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- Unreported Judgment
Glenn Kingsley Mortimer v Director General, Department of Justice and Attorney General QCAT 120
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mortimer v Director General, Department of Justice and Attorney General  QCAT 120
GLENN KINGSLEY MORTIMER
DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
12 April 2019
18 February 2019
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – review of a decision to issue a negative notice – positive notice required for employment – sexual deviant behaviours entries on criminal history – whether exceptional circumstances exist – whether risk to children sufficiently negated – whether it is in the best interests of children to issue a positive notice
EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – identity of applicant – de-identification order is not automatically made because a party desires it – whether the order is necessary to avoid endangering the applicant’s mental health – evidence to support risk of endangering applicant’s mental health
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1), s 66(2)(b) and s 66(3)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 220, s 221, s 226, s 353, s 354, s 360 and Schedule 2
Chief Executive Officer, Department of Child Protection v Scott [No 2]  WASCA 171
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions  1 VR 1
APPEARANCES & REPRESENTATION:
Ms R Pe-Kani
REASONS FOR DECISION
- The applicant spent much of his life in Victoria before moving to the Far North Queensland area about 8 years ago. Notwithstanding his recorded criminal history in Victoria that contains entries of inappropriate sexualised behaviours in public, the applicant held a positive notice and a blue card from September 2014 to September 2017. It was not until the applicant attempted to renew his blue card in October 2017 that the respondent became aware of a change in his criminal history. Because of that change, a negative notice was issued, and as a consequence the applicant can no longer work for his employer as a music tutor.
- The applicant’s contention is that he has over 30 years experience in tutoring children as a private music teacher. Over that time, parents have sought him out to mentor their children. During that time, there has been no concern arising out of his music lessons with children. Ultimately, the applicant asked the tribunal to set aside the decision to issue him with a negative notice.
The tribunal’s role
- Because the respondent has issued the applicant a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (“the Working with Children Act”), the applicant can apply to the tribunal for a review of the respondent’s decision. If a review is to be undertaken by the tribunal, it must be carried out by applying the principle that the welfare and best interests of children is paramount.
- Because it is the tribunal undertaking the review, the tribunal effectively ‘stands in the shoes’ of the original decision maker and the review must be undertaken by way of a fresh hearing on the merits of the application. The purpose to be achieved is to produce the correct and preferable decision and the tribunal’s decision must be based on the material before the tribunal at the time of the review hearing.
- In reaching the correct and preferable decision, a discretion is available to the tribunal to either –
- (a)confirm or amend the respondent’s original decision; or
- (b)set aside the respondent’s original decision and substitute its own decision; or
- (c)set aside the respondent’s decision and return the matter for consideration to the original decision maker with directions the tribunal considers appropriate.
The legislative pathway – exceptional case
- The promotion and protection of the rights, interests and wellbeing of children in Queensland is provided for in the objects of the Working with Children Act. Every child is entitled to be cared for in a way that protects them from harm and the Working with Children Act provides the principle that the welfare and best interests of children is paramount.
- The important feature of the Working with Children Act is the protection of children from harm within places of employment, and the installation of protective measures to ensure that protection. Having said that, in undertaking those protective measures it is not the intention of the Working with Children Act to place additional punishment on someone who has acquired a police or disciplinary record and therefore punish them twice. The focus is on the protection of children.
- Prior to arriving at a decision as to whether or not an exceptional case exists, the respondent is obliged to consider several things when assessing whether it is appropriate to issue an applicant with a negative or a positive notice. Those considerations can include whether an applicant has been the subject of an investigation or has been prosecuted since the last time they were issued with a positive notice and a blue card.
- In doing all that, the respondent has the responsibility to consider all the evidence, information and facts which may suggest that it is not in the best interests of children for the issuing of a positive notice. If the respondent decides that a case is exceptional because of an applicant’s criminal history, or because of an event that occurred involving that person, then justification may exist if the refusal to issue a positive notice and blue card was made in the best interests of children.
- As mentioned above, it is the responsibility of the respondent to decide an application by issuing either a positive or negative notice and if satisfied that it is an ‘exceptional case’ in which it is not in the best interests of children, then the respondent must issue a negative notice.
- The term exceptional case is not defined within the Working with Children Act. An exceptional case is a question of fact and degree and this concept has been discussed widely in the tribunal’s jurisdiction, as well as the various other jurisdictions such as the state courts of Queensland, and other state courts of the Commonwealth. I do not intend to regurgitate the deliberations surrounding the term exceptional case save to repeat that a general rule cannot be applied with regard to what an exceptional case is. These are matters of discretion and each case should be determined on its own set of facts.
The applicant’s personal circumstances
- As a young child, the applicant grew up in a violent household punctuated by physical abuse by his father. At a very young age he sought solace in music to cope with that abuse. His first experiment with alcohol occurred at the age of six and because of the intimacy deficits he had with his parents he developed an attachment to his babysitter, who ultimately betrayed his trust. She sexually abused him for a period of two years. That abuse has impacted upon his life, making him emotionally isolated and awkward with difficulties in relating to his peers.
- As an adolescent, the applicant was mostly maladjusted and began using alcohol and drugs to excess. By the age of sixteen, he had developed into an excellent musician and gained professional work as an entertainer. He said that this allowed his maladapted behaviour to go unchecked.
- By the age of twenty, he was abusing alcohol and cannabis on a daily basis and formed an addiction to those substances. This eventually led to him experimenting with, and developing a serious drug addiction. Over time he tried every mind-altering substance available. His drug use increased immediately following the death of his mother in September 2000. Being hopelessly addicted to drugs and feeling isolated and dejected as well as suicidal, he sought solace from the Salvation Army. He entered into a detox recovery program and was introduced to Narcotics Anonymous. Since 2001, his life has been devoid of any illicit drugs.
The applicant’s criminal history
- The applicant has a recorded criminal history in Victoria and Queensland which spans over a period of 18 years between 1996 and 2014. His Victorian criminal history includes wilful and obscene exposure in public (five charges) and possession of cannabis. It seems that the applicant was charged with other similar offences, such as behaving in an offensive manner in a public place (six charges) and wilful and obscene exposure in public, however these latter offences were either withdrawn or there is no record of them being proceeded with.
- An example of the applicant’s behaviour which led to his convictions in Victoria was an incident in 1996 when a member of the public was walking along a public street and saw the applicant sitting in the driver’s seat of his vehicle. He was masturbating in full view of that member of the public.
- In Queensland the applicant has a recorded criminal history for wilful damage and committing a public nuisance. The public nuisance offence took place just before midnight on 3 December 2014. The circumstances of that offence particularly raises a significant concern. On that occasion, a woman who was not known to the applicant walked along a suburban street. Her path took her past applicant’s house.
- She heard someone approaching her from behind and turned to find the applicant beside her. He then asked her why she was walking alone, to which she told him to leave her alone. He then asked her if she wanted him to take his clothes off and watch him masturbate. Understandably the woman became fearful of the applicant and tried to walk away from him. He followed her into the middle of the street.
- Fortunately for the woman, at that same time a passing police vehicle stopped and spoke to them. The observations of the police officers were that the woman was in a distressed state, she was shaking and frightened. She disclosed to the police what had occurred and when the officers questioned the applicant; he said that his friends had dared him to approach the woman.
- The police then took him back to his house, however they discovered that the applicant had given an incorrect version. There was no other person at his house. Upon further questioning by the police, the applicant’s version changed several times as to his motive for approaching the woman.
- Subsequently, the applicant was arrested and charged with the offence of committing a public nuisance. He later appeared in the Cairns Magistrates Court and was fined $450. No conviction was recorded.
- The applicant explained at the hearing that he had been at home and his wife was asleep upstairs. He saw the unknown woman walk past his house and he had the sexual urge to approach her to ask her consent to masturbate in front of her. Other than that, he could not explain his mindset at the time of his inexplicable behaviour. He acknowledged that she was a complete stranger to him and that he had lied to the police when they confronted him that night.
- Bizarrely he conceded that he thought that there had been a change in the way that he went about satisfying his sexual urges. He justified this by saying that he thought that he was doing the right thing by seeking consent from this complete stranger who he had approached late at night in a public street.
- If she had consented, his intention was to undress in the public street and then masturbate in front of her. Of concern is the apparent lack of empathy displayed by the applicant towards the woman when he spoke to the tribunal about that incident.
- In looking objectively at the applicant’s criminal history and applying it to this blue card matter, a cautious approach should be adopted. Notwithstanding that he does not have any entries on his criminal history that are either disqualifying or serious offences, the accepted facts and circumstances of his offending over a lengthy period of time raises a concern.
The applicant’s psychological evaluation
- The applicant relied upon a report provided by Mr Ian Ritchie. He approached Mr Ritchie with a view of seeking ongoing psychological treatment and counselling. His counselling commenced on 18 October 2016 and he attended 38 treatment sessions, the last being on 14 August 2018.
- In his report, Mr Ritchie said that the applicant presented with a history of child sexual abuse that commenced from when he was aged eight. This was perpetrated by 21 year old woman who was his babysitter. His developed deviant sexual behaviours including viewing pornographic material and promiscuity was a direct result of the abuse he experienced. By way of explanation as to how the abuse has impacted upon him, the applicant told the tribunal of the occasions when he had telephone conversations with ‘help lines’ telephone operators who were female. During some of those telephone calls, he began ‘sexualising’ those conversations and masturbated.
- In undertaking a full psychological assessment of the applicant, Mr Ritchie determined that the psychosexual history of the applicant included not only the disclosed sexual abuse as a young child; but also an early premature sexualised behaviours, trespassing upon property as a ‘peeping tom’, and displays of public nudity (referred to as “flashing”) which was accompanied by masturbation.
- It was Mr Ritchie’s opinion that the applicant’s sexualised deviant behaviour began in the presence of illicit drugs and alcohol abuse and the ‘rock band’ lifestyle he lived as a young man. It seems that his deviant behaviour persisted while he maintained that lifestyle. Mr Ritchie noted that there was a change in that lifestyle after the applicant married his wife and moved to Cairns. He abstained from alcohol and illicit drug abuse and he began to address the deviant sexual behaviours.
- Mr Ritchie was of the view that the prognosis for the applicant was positive, however that is dependent on his ongoing commitment to maintaining relapse prevention, developing psychologically and building an intimate relationship with his wife to assist in addressing those intimacy deficits.
- Mr Ritchie opined that along with the applicant’s abstention from alcohol and illicit drug abuse, his marriage and relocation to Cairns, and his decision to seek help for his sex addiction, has assisted him in addressing his deviant sexual behaviours.
- However, it was Mr Ritchie’s comments in his report when he spoke of his assessment of the applicant that is concerning. Mr Ritchie said that the efforts described were not sufficient in addressing the applicant’s psychological intimacy deficits that underpinned his deviant sexual activities. The only conclusion to be drawn from those comments is that despite all the positive features just mentioned, there still remains a risk that the applicant could lapse back into his sexual deviant behaviour.
The applicant’s support
- Geoffrey Weingarth appeared as a character witness for the applicant. He told the tribunal that he had known the applicant for over five years and they enjoyed a close relationship. He acted as a mentor for the applicant. In his assessment, the applicant was a very open and honest person. He acknowledged that the applicant had disclosed his criminal past and had expressed an acceptance of the harmful effects that his actions had on others, as well as himself.
- In my assessment of this witness, his evidence was not overly impressive. He was as times vague about specific details and he seemed reluctant to fully disclose information to the tribunal about what the applicant had told him concerning his criminal history.
- The applicant further relied upon handwritten references provided to the tribunal by Jodie Griffiths, Douglas Halthouse, Stewart Moncrieff, James Crisostomo and Mos Thys. They each gave a glowing reference for the applicant and spoke of his good work ethic. They said that there had never been a concern raised about the applicant’s interaction or behaviour with children.
- However, neither of those references indicate that they have knowledge of the applicant’s past criminal behaviour, and nor do they suggest that they have knowledge of his past sexual deviant activities. Having regard to that feature of their references, I am not inclined to place any weight upon those documents.
The respondent’s position
- The respondent argued that although the change in the applicant’s criminal history did not involve the recording of a conviction for a serious or disqualifying offence, the paramount principal relating to the welfare and best interests of children should apply.
- The respondent also argued that the applicant’s case is an exceptional case in that it would not be in the best interests of children for a positive notice to be issued to him. Any argument mounted by the applicant that he will experience hardship because he can no longer work as a music tutor is not a factor in which the tribunal should place any great weight.
- The respondent identified the main points as being whether the applicant has insight into his behaviour, and the identification of the triggers for his offending behaviour. The respondent also suggested that importantly, the skills and strategies applied by the applicant to address those triggers is a consideration for the tribunal, along with what other particular factors does the applicant possess which offends the paramount principle relating to the welfare and best interests of children.
- The respondent also suggested that the evidence shows that the applicant continues to lack any understanding of what is socially appropriate behaviour and how to read social cues. Although he is still developing an understanding of the nature of consent and how this behaviour impacts upon others, his most recent behaviour suggests that as a holder of a blue card, he should have been able to demonstrate appropriate behaviours including exhibiting self restraint, along with empathy and sympathy with others.
- By way of conclusion, the respondent highlighted the important factor that a blue card cannot be issued with conditions and is fully transferable from one occupation to another.
- The intent of the Working with Children Act legislation is not to punish people twice, but the legislation provides for an important factor in that every child is entitled to be protected from harm and the welfare and best interests of children is paramount.
- I acknowledge and accept that none of the entries on the applicant’s criminal history are serious or disqualifying offences. However, my concern not only relates to what I can point to as a number of concerning entries on that history, but also to a seemingly uninvited and unprovoked approach by him towards a woman walking alone late at night past his house. If approaching her was not concerning enough, then certainly seeking her permission to undress and masturbate is not a decision made with any sensible rationale.
- To address his own behaviour, it is to the credit of the applicant that he was proactive enough to seek some psychological counselling. Notwithstanding that, I note that the latest entry onto his criminal history occurred on 3 December 2014, and it was not until 18 October 2016 that he attended his first counselling session with Mr Ritchie.
- In between those dates was the issuing of the negative notice by the respondent on 23 March 2018. The only sensible hypothesis that I can draw is that the applicant’s attendance at the counselling sessions was not a priority to him after his arrest on 3 December 2014.
- I concur with the respondent’s position that notwithstanding the counselling that he received, the applicant continues to lack an understanding of what socially appropriate behaviour is. There is a particular level of responsibility attached to the issuing of a positive notice and a blue card, and a holder of a blue card is expected to demonstrate appropriate behaviours and exhibit self-restraint, which is something that the applicant is devoid of.
- The question that arises in regard to the applicant is not whether he should be issued with a positive notice and blue card which would allow him to return to his former employment, but rather whether the tribunal can reach a conclusion that the interests of children will not be harmed if he obtains a positive notice and blue card.
- The evidence provided strongly suggests that the respondent was correct in being satisfied that the applicant’s circumstances were such that it would not be in the best interests of children for a positive notice and blue card to be issued to the applicant.
- I support the position reached by the respondent and I am satisfied that the only correct and preferable decision that can be reached is to confirm the respondent’s decision to issue a negative notice to the applicant.
- The making of a non-publication order is at the discretion of the tribunal and it can either be made on an application by a party or on the tribunal’s own initiative. For the tribunal to make an order to protect the identity of the applicant, this can only be undertaken if the tribunal considers the order is necessary –
- (a)to avoid interfering with the proper administration of justice; or
- (b)to avoid endangering the physical or mental health or safety of the applicant; or
- (c)to avoid offending public decency or morality; or
- (d)to avoid the publication of confidential information or information which would be contrary to the public interest; or
- (e)for any other reason the tribunal considers is in the interests of justice.
- The making of a de-identifying order is not automatic and for the tribunal to entertain any proposal to apply one or more of those requirements to de-identify a party, consideration should be given to any available evidence which supports the requirement or requirements relied upon. A proper analysis should be undertaken and the order should not be made simply because a party desires it to be made.
- The applicant seeks a non-publication order and has premised his application to de-identify himself to avoid endangering his mental health. Notwithstanding a psychological assessment report was compiled by his treating psychologist, there is no suggestion or comment in that report that supports the applicant’s proposition that his mental health will suffer or be impacted by him being identified as a party to these proceedings. Nor has there been any other evidence provide to support this application.
- I also note that the applicant did not raise this issue during the hearing. It appears that in making his application, he is more concerned about the protection of his own dignity and privacy rather than his mental health. I am of the view that there is no proper basis to conclude that it is necessary to de-identify the applicant and his application is refused.
- The Tribunal orders that: –
- The decision by the Director General, Department of Justice and Attorney General dated 23 March 2018 to issue the applicant with a negative notice is confirmed.
- The application for a non-publication order is refused.
 Working with Children (Risk Management and Screening) Act 2000, ss 353 and 354.
 Working with Children (Risk Management and Screening) Act 2000, s 360.
 Queensland Civil and Administrative Tribunal Act 2009, s 20(2).
 Queensland Civil and Administrative Tribunal Act 2009, s 20(1).
 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
 Queensland Civil and Administrative Tribunal Act 2009, s 24(1).
 Working with Children (Risk Management and Screening) Act 2000, s 5.
 Working with Children (Risk Management and Screening) Act 2000, s 6.
 Commissioner for Children and Young People Bill, second reading speech, Queensland Parliament Hansard, 14 November 2000 at p. 4391.
 Working with Children (Risk Management and Screening) Act 2000, s 221.
 Working with Children (Risk Management and Screening) Act 2000, s 220.
 Children and Young People and Child Guardian v Maher & Anor  QCA 492 at  endorsing the observation made by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions  1 VR 1.
 The illicit drugs described by the applicant were methamphetamine, cocaine, heroin, rohypnol, cannabis, hashish, tetrahydrocanninbol (THC) oil, LSD and magic mushrooms.
 A forensic psychologist employed by Ritchie & Associates, Cairns.
 Psychological report of Mr Ian Ritchie, Forensic at paragraph 9.
 Respondent’s submissions dated 18/03/2019 at paragraph 48.
 Chief Executive Officer, Department of Child Protection v Scott [No 2]  WASCA 171.
 Queensland Civil and Administrative Tribunal Act 2009, s 66(2).
 Queensland Civil and Administrative Tribunal Act 2009, s 66(3).
 Applicant’s written submissions where he relies upon the Queensland Civil and Administrative Tribunal Act 2009, s 66(2)(b).
- Published Case Name:
Glenn Kingsley Mortimer v Director General, Department of Justice and Attorney General
- Shortened Case Name:
Glenn Kingsley Mortimer v Director General, Department of Justice and Attorney General
 QCAT 120
12 Apr 2019