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BGL v Director-General, Department of Justice and Attorney-General[2017] QCAT 196

BGL v Director-General, Department of Justice and Attorney-General[2017] QCAT 196

CITATION:

BGL v Director-General, Department of Justice and Attorney-General [2017] QCAT 196

PARTIES:

Mr BGL

(Applicant)

v

The Director General, the Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML138-15

MATTER TYPE:

Childrens matters

HEARING DATE:

14 February 2017

HEARD AT:

Brisbane

DECISION OF:

Member Ryan

DELIVERED ON:

8 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Director General, Department of Justice and Attorney-General that the Applicant’s case is an ‘exceptional case’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is not an exceptional case.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the Applicant and his wife.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where Applicant issued with negative notice – where Applicant subject to serious criminal charges –  where Applicant found not guilty and acquitted of all charges –  where no previous or subsequent charges or convictions   – where inappropriate behaviour whilst working with disabled adults – where Applicant a Registered Nurse – whether the case is exceptional

NON-PUBLICATION – identity of Applicant – identity of child – exercise of discretion

in the interests of justice to make a non-publication order

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 21(2), s 66, s 66(3)

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 116, s 161, s 169, s 221, s 225, s 226, s 354, s 360, Schedule 2

AX v Commissioner for Children and Young People and Child Guardian (No2) [2012] QCATA 248

Baker v The Queen [2004] HCA 45

Commissioner for Children and Young People      and the Child Guardian v Maher & anor [2004] QCA 492

Commissioner for Children and Young People v Ram [2014] QCATA 27

In the marriage of Sandrk (1991) 104 FLR 394

Kent v Wilson [2000] VSC 98

McKee v McKee [1951] AC 352

R v Kelly (Edward) [2000] QB 198

Re: Imperial Chemical Industries Ltd’s patent

extension petitions [1983] VR1

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES:

APPLICANT:

Mr BGL appeared in person and was unrepresented

RESPONDENT:

Ms Marunda, government lawyer, represented the Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    Mr BGL has applied for review of a decision made by the Respondent to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).  The Respondent informed Mr BGL on 10 October 2014 that it had been notified of a change to his police information.  He was invited to make a response to the decision maker which was proposing to reassess his eligibility for a positive notice and blue card.  After considering Mr BGL’s response, the Respondent found that his case was an ‘exceptional case’ and cancelled the positive notice and issued a negative notice on 1 June 2015.

The legislative framework for the review

  1. [2]
    The Tribunal is to decide the review in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  The Tribunal has all the functions of the decision-maker for the decision being reviewed.[1]  The purpose of the review is to produce the correct and preferable decision.  The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[2]
  2. [3]
    Employment screening for child-related employment is dealt with in chapter 8 of the Act.  A person who is not a disqualified person [3] is entitled to apply for review of a “chapter 8 reviewable decision” within 28 days.[4]  Mr BGL was not a disqualified person and applied for a review within the appropriate time.
  3. [4]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by screening persons engaged in employment or businesses that may involve working with children and developing and implementing risk management strategies.[5]  A child related employment decision[6] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[7]  This is the principle ‘to which all others must yield’.[8]
  4. [5]
    A positive notice must:

(a) be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued;[9] or

(b) not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.[10]

  1. [6]
    Mr BGL’s case falls into the first category; there is a statutory presumption that a positive notice should be issued to him.[11]  The WWC Act makes a distinction between serious offences and disqualifying offences, and between charges, investigatory or disciplinary information, and convictions.  The offences with which Mr BGL was charged were serious offences and not disqualifying offences.[12]
  2. [7]
    The Respondent was required to issue a positive notice to Mr BGL even though he had been charged with serious offences unless the Respondent was satisfied an “exceptional case” existed in which to do so would not be in the best interests of children.

What does “exceptional case” mean?

  1. [8]
    The WWC Act does not define what constitutes an exceptional case; it is a matter of discretion.  Courts and Tribunals have been reluctant to make any rule as to what is ‘exceptional’ but have considered it in the context of this and other legislation.  In Baker v The Queen[13] Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward)[14] to the application of 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:

We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

  1. [9]
    The expression “exceptional case” must be read in context, which in this instance is within legislation to protect children’s best interests by preventing certain people from working with them.  It is an issue of fact and degree[15] and the Tribunal has broad discretion in considering the merits of each case.[16]  To be exceptional, a case must ‘take it out and beyond the ordinary circumstances reasonably expected to occur’.[17]  The passing of time alone is not sufficient to detract from the seriousness of events.  The significant consideration is relevant risk and protective factors.[18]
  2. [10]
    The decision maker, and now the Tribunal, must evaluate the level of risk that Mr BGL would harm the best interests of children in the course of carrying out child-related activities regulated under the Act.  Section 226 of the WWC Act sets out a list of matters which must be considered.  There appear to be no express limits when considering whether a case is “exceptional”, although some matters have been found not to be relevant,[19] such as hardship or detriment for the Applicant.  These factors are not an exclusive list[20] and will not necessarily be given equal weight in the evaluative exercise to be undertaken.  What weight is accorded to each factor will depend upon the facts and circumstances of the case.  These mandatory factors are to be considered within the overarching paramountcy principle.  A consideration is that there is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[21]  The Tribunal decides whether a case is exceptional or not, and not whether a blue card will issue.[22]

Background to Mr BGL’s application for review

  1. [11]
    Mr BGL came to Australia in January 2013 from Nigeria on a student visa to study a Bachelor of Nursing at QUT and was employed as a carer in disability support and aged care.  He required a blue card and obtained a positive notice and blue card on 25 July 2012.  He graduated from his Nursing degree in December 2014 and became a Registered Nurse in 2015.  He has subsequently commenced work as a Registered Nurse at St Andrews hospital in Brisbane.[23]  When working as a Registered Nurse he is exempt from any requirement to hold a blue card if working with children.   
  2. [12]
    On 13 September 2014, Mr BGL was charged with one count of rape, three counts of sexual assault and one count of assault with intent to commit rape.  These charges related to occurrences on 24 November 2013, at a house where both Mr BGL and the complainant were working a shift as carers. 
  3. [13]
    On 1 June 2015, while the resolution of the charges was pending, the Respondent found that Mr BGL’s case was exceptional and cancelled his positive notice and issued a negative notice.[24]  Mr BGL applied to the Tribunal for a review of that decision on 10 June 2015.[25]  The Tribunal conducted a compulsory conference on 30 September 2015.  The matter was adjourned by the Tribunal until the criminal charges had been dealt with.  On 23 June 2016, the Respondent notified QCAT that it had received an updated criminal history for Mr BGL.  On 26 May 2016, he had been found not guilty on all charges in the Brisbane District Court and been discharged.  The Tribunal conducted a directions hearing on 11 August 2016, a further compulsory conference on 16 September 2016, and a directions hearing on 23 November 2016 before the hearing on 14 February 2017.

The Respondent’s case

  1. [14]
    The Respondent’s decision was made at the time Mr BGL was subject to serious criminal charges.  The statement of reasons was almost entirely predicated on the nature of the allegations of non-consensual predatory and/or forced sexual behaviour initiated by Mr BGL on a female colleague in his workplace.
  2. [15]
    The Respondent indicated when asked by the Tribunal, that it did not see a need to reconsider its decision in the light of Mr BGL’s acquittal by a District Court jury on all charges.  Whilst acknowledging there was no evidence he had ever been convicted of any offence, the Respondent remained concerned about Mr BGL’s inappropriate conduct at work, which it said was an environment similar to one regulated under the WWC Act.  Mr BGL had the care of vulnerable adults at the time.  His sexualised behaviour had been inappropriate and he had admitted that.  The Respondent submitted it was a short step from vulnerable adults to children, and children’s’ welfare depended on Mr BGL’s ability to exercise proper judgment.  It was submitted that the issues to be explained were; his insight into the conduct at work, his insight into why it was wrong, and his insight into the potential negative consequences of his conduct for others i.e. vulnerable people in his care. 
  3. [16]
    The Respondent adopted the approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[26], which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the case.
  4. [17]
    In oral and written[27] submissions, the Respondent identified the protective factors as:
    1. Mr BGL’s remorse regarding the inappropriate nature of his behaviour at work.
    2. Mr BGL had good references which attested to his positive character, from people who gave evidence they had known him for a considerable period of time. He was described as having a positive character, being gentle, selfless, responsible and trustworthy.
    3. His references also reflected favourably on his interactions with children, witnesses with children indicating they were happy to leave their children with him.
    4. He had a good support network, including his wife, child, and friends.
    5. The District Court jury had found Mr BGL not guilty, indicating it was not satisfied beyond reasonable doubt that sexual contact took place without consent.
    6. He had no convictions or prior or subsequent charges of any kind.
  1. [18]
    The risk factors were identified as:
    1. Mr BGL engaged in inappropriate workplace conduct towards a female complainant including kissing, smooching, fondling breasts etc.
    2. Mr BGL and the complainant hardly knew each other; it was the first time they had met.  There was serious sexual behaviour engaged in within a short period demonstrating Mr BGL was likely to act impulsively.
    3. The conduct occurred over the period of the shift, which showed he lacked self-control and the ability to behave appropriately in the workplace.  For example, he continually initiated inappropriate contact with the complainant in the workplace and only desisted when she agreed to meet him outside work.
    4. Mr BGL was very persistent, neglecting his duties and pursuing the complainant while she attempted to fulfil her duties.
    5. He engaged in the conduct while caring for vulnerable people, disregarding and neglecting his duties.
    6. He said, ‘what’s the big deal’ in his record of interview: the behaviour was consensual but being at work, it was a ‘big deal’.
    7. The behaviour took place where the clients could have walked in upon he and the complainant.
    8. It took place in an environment akin to regulated employment.

Mr BGL was 34 years old, a mature adult and should have known better than to behave in that way.

  1. [19]
    The Respondent noted that it was not a question of imposing punishment but whether Mr BGL should be allowed to interact with children in a regulated employment environment.  The Respondent submitted that the risk factors outweighed the protective factors and that, given the paramountcy of the best interests of children, this was an exceptional case.  

The Applicant’s case

  1. [20]
    In Mr BGL’s sworn evidence and submissions he acknowledged that he did not require a blue card and positive notice to work as a Registered Nurse with children, as it is an exempt profession.  He would require one were he to work with children outside his profession e.g. as a volunteer.
  2. [21]
    Prior to obtaining his nursing degree in Australia, he had gained a Bachelor of Science degree with Honours from the University of Lagos in Nigeria, a post graduate diploma in Nutrition and Dietetics, and a Masters in Managerial Psychology from Ibadan University in 2007.  He worked as an Assistant Manager in a telecommunications firm.  He volunteered in assisting elderly people with activities of daily living and ultimately, having decided to move into a caring profession, came to Australia to study Nursing.
  3. [22]
    He said when he was arrested, he spent two nights in the watch house.  His student visa was cancelled, and he was sent to Perth to an immigration detention centre for a month.  He then applied to a tribunal, which decided against the cancellation of his visa until the charges were determined.  His employer stood him down from his position working in a disability support service of Centacare.  When the Australian Health Practitioner Regulation Agency (AHPRA) was informed of the charges, a condition was placed on his registration, so that he was required to work under supervision with certain females, and he obtained a job as an Assistant in Nursing.
  4. [23]
    Mr BGL said the consequences for him had been appropriate given the charges.  He said he agreed that he should have been suspended from his work as a carer, and have conditions applied by AHPRA.  Once he was acquitted, he said he thought other organisations had responded appropriately in reinstating him, but he could not understand why Blue Card had not.  He came to understand that it was the behaviour at work that was still a concern for the Respondent.
  5. [24]
    He said he very much regretted his behaviour at work, which he stressed was consenting behaviour.  He fully understood that it was wrong to behave that way at work and he would never do so again, regardless of who he was caring for. He said many employees leave the workplace to smoke, read books at work, work on private work on computers, on their employer’s time, and this was also inappropriate behaviour at work. 
  6. [25]
    Whilst acknowledging that he should not have behaved as he did at work, with respect to the risk factors referred to by the Respondent, he said in oral evidence:
    1. Referring to the proposition which emerged in questioning by the Respondent that he was in a supervisory position over the complainant, he said they were both at the same level.  He did not allocate duties to her.  He was not in a position to report on her or have her work reduced. 
    2. He said at the time he did not think he had neglected his clients as he knew them well, attended to their needs, and knew there was quite a lot of time in the day when they were occupied in their rooms.  He was not a ‘social worker’ as the Respondent had said in the statement of reasons, he was a ‘carer’, required to do specific duties such as meal preparation, clearing up, providing help with taking them to the bathroom if required.  The nature of their disabilities was that they wanted and needed a structured routine.  He said he was aware of their patterns and capabilities.  He acknowledged they could have come out at any time, and that he and the complainant could have been seen.  He said this was one of the reasons he and the complainant agreed to take the relationship away from work. 
    3. He said he did not have ‘no self-control’ because he and the complainant agreed to take the relationship away from work. 
    4. He said he was not particularly ‘persistent’, and the complainant had initiated some of the behaviour as well.  Whilst acknowledging again it was wrong to have done so at work, the behaviour was mutual.
    5. He said the age difference was not relevant.  The complainant was an adult.  He had found out later that she was married and living with her husband.  She had not told him of this, but had said she did not have a boyfriend.
  1. [26]
    Asked by the Respondent how he reflected on his behaviour, he said he knew it was wrong to behave that way at work, it was a mistake, it had happened once and would never happen again.  He said he nearly lost everything he had.  He thought his life and work were over, that he would never be able to work in a western country again.  He would never risk all that again.  He said he had learnt that at work, feelings must be suspended.  As a registered nurse, he works with many young women and never has any issues.  He has a lot of responsibility and takes it seriously.  Asked if he had been faced with a comparable situation of having feelings for someone at work he said he would always control his responses regardless of his feelings. 
  2. [27]
    Asked why he had concluded this situation would never arise again, he listed the consequences for him of the serious charges (set out above).  Also, his circumstances had changed.  His wife (he was married in 2012) had, since the incidents, joined him in Australia.  He had to tell her about the charges and his behaviour and she had suffered from the shame.  He said he and his wife have a baby and he is dedicated to his family.  He did not think he would ever come out of the terrible situation he had been in.  He said he had never in his life done anything of this nature or been accused of anything of this nature.  He had been a diligent and successful student, earning degrees and postgraduate diplomas in Nigeria.  He had worked in Nigeria and there had been no complaints that he had shirked his duties or been irresponsible or inappropriate.
  3. [28]
    Asked if he understood why his conduct raised concerns, he said he came to understand that it was not the complainant’s ‘story’ but his conduct which was of concern.  He said he regretted what he had done at work, that it had never happened before and would never happen after.  He had more to lose than ever before in his life.  Mr BGL said he would never hurt a child, and his integrity with children had never been found wanting.  Asked by the Respondent if he thought he would be a good role model for children he said he thought he would, as he had shown he had learnt from his mistakes.  He said he had moral allegiances to his wife, and responsibilities for patients and that these were far more important than his own wants.
  4. [29]
    He said his case was not exceptional.  He had been acquitted of the charges, and he had had no charges or convictions before or since.  He had behaved inappropriately at work, and he regretted it and would never behave inappropriately in a workplace again.  He said he was aware of the harassment and bullying policies at his workplace and as a registered nurse he was held to account by the requirements of his registration with AHPRA.

The Applicant’s witnesses

  1. [30]
    Of the five witnesses who gave evidence at the hearing, one was a former landlady, Ms Hoppner, who had virtually no knowledge of the charges and had not seen Mr BGL for some time.  Her evidence was given little weight.  The remaining four witnesses included his wife, and family friends from the Nigerian community.  They universally assessed him as of good or impeccable character, a hard worker, truthful, friendly and thoughtful of others, a responsible steadfast gentleman.  He was a person who went out of his way to help people, and to make life better for others.  The charges had seemed totally out of character and inconsistent with their knowledge of him; he would not assault a woman.  They had known him for varying periods of time, up to 16 years, and had relatively frequent contact with him and the opportunity to observe him with women and children.  Those with children said they would happily leave them with him and do so. 
  2. [31]
    With the exception of his wife, Ms MHN, and his Pastor, Mr Akingbehin, the remaining witnesses, Mr Abayomi Showunmi and Dr Kehinde Yusuf, were aware of the nature of the charges, for rape and sexual assault, but were not aware that Mr BGL had engaged in non-criminal but inappropriate sexualised behaviour at work.  Mr BGL’s wife said the impact on her and their life had been searing.  She said his life had changed very significantly since then; she had joined him in Australia shortly after the events, he had graduated in Nursing, they had had a child, and he had her support, and the new responsible role of being a father.  Mr Akingbehin said that he was aware of the inappropriate behaviour at work and that it was totally out of character for Mr BGL.  He had spoken with him about it, and it was an error, a mistake he had learned from.  Asked by the Respondent whether Mr BGL had insight into his conduct, he said Mr BGL understood it was wrong, very much regretted it, and would not do it again.

The Tribunal’s view: is this an exceptional case? 

  1. [32]
    The Respondent argues this case is exceptional because Mr BGL engaged in sexualised behaviour with a colleague in a work environment where it may have been witnessed by those vulnerable adults he was a carer for, and where their care may have been prejudiced by his lack of attention to his duties.  This can be considered an environment similar to one regulated under the WWC Act where he may have care of children.  The Respondent acknowledged that the only relevant risk was the risk to children.  In explaining the link between Mr BGL’s self-professed delinquency at work and harm to children, the Respondent said that at the time of the events, he had worked under parallel legislation, and he could have been sent to a place where children were to be cared for.
  2. [33]
    Mr BGL does not bear an onus of proof but he must be able to provide sufficient convincing evidence for the Tribunal to find on the balance of probabilities that this case is not an exceptional one. 
  3. [34]
    The Tribunal is satisfied, weighing the evidence before it, on the balance of probabilities and bearing in mind the seriousness of the consequences, that Mr BGL’s case is not exceptional.
  4. [35]
    Looking at the factors which must be considered[28] and at factors the Tribunal considers relevant, the Tribunal finds that Mr BGL is 37 years old and has no criminal history, no convictions or pending charges.  He was acquitted in May 2016 of the charges which initially attracted the issuing of a negative notice.  The charges were serious charges; there were no disqualifying charges.  The charges arose out of events which occurred three and half years ago in November 2013.  In terms of the nature of the charges and their relevance to employment that may involve children, the incidents did not in fact occur in the course of child-related work and did not involve children.  The Respondent drew a direct parallel between the care of disabled adult men who were vulnerable and the care of children in a regulated workplace.  The Tribunal acknowledges there are parallels and notes the appeal Tribunal has made observations on the relevance of non-child related offences.[29]  There was no suggestion or any reports indicating that Mr BGL had mental health, substance use or addiction issues.
  5. [36]
    The Tribunal acknowledges the strength of Mr BGL’s witness statements.  However, the weight it has given them in terms of assessing Mr BGL’s insight and future risk has been impacted by the fact that only two of the witnesses knew of the behaviour at work which was the ultimate basis for the Respondent’s finding that there is an exceptional case.  Their support has nevertheless been considered a protective factor.
  6. [37]
    The Tribunal did not accept a number of submissions the Respondent made, or inferences implicit in those submissions.  Reference was made to statements made by the complainant in her police statement.  The Tribunal makes the observation that the complainant and Mr BGL gave two different versions of the events.  The complainant’s claims are reflected in the serious charges.  Mr BGL acknowledges that sexualised behaviour took place, but has at all times disputed the extent of the behaviour, and disputed that he overbore the complainant’s will.  The complainant is not involved in these proceedings and her version cannot be tested here.  Mr BGL’s version of events has been preferred by the jury, as he was acquitted.  Accordingly, it is not sound to rely on statements made to the police by the complainant or Mr BGL before they were tested in the District Court, given they have now been tested before a jury.  The Tribunal does not then accept elements of the Respondent’s submissions which rely on Mr BGL’s will having been exerted over the complainant’s will and against her will.
  7. [38]
    The Tribunal does not accept the Respondent’s reliance on the existence of a ‘power imbalance’ between the complainant and Mr BGL.  It referred to a ‘gender imbalance’ as an ‘aggravating factor’.  The thrust of the law has been towards equality between genders, and the Tribunal does not accept a general proposition that difference in gender alone constitutes a power imbalance.  It would depend on the circumstances, and there was no concrete specific probative evidence of it in this case.
  8. [39]
    The Tribunal does not accept there was a power imbalance in terms of Mr BGL’s and the complainant’s work roles.  It was clear from the detailed questioning of Mr BGL under oath by the Respondent and his answers that he was not the complainant’s supervisor, or in any way assigned to monitor her work performance.  He said he had assumed the majority of the duties because she was new to that particular house.  There was no probative evidence before the Tribunal that he had exerted pressure on his colleague based on her fear that he would impact her employment. 
  9. [40]
    Neither does the Tribunal accept the suggestion that the age difference between Mr BGL and the complainant was significant, or created a power imbalance.  The complainant was an adult of 22 years at the time of the charges.  The implication that she was naive is contradicted by the fact she was not only a married woman at that time, but was not frank about her marital status to Mr BGL and in addition had told him she did not have a boyfriend.  
  10. [41]
    The Tribunal finds that the conduct under consideration here was entirely inappropriate in a workplace, particularly where vulnerable people were being cared for, and in any situation regulated under the WWC Act.  It did expose those in Mr BGL’s care to risk, and showed a serious lapse of his judgment.
  11. [42]
    With respect to the potential for ongoing risk, the Tribunal may have been assisted by an assessment from a psychologist.  Mr BGL was recommended to obtain an up to date report from a doctor or counsellor.  Whilst he obtained a brief statement from a counsellor he had seen once, he did not provide a report canvassing the recommended issues which were:
    1. The extent to which he had insight into the impact his behaviour has on children.
    2. What risk factors, or triggers, if any, continue to be present which could contribute to a risk of similar behaviour being repeated?
    3. What protective factors, if any, are present to reduce the risk of a repetition of such behaviour?
    4. What preventative strategies, if any, does Mr BGL use to reduce the risk of repetition of such behaviour?

These are similar to the matters the Respondent submitted Mr BGL was required to explain: his insight into the conduct at work, his insight into why it was wrong, and his insight into the potential negative consequences of his conduct for others such as vulnerable people in his care.

  1. [43]
    Mr BGL said at the hearing that he did not believe he needed to see a psychologist as he had coped with the circumstances.  In the absence of a report, the Tribunal has relied on the information available to it to assess the risks and supportive factors relevant to its decision about Mr BGL’s potential future behaviour.  The Respondent’s questioning of Mr BGL and the witnesses was directed at these issues, and there is a significant amount of evidence available to the Tribunal.
  2. [44]
    The Tribunal notes that psychologist or health reports are not invariably provided to it, nor are their findings invariably accepted as the basis for the Tribunal’s decision.  They are another part of the evidence to be weighed and considered.  On the evidence, the complete lack of any prior or subsequent charges or convictions, of any identified physical or mental health issues, any addiction or other negative factors, and any incidents related to children, or any other negative information leads the Tribunal to believe it is not a fundamental hiatus in the evidence.
  3. [45]
    The Tribunal has been satisfied by the evidence before it that Mr BGL has sufficient insight into the potential impact of his behaviour on those he is required to care for and this insight will inform the exercise of his judgment in the future.  It is also satisfied that he has determined to be scrupulous in his relationships at work, or in other regulated environments.  Ultimately, the Tribunal finds that the risks of recurrence of inappropriate behaviour, whether of a sexual nature or otherwise, which may expose children to risk in an environment regulated under the WWC Act are significantly outweighed by the protective factors including:
    1. The deterrence effect of the grave consequences he has faced is a major factor.  Whilst the Tribunal acknowledges that the impact on him and his work opportunities is not a factor in the face of the paramountcy principle, it is highly relevant to the likelihood of a recurrence.  His concern about his career as a Registered Nurse, his place in the Nigerian community, the protection of his wife and child, struck the Tribunal as genuine.  The impact of the consequences he had faced seemed profound.  The Tribunal is satisfied that his need and wish to avoid consequences of anything like the severity of those he has faced is a very significant factor in managing future risk.
    2. Mr BGL was remorseful that he engaged in this behaviour at work, and that he had caused so many consequences for others as well as himself.
    3. Mr BGL did not deny that some inappropriate consensual sexualised behaviour took place between himself and the complainant at work.
    4. Mr BGL is a person of otherwise unblemished record.  He values his integrity and the Tribunal accepted that he does not wish to risk it by any lapses.
    5. The support of his wife, who had not yet moved to Australia at the time, and the birth of their child, have been meaningful changes in his circumstances and major factors in further strengthening his determination to maintain his career and reputation.
    6. That he is now a health professional working in a regulated environment where any such behaviour would impact on his registration and ability to work and support himself and his family.
    7. His strong and supportive friendships which have endured over many years and his involvement in the Nigerian community.
    8. His professed commitment to the help and protection of those in his care and those in his family and social circle was convincing.
    9. His acceptance that his behaviour was inappropriate and unprofessional and inconsistent with his responsibilities to those by whom he was employed and those for whom he cared.
  1. [46]
    The Tribunal finds that the matters the Respondent identified as requiring answers, have been satisfactorily addressed.  It further notes that the blamelessness of Mr BGL’s life apart from these events, according to the evidence before the Tribunal, means the assessment of risk and protective factors will be more nuanced than in a case where there is a criminal history or a conviction.  Mr BGL’s insight appears to be more than intellectual, and he avows it to be enduring.  The negative consequences he has identified go not only to his concerns about his livelihood, but to higher concerns about his integrity, his responsibilities working in a caring profession, his honour within his community and as a husband and father.  Whilst they may not be entirely altruistic, it would be unrealistic to suggest that negative consequences were not a behaviour modifier.  In the end, the powerful risk management tool is the emphatic change in Mr BGL’s work, family and life circumstances so that he is supported to maintain high standards of behaviour at home, socially and in his workplace, and the high value he places on maintaining his integrity in those places.
  2. [47]
    In terms of the level of satisfaction required to meet s 221(2) of the WWC Act, while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that this is not an exceptional case in which it would harm the best interests of children for a positive notice to be issued.  Having considered the matters to which the Tribunal must and may have regard, on balance, the Tribunal is satisfied that this is not an exceptional case in which it would not be in the best interests of children for a positive notice to issue.

Conclusion 

  1. [48]
    Accordingly, the Tribunal orders that the decision of the Director-General, Department of Justice and Attorney-General made on 1 June 2015 that this is an “exceptional case” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that this is not an exceptional case.

Non-publication order

  1. [49]
    The QCAT Act provides the Tribunal with the discretionary power to make a non-publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.[30]  
  2. [50]
    The Tribunal asked Mr BGL whether he sought a non-publication order.  He said he was not concerned about identification of himself or anyone associated with him.  The Respondent did not make a submission, but referred to the presumption of publication implicit in s 66.  The Tribunal has the discretion to use its initiative and make a non-publication order.[31]  Having regard to circumstances of this application, the Tribunal is satisfied that a non-publication order is necessary to avoid the identification of Mr BGL’s child.  These reasons will be published in a de-identified form.
  3. [51]
    Accordingly, the Tribunal prohibits the publication of the names of Mr BGL and his wife, Ms MHN. 

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 19

[2]Ibid, s 20.

[3]Working with Children (Risk Management and Screening) Act 2000(Qld) (‘WWC Act’), s 169.

[4]Ibid, s 354(1).

[5]Ibid, s 5.

[6]Ibid, s 358: a child related employment decision includes a Chapter 8 reviewable decision.

[7]Ibid, s 360 and s 6.

[8]McKee v McKee [1951] AC 352, 365, cited by McPherson J in Commissioner for Children and Young People and Child Guardian v Maher & anor [2004] QCA 492.

[9]Ibid, s 221.

[10]WWC Act, s 225.

[11]Ibid, s 221(1)(b)(iii) and s 221(2).

[12]WWC Act, Schedule 2.

[13][2004] HCA 45.

[14][2000] QB 198 at 208.

[15]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Kent v Wilson [2000] VSC 98; Re: Imperial Chemical Industries Ltd’s patent extension petitions [1983] VR1.

[16]Commissioner for Children and Young People v Ram [2014] QCATA 27.

[17]In the marriage of Sandrk (1991) 104 FLR 394, at 399-400.

[18]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[19]AX v Commissioner for Children and Young People and Child Guardian (No2) [2012] QCATA 248.

[20]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42].

[21]WWC Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 351, at [27].

[22]RPG v Public Safety Business Agency [2016] QCAT 331.

[23]Exhibit 2, Mr BGL’s personal story.

[24]Exhibit 4, PSBA – 046.

[25]Exhibit 1, QCAT Application.

[26][2004] QCA 492.

[27]Exhibit 7.

[28]WWC Act, s 226(2)

[29]Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [46]

[30]QCAT Act, s 66.

[31]Ibid, s 66(3).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 196

  • Court:

    QCAT

  • Judge(s):

    Member Ryan

  • Date:

    08 May 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248
2 citations
Jump To
Cite 1 - [2012] QCATA 248
Cite 2 - [2012] QCATA 248
Baker v The Queen [2004] HCA 45
2 citations
Jump To
Cite 1 - [2004] HCA 45
Cite 2 - [2004] HCA 45
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
6 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Cite 5 - [2004] QCA 492
Cite 6 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
3 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
Cite 3 - [2014] QCATA 27
In the Marriage of Sandrk (1991) 104 FLR 394
2 citations
Jump To
Cite 1 - (1991) 104 FLR 394
Cite 2 - (1991) 104 FLR 394
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
McKee -v- McKee (1951) AC 352
2 citations
Jump To
Cite 1 - (1951) AC 352
Cite 2 - (1951) AC 352
R v Kelly (Edward) (2000) QB 198
2 citations
Jump To
Cite 1 - (2000) QB 198
Cite 2 - (2000) QB 198
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
2 citations
Jump To
Cite 1 - [1983] 1 VR 1
Cite 2 - [1983] 1 VR 1
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331
RPG v Public Safety Business Agency [2016] QCAT 351
1 citation
Jump To
Cite 1 - [2016] QCAT 351

Cases Citing

Case NameFull CitationFrequency
AA v Director-General, Department of Justice and Attorney-General [2018] QCAT 3412 citations
1

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