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HM v Director-General, Department of Justice and Attorney General[2021] QCAT 13

HM v Director-General, Department of Justice and Attorney General[2021] QCAT 13

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

HM v Director-General, Department of Justice and Attorney General [2021] QCAT 13

PARTIES:

HM

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML356-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 January 2021

HEARING DATE:

24 August 2020

FURTHER WRITTEN SUBMISSIONS:

By the applicant dated:

24 August 2020 and 19 September 2020

By the respondent dated:

4 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that HM’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of HM.
  2. Publication of the name or identifying information of HM or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

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

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – criminal history – charges of Observations or recordings in breach of privacy – where not categorised as serious offences nor disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 26(2), 36(2), s 48, s 58

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 15, s 16, s 17, s 221, s 226, s 353, s 354, s 360, s 361, s 580, Schedule 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 18(1), s 19, s 20, s 21, s 66

Commission for Children and Young People Bill 2000, Explanatory Notes

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

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

Commissioner for Young People v Storrs [2011] QCATA 28

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

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

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

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

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

Re FAA [2006] QCST 15

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

APPEARANCES & REPRESENTATION:

 

Applicant:

S.J. Hamlyn-Harris, Barrister, instructed by L. Rollason, Solicitor of Robertson O'Gorman Solicitors

Respondent:

D. Taylor, In-house legal officer, Department of Justice and Attorney-General, instructed by G. Yates, In-house legal officer, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General (‘the chief executive officer’), Department of Justice and Attorney General (‘the respondent’) that the case of MK (‘the applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The applicant is a twenty-one year old man.
  3. [3]
    The applicant seeks a working with children clearance to enable him to complete course requirements for University studies that he is currently undertaking.
  4. [4]
    The applicant applied to the respondent for a positive notice (since recent amendments to the WWC Act, now referred to as a working with children clearance) and blue card under the WWC Act.[1]
  5. [5]
    The applicant has a criminal history which is described in detail later in these reasons.
  6. [6]
    The respondent considered the applicant’s application pursuant to ss 221(1) and (2) of the WWC Act having regard to the fact that offences with which the applicant had been charged were neither a serious offence[2] nor a disqualifying offence.[3] The respondent was satisfied that the applicant’s case was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[4] Accordingly, by letter dated 8 November 2018, the respondent advised the applicant of its decision to issue a negative notice.
  7. [7]
    The applicant has applied to the Tribunal for a review of that decision.

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[5] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[6] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the respondent issued a negative notice.[7]
  2. [9]
    The applicant has satisfied the prerequisites to apply for the review because the applicant is not a ‘disqualified person’ and the applicant applied to the Tribunal for review within the prescribed 28-day time limit.[8]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the respondent as to whether or not there is an exceptional case for the applicant, because that decision resulted in him being issued with the negative notice.[9]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[10] Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[11]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[12]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[13]
  5. [16]
    The role of the respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[14]

Law relating to blue cards specifically

  1. [17]
    Pursuant to ss 580(1) and (2) of the WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.
  2. [18]
    The WWC Act effectively provides that a working with children clearance must be issued in circumstances which include[15] where a person has been charged or convicted with an offence other than a serious offence,[16] unless the respondent is satisfied it is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. In that case, a negative notice must be issued.[17]
  3. [19]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  4. [20]
    Section 221 of the WWC Act relevantly provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if-
  1. the chief executive is not aware of any police information or disciplinary information about the person; or
  2. the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person –
  1. investigative information;
  2. disciplinary information;
  3. a charge for an offence other than a disqualifying offence;
  4. a charge for a disqualifying offence that has been dealt with other than by a conviction; or

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance, the chief executive must issue a negative notice to the person.
  1. [21]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [22]
    The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [23]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. is deciding whether or not there is an exceptional case for the person; and
    2. is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. in relation to the commission, or alleged commission, of an offence by the person-
      1. whether it is a conviction or a charge;
      2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. when the offence was committed or is alleged to have been committed;
      4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
    1. any information about the person given to the chief executive under section 318 or 319;
    1. any report about the person’s mental health given to the chief executive under section 335;
    2. any information about the person given to the chief executive under section 337 or 338;
    3. anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [24]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  2. [25]
    The Tribunal cannot go beyond convictions and must accept them as they are.[18] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[19]
  3. [26]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[20]
  4. [27]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[21]

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

  1. [28]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[22]
  2. [29]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[23]
  3. [30]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[24]

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

  1. [31]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott (No.2), Buss J observed:[25]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.

  1. [32]
    The Tribunal should consider risk and protective factors when determining a review decision.[26]
  2. [33]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[27]
  3. [34]
    Neither party bears the onus in determining whether an exceptional case exists.[28]
  4. [35]
    The Tribunal must review a child-related employment decision[29] under the principle that the welfare and best interests of a child are paramount.[30]

Law relating to human rights

  1. [36]
    When conducting a review of a child-related employment decision, the Tribunal is a ‘public entity’ under the Human Rights Act 2019 (Qld) (‘HRA’) and the HRA applies.[31]
  2. [37]
    Accordingly, the Tribunal must interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[32]
  3. [38]
    Further, except when a different action or decision is required because of a statutory provision or other law, [33] the Tribunal must:[34]
    1. (a)
      act or make a decision in a way that is compatible with human rights; and
    2. (b)
      in making a decision, give proper consideration to a human right relevant to the decision, at least by identifying human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.[35]
  4. [39]
    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 reasonable and justifiable under the HRA.[36]

Matters required to be considered by section 226 of the WWC Act

Criminal history information given under section 318 of the WWC Act

  1. [40]
    The applicant’s criminal history includes two charges of Observations or recordings in breach of privacy (on 25 April 2015). In that regard:
    1. (a)
      It was alleged that at about 11.15am on 25 April 2015, the applicant entered female toilets at a public library and attempted to sight the female victim as she used the toilet by looking under a cubicle partition. Upon a witness entering the toilets, the applicant exited the toilets and left the library;
    2. (b)
      It was further alleged that at about 11.30am on 25 April 2015, the applicant then attended a public mall. The applicant made a mobile phone recording of the genital area under the dress of the unknown female victim;
    3. (c)
      In a police interview, the applicant admitted that he attended the female toilets at the library, hid in a cubicle and bent to look under a partition;
    4. (d)
      The applicant admitted taking the video at the mall. Video evidence demonstrated that the applicant videoed up the skirt of the unknown female victim;
    5. (e)
      The applicant was fifteen years old at the time;
    6. (f)
      At the Magistrates Court hearing on 1 December 2015, the prosecution did not offer any evidence in relation to the two original charges and made one substitute charge of Commit Public Nuisance in lieu of the two original charges. The applicant pleaded guilty to the substitute charge. The Magistrate noted that the applicant had admitted the alleged conduct and appeared to place considerable weight on her understanding that it was a ‘one off’ situation that had been addressed. The Magistrate reprimanded the applicant but did not record a conviction.
  2. [41]
    None of the charged offences are a serious offence nor a disqualifying offence. 37
  3. [42]
    The charge of Commit Public Nuisance is a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[37]
  4. [43]
    The relevance of the offending to employment, or carrying on a business, that involves or may involve children is that it may indicate that the applicant has limited control over his impulses and sexual urges, has a disregard for the rules of privacy and public safety and lacks the ability to judge appropriate behaviour. Further, it models unsafe and unlawful behaviour.
  5. [44]
    There is no conclusive evidence as to the age of the female that was the subject of the video recording on 25 April 2015.
  6. [45]
    However, the applicant’s conduct nevertheless gives rise to serious concerns about his ability to provide a safe, protective and caring environment for children and to model safe behaviour. Children may be at an increased risk of physical and psychological harm by being cared for by a person who has limited control over his impulses and sexual urges and who poorly judges appropriate behaviour. The applicant’s offending also raises concerns about his ability to engage appropriately with children and young people and to present as a positive role model to them.
  7. [46]
    As a whole, the applicant’s conduct gives rise to concerns regarding his ability to control his impulses and sexual urges, judge safe and appropriate behaviour, provide a safe and protective environment for children and present as a positive role model.
  8. [47]
    Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the applicant’s ability to provide a protective environment for children and to ensure their safety and wellbeing.

Sexual offender order information given under section 319 of the WWC Act

  1. [48]
    No information was requested or received pursuant to that section.

Mental health examination information given under section 335 of the WWC Act

  1. [49]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under sections 337 or 338 of the WWC Act

  1. [50]
    No information was requested or received pursuant to those sections.

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

  1. [51]
    Additional matters which are considered relevant include that the applicant was aged fifteen years at the time of the offending and that the applicant engaged in other conduct described below.

Materials provided by way of Notice to Produce

Material from the Magistrates Court

  1. [52]
    In response to a Notice to Produce, the Queensland Police Service produced material which evidenced that the applicant had also been charged with one charge of Observations or recordings in breach of privacy.
  2. [53]
    In that regard, it was alleged that on 28 December 2012, the applicant made a mobile phone recording of the genital area under the dress of the adult female victim when he sat on the floor behind her at a shopping centre. When detained and questioned by the victim’s husband, the applicant said words to the effect of “Is this man your husband? I didn’t see you wearing the marriage ring? That’s why I took the video”.
  3. [54]
    The applicant admitted committing the offence. The applicant was thirteen years old at the time. 
  4. [55]
    Instead of proceeding to court, the matter was dealt with on 28 December 2012, by the issue of a Notice of Caution under s 15(1) of the Youth Justice Act 1992 and no conviction was recorded.
  5. [56]
    The applicant was banned from the shopping centre by security officers for six months.
  6. [57]
    The relevance of the material is that it indicates that the applicant had repeated incidences of limited control over his impulses and sexual urges and willingness to exploit the vulnerability and privacy of others for his own gratification.
  7. [58]
    The repeated nature of the applicant’s behaviour of filming ‘upskirt’ videos on two separate occasions, over a period of approximately two and a half years and after he was cautioned by police after the first instance, magnifies the concern about the applicant’s ability to provide a safe and protective environment for children under his care and to present as a positive role model.
  8. [59]
    The Magistrate who dealt with the 2015 offending did not appear to be aware of the 2012 charge.

Witness evidence

The applicant

  1. [60]
    The applicant is a 21 year old man.
  2. [61]
    He was mostly raised by his mother who imposed strong ethical values.
  3. [62]
    He admits and takes full responsibility for his offending behaviour.
  4. [63]
    He attributes his offending behaviour in 2012 to sexual curiosity and immaturity. His mother disciplined him for that offending behaviour by making him live downstairs for approximately six months. Immediately following the 2012 offending behaviour, he just wanted to brush off the incident and he did not go through the steps to understand why his behaviour was so wrong.
  5. [64]
    Prior to 2013, he was a high achieving student with otherwise excellent behaviour.
  6. [65]
    Commencing in 2013, he experienced ongoing mental symptoms of undiagnosed hyperthyroidism which greatly skewed his frame of mind, affected his ability to make correct and appropriate decisions and greatly affected his memory loss. He found it difficult to focus and to control his behaviour. The symptoms caused him to act impulsively without thinking of the consequences. He regularly misbehaved at school and his academic results suffered. He was argumentative with his mother and sister.
  7. [66]
    He attributes his offending behaviour in 2015 to symptoms of undiagnosed hyperthyroidism and thyrotoxicosis which caused him to act impulsively, erratically and illogically in a manner which was not reflective of his true character, personality and ethical upbringing.
  8. [67]
    He admits that initially he was not completely truthful about the offending behaviour to police when interviewed and to his mother. The reason for that was because he was scared of his mother’s reaction.
  9. [68]
    Following his offending behaviour in 2015, he attended approximately 30 sessions with a clinical psychologist, Mr Anthony Teoh who was informed of the offending. Mr Teoh assisted the him to gain a greater insight into his thoughts and feelings and to create strategies to improve himself, his behaviour and impulsivity.
  10. [69]
    In late 2016, towards the end of his Grade 12 year, he was diagnosed with severe late-stage hyperthyroidism resulting from Graves’ Disease. He was treated by Dr Amanda Scott, paediatric endocrinologist, with a complete thyroidectomy (thyroid removal) and medication.
  11. [70]
    Since receiving treatment, his symptoms have ceased. His problems with concentration, memory, understanding and self-control resolved. He is now a lot more insightful and has a mature approach.
  12. [71]
    In 2017, he commenced university studies. He lived on-campus in mixed gender accommodation. He was self-reliant and successfully participated both academically and socially. He received commendations for excellent academic performance. He also met his current girlfriend and made friendships which are ongoing.
  13. [72]
    In 2018, he transferred to his current university course. He has continued to excel academically. He requires a working with children clearance to enable him to complete the course requirements.
  14. [73]
    He has undertaken various community volunteer work.
  15. [74]
    He is very remorseful for his offending behaviour and truly regrets it.
  16. [75]
    Since the 2015 offending behaviour, he has developed insight into how serious and wrong his behaviour was. He now understands that his behaviour breached the victims’ right to feel safe and would have made them feel violated and impacted their trust of other people. He also acknowledges the impact of his offending behaviour on his mother which he regrets.
  17. [76]
    With the assistance of Dr Teoh, he has developed strategies to avoid further offending behaviour. The main strategy that he adopts is to walk away if he has any hint of doubt in his body that there might be a problem.
  18. [77]
    He is committed to ensure that he never engages in the offending behaviour again.
  19. [78]
    The applicant currently has several strong and supportive relationships. He is particularly close to his mother and sister. In recent years he has developed a close relationship with his father.  He also has a stable and supportive relationship with his girlfriend of approximately three years.

Dr Amanda Scott, Paediatric Endocrinologist

  1. [79]
    Dr Scott was aware of the applicant’s history including his 2012 and 2015 offending behaviour.
  2. [80]
    Dr Scott treated the applicant for Grave’s Disease (autoimmune hyperthyroidism or overactive thyroid) which was diagnosed in September 2016. He presented with extremely elevated thyroid hormone levels and was floridly hyperthyroid on clinical examination.
  3. [81]
    The applicant was likely symptomatic of hyperthyroidism at least six months and up to 2 to 3 years prior to being diagnosed.
  4. [82]
    Untreated, hyperthyroidism affects cognitive functions, behaviour and personality. Frontal lobe functions are disturbed which can impact movement, problem solving, spontaneity, memory, initiation, judgement, impulse control and social and sexual behaviour. Clinically, hyperthyroidism can present with effects including poor concentration, short-term memory impairment, poor judgement, impulsivity, restlessness, irritability and agitation.
  5. [83]
    In younger people, hyperthyroidism can cause increased sexual function and desire.
  6. [84]
    The applicant presented with evidence of significant cognitive and behavioural change, with dramatic academic decline over the preceding two to three years as well as risk-taking behaviour due to poor judgement.
  7. [85]
    Medication alone was inadequate to treat the applicant’s hyperthyroidism.
  8. [86]
    Symptoms of hyperthyroidism continued despite oral medication therapy, until definitive treatment in February 2017 by surgical removal of the applicant’s thyroid.
  9. [87]
    Since surgery in February 2017, the applicant has had no further hyperthyroidism and his presenting symptoms have resolved. He remains well managed on thyroid hormone replacement therapy. His academic achievement has returned to his pre- morbid level, with the applicant achieving very high academic results. He no longer displays evidence of frontal lobe dysfunction.
  10. [88]
    In her opinion, it was unlikely that the applicant had symptoms of hyperthyroidism at the time of the 2012 offending behaviour. She considered that behaviour was most likely to have been age-related.
  11. [89]
    However, the applicant would have had symptoms of hyperthyroidism at the time of the 2015 offending behaviour. She considered that behaviour was most likely a consequence of the hyperthyroidism which he experienced at that time.
  12. [90]
    Dr Scott last saw the applicant in November 2019 when he was 20 years old. She observed him to be a very normal, appropriate and mature young adult.

Dr Jill Reddan, Consultant Psychiatrist

  1. [91]
    Dr Reddan conducted a mental state examination of the applicant in May 2019 and prepared a report dated 29 May 2019. It is apparent from the report that Dr Reddan considered a number of documents including reports from Mr Teoh, psychologist.
  2. [92]
    She was informed of the applicant’s history including his 2012 and 2015 offending behaviour and the respondent’s reasons for issue of the negative notice.
  3. [93]
    The applicant readily admitted the offending behaviour. He answered intrusive questions without avoidance or affront but with embarrassment that was appropriate to his age.
  4. [94]
    The applicant reported a number of influences for the offending, including that he had seen material pertaining to attempting to film up women’s skirts on the internet when accessing pornography and there had been discussion of such behaviour amongst his peers.
  5. [95]
    Having regard to the opinion of Dr Scott, she noted that the applicant would almost certainly have been thyrotoxic or hyperthyroid at the time of the 2015 offending.
  6. [96]
    She also noted that it is well known that hyperthyroidism can have an array of effects on cognition and behaviour and in particular, exacerbate an adolescent’s tendency towards immature judgement, impulsivity and restlessness. She opined that it is more probable than not that the hyperthyroidism played a significant role in the applicant's behaviour at the time of the 2005 offending in terms of creating disinhibition of his behaviour and poor judgement.
  7. [97]
    She noted that the applicant knows that his behaviour was wrongful and was very embarrassed and ashamed about his behaviour. Although his mother had punished him on the first occasion, he described how during his sessions with the psychologist, he had engaged in considerable reflection about the nature and meaning of his behaviour and he had developed a deeper understanding of why the behaviour was not only criminally wrong but also morally wrong.
  8. [98]
    She noted that the applicant's sexual development appeared to have been relatively normal in other respects and he is now engaged in an adult heterosexual relationship. The applicant denies any sexual attraction to children. It was apparent from a reading of the Queensland police service court brief that the applicant’s victims were adult women.
  9. [99]
    There was no evidence from his behaviour or presentation of any paraphilic behaviours. Whilst the applicant’s offending behaviour was abnormal, and there was some similarity between the 2012 and the 2015 offending behaviours, taking into account the applicant’s age and the other circumstances, she did not see it as representing a preferred method of sexual interest or expression and a sustained pattern of behaviour. She considered it unlikely that the applicant would have engaged in the 2015 offending behaviour without the symptoms of hyperthyroidism.
  10. [100]
    The applicant presented very differently to the numerous sex offenders that she had interviewed over the years.
  11. [101]
    There was no evidence of any regular disinhibited behaviour or a tendency to substance abuse.
  12. [102]
    There was no evidence of a tendency to act out or be rebellious. The applicant’s University academic record was more than satisfactory.
  13. [103]
    She noted that the applicant had been around children in that he was engaged in mentoring during a camp and he had a 2 year old half-brother. There have been no reports of any odd, inappropriate or boundaryless behaviour around children.
  14. [104]
    In her opinion, there was no evidence that the applicant is suffering from any psychiatric disorder that would impair his ability to control his impulses and behaviour. He has a developed conscience and there was no evidence of a propensity to lawbreaking and he did not appear to harbour attitudes or beliefs supportive of illegal behaviour or the exploitation of others. There was no evidence that he has a paraphilia. In particular, there was no evidence that he is sexually attracted to or likely to behave inappropriately around children.
  15. [105]
    She noted that the circumstances under which the applicant misbehaved in 2015 have now substantially changed.
  16. [106]
    The applicant was adamant that he would not engage in the offending behaviours again for a number of reasons. A strategy to avoid him engaging in further offending behaviour was to dialogue with himself about the wrongfulness of the behaviour and the effect on any victim
  17. [107]
    In her opinion, the applicant presents a very low risk to the public, and in particular, there was no evidence that he represents a significant risk to children or minors.

Other evidence

  1. [108]
    I have considered the documents tendered as exhibits at the hearing.
  2. [109]
    I note that the Transcript of the Police interview of the applicant on 26 April 2015 records that the applicant stated to the effect, in relation to the 2015 offending, that he believed the female victims to be around 20 years old and videoed them because he found them to be attractive.

Applicant’s submissions

  1. [110]
    Oral and written submissions were made by the applicant’s counsel.
  2. [111]
    The applicant’s counsel accepted that:
    1. (a)
      The Tribunal should have regard to the fact that the 2012 offending behaviour and the 2015 offending behaviour was similar in nature; and
    2. (b)
      There is no evidence that the applicant’s hyperthyroidism had any relevance to the 2012 offending.
  3. [112]
    The applicant’s counsel submitted that there are significant considerations that suggest that the applicant’s behaviour will never be repeated and that the applicant’s case is not exceptional, which include:
    1. (a)
      When the offending behaviour occurred, the applicant was aged thirteen and fifteen years respectively and was immature. Dr Scott attributed the 2012 offending to the applicant’s immaturity and exposure to pornography. However, the applicant is now aged twenty-one years and has developed maturity;
    2. (b)
      Dr Scott and Dr Reddan both attributed the 2015 offending to the applicant’s symptoms of hyperthyroidism. Hyperthyroidism no longer gives rise to those adverse effects since the applicant received treatment by thyroidectomy and medication;
    3. (c)
      Dr Reddan’s opinion is that there is now low risk of the applicant engaging in behaviour similar to the offending behaviour;
    4. (d)
      The applicant attended at least 30 sessions with a psychologist following the 2015 offending behaviour.  The applicant’s evidence regarding the effectiveness of those sessions should be accepted notwithstanding that the psychologist, Mr Teoh, did not give evidence;
    5. (e)
      The applicant has demonstrated insight into the wrongfulness of his offending behaviour and accepts responsibility for it;
    6. (f)
      The applicant has also demonstrated that he is remorseful for the offending behaviour;
    7. (g)
      There is no evidence to suggest that the applicant has another untreated underlying condition or triggers that have not been recognised; and
    8. (h)
      There is no evidence to suggest that any of the victims of the applicant’s offending were children.
  4. [113]
    The applicant’s counsel submitted that the application of the principle set out in Briginshaw v Briginshaw (1938) 60 CLR at 361-362 (‘the Briginshaw principle’) in this case requires the Tribunal, in determining whether the applicant’s case is an ‘exceptional case’, to consider the ‘gravity of the consequences’ for the applicant of a finding that the applicant’s case is an ‘exceptional case’, specifically that the applicant would be denied the opportunity to obtain his university qualification and work in his chosen profession. The applicant submits that position is not inconsistent with the decision of the Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 and the decision of the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Masri [2016] QCTA 86.
  5. [114]
    The applicant’s counsel submitted that having regard to all the circumstances, the Tribunal should find that the applicant’s case is not an ‘exceptional case’ and that the decision of the respondent should be set aside.

Respondent’s submissions

  1. [115]
    Oral and written submissions were made by the respondent’s lawyer.
  2. [116]
    The respondent’s lawyer submitted that there are significant considerations that suggest that the applicant potentially poses a risk to children and that the applicant’s case is exceptional. In particular:
    1. (a)
      The applicant’s offending raises the prospect that he may have limited control over his impulses and sexual urges and this raises concerns about his ability to engage appropriately with children and young people and present as a positive role model to them;
    2. (b)
      There is nothing to suggest that at least some of the victims of the applicant’s 2015 offending were adult women and, in fact, they may have been children, which would raise further concern in relation to the applicant’s risk towards children;
    3. (c)
      The applicant admitted in evidence that, at the time of the 2015 offending, he was attracted to girls who were his own age, namely fifteen years old;
    4. (d)
      Even if the victims were adult women, the applicant’s offending is nevertheless cause for concern in relation to his ability to provide a safe and protective environment and to be an appropriate role model for children;
    5. (e)
      The applicant was, and ought to have been, aware of the wrongfulness of his actions at the time of the offending behaviour. Whilst the applicant was only thirteen and fifteen years old, respectively, at the time of his offending, on both occasions, he was of an age where he ought to have understood the wrongfulness of his actions. The applicant’s response when confronted about the 2012 offending indicates that he was so aware. In any event, he was made aware of the wrongfulness of the offending in 2012 when he was cautioned by a Magistrate, disciplined by his mother and prohibited from attending the shopping centre for six months by security officers for such behaviour;
    6. (f)
      The applicant’s ‘upskirt’ filming offending behaviour in 2015 was not a one-off, out-of-character incident. It repeated similar offending behaviour in 2012, despite the deterrence measures taken in response to that offending. The applicant’s persistence with the offending behaviour gives further cause for concern that the applicant may have limited control of his impulses and sexual urges and was willing to exploit the vulnerability and privacy of others for his own gratification;
    7. (g)
      The material suggests that the applicant’s offending behaviour both in 2012 and in 2015 was pre-meditated and predatory in nature. This is indicated by comments made by the applicant in 2012 that he filmed the victim as he did not see a wedding ring on her finger and in 2015 that he followed and filmed one of the victims because he found her attractive. The applicant’s actions indicate that he has objectified women on at least three separate occasions, raising concerns about his ability to act protectively towards others and respect appropriate boundaries;
    8. (h)
      The 2012 offending behaviour could not be explained by the applicant’s hyperthyroidism because there is no evidence that he had diagnosed nor undiagnosed hyperthyroidism at that time;
    9. (i)
      Further, the 2015 offending behaviour is also not adequately explained nor mitigated by the applicant’s diagnosis of hyperthyroidism in late 2016. The 2012 offending behaviour calls into question the medical explanation of undiagnosed hyperthyroidism for the 2015 offending behaviour. There is inadequate evidence to indicate that undiagnosed hyperthyroidism was the cause of the 2015 offending behaviour. That leaves the distinct possibility that there was another underlying condition or triggers for the applicant’s offending behaviour that have not been recognised and not treated, which gives further cause for concern about the applicant’s ability to act protectively and appropriately with children and young people;
    10. (j)
      The minor penalty imposed by the Magistrate in relation to the 2015 offending must be considered in light of the fact that Her Honour incorrectly understood the applicant’s offending behaviour to be a one-off, isolated occurrence;
    11. (k)
      There is inadequate evidence of the effectiveness of the psychological treatment by Mr Teoh received by the applicant after the 2015 offending behaviour. The only direct evidence available from Mr Teoh was a letter provided to the respondent at the time the application was assessed and a medical impact statement because Mr Teoh was not made available for cross-examination. They referred to the applicant being treated for anxiety and depression and there was no reference to any treatment associated with addressing the applicant’s behaviour. There is no independent evidence that Mr Teoh was aware of the applicant’s offending behaviour. Mr Teoh did not give evidence in the proceedings and an adverse inference should be drawn by the applicant’s failure to call him as a witness. Dr Reddan’s account that the applicant reflected on and developed a deeper understanding of his behaviour in his sessions with Mr Teoh, appears to be based on the applicant reporting that he did so. Further, the applicant demonstrated only limited strategies to avoid reoffending (“just walk away”) and has been unable to articulate a developed plan of strategies to avoid further offending behaviour;
    12. (l)
      Some of the material filed demonstrates that the applicant has limited insight into his offending behaviours: for example, the applicant’s life story filed in the Commission made no reference to the 2012 offending and the applicant appeared to attribute the 2015 offending to his undiagnosed hyperthyroidism;
    13. (m)
      The applicant’s evidence should be treated cautiously because of incident’s where the applicant made less than full and truthful disclosure of his offending to his mother, the court in relation to the 2015 offending and the respondent. The first time that the applicant appeared to mention the 2012 offending was when he was interviewed by the psychiatrist, Dr Reddan, in preparation for these proceedings. At that time, the applicant was on notice that the respondent was aware of the 2012 offending; and
    14. (n)
      There is insufficient evidence to demonstrate that the applicant has an adequate support network.
  3. [117]
    The respondent’s lawyer acknowledged that the applicant has expressed remorse for his offending behaviour.
  4. [118]
    The respondent’s lawyer submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children.
  5. [119]
    The respondent’s lawyer submitted that the application of the Briginshaw principle in this case requires the Tribunal, in determining whether the applicant’s case is an ‘exceptional case’, to consider the ‘gravity of the consequences’ for children if a working with children clearance were to issue. The respondent’s lawyer submitted that any consequences, in terms of prejudice or hardship to the applicant, are not a relevant consideration.
  6. [120]
    The respondent’s lawyer submitted that, having regard to the risks, it would not be in the best interests of children for a working with children clearance to issue.
  7. [121]
    The respondent’s lawyer submitted that having regard to all the circumstances, the Tribunal should find that the applicant’s case is an ‘exceptional case’ and that the decision of the respondent should be confirmed.
  8. [122]
    The respondent’s lawyer acknowledged that there are a number of competing human rights relevant to the decision before the Tribunal. The respondent’s lawyer submitted that a decision that the applicant’s case is exceptional will nevertheless be compatible with human rights because it will be justified by the factors outlined at s 13 of the HRA, including because it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which is itself a human right.  Furthermore, any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is the welfare and best interests of children are paramount.

Consideration of the evidence and findings of fact

  1. [123]
    In giving evidence before the Tribunal, the applicant presented as open and on occasion made admissions that were not in his interests. In assessing the applicant’s evidence, the Tribunal has carefully considered the respondent’s submissions that the applicant’s evidence should be treated cautiously because of past incidents where he did not make full and truthful disclosure.  The Tribunal notes that the applicant offered some explanation for his behaviour in that regard, for example he was scared of his mother’s reaction.  Further, whilst it is apparent from the Notice to Produce material that at the time of sentencing the applicant in relation to the 2015 offending, the Magistrate was unaware of the 2012 charge, there is no evidence that was due to the personal fault of the applicant.
  2. [124]
    The Tribunal notes that the psychologist, Mr Teoh, was not made available for cross-examination and did not provide any direct evidence to support the applicant’s evidence in relation to the insight and strategies that he gained through psychological treatment.  The Tribunal does not draw any particular inference from the absence of direct evidence of Mr Teoh as Dr Reddan acknowledged that the applicant had undertaken psychological treatment with Mr Teoh and that she had relied on information provided by him.
  3. [125]
    In any event, the Tribunal accepts and has placed much greater weight on the evidence of the expert witnesses being the paediatric endocrinologist, Dr Scott, and consultant psychiatrist, Dr Reddan.  They both demonstrated knowledge of the reasons for issue of the negative decision including the applicant’s history of offending and gave considered and persuasive evidence. 
  4. [126]
    Dr Scott’s professional opinion was that the cause of the applicant’s 2015 offending behaviour was his then undiagnosed and untreated hyperthyroidism which has now been effectively treated.
  5. [127]
    Dr Reddan’s professional opinion confirmed that the cause of the applicant’s 2015 was his undiagnosed hyperthyroidism and that the cause of his 2012 offending was immaturity.  In Dr Reddan’s opinion, the applicant presented very differently to sex offenders.  In her opinion, the applicant is not likely to repeat his offending behaviour in the future and does not represent a significant risk to children, minors or the public in general.
  6. [128]
    The Tribunal does not accept the respondent’s submissions that there remains the distinct possibility that there was a further underlying condition or triggers for the applicant’s offending behaviour that remains undiagnosed and untreated, which gives further cause for concern about the applicant’s ability to act protectively with children and young people.  That speculation is not consistent with the compelling evidence of Dr Scott and Dr Reddan.
  7. [129]
    Having weighed the evidence, the Tribunal makes the following findings of fact:
    1. (a)
      The applicant’s criminal history is as outlined above;
    1. (b)
      The applicant’s 2012 offending was most likely a result of the applicant’s immaturity at the time;
    2. (c)
      The applicant’s 2015 offending was most likely a result of the applicant’s then undiagnosed hyperthyroidism;
    3. (d)
      The applicant is genuinely remorseful for his offending behaviour and the impact on affected persons and the community at large;
    4. (e)
      The applicant has genuine insight into his offending behaviour. He has developed this insight at least in part from his consultations with Mr Teoh;
    5. (f)
      The applicant understands that the offending behaviour was wrong, presents a risk to children and is not suitable for a person responsible for the care of children;
    6. (g)
      The applicant is motivated to not reoffend;
    7. (h)
      The applicant has developed a strategy to avoid reoffending, which at least includes to dialogue with himself about the wrongfulness of the behaviour and the effect on any victim and to “walk away”;
    8. (i)
      Since the 2015 offending, the applicant’s circumstances have substantially changed. In particular:
      1. He has developed maturity;
      2. His hyperthyroidism has been successfully treated;
      3. His sexual development has been otherwise normal;
      4. He has been engaged in an adult relationship for approximately three years;
      5. He has excelled academically in his university studies;
      6. He has not engaged in further offending; and
      7. He has supportive relationships with his mother, sister and girlfriend.

Consideration of the law and facts relevant to this case

  1. [130]
    The Tribunal is required to determine whether an exceptional case now exists in respect of the applicant.
  2. [131]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  3. [132]
    The Tribunal has also considered the submissions on behalf of the applicant and respondent respectively concerning relevant risk factors and protective factors.
  4. [133]
    The Tribunal accepts that the applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[38]
  5. [134]
    However, the applicant has a criminal history as follows:
    1. (a)
      One charge of Observations or recordings in breach of privacy (on 28 December 2012) when the applicant was thirteen years old: The applicant admitted committing the offence. Instead of proceeding to court, the matter was dealt with on 28 December 2012, by the issue of a Notice of Caution under s 15(1) of the Youth Justice Act 1992 and no conviction was recorded. Security officers banned the applicant from the shopping centre where the offence occurred for six months; and
    2. (b)
      Two charges of Observations or recordings in breach of privacy (on 25 April 2015) when the applicant was fifteen years old: At the Magistrates Court hearing, the prosecution did not offer any evidence in relation to the two original charges and made one substitute charge of Commit Public Nuisance in lieu of the two original charges. The applicant pleaded guilty to the substitute charge. The Magistrate noted that the applicant had admitted the alleged conduct and appeared to place considerable weight on her understanding that it was a ‘one off’ situation that had been addressed. The Magistrate did not appear to be aware of the 2012 offending.  The Magistrate reprimanded the applicant but did not record a conviction.
  6. [135]
    The victim of the 2012 offending was an adult woman.  One victim of the 2015 offending was an adult woman and there is insufficient evidence to be satisfied that the other victims of the 2015 were not also adult women.
  7. [136]
    The Tribunal accepts that it is possible that had the sentencing Magistrate in respect of the 2015 offending been aware of the 2012 offending, the sentencing outcome could have been different. Otherwise, this Tribunal is not in a position to speculate on that omission.
  8. [137]
    In any event, it is significant that both Dr Scott and Dr Reddan took both the applicant’s 2012 offending and 2015 offending into account in giving their professional opinions.
  9. [138]
    The applicant’s 2012 offending and 2015 offending were similar types of behaviour which could indicate a persistent pattern of behaviour.  Further it appeared, at least at times, to be pre-meditated and predatory in nature.
  10. [139]
    For all of the reasons that are detailed above, the applicant’s offending behaviour is a significant risk factor which gives rise to very serious concerns about his ability to provide a protective environment for children and to ensure their safety and wellbeing.
  11. [140]
    The Tribunal accepts that the applicant has not engaged in any further offending behaviour since the 2015 offending.
  12. [141]
    However, the passage of time alone is not determinative of whether or not a case is an exceptional case[39] and it is necessary to consider this risk factor and other risk factors in the context of all the relevant circumstances.
  13. [142]
    Having regard to all the evidence, the Tribunal accepts that risk is currently mitigated by several factors:
    1. (a)
      As noted above, the Tribunal accepts the evidence of Dr Scott and Dr Redden and finds their evidence to be particularly persuasive.  Dr Reddan’s professional opinion is that the applicant presented very differently to sex offenders, is not likely to repeat his offending behaviour in the future and does not represent a significant risk to children, minors or the public in general;
    2. (b)
      The applicant understands that the offending behaviour was wrong, presents a risk to children and is not suitable for a person responsible for the care of children;
    3. (c)
      The applicant has demonstrated genuine remorse for his offending and regret for the effect of his offending on affected persons and the community as a whole;
    4. (d)
      The applicant has developed genuine insight into the reasons for his offending. The applicant was able to articulate the reasons for his offending including immaturity and undiagnosed hyperthyroidism. He has developed this insight, at least in part, through professional counselling with Mr Teoh;
    5. (e)
      The applicant has developed a plan of action to avoid the likelihood of relapse, which includes to dialogue with himself about the wrongfulness of the behaviour and the effect on any victim and to “walk away”;
    6. (f)
      The likely causes of the applicant’s offending behaviour have now been addressed:
      1. The applicant’s immaturity was the cause of the 2012 offending however the applicant has now developed in maturity;
      2. The applicant’s undiagnosed hyperthyroidism was the cause of the 2015 offending however it has now been successfully treated;
    1. (g)
      Since the 2015 offending the applicant has demonstrated normal sexual development; and
    2. (h)
      A number of protective factors exist:
      1. The applicant has been engaged in an adult relationship for approximately three years and has a supportive relationship with his girlfriend;
      2. The applicant also has positive stable supports including with his mother and sister; and
      3. The applicant has excelled academically in his university studies and this is a significant protective factor because he has demonstrated a genuine commitment and determination to make positive life changes and further it is a means for him to achieve his positive life goals and engage with positive supports.
  14. [143]
    The Tribunal is satisfied that the applicant’s life and personal circumstances are now vastly different to his circumstances at the time of his offending behaviour.
  15. [144]
    Those positive changes have been successful in ameliorating the risk of further offending behaviour.
  16. [145]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that the applicant now presents a low risk of reoffending and that there is not a real and appreciable risk that the applicant would harm children whilst employed or undertaking volunteer work.
  17. [146]
    Further, the Tribunal is not satisfied, on the balance of probabilities, that it would not be in the best interests of children for the respondent to issue a working with children clearance.
  18. [147]
    Having regard to the provisions of the WWC Act, the Tribunal does not accept the submissions of the applicant’s counsel that the Briginshaw principle, in this matter, requires the Tribunal to consider any consequences, in terms of prejudice or hardship, to the applicant in the event of a finding which is adverse to the applicant.  In this case, those matters are not a relevant consideration and the Tribunal has not taken those matters into account in determining this application.
  19. [148]
    For all the reasons set out above:
    1. (a)
      The Tribunal is not satisfied that the applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act; and
    2. (b)
      It is appropriate that the Tribunal orders that the decision of the respondent that the applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is set aside and replaced by the decision that there is no ‘exceptional case’ in respect of the applicant.

Non-publication

  1. [149]
    The Tribunal may, on the application of a party to the proceeding or on its own initiative, make an order prohibiting the publication of certain information or evidence if such an order is necessary, relevantly, in the interests of justice.[40]
  2. [150]
    A child-related employment review is required to be held in private.[41] This is consistent with the sensitive nature of information often considered in such hearings and the overriding principle that the welfare and best interests of a child are paramount.[42]
  3. [151]
    In the circumstances, the Tribunal considers that it is appropriate for orders to be made that publication of the name or identifying information of the applicant, or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  4. [152]
    Accordingly, these reasons are to be published in a de-identified format.

Relevant Human Rights

  1. [153]
    In conducting this review, the Tribunal has:
    1. (a)
      interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights;[43]
    2. (b)
      acted and made a decision in a way that is compatible with human rights;[44] and
    3. (c)
      in making a decision, given proper consideration to relevant human rights that may be affected by the decision and considered whether the decision would be compatible with human rights.[45]
  2. [154]
    Human rights which may be affected by this child-related employment decision made under the WWC Act relevantly include:
    1. (a)
      the human rights of the applicant to ‘privacy and reputation’,[46] ‘to take part in public life’,[47] ‘to further vocational education and training’;[48] and
    2. (b)
      the human 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’.[49]
  3. [155]
    The Tribunal is satisfied that the Tribunal’s decision will nevertheless be compatible with human rights because it is reasonable and justifiable having regard to the matters set out in s 13(2) of the HRA. In particular, the decision will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children, which is itself a human right.[50] Further, any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is, the welfare and best interests of children are paramount.

Orders

  1. [156]
    Accordingly, the Tribunal makes the following orders:
  1. The decision of the Director-General, Department of Justice and Attorney-General that HM’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of HM.
  2. Publication of the name or identifying information of HM or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]  Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.

[2]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[3]  WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16.

[4]  WWC Act, s 221(2).

[5]  WWC Act, sch 7 (definition of ‘disqualified person’); s 17.

[6]  WWC Act, s 354(1).

[7]  WWC Act, s 353 (definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’).

[8]  WWC Act, s 354(1).

[9]  WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’); s 354.

[10]  QCAT Act, s 19(a).

[11]  QCAT Act, s 19(c).

[12]  QCAT Act, s 20(1).

[13]  QCAT Act, s 20(2).

[14]  QCAT Act, s 21.

[15]  WWC Act, s 221(1).

[16]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[17]  WWC Act, s 221(2).

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

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

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

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

[22]  WWC Act, s 5(b).

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

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

[25]  [2008] WASCA 171, [109].

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

[27] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

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

[29]  WWC Act, sch 7 (definition of ‘child-related employment decision’); s 358.

[30]  WWC Act, s 360.

[31] SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [109].

[32]  HRA, s 48.

[33]  HRA, s 58(2).

[34]  HRA, s 58(1).

[35]  HRA, s 58(5).

[36]  HRA, ss 8, 13.

[37]  WWC Act, sch 7 (definition of ‘conviction’).

[38]  WWC Act, sch 7 (definition of ‘serious offence’); s 15. WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16. 

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

[40]  QCAT Act, ss 66(1), (2) and (3).

[41]  WWC Act, s 361(1).

[42]  WWC Act, s 360.

[43]  HRA, s 48.

[44]  HRA, s 58(1).

[45]  HRA, s 58(5).

[46]  HRA, s 25.

[47]  HRA, s 23.

[48]  HRA, s 36(2).

[49]  HRA, s 26(2).

[50]  HRA, s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 13

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    18 Jan 2021

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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