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NL v Director-General, Department of Justice and Attorney-General[2018] QCAT 384

NL v Director-General, Department of Justice and Attorney-General[2018] QCAT 384

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NL v Director-General, Department of Justice and Attorney-General [2018] QCAT 384

PARTIES:

NL

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML043-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

22 November 2018

HEARING DATE:

11 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 15 January 2018 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 confirmed.
  2. Publication, other than to the parties to this proceeding, of the Applicant’s name and the name of the alleged victim of the 2013 stalking charges (who was a child at the time of alleged offending), is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Throughout the proceedings the person named as the alleged victim named in order two (2) will be referred to alleged victim.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice – criminal history – charges of unlawful stalking – assault of a police officer – possession of a knife in a public place or a school – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 162, s 167, s 169, s 221, s 222, s 223, s 225, s 226, s 260, s 353, s 354, s 358, s 360

Commission for Children and Young People Bill 2000, Explanatory Notes, [10]

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 & Anor [2004] QCA 492

Commissioner for Children and Young People and Child

Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293

Re FAA [2006] QCST 15

Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25

Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

I McCowie

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (the Department) this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    NL is a 42 year old man. He was issued with a blue card on four occasions between March 2005 and May 2011. Subsequent to the issue of his blue card in May 2011, the applicant’s police information changed and a reassessment was required of his continued eligibility to hold a blue card. Before this assessment was finalised, he cancelled his blue card.
  3. [3]
    NL subsequently applied to be issued with a further positive notice and blue card. He stated that he required a blue card for his job as a volunteer.
  4. [4]
    NL’s criminal history is as follows:
    1. (a)
      Unlawful stalking (between 1 February 2013 and 1 December 2013) - no evidence was offered and a restraining order was issued.
    2. (b)
      For unlawful stalking charge, 9 June 2014 - a nolle prosequi was entered
    3. (c)
      Breach of bail, 9 June 2015 - no evidence offered.
    4. (d)
      On 2 September 2015, NL entered guilty plea to the charges of assault or obstruct police officer (2 charges on 8 June 2014) and to one charge of possession of a knife in a public place or school (on 9 June 2014). On these charges NL was found guilty. No conviction was recorded and he was placed on a three month period of good behaviour and a recognisance of $300.
  5. [5]
    On 20 December 2016, the Department sent a letter to NL inviting him to make submissions about his police information and why he was eligible for a blue card.
  6. [6]
    On 15 January 2018, the Department advised NL of its decision to issue a negative notice.
  7. [7]
    Where a person has been charged with an offence other than a serious offence, the chief executive must issue a positive notice 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 positive notice to be issued.[1]
  8. [8]
    In this case, the chief executive was satisfied the case was exceptional within the meaning of the WWC Act.[2]
  9. [9]
    A person who is not a disqualified person is entitled to apply for a review of a ‘chapter 8 reviewable decision’ within 28 days.[3] This includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.[4]
  10. [10]
    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.[5]
  11. [11]
    The purpose of the review is to produce the correct and preferable decision. In meeting that purpose, the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[6]
  12. [12]
    NL is not a disqualified person and applied for review within the prescribed period.

The ‘blue card’ legislative framework

[13] The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[7] It is protective legislation and has been described as ‘precautionary’ in its approach. A child related employment decision[8] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[9] The overriding concern is the potential for future harm to children. The WWC Act provides that  a blue card must 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.[10]

[14] The relevant test is set out in ss 221(1)(b)(i), (iii) and s 221(2). Section 221 provides, relevantly:

  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

(c) the chief executive is aware of a conviction of the person for an offence other than a serious offence.

  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.

[15] The term ‘exceptional case’ as used in s 221(2) is an undefined term in the WWC Act. Accordingly, what might be an exceptional case becomes a question of fact and degree, to be decided in each case on its own facts by having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.11

  1. [13]
    Section 226 of the WWC Act does, however, require that certain matters be taken into consideration when deciding whether or not there is an exceptional case:

226 Deciding exceptional case if conviction or charge

  1. (1)
    This section applies if the chief executive—
  1. (a)
    is deciding whether or not there is an exceptional case for the person; and
  1. (b)
    is aware that the person has been convicted of, or charged with, an offence.
  1. (2)
    The chief executive must have regard to the following—
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (v)
    in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. (b)
    any information about the person given to the chief executive under section 318 or 319;
  1. (c)
    any report about the person’s mental health given to the chief executive under section 335;
  1. (d)
    any information about the person given to the chief executive under section 337 or 338;
  1. (e)
    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.
  1. [14]
    In January 2018, the Director-General determined that NL’s application for a blue card was an exceptional case, such that NL was issued with a negative notice. Now before QCAT, the purpose of the review is for the Tribunal to produce the correct and preferable decision after a fresh hearing on the merits.[11] In doing so, the objects of the WWC Act must be upheld. That fact is reaffirmed by s 360 of the WWC Act, which provides that a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
  2. [15]
    It becomes necessary to consider the circumstances and context of NL’s alleged offending behaviour, and to consider the matters set out in s 226 of the WWC Act in the light of that behaviour. Section 226 is not exhaustive. In Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, Philippides J (as she then was) said that it ‘does not expressly or impliedly confine the [Tribunal] to considering only the matters specified therein’.[12] Rather, the matters set out in s 226 are ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application’.[13]
  3. [16]
    NL’s criminal history contains a number of charges and convictions, namely two convictions for assault or obstruct a police officer, a conviction for possession of a knife in a public place or a school, two charges for unlawful stalking, and one charge for breach of bail conditions. The circumstances that are relevant are as follows.
  4. [17]
    NL was charged with two unlawful stalking charges, the first relating to February – December 2013. The alleged victim of this stalking behaviour was a 17 year old female. Police and prosecution details outlined that the 17 year old female (a child by statutory definition) complained to the police of NL stalking her by coming into her workplace, waiting and loitering at her workplace, persisting in attending her workplace when NL was told not to, leaving lollies with hearts on them and on one occasion a pizza which NL is alleged to have crushed medication over, creating fake social media and email accounts for the complainant and submitting complaints in her name, and grabbing her by her arm when he saw her at a shop in September 2013, and stating inappropriate things of a sexual nature to her.
  5. [18]
    It is acknowledged that these charges were dismissed on 12 June 2014 on a no evidence to offer basis. The outcome of the Court proceedings on that date was that a restraining order preventing NL from coming within 100m of the complainant was made by consent. Material before the Tribunal indicated that police prosecutors withdrew the charge against NL on the basis that the restraining order was a suitable outcome and that continuing a prosecution when such a suitable outcome was available did not meet the public interest test.[14]
  6. [19]
    NL was also charged with stalking the same complainant and breaching his bail conditions relating to an incident on 9 June 2014, relating to NL approaching the complainant on a bus. There was a nolle prosequi entered for this charge on 9 August 2015 with the Director of Public Prosecutions concluding that on the evidence available there was little prospect of a conviction. Given the circumstances of this, and the outcome there was very little weight placed on this charge by the Tribunal.
  7. [20]
    NL also has convictions, on his own plea of guilty, for two counts of assault or obstruct police officer, and possession of a knife in a public place or a school, which arose from the same incident on 9 June 2014. The circumstances of this were that when police attempted to remove NL from the scene where the alleged victim was, the applicant obstructed the police and reacted violently when they attempted to arrest him for a stalking incident. The Tribunal acknowledges that it was NL’s perspective that he was in fact the victim of the assault, not the other way around. Notwithstanding this, the Tribunal notes that NL was represented in the Magistrates Court when he entered the plea by counsel and by a solicitor.
  8. [21]
    The Tribunal cannot go beyond the convictions and must accept them as they are. The definition of conviction for the purposes of the WWC Act can be found in Schedule 7, and it includes that ‘conviction means 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’ (original emphasis). In these circumstances, the Tribunal cannot go behind the convictions and must accept them as they are.
  9. [22]
    NL told the Tribunal that he did not really want to plead guilty and he was ‘tricked into doing so by [his] Counsel’. He attempted to argue that the implement that he was convicted of carrying was not really a knife, but rather a ‘waiter’s friend’ which was some type of bottle opener with a blade attached to it. As has previously been mentioned, the Tribunal is not in a position to go beyond the convictions and must accept them as they are.[15]

The applicant’s case

  1. [23]
    NL gave evidence in person, and provided two witnesses for the Tribunal – BL, and ES. Despite BL being a psychologist who said that she treated NL, she made it extremely clear to the Tribunal that she was before the Tribunal in the capacity of a character witness only, that her statement that was filed before the Tribunal was most definitely not a medical report and that the statement would have been written in a completely different manner had it been so, and that she wished to give evidence as a character witness only. ES was the director of an organisation, where BL conducted some of her practice and where NL was a regular participant in activities.
  2. [24]
    While both of the character witnesses spoke in glowing terms of the progress NL had made individually with regard to his own personal development as an adult male with autism, they were unable to assist the Tribunal in addressing the relevant issue i.e. NL’s suitability to receive a positive notice and  in the normal course of things a blue card.
  3. [25]
    The Tribunal must hear and decide the review by way of a fresh hearing of the merits of the application.[16] The purpose of the review hearing is to produce the correct and preferable decision.[17] The Tribunal must consider the same legislation as the original decision-maker. The paramount consideration in employment (including volunteer positions) screening decisions is a child’s entitlement to be cared for in a manner that protects the child from harm and promotes the child’s wellbeing.[18] Any child related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount.[19]
  4. [26]
    Both BL and ES concentrated on giving a background relating to NL’s circumstances, namely that he was a 42 year old man who had an autism spectrum disorder level one Asperger’s and epilepsy, and that he had undergone treatment for anxiety and post-traumatic stress disorder with BL. It must be emphasised that BL was not giving medical evidence and there was no medical or health report before the Tribunal, only what she referred to as her character reference. The focus of her evidence were the advancement in NL’s own personal development. She suggested that NL had been encouraged by her to apply for a blue card for his own sense of self-worth, and to mark a milestone in his ongoing treatment.
  5. [27]
    Of concern to the Tribunal was BL’s disparaging attitude and comments towards the alleged victim of the charges for stalking. Throughout her evidence, she sought to downplay the circumstances of those events, including the assaults that had taken place with the police as victims, painting a portrait of NL as being the victim in all of these circumstances. It is noted that all of these events occurred prior to BL having any dealings with NL, and it appears that she has accepted unquestioningly the version of events that she has been told by NL. She appeared to not appreciate that the age of the alleged victim rendered her a child at the time of the alleged offences, BL appeared to only focus on what she saw as NL’s ‘entitlement’ to a positive notice or blue card as some type of ‘reward’ for his progress in his own personal development.
  6. [28]
    When asked under cross-examination by the Director-General’s legal representative what she thought NL’s response would be if he found himself in a situation where he was caring for children and the police were required to be called, BL said she certainly thought he would never call the police in those circumstances and that if he were to have any problems in relation with how to interact with others or ‘read their faces’ that he would take action to contact her and/or, as a second measure, to contact ES. It was indicated that this may be temporally inappropriate, however BL seemed adamant that given what she perceived to be police mistreatment of NL during his arrest, and what she has accepted from his version of events as his victimisation by police, that NL now had a fear of police and dealing with them.
  7. [29]
    BL indicated that NL had “come a long way” in his work with her, however she did not feel that he was yet at a stage where he would not require assistance from herself, ES or perhaps from NL’s parents with advice on how to proceed in situations that  he found to be “pressured” or difficult. BL did not appear to acknowledge the incongruent nature of a person reacting in this manner in difficult or emergency circumstances and that person being seized of the important responsibility of caring for children. It is noted that the focus of BL’s information was largely on how NL would feel about himself if not given a blue card, and what she would viewed to be a prejudice towards him due to him having an autism spectrum disorder. The Tribunal notes that prejudice or hardship to any applicant is not relevant in determining whether a case is exceptional. The Tribunal is mindful of the decision in Commissioner for Children and Young People and Child Guardian v Maher & Anor,[20] that the risk and protective factors should be considered when determining a review decision.
  8. [30]
    It is unfortunate that not having a positive notice for a blue card will affect NL’s ability to continue to volunteer and to continue to conduct his charity and volunteering activities within the community. This has undoubtedly been good work for many worthy community organisations, as attested to by the number of certificates of thanks and appreciation that were tendered in a bundle as an exhibit by NL. However, any detriment to NL is not relevant to the decision to be made by the Tribunal. The paramount consideration is the welfare and the best interests of children. In considering the welfare and best interests of children, the Tribunal is required to consider the various risk and protective factors.
  9. [31]
    ES spoke to how she thought a person with a diagnosis of autism spectrum disorder, such as NL, would experience the world. ES, like BL, gave evidence in a straightforward manner and in a very clear role as an advocate for NL, and on a wider level all those suffering from conditions such as autism spectrum disorder. ES, like BL, gave evidence that minimised NL’s criminal offending and the circumstances surrounding the charges, again in circumstances where she had not met the alleged victim, nor had she met NL at the time of the alleged offending and at the time of the offences for which he entered pleas of guilty.
  10. [32]
    ES considered these pleas of guilty and charges to not be consistent with NL’s character, and not consistent with his diagnosis. She sought to minimise any seriousness or relevance of these charges and convictions and focussed on the emotional consequences for NL. Like BL who was the in-house clinical psychologist at the organisation, where ES was a director, she indicated that she saw NL’s being granted a blue card in terms of this being a positive reward for NL, and to allow him to see how far he has come. She viewed it as an entitlement and was able to say very little in relation to NL’s suitability with regard to being left in control and care of any children.
  11. [33]
    ES gave evidence that it was very common for someone with a diagnosis such as NL’s to misinterpret situations, to be unable to read situations and to require a lot of assistance to navigate social circumstances that other people in the community would find fairly routine. She was not as strongly of the view as BL that NL would never call the police if the circumstances required it, however she did believe that NL had been a victim of police mistreatment and that he would be reluctant to engage with police should a situation arise. ES also indicated the NL would be likely in times of difficulty or crisis to seek out advice from his support network, which included BL, herself and perhaps his parents.
  12. [34]
    NL gave evidence to the Tribunal that his parents were very supportive, however he said his father had declined to attend the hearing out of ‘fear’. As there were no statements and no opportunity for cross-examination of NL’s parents, the Tribunal was left in a position of not being able to place any weight on what sort of positive influence or otherwise they may well be, and what kind of protective factors they may provide.
  13. [35]
    NL conducted the hearing on his own behalf, and gave evidence with his assistance dog in the Tribunal hearing room at all times. NL presented to the Tribunal as a sometimes evasive witness who sought to minimise at all costs his own involvement in and responsibility for any of the charges, and in particular, for his convictions. He sought to blame others for the predicament he found himself in, and sought to say that he was being discriminated against due to his diagnosis of autism spectrum disorder Asperger’s level one.
  14. [36]
    It is noted by the Tribunal that this is a lifelong condition for NL and that he has previously successfully held blue cards. His diagnosis was not, it would appear, a factor in the decision of the Director-General, nor was it a factor that that was of particular relevance for the Tribunal. As there was an absence of medical evidence available to the Tribunal NL’s diagnosis could not be assessed on the basis of relevant expert evidence therefore the Tribunal was unable to determine that it was a major factor to take into account when coming to its decision. As NL had previously held blue cards and had presumably been a person with an Autism Spectrum Disorder during these periods, that diagnosis or condition had not disqualified NL from previously receiving a positive notice and a blue card.
  15. [37]
    As stated, the Tribunal held a hearing de novo, and as such it was a hearing on its merits. The Tribunal was of the view that as there was no medical or expert evidence of NL’s diagnosis and therefore it would be inappropriate for the Tribunal to base its findings on this the impact of this diagnosis would be to descend into the realm of speculation. What was considered was whether or not it would be in the best interests of children to grant a positive notice to a person with Nl’s views, attitudes and actions.
  16. [38]
    In his evidence, NL presented as overwhelmingly self-interested and intent on displacing any possible responsibility for his circumstances and his criminal history onto others. He appeared to fail to appreciate that the alleged victim of the stalking charges was a child at the time of the offending. Instead he sought to describe her in the most disparaging terms in relation to her lifestyle choices and her behaviour towards him and alleged criminal behaviour on her part.
  17. [39]
    At the hearing, NL was unable to identify any negative impacts that his behaviours may have had on a person in the circumstances of the alleged victim. He sought to blame his legal advisors with regard to his conviction. He argued that he did not have a knife and that he should not have a conviction, despite his entering a plea of guilty. The Tribunal reminded NL that it was unable to go behind a conviction, and that from the transcript provided in evidence it appeared that he had voluntarily entered his pleas, however NL sought to continue to complain that he had been the victim in the circumstances and not anybody else.
  18. [40]
    With regard to his decision to cancel his blue card application when he was contacted by the Department indicating that his circumstances had changed due to a police notification, NL sought to say that he was bullied into doing this by a person from the blue card section of the Department of Justice and Attorney-General.
  19. [41]
    Exhibit 8 (case notes) indicated that that NL had not, in fact, been pressured in any way but was asked for some more information. His decision to cancel the application for a blue card would appear to the Tribunal to have been his own decision. When presented with this evidence NL appeared to try to suggest that he was confused and that he found these things difficult to answer. NL adduced no medical evidence of any type, particularly evidence that would assist the Tribunal in drawing a conclusion about NL’s levels of confusion in relation to matters such as the telephone call he made to the Department. Ultimately the Tribunal was able to make findings of credibility based on NL’s conduct and evidence at the hearing. It would appear that NL was able to give very clear evidence that  appeared free from confusion when  was engaged in  blaming  others and he appeared to be  similarly clear and  focussed when he sought to give evidence  that he was victimised. This was in contrast to the position that Nl adopted when challenged. It was only then that he sought to say he was “confused”
  20. [42]
    The list of his alleged victimisers included the alleged victim, the police (including a difficult to accept story of police stalking him and pressuring him to drop his application for a restraining order against the alleged victim), his lawyers and unknown people in a call centre connected to blue card services. NL produced no cogent, credible evidence of this alleged victimisation and almost immediately recanted his allegations when subject to the slightest challenge to his version of these events. At these points in the hearing NL complained of “confusion”.
  21. [43]
    NL provided a bundle of references to the Tribunal, including references and certificates (some were very dated and relating back to a time when he was at school) At the time of the hearing NL was a 42 year old man was therefore it had been approximately a quarter of a century since he had attended high school so the Tribunal was unable to accept these documents as a summary of is current positon. With regard to the Statutory Declaration provided by a friend of his referred to as  CB it is noted that as this person was not called to give evidence and  his evidence was not tested under cross-examination so very limited weight could be given to his, or any other statements that were not tested under cross-examination.
  22. [44]
    NL’s evidence to the Tribunal was often in conflict with the information that was provided in relation to the charges, and certainly in relation to his convictions. The Tribunal formed the view that in terms of credit, NL could at times be a very unreliable witness. Whether this appearance of unreliability was due to him directly lying or due to an unrealistic view of his circumstances and a view of himself as being a victim was not something that could be fully teased out by the Tribunal. It was very clear to the Tribunal that NL was unable to appreciate that there may well be any other side to the circumstances that related to his charges. NL seemed to be supported in this somewhat unrealistic view by both BL and ES.
  23. [45]
    A number of protective factors were identified by the Tribunal as a result of the evidence presented. The character reference provided by BL indicated that NL may have developed some insight into his difficulties in understanding other people’s intentions towards him, although it was clear that NL continues to blame the alleged victim for the charges brought against him.
  24. [46]
    NL’s submissions and supporting material indicate there are a number of positive factors that are now in his life post the offending and alleged offending period. One of those is his seeking professional treatment for anxiety and post-traumatic stress disorder from BL, whom he has been seeing for a period of two years and eight months. Again, the Tribunal indicates that there was no medical evidence or health report before it to assist in coming to its decision. It was noted that NL said that he had conducted research himself that would allow him to improve his management of his autism spectrum disorder Asperger’s level one.
  25. [47]
    He was also now engaged with various organisations that supported people with autism, and regularly attended support groups with other sufferers of his condition. He said he felt this had broadened his social interactions and he had engaged in voluntary community work through a number of community organisations and charities. From NL’s evidence it was unclear, however, how recent this engagement had been.
  26. [48]
    NL indicated that his support network pf people who helped him manage his condition were his parents, his assistance dog and a very small friendship group.
  27. [49]
    Some of the risk factors that appeared to be present were that the alleged stalking offences were over a long period of time and the complainant was a 17 year old child and NL was 36 years of age at the time of the alleged offending. Whilst the Tribunal acknowledged the outcomes in relation to those charges, it was of concern to the Tribunal that NL, and both of his witnesses, appeared to not have any understanding of the possible impact that his actions may have had on the alleged victim. Rather, they chose to paint the then 17 year old alleged victim as the instigator of, what was described as, “all of the trouble in NL’s life”.
  28. [50]
    The evidence provided by BL and ES, in particular that of BL, indicated that NL still has difficulty in understanding other people’s intentions and has difficulty with social interactions and regulation of his emotions due to his diagnosis of autism spectrum disorder. Again, it is noted that this evidence was given only in terms of character evidence and was not accepted as expert evidence by the Tribunal, nor did any of the witness nor NL attempt to have it classified as such.
  29. [51]
    While it is commendable that NL has been able to advance his own personal situation by being able to identify what were referred to as the “red flag”’ that might indicate another person had poor intentions towards him, he at no stage was able to indicate that he had developed any of the skills or strategies that would be required to demonstrate a sufficient understanding of the risks associated with caring for children. The Tribunal did not have the benefit of any expert evidence as to NL’s current mental state or his progress along the treatment process.
  30. [52]
    It is clear that NL has made efforts to improve his own circumstances and for that he should be given due credit. However, no evidence before the Tribunal demonstrated that he had a capacity to work unsupervised with children across a range of situations. It is noted that NL and all of his witnesses all indicated that NL would be unlikely to wish to work with children, however a blue card is issued unconditionally and there is no way of limiting the circumstances whereby a person such as NL could work unsupervised with children across a range of circumstances if he were to be issued with a positive notice and again granted a blue card.
  31. [53]
    There appears to be a remaining lack of understanding about the issues of child protection, and also there remains a concern that NL, having minimised completely the circumstances relating to his charges and convictions within the meaning of the WWC Act, has recast himself as completely as the victim of the vindictive action of others. It therefore appeared that he had not developed any new strategies or skills to avoid such circumstances and therefore reoffending occurring.
  32. [54]
    It was NL and his witnesses’ evidence that he is very reliant on others for assistance and support, including daily support from his parents despite him being 42 years of age. It was considered that NL appeared to consider the granting of a blue card as an entitlement or a reward for making advances in his management of his own autism spectrum disorder, and he did not appear to be able to understand that the Tribunal, in balancing the rights of an individual and the rights of children, must consider the rights of children as being paramount.
  33. [55]
    It is clear from the Explanatory Notes to the Bill introducing the WWC Act,[21] that the infringement 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 wellbeing.
  34. [56]
    The Tribunal’s role is to focus on the best interests of children and whether granting NL unsupervised access to work or interact with children in an activity regulated under the WWC Act would be in their best interests.
  35. [57]
    It was the Director-General’s submission that as NL had consistently denied the alleged stalking offending, minimised his actions and blamed the complainant, It was submitted that it was not clear the NL had any real insight into the impact of his alleged offending on behaviour on the alleged victim, and that overall his offending and alleged offending raised concerns about his ability to judge appropriate behaviour, exercise self-control and act in the best interests of others, particularly children.
  36. [58]
    Further it was submitted on behalf of the Director-General that the risk factors identified in the proceedings rendered the case an exceptional one such that it would not be in the best interests of children and young people for NL to be issued with a positive notice.

Application of law and reasons

  1. [59]
    In considering the matters set out in s 226(2) of the WWC Act, it is emphasised by the legislation that the approach of the Tribunal to determining whether an exceptional case exists is discretionary, rather than prescriptive.[22]
  2. [60]
    The Tribunal accepts the convictions within the meaning of the WWC Act that NL, and that these occurred due to his own entry of guilty pleas. It is noted that the offences did not have a conviction recorded, however, as previously discussed they come within the legislative definition of conviction.
  3. [61]
    The Tribunal also notes the surrounding circumstances with regard to the alleged stalking offences and NL and his witnesses’ punitive and derogatory attitude toward the 17 year old alleged victim. The Tribunal takes into account in the entirety of  the transcript of the proceedings in the Magistrates Court where NL entered a pleas of guilty. The Tribunal notes that NL was represented by Counsel in those proceedings and entered a plea of guilty to charges.
  4. [62]
    The Tribunal notes that before the Tribunal, NL gave evidence that was directly inconsistent with what was presented in Court. As the inconsistent evidence goes to facts relied on by the Court, the Tribunal considers that it now cannot find that the facts on which the Court sentenced NL were incorrect. That means that the Tribunal finds itself bound to accept those facts bound to the Court. Further, due to this inconsistent evidence, the Tribunal has serious concerns about NL’s credibility generally.
  5. [63]
    Even if the Tribunal were wrong in that regard and NL’s version of evidence was accepted, the Tribunal would remain troubled by his behaviour and his ongoing response to the circumstances he found himself in when charged with offences that related to stalking of the alleged victim. Of equal concern to the Tribunal is NL and his witnesses’ evidence that he would find it very difficult to contact police in a crisis. The Tribunal was also concerned by the lens through which all witnesses, including NL, appeared to view a positive notice for a blue card as his entitlement and right, and as some kind of reward for his ongoing improvement in his own management of his condition. The Tribunal finds that this evidence and submissions are misconceived and that the information most relevant to the Tribunal is whether or not it would be in the interests of children to allow NL to be granted a positive notice.
  6. [64]
    From the evidence that NL presented, it is clear NL is well regarded by his psychologist and contact person at the organisation at which he seeks counselling and support. The Tribunal accepts that he has an interest in the community and understands that without a blue card he will not be able to continue to volunteer, or to assist others at the organisation that he attends. It is clear that NL is highly regarded by the two witnesses that gave evidence on his behalf in the form of character evidence.
  7. [65]
    On balance, after consideration of all of the evidence the Tribunal is satisfied that this is an exceptional circumstance where it would not be in the best interests of children for the Director-General to issue a positive notice. This finding is an based on a consideration of NL’s circumstances as set out in these reasons, involving both the risk and protective factors,.
  8. [66]
    It is an expectation that those provided with a blue card act in a way that protects children from harm and promotes children’s wellbeing. NL’s judgment is, in the Tribunal’s view, compromised based on his conduct leading to his conviction and the circumstances surrounding his charges. Further, he has failed to demonstrate adequate insight into his lack of judgment and the wrongfulness of his conduct. Despite the evidence that he has advanced in his understanding of when people may not have good intentions in relation to him, NL’s evidence raises concerns about his ability to make appropriate decisions if he were again faced with similar circumstances.
  9. [67]
    The Tribunal did take into account that apart from the period relating to the charges and the convictions, NL has not had any trouble with the law, and that now a number of years have elapsed since those matters were dealt with by the Courts. However, the passage of time is not the only consideration with regard to whether or not being placed in a similar situation, would NL act in a similar way? Due to the lack of medical evidence and the nature of other evidence that was provided to the Tribunal, it would appear that NL’s understanding of other people and his ability to read situations and then decide what would be appropriate behaviour are still the subject of ongoing development.
  10. [68]
    In the Tribunal’s view, the evidence of NL and his witnesses shows a failure on his part to adequately acknowledge the gravity of the charges and his convictions. He instead focussed on himself, and his own passions, desires and needs, whilst denying any criminal conduct and blaming others for the circumstances he found himself in. The Tribunal considers this shows a lack of insight into the gravity of the offending and his own conduct.
  11. [69]
    Given all of the evidence, the nature of the convictions and the circumstances surrounding the alleged stalking charges (whilst the Tribunal does note there is not a conviction recorded for those) the conclusion to be drawn is that NL’s behaviour  is incompatible with the standard of behaviour excpected of  a person working with children. NL lacks insight into the seriousness of his behaviour. There are no identifiable preventative strategies in place to prevent similar circumstances arising, bar the character evidence of BL that discussed how he was now aware of when other people were a danger to him.
  12. [70]
    There appeared to be no evidence in relation to what he may be able to do for others should he consider there was a danger to them, in particular children. There was, however, evidence of what he would not be able to do from BL, including not being able to contact emergency services such as police, should the need arise.
  13. [71]
    The plan given as a strategy for NL should he find himself in a situation where he was not understanding what was happening to him or he felt that he was in some way threatened, or otherwise under pressure, appeared to be that he needed to contact BL, ES or perhaps his parents. As previously discussed, this required a temporal disconnect between the dynamic circumstances of whatever events were occurring at the time and how NL would be able to process and deal with that. This would be an unrealistic and unsafe strategy for someone who was allowed to work or volunteer with children.
  14. [72]
    The wide ranging and unfettered nature of the granting of a blue card has already been discussed and therefore it is not appropriate for the Tribunal to speculate on the circumstances of how NL would cope if he had a blue card but did not have to have control of children. That is an irrelevant consideration.
  15. [73]
    From the evidence it would appear that NL may well put his own needs above those of others, in particular those of children.
  16. [74]
    The Tribunal is of the view that NL’s diagnosis is not in any way the reason for a refusal of a positive notice. All the considerations can only be whether or not this is an exceptional case. That is a matter of fact and degree in the whole circumstances of each particular case.[23] As stated on numerous occasions throughout these reasons, the overriding concern is for the potential of future harm to children. The principle is that the welfare and best interests of children are paramount.[24]
  17. [75]
    NL did not provide a psychological or other health professional report that assessed his triggers, strategies, safety plans with regard to any protection of children, concerns or his insights and strategies to prevent him being placed at future risk of reoffending.
  18. [76]
    Based on the findings of fact I have made, evidence before the Tribunal and weighing all of the relevant matters in the WWC Act, the Tribunal reached the conclusion that this an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. I therefore confirm the decision of the Director-General, Department of Justice and Attorney-General under review.

Non-publication

  1. [77]
    On the date of the hearing, the Tribunal ordered that publication other than to the parties to the proceeding of the applicant’s name, and the name of the alleged victim of the 2013 stalking charges (who was a child at the time of the alleged offending) is prohibited under s 66 of the QCAT Act. An order was made that throughout the proceedings that the person named as the alleged victim in the abovementioned order would be referred to as the alleged victim. An application filed by NL on 9 October 2018 for the non-publication order was dismissed.

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), s 221(2).

[2]Ibid.

[3]QCAT Act, s 33(3).

[4]WWC Act, s 353(a).

[5]QCAT Act, s 19.

[6]QCAT Act, s 20.

[7]WWC Act, s 5.

[8]Child related employment decision is defined to include a chapter 8 reviewable decision.

[9]WWC Act, s 358.

[10]WWC Act, s 221(2).

  1. Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at[31]

[11]QCAT Act, s 20.

[12]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[13]Ibid.

[14]Exhibit 1

[15]Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[16]QCAT Act, s 20(2).

[17]QCAT Act, s 20(1).

[18]WWC Act, s 5.

[19]WWC Act, s 360.

[20][2004] QCA 492.

[21]Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[22]Bachman v Public Safety Business Agency [2016] QCAT 104: ‘The Tribunal is not rehearing the criminal trial and accepts without question Ms Bachman’s conviction. The allegations, findings and outcomes of that proceeding provide the background against which the Tribunal can evaluate the risks and protective factors’.

[23]Re FAA [2006] QCST 15, [22].

[24]WWC Act, s 360.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 384

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    22 Nov 2018

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
Bachman v Public Safety business Agency [2016] QCAT 104
1 citation
Jump To
Cite 1 - [2016] QCAT 104
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
4 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293
2 citations
Jump To
Cite 1 - [2010] QCAT 293
Cite 2 - [2010] QCAT 293
Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
2 citations
Jump To
Cite 1 - [2015] QCAT 25
Cite 2 - [2015] QCAT 25
Re FAA [2006] QCST 15
2 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257
2 citations
Jump To
Cite 1 - [2015] QCAT 257
Cite 2 - [2015] QCAT 257

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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