TNC v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 489
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- Unreported Judgment
- TNC v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 489
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TNC v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 489
TNC v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 489
CITATION: | TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489 |
PARTIES: | TNC (Applicant) |
| v |
| Chief Executive Officer, Public Safety business Agency (Respondent) |
APPLICATION NUMBER: | CML199-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 27 November 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 18 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CHILDREN – BLUE CARD – where sporting coach has been previously issued with the equivalent of blue card in another State – where person had been charged with disqualifying offences and a serious offence – where no convictions resulted – where negative notice issued in Queensland preventing that person from working with children. EXCEPTIONAL CASE – where evidence of risk factors and protective factors – whether not in the best interests of children for a positive notice to be granted. Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2) 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 [2004] QCA 492 |
APPEARANCES and REPRESENTATION:
APPLICANT: | TNC represented by Mr Cameron Marshall of OMB Solicitors |
RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Mr Craig Capper, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
- [1]Mr TNC is a senior sporting coach. He has been coaching Australian and international players since 1983 and has held positions of responsibility in his chosen sport. He has been generous with his time in promoting the sport, mentoring young players and in raising money for charities. His references support his contention he is respected by his peers, players and parents and he is an active and contributing member of his sporting community.
- [2]His coaching business was originally based in New South Wales. In 2009 he was granted a Certificate for self-employed people in child-related employment issued by the NSW Commissioner for Children and Young People. This Certificate was renewed and was current until 31 October 2015.
- [3]Mr TNC and his life partner, Ms LP, moved to establish a coaching business in Queensland in early 2014. Ms LP took responsibility for the young players who attended their Centre and Mr TNC continued to travel extensively with elite players.
- [4]Ms LP states she was granted a Queensland blue card in July 2014 and she continued to operate the business.
- [5]Mr TNC applied for a blue card by application dated 11 September 2014. Following enquiries with the NSW Police the Chief Executive issued Mr TNC a negative notice on 19 June 2015 and on 22 July 2015 he lodged an application for a review of that decision to this Tribunal.
- [6]Mr TNC needs a blue card to coach elite young players and guide them through to senior ranks. He also needs it to be a director of the business he has established in Queensland.
The relevant law
- [7]Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). The principles for administering the Act are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing[1].
- [8]Where an applicant has been charged with a disqualifying offence that has been dealt with by other than a conviction[2], a positive notice and blue card must issue unless it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice.[3]
- [9]The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree.[4] This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act to determine whether an exceptional case exists.
- [10]
- [11]Any hardship or prejudice suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.[7]
- [12]The purpose of a review is to produce the correct and preferable decision and the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[8]
- [13]It is not necessary to show a mistake of fact or law on the part of the original decision maker when bringing an application for review. Once an application is before the Tribunal the reviewable decision carries no evidentiary or legal weight. Neither party bears an onus of proof. However each party has an evidentiary burden, this means they must put before the Tribunal the evidence they want considered.
- [14]Mr TNC has been charged but not convicted of a disqualifying offence, as that term is used in the Act, and therefore he must be issued a positive notice unless an exceptional case exists.
Circumstances of the Alleged Offences
- [15]A total of six charges were brought against Mr TNC on the basis of statements by three complainants. There is no direct evidence available from the complainants and the following information has been extracted from the NSW police file. The charges will be dealt with in the order the police created an event report.
- [16]Complaint A. Following a report dated 04/12/1999 a charge of ‘sexual assault (Cat 3) knowing no consent given’ was laid in relation to sexual conduct with an adult woman about 20 years of age at the time of the incident in 1989.
- [17]It is alleged the incident occurred at an overnight sport camp. The complainant states that at about 1am she was awoken by a voice and she opened the door to her room. Mr TNC approached her and forced her backwards towards her bed, lying on top of her. She said he smelt like he had been drinking alcohol. He penetrated her with his penis. She said he did not hold an erection for a long period and he then stood up, pulled up his jeans and left the room without saying another word. She then rang her mother and told her ‘TNC just raped me’ she agreed with her mother to not say anything.
- [18]In 1999 she reported the matter to the police. This charge proceeded to trial and resulted in a jury verdict of not guilty. This is a serious charge for the purposes of the Act.
- [19]In addition to this incident the complainant alleges that on another occasion Mr TNC took her to a house and had sexual intercourse with her there against her will. In a third incident he exposed his penis to her by pulling down his tennis shorts.
- [20]Complaint B. A report dated 12/02/2001 in relation to events between 1986 and 1988 resulted in two charges of ‘Sexual assault (Cat 4) - indecent assault under age being greater than 14 and less than 16’.
- [21]The complaint states that on more than six but less than ten occasions Mr TNC exposed his penis to her during coaching sessions. She said these were deliberate acts because he would first say to her he was not wearing any underpants.
- [22]She further says that on other occasions he directed her to go to a rarely used building in the centre. On the first occasion when she arrived Mr TNC was sitting on a bench without his shorts or underpants. His penis was erect. He touched her on the vagina through her underpants for about five minutes. The second occasion was similar but he also embraced her in what she believed was an affectionate manner and tried to kiss her on the lips. He was moving back and forth and she could feel his erect penis rubbing on the outside of her vagina.
- [23]On another occasion, she believed she was still under 16 years, Mr TNC asked to meet her. He picked her up in a red hatchback and drove her to his marital home. She could recall details of the home. He went into his bedroom room and called her. When she went in he had no shorts or underpants on. He asked her to have sex and she refused. She then left and walked home.
- [24]Mr TNC was discharged on these charges. They are disqualifying charges for the purposes of the Act.
- [25]Complaint C. Finally three charges of ‘Assault with act of indecency’ were brought in relation to a report dated 17/10/2001. The events described here were said to have occurred between July and December 1997 when the complainant was aged about 17 years. The complainant states that on one occasion when she was travelling in a car Mr TNC asked her what bra size she was. He then touched her firmly on her right breast.
- [26]She further states that in 1997 while on a camp she was alone in her room when at about 11pm Mr TNC knocked, she answered the door and he walked in without an invitation. She said he was intoxicated, he began to hug her and this was not welcome. He invited her to a party in his room. She declined the offer and he left. About 20 minutes later Mr TNC walked into her room uninvited, he straddled her and attempted to kiss her on the lips. She turned her head to avoid the kissing. Eventually he gave up and left saying ’maybe tomorrow night’.
- [27]These charges were dismissed, as the prosecuting authority offered no evidence. They are disqualifying charges for the purposes of the Act.
- [28]The police event report dated 04/12/1999 states:
The victim is currently undergoing counselling at (blank) and has informed police she knows of other people who have been sexually assaulted by the POI during the past 10 years. All of which have had a similar relationship with the POI as XXXX coach/player. This information has been confirmed with the XXXX sexual assault unit. Two other people are currently receiving counselling for similar incidents involving the POI.
- [29]Acknowledging the witness statements are not available, there are many similarities in the reports including the involvement of alcohol, the physical conduct alleged and the allegations by the complainants there were opportunities to be alone and unsupervised with Mr TNC in cars, hotel rooms and other venues.
- [30]In relation to the 4/12/1999 report Mr TNC admits that on one occasion he did have sex with this complainant but says it was consensual and she was an adult. He agrees that on two other occasions he was with the complainant as she alleges but denies anything of a sexual nature occurred. He did not tell anyone about this incident until he told his then wife when he was charged. He admits that in his position as coach it was not appropriate to engage in sexual activity with a player ‘because it would be a distraction from the job she had to do’.
- [31]Mr TNC states he may have been in the same place at the same time as the other two complainants allege however he has no recollection of those occasions and denies that any of the events they describe occurred.
- [32]Mr TNC described the evidence given by the adult complainant at the trial as a farce. He said her evident was vague and he provided evidence to prove she was wrong. He thought her failure to return to the trial after she had given evidence significant, raising questions such as ‘where was her interest’ or ‘maybe she shouldn’t have done this?’. When it was suggested she might not have returned because she was traumatised from giving evidence Mr TNC responded, ‘Why would she be traumatised? She was asked the questions nicely, like you are today. I would be worried if I made allegations and I had nothing to back it up’.
- [33]Mr TNC states the only explanation he could find for the allegations by the three women was that ‘a certain female coach was trying to ‘invent stories’ in a vindictive effort for me to lose my job as State….coach as she believed strongly that position should have been hers’[9]. He said there was no reason for the women to make the allegations and the senior woman coach was the only connecting lynchpin. He said ‘the women were not the victims, I was the victim’.
Evidence relating to the responsibilities of blue card holders
- [34]Ms LP gave evidence their coaching centre is a very safe place. It emphasises the fun in sport. When asked if the centre has a risk management strategy she said it did and that she would provide it. She said it was important the children were looked after and they were supervised at all times by the staff or their parents.
- [35]When the centre started in February 1914 she said they tried to do everything by the book. She agreed she did not ask about the need to hold a blue card in Queensland because she thought their Certificate from NSW covered them. She did not apply for a blue card until the need to do so was brought to her attention by the local governing body of the sport and then she applied immediately.
- [36]Ms LP identified the risk management strategies of the centre to be that the coaches were not with the children by themselves, the children were treated with respect and passion, and they were never alone unless going to the toilet. They no longer have overnight sport camps.
- [37]Ms LP states the allegations against Mr TNC were completely unfair because she has read the statements and they have been proven to be false. While not partnered with Mr TNC at the time, in the sporting community ‘everyone knew TNC was set up.’ She said the statements were disgusting and it was all thrown out as rubbish.
- [38]When asked what personal qualities of Mr TNC made him suitable to work with children she said after a long career in the industry she has only met one other person with the ‘gift’ to coach children that he has, he is held in the highest esteem and she can give no credit to the allegations. She states the allegations were a fabrication because the same woman, who wanted Mr TNC’s job, coached all the complainants. They all came forward ten years after the event.
- [39]At the end of the hearing a three page document was received from Ms LP titled ‘Club Association Management Program’. At the bottom of each page are the words
‘© Australian Sports Commission 2000 www.ausport.gov.au/clubs’.
- [40]While this document was provided in response to the request for a copy of the risk management strategy of the business it is clear it is a generic guideline to assist the development of a policy, rather than a policy for the business.
- [41]Mr TNC, after being given a warning that he was not obliged to answer the questions, also gave evidence about his role in the business. He said he ceased being a director of the business in June or July 2015 when he received the negative notice. He was a director before that time. He did not realise the Certificate he held was restricted to NSW. Once he was made aware he needed a blue card he applied for it.
- [42]He said that as a result of the delay he made a number of phone calls to the blue card agency. He thought it was permissible for him to continue to be a director while waiting for his blue card. He could not recall being told that he could not run a business in Queensland until he had the blue card. He could not recall if the information he received from the agency related to an employee or a director. The distinction is important. An employee can work without a blue card once they have lodged an application, a person cannot carry on a regulated business without a blue card[10].
- [43]When asked about whether he had checked if the employees of his business had blue cards Mr TNC said that was not his domain, he spent the time travelling and it was up to others to check those things. He did ask one coach about his blue card.
- [44]When asked about strategies to ensure the safety of children he said the coaches had a duty of care. Coaches were instructed to ensure everything was in the open and that they were never alone with the children. The centre was a safe environment with lots of parents on site and the whole environment is open and safe.
- [45]He said to protect children you had to listen to them. He was not aware of any training for coaches around the risks to children. He was not aware if the business had a risk management policy and was not involved in its development.
- [46]Mr TNC said he understood the concerns and risks. When asked how to mitigate the risks he said there had been three bad apples and 500-600 good apples and hundreds of others love what he does. He continued ‘the only risk is me having a heart attack at the bills. I have no sexual interest in children, I have a beautiful wife and children and I know I am a zero risk.’
Witnesses
- [47]Dr James Rodney, a Consultant Psychiatrist, provided a written report and gave oral evidence. He examined Mr TNC and had access to the QCAT application, Reasons for Decision, and other documents including the criminal history and supporting information. At the beginning of his evidence he made two amendments to his report, which resulted in greater consistency with Mr TNC’s evidence. It is his opinion that Mr TNC has no evidence of any psychopathology. Dr Rodney said there were allegations in the past but these have been cleared and Mr TNC was totally exonerated. He does not pose any risk or danger to children.[11]
- [48]In addition to Ms LP, four other witnesses gave oral evidence. Each of the witnesses had known Mr TNC for a very long time. Some had observed him working with children. They were all aware of the allegations against Mr TNC but not the details. One witness sat through four days of the trial in 2003 relating to the adult complainant. There were two written references from prominent Australian sports people attesting to his character.
- [49]Each of the witnesses attested to Mr TNC’s character, the contribution he has made to his sport, the respect in which he is held, his outstanding capabilities as a coach and the work he has done supporting charities. Statements were made that the allegations were ludicrous, they were not in his character, that he has been fantastic in the way he managed players and that he is an absolute model citizen.
- [50]None of the witnesses had observed any risk behaviour. There was a consistent view that because the charges had not been proved it was not appropriate to assess Mr TNC as a risk. There was a consensus view, stated by one witness as, ‘the justice system deserves respect’ and he deserved the benefit of a not guilty outcome from a jury trial and the withdrawal or dismissal of the other charges.
Mr TNC’s Submissions
- [51]Mr TNC submitted the issuance of a Positive Notice – Blue Card is of critical importance for him to carry out his profession.[12]
- [52]He has not been convicted of any offences whether they be serious or disqualifying offences under the Act.[13]
- [53]The only evidence of the complaints is the police brief, which has not been tested and should be given little weight.
- [54]He has denied the allegations under oath.
- [55]The medical evidence supports the view that Mr TNC does not pose a risk to children.
- [56]His standing within the sporting community, his charity work and his community involvement evidences his good character. There is no evidence of drug or alcohol abuse, or violence against men or women.
- [57]He has a positive attitude towards young men and women.
- [58]He acknowledges the position of trust he is placed in when coaching children and the power imbalance.
- [59]Preventative measures have been put in place.
- [60]It is a long time since the allegations were made.
- [61]Certificates have been issued by NSW Commissioner for Children and Young People.
- [62]References are based on observations and are an informed opinion of witnesses with some knowledge of the charges. They support the existence of protective factors.
- [63]To rely on now tested allegations as proven and to draw speculation from such facts to justify the issuance of a Negative notice is incorrect and unjust.[14]
- [64]The charges were dismissed or withdrawn and by consequence he ought to be afforded the presumption of innocence in regards to those charges.
- [65]No evidence has been provided as to why those allegations were withdrawn other than mere speculation. Equal speculation ought to be permitted as to why those allegations were withdrawn for example that they had no foundation and were motivated by external factors.
The Chief Executive’s Submissions:
- [66]Five of the charges are categorised as disqualifying offences and the sixth is classified as a serious offence, which indicates the pertinence of such charges in assessing Mr TNC’s eligibility to engage in child related employment. The Act allows for the consideration of these charges.
- [67]When balancing the rights of a citizen to the presumption of innocence against the desire of the community to protect children, Parliament has tipped the balance in favour of children. The issues to be determined are based on the best interests of children, not the guilt or innocence of Mr TNC.
- [68]The difficulties associated with securing convictions for child sex offences is well documented and the dismissal of charges is not conclusive of the issues to be considered by the Tribunal.
- [69]There is a significant degree of similarity in the allegations made by the three different complainants.
- [70]The alleged offending arose in the context of child related employment.
- [71]There was a significant power imbalance between Mr TNC and those whom he coached, which in turn may have discouraged the complainants from coming forward with allegations against him at an earlier time.
- [72]The complainants were reluctant to come forward with their complaints.
- [73]The medical evidence should be given little weight because it was based on the premise that Mr TNC should be able to enjoy the benefit of the acquittal.
Risk and Protective Factors
- [74]Both parties have made submissions about the weight that should be given to the evidence and the conclusions to be drawn. They have identified risk and protective factors to be considered.
- [75]Based on the written material that has been filed, the oral evidence and the submissions I have identified the following protective and risk factors.
Protective factors
- a)Mr TNC has no evidence of psychiatric or psychological problems, or alcohol or drug abuse.
- b)He had a stable family upbringing and has the support of his current partner, his extended family and work colleagues and friends.
- c)There has been a lengthy period without any reports and the last offence was alleged to have occurred in 1997.
- d)He has held a Certificate under the NSW Working with Children regime since 2009 with no adverse reports.
- e)He is a valued and respected member of his sporting community.
- f)He is committed to helping elite players transition to the senior ranks and would not want to jeopardise that opportunity.
- g)He experienced financial loss and stress following the allegations and he would not want to be put in that position again.
- h)He has an increased awareness of the need to work with children in an open space, to listen to what they have to say and to avoid one on one contact.
Risk factors
- i)The charges brought against Mr TNC as a result of information from three separate complainants were disqualifying and serious charges.
- j)The allegations showed similarities.
- k)The allegations from the two complainants, who were children at the time of the complaints, arose from child related employment.
- l)Mr TNC did not give priority to obtaining advice about his legislative obligations to obtain a blue card as the director of a child related business and to accept the responsibilities of the holder of a blue card.
- m)He did not acknowledge that risk could still be present in the absence of a conviction. He confused the absence of a conviction with proof of innocence. He lacks insight and shows little awareness of the circumstances that can lead to harm to children.
- n)Mr TNC has not demonstrated an understanding of the strategies that need to be in place to provide a protective environment for children.
Decision
- [76]To determine whether there is an exceptional case, such that a negative notice must issue under s 221(2) consideration must be given to the requirements of s 226(2).
- [77]Mr TNC has been charged with, but not convicted of, five disqualifying offences and one serious offence.
- [78]The offences are alleged to have occurred between 1986-1997.
- [79]The alleged offences took place in a business environment, namely the provision of coaching services to sports players. Some of the players were children. All complainants were in a player/coach relationship. The coach has the responsibility to assist the players to develop their game to perform at a high level. They are dependent on his knowledge and skills as a coach to achieve their ambitions.
- [80]Based on the references it is clear Mr TNC is a respected and successful coach and considered one of Australia’s best coaches. It is therefore desirable for players to be coached by him. This puts him in a position of power over his players who would not want to jeopardise their opportunities.
- [81]Mr TNC is of course free to continue to emphatically state his innocence, admitting only to one night of consensual sex with an adult player. However he has done more than that. He also says he was ‘proven innocent’, that ‘It was proven these false allegations were part of a corroboration in an attempt for me to lose my job’ and that it was ‘proven beyond any doubt’[15] that he did not do these things. These claims cannot be substantiated by what occurred in the legal process.
- [82]A jury returned a verdict of not guilty on one charge, because it could not be established beyond reasonable doubt there was no consent. Two further charges were dismissed and three charges were withdrawn. These circumstances do not prove Mr TNC’s innocence, or that the allegations were false. Failure to proceed with the charges is merely evidence the prosecution did not believe the charges could be proved beyond reasonable doubt.
- [83]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. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.
- [84]This may seem unfair to Mr TNC and many others in his situation, who are entitled to a presumption of innocence. It can be seen as offending a sense of justice.
- [85]Parliament considered this tension and stated in the explanatory notes to the Bill introducing the Act at page 10:
The infringements [on the rights 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.
- [86]I am therefore required to give some weight to the charges. They do not constitute an exceptional circumstance by themselves, if they did that would have the effect of elevating their importance to the level of convictions, and Parliament drew a distinction, but they must be considered as part of the circumstances.
- [87]I have considered the following; there are no original statements from the complainants, the evidence in relation to the disqualifying offences has not been tested, the nature and similarities of the allegations, Mr TNC’s evidence about the difficulty in accessing the adjourning sports facility and the statements in the police brief that the complainants were receiving counselling and were reluctant to come forward.
- [88]Three separate women made serious allegations of similar behaviour against Mr TNC. If proven the allegations would have resulted in disqualifying offences. The similarities are evidence of either collusion or corroboration. There is no evidence supporting Mr TNC’s speculation about the reason the women made the allegations or any motive for their collusion. Mr TNC’s denial of these allegations is not corroborated.
- [89]I do not need to be satisfied on a balance of probabilities that the offences occurred and I do not make that finding. I am satisfied, on the balance of probabilities, that the circumstances raise the possibility of a risk to children.
- [90]The assessment of risk is not limited to the charges and I must consider the totality of the evidence.
- [91]Mr TNC refers to his move to Queensland in 2014 and the steps that were taken to comply with Queensland legislation and to meet his obligations. He said no enquiries were made about the need for a blue card before moving to Queensland because he assumed the NSW Certificate, which was current, would be sufficient. Appropriate due diligence, undertaken before establishing a business in Queensland, would have revealed the legislative requirements.
- [92]Ms LP states she was aware of the need for a Queensland blue card in July 2014 and she obtained one at the time. It is clear Mr TNC did not apply until September 2014. This delay shows he did not consider his obligation needed to be given urgent attention.
- [93]Mr TNC showed a lack of understanding of the risk of harm to children. He could not acknowledge the difficulties involved in bringing a successful prosecution after an extended period, demonstrate an awareness of the factors that might discourage complainants from going to the police, or acknowledge that giving evidence in a sexual assault case would be traumatic for the complainant. His view appeared to be that if children were being harmed they would come forward at the time. Delay in bringing a complaint should be viewed as evidence of a fabrication.
- [94]All the witnesses placed great weight on their own judgement of Mr TNC’s character, leading to a belief in his innocence and dismissing the allegations as false. Indeed, Dr Rodney referred to his ‘complete exoneration’. It is deeply concerning when the community at large gives such priority to the benefit of the presumption of innocence of an individual it fails to acknowledge the potential for risk to children.
- [95]Mr TNC did not appear able to identify the protective factors necessary to conduct a business, apart from everything being in the open and listening to children. He did not ask the employees if they had a blue card, with the exception of one coach. He did not ensure the business had an appropriate risk policy. He was not aware of training for staff around risks. He did not identify the need for an accessible process for children to make disclosures in a safe, risk free environment.
- [96]It was Mr TNC’s evidence, and I accept it, that he was busy coaching in Australia and overseas, he travelled a lot and he was not the person involved in the day to day operations of that part of the business that relates to children. However the holder of a blue card has obligations to provide for the safety of children. If this is to be delegated to others at the very least he had to satisfy himself that it has been done, and this did not occur while he was a director.
- [97]This failure to take seriously the responsibilities of a director in a child related business poses a serious risk to children.
- [98]I have considered the protective factors that have been identified.
- [99]I have given little weight to the medical report of Dr Rodney who gave the opinion that Mr TNC posed no risk. He did not demonstrate any awareness that the rights of children to a safe environment take precedence over the presumption of innocence of the individual. The report was accepting of Mr TNC’s version. Dr Rodney stated in evidence that the ‘allegations were never proven’ and ‘surely the acquittal is all we can go on’. He said the area of child sex abuse is a developing area and there is no simple framework or strategies to protect from risk. This understates the large amount of work that has been done in the area.
- [100]Many of the protections result from the support Mr TNC has from his family and friends. These people are accepting of his innocence and, as a result of their own experience and judgement, have determined that it is not in Mr TNC’s character to offend against children. This view, genuinely held, would not protect children if they did come forward.
- [101]His contribution to his chosen sport and activities supporting charities are not protective factors because they are not incompatible with acts of harm towards children.
- [102]I have given a lot of weight to the length of time since a complaint was made. However these factors were present in the case of Volkers.[16] In that case the Tribunal stated
Although the allegations relate to offences committed many years ago, they are of such a repetitive and serious nature that time does not detract from their seriousness
- [103]Mr TNC submits that his case is different because in Volkers none of the allegations were tested at trial and dismissed, there were admissions of the behaviours, and no protective strategies were identified. I do not accept the cases can be differentiated on this basis because both cases related to charges arising from events occurring many years ago and resulted from a coach/player relationship. In this instance the allegations relating to events concerning children were not tested at trial and the alleged behaviour was more serious.
- [104]I have given weight to the substantial loss, financial, reputational and personal, that would result from inappropriate behaviour.
- [105]Considering the totality of the evidence, I am not satisfied the protective factors are sufficient to mitigate the risks arising from the combination of the circumstances of the charges and Mr TNC’s failure to demonstrate the necessary awareness of child safety issues. This risk is not limited to Mr TNC’s behaviour but extends to his ability to protect children from harm by others.
- [106]I am satisfied a risk to children has been demonstrated and this is a situation where an exceptional case exists such that it is not in the best interests of children for a positive notice and blue card to issue.
Publication
- [107]Mr TNC has applied for a non-publication order to protect himself, his family and his referees. A non-publication order can be made if it is considered necessary, among other reasons, “in the interests of justice”.[17]
- [108]Mr TNC lives with Ms LP’s two adolescent children who regard him as a father figure. If no order was made, an electronic search by name could quickly lead to this case. I have decided it is contrary to the interests of justice for the details of this application to be freely available because it could impact adversely on those young people.
Footnotes
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6. Also see s 360, which states ‘A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.’
[2] Ibid s 221(1)(b)(iv).
[3] Ibid s 221(2).
[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at paragraph 34.
[5] Ibid at paragraph 42.
[6]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226(2)(a)(ii).
[7]Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171 at [23].
[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
[9] Letter TNC to Blue Card Services dated 28 December 2014.
[10]Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 197 and 166.
[11] Report Dr James Maurice Rodney dated 9 November 2015.
[12] Submissions of Applicant 27 November 2015.
[13] Ibid para16.
[14] Ibid para 46.
[15] Application to QCAT dated 22 July 2015.
[16]Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.
[17]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2).