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RA v Blue Card Services, Department of Justice and Attorney-General[2019] QCAT 267

RA v Blue Card Services, Department of Justice and Attorney-General[2019] QCAT 267

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RA v Blue Card Services, Department of Justice and Attorney-General [2019] QCAT 267

PARTIES:

RA

(applicant)

v

BLUE CARD SERVICES, department of Justice and Attorney-GeneraL

(respondent)

APPLICATION NO/S:

CML271-17

MATTER TYPE:

Childrens matters

DELIVERED ON:

3 September 2019

HEARING DATE:

19 July 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of Blue Card Services, Department of Justice and Attorney-General that RA’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is affirmed.
  2. Publication of the name or identifying information of RA, or any person associated with him and in particular children for whom he has cared or is associated, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – charge of indecent treatment of children under 16 – charge of carnal knowledge of children under 16 (and attempts) – charge of attempted indecent treatment of children under 16 – categorised as serious and disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) -  indictment discontinued – no convictions – 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)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336

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

Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171

Commissioner for Young People v Storrs [2011] QCATA 28

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

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186

Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99

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

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

Re TAA [2006] QCST 11

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

APPEARANCES & REPRESENTATION:

 

Applicant:

In person

Respondent:

R Te Kani, in house government legal officer

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director General (who is the chief executive officer), Blue Card Services, Department of Justice and Attorney-General (‘the Respondent’) that the case of RA (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’).
  2. [2]
    The Applicant is a 30 year old man who trained and served with the Australian Army before he was medically discharged. He has since undertaken nursing studies and is hopeful of ultimately qualifying as a Registered Nurse. The Applicant seeks a blue card to enable him to complete his studies.
  3. [3]
    The Applicant’s criminal history contains a number of charges made in 2010, which relate to events which took place on 25 October 2008 and which will be described in more detail later. All of the charges were in respect of serious and disqualifying offences under schedules 2 and 4 of the WWC Act. The charges did not result in convictions as the Crown entered a nolle prosequi in respect of the charges as the child complainant wished to withdraw her complaint.
  4. [4]
    The Applicant applied to the Respondent for a positive notice and blue card under the WWC Act. The Respondent considered the Applicant’s application pursuant to ss 221 (1) and (2) of the WWC Act on the basis that the Applicant had charges for disqualifying offences that had been dealt with other than by a conviction. The Respondent was satisfied that the Applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to be issued.[1] Accordingly, by letter dated 1 November 2017, the Respondent advised the Applicant of its decision to issue a negative notice.
  5. [5]
    The Applicant has applied to the Tribunal for review of that decision.

Jurisdiction

  1. [1]
    A person who is not a ‘disqualified person’[2] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[3] which includes a decision as to whether or not there is an ‘exceptional case’ for the person if, because of the decision, the Respondent issued a negative notice.[4]
  2. [2]
    The Applicant has satisfied the prerequisites to apply to the Tribunal for the review because the Applicant is not a ‘disqualified person’ and the Applicant applied within the prescribed 28 day time limit.[5]
  3. [3]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to ss 17(1) and 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [4]
    The decision under review is the decision of the Respondent as to whether or not there is an ‘exceptional case’ for the Applicant, because that decision resulted in him being issued with the negative notice.[6]

The law

Law relating to review generally

  1. [5]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[7]
  2. [6]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[8]
  3. [7]
    The purpose of the review is to produce the correct and preferable decision.[9]
  4. [8]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[10]
  5. [9]
    The role of the Respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[11]

Law relating to blue cards specifically

  1. [10]
    The WWC Act effectively provides that where a person has been charged or convicted with an offence other than a serious offence,[12] a positive notice must be issued[13] unless the Respondent 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. In that case, a negative notice must be issued.[14]
  2. [11]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  3. [12]
    Section 221 of the WWC Act provides:
  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
    1. (c)
      the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  2. (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.
  1. [13]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined therein.
  2. [14]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines ‘exceptional’ as of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [15]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  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.
  2. (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;
  2. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. (iii)
    when the offence was committed or is alleged to have been committed;
  4. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  5. (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. [16]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘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’.
  2. [17]
    The Tribunal cannot go beyond convictions and must accept them as they are.[15] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[16]
  3. [18]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[17]
  4. [19]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[18]

... 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.

  1. [20]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[19]
  2. [21]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[20]
  3. [22]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[21]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [23]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott No.2, Buss J observed:[22]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.

  1. [24]
    The Tribunal should consider risk and protective factors when determining a review decision.[23]
  2. [25]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[24]
  3. [26]
    Neither party bears the onus in determining whether an exceptional case exists.[25]
  4. [27]
    The Tribunal must review a decision under the WWC Act under the principle that the welfare and best interests of a child are paramount.[26]

Matters required to be considered by section 226 WWC Act

Whether the offence is a conviction or a charge

  1. [28]
    On 1 February 2010, the Applicant was indicted on:
    1. (a)
      two charges of indecent treatment of children under 16 years; and
    2. (b)
      one charge of carnal knowledge of children under 16 years (and attempts).
  2. [29]
    On 15 March 2010, those charges were replaced by a second indictment for:
    1. (a)
      one charge of indecent treatment of children under 16 years;
    1. (b)
      one charge of carnal knowledge of children under 16 years (and attempts); and
    2. (c)
      one charge of attempted indecent treatment of children under 16 years.
  3. [30]
    The second indictment was discontinued on 15 March 2010 after a conference with the child complainant who indicated that she wished to withdraw her complaint against the Applicant.
  4. [31]
    Accordingly, the charges did not result in any convictions.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [32]
    All of the charges were for a ‘serious offence’ and a ‘disqualifying offence’.[27]

When the offence was committed or is alleged to have been committed

  1. [33]
    The offending in respect of all charges was alleged to have occurred on 25 October 2008.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children

  1. [34]
    At the time of the alleged offending, the Applicant was 19 years of age and serving with the Australian Army, child complainant 1 was 13 years of age and child complainant 2 was 15 years of age (collectively referred to as the ‘child complainants’).
  2. [35]
    It was alleged that the Applicant, accompanied by two other Australian Army personnel (L2 and G), collected the child complainants from a train station and drove them to an army barracks where the Applicant and the other army personnel were stationed. The Applicant showed his military identification in order to gain entry to the army barracks.
  3. [36]
    It was alleged that the child complainants were supplied with alcohol in the Applicant’s presence. Child complainant 1 alleged that she drank the alcohol due to peer pressure. Child complainant 1 and child complainant 2 also alleged that the Applicant supplied them with alcohol. The child complainants were affected by alcohol during the events. Child complainant 1 reported that she felt dizzy, sick and had a massive head-spin.
  4. [37]
    It was alleged that the Applicant engaged in sexual acts and sexual intercourse with child complainant 1. Child complainant 1 alleged that she did not wish to go to the Applicant’s room but she went there as she was drunk. Child complainant 1 alleged that she did not wish to have sexual intercourse with the Applicant. She was a virgin and she wished to lose her virginity to someone other than the Applicant. She said that it hurt when the Applicant had sex with her as it was her first time. Child complainant 1 alleged she asked the Applicant to stop but he continued and they subsequently had sexual intercourse.
  5. [38]
    It was further alleged that the Applicant also engaged in sexual acts and sexual intercourse with child complainant 2 which would have been in view of child complainant 1.
  6. [39]
    In relation to the Applicant’s knowledge of the child complainants’ age, both child complainants said that they told ‘the army boys’ that child complainant 1 was 15 years of age and child complainant 2 said that she was 17 years of age. The conversation took place in L2’s bedroom when child complainant 1, child complainant 2, the Applicant, L2 and G were present. There was music playing in the background but it was not loud. G stated that whilst he initially believed that the child complainants were roughly of the same age, about 17 years old, he was told that child complainant 1 was 15 years of age and child complainant 2 was 17 years of age.
  7. [40]
    It was alleged that after 25 October 2018, child complainant 1 complained to LAJ, a child witness, that she had been raped by the Applicant at the army barracks. Further, child complainant 1 complained to CW, another child witness, that the child complainants had been raped on the weekend and that it had occurred at the army barracks.
  8. [41]
    Complainant 2 has apparently not made a complaint to police in regard to the Applicant although she was a witness in relation to child complainant 1’s complaint.
  9. [42]
    In relation to the charge of indecent treatment of children under 16 years, it is an indictable offence to unlawfully and indecently deal with a child under the age of 16 years, to unlawfully permit yourself to be indecently dealt with by a child under the age of 16 years or to wilfully and unlawfully expose a child under the age of 16 years to an indecent act by the offender or any other person.[28]
  10. [43]
    In relation to the charge of carnal knowledge with or of children under 16 years, it is an indictable offence to have carnal knowledge with or of a child under the age of 16 years.[29]
  11. [44]
    The age of consent to engage in sexual intercourse in Queensland is 16 years of age.[30] For that reason, consent is not an element to be proven in relation to a charge of indecent treatment of children under 16 years or a charge of carnal knowledge with or of children under 16 years.
  12. [45]
    It is a defence to both offences if it is proved that the accused person believed, on reasonable grounds, that the child was, or was above, the age of 16 years.[31] The usual onus of proof is reversed in relation to these offences.
  13. [46]
    The Applicant:
    1. (a)
      Admitted that he drove the child complainants to the army barracks;
    1. (b)
      Admitted that the child complainants consumed alcohol in his presence but he denied that he personally supplied the child complainants with alcohol;
    2. (c)
      Admitted that he engaged in sexual acts and sexual intercourse with child complainant 1; and
    3. (d)
      Admitted that he engaged in sexual acts and sexual intercourse with child complainant 2 which would have been in view of child complainant 1.
  14. [47]
    The Applicant stated to police that he believed that the child complainants were both 17 years of age because he had been told so by L2. If the charges had progressed, it would have been for the Applicant to raise and establish a defence on that basis, on the balance of probabilities.
  15. [48]
    The allegations against the Applicant are directly child related. The Applicant is alleged to have engaged in various sexual acts with a 13 year old child (child complainant 1) which included non-consensual sexual intercourse. It was alleged that the Applicant also engaged in explicit sexualised behaviour in the presence of that child, which included having sexual intercourse with another 15 year old child (child complainant 2). The behaviour is alleged to have occurred during the course of an alcohol-fuelled evening, which involved 4 male army personnel, who were several years older than the child complainants, and who engaged in various sexual acts with the two complainant children over the course of an evening. The child complainants were both given alcoholic drinks by several of the army personnel and were significantly under the influence of alcohol at the time of many of the sexual acts. It is alleged that the children were in a position of vulnerability and the Applicant took advantage of that for his own sexual gratification.
  16. [49]
    The charges raise very serious concerns about the Applicant’s ability to provide a protective environment for children in his care.

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 s 357 of the WWC Act, the court’s reasons for its decision

  1. [50]
    The Applicant was not convicted of the offences.

Any information about the person given to the chief executive by the Director of Public Prosecutions under section 318 of the WWC Act or by Corrective Services under section 319 of the WWC Act

  1. [51]
    Information provided by the Office of the Director of Public Prosecutions is outlined above.

Any report about the person’s mental health given to the chief executive by a mental health practitioner under section 335 of the WWC Act

  1. [52]
    No information was given under s 335 of the WWC Act.

Any information about the person given to the chief executive by the Mental Health Court under section 337 of the WWC Act or by the Mental Health Review Tribunal under section 338 of the WWC Act

  1. [53]
    No information was given pursuant to those sections.

Anything else relating to the commission, or alleged commission of the offence that the chief executive reasonably considers to the assessment of the person

  1. [54]
    Additional matters which the Respondent considered relevant include the following:
    1. (a)
      The charges were all for serious and disqualifying offences against a 13 year old child and some of them also involved a 15 year old child. Charges of this nature are at the highest level of seriousness in the consideration of a person’s eligibility to be entrusted to provide a protective environment for children in activities regulated by the WWC Act.
    1. (b)
      The police service information noted that the charges were discontinued on the basis that child complainant 1 no longer wished to pursue the criminal charges and in the context that child complainant 2 did not make a formal complaint against the Applicant. The decision of the Department of Public Prosecutions to discontinue the charges was therefore not due to any deficiency in the evidence or an inability to prove all the elements of the offences, but rather based on the wishes of the child complainants.
    2. (c)
      The Applicant admitted to police that he engaged in various sexual acts with the child complainants over the course of the evening. The Applicant maintained that he was told by L2 that the child complainants were both 17 years old. However the evidence of both child complainants and G indicates that some time after the child complainants had been in L2’s room with the Applicant and his three friends, the topic of age was discussed and either one or both of the child complainants stated that child complainant 1 was 15 years of age and child complainant 2 was 17 years of age. It was unclear as to whether that statement was made to the Applicant, however the statement was made in a small apartment style room when the Applicant was present and there was low level music and conversation so not to wake the neighbouring personnel.
    3. (d)
      Discontinued charges for child related sexual offences are relevant considerations in making a blue card assessment, as noted in TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [83], [84] and [85].

Witness Evidence

The Applicant

  1. [55]
    The Applicant is a 30 year old man.
  2. [56]
    After High School, the Applicant trained and served with the Australian Army.
  3. [57]
    The Applicant was aged 19 years and was deployed at an army base when the incident occurred.
  4. [58]
    When the Applicant collected child complainant 1 and child complainant 2 from the train station on the evening of the incident, he asked their ages and they told him that child complainant 1 was 17 years and child complainant 2 was 18 years.
  5. [59]
    When it was put to the Applicant in cross examination that he made a statement to police which instead said that L2 told him that both child complainants were aged 17 years old, the Applicant maintained the child complainants had told him that they were aged 17 years and 18 years respectively.
  6. [60]
    He did not personally give child complainant 1 and child complainant 2 alcohol, however he did not stop them from drinking alcohol.
  7. [61]
    The Applicant has never denied that he had a sexual encounter with child complainant 1 and child complainant 2 which occurred at the army base, at his unit and at a friend’s unit. The Applicant has admitted that he was a willing participant but said that was on the assumption that all parties were of legal and consensual age.
  8. [62]
    The Applicant was affected by stigma in relation to the incident but believes that made him grow as a person, with the full support of his family, friends and the army unit. He believes that the incident and the subsequent legal action has made him more aware of age as a whole and the innocence of youth. It has been a massive life lesson. He will never repeat that conduct.
  9. [63]
    Following the incident, the Applicant completed further training and was placed into command roles with the Australian Army. He utilized the experiences of hardship from the court proceedings and the stigma in relation to the incident to train his soldiers to a high standard.
  10. [64]
    Since leaving the Australian Army due to medical discharge, the Applicant has been involved at a high level in internet gaming. In that capacity, he has participated in an internet gaming leadership scheme which has involved him teaching, organizing, hosting and judging internet gaming tournaments.
  11. [65]
    With the benefit of maturity and life experience, the Applicant now understands that, irrespective of his understanding of the child complainant’s ages, the encounter was disrespectful to them and untoward. Now as a father of two young girls, he understands the need to protect children from such predatory experiences. He acknowledges that his actions were wrong and he will not repeat them.
  12. [66]
    The Applicant is supported by his partner, children, family and friends, a psychiatrist and he has seen a psychologist on one occasion.

JB, the Applicant’s mother-in-law

  1. [67]
    JB has known the Applicant for approximately 9 years and is the Applicant’s mother-in-law.
  2. [68]
    JB has witnessed the Applicant grow into a responsible, hardworking and compassionate man. The Applicant is a dedicated, competent and caring father.
  3. [69]
    The Applicant has supported JB and her husband in caring for their grandchildren who are in their care. JB has no concerns about the Applicant being involved with the children.
  4. [70]
    JB had not read the Respondent’s reasons for the decision to issue a negative notice.
  5. [71]
    In relation to the incident, JB was aware that the Applicant had been charged with offences of a sexual nature involving underage girls who were supplied with alcohol. JB understood that the Applicant had made an honest mistake and did not believe that the child complainants were underage. She believed that the Applicant had met the child complainants in a hotel where he could reasonably expect that they would not be underage.

FB, the Applicant’s friend

  1. [72]
    FB has known the Applicant for 6 or 7 years through an internet gaming company that the Applicant has been closely involved with. FB has observed the Applicant to be entirely appropriate in his interactions with adults and children at numerous internet gaming events.
  2. [73]
    FB had not read the Respondent’s reasons for the decision to issue a negative notice nor police information regarding the charges. However FB had been informed of the charges by the Applicant.

Dr John Chalk, Psychiatrist

  1. [74]
    The Tribunal received a report prepared by Dr Chalk. Dr Chalk stated that he does not think that the Applicant poses any risk to children. Dr Chalk also said that he has no concerns about the Applicant holding a blue card.
  2. [75]
    However, Dr Chalk’s report did not address, and it is not apparent that he specifically considered, the extent to which the Applicant has insight into his offending behaviours and its impact on society, the victims and any children associated with the Applicant, risk factors or triggers, protective factors and preventative strategies relevant to reduce the risk of further offending. This is contrary to directions made by Member Kent on 23 January 2019 which required any health report to consider such matters.
  3. [76]
    It was apparent from the Applicant’s evidence that Dr Chalk was not given the opportunity to fully consider the Respondent’s reasons to issue a negative notice.
  4. [77]
    Doctor Chalk was not made available for cross-examination.

Applicant’s Submissions

  1. [78]
    The Applicant submitted as follows:
    1. (a)
      The Tribunal should give weight to the fact that the charges in respect of child complainant 1 were dropped and no charges were brought in respect of child complainant 2 in the context that the Applicant admitted the conduct alleged;
    1. (b)
      The Applicant has personally grown significantly since the incident and as result of consequential stigma and court proceedings;
    2. (c)
      The Applicant recognises that his behaviour exposed the child complainants to sexual acts and allowed them to drink alcohol, exposed them to consequent stigma and caused mental trauma for them and their families. The Applicant is disgusted with his behaviour;
    3. (d)
      The Applicant has developed skills and strategies to ensure that he does not reoffend. Now he is very conscious of the legal age of consent and would take steps to ensure that he does not reoffend;
    4. (e)
      Numerous protective factors are likely to reduce the risk of further offending behaviour. These include:
      1. (i)
        The Applicant no longer consumes alcohol;
      1. (ii)
        The Applicant is married;
      1. (iii)
        The Applicant has children;
      1. (iv)
        The Applicant has a support network which includes family, friends, Dr Chalk and a psychologist whom the Applicant has seen on one occasion; and
      1. (v)
        The Applicant has insight and acknowledges that his actions were wrong and effected the child complainants and their families.

Respondent’s Submissions

  1. [79]
    The Respondent identified the following protective factors relevant to the Applicant:
    1. (a)
      The charges relating to the events on 25 October 2008 are the only entries on the Applicant’s criminal history;
    1. (b)
      The Applicant demonstrates some insight into his offending by stating that he is now more aware of age as a whole and ‘the innocence that comes with those of a lower age than myself’ and has ‘grown to become a better person’;
    2. (c)
      The Applicant is now married with two children;
    3. (d)
      The Applicant is supported by his friend and mother-in-law.
  2. [80]
    The Respondent identified the following risk factors relevant to the Applicant:
    1. (a)
      The Applicant was charged with indecent treatment of children under 16 years, attempted indecent treatment of children under 16 years and carnal knowledge of children under 16 years (and attempts) in 2010. These charges are serious and disqualifying offences under the WWC Act and the Applicant has admitted to engaging in sexual acts and sexual intercourse with the child complainants;
    1. (b)
      The alleged and admitted behaviours of the Applicant are directly child related and should be given the highest weight in considering whether an exceptional case exists;
    2. (c)
      Given the age of the child complainants, they were unable to consent at law to any sexual acts or sexual intercourse with the Applicant or to be exposed to any sexual acts or sexual intercourse;
    3. (d)
      The witness statement of child complainant 1 indicated that she did not wish to have sex with the Applicant and that she was affected by alcohol and felt pressured by the Applicant. Child complainant 1 also alleged that the Applicant continued despite her asking him to stop. Witness statements also indicated that child complainant 2 was also affected by alcohol around the time that the Applicant engaged in sexual acts and sexual intercourse with her. That alleged behaviour suggests that the Applicant was unable to modify his behaviour in the interests of the child complainants;
    4. (e)
      The Applicant failed to make adequate inquiries as to the age of the child complainants, and in particular the age of child complainant 1;
    5. (f)
      The Applicant drove the child complainants to a military base in his car. The Applicant was present when they were provided with alcohol and it is the evidence of child complainant 1 that he provided alcohol to her. The Applicant would have known that it was inappropriate for the child complainants to be at the base and be provided with alcohol even if he had a reasonable basis for believing that they were 17 years of age. These actions indicate that the Applicant failed to act in the best interests of the child complainants and did not act protectively towards them;
    6. (g)
      The Applicant took the child complainants to an unfamiliar environment in which they had an apprehension that they could not leave without the assistance of the Applicant and his friends. He was older than them. He was present when they were supplied with alcohol and it was alleged by the child complainants that the Applicant provided them with alcohol. The Applicant disregarded the child complainants’ inebriation and the impact that the alcohol may have had on their behaviour and their ability to ‘consent’ and he nevertheless engaged with sexual acts and sexual intercourse with the child complainants;
    7. (h)
      While police noted that the Applicant was remorseful for his actions, he has not demonstrated any remorse for his behaviour or for the events which took place on 25 August 2010. He has also not indicated any empathy for the child complainants. The Applicant instead refers to how he has overcome his ‘adversity’ and the ‘stigma’ associated with his charges. The Applicant has only limited insight into the full extent of his behaviour toward the child complainants;
    8. (i)
      The Applicant has not demonstrated an understanding of the vulnerability of persons younger than him and nor has he indicated how he is now a better person;
    9. (j)
      There is limited information about the Applicants current support network;
    10. (k)
      The report of Dr Chalk should be given limited weight because Dr Chalk was not available for cross-examination and because the report does not address the matters set out in the directions made on 23 January 2019;
    11. (l)
      Although a considerable period of time has elapsed since the alleged offending and admitted conduct, the clear intention of the WWC Act is that the alleged behaviours remain significant in an assessment of the Applicant’s eligibility to hold a blue card. The passage of time is just one of the factors that must be considered and does not, in itself, constitute an exceptional case;
    12. (m)
      If issued, a blue card would be unconditional and fully transferrable across all areas of regulated employment and business.
  3. [81]
    In the circumstances, the risk factors render the Applicant’s case an exceptional case such that it would not be in the best interests of children and young people for the Applicant to be issued with a positive notice and blue card.

Consideration of the law and facts relevant to this case

  1. [82]
    As required, in deciding whether an ‘exceptional case’ exists, I have considered the matters set out in ss 226(2) WWC Act relevant to this case.
  2. [83]
    I have also considered the submissions of the Applicant and the Respondent concerning relevant risk factors and protective factors. All of the charges are serious and disqualifying offences under the WWC Act.[32] Offences of this type are of the highest concern in an assessment of a person’s eligibility to hold a blue card. The alleged offending is directly child-related.
  3. [84]
    I do not accept the Applicant’s submission that the charges should not be of concern to the Tribunal because they were withdrawn and did not result in convictions and that no charges were brought in respect of the Applicant’s conduct towards child complainant 2. Section 226(2) of the WWC Act requires the Tribunal to have regard to charges whether or not they have resulted in a conviction. As Member Rogers stated in TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [83]-[86]:

[83]  A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

[84]  This may seem unfair to Mr TNC and many others in his situation, who are entitled to a presumption of innocence. It can be seen as offending a sense of justice.

[85]  Parliament considered this tension and stated in the explanatory notes to the Bill introducing the Act at page 10:

The infringements [on the rights of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their well being

[86]  I am therefore required to give some weight to the charges. They do not constitute exceptional circumstance by themselves, if they did that would have the effect of elevating their importance to the level of convictions, and Parliament drew a distinction, but they must be considered as part of the circumstances.

  1. [85]
    On that basis, I have had regard to the charges as required by s 226(2) of the WWC Act.
  2. [86]
    I have considered the material provided by the Office of the Director of Public Prosecutions pursuant to a request for information made by the Respondent. Details of the information is set out above. I note the advice of the Office of the Director of Public Prosecutions that the first indictment was discontinued on 1 February 2010 and a replacement indictment was presented reflecting amended charges. The second indictment was discontinued on 15 March 2010 after a conference with the child complainant who indicated that she wished to withdraw her complaint against the Applicant.
  3. [87]
    The Applicant has given evidence that at least one of the child complainants admitted under cross-examination to lying about their age. I do not have any other material before me which confirms what, if anything, occurred in that regard. There is insufficient detail, context or evidence for me to draw any relevant inferences from this.
  4. [88]
    The charges are in respect of serious and disqualifying offences under the WWC Act. They are directly child related and are of a particularly serious and concerning nature. The witness statement of child complainant 1 indicated that she did not wish to have sex with the Applicant, she was affected by alcohol and felt pressured by the Applicant and the Applicant continued despite her asking him to stop. Witness statements also indicated that child complainant 2 was also affected by alcohol around the time that the Applicant engaged in sexual acts and sexual intercourse with her. The Applicant’s alleged conduct raises serious concerns about his risk to children and his ability to provide a protective environment for children and to ensure their safety and wellbeing.
  5. [89]
    In relation to the Applicant’s knowledge of the child complainants’ age, at the Tribunal hearing, the Applicant maintained that when he collected the child complaints from the train station, he inquired about their age and was informed by the child complainants that child complainant 1 was 17 years and child complainant 2 was 18 years. The Applicant’s evidence to the Tribunal is inconsistent with the Applicant’s statement to police, made on 27 November 2008, that he was told by L2 that ‘both the girls were 17’. [33] The Applicant’s statements to police make no mention of the child complainants telling him their ages, and particularly that they were aged 17 years and 18 years.
  6. [90]
    This can be contrasted to the statements to police of both child complainants to the effect that some time after they had been in L2’s room with the Applicant and his three friends, the topic of age was discussed and either one or both of the child complainants stated that child complainant 1 was 15 years of age and child complainant 2 was 17 years of age. Further, in his statement to police, G said that he was told that child complainant 1 was 15 years of age and child complainant 2 was 17 years of age. It was unclear as to whether that was said to the Applicant, however the statement was made in a small apartment style room when the Applicant was present and background music was at a low level.
  7. [91]
    That inconsistency in the Applicant’s evidence given at the Tribunal hearing and in his statement to police concerning his knowledge of the child complainant’s age is difficult to reconcile. I consider the possibility that the Applicant now chooses to present the circumstances of the incident in a manner which is more favourable to him. I acknowledge that the Applicant has made significant admissions of fact but I nevertheless have real concern about the Applicant’s credibility in relation to his knowledge of the child complainants’ age at the time of the incident.
  8. [92]
    However, even if the Applicant’s evidence is accepted:
    1. (a)
      The Applicant believed that at least child complainant 1, and possibly also child complainant 2, was 17 years at the time of the incident. Given the considerable disparity between the stated ages and the actual ages of the child complainants, I consider that the Applicant likely failed to make adequate inquiries to ensure the age of the child complainants, and in particular the age of child complainant 1;
    1. (b)
      The Applicant admits that he drove the child complainants from the train station to the army base. I consider that this would likely have been an unfamiliar environment which the child complainants would have had an apprehension about leaving without the assistance of the Applicant and his friends;
    2. (c)
      The Applicant admits that the child complainants were supplied with alcohol in his presence. In the circumstances, the Applicant should have been aware that child complainant 1, and possibly also child complainant 2, was not legally permitted to consume alcohol, however he did not stop them from doing so;
    3. (d)
      The Applicant admits to engaging in sexual acts and sexual intercourse with child complainant 1 and engaging in sexual acts and sexual intercourse with child complainant 2 which would have been in view of child complaint 1;
    4. (e)
      The Applicant knew that the child complainants were under the influence of alcohol at the time. In doing so, he disregarded the child complainant’s inebriation and the impact that may have had on their behaviour and their ability to ‘consent’ to sexual acts.
  9. [93]
    Even considering the Applicant’s case in it’s most favourable light, the Applicant’s conduct still raises serious concerns about his risk to children and his ability to provide a protective environment for children and to ensure their safety and wellbeing.
  10. [94]
    I acknowledge that the Applicant has not engaged in any further offending or concerning behaviour since the incident on 25 October 2008. Whilst this is a relevant consideration, the passage of time alone is not determinative of whether or not a case is an ‘exceptional case’ and it is necessary to also consider all of the other relevant circumstances.[34]
  11. [95]
    I accept that protective factors include that the Applicant has developed a level of maturity and he has developed some strategies to ensure that he does not reoffend, including that he now no longer consumes alcohol and he is very conscious of the legal age of consent.
  12. [96]
    I accept that the Applicant also now has support which includes his family, friend and Dr Chalk which is another protective factor. The extent of support provided by the Applicant’s family and friend is somewhat unclear. I accept that the Applicant has consulted with Dr Chalk over a long period of time, at least initially in the context of the Applicant’s service with and discharge from the Australian Army and that Dr Chalk has provided some support in the context of the Applicant’s alleged offending. At this point in time, the psychologist seems to have played a much lesser role as part of the Applicant’s support network as he has seen her on only one occasion.
  13. [97]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:[35]

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

  1. [98]
    The Applicant has given evidence that he has developed insight into his behaviour that was the subject of the charges. He said that he has personally ‘grown’ since the incident and as result of the charges, related court proceedings and associated ‘stigma’. The Applicant said that he is now more aware of age as a whole and ‘the innocence that comes with those of a lower age than myself’ and he has ‘grown to become a better person’. The Applicant said that he recognises that his behaviour exposed the child complainants to sexual acts and allowed them to drink alcohol, exposed them to consequent stigma and caused mental trauma for them and their families and he is ‘disgusted’ with his behaviour. The Applicant outlined protective factors and strategies to minimise risk of future such as being married, taking steps to ensure a person was not underage and no longer consuming alcohol.
  2. [99]
    However that evidence must be viewed in the context that the Applicant asserted on a number of occasions that he was ‘misled’ and ‘deceit’ by the child complainants in relation to their age. On one view, this is understandable in the context that the Applicant maintained that he had been told and he believed that the child complainants were both 17 years (noted in the police statements) or that child complainant 1 was aged 17 years and child complainant 2 was aged 18 years (in cross-examination at the Tribunal hearing). However, as stated above, I have reservations about the Applicant’s credibility in relation to that issue. In any event, the Applicant’s assertions in that regard and his focus on his mistaken belief as to the child complainants being of an age where they can legally consent to sexual intercourse, presented as minimising the full extent of his conduct and his failure to otherwise ensure the safety and wellbeing of the child complainants.
  3. [100]
    I accept that the Applicant is remorseful for his conduct which gave rise to the offences. That is consistent with police notes that the Applicant expressed remorse for his actions at the time the matter was investigated. Whilst the Applicant gave evidence of his remorse for consequences of his actions on the child complainants and their families, I formed the impression that his actual remorse was more self-focused on the consequences for him personally as a result of the consequent charges, court proceedings and associated ‘stigma’ and the ‘adversity’ that he suffered as a result. Having regard to all the circumstances, I consider that the Applicant’s empathy for the child complainants and remorse for the consequences on them and their families was limited in the context of his significant remorse for the negative impact of the offending on his life.
  4. [101]
    I give no weight to the evidence of the report of Dr Chalk because the report does not address the matters set out in the directions made by the Tribunal on 23 January 2019 and Dr Chalk was not made available for cross-examination.
  5. [102]
    The Applicant’s mother-in-law and the Applicant’s friend, FB, did not give any significant evidence specifically regarding the Applicant’s insight.
  6. [103]
    In any event, I also give little weight to the evidence of the Applicant’s mother-in-law because she had not read the Respondent’s reasons for the decision to issue a negative notice. Further and significantly, the Applicant’s mother-in-law’s evidence was given on the basis of an incorrect understanding of the circumstances of the Applicant’s alleged offending: she believed that the Applicant met the child complainants at a hotel and was therefore reasonably entitled to assume that they were not underage.
  7. [104]
    I also give little weight to the evidence of the Applicant’s friend, FB, because he had not seen the Respondent’s reasons for decision to issue a negative notice nor police information regarding the charges.
  8. [105]
    Accordingly, there is no independent evidence which supports a finding that the Applicant has developed significant insight into his conduct. On balance, I am not satisfied that the Applicant has a real acceptance and depth of understanding of the very serious nature and consequences of his conduct. I am not satisfied that the Applicant has demonstrated genuine insight for his behaviour.
  9. [106]
    In relation to the Applicant’s risk in relation to children, for the reasons outlined above, I give no weight to the evidence of the report of Dr Chalk, the Applicant’s mother-in-law and the Applicant’s friend, FB. Accordingly, there is no independent evidence which addresses risk factors or triggers, protective factors and preventative strategies relevant to reduce the risk of further offending and which supports the Applicant’s assertions that he does not present a risk to children.
  10. [107]
    The purpose for which the Applicant seeks a bluecard is irrelevant. If issued, a blue card would be unconditional and fully transferrable across all areas of regulated employment and business, not just for the purpose sought by the Applicant.
  11. [108]
    Prejudice or hardship which the Applicant may experience if he is not issued with a positive notice is not relevant to the Tribunal’s determination of whether the Applicant’s case is ‘exceptional’.[36]
  12. [109]
    The welfare and best interests of a child is the paramount principle that the Tribunal must apply in this review.[37]

Conclusion

  1. [110]
    Having regard to the evidence and the various matters set out above, I am satisfied, on the balance of probabilities, that there is a real and appreciable risk that the Applicant would harm children whilst employed or undertaking volunteer work.
  2. [111]
    I am satisfied, on the balance of probabilities, that it would not be in the best interests of children for the Respondent to issue a positive notice.
  3. [112]
    Accordingly, I am satisfied, on the balance of probabilities, that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.
  4. [113]
    I order that the decision of the Respondent that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is affirmed.

Non-publication

  1. [114]
    I order that the publication of the name or identifying information of the Applicant, or any person associated with him and in particular children for whom he has cared or been associated, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  2. [115]
    Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]  Section 221(2) of the WWC Act.

[2]  Defined by s 169 of the WWC Act.

[3]  Section 354(1) of the WWC Act.

[4]  Section 353 of the WWC Act, definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’.

[5]  Section 33(3) of the QCAT Act.

[6]  Section 353 of the WWC Act, definition of ‘chapter 8 reviewable decision’; s 354 of the WWC Act.

[7]  Section 19(a) of the QCAT Act.

[8]  Section 19(c) of the QCAT Act.

[9]  Section 20(1) of the QCAT Act.

[10]  Section 20(2) of the QCAT Act.

[11]  Section 21 of the QCAT Act.

[12]  Defined in s 167 of the WWC Act.

[13]  Section 221(1) of the WWC Act.

[14]  Section 221(2) of the WWC Act.

[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]Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

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

[18]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[19]  Section 5(b) of the WWC Act.

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

[21]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[22]  2008 (WA) SCA 171, [109].

[23]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[24]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336.

[25]Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[26]  Section 360 of the WWC Act.

[27]  As those terms are defined by ss 167 and 168 of the WWC Act.

[28]  Queensland Criminal Code 1899 section 210 subsections a, c and d.

[29]  Queensland Criminal Code 1899 section 215 subsection 1.

[30]  Queensland Criminal Code 1899 section 215 subsection 1.

[31]  Queensland Criminal Code 1899 section 210 subsection 5 and section 215 subsection 5.

[32]  See schedules 2 and 4 of the WWC Act.

[33]  Paragraph 3 of the statement of witness of the Applicant dated 27 November 2008.

[34]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[35]   [2006] QCST 11, [97].

[36]Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, Buss J at [109].

[37]   Section 360 of the WWC Act.

Close

Editorial Notes

  • Published Case Name:

    RA v Blue Card Services, Department of Justice and Attorney-General

  • Shortened Case Name:

    RA v Blue Card Services, Department of Justice and Attorney-General

  • MNC:

    [2019] QCAT 267

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    03 Sep 2019

Appeal Status

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

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