4.

[41] Human Rights Act 2019, s 9(4)(b).

[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].

[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].

[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].

[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).

[51] Human Rights Act, Part 2, Division 2.

[52] Human Rights Act, Part 2, Division 3.

[53] Examples of another law in Human Rights Act, s 12.

[54] Human Rights Act, s 4(f).

[55] Human Rights Act, s 8(a).

[56] Human Rights Act, s 8(b)

[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.

[58] Human Rights Act 2019, s 48(2).

[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].

[60] Working with Children (Risk Management and Screening) Act 2000, s 5.

[61] Working with Children (Risk Management and Screening) Act 2000, s 5. See also, the Long Title.

[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.

[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.

[66] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(e).

[67] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(i).

[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).

[69] Working with Children (Risk Management and Screening) Act 2000, Schedule 7.

[70] TNC Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489 at para [83].

[71] Working with Children (Risk Management and Screening) Act 2000, s 221(1)(b)(iv).

[72] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iii).

[73] Applicant’s Submission to QCAT received by the Tribunal on 14 January 2019.

[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].

[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.

[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.

[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.

[81] Or at least 11 out of 12 jurors, see: Jury Act 1995, s 59A.

[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).

[86] Tribunal directions on 9 August 2019 issued on 15 August 2019.

[87] Notice of hearing, 26 March 2019.

[88] Queensland Civil and Administrative Tribunal Act 2009, s 91(2).

[89] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(ii).

[90] Working with Children (Risk Management and Screening) Act 2000, s 221 and Chap 8, Pt 4, Div 9 in general.

[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).

[94] Jamie Storch, letter to the Department of Education, dated 1 August 2017.

[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.

[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.

[99] Police Record of Interview, 12 June 2017, Queensland Police Service materials, BCS-75-76; Life Story, p 4.

[100] Additional Materials, dated 2 August 2019,submitted to the Tribunal by the Applicant.

[101] R v Cotic [2003] QCA 43.

[102] R v Cotic [2003] QCA 43, 5-6.

[103] Notice to produce materials, Queensland Police Service NTP-27, NTP-401.

[104] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iv).

[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.

[107] Statement dated 10 June 2017, materials produced by the Queensland Police Service, BCS-175.

[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.

[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.

[112] Statement of WM  dated 10 June 2017, materials produced by the Queensland Police Service, BCS-190.

[113] Statement of WM  dated 10 June 2017, materials produced by the Queensland Police Service, BCS-190.

[114]  Summary of section 93A interview with the complainant on 7 June 2017, Materials produced by the Queensland Police Service, BCS-216-217.

[115] Notice to Produce Materials from Queensland Police Service, NTP- 383-385.

[116] Notice to Produce Materials from Queensland Police Service, NTP- 383.

[117] Notice to Produce Materials from Queensland Police Service, NTP- 383.

[118] Notice to Produce Materials from Queensland Police Service, NTP- 383.

[119] Notice to Produce Materials from Queensland Police Service, NTP- 383.

[120] Notice to Produce Materials from Queensland Police Service, NTP- 384.

[121] Notice to Produce Materials from Queensland Police Service, NTP- 385.

[122] Notice to Produce Materials from Queensland Police Service, NTP-386.

[123] Life Story dated 2 January 2009,  p 4.

[124] Life Story dated 2 January 2009,  p 4.

[125] Police Record of Interview 12 June 2017, Materials produced by the Queensland Police Service, BCS-51.

[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).

[130] R v Liddy (No 2) [2002] SASC 306.

[131] R v Liddy (No 2) [2002] SASC 306, at [7].

[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).

[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).

[137] Child Protection Act 1999, ss 189, 186(2).

[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.

[141] See, for example, Tribunal Order to Produce, in this matter, dated 19 July 2019.

[142] See, for example, the Decision of the Tribunal in this matter dated 8 July 2019.

[143] Tribunal Decision in this matter dated 8 July 2019.

[144] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).

[145] Notice to Produce materials from Queensland Police Service, A, 4.

[146] Notice to Produce materials from Queensland Police Service, NTP 399-400.

[147] Notice to Produce Materials from Queensland Police Service, A, 4.

[148] Notice to Produce Materials from Queensland Police Service, NTP-401.

[149] Notice to Produce Materials from Queensland Police Service, NTP 401.

[150] Notice to Produce Materials from Queensland Police Service, NTP 301.

[151] Notice to Produce Materials from Queensland Police Service, NTP-396.

[152] Notice to Produce Materials from Queensland Police Service, NTP-392-3, 389.

[153] Notice to Produce Materials from Queensland Police Service, NTP-392-3.

[154] Notice to Produce Queensland Police Service materials, NTP-395.

[155] Respondent’s Outline of Submissions, 12 November 2019, p 38.

[156] Notice to Produce Queensland Police Service materials, A, 4.

[157] Materials produced by Queensland Police Service, BCS-152, para 22.

[158] Materials produced by Queensland Police Service, BCS 200-201.

[159] Materials produced by Queensland Police Service, BCS-154-158.

[160] Materials produced by Queensland Police Service, BCS-157, at para 24.

[161] Materials produced by Queensland Police Service, BCS-157, at para 19.

[162] Materials produced by Queensland Police Service, BCS-155.

[163] Materials produced by Queensland Police Service, BCS-159-161.

[164] Materials produced by Queensland Police Service, BCS-159, at para 2.

[165] Materials produced by Queensland Police Service, BCS-160-161 at paras 19-20.

[166] Materials produced by Queensland Police Service, BCS-159, at para 3.

[167] Materials produced by Queensland Police Service, BCS-160, at para 6.

[168] Materials produced by Queensland Police Service, BCS-160, at para 18.

[169] Materials produced by Queensland Police Service, BCS-160, at paras 13-15.

[170] Statement by BW on 23 June 2017, Materials produced by Queensland Police Service, BCS-164, para 19.

[171] Materials produced by Queensland Police Service, BCS-165, at paras 22.

[172] Materials produced by Queensland Police Service, BCS-184, para 31.

[173] Materials produced by Queensland Police Service, BCS-185, para 33.

[174] Materials produced by Queensland Police Service, BCS-195, para 19.

[175] Materials produced by Queensland Police Service, BCS-197, at para 36.

[176] Notice to Produce materials from the Department of Education, NTP-199.

[177] Notice to Produce materials from the Department of Education, NTP-201.

[178] Notice to Produce materials from the Deaprtment of Child Safety, Youth and Women, NTP-9.

[179] Notice to Produce materials from the Deaprtment of Child Safety, Youth and Women, NTP-46.

[180] Notice to Produce materials from the Deaprtment of Child Safety, Youth and Women, NTP-30, 32.

[181] Notice to Produce materials from the Deaprtment of Child Safety, Youth and Women, NTP-32-39.

[182] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(e).

[183] Respondent’s Outline of Submissions, 12 November 2019, page 25.

[184] Sorby v Commonwealth (1983) 152 CLR 281, 288.

[185] Human Rights Act 2019, s 32(2)(k).

[186] Sorby v Commonwealth (1983) 152 CLR 281, per Mason, Wilson and Dawson JJ at 310.

[187] Sorby v Commonwealth (1983) 152 CLR 281, per Mason, Wilson and Dawson JJ at 309.

[188] Queensland Civil and Administrative Tribunal Act  2009,  s 98(1)(a).

[189] Queensland Civil and Administrative Tribunal Act  2009,  s 98(1)(d).

[190] Queensland Civil and Administrative Tribunal Act  2009,  s 98(2).

[191] Human Rights Act 2019, s 4(b).

[192] Commissioner for Children and Child Guardian v Maher and Anor [2004] QCA 492.

[193] GP v Commissioner for Children and Young People [2013] QCAT 324.

[194] See for example, BKV and Children’s Guardian [2015] NSWTAD 65; BXJ v Children’s Guardian [2016] NSWCATAD 11; and Bachman v Public Safety Business Agency [2016] QCAT 104.

[195] GP v Commissioner for Children and Young People [2013] QCAT 324 at [14].

[196] Statement by SK received at the Tribunal hearing on 13 November 2019.

[197] Statement by PH emailed to Tribunal on 13 November 2019.

[198] Chief Ececutive Officer of Child Protection v Scott (No 2) [2008] WASCA 171 at [109].

[199] Letter to parents and guardians of Goodstart Early Learning dated 10 June 2015, Materials submitted by Applicant.

[200] Working with Children (Risk Management and Screening) Act 2000, Long title.

[201] For example, Evidence of witness WBM in cross examination, Transcript of Proceedings 29 May 2018, Materials produced by District Court of Queensland, BCS-98.

[202] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273.

[203] Working with Children (Risk Management and Screening) Act 2000, s 4.

[204] Notice to produce material, Department of Child safety, Youth and Women, NTP-20.

[205] Respondent’s Outline of Submissions, 12 November 2019, p. 36.

[206] Applicant’s closing submissions, p.6.

[207] Respondent’s Outline of Submissions, 12 November 2019, p. 36.

[208] Notice to Produce materials, Queensland Police Service, NTP-20.

[209] Applicant’s closing submissions at Tribunal hearing on 13 November 2019.

[210] Respondent’s Outline of Submissions, 12 November 2019, p. 43.

[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.  

[214] Queensland Civil and Administrative Tribunal Act 2009, s 91.

[215] Human Rights Act 2019, s 4(a).

[216] Human Rights Act 2019, s 4(b).

[217] Human Rights Act  2019, s 48(1).

Close

Editorial Notes

  • Published Case Name:

    Jamie Luke Storch v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 152

  • Court:

    QCAT

  • Judge(s):

    Member Stepniak

  • Date:

    06 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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