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

[2020] QCAT 506

VDG v Director-General, Department of Justice and Attorney-General[2020] QCAT 506

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL  

 

CITATION:

VDG v Director-General, Department of Justice and Attorney-General [2020] QCAT 506

PARTIES:

VDG

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML388-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

15 December 2020

HEARING DATE:

3 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that VDG’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 this is not an exceptional case.
  2. The Tribunal   prohibits the publication of the names of the Applicant and any non-expert witnesses.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 353, s 354, s 358

Baker v The Queen (2004) 223 CLR 513

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

D and Department for Community Development [2007] WASAT 154

Re FAA [2006] QCST 15

R v Kelly [2001] 1 QB 198

RPG v Public Safety Business Agency [2016] QCAT 331

GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

APPEARANCES &

REPRESENTATION:

 

Applicant:

G Del Villar QC, instructed by J Feng ,solicitor

Respondent:

N Rajapakse


REASONS FOR DECISION

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (hereafter ‘Blue Card’), made on, to issue a negative notice.
  2. [2]
    VDG had applied for a Blue Card based on it being a requirement for the university course he is enrolled in.
  3. [3]
    As part of their application processing Blue Card Services undertook a criminal history check in relation to VDG. This check disclosed the following criminal history: Film person’s private parts without consent x 1.

On 1 February 2017 at the Downing Centre Local Court in New South Wales the applicant entered a plea of guilty to the charge referred to in the above paragraph. The applicant was placed on a bond for 18 months with conditions requiring him to continue to accept treatment from a doctor or a psychiatrist including attending appointments as directed and accepting recommended treatment.

  1. [4]
    In New South Wales this offence is classified as a disqualifying offence under schedule 2 of the Child Protection (Working with Children) Act 2012 (NSW). A comparable offence in Queensland would be observations or recordings in breach of privacy under section 227A(2) of the Queensland Criminal Code. The Queensland equivalent offence is not classified as a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’ or ‘Working with Children Act’).
  2. [5]
    Post his conviction the applicant appealed to New South Wales Civil and Administrative Tribunal (here after NCAT) after the NSW Children’s Guardian’s decision to refuse VDG a working with children clearance. The applicant sought an enabling order  pursuant to  section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW).
  3. [6]
    On 15 May 2019 NCAT upheld the applicant's appeal and granted the applicant an enabling order. This order declared that VDG was not to be treated as a disqualified person for the purpose of the Child Protection (Working with Children) Act 2012 (NSW). The respondent in that appeal, the New South Wales Children's Guardian, was ordered to grant the applicant a clearance and there was  also a non-publication order made.
  4. [7]
    Subsequently,  Queensland’s Blue Card refused VDG’s application for a Blue Card and gave reasons for this refusal. These reasons set out in detail the applicant’s NSW criminal history, the appeal to NCAT, the evidence of the applicant in relation to the event (prior to the criminal incident)  and also summarised  the applicant’s submissions that were made to Blue Card.
  5. [8]
    On 6 June 2019 the applicant provided further written submissions  and several references. Blue Card included in their reasons information about whether the referees appeared to know anything about the applicant’s criminal offending. The reasons included references to a report from Dr Satish Dayalan and a report by Dr Olav Nielssen (dated 26 November 2016). Other materials referenced were  correspondence from the applicant’s Queensland tertiary institution; the NSW Police brief; the NSW Magistrates Court order; the applicant’s academic transcripts from a degree completed in NSW;  a certificate of completion for the “This Way Up” course and the NCAT order. The reasons stated that although  the applicant’s NSW offence is not categorised as a serious or disqualifying offence under the Act, Blue Card is  required by the legislation to take this into account. Blue Card  stated that  all offences on a person's criminal history are considered in order to assess a person’s  eligibility to hold a Blue Card, not merely those offences that were defined as serious or disqualifying.
  6. [9]
    Ultimately it was the decision of the Director of Blue Card Services that the best interests of children would not be served if the applicant was granted a Blue Card at the time the decision was made.  Reasons given for this included there being  insufficient evidence to displace the risks presented by the applicant's criminal history at this time. It was stated that Blue Card’s role was not to impose additional punishment upon the applicant but to focus on the best interests of children.

The ‘Blue Card’ legislative framework

  1. [10]
    Employment screening for child-related employment is dealt with in chapter 8 of the Act. The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [11]
    A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [12]
    As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied  it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’?

  1. [13]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [14]
    Section 226(2)  of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [15]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [16]
    The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

The applicant’s evidence and submissions

  1. [17]
    VDG’s evidence was written and oral. He was required to hold a Blue Card to continue his enrolment in his current university course. The applicant provided submissions  to Blue Card in February 2019, May 2019 and June 2019. His application for a Blue Card was refused on 20 September 2019.

Background

  1. [18]
    The applicant was born overseas, and his  parents separated when he was very young. He described having no memory of his father. VDG’s mother  moved to Australia when he was seven and he remained in the care of his grandparents in his country of origin. He then moved to Australia at age 11 to live with his mother and stepfather. His mother had separated from his stepfather when he was 15. He described having a difficult relationship with his mother due to her  high expectations  of him. The applicant said that he loved his mother greatly and believed that that she had worked very hard  for his sake, however she in turn put very high expectations on him. In 2013 he says his mother's health had deteriorated and this caused him a great deal of stress.
  2. [19]
    Around this time his grandfather, who raised him from the ages of seven to 11, died suddenly. VDG  was shocked and devastated. He travelled  back to his country of origin for the funeral  and when he got back to Australia he had fallen behind in his activities. In  hindsight  he now sees that his grandfather’s death had a long-lasting impact on him.

Events leading to  his offending

  1. [20]
    As his grades fell  after his grandfather’s death, his mother’s response was to tell him that he needed to keep studying and pushing harder. He said his grades eventually lifted but he started turning to thrill seeking activities e.g. if there was a pen provided to fill out a form, he would take it instead of giving it back.
  2. [21]
    VDG admitted taking a picture with his mobile phone of a woman walking in the street. He said it gave him an adrenaline rush as he knew his mother would not approve. He continued to take pictures of women with his phone. He said after he took these photographs,  he never looked at them again. The applicant said that originally, he felt that he was not  doing any harm, he was just getting little rush each time he took a picture. In the final year of his first degree, at the end of his exams, he felt his pressure increasing as he wanted to undertake an honours year, he had a part time job at a shopping centre in Sydney and he also had a girlfriend. This person remains his girlfriend to this date and gave evidence at the hearing.
  3. [22]
    The applicant stated that on the day of the offence he saw a woman bend over and “her skirt lift up quite high” and he put his phone under her dress and took pictures. He was reported to security and taken to the police. He said it was only then did he realise how harmful his actions were.  The applicant did not  request a lawyer and made admissions to the police. The police confiscated his phone and found other photographs of women's legs, some close and some from a distance. There were also pornographic images on his phone that he had  downloaded or received from friends. His evidence indicated that all these photographs were young women and not girls.
  4. [23]
    He said that his mother and girlfriend expressed disappointment to him as a result of his offending.  He felt ashamed and depressed  and his General Practitioner referred him to a psychiatrist, Dr Satish Dayalan. A report from Dr Dayalan was included in the material before the Tribunal  . He saw Dr Dayalan for a number of sessions. He said he did this despite his being aware of  a cultural perception that seeing a psychiatrist  was something that only weak people do. VDG was diagnosed with depression and anxiety. Dr Dayalan discussed different treatments with him, including an online cognitive behavioural therapy programme.  The applicant has now completed that course,  however  initially he completed a couple of sessions  and then left it for some time.
  5. [24]
    The applicant  was also assessed by Dr Olav Nielssen, a forensic psychiatrist, for the purpose of legal proceedings. By this  time VDG had made changes in his life:  he was exercising and socialising with friends; he apologised to his mother and started a better form of communication with her. He said that  he now knows that it is  normal to feel stressed or sad and “it's OK to speak up and seek help”.
  6. [25]
    VDG apologised to his girlfriend, she remains his girlfriend and he has become more open with his feelings with her and with others. He accepted responsibility for his behaviour; he told the police what he did; he pleaded guilty and he now saw that his behaviour was unacceptable; it was illegal; it was a violation of the women involved and  it was not harmless. The applicant  gave evidence that  his behaviour affected his relationship with his mother and his girlfriend. He was grateful for them standing by him.
  7. [26]
    He was successful in appealing his case to NCAT and he was granted a clearance to work with children  in NSW on 15 May 2019.

Evidence (written and oral)

  1. [27]
    In the life story he provided to the  Tribunal   the applicant provided his work history. From 2011 to 2014  he worked as a private tutor and studied maths and science.  He had also worked in the hospitality industry as a waiter and as reception staff at a medical practice. He was also employed as a research assistant.
  2. [28]
    The applicant  was required to defer his current studies due to lack of a Blue Card. It was his evidence  that he was very successful in his chosen degree and had a Grade Point  Average  of six out of a possible seven for his subjects. VDG has  volunteered in a children’s music programme run by  a church in New South Wales. During 2020 he had been living in New South Wales  and looking after his mother.
  3. [29]
    In his evidence in chief VDG stated that he had now developed a greater understanding of how damaging his behaviour was to the victim. Under cross examination the applicant at times seemed to falter when asked to explain why he took the photographs, beyond it was an adrenaline rush or that he liked looking at women's legs. VDG was also cross examined about evidence that related to  a call his stepfather had made to a helpline in relation to what he considered to be possible suicidal ideation being experienced by VDG. It was noted this was not followed up by NSW Mental Health authorities and did not form any significant part of his psychiatric history based on the evidence before the Tribunal .
  4. [30]
    Also discussed  under cross examination  was an incident whereby VDG, then aged approximately 17 years, went to a person's house with his mother. It was alleged that he had tried to or had punched that person. He said that this was a person who had defrauded his mother and he had gone with her to assist her in having money returned to her. This incident did not lead to any charges or conviction.
  5. [31]
    At the time of the hearing the applicant was approximately 25 years and his index offending had occurred at the age of 21.
  6. [32]
    During cross examination it was raised with the applicant that the females he was taking photographs of were possibly  girls (i.e. someone under the age of 18 years). He denied this and said that, although he could not  attribute an exact age to them, in particular the victim of his offending, he was convinced that they certainly were not young girls.
  7. [33]
    The applicant repeatedly said that he  took the photograph for an adrenaline rush. When asked by me what he did for an adrenaline rush now he said that he had healthy mechanisms to cope with stress and he no longer required such an adrenaline rush.
  8. [34]
    I also asked him why he was placing so much emphasis on having not viewed the photographs once he had taken them. The offence was not viewing the photographs, rather  he had  been charged with the actual photography. VDG was unable to explain why he thought this was important beyond it was the taking of the photograph that gave him the thrill or adrenaline rush.
  9. [35]
    He said that after seeking treatment from his psychiatrist he is now no longer in need of adrenaline seeking activities such as the taking of the photographs. He felt that he had grown up, he  now had other healthier methods of coping with stress such as exercise and talking to family and friends.

Other witnesses

PPP

  1. [36]
    The applicant called his current girlfriend, PPP, as a witness.  She said that she was aware of the offences and that the applicant was now more mature and had other ways of coping with stress than  he did at the time of his offending.

EJM

  1. [37]
    VDG also called as a character witness a long-term friend of his, EJM. This witness  had known the applicant since their teenage years. EJM stated that he felt that the applicant was certainly remorseful for what he had done. When pressed in cross examination as to how he knew this, the witness was unable to clearly articulate  his  reasons. However, he did say that he had the feeling that the applicant  now understood more than just that he had been in trouble; he felt that  VDG  understood the impact his behaviour had on the victim.

Dr Nielssen

  1. [38]
    The applicant called a forensic psychiatrist, Dr Nielssen, as an expert witness. Based on  the witness’s qualifications in forensic psychiatry  and in the absence of  objection from the  respondent  I accepted  Dr Nielssen’s evidence as that of an  independent  expert. He was aware of his duties to the Tribunal   as a witness and  advised that he had given  evidence many times previously in both Tribunals and higher courts.
  2. [39]
    He first saw VDG on 26 November 2016  in order to prepare a psychiatric report for the applicant. He said that he received the full police facts of VDG’s offending. There was also a second report dated 24 February 2019 which was provided for the purposes of the NCAT review. Additionally, there was a third report dated  29 March 2020 and this was for the purposes of the current proceedings.
  3. [40]
    Dr Nielssen gave oral evidence at the NCAT hearing and (via telephone) in these proceedings. During his evidence in chief and in response to cross examination the doctor stated that he had read the police facts prepared in relation to the charge of filming a person without consent and a report from Dr Dayalan. He had also spoken to the applicant's mother,  who had  accompanied VDG to the first interview. The witness had also reviewed  Blue Card’s reasons for their decision.
  4. [41]
    He confirmed that at the time of the first interview he knew that the applicant had been charged with filming a person without consent. VDG applied to have the matter dealt with under section 32 of the Mental Health (Forensic Provisions) Act  1990 (NSW). The basis for this application was the impact on the  applicant’s functioning caused by a depressive illness. Dr Dayalan had diagnosed the applicant as suffering from this  illness. It was Dr Nielssen’s understanding that this application was not successful, however the matter’s outcome was that  no conviction was recorded.
  5. [42]
    Dr Nielssen described VDG as having made considerable progress. The applicant  had devoted himself to his studies; he had worked as a researcher and he was now accepted to study in another degree in Queensland. VDG had been forced to defer his studies in this degree due to the requirement that he  possess a current Blue Card.
  6. [43]
    On the topic of VDG’s history the witness described the applicant as a shy adolescent and said that perhaps he had missed out on aspects of his social development because of the pressure to study. He thought that  there was emergence of depression in the last year of high school and that VDG had his first contact with mental health services when he was seen by his treating psychiatrist after he was charged with the index offence. He confirmed that the treatment was a “talking therapy” and a self-guided online course.
  7. [44]
    Dr Nielssen  said he was well placed to speak about the efficacy of such courses as he had been the author of one of them. His course was described as very similar in nature to the one undertaken by VDG. It was  his opinion that  the applicant suffered from no psychosis; no abnormally elevated mood; no obsessive-compulsive disorder; only occasional anxiety symptoms which VDG could now identify as a result of the course and VDG could now manage those symptoms himself.
  8. [45]
    He said the applicant’s physical health had improved with better diet and more physical activity. VDG did not have any head injuries or neurological disorders and he was not taking any regular medication. There was no history of substance abuse. The applicant had tried cannabis once but did not abuse any other drugs or medication; he did not gamble, and he rarely drank.
  9. [46]
    He said that the applicant described himself as more goal oriented now than he had been in the past.
  10. [47]
    Dr Nielssen formed the view that the applicant's mother had placed enormous expectations on her son in the past and that she now realised that, and she had addressed those behaviours. He said this certainly would have relieved some of the pressure on her son.
  11. [48]
    When he examined VDG for the third time in March 2020 he found that VDG was no longer the overweight, post adolescent he appeared when first interviewed in 2016. The applicant was not anxious or depressed and was more mature and confident.
  12. [49]
    It was his evidence that VDG  did not meet any accepted criteria for the diagnosis of a psychiatric disorder and therefore required no ongoing treatment for one.
  13. [50]
    VDG had no developmental disorder; acquired brain injury; psychotic illness; severe mood disorder or any other kind of psychiatric disorder. There was no history of antisocial conduct and he did not believe there was any kind of disorder or an abnormal sexual interest.
  14. [51]
    When he first saw VDG in 2016 he was suffering from  a depressive illness, as diagnosed by Dr Dayalan. Subsequently the  symptoms of depression had abated with the help of evidence based counselling and  self-guided cognitive behavioural therapy. Dr Nielssen indicated that in most cases  this type of treatment was more effective than a  pharmacological approach.  At the two more recent interviews VDG did not appear depressed and no further treatment was required.
  15. [52]
    He felt that VDG had an extremely low likelihood of any repetition of the offending conduct. This was due to  the applicant having been immature at the time of his offending and since that time his emotional maturity  and his state of mind have very much improved.  Dr Nielssen described that  the legal proceedings had an extremely adverse effect on VDG. He described him as a highly intelligent man and that VDG knew what would happen to him if he ever repeated his offending behaviour. The combination of the  applicant’s intellect and  understanding  acted as  huge deterrents to him ever committing a similar offence.
  16. [53]
    Dr Nielssen  said the offending could be characterised as adolescent, post adolescent or immature behaviour. He said that it  not unusual behaviour in a day and age where many people have telephones and use them for sexual outlets or thrills. There is no psychosexual disorder associated with the behaviour in VDG’s case.
  17. [54]
    The  expert witness stated that the applicant’s depression may not have caused his offending in the first place. In response to questioning about what he thought may have caused the offending, Dr Nielssen said VDG may well have just been immature. He said the applicant was in a completely different stage of life now. He opined that  at this stage VDG was a much more mature 25-year-old man, in a steady relationship with good coping skills and good mechanisms. The applicant had developed very good skills for  coping with any stress that he  needs to deal with. Dr Nielssen said that it was his professional opinion that VDG presented no risk whatsoever to children.
  18. [55]
    Dr Nielssen made the following comments on the statements (these are outlined in the previous paragraphs of these reasons) i.e.  that he did not think that the applicant was at risk of committing any other offence of this kind, let alone against a child  and that  the depression the applicant  suffered from may not have necessarily been linked to the offending behaviour. 

Yes?Yeah, of course.  I mean, the offending behaviour, as I see it, is related to adolescence with, you know, mobile phones with cameras.  You know, like, it’s – there’s a lot of this sort of stuff going on all over the place, sadly, you know, like, I mean, you know, I’d like my teenage children to have the Nokia 3220 with no camera.  You know, that’s what – you know, I mean, so that really – so that’s how I see the offending rather than being related to VDG’s deviant interests or anything.  It’s his immaturity.  And now he’s a much more mature person and there’s a lot at stake.  You know, he’s a guy who has done really well.  He has got into his course (deidentified).  He’s – you know, he’s done really well at uni and now he has sort of grown up a lot he has – we know that adolescent males – adolescence lasts well into the twenties.  You know, you only have to think of the NRL to see that, you know, and driving issues.  I mean, that’s why I think he would be very unlikely to reoffend.  And the other thing he doesn’t have the usual risk factors for offending, which is, you know, substance abuse disorder, that’s not an issue at all.  He hasn’t got antisocial peers.  You know, he’s not, you know, involved in the dark web or, you know, anything sort of sinister.  He’s – and I suppose the third thing to say is that people charged with any kind of sexual offending – and this is sort of like right on the fringe of that, it’s more like adolescent offending I would call it – have a very low rate of recidivism anyway.  You know, the – so all in all, I can say quite confidently that he is unlikely to ever reoffend.[9]

Applicant’s written submissions post hearing

  1. [56]
    It is submitted that the Tribunal   should set aside Blue Card’s decision to issue a  negative notice because, among other things, the offence committed by VDG in October 2016 did not involve children or violence; VDG has not reoffended; the expert evidence makes it plain that he poses no risk to children and is highly unlikely to reoffend; and NCAT has already been satisfied that he does not pose a risk to the safety of children and has decided that he should be granted the equivalent of a Blue Card under that State’s legislation.
  2. [57]
    The applicant made submissions on the relevant legal framework, in particular section 221 of the Act which was described as a key provision (footnotes omitted).It was submitted that this section provides that if a person has been charged or convicted with an offence other than a ‘serious offence’, the respondent must issue a positive notice 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 event, the respondent must issue a negative notice.10
  3. [58]
    The Act does not define what is meant by an ‘exceptional case’. The authorities demonstrate, however, that each case must be decided on its own facts.
  4. [59]
    Further, in making the decision, the decision-maker must have regard to the matters specified in s 226(2) of the Act. These matters include the following:
    1. (a)
      whether the person has been convicted or charged;
    2. (b)
      whether the offence or alleged offence is a serious offence, and if it is, whether it is a disqualifying offence;
    3. (c)
      when the offence was committed;
    4. (d)
      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, the court’s reasons for its decision; and
    5. (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.

Relevance of the Human Rights Act to the proceedings

  1. [60]
    As requested by the Tribunal   submissions were made on the relevance of the Human Rights Act 2019 (Qld) (‘the HRA’) to these proceedings. It was submitted that  the Tribunal   is  a public entity within the meaning of the HRA and section 58 of the HRA makes it unlawful for a ‘public entity’ to act or make a decision in a way that is not compatible with human rights; or in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  2. [61]
    However, the applicant’s submissions went on to state section 108 of the HRA relevantly provides:
    1. (a)
      This Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.
    2. (b)
      However, this Act—
      1. does not affect proceedings commenced or concluded before the commencement; and
      2. does not apply to an act, or decision made, by a public entity before the commencement.
    3. (c)
      The commencement of the HRA was 1 January 2020.  VDG’s review, however, was commenced on 17 October 2019.
    4. (d)
      In accordance with s 108(2) of the HRA, that Act therefore does not affect the proceedings. There is no further need to consider it.

Relevance of  NCAT’S decision

  1. [62]
    It was submitted that the decision of NCAT in DQD v Children’s Guardian [2019] NSWCATAD 84 (‘DQD’) was not binding on this Tribunal  . However, it was submitted that this is a decision that should be considered  persuasive as the issues that it considered to be relevant to the  New South Wales legislative scheme are like the ones in the Queensland legislative scheme. Therefore, the issues that NCAT had to determine, together with the evidence it heard, have a large degree of commonality with the issues in these proceedings.
  2. [63]
    DQD was concerned with the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The NSW legislative framework was set out fully in the submissions.
  3. [64]
    Section 3 of the WWC Act provides that its object is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances.20
  4. [65]
    Where an enabling order is sought, s 28(7) of the WWC Act provides that it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. Section 28(7) of the WWC Act provides that that standard of  proof is on the balance of probabilities. The relevance of this to these proceedings is that the applicant has met this standard and discharged the onus in the NSW proceedings. In these proceedings no party bears any specific onus.
  5. [66]
    In summary paragraphs 22 to 38 of the applicant’s written submissions filed in the Tribunal   on 1 September 2020 stated as follows:

In determining an application under s 28(1), NCAT must have regard to certain matters in s 30(1) of the WWC Act. These include:

  1. (a)
    the seriousness of the offences with respect to which the person is a disqualified person
  2. (b)
    the period since those offences or matters occurred and the conduct of the person since they occurred
  3. (c)
    the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim; and
  4. (d)
    any matters the Children’s Guardian considers relevant.

NCAT cannot, however, make an order which has the effect of enabling a person (‘the affected person’) to work with children in accordance with the WWC Act unless it is satisfied under s 30(1A) that:

a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work; and

it is in the public interest to make the order.

Further, unless the disqualified person proves that he or she is not a risk to the safety of children, the matters under s 30(1A) do not arise.

The offence of which VDG was convicted was an offence specified in Schedule 2 to the WWC Act. He was therefore a disqualified person.

In order to obtain an enabling order, he had to satisfy NCAT that, on the balance of probabilities, that he was not a risk to the safety of children. He did so.

In addition, NCAT had to consider the matters under s 30(1A) of the WWC Act. It was also satisfied of those matters and made an order that the Children’s Guardian was to grant VDG a WWC clearance.

The objects and structure of the WWC Act in New South Wales show a close similarity with features of the Act here. Both are concerned with risks to children’s safety and well-being; both establish a clearance regime for working with children; and both require a negative decision on clearance if specified offences have been committed. Moreover, the evidence in both proceedings is almost identical. These factors mean that this Tribunal   should give the findings of NCAT about VDG considerable weight. That is particularly so because in some respects it is harder for a disqualified person to obtain orders under the WCC Act [sic] than under its Queensland equivalent: under the latter VDG does not bear the onus of proving that he does not pose a risk to the safety of children; nor does this Tribunal   have to be satisfied that a reasonable person would allow his or her child to have direct, unsupervised contact with VDG before it can set the Respondent’s decision aside.

Why the decision should be set aside

  1. [67]
    The applicant’s submissions set out 10 reasons why the decision should be set aside. These are summarised below (footnotes omitted):
    1. (a)
      First, the offence of which VDG was convicted, while morally reprehensible, is not a serious offence or a disqualifying offence under the Queensland legislation.
    2. (b)
      the offence did not involve violence.
    3. (c)
      contrary to the respondent’s oral submissions, the offence did not involve a child.Further, NCAT found that the victim was an adult, although it could not identify her exact age.
    4. (d)
      the offence took place almost four years ago and VDG has not committed any offences since. The respondent has not alleged otherwise.
    5. (e)
      VDG pleaded guilty to the offence and cooperated with the police.
    6. (f)
      The expert evidence demonstrates that there is a very low risk of VDG reoffending. The psychiatric evidence for VDG was provided by Dr Olav Nielssen, a psychiatrist who had worked in the sex offenders’ unit at Long Bay Prison for 15 years, among other places, and who was well-acquainted with cognitive behavioural therapy. He prepared three reports on VDG: one dated 26 November  2016; one dated 24 February 2019; and the last dated 29 March 2020. Dr Nielssen’s two most recent reports make it plain that VDG’s offence was committed when VDG was very immature and occurred when his social judgment was affected by the presence of a depressive illness and several external stressors. Dr Nielssen stated that VDG does not have features of a psychosexual disorder associated with an increased probability of committing further offences of a similar nature. It was his view that the applicant does not suffer from depression or any psychiatric disorder and does not require further treatment. The reports express the view that VDG is very unlikely to reoffend. The  Tribunal   should ignore any submission that Dr Nielssen’s opinions should be discounted because he was not aware of the other photographs on the applicant’s telephone as this cannot be sustained. Dr Nielssen had read the police facts sheet.46 That document referred to the presence of photographs of other women on VDG’s telephone taken from a low angle or under tables. Dr Nielssen, in re-examination, confirmed that he had considered the police facts sheet in preparing his reports. Moreover, the respondent’s solicitor did not ask Dr Nielssen if the other photos would have led him to change his opinion, and it is plain from his evidence before NCAT that they would not have. The respondent has provided no expert evidence to contradict that of Dr Nielssen. The respondent did not make use of the power in s 335 of the Act to obtain a report on VDG’s mental state. The conclusions expressed by Dr Nielssen should therefore be accepted.
    7. (g)
      VDG is aware of the wrongfulness of his actions. He has expressed remorse and is ashamed of what he has done. The applicant’s oral evidence confirmed these points. When asked about his views on the impact of his offending on the victim VDG stated that what he did was traumatic to the victim, was socially unacceptable, and was a violation of her privacy. He also said that she would have been scared. The applicant’s other witnesses gave evidence that they believed that the applicant has displayed remorse for his offending.
    8. (h)
      VDG has demonstrated that he can work with children without posing any threat to their safety or wellbeing. He has previously tutored high school students and he currently volunteers at a church in Sydney. This  is a program designed to teach fine motor skills, language, imagination and mathematical skills to young children through music. No complaint about his conduct in those settings has been made.
    9. (i)
      NCAT found that VDG posed no risk to the safety of children and had a very low risk of repeating the offending conduct. It made an order that VDG was not to be treated as a disqualified person under the WWC Act and was to be granted a WWC Act clearance. In reaching those conclusions, NCAT considered (among other things) the police facts sheet, the first two reports of Dr Nielssen, the written reports of Dr Dayalan and the other relevant material. Further that Tribunal    also had the benefit of observing VDG and Dr Nielssen give evidence under cross-examination. This Tribunal    could  be satisfied that as there is overlap on the evidence  and that similar issues had been rigorously tested  in NCAT  the  Tribunal   should find  that VDG poses no risk to the safety, interests or wellbeing of children.
    10. (j)
      The NSW magistrate imposed a good behaviour bond for 18 months and no conviction was recorded. The conditions of the good behaviour bond were that VDG continue to accept treatment from Dr Dayalan or another psychiatrist, attend appointments as directed and accept recommended treatment. Dr Dayalan did not recommend that VDG undergo treatment for being a sexual offender as suggested by the respondent. He instead recommended that VDG undertake a course on mindfulness based  cognitive behavioural therapy. VDG completed the first one third of the course in January 2017. He intended to discuss his progress with Dr Dayalan before commencing module 3, he completed the course in early 2019 and he  then saw Dr Dayalan again. Dr Dayalan was of the view that VDG no longer needed treatment. On the issue of the non-completion of the modules in a timely manner, Dr Nielssen, who was  the creator of a very similar course, gave evidence that many persons experienced improvement after the first one to three modules. He thought this was so in the applicant’s case. It was submitted that any non-compliance with the good behaviour bond was ultimately remedied by completion of the course and this does not overshadow the other factors that demonstrate that VDG does not pose any risk to children’s safety, interests or wellbeing.
  2. [68]
    Accordingly, the Tribunal in these proceedings should not find that this is an exceptional case under s 221 of the Act. It should instead set aside the decision of the respondent.
  3. [69]
    Mr VDG should not be further punished for the offence; he deeply regrets this offence and has taken all steps to prevent this reoccurring  and the evidence of the  expert  is that  he is not going to repeat this behaviour.

Non-publication order

  1. [70]
    The Tribunal   has asked the parties to address whether it should grant a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal   Act 2009 (Qld) (‘QCAT Act’). It was the applicant’s submission that such an order is necessary to protect confidential information and, in any event, is in the interests of justice.i
  2. [71]
    Many of the documents submitted and relied on by VDG during the process for a Blue Card were personal and confidential in nature. Those documents included several psychiatric reports as well as reports by the NSW Department of Family and Community Services outlining an alleged event with most of the details redacted. Some of the reports discuss his sexual and relationship history, and his earlier depressive illness. Such material would not normally be made public.
  3. [72]
    VDG seeks to become a health professional  in the future. Regardless of the outcome of the review, if the details of this case were to be published, that may pose a risk to his reputation and affect his chances of obtaining employment and subsequently working in his chosen field. It would not be in the interests of justice for that to occur.
  4. [73]
    The Tribunal   should therefore make an order prohibiting the publication of information that may enable VDG to be identified.

The respondent’s written submissions

  1. [74]
    The respondent, like the applicant, made submissions on the  legal frame work and relevant issues including that the Tribunal must be guided by the principle under which the Act must be administered i.e. that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing (original footnotes from submissions omitted).
  2. [75]
    It was submitted that the term 'exceptional case' is not defined in the Act. What is an 'exceptional case' is a question of fact and degree to be decided in each individual case, having regard to ‘... the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.’[10]
  3. [76]
    Further reference was made to section 226 of the Act in the context of a charge or a conviction as has occurred in this matter. This section does not present an exhaustive list of considerations. The respondent submitted that the paramount principle  should be used by the Tribunal  to inform the standard of proof required in decisions under the Act.
  4. [77]
    Essentially the respondent submits, given the paramount principle and the nature of decisions under the Act, the gravity of the consequences for children is what is the important consideration  i.e. that is, if a working with children clearance were to issue what would be  the potential consequences for  children. Any consequences, in terms of prejudice or hardship to the applicant, are not relevant in child-related employment decisions. The potential consequences for children, however, of issuing a working with children clearance are significant and, as such, the Tribunal ought to require cogent evidence to establish, on the balance of probabilities, any facts asserted in favour of the Applicant. This approach is consistent with the reasons outlined by the Appeal Tribunal in Masri.[11] In that case the QCAT Appeal Tribunal referenced the paramount principle in holding that this approach is consistent with the Briginshaw test and ought to be employed "bearing in mind the nature of the reviewable decision".[12]
  5. [78]
    The respondent made further submissions stating that the decision of Maher[13] is often cited in support of 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 submitted that this interpretation is not correct. In Eales,[14] 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.

  1. [79]
    Further, the respondent submits that adopting a "balancing" approach in child-related employment decisions risks the Tribunal being led 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.[15]
  2. [80]
    The respondent’s submissions on the Human Rights Act 2019 (Qld) ('HRA') were that when conducting a review of a child-related employment decision, the Tribunal   is a 'public entity' under the HRA  and, as such, the HRA applies. The respondent did not reference section 108 of the HRA nor did the respondent make a submission about the commencement date of these proceedings. Rather the submission appeared to assume that the HRA did apply despite the proceeding having commenced in 2019 before the legislation came in to force.
  3. [81]
    It was submitted that looking at  each of the relevant considerations, 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 children’s best interests for the applicant to be issued with a working with children clearance and blue card.[16]
  4. [82]
    The respondent quoted extensively from the NSW Magistrates Court’s reasons in VDG’s criminal  matter. It was submitted that the Court's reasons indicated the serious nature of the applicant's offending. The respondent pointed out passages that showed outstanding concerns in relation to the applicant's mental health at the time of sentencing. Further, it was submitted that the sentencing Court did not indicate any view in relation to whether the applicant should be permitted to work with children.

Other Relevant Matters

Photographs

  1. [83]
    The respondent raised concerns about the applicant's patterns of behaviour i.e. the material before the Tribunal indicates that the applicant's offending on 31 October 2016 was not the first and only time, he had exhibited such behaviours. Police noted the applicant had numerous other photographs on his telephone depicting women wearing short or tight dresses, and the photographs were taken from low angles or under a table. Some of the photos appeared to be taken at the applicant's then university and in his suburb. The telephone also contained adult content. The applicant admitted  in his life story that he took "more pictures" of women on his phone and, in some instances, multiple images of the same women, which gave him an adrenaline rush. The relevance of this information to the Tribunal was that the number of photographs on the telephone indicated that this was not a one-off event. It was submitted that this suggested the applicant had antisocial behaviours. It was also submitted that as the applicant was not able to judge the ages of the people, he was photographing it was not possible to rule out that he had been photographing teenage girls as well as adult women. Submissions were made in relation to the inconsistencies in the applicant’s evidence at the hearing including his inability to exactly define the age group that his victim fell into. It was submitted that this information, when taken in concert with the other information provided and filed evidence, indicated that the applicant was unsuitable to be granted a clearance to work with children.

Material from the NSW Department of Family and Community Services

  1. [84]
    This material contained detail of a notification of concern about the applicant's mental health including possible suicidal ideation. It was indicated that these  emotions were  at the time of the applicant feeling under pressure from his studies for his high school certificate. It was submitted that the applicant had stated that he completed an online course consisting of six modules for depressive anxiety conditions and the respondent indicated that this was a self-directed course without professional intervention.  There was the suggestion that this was not enough treatment to  establish a strong response to  the  management of stress. The respondent submitted that the concern raised by the material from the NSW Department  of Family and Community Services suggested the applicant may not have appropriate strategies to manage stress and therefore would support a finding that the applicant's case was an exceptional case.

Management of the applicant’s mental health

  1. [85]
    The respondent’s submissions under the heading of whether the applicant's mental health was effectively managed made note of the applicant's statement that he was engaged in thrill seeking activities, that it was this behaviour that was the subject of the applicant’s criminal conviction (no conviction recorded). The respondent also made submissions about the applicant’s past  suicidal ideation. The evidence was that he suffered mental health issues as a result of his upbringing and stress from a desire to impress his family. Submissions were made in relation to Dr Dayalan’s report of 17 November 2016 which discussed the applicant's reluctance to trial psychiatric medication and that the recommendation made to him was an online course of mindfulness. The applicant was described as partially receptive towards this form of treatment.
  2. [86]
    Dr Nielssen’s report of 6 November 2016 referred to  diagnosis of a depressive illness for the applicant. The offending was described as a form of stress release. It was recommended by Dr Nielssen that the applicant remain under the care of Dr Dayalan and to  take medication as directed and consider the online cognitive management course for depression. In the reports of February 2019 and March 2020 Dr Nielssen stated that the applicant had completed the self-guided course and that the applicant had not taken any form of psychotropic medication.
  3. [87]
    The respondent submitted that Dr Nielssen thought the applicant’s offending was a one-off occurrence and therefore this skewed the value of his opinion in relation to the applicant. The respondent submitted that the reports of the two doctors did not outline any treatment of the applicant to address the underlying issues such as upbringing or management of stress and no details of strategies that  were in place to prevent reoffending. It was suggested that Dr Nielssen's view that the applicant would not reoffend based on his maturity was irrelevant as the respondent noted the applicant was an adult at the time of the offending behaviour.

Insight

  1. [88]
    The respondent’s submissions under the heading of “insight into the harm caused” stated that the applicant may not have sufficient insight. This submission  was supported by the example that in the applicant’s  life story VDG admitted  that at the time  of his offending he did not think he was doing anyone any harm and it was only subsequently that he realised how harmful his actions were. It was submitted that the applicant had not  detailed what harm was caused by his behaviour and that he attempted to minimise his behaviour by stating to the investigating  police that the photographs are of young women not girls. Dr Nielssen’s report of March 2020 stated that the applicant's insight into his behaviours included how it might cause distress to the woman he took the image of, notwithstanding that she could not be identified. The respondent submitted that this showed the applicant had not fully accepted or understood the impacts of his offending. In reference to why the applicant considered it was important that he did not look at the photographs once he had taken them, it was submitted that this information was proffered to minimise the seriousness of the applicant’s behaviour. The respondent also cited Tribunal cases in support of the  contention that  genuine insight was a protective factor.

Transferability

  1. [89]
    Submissions under the heading of transferability centred on the fact that once granted a Blue Card an applicant is able to work in any child related employment or conduct a child related business supervised or unsupervised as regulated by the Act and not just for the purpose for which the applicant sought the card. The Tribunal   has no power to ensure a Blue Card is conditional.  Once a Blue Card is issued it is fully transferable across all areas of regulated employment.

NCAT decision

  1. [90]
    As requested by the Tribunal  the respondent made submissions in relation to the NCAT decision and in response to the material filed by the applicant. The respondent submitted that the legislative scheme in New South Wales is completely different to that of Queensland and is irrelevant to the decision to be made in these proceedings.

Non-PublicationOrder

  1. [91]
    It was the respondent’s submission that section 66(1) of the QCAT Act allows the Tribunal to make an order prohibiting the publication of information and evidence produced to the Tribunal  and information that may enable a person who has appeared before the Tribunal  or is affected by the proceedings to be identified. The respondent notes that an order prohibiting the publication of information may only be made in specific circumstances under section 66(2) of the QCAT Act. Blue Card  is of the view that the reasons for any decision in this matter may be published in a de-identified format.

Conclusion to respondent’s submissions

  1. [92]
    It was submitted that the Tribunal’s decision  is whether, having regard to the paramount principle under the 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 working with children clearance. The respondent submitted that the Tribunal   should take a precautionary approach to decision making in child-related employment matters.
  2. [93]
    The respondent’s submissions described the applicant as having engaged in opportunistic, antisocial behaviour, which on one occasion led to a criminal conviction due to his having violated the privacy of his female victim.[17] The material suggests that the applicant's behaviour occurred as a result of a background of mental health concerns. The material also suggests that the applicant may not have enough insight into the impact of his behaviours on the victims, rather than the impact on himself.

Applicant’s submissions in response (some original footnotes omitted)

Standard of proof

  1. [94]
    The applicant contends that the Tribunal should reject the respondent’s submissions, relating to the paramount principle and the gravity of the consequences involved, that the Tribunal   ought to require ‘cogent evidence to establish, on the balance of probabilities, any facts asserted in favour of the Applicant’. The applicant submitted that should be rejected, for two reasons:
    1. (a)
      by making this submission the respondent seeks to impose on an applicant for review of a negative notice a burden for which the Act does not provide. It is well established that neither party bears the onus of proof in proving an ‘exceptional case’ exists; and
    2. (b)
      the respondent’s submission about the standard of proof is not supported by any authority. Although the respondent submits that its approach is consistent with the approach of the Appeal  Tribunal in Masri,[18] that decision is readily distinguishable.
  2. [95]
    Masri concerned an applicant who in August 2014 had been convicted of being drunk in a public place and assaulting or obstructing a police officer, and approximately six months later was convicted of possessing dangerous drugs.7 No conviction was recorded on either occasion. Mr Masri claimed in his application for review that he had not been convicted of further offences; and that if he had had sufficient funds at the relevant time, he would have defended the charges and believed he would have been found not guilty. He, however, did not  adduce any evidence and did not attend the hearing before the Tribunal.[19] It was submitted that he QCAT Appeal Tribunal found that the original Tribunal  member had failed to consider the factors in s 226(2) of the Act and erred in drawing facts favourable to Mr Masri. As the  QCAT Appeal Tribunal  explained:[20]

In this case, there are facts known only to Mr Masri relevant to a consideration of the matters in s 226(2) of the Act and whether it would not be in the best interests of children for a positive notice to be issued. Mr Masri did not attend the hearing and filed no material in support of his application for review. In those circumstances, it is not appropriate to draw a favourable inference or make a favourable finding of fact where there is no proof upon which the inference can be drawn, or the fact found.

  1. [96]
    It was submitted that Masri was a case in which the applicant had adduced no evidence at all.  This is very different to the applicant’s proceedings. It therefore cannot stand for any proposition that an applicant must establish all facts in his or her favour by cogent evidence. To the extent that the respondent suggests otherwise, they are  mistaken. Accordingly, the respondent’s submission about the standard of proof cannot be accepted.[21]

The HRA

  1. [97]
    The applicant noted the respondent’s different interpretation of the application of the HRA  to his own. Submissions were made  on section 58(1) of the HRA. These submissions provided a detailed summary of the legislation and applicable cases from other jurisdictions with a similar piece of legislation e.g. Victoria. In summary it was submitted that it that it would not be a simple exercise for the Tribunal to consider these issues and certainly not as simple as described by the respondent’s submissions.

Not an exceptional case

  1. [98]
    The applicant submitted that the Tribunal should reject the respondent’s submissions about  whether this was an exceptional case. Some of the factors to support this submission were that the applicant's offending was not recent; he was in fact 21 years old at the time; the offence was therefore almost four years ago and there had been no repetition of the same conduct and he had not been charged with any further offences. Dr Nielssen’s evidence indicated the applicant had matured significantly since his index offence. This expert’s evidence was not challenged in cross examination and should be accepted on that basis. Reference was made to several factors that it was submitted the Tribunal can rely upon to  be satisfied that this is not  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.
  2. [99]
    The respondent’s submission about the offence being opportunistic, antisocial and criminal behaviour that violated the victim’s privacy ignores the evidence that the applicant understands the impact that his offending had on the victim and the wrongfulness of what he did. It ignores the expert evidence from Dr Nielssen that the applicant is highly unlikely to reoffend. It ignores the fact that the applicant has worked with children, including by volunteering with his church without complaint. It also downplays the fact that the sentencing judge recorded no conviction. Nor does the respondent explain how the type of offending—which involved an adult victim—would be inconsistent with providing a safe and protective environment for children.[22] The applicant expressed that the  respondent’s allegations never rise beyond “inexact proofs and indirect inferences” and therefore should not form the basis for the Tribunal Tribunal’s decision making.
  3. [100]
    It was further submitted that material from the NSW Department of Family and Community Services did not support the view that this is an exceptional case. The material records that information did not meet the risk threshold that would require further action. It was submitted that this information proved nothing.[23]
  4. [101]
    The applicant submitted that the respondent attempted to downplay the significance of the applicant’s cognitive behavioural therapy course. It was submitted that this was the course recommended by Dr Dayalan. Further Dr Nielssen’s evidence was  that people who undertook such courses often benefited after completing the first one to three modules. Dr Nielssen also stated that the applicant had ‘a greatly improved mental health literacy as a result of completion of the online course’.36 The respondent adduced no expert evidence to contradict Dr Nielssen on these points. The respondent’s complaint about the course being self-directed therefore should be given little or no weight.[24]
  5. [102]
    It was submitted by the applicant that the respondent’s submissions about the sentencing remarks were irrelevant as the Magistrate sentencing the applicant was not a psychiatrist and that was not the purpose of the sentence. The Tribunal should take note of the expert evidence of Dr Nielssen that the applicant does not suffer from depression and was highly unlikely to reoffend. There was no evidence presented by the respondent to contradict Dr Nielssen. Dr Nielssen understood that the offending may have had a dimension of being not a one-off event due to other photographs found on the applicant's telephone. It was submitted that, in NCAT, Dr Nielssen gave evidence that his opinions were not altered by the knowledge that there were more photographs on the applicant’s phone than he had initially understood.[25]
  6. [103]
    The applicant responded to the respondent’s submissions that he did not have an adequate treatment plan or strategies to assist with his condition. It was submitted that it was Dr Nielssen’s opinion that the applicant was not suffering from any condition that warranted treatment.42 He referred in his evidence to the applicant's likely reaction if he were to become stressed and said that he has had a positive experience of counselling and had greatly improved literacy as a result of the completion of the online course, therefore he thought that if VDG became depressed again he would seek a referral for psychological or psychiatric care. Dr Nielssen also  pointed to the positive protective factors now wrapped around the applicant including that  had now moved from his mother's home when attending university in Queensland and was living independently; he was in a steady long-term relationship; he was exposed to a wider circle of friends and he had attained much greater maturity. The psychiatrist considered the greatest individual protective factor was that the applicant was a mature, intelligent person who had understood at a deep level that he did not wish to have this kind of trouble in his life again and therefore this would lead to him taking all actions necessary to prevent reoffending. The applicant had previously sought a release from stress in what he described as an adrenaline rush. He now had other outlets such as exercise, his romantic partner, his friends, his studies and his own achievements plus his independence from his mother and the passage of time. His own efforts to mature over the years, through both psychological and psychiatric care, made  it was unlikely that he would ever reoffend.
  7. [104]
    Despite the obvious changes since the offending that had occurred in the applicant’s life, including the cessation of his mother placing pressure upon him to succeed, the   respondent had not taken into account these enormous changes in circumstances and the fact that the applicant did not have the same pressures and stressors on him today e.g. he usually lived independently from his mother who was in another state; his lack of a depressive illness and he now had a wider range of social contacts. Despite this  the respondent assumed that the factors that contributed to the offence continue and that VDG needs treatment for an illness when all of the evidence points to a complete change in these factors and the fact that at least two psychiatrists have declared that he has no mental health diagnosis that he requires treatment for.
  8. [105]
    The applicant’s submissions were that the New South Wales legislation was in fact more onerous than the Queensland legislation and  although the respondent pointed to differences between them, they made no attempt to address the similarities between the two.  It was submitted that the transferability of a Blue Card is not an issue that should overly burden the time of the Tribunal. The applicant had not offended against children, even though he had worked with them in several settings. Dr Nielssen made it clear that the applicant  had no abnormal sexual interest or psychosexual disorder. It was Dr Nielssen’s clear evidence that the applicant is highly unlikely to ever reoffend. In those circumstances whether a Blue Card is transferable is not a highly relevant or concerning issue and does not support the view that this is an exceptional case. Tribunal’s consideration - Is this an exceptional case?
  9. [106]
    The factors in s 226(2)  of the Act are factors that must be considered in deciding about whether it is an exceptional case.
  10. [107]
    I accept that in terms of the level of satisfaction required to meet section 221(2) of the Act, while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[26] I am aware that there is no power  under the legislation for the Tribunal   to issue a positive notice with conditions.
  11. [108]
    I refer to the following factors in my consideration of whether this is an exceptional case: factors which must be considered and factors I consider relevant. I make the following observations:

Whether the offence is a conviction or a charge

  1. [109]
    Mr VDG was convicted of filming a person’s private parts without consent.

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

  1. [110]
    The offence Mr VDG was convicted of is not a serious or disqualifying offence within the meaning of the Queensland legislation.

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

  1. [111]
    The offence Mr VDG was convicted of took place in 2016.

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

  1. [112]
    The evidence before me does not allow me to conclude that Mr VDG’s offending concerned anyone other than an adult female. There was no evidence whatsoever to prove that VDG had offended against a child. Dr Nielssen described the offence as immature and not one that would indicate any ongoing abnormal sexual urges or disorders. The applicant has taken strong steps to rehabilitate himself and has now a suite of better coping strategies. The applicant's life circumstances at the time of the offence were that he was under enormous pressure in his home life and he had a very limited social outlet. His social life  at that time largely centred around online activities and he found himself offending in what he described as an attempt to obtain an adrenaline rush from undertaking this action. The applicant described that he had undergone a change  in his current circumstances; his relationships and changed from his previous work. He now has a volunteering history; he is independent from his mother; he is successful in his studies; he is now much better equipped, post psychological and psychiatric care, to protect himself from  being placed in the situation again where he would seek such an adrenaline rush.  Should  he ever find himself  in a stressful situation again he had new  coping skills and he was unlikely to return to offending behaviours. From the evidence of Dr Nielssen, the circumstances of the applicant at the time when he offended and as he presents now are entirely different and this difference is a completely positive one. Based on the evidence before me  I find that I am unable to conclude that  after the passage of time and his  active rehabilitation  that the offending is highly relevant to whether he can provide a protective environment to vulnerable children and young people.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [113]
    In relation to his conviction Mr VDG entered a plea of guilty and was sentenced to a good behaviour bond  for a period of 18 months subject to the condition that he accept treatment from Dr Dayalan or some other psychiatrist, attend appointments as directed and  accept recommended treatment.

Other relevant circumstances

  1. [114]
    I have considered the evidence, statements and submissions filed in this matter in coming to a decision about whether this 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. I considered the nature of the offending. It is noted that while it is not something to be trivialised, it is  not a serious offence or disqualifying offence under the Act. It  did not involve violence and did not involve a child. Any suggestion  the victim of the offence was anyone other than an adult woman is baseless, and I do not give weight to any submissions to the contrary. The police fact sheet and sentencing transcript show that  the Court sentenced Mr VDG on the basis that the victim was an adult and there was not a circumstance of aggravation of a child having been filmed. I note that the New South Wales police reports and fact sheets were before Dr  Nielssen when he was completing  his reports both for NCAT and for these proceedings. It is noted that in the NCAT decision there was a requirement that regard be had to the age of the victim due to the importance of considering whether children were involved in the offending and it was found that the victim was an adult. The NCAT decision, whilst under a different statutory regime, is one that shares some commonalities with the Queensland regime. I make the finding that in the NCAT proceedings the applicant has been granted what is the equivalent of a clearance to be working with children. I accept  that the applicant has not offended further and there had not been any further charges since that period of time of the offence in 2016 and I accept the evidence that VDG has worked without complaint with children both in his original research position and also in his volunteer position with a church.
  2. [115]
    I find that Dr Nielssen is a psychiatrist of good standing with numerous qualifications including experience in work with sex offenders and in the area of cognitive therapy, online courses such as the one that VDG undertook. Dr Nielssen said that  he had the opportunity to longitudinally assess the applicant when preparing three reports.  He was fully briefed on all circumstances involving the offending, including the other photographs on the applicant's telephone. He gave cogent, clear reasons  why he considered the applicant to be at no risk of reoffending and certainly no risk to children. In fact, he considered that all the protective factors in place indicated that it was an extremely low risk to non-existent.  Dr Nielssen’s evidence was questioned in some parts by the respondent; it was not challenged by the evidence of another expert in  the same field and many of his statements remained unchallenged. It is based on his independent expert evidence that I can accept that there is a very low to minimal risk of the applicant reoffending. Therefore, on this basis I understand his evidence relating to why the applicant may have found himself in the circumstances of offending in 2016 and why those circumstances are so utterly different today in 2020. This evidence supports the finding that this case is not an exceptional case and therefore the legislation dictates that the applicant should be issued with a positive notice.
  3. [116]
    I refer to  the evidence of the applicant's partner and of his long-term friend. I also take into account the written evidence of the other psychiatrist, Dr Dayalan, and I consider the material provided by the respondent including the court material, NSW Department of Child Safety and Family Services and NSW police material. I considered the material from NCAT and find that whilst it is certainly not binding on me it does have a persuasive aspect to it. I accept the applicant’s submission that in many ways the New South Wales system is a more rigorous system about the questions NCAT must ask specifically relating to children. Post the NCAT decision the applicant had worked without complaint with children in another state. I accept Dr Nielssen's evidence  that several factors present at the time of offending are no longer present. At the time of offending the applicant was very immature, his social judgement had been affected by the presence of a possible depressive illness and several external stressors including pressure placed upon him by his family to perform in an academic sense. I accept that VDG does not meet the diagnostic criteria for any psychosexual disorder and therefore has none of the associated increased probability of committing another offence of a similar nature.  Dr Nielssen said VDG does not suffer from any depression or psychiatric disorder at this point in time  and he does not require further treatment in this  area. He has successfully undertaken a cognitive behavioural therapy programme, that  of itself is highly successful - quite often more so than any treatment with the drug regimen for depression. The protective factors for VDG  are  his natural growth and maturity as he is now 25 years old; his ability to disengage from his mother and her demands of him; he no longer has such a sheltered outlook on the world because he has been exposed to a wider circle of contacts; he has close friends, including friends in the workplace and through study; and he is in a long term romantic partnership. I accept  the evidence of Dr Nielssen that as an intelligent person VDG has now been able to reflect on his behaviour after  taking  action to change such behaviour. Due to his intelligence he understands the consequences for him should he ever reoffend and has taken every action possible to make sure that he does not place himself in the situation where he does reoffend.
  4. [117]
    Although VDG  has gained a placement in a highly competitive academic course and is doing by all accounts very well in this course, I do not consider this information  to be of great relevance to my decision. The welfare of children is paramount and what effect this may or may not have on any future employment for VDG is irrelevant. As indicated in evidence in chief  and under cross examination, VDG did understand the significance of his offending and he felt remorseful and was able to consider  the impact of his behaviour upon the person who was his victim. He said he now felt ashamed of his behaviour. I accept the evidence of the applicant, his girlfriend, his close friend and  the psychiatrist’s evidence that VDG  is nothing other than remorseful. He has demonstrated this insight, and this is supported and corroborated by his witnesses’ evidence.
  5. [118]
    The respondent urged me to consider the nature of the offending and a previous complaint by a third party in relation to exam related stress when VDG was a teenager.  I find that that the information about his stepfather contacting services during his  preparation for  his  exams  does not amount to anything further than a historical footnote. There was no further action needed post this telephone call.  There has been no further indication that VDG  has experienced  any suicidal ideation  including during the highly stressful period  when he was charged with the  offence and his entering a  plea of  guilty to the offence of filming a person’s private parts without their consent.  I am aware that VDG did not comply with the conditions of his good behaviour bond. The applicant does not shy away from fact that he did not complete this in a timely manner (that is within the time of his sentence), but he  has ultimately completed the course. It was the  evidence of Dr Nielssen that it is not  unusual for  patients to find an initial benefit from the first one or two cognitive therapy modules. A failure to complete the course immediately therefore did not indicate an unwillingness on the part of the applicant to seek help or to recognise his need to change aspects of his life to avoid reoffending. While  I accept that VDG did not comply with his good behaviour bond’s conditions, this Tribunal  , in this case, is not concerned with the enforcement of interstate orders of this nature. I find that this is but one  factor to be considered, but it is not an overwhelming factor regarding whether the applicant should be granted a positive notice and the finding made this is not an exceptional case.

HRA’s  application

  1. [119]
    I thank both parties for their assistance and their submissions on the applicability or otherwise of the HRA to these proceedings. Based on consideration of these submissions, the relevant cases and adopting the approach of interpreting the legislation based on the underlying purpose of the Act I find that as the commencement date of the HRA was 1 January 2020 and VDG’s review was commenced on 17 October 2019, the legislation has no applicability to this case. I have based this finding on the provisions of the HRA section 108(2) of the HRA. Accordingly, I will not engage in further discussion of legislation that has no applicability to this decision.

Non -publication order

  1. [120]
    The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice.  A non-publication order should be made in this instance to protect the identity of the applicant.  The Tribunal prohibits the publication of the names of the Applicant and any non-expert witnesses.[27]

Orders

  1. The decision of the Director-General, Department of Justice and Attorney-General that VDG’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 this is not an exceptional case.
  2. The Tribunal  prohibits the publication of the names of the Applicant and any non-expert witnesses.

Footnotes

[1]  Working with Children Act, s 5.

[2]  Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

[3]  Working with Children Act, s 360. See also s 6.

[4]  Working with Children Act, s 221.

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

[6]  Working with Children Act, s 226(2)(a).

[7]  Working with Children Act, s 226(2)(e).

[8] Re FAA [2006] QCST 15, [29], citing the second reading speech of the Commissioner for Young Children and Young People Bill, p 4391.

[9]Tribunal Hearing Transcript, Dr Nielssen lines 1 to 24 page 1-58.

[10] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] (citing Kent v Wilson [2000] VSC 98, [22]) (emphasis added).

[11]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].

[12]  Briginshaw test ought to be employed "bearing in mind the nature of the reviewable decision".23

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

[14] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

[15]  Respondent’s written submissions.

[16]  Respondent’s written submissions, paragraphs 31 to 35 under heading of HRA.

[17]  Respondent’s written submissions, paragraph 78.

[18]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86.

[19]  Applicant’s submissions in reply, paragraph 5

[20]  [2016] QCATA 86, [54] (emphasis added).

[21]  Applicant’s submissions in response paragraph 8.

[22]  Applicant’s submissions in response.

[23]  Applicant’s submissions in response.

[24]  Applicant’s submissions.

[25]  Applicant’s submissions in response.

[26] [2004] QCA 492, [30].

[27] GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.

 
Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 506

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    15 Dec 2020

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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