PXS v Director-General, Department of Justice and Attorney-General
[2020] QCAT 342
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- PXS v Director-General, Department of Justice and Attorney-General[2020] QCAT 342
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PXS v Director-General, Department of Justice and Attorney-General[2020] QCAT 342
PXS v Director-General, Department of Justice and Attorney-General[2020] QCAT 342
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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | PXS v Director-General, Department of Justice and Attorney-General [2020] QCAT 342 |
PARTIES: | PXS |
| (applicant) |
| v |
| DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL |
| (respondent) |
APPLICATION NO/S: | CML316-19 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 7 September 2020 |
HEARING DATE: | 28 August 2020 |
HEARD AT: | Hervey Bay |
DECISION OF: | Member Milburn |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – review of negative notice – review of a decision to issue a negative notice and cancel a blue card – where Applicant was charged with distribute prohibited visual recordings, extortion with intent to cause detriment, and possess tainted property – where the charge of distribute prohibited visual recordings, extortion with intent to cause detriment with threat of detriment were withdrawn – where the Applicant entered a plea of guilty to a charge of possess tainted property and was sentenced to a fine without conviction – where Applicant has no other criminal history – where Applicant has not been convicted for any serious or disqualifying offences – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Human Rights Act 2019 (Qld), s 8, s 26(2), s 58 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7]. |
APPEARANCES & REPRESENTATION: |
|
Applicant: | R Calil, Lawyer of C & C Legal |
Respondent: | G Carrington, In-house Government Legal Officer of the Director-General, Department of Justice and Attorney-General |
REASONS FOR DECISION
- [1]PXS (‘the Applicant’) is a young man who was born overseas and has lived in Australia through his high school and, currently, his university years. He is about to complete a university degree, having gained entrance with an exceptionally high OP score.
- [2]On 27 February 2018, the Crown charged the Applicant with the following counts of offending:[1]
- (a)Distribute prohibited visual recordings (between 16 January 2018 and 1 February 2018);
- (b)Extortion with intent to cause detriment with threat of detriment (between 16 January 2018 and 1 February 2018); and
- (c)Possessing property suspected of being tainted property under (section 252(1) of the Criminal Proceeds Confiscation Act 2002), between 16 January 2018 and 1 February 2018.
- (a)
- [3]Prosecution offered no evidence in relation to the first two charges. The reasons for the discontinuance were explained in correspondence from the Office of the Director of Public Prosecutions, dated 11 December 2019,[2] pursuant to a request for information as follows:
This occurred after the Crown carefully assessed the brief and believed there was no prospect of conviction. The reason for unsuccessful prosecution was due to lack of evidence that the defendant distributed images/videos pertaining to count 1. The Arresting Officer agreed with the Crown.
In relation to count 2, the Crown determined that there was no evidence that the defendant made a demand with intent to gain a benefit or cause a detriment.
- [4]The Applicant entered a plea of guilty to the third charge where Deputy Chief Magistrate Gardiner (as his Honour was then) convicted the Applicant, without recording the conviction, and imposed a fine of $750. In sentencing, his Honour said:[3]
I take into account the fact you have pleaded guilty to this one charge of possessing property, namely, images and a recording that was reasonably suspected of being tainted property. The fact that you possessed those, I have no doubt, would have caused significant anxiety to the Victim of that offending by [the Co-offender]. For an intelligent person, you have showed a disregard for her by receiving those and informing [the Co-offender] that you would act upon his instructions. To your credit, you deleted those images. I take into account the fact you have pleaded guilty. The penalty is less than what I would have otherwise imposed. I bear in mind the references. It seems to me that what you did was out of character and is unlikely to be repeated by you.
- [5]The Applicant was a teenager at the time of the offending behaviour. The Applicant met the Co-offender, who is considerably older, while working part-time in a restaurant where the Co-offender was a regular customer. Unbeknownst to the Applicant, the Co-offender was involved in vastly more serious offending behaviour. Relevant to the Applicant, the young female victim was born overseas and had only just arrived in Australia on a holiday work visa. The Applicant met the Victim (also referred to as ‘the complainant’) in a restaurant after the Co-offender had encouraged him to approach her. The Applicant approached the Victim because the Co-offender expressed a desire to have the Victim assist him in learning her language. There was no suggestion that at that stage the Applicant knew of the Co-offender’s ulterior motive, which led to serious offending behaviour including deprivation of liberty, non-consensual sexual activity between the Co-offender and the complainant, and extortion.
- [6]The Applicant’s criminality is outlined in an agreed statement of facts[4] between prosecution and defence relevant to his offending behaviour:
Background
The defendant in this matter is [the Applicant]. He was 19 years old at the time of the offending.
[The Co-offender] … has been charged with a number of sex, violence, and drug supply offences, relating to 3 complainants.
[The Applicant]'s offending only relates to one charge relating to one complainant [the Victim]. At the time of the offending she had just arrived in Australia from [an overseas location] on a holiday work visa.
[The Co-offender] and [the Applicant] met the complainant at a restaurant in the city in mid-January. [The Applicant] was present when [the Co-offender] and the complainant exchanged details so they could keep in contact.
Over the following weeks [the Co-offender] and the complainant commenced a relationship. During the course of this relationship [the Co-offender] recorded non-consensual intercourse between him and the complainant with his mobile phone.
It is not alleged that [the Applicant] was aware of the offences being committed by [the Co-offender], and there is no allegation that [the Applicant] was aware that the images and recording were obtained by [the Co-offender] in the course of alleged non-consensual sexual activity between [the Co-offender] and the complainant.
The complainant called "000" on 29 January 2018 in relation to [the Co-offender] and made her formal statement on 1 February 2018 and addendum statement on 5 March 2018.
Facts
This charge is based on a text message conversation [the Applicant] had with [the Co-offender] on 30 January 2018. [The Co-offender] informed [the Applicant] that the complainant called the police after an argument.
He asked [the Applicant]. "If I get locked up, I want u to revenge for me." [The Applicant] responded, "no worries".
[The Co-offender] sent to [the Applicant] the following:
5 x photos of the complainant sleeping, with her breasts and face exposed. Two of these photos are identical. The other three photos were taken closer up or at a slightly different angle. It is possible they are a series of photos taken during the same occasion.
2 x photos (identical) of the complainant sleeping, with her buttock exposed (no face).
1 x video of the complainant and [The Co-offender] having intercourse (no face).
By way of context evidence, after he sent the photos [the Co-offender] said to [the Applicant] "I got good stuff on her. This will make her embarrassed. So if you don't hear from me. Post it all over the web...All (an overseas country) and all over Australia."
[The Applicant] replied 'yeah no worried' [sic].
[The Applicant] immediately viewed the material because he made the following comments to [the Co-offender] "she got tiny boobs", "is that the sofa I was sleeping on" and "you got the innocent bitch".
However, it is accepted that [the Applicant] did not intend to assist [the Co-offender] with posting the material, and that [the Applicant] shortly after deleted the material from his phone.
Recorded interview with police
In [the Applicant]'s interview with police he denied distributing the material [the Co-offender] sent to him or even intending to distribute the material despite his comments to [the Co-offender]. He said he told [the Co-offender] he would distribute the images to placate him in the moment. He told police he deleted the images as soon as he received them because he did not want get into trouble.
[The Applicant] said that he thought the photos were taken after [the Co-offender] and the complainant had sex and, in the morning, [the Co-offender] woke up and took a photo of her sleeping. [The Applicant] told the police that he did not think that was okay and that is why he deleted it.
At the end of the interview, [the Applicant] provided the passcode to his iPhone 6s-Plus and to his (social messaging) application to the police. [The Applicant]'s phone was subsequently returned to him as it was of no evidentiary value
Basis of the plea
[The Applicant] possessed 6 photographs and 1 video of the complainant for a short period of time before he deleted them.
[The Applicant] reasonably suspected the images and video he received from [the Co-offender] was tainted property as the property had been obtained by [the Co-offender] in connection with s 227B (1) (b) of the Criminal Code (Distribute prohibited visual recordings).
That is [the Applicant] accepts that the photos and videos were taken without the complainant's consent.
- [7]In its written reasons (‘the Reasons Document’), Blue Card Services (‘BCS’) expressed concerns about the Applicant. The following extracts are pertinent:
Background[5]
The Applicant was issued with a positive notice and blue card on 30 May 2017. During the currency of his blue card the Applicant's police information changed and his eligibility to hold a blue card was re-assessed. Following this re-assessment the Applicant's positive notice and blue card were cancelled and he was issued with a negative notice on 12 March 2018.
Blue Card Services subsequently received an application to cancel the negative notice issued to the applicant on the basis that the charges which were outstanding at the time of the decision have been finalised. Accordingly, the applicant's eligibility has been re-assessed.
Assessment process[6]
The Applicant's alleged responses when he received the graphic photos and videos of the complainant demonstrated he would be inherently unsuitable to engage in child-related employment, where he would be responsible for providing a safe and protective environment for children and young people. In addition, the Applicant's failure to immediately report the matter to police was considered to be particularly concerning and reflected adversely on his ability to act responsibly to protect those who were vulnerable.
Overall, the Applicant's alleged offending raised serious concerns about his ability to:
- Judge appropriate behaviour;
- Promote and protect the best interests of vulnerable persons, possibly including children who may be in his care; and
- Present as a positive role model for children and young people.
The best interest of children
- [8]The object of the Working with Children (Risk Management and Screening) Act 2000 (‘the WWC Act’) is to promote and protect the rights, interests and wellbeing of children and young people in Queensland and BCS does that through a scheme requiring the screening of persons employed in particular employment or carrying on particular businesses.[7] That object has been extended to ‘… screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[8]
- [9]In determining this matter, the concern for the Tribunal is solely related to the welfare and best interests of children.
- [10]The issue for the Tribunal is to determine whether there is a real and appreciable risk to the safety of children as a result of its decision. The Tribunal has a wide discretion to determine whether this is an exceptional case.[9] Each case is to be considered on its own facts. The Tribunal must consider, but not directly balance, relevant risk and protective factors in each case and, where there are multiple factors in a case, the Tribunal must apply weight to the relevant factors.[10] That requires the Tribunal to undertake a careful analysis of the circumstances of the case, which involves the application of a discretion. The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it is not in the best interests of children for a positive notice to be issued. Each case must be dealt with on its own facts.
The Applicant’s Documentary Evidence
- [11]The Applicant provided a version of his life story (‘the Applicant’s Life Story’), dated 25 November 2019, to the Tribunal. In it, the Applicant spoke of his upbringing in his birth country, where he regarded his mother as his hero and his greatest inspiration. He was bullied in his early teenage years. His mother decided to send him overseas to study because she was worried about bullying and she did not like the education system in his birth country. He arrived in Australia by age 14, and developed an understanding of Australian English, worked hard at school, and enjoyed the company of his ‘foster’ mother. He joined a church group. He graduated as the Dux of his school with an exceptionally high OP score and gained a University scholarship. At university, he became the president of a club designed to assist international students.
- [12]In the Applicant’s ‘further statement of evidence’:[11]
- (a)he addressed the issue of extortion in the following terms:
- (a)
I had no intention to and did not take any revenge on [the Victim], despite the fact I "agreed to do so". This response to [the Co-offender] was caused:
- by my psychological trigger at the time of "not wanting to show disrespect" to [the Co-offender];
- by my psychological trigger at the time of "not wanting to be confrontational" towards [the Co-offender]; and
- by doing the above, wanting [the Co-offender] to go away.[12]
- (b)he addressed the issue of insight gained through his sessions with his psychologist in the following terms (paragraph numbering omitted):
- (b)
If the same situation that happened with [the Co-offender] and [the Victim] arises again, now or in the future, I understand how these psychological triggers may lead me to say 'yes' or that I 'agree', to avoid being confrontational or because it is my way of wanting the problem or challenge to go away. There is a time to say `no' and a firm 'no' if necessary.
The right question(s) asked at the right time, with sufficient amount of courage may have caused a different outcome.
I was passive, accepting what [the Co-offender] was saying and requiring of me, I lacked courage and insight to challenge [the Co-offender] and overcome my psychological triggers.
The sessions with my psychologist, going through the material my psychologist prescribed to me, including short online courses and resources, reading and researching about the topics of violence, abuse and rape, has also equipped me to have a more positive mental attitude to understand the signs and potential harm and the understanding of the methods of preventing and reporting.
I am confident that what I know today, compared to what I knew back in early 2018 has improved the way I judge appropriate behaviour and the way I promote and protect the interest of vulnerable persons.[13]
The Applicant’s Oral Evidence
- [13]The Applicant was cross-examined at the Tribunal hearing, and during his evidence the Applicant said:
- (a)The Applicant had to work in paid employment to afford to pay his school fees. The Co-offender was a regular customer at the restaurant where he worked. Initially, the Applicant thought he was a ‘scary individual’, because of his physical stature and extensive tattoos. But the Applicant saw the Co-offender, who was approximately ten years his senior, as influential and wealthy. The Co-offender was unlike those people with whom the Applicant usually associated. The Applicant was interested in speaking with the Co-offender because he thought it might assist him in better understanding how to make his way in Australian society.
- (b)The Applicant approached the Victim on the day the Victim happened to arrive in Australia. The Victim was in the company of another person. In their birth language, the Applicant told the Victim that the Co-offender would like to contact her, and the Applicant asked the Victim for her telephone number. The Victim explained that she did not have a telephone in Australia, yet, but she did volunteer her identification to enable the Applicant to engage with her using a social networking program.
- (c)Sometime later, the Co-offender called the Applicant and said that he and the Victim were now in a relationship as a couple. During the call, the Applicant spoke to the Victim, and he asked the Victim why she was now in a relationship with the Co-offender, as it was so soon, and she responded with words to the effect ‘it just happened’.
- (d)Later, the Co-offender asked the Applicant to translate a document from English into the Applicant’s birth language. The document appeared to be a draft email and appeared to be addressed to the complainant’s boyfriend in their birth country. The Applicant undertook the translation exercise and provided the translation to the Co-offender. Given that the Applicant believed at the time that the Co-offender was in a relationship with the complainant, he did not have any concerns about the content. The draft email, which the applicant does not know was sent, was effectively enquiring of the complainant’s boyfriend as to whether the Victim was in a relationship with him.
- (e)On 31 January 2018, the Co-offender called the Applicant, crying, saying that the police wanted to speak with him. The Co-offender provided the Applicant with the Victim’s mother’s contact details in their birth country and, at request of the Co-offender, the Applicant did call the complainant’s mother. He introduced himself to the complainant’s mother and spoke about the relationship, as he understood it to be, between the Co-offender and the complainant. The Victim’s mother said it had been a few days since she had heard from her daughter. The Victim’s mother then asked the Applicant to attempt to contact her daughter. The Applicant unsuccessfully attempted to contact the Victim by telephone. But he successfully contacted the person who was with the Victim in the restaurant when the Applicant first approached the Victim. That person told the Applicant that he ‘cannot say anything’, but he did advise the Applicant not to become involved. He did not say anything about police involvement, or charges or anything that would suggest that the Victim was the victim of criminal activity. The Applicant took the statements as simply being advised to not become involved in a relationship dispute. Further, he told the Applicant that the Victim was fine, and the Applicant phoned the complainant’s mother to relay this information to her.
- (f)Unknown to the Applicant, the Victim had been held for some time against her will by the Co-offender and she had escaped, and she went to the police.
- (g)On 1 February 2018, the Applicant received a telephone call from the consulate of his birth country, enquiring about his knowledge of the Victim. The Applicant provided as much information as he could at that time. He then heard from the police who advised him of the situation and for the first time the nature and extent of the offending behaviour of the Co-offender became obvious. He then knew that the video and photographs sent by the Co-offender to him of the Victim were not consensual. He did not activate the sound associated with the video.
- (h)The Applicant said that his sessions with his psychologist has helped him to understand that he was short-sighted and unwise in having contact with the Co-offender. He understands that the actions of the Co-offender have had traumatic and devastating effects on the complainant, and that the Co-offender is a dangerous and terrible criminal and has taken someone’s liberty and has caused considerable physical and psychological harm to a vulnerable person. Through his therapy and training, learning and reflection, the Applicant acknowledges that his actions were irresponsible and careless. He understands that immediately upon receipt of the objection material, he should have reported the actions of the Co-offender, and taken material to police to prevent further harm to the complainant. As a result of his sessions with the psychologist, the Applicant says that he is now able to be more confident in challenging situations that he believes are inappropriate or harmful to others. The Applicant feels that his life has changed as a result of the insight and understanding he has learnt in dealing with his psychologist and, irrespective of the outcome of the hearing, has committed to receiving ongoing assistance, support, and counselling. He believes that he is now in a position where he can provide a safe and protective environment for others, particularly for children.
- (a)
The evidence of Mr Chris Hepperlin, Consultant Clinical Psychologist
- [14]Mr Hepperlin is a clinical psychologist. The Applicant had consulted Mr Hepperlin on 23 occasions as at the date of the hearing. Mr Hepperlin prepared a report (‘Mr Hepperlin’s Report’) 14 April 2020.[14] The report was prepared as evidence for the Tribunal hearing. In his report, Mr Hepperlin included the following pertinent information:
Purpose of the Report[15]
A Psychologist's Report was requested by [the Applicant] to provide an indication of the treatment he has been involved in with me, and to provide an opinion on his suitability to hold a Blue Card. The Report is not intended to be taken as an independent Forensic Assessment and Opinion. However, I have attempted to provide an objective, professional response to my client's request, given its intended use by QCAT.
I am a Clinical Psychologist with more than thirty years of experience working with adolescents and adults in both health and educational settings. I have registration with the Psychology Board of Australia (AHPRA) and have had no recorded complaints or adverse notifications made. I am a Fellow of the Australian Psychological Society College of Clinical Psychology. I have worked in both clinical settings (including a tertiary specialist Child, Adolescent and Family Psychiatry Unit, RPAH Sydney) as a clinician, and in senior management roles within health and higher educational settings in NSW and Old. I have published research in an international journal related to adolescent depression and a book chapter and other articles related to issues and treatment approaches for child and adolescent refugees who have experienced trauma. In the course of my career I have treated hundreds of child and adult Victims of abuse and sexual violence. I have also treated perpetrators. In a recent role, as a senior university manager, I have also been involved in developing responses within university settings to both prevent, or assist with, cases of sexual harassment and assault, and the cultures that directly or indirectly perpetuate such behaviour. My current work as an independent contractor/consultant includes provision of Clinical Psychology services at the QUT Medical Centre.
Referral Details[16]
The Director of BC Services deemed there was sufficient concern —based on reports and admissions regarding his involvement - about [the Applicant]'s ability to: Judge appropriate behaviour; Promote and protect the best interests of vulnerable persons, possibly including children who may be in his care; and Present as a positive role model for children and young people.
Assessment[17]
Diagnostically, [the Applicant] met the DSM5 diagnostic criteria for a Generalised Anxiety Disorder (with some trauma reaction features, as evidenced by his response to the PCL-5 questionnaire).
Relevant Background[18]
His history (self-reported) indicates that he has experienced significant family-related and personal stressors throughout his childhood. He has likely experienced periods of Generalised Anxiety Disorder intermittently through his childhood e.g. related to school bullying, and abusive or inadequate care within homestay environments while in his teenage years while studying high school in (an overseas country) and Australia.
His self-reported history includes a number of prominent themes that I think have relevance to the way he behaved in relation to the Offences: a frequent sense of loneliness, difficulties in trusting others, a strong wish to be liked by others and wanting to make them happy; a role for older males (e.g. his brother who is seven years older, filling a fathering role, in the absence of his neglectful, womanising father); and strong feelings of shame/guilt concerning negative things that have happened in his life. Interestingly, he also describes a tendency in the past to have been quite acquiescent to aggressors: e.g. not wanting to show disrespect to school bullies and hoping their bullying behaviour would disappear by not engaging directly with them. Many of these themes/styles of responding to his life circumstances I believe help explain his response to the Offences where he had hopes of a great friendship with the older, seemingly confident and likeable [the Co-offender], but was not able to make appropriate judgements and take necessary action in regard to [the Co-offender]'s manipulative and anti-social character, nor in response to [the Co-offender]'s callous and criminal behaviour during the Offences.
[The Applicant]'s history does also reflect a number of other positive characteristics that are prominent in his history and I believe must be considered when assessing his suitability to hold a BC. These include his high intelligence, diligence, personable disposition, sense of morality (notwithstanding the above), his wish to show leadership and help others, resilience, and genuine wish to improve himself.
The current episode of Generalised Anxiety Disorder appears to have been triggered by the stress and consequences arising from the Offences, the police investigation and the prosecution process related to the Offences and the subsequent adverse BlueCard decisions. Significantly, there was additional stress arising from his family having to meet the major legal costs, on top of continuing to support him as an international student living in Australia. There was also a deep sense of guilt and shame for his involvement in the incident and the harm caused to the Victim. He had developed significant social avoidance behaviours in interacting with university and other peers. He was deeply afraid of others learning about his involvement in the incident and minimised (or avoided altogether) contact with them to reduce the need to have to explain what was happening in his life and why he had stopped progressing through his course. Again, he had found himself in a position of deep loneliness and further reinforcement of his trust difficulties.
Relevant Treatment Issues[19]
From his initial session with me [the Applicant] expressed remorse for the Victim, though I believe when he first consulted me, he was not able to fully articulate adequate insight or an adequate empathy for the Victim and an understanding of the implications of [the Co-offender]'s behaviour on the Victim — e.g. deprivation of liberty, immediate and ongoing trauma etc. I believe a few factors were at play: firstly, [the Applicant]'s history (self-reported) suggests a young man who has experienced clinically significant levels of Anxiety for several years pre-dating the Offence — while his academic and other history suggests a man with high academic capacity and moral development, he often struggles to explain complex emotional and psychological concepts in English (there are likely to be both language and cultural elements to this difficulty); he is often anxious to provide the 'correct response' and please others —as per his need to be liked by [the Co-offender]; there is a marked dissonance between the evaluation of himself as having high Christian moral standards with his capacity to acknowledge his own mistakes or the consequences of his actions/inactions on others (in this case, criminal and trauma-producing actions perpetrated by the Offender on the Victim).
I believe the process of psychotherapy has resulted in a genuine shift in his capacity for deeper empathy, an awareness of the impact on/harm to Victims, and an understanding of the need to articulate a clearer position on his responsibilities to protect others from harm.
Psychotherapy sessions involved (amongst other things) conversations regarding ways in which he could better understand the ingredients that likely contributed to finding himself involved in a situation where a criminal activity occurred and major harm/trauma was experienced by the Victim of that criminal activity. These have included:
- Developing empathy for the Victim — e.g. conversations re reactions should he or people dear to him (mother, female cousins, others) find themselves in a similar situation, including the immediate and long-term harm/trauma that might result e.g. deep feelings of powerlessness, humiliation, confusion, guilt and ongoing trauma triggered by things (both predictable and unpredictable), including ongoing mistrust, fear and incapacity to feel safe and comfortable in a variety of social situations and enjoy 'normal' interactions with others.
- Psycho-education re issues including respect, rights, consent issues, sexual harassment, criminal assault, the immediate and long-term impacts of harm/trauma, bystander responsibility and protective behaviours (including for children and vulnerable persons), changing disrespectful and outdated gender stereotyping and other cultural/social behaviour that creates unsafe conditions for others or may lead to criminal or harmful/traumatising incidents. Note that [the Applicant] has specifically undertaken an online learning module (developed specifically for university-aged students: Respect and Safety at QUT) related to the above and attended a half-day group workshop run for young adults, covering the above issues (MATE Bystander). He has also looked at and reflected on online Child Protection (working with children/Old Govt) resources. He has also read numerous Victim Statements from survivors of sexual violence and reflected on these in psychotherapy sessions.
- Exploration of his social needs — greater insights in how he relates to others including making wiser choices in terms of who he associates with; balancing his own needs to be liked with ensuring the rights of other parties, especially children and vulnerable persons. Developing greater insight into some of his past experiences and pre-dispositions that drive some of his needs to be liked by others, but which may cloud his judgement in testing situations (e.g. if he needs to call out or take specific action regarding various forms of disrespectful, inappropriate or criminal behaviour in order to protect others from harm etc).
- Exploring and facilitating a more realistic alignment between his own views of himself and his espoused moral values, with a capacity to apply accepted or emerging community values regarding consent, respect and protection issues (being a 'good' person that is also prepared to act with respect and integrity, and in line with contemporary community standards, regardless of the context, and with particular regard to the special needs of children and vulnerable persons).
- [The Applicant] was also encouraged to begin to re-engage more with peers. This is important in terms of his frequently experienced sense of deep loneliness, and because of the benefits of developing healthy interpersonal relationships to have his affiliation needs met appropriately. He has also been encouraged to take a more critical assessment of the behaviour and attitudes of others in order to overcome any 'positivity bias' that might be at play in judging others' behaviour when he may want to be friends with that person but there is evidence that their behaviour may not be socially acceptable or legal — e.g. tending to not call out the first hints of unacceptable behaviour but rather go along with it because the person seems otherwise good, funny, friendly, moral, religiously inclined, or intimidating.
Opinion[20]
I consider that [the Applicant] has never been, nor is likely to be in the future, a direct threat to children. I believe the significant issues in this matter have been concerns — which I share — that he may have lacked sufficient insight, empathy and willingness to act in the face of witnessing or getting caught up in situations that might be (seriously) harmful to others, and where the safety and wellbeing of others (including but not confined to children) may not be being protected. In this respect, my focus is on changes that might have come about as a result of treatment (and other maturational/learning processes that have occurred since the incident around two years ago) to develop adequate insight, empathy and be a positive role model.
[The Applicant] is young and intellectually bright. I believe he is generally well-socialised and has a sense of right and wrong and a capacity for genuine empathy. I believe he is genuinely remorseful about his involvement in the Offences and the deep harm caused to the Victim. I believe his treatment sessions have assisted him to build insight into situations in which he needs to make clear judgements about his own biases and needs that might lead to a clouding of his judgement of situations and others, and a capacity to empathise with someone else who is experiencing disrespectful, harmful or criminal treatment. Further, he is now clear on responsibilities that he may have to protect others' rights and act decisively by intervening (directly or via communication to others in a better position to intervene) when situations of sex-based harassment and harm are occurring or at risk of occurring, as well as other forms of harm and in particular, harm or a lack of protection for children or vulnerable persons. He is also now well aware of his responsibilities to 'call out' cultures and attitudes that perpetuate disrespectful and harmful relations or compromise the provision of a safe environment for children and vulnerable persons.
While I have not been asked to provide expert witness on whether [the Applicant] will be a danger to children or an inappropriate role-model going forward, based on his progress in treatment alone, there are no signs that provide me with concern in this regard and many positive indicators that he has developed greater insight, a greater sense of empathy for Victims of sexual violence/disrespect and a real sense of personal responsibility of his role in acting to prevent or minimise such occurrences. He has committed to further therapy to ensure that he continues to develop healthy and respectful social relationships and attitudes and to manage his anxiety effectively.
- [15]Mr Hepperlin gave evidence at the Tribunal hearing. His evidence, under cross-examination, included the following facts and commentary:
- (a)At the date of the hearing, the Applicant had engaged in 23 sessions with him (that is, Mr Hepperlin) and the Applicant had indicated a desire to continue to engage with him in the future.
- (b)The Applicant has gained insight into his part in, inadvertently or otherwise, facilitating what happened that caused harm to the complainant. He has gained insight into the harm to the Victim and his responsibilities to prevent and try to detect issues around the safety of others, particularly those in a vulnerable position.
- (c)The Applicant did have difficulty in articulating his level of empathy and insight. During the past eight to nine months he has been successful in articulating to his level of insight and empathy. That is not to say that he failed to have insight and empathy prior to that time, but he was limited in his ability to articulate those issues.
- (d)The Applicant did not call out [the Co-offender] for his behaviours and that is because the Applicant sought to be liked by [the Co-offender]. That deficit in his personality has changed and that shortcoming is not now the case.
- (e)The Applicant has demonstrated a slight dissonance issue, in that he purports to be a leader in some contexts, but in this instance, in his dealings with [the Co-offender], he was subservient and compliant. The Applicant has obtained good moral development, but he allowed himself to get into a situation where his judgement was completely clouded by his wish to be liked and to go along with someone who was persuasive. The Applicant has fallen prey. The Applicant was not appropriately prepared to judge someone in the face of evidence that they were not acting in a suitable, respectful way. The Applicant was prepared to see the good in someone else despite evidence they are not acting in a good way. While that is confusing, it is not unusual, when people want to believe in someone else with whom they wish to befriend or remain befriended. It is not an indication that the Applicant lacks morals or the capacity to empathise. That is one of the Applicant’s area of improved insight. He was not able to detect issues of concern from the statements and behaviours of [the Co-offender] at an early stage. The Applicant has learned from this and has undertaken a lot of work, including counselling and online courses, to better understand how people can get caught up in these situations and fail to call out the bad and inappropriate behaviours of others.
- (f)The Applicant had clouded judgement and was persuaded by [the Co-offender], even though his history indicates that in other circumstances he has had trust issues. That is inconsistent but it is nevertheless still common. People have a desire to fit in and be liked and to be safe with others. He had not felt that previously as a result of his being the Victim of bullying. He was seeking a desire to connect which made it difficult for him not to be caught up in a negativity bias as a result of the actions of [the Co-offender]. He failed to exercise prudent judgement about the true character and behaviours of [the Co-offender], and he failed to call out those behaviours by indicating he no longer wished to have any contact with him. It is a non-alignment, but it is understandable, and in that regard the risk of future failure to call out bad behaviour is low because the Applicant has responded favourably to counselling and education.
- (g)The Applicant has learned about disrespectful behaviours, inappropriate language, objectifying of women and, for the better term, ‘boys club’ discussions as being unacceptable.
- (h)Mr Hepperlin was keen to ensure the Applicant did not (solely) rely upon his connection with the church as guiding his issues around behaviours to do with dealing with women. He made that statement because the church does not necessarily have a mindset that is consistent with generally accepted community expectations about gender equality. That is, merely having particular religious allegiances does not necessarily mean that you therefore have a mindset that is consistent with current and accepted community expectations.
- (i)The Applicant has reached the stage of knowing that irrespective of the circumstances, whether it is a religious context, a professional context or a personal context, he has responsibility to exercise personal judgement and call out unacceptable behaviours that are harmful or potentially harmful to others, particularly children or other vulnerable people. There has been a significant change. He would now be prepared to callout and act if called upon, in relation to those matters.
- (j)The Applicant now understands the likely deep and long lasting negative impact the actions of [the Co-offender] had on the complainant. The Applicant understands the sort of attitudes and behaviours that promote positive behaviour are important to avoid harmful environments for children and other people in a vulnerable position.
- (k)The Applicant has now completely addressed and overcome issues of concern given the extensive therapy and education process that he has undertaken. The Applicant had difficulty in feeling safe and comfortable with others and he has not always been able to form comfortable longer term relationships with others as he was growing up. While the Applicant did trust [the Co-offender], regrettably, the real issue for him was he was looking for a relationship that had been missing in his life, and someone seemingly suave and cool as [the Co-offender] was of interest to someone as young and impressionable as the Applicant. A key development for the Applicant is he is now much less focused on his own needs and is far more focused on identifying the interests and issues relevant to other people. He has undertaken a workshop process, undertaken online training programs, and read related resources. There has been educational and therapeutic work to ensure the Applicant is not to be blinded by his own neediness to want something to the point where he suspends his judgement about others. The change has come about because, in effect, the Applicant has educated himself to overcome his own needs and not to be blind to good judgement.
- (l)Mr Hepperlin is confident that the Applicant has enough insight and empathy now, and has learnt enough about himself now, not to not fall prey to situations where he wants to believe one thing because of those needs but, in fact, he can see what is actually happening and make judgement about what is happening and what he may have to do, positively, in that situation in terms of withdrawing from it, calling it out, or taking some form of decisive action. They have worked through these issues not only in relation to major criminal offending behaviour but in all a range of scenarios with an emphasis on identifying early warning signs and acting appropriately and in a timely manner.
- (m)The psychologist is confident that if the Applicant is in situations that involve children or other vulnerable people, he will be vigilant in looking for early warning signs and act appropriately.
- (n)The psychologist has identified real indicators of insight from the Applicant.
- (a)
The Applicant’s response to his work with the Clinical Psychologist
- [16]At the hearing, the Applicant gave evidence that his sessions with his psychologist has helped him to understand that he was short-sighted and unwise in having contact with the Co-offender. He understands that the actions of the Co-offender have had a traumatic and devastating effects on the complainant. He acknowledges that the Co-offender is a dangerous and terrible criminal and has taken someone’s liberty and has caused considerable physical and psychological harm to a vulnerable person. Through therapy and training, learning, and reflection, the Applicant acknowledges that his actions were irresponsible and careless. He understands that immediately upon receipt of the objectionable material, he should have reported the actions of the Co-offender, and taken the material to police to prevent further harm to the complainant. Deleting the images was not enough. As a result of his sessions with the psychologist, the Applicant says that he is now able to be more confident in challenging situations that he believes are inappropriate or harmful to others. The Applicant feels that his life has changed as a result of the insight and understanding he has learnt in dealing with his psychologist and irrespective of the outcome of the hearing has committed to receiving ongoing assistance support and counselling. He believes that he is now in a position where he can provide a safe and protective environment for others, particularly for children.
The Applicant’s further evidence
- [17]The Applicant produced favourable references and called witnesses at the hearing who spoke highly of his moral character.
The Respondent’s submissions
- [18]The Respondent provided both written and oral submissions.
Respondent’s written submissions
- [19]The Respondent provided written submissions to the Tribunal dated 27 August 2020. The relevant sections of the submissions are as follows (adopting the numbering from the original document):
Is the Tribunal required to balance risk and protective factors?
- The Court of Appeal decision in Maher[21] is often cited for the proposition that the Tribunal is required to balance risk factors against protective factors in determining whether the Applicant's case is an exceptional case. The Respondent submits that this interpretation is not correct. In Eales,[22] the Appeal Tribunal considered the decision in Maher and determined that:
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise ...
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person.
No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording "unacceptable level of risk" was made by the Court of Appeal in the Maher Case.
- Further, the Respondent submits that adopting a ‘balancing’ approach in child-related employment decisions risks the Tribunal being lead into error. The concept of "balancing" implies a weighing-up of two countervailing sets of factors. It connotes an equal distribution of weight between factors for, and factors against, the Applicant's case. The Respondent submits that when considering the factors, the Tribunal should take a qualitative rather than a quantitative approach. In the Respondent's view, applying equal weight to both sets of factors creates a risk that the Tribunal will be led into error by failing to apply the paramount principle. Given that the welfare and best interests of children are paramount, in the Respondent's view, the Tribunal must apply additional weight to any risk factors that are established.
The Human Rights Act
- The Tribunal has accepted that, when conducting a review of a child-related employment decision, the Tribunal is a 'public entity' under the Human Rights Act 2019 ('HRA') and, as such, the HRA applies.'
- Under s 58 of the HRA, it is unlawful for a public entity:
(a) to act or decide in a way that is not compatible with human rights; or
(b) in deciding, to fail to give proper consideration to a human right relevant to the decision.
- There are likely to be a number of human rights impacted by a child-related employment decision made under the WWC Act including the human rights of the Applicant and the human rights of others, relevantly in this jurisdiction, the right of every child to "the protection that is needed by the child, and is in the child's best interests, because of being a child", as provided for in section 26(2) of the HRA.
- A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is justified by the HRA.[23]
D. Is this an exceptional case?
- In determining whether this is an exceptional case, the Respondent submits that the Tribunal must:
- Having regard to each of these matters, the Respondent contends that the Tribunal can be satisfied, on the balance of probabilities and bearing in mind the gravity of consequences involved, that the Applicant's case is an exceptional case in which it would not be in the best interests of children for the Applicant to be issued with a positive notice and a blue card.
Whether the offence is a conviction or a charge[27]
- The Applicant has one (1) conviction for possess tainted property.
- The Applicant also has one (1) charge for distribute prohibited visual recordings, one (1) charge for extortion with intent to cause detriment with threat of detriment, and one (1) charge for possess tainted property. The prosecution offered no evidence in relation to these charges and the Applicant was discharged.[28] The information provided by the Office of the Director of Public Prosecutions provided that this occurred following a careful assessment of the brief and a determination that there was no prospect of conviction on these charges. This was due to a lack of evidence that the Applicant had distributed images/videos pertaining to count one (1). In relation to count two (2), the Crown determined there was no evidence that the Applicant made a demand with the intent to gain a benefit or cause a detriment.[29]
- The fact that the criminal charge has not resulted in a conviction does not, of itself, mean that there is no elevation of risk to the welfare and best interests of children. By including charges in the mandatory statutory criteria, Parliament has determined that even where charges do not result in a conviction, they can and must be considered to provide a mechanism for the welfare and best interests of children to be protected. As was noted in the explanatory notes to the Bill introducing the Act:[30]
There are several circumstances where the presence of certain charges in a person's criminal history, even without the presence of convictions, would be relevant in making decisions about a person's suitability to work with children.
- The Respondent submits that, given the Applicant's charge and the totality of evidence in this case, the circumstances raise the possibility of a risk to children such that it would not be in the best interests of children for the Applicant to be issued with a positive notice and a blue card.
The Applicant's insight into the harm caused
- The Applicant asserts that he possesses insight into the harm and suffering felt by the Victim because of the co-defendant's actions. The Respondent acknowledges that this may be a protective factor, however the Applicant has failed to fully recognise the impact of his actions, and his lack of pro-active action, on the complainant. The Applicant's submissions often blame the co-defendant for his involvement and look to shift responsibility. The Applicant appears unable to appreciate the facilitative role he played in the co-defendant's criminal behaviour.
- When discussing how the co-defendant sent him photos and videos of the Victim naked and being raped, the Applicant stated he considered it "very disrespectful and intrusive" for the co-defendant to have not asked him before sending these." The Applicant does not properly recognise how this may have impacted the complainant, or how distributing photos and videos without a person's consent may have a negative impact on wider society. The Applicant appears to focus on the detriment the co-defendant has caused to him, and how this has negatively affected his life.
- In the Respondent's view these submissions suggest a lack of insight into the seriousness of the Applicant's behaviour and why the nature of such offending and alleged offending would present a concern for child-related employment.
Transferability
- The effect of issuing the Applicant a blue card is that the Applicant is able to work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the Act, not just for the purpose for which the Applicant has sought the card. The Applicant could work with children of any age, gender, or vulnerability.
- The Tribunal has no power to issue a conditional blue card[31] and once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.
E. Conclusion
- The decision before the Tribunal is not whether the Applicant can complete his medical imaging course and ultimately pursue a career in medicine. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, the Applicant's case is an exceptional case in which it would not be in the best interests of children for him to be issued with a positive notice.
- The Respondent submits that the object of the Act and the principle that the welfare and best interests of a child are paramount support a precautionary approach to decision making in child-related employment matters.
- Overall, the material suggests that the Applicant facilitated the co-defendant's criminal offending and had sufficient life-experience and knowledge to be aware of the seriousness of the situation. Notwithstanding this, the Applicant failed to act protectively towards the complainant and contact the relevant authorities despite several warning signs indicating the danger she was in. The Applicant's behaviour suggests an inability to speak up against authority figures, even in situations which involve illegal, unethical, and dangerous conduct. The Applicant has indicated an understanding of the harm suffered by the complainant, but this is mostly in relation to the co-defendant's actions and does not include a recognition of how his own behaviour would have impacted her.
- A positive notice is unconditional and fully transferable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. The Respondent submits that the Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children.
- The Respondent submits that the Tribunal should find that this case is 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.
The Tribunal findings and decision
- [20]The Tribunal accepts the Respondent’s submissions regarding the appropriate test it must apply in this case. That is, to focus on the best interest of children. This is not a case which involves imposing punishment upon the Applicant nor is it a case where the Tribunal considers any detriment to the Applicant as a result of determining that the case is exceptional. The Tribunal is concerned about the effect on children if the Applicant has a blue card.
- [21]The Applicant’s criminal behaviour as outlined in an agreed set of facts between prosecution and defence, especially if tended as part of a sentencing process, is a more reliable indicator of the true factual situation that reflects the criminality of the Applicant than the untested allegations set out in a Queensland Police Service ‘Court Brief’, commonly known as the ‘QP9’. The Tribunal acknowledges that it must also consider allegations that did not result in a conviction.
- [22]The decision of the Tribunal is not intended to reward, or punish, the Applicant. The decision of the Tribunal is centred around the interests of children.
- [23]The Tribunal must consider whether the Applicant has gained insight, particularly into those triggers that may cause a lack of judgement, which may have a potentially adverse effect on children. The Tribunal considers whether the Applicant has addressed the triggers and has gained skills to avoid issues arising in the future. The Tribunal considers the risk factors and the protective factors. The Tribunal considers the Applicant’s lifestyle and support network.
- [24]In making its decision, the Tribunal does consider the WWC Act and, in that regard, notes that the presumption is to find that the application is not exceptional. No party has the onus of proving whether the case is exceptional. Having carefully considered the evidence, the Tribunal is of the view that this is not an exceptional case. The Applicant provided strong evidence. In coming to its conclusion, the Tribunal does so by adopting a precautionary approach to decision-making on blue card matters.
- [25]What is established on the evidence is that the Applicant did receive a video and photographs of the Victim, but he did not activate the sound associated with the video at the time. He deleted the offensive material promptly, but nevertheless did have possession of that tainted material, which led to his being charged and convicted in that regard. In this case, the Applicant’s actions are not a reliable indicator of future behaviour. What the Applicant has achieved through psychological assistance and counselling which has been extensive and ongoing, and the recommendations and conclusions of Mr Hepperlin, serve as a more reliable indicator of future behaviours. Through counselling, the Applicant has gained considerable insight into his behaviour and has a particularly good understanding of issues around protective matters, and the care of children.
- [26]The Tribunal found the evidence of Mr Hepperlin compelling. The Tribunal accepts the content, conclusions and recommendations contained within Mr Hepperlin’s Reports.
- [27]There is no suggestion that when the Applicant has interacted with children in any way that suggests that they have been placed at risk of physical and emotional harm.
- [28]The Tribunal must consider risk factors. In this case, the Applicant has demonstrated an ability to understand his lack of insight, but he has demonstrated that he is able to identify and cope with triggers, in such a way as not to pose a risk to children.
- [29]The WWC Act is administered under the principle that "the welfare and best interests of a child are paramount.[32] The paramount principle is relevant to the standard of proof required in decisions under the WWC Act. The test in Briginshaw applied to child-related employment decisions.[33] The Tribunal must consider the application on the balance of probabilities, but in doing so, it does consider the gravity of consequences involved in its decision.
- [30]In determining that this is not an exceptional case, the Tribunal does take account of the considerations prescribed by section 226 of the WWC Act and other matters as identified in this decision. The Tribunal considers its decision from the perspective that the welfare and best interests of children is paramount. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. In making decisions of this type, the Tribunal does consider the risk to children.
- [31]The Tribunal arrives at decision primarily because the Applicant has gained considerable insight into his previous behaviours, primarily as a result of having engaged in 23 sessions with the registered clinical psychologist. The Applicant has a desire to continue to engage with the psychologist, but that does not mean that he is ineligible to engage in child-related regulated employment. The Tribunal determines that the Applicant has gained insight into the harm caused to the Victim and has now developed appropriate mechanisms to fulfil his responsibility to prevent harm to others, particularly those in a vulnerable position, and to detect issues and prevent harm to others. Despite his education level and intelligence, the Tribunal determines that the adult did not have a great deal of life experience when he encountered the Co-offender and did not have the skills to appropriately deal with the Co-offender by calling out his bad behaviour, but has learned from the experience. The Tribunal determines that that the Applicant did not appreciate the risk that he might find himself in by becoming involved with a person who was to commit profoundly serious and significant criminal offending. The Applicant’s inability to recognise the seriousness of the situation involving the Victim and take appropriate action for the protection does not lead to a conclusion in this case that the Applicant will not take appropriate action for the protection of a vulnerable person in danger in future.
- [32]The Applicant did acknowledge his guilt by entering a plea of guilty to possession of tainted property, being the offending video and photographs. He acknowledged that he ought to have contacted the police. The Tribunal is of the view that if such circumstances ever arose in the future, the Applicant would bring such offending behaviour to the attention of authorities.
- [33]The Tribunal determines that there was an elevation of risk to the welfare and best interests of children due to the fact that the Applicant was charged with criminal offences that were ultimately not pursued by prosecution. The totality of evidence in this case does not lead to a conclusion that the circumstances raise the possibility of risk to children such that it would not be in the best interests of children for the Applicant to be issued with a positive notice and a blue card. The Applicant now does have the ability to recognise serious situations that might involve vulnerable people and take appropriate action for the protection of such vulnerable people in danger.
- [34]The recency of the Applicant’s offending does not, in this case, support a finding that the Applicant’s case is exceptional in which it would not be in the best interests of children to him to be issued with a positive notice and blue card.
- [35]The Tribunal determines that the Applicant can act protectively and does possess the ability to speak up against authority figures, even in situations which involve illegal, unethical, and dangerous conduct.
- [36]The Tribunal acknowledges that a blue card is fully transferable.
Publication
- [37]The Tribunal may make an order prohibiting the publication of the following (other than in the way and to the persons stated in the order):
- (a)the contents of a document or other thing produced to the Tribunal;
- (b)evidence given before the Tribunal;
- (c)information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[34]
- (a)
- [38]The Tribunal may make such an order only 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 a person; or
- (c)to avoid offending public decency or morality; or
- (d)to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- (e)for any other reason in the interests of justice.[35]
- (a)
- [39]The Tribunal formed the view that it be contrary to the public interest to identify the Applicant, the Co-offender (also described as the principal offender), and the complainant, and made orders to that effect immediately after the hearing.[36]
Orders
- [40]The orders are as follows:
- The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
- The decision of the Tribunal is to be delivered to the parties by email.
Footnotes
[1] BCS 74-75.
[2] The detail contained in the correspondence from the Director of Public Prosecutions is, in a non-substantive issue, inconsistent with the ‘Details of Trial, Sentence or Other Dealings by a Court’ as contained in the ‘Verdict and Judgment Record’ [BCS 55], which indicated that the Applicant was charged with four offences and prosecution offered no evidence in relation to the first three. The offence not referred to in the correspondence from the Office of the Director of Public Prosecutions was a charge of possess tainted property relating to a period between 16 January 2018 and 1 February 2018. The consistent record relates to the fact that the Applicant did enter a plea of guilty to the charge of 'possess tainted property’ relating to an offence that occurred on 30 January 2018.
[3] BCS 73.
[4] BCS 52-54.
[5] BCS 1.
[6] BCS 6.
[7] Working with Children (Risk Management and Screening Act) 2000 (Qld), s 5.
[8] WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].
[9]Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VR 1, [10].
[10]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[11] Dated 15 April 2020.
[12] Applicant’s further statement of evidence, page 1.
[13] Ibid, page 6.
[14] The report was provided by way of update to the original report, which was in substantially the same terms, and dated 13 February 2020.
[15] Page 1.
[16] Page 2.
[17] Ibid.
[18] Pages 3-4.
[19] Pages 4-5.
[20] Pages 5-6.
[21] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[22] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].
[23] Human Rights Act 2019, s 8.
[24] WWC Act, ss 6(a), 360.
[25] Per Philippides J. in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 applying s 102(5) of the CCYPCG Act (prior to amendments and renumbering of the CCYPCG Act in 2010); Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16].
[26] Human Rights Act 2019, s 58(1)(b).
[27] WWC Act, s 226(2)(a)(i).
[28] Criminal history, BCS 22.
[29] BCS 74 - BCS 75.
[30] Explanatory Notes, Commission for Children and Young People Bill 2000, 11.
[31] RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331, [27].
[32] WWC Act, s 6(a).
[33]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
[34]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 (1).
[35] Ibid, s 66(2).
[36] On 28 August 2020, the Tribunal made the following order: “The Tribunal orders that pursuant to s 108 of the Guardianship and Administration Act 2000 publication of the name of the applicant, the principal offender, and the complainant is prohibited.”