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ST v Director-General, Department of Justice and Attorney-General[2021] QCAT 337

ST v Director-General, Department of Justice and Attorney-General[2021] QCAT 337

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ST v Director-General, Department of Justice and Attorney-General [2021] QCAT 337

PARTIES:

ST

 

(applicant)

 

v

 

DIRECTOR-gENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

 

(respondent)

APPLICATION NO/S:

CML035-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

30 September 2021

HEARING DATE:

19 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 15 January 2020 that this is an “exceptional case” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
    1. (a)
      the contents of a document or thing filed in or produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal,

is prohibited to that extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or any non-party to the proceedings, save as is necessary to the parties to these proceedings.

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 – application for review of decision to issue negative notice – where applicant was charged with possessing child exploitation material in 2007 – where charge is a serious offence and disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where charge ‘dealt with’ – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance.

Human Rights Act 2019 (Qld), s 12, s 23, s 26(2), s 27, s 28, s 36(2), s 59

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226

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 [2004] QCA 492

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28

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

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES & REPRESENTATION:

 

Applicant:

Ms L Cho, Robertson O'Gorman solicitors

Respondent:

Ms CA Davis, Blue Card Services, Justice Services, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    The applicant, ST, is currently a senior firefighter with Queensland Fire & Emergency Services. He has been a fire fighter for over 24 years. As a condition of ongoing employment, firefighters are now required to have a working with children clearance and a blue card. ST applied for a working with children clearance and blue card. He had, however, previously been charged with a “disqualifying offence”, although the charge was dismissed.
  2. [2]
    Where a person has been charged with a disqualifying offence that has been ‘dealt with’ other than by conviction, a working with children clearance must be issued to the person,[1] 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 working with children clearance to be issued.[2]
  3. [3]
    The respondent proposed to issue ST with a negative notice and so invited him to make submissions about whether or not his was an exceptional case.[3] ST made submissions[4] and provided the names of referees.
  4. [4]
    On 15 January 2020, the respondent made a decision that ST’s was an “exceptional case” and issued a negative notice. A person who is not a ‘disqualified person’[5] is entitled to apply for review of a ‘chapter 8 reviewable decision’[6] within 28 days of that decision.[7] A ‘chapter 8 reviewable decision’ includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice is issued.[8]
  5. [5]
    ST is not a disqualified person and, on 29 January 2020, applied for review of the decision that his case was 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.

Overview of relevant statutory provisions

  1. [6]
    The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).[9] The purpose of the review is to produce the correct and preferable decision,[10] on the evidence before it and according to law.
  2. [7]
    In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[11] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the original decision-maker.[12]
  3. [8]
    The object of the WWC 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. It is protective legislation.
  4. [9]
    A child related employment decision, which is defined to include a ‘chapter 8 reviewable decision’, is to be reviewed under the principle that the welfare and best interests of a child are paramount.[13] The overriding concern is the potential for future harm to children.
  5. [10]
    ST was charged in 2007 with possessing child exploitation material. Under s 221(1)(b)(iv) of the WWC Act, a working with children clearance or ‘blue card’ must be issued to a person who was charged with a disqualifying offence that has been ‘dealt with’ other than by a conviction. ‘Dealt with’ in relation to a charge of an offence is defined in schedule 7 to include where the charge has been dismissed or a nolle prosequi or no true bill is presented in relation to the charge. A ‘disqualifying offence’ is defined in schedule 7 by reference to s 16. Under s 16, an offence against a provision of an Act mentioned in schedule 4, column 1 is a disqualifying offence. The offence of possessing child exploitation material (s 228D of the Criminal Code) is a disqualifying offence.[14]
  6. [11]
    However, s 221(1)(b)(iv) is subject to s 221(2) which provides, relevantly, that if s221(1)(b) applies and the chief executive 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, the chief executive must issue a negative notice.
  7. [12]
    It is the existence of the chief executive’s satisfaction which enlivens the power to issue a negative notice.[15]
  8. [13]
    The term ‘exceptional case’ is not defined in the WWC Act. It has been observed, by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher[16] that:

… it would be most unwise to lay down any general rule with regard to what is an exceptional case …. All these matters are matters of discretion.[17]

  1. [14]
    Thus, what might be 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.[18]

  1. [15]
    The object of the WWC Act is, as set out in s 5, to promote and protect the rights, interests and wellbeing of children and young people in Queensland through, relevantly, screening persons employed in particular employment. The principles under which the Act is to be administered are:
    1. (a)
      the welfare and best interests of a child are paramount;
    2. (b)
      every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[19]
  2. [16]
    In deciding whether there is an exceptional case in circumstances where the applicant has been convicted of, or charged with, an offence, the Tribunal must have regard to the criteria in s 226(2) of the WC Act.[20]
  3. [17]
    Section 226(2) provides:
  1. (2)
    The chief executive must have regard to the following—
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (v)
    in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. (b)
    any information about the person given to the chief executive under section 318 or 319;
  1. (c)
    any report about the person’s mental health given to the chief executive under section 335;
  1. (d)
    any information about the person given to the chief executive under section 337 or 338; 
  1. (e)
    information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
  1. (f)
    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. [18]
    Circumstances where an applicant for a blue card had been charged with but not convicted of an offence were considered by Buss JA (with whom Wheeler JA agreed) in Chief Executive Officer, Department for Child Protection v Grindrod [No 2].[21] His Honour said:

[84]  It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.

[85] … Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function.

 

[86]  

[87]  The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions. (original emphasis)

  1. [19]
    The legislation considered by Buss JA was not the same as the Queensland legislation. However, I find his Honour’s observations useful. In my view, in assessing the best interests of children in the context of this review, it is not necessary to determine whether or not ST was guilty of possessing child exploitative material. That said, the circumstances of and relating to the charge are relevant considerations. Those considerations, together with all of the relevant information, is to be evaluated to determine whether ST’s case is an exceptional case in which it would not be in the best interests of children, at this point in time, for ST to be issued with a working with children clearance, or ‘blue card’. In making that assessment, it is the totality of the evidence that must be considered.
  2. [20]
    The Tribunal, when conducting a review of a child-related employment decision, is a ‘public entity’ and, as such, subject to the Human Rights Act 2019 (Qld) (HRA). Under s 58, it is unlawful for a public entity to make a decision in a way that is not compatible with human rights or without giving proper consideration to a human right relevant to the decision. Human rights relevant to ST would include: the right to privacy (HRA, s 21); the right to take part in public life (HRA, s 23); the right to further vocational education and training (HRA s 36(2) and ST’s cultural rights (HRA, ss 27-28).
  3. [21]
    The human rights of children are also engaged by this review. They are the right of every child to “the protection that is needed by the child, and is in the child’s best interests, because of being a child” as provided for in s 26(2) of the HRA.
  4. [22]
    The two principal reasons why ST was not given a blue card may be summarised as follows:
    1. (a)
      the circumstances surrounding the discovery of filenames suggestive of child exploitative material in ST’s Recent Documents List by a colleague who accessed ST’s personal computer at work on 20 February 2007; and
    2. (b)
      the child safety investigation conducted in 2010 in relation to ST allowing his children to spend time with their mother, from whom he was separated, at a time when she was mentally unstable.
  5. [23]
    They remain the grounds agitated before me.

Overview of the 20 February 2007 incident 

  1. [24]
    The circumstances surrounding the incident at the fire station on 20 February 2007 are summarised below from the transcript of the committal hearing, records of police interviews, other interviews, statements and submissions by ST.
  2. [25]
    For some time prior to the incident of 20 February 2007 ST said that he had been accessing pornography using a Dutch pornography site but had found it increasingly difficult to find content he had not seen before. A few months before the incident of 20 February 2007, ST said that he started to use a file sharing program called Lime Wire Pro.
  3. [26]
    ST explained that when a search was entered into Lime Wire, the search engine generated a long list of results based on how closely the search term matched the file’s name or the terms in its associated metadata and how popular it was on the computers in the Lime Wire pool. ST explained that because some users included every ‘porn term’ they could think of in the metadata of the pornography they had uploaded, the first page of search results would always be the same files. All of these files were hosted on hundreds or thousands of computers which is part of the reason, he said, that they always appeared in search lists. ST said that for a couple of months he had worked his way through the list, downloading any video that sounded interesting to him. Eventually he said that he began downloading any short video because he found that the title often bore no resemblance to the content of the video. ST said that, at that time, videos had to be downloaded before they could be viewed because there was no streaming. ST said that when he downloaded files he would always exclude those files with ‘CP’ (I infer, “child pornography”) sounding names.
  4. [27]
    However, on the night of Sunday, 18 February 2007, ST said he was tired, upset and under the influence of alcohol and after a frustrating attempt to search for content he had not seen, he entered the search terms “underage” and “incest” and a third word he could not recall and began to download files which were referenced ‘CP’.
  5. [28]
    In the police interview[22] conducted at the police station immediately after the filenames with references to sexual acts between children were discovered, ST said:

ST: I believe I used three search words that were wrong. …

Officer: And what were those three words?

ST: I remember underage, there were another two words of that same meaning but I can’t remember exactly what they were. …

ST: No it wasn’t barely legal. Incest was the second one.

ST: And I can’t remember what the third one was but it will be on the computer.

Officer: Was it of a sexual nature?

ST: It was of an underage sexual nature.

….

Officer: Did you know that entering into these sort of sites and using these kind of key words and things like that might be a…?

ST: I knew that having um, child pornography on your computer was wrong but I didn’t realise that um, as I said tonight that um, just searching for it was illegal which I didn’t realise…

Officer: So do you think it was a probable consequence of typing in those words that the likelihood might be that you really did get some material of children that were underage? Or human beings that were underage, under sexual age?

ST: Um, looking back it was a really stupid thing to do I admit that. Um looking back not late at night and sober um, I realise is that yeah I was probably asking to um encounter some of that material.

  1. [29]
    Later, including at the hearing, ST maintained that he did not believe that the contents of the videos he downloaded on the 18th of February would contain child pornography, just that they were videos that had been “sensationally named”. ST also maintained that of the 10 or so videos downloaded that night, in fact, only the last one was “definitely questionable”. That was a video of a girl of about 12 years undressing. ST said that his intention was to search for “barely legal girls” meaning to him eighteen to twenty year olds.[23] ST said that when he saw the video of the 12 year old girl he was shocked and immediately deleted it, deleted all other files that had partially downloaded and stopped searching.[24]
  2. [30]
    In an interview to the Ethical Standards Unit on 22 February 2007 ST described his actions as follows:

Downloaded about ten of these files… after I’d downloaded about ten of these files had… oh sorry, the download’s done, one finished. I opened it up to see what it was and it was… there was a young girl getting undressed. As soon as I saw what was starting to happen, I closed that down. Actually, as soon as I saw what happened, I really went back in and stopped all the downloads, deleted all the downloads that were happening. Deleted all the partial downloads. Deleted that file. Deleted everything. Got out of Lime Wire. And really closed down the computer. I really frightened the living crap out of myself because I didn’t think I was going to encounter that material, it’s a public domain server. It’s not the ??? sort of place where I expected to really actually find that sort of material.[25]

  1. [31]
    ST, in his submissions of 5 December 2019 states that all files that had been downloaded with CP sounding names had been deleted that evening, bar one which had been renamed to a non-CP sounding name to reflect its contents. At another stage, ST said that when the files were downloaded they all (ST said there were 10 files) went into the Lime Wire shared file which was located on his computer at C Drive, Documents and Settings, [x], Lime Wire shared.[26]
  2. [32]
    In the police interview of the 20th of February 2007, ST describes deleting two folders of material from his computer when he had the opportunity to do so, after the filenames had been discovered but before anyone went back to his computer to try to open the files: My Pictures and Limewire shared.

ST: So I immediately panicked and went in a quickly deleted everything.

ST: No, I just went into, I went into two folders um, one was um, just pictures stuff, that’s where I keep all my normal stuff.

Officer: Into My Pictures?

ST: Yep. That’s were I just keep pictures and videos and I went into Lime Wire Shared and deleted that.

Officer: So shift/delete on both of those?

ST: Shift/delete. The stuff in My Pictures was normal stuff. The stuff in Lime Wire when I went in there was still three files of questionable names.

Officer: What were those names?

ST: I can’t remember what the names were. One was something about um, Japanese lady sleeps with ten year old son or words to that effect.

ST: And it had an um, like a forty year old Japanese lady um, doing things of a sexual nature to a guy who definitely looked about twenty, twenty-five.

  1. [33]
    The events which led to ST being apprehended and interviewed by the police were as follows.
  2. [34]
    On Tuesday, 20 February 2017 ST was rostered to do a night shift at a fire station other than the one he usually worked at. He took his computer and set it up in the training room so that he could play computer games during his shift which they were allowed to do. A junior firefighter accessed the computer, which was not password protected, and saw ST’s Recent Documents list. The files listed there included files with titles suggestive of child exploitation material.
  3. [35]
    The junior firefighter who first saw the List reported what he had seen to another firefighter who also viewed the list of documents. They both then reported what they had seen to the Station Officer. The Station Officer then approached ST and said words to the effect that there was an issue with his computer in the training room. The Station Officer was then distracted by another person about another matter. In that time, ST was able to access his computer and delete two folders titled “My Pictures” and “[x]/ Limewireshared”. ST maintains that the folders he deleted contained only adult pornography, although he admits that there were 3 files with questionable titles in the Limewireshared folder. I note that ST had 3 different user names for his computer and, on the night of 18 February 2007, he used the user name “[x]”.
  4. [36]
    Due to the deletion by ST, the videos were not available for examination. It was argued by ST’s legal representative at the committal that the title of the videos or images was hearsay and not admissible evidence of the contents of the files. The Magistrate observed that, although ST had admitted to viewing one video of a young girl undressing, that without the video, the prosecution was “almost doomed to failure”[27] and the charge was dismissed.

The Department of Child Safety notification

  1. [37]
    The Child Safety Investigation in 2010 was in relation to ST allowing his children to spend time with their mother who was mentally very unwell. ST said that his children had telephones and understood they were to call him if they became concerned while with their mother. The Department investigated the incident and assessed that ST was a parent willing and able to meet the care and protection needs of his children and no further intervention of the Department was required.[28]

Consideration

  1. [38]
    As outlined above, in making my decision as to whether an exceptional case exists, I must have regard to the criteria in s 226(2). The weight to be given to each criteria will vary depending on the facts and circumstances of the particular case[29] though the welfare and best interests of children will always be paramount.[30]
  2. [39]
    I turn first to consider the criteria in s 226.

Whether the offence is a conviction or charge[31]

  1. [40]
    ST was charged with possession of child exploitation material. It is not a pending charge, having been ‘dealt with’ within the meaning of s 221(1)(iv). The prosecution offered insufficient evidence in relation to the charge and it was dismissed.[32]
  2. [41]
    The respondent submits that police information indicates that this was because:
    1. (a)
      ST deleted a file containing child exploitation material from his computer on 18 February 2007;
    2. (b)
      ST deleted files purporting to be child exploitation material from his computer on 20 February 2007; and
    3. (c)
      At a committal hearing on 23 January 2008, the Magistrate concluded that the evidence placed before the court was not sufficient to support the charge and that, “in the absence of an actual image, the Crown case is almost doomed to failure”.[33]
  3. [42]
    ST denies that child pornography, bar the one video media file he admitted to viewing, was ever on his computer. He says that the suspect filenames found on his computer, though suggestive of child pornography, were adult pornography. ST submits that the charge was dismissed because there was no evidence of child pornography found on his computer because it had never been there in the first place.
  4. [43]
    ST, in his submissions of 5 December 2019, states that at the committal hearing the prosecution admitted that “the files with CP sounding names had been recovered by forensic software and did not contain child exploitation material”. Further, that “no software of the sort sometimes used by criminals to hide their activities was found to have ever been installed”. And finally, that “no files with CP sounding names had been downloaded or accessed at any other time other than the one night in question”.
  5. [44]
    This was said by ST prior to the production of documents ordered by the Tribunal and received on 9 September 2020. In fact, the transcript of the committal hearing indicates that the files were not able to be retrieved by the forensic analyst. However the results showed that files with questionable names had been downloaded, viewed and, in some cases, saved.[34] No mention was made during the hearing of the existence or otherwise of software used to hide criminal activity.
  6. [45]
    The fact that a criminal charge does not result in a conviction does not, of itself, mean that there is no increased risk to the welfare and best interests of children. This is recognised by the express inclusion of the existence of charges as a mandatory consideration in s 226. The Explanatory Notes to the original version of the WC Act, namely the Commission for Children and Young People Act 2000 (Qld), explains the justification for requiring decision makers to consider charges:

Clause 98 provides that this part applies to a person despite anything in the Criminal Law (Rehabilitation of Offenders) Act 1986. “Criminal history” is defined as including a charge of an offence in any form and convictions whether or not a conviction is recorded. These provisions are intended to provide the commissioner with access to all information considered necessary in assessing a person’s suitability for child related employment. There are a number of circumstances where the presence of certain charges in a person’s criminal history, even without the presence of convictions, would be relevant in making decisions about a person’s suitability to work with children. For example, in cases involving sexual offences against children, convictions may be difficult to obtain because of the need to rely on child witnesses. There are instances where the court may decide that a child witness is too young to give evidence or withstand the experience of an adversarial court proceeding.

A person to whom the application for a suitability notice for child related employment relates, however, is accorded natural justice by being given the opportunity to respond to the information and the commissioner must consider the person’s submission prior to determining the application.

Furthermore, the decision by the commissioner to issue a notice of unsuitability (a “negative notice”) may be reviewed by the Children Services Tribunal (cl. 121), and the Children Services Tribunal Bill 2000 provides that the decision of the Tribunal may be reviewed by the District Court on a question of law.

In addition to the review mechanism offered by the tribunal, clause 118 provides that a person who has been issued a current negative notice may apply to the commissioner to cancel the notice if two years has elapsed since the issuing of the notice. This provision effectively allows the commissioner to reconsider a person’s suitability for child related employment having regard to the time since the offence or alleged offence occurred and whether the person’s circumstances have changed in a way that the person would no longer be considered a risk to children.[35]

  1. [46]
    In this case, the matter was a charge rather than a conviction. I accept that, generally, a conviction will be given more weight than a charge. However, the very reason for including charges was an acknowledgement by the legislature that in some cases, for example due to the age of witnesses, a conviction may not be achieved although the offence occurred. In this case, although there was no conviction, I am not satisfied that ST never had child exploitative material on his computer. I also take into account that ST was the person who deleted the folders that may have contained that evidence. Further, I take into account that although the charge was dismissed, ST admitted to having viewed a video of a young girl undressing, albeit he said by accident. I also note that ST used at least one search term, “underage”, which was likely to retrieve child exploitative material and which he accepted was likely to do so.

Whether the offence is a serious offence and, if so, a disqualifying offence[36]

  1. [47]
    ST was charged under s 228D of the Criminal Code with possessing child exploitation material. That offence is defined as a serious offence[37] and is a disqualifying offence[38] under the WC Act.
  2. [48]
    I note in that context that if ST had been convicted of the offence he would have received a negative notice unless the chief executive was satisfied it was an exceptional case in which it would not harm the best interests of children for the chief executive to issue a working with children clearance.[39]

When the offence or alleged offence was committed[40]

  1. [49]
    The conduct that led to the alleged offence was committed in February 2007, almost 14 years ago.
  2. [50]
    That the alleged offence took place such a long time ago, in circumstances where there have been no other such allegations or any new assessable information, is in my opinion a factor that weighs in favour of this not being an exceptional case.
  3. [51]
    I accept that the passage of time without further offending, of itself, is not conclusive that the risk of harm is reduced.[41] However, that does not mean that the passage of time is not relevant. Obviously what occurs in the time since the offence may be of relevance, as some of the circumstances here demonstrate.
  4. [52]
    The Department submits that the time since the charge is of less significance because, on the evidence of Mr Jordan, ST only recently gained insight into his behaviour. The submission is based on the evidence of Mr Jordan, ST’s psychologist. Mr Jordan said that at the time of the charge ST would achieve the greatest sense of arousal by viewing material that involved males, who appeared to be around 16, being seduced by an older woman, such as a mother or stepmother.[42] Mr Jordan states in his report that it was only through interviews with Mr Jordan and “in relatively recent times and in discussions with his current wife, that he had begun to understand” the link “between his childhood experience of sexual abuse” and “the penchant he developed at that time for viewing this type of material’.[43]
  5. [53]
    While insight may be a relevant factor in assessing risk, there is no evidence that ST could only change his behaviour with insight as to why it occurred. Mr Jordan, when asked in the hearing if there was a necessity for ST to have engaged in counselling in order to reduce the risk of offending in the future, said there was no necessity. That said, he added that, while ST’s risk of offending was low prior to counselling, it was probably even lower now. Mr Jordan also considered that ST did not see himself as a risk, there had been no information that he had been a risk since 2007 and ST had experienced the “salutary effect” of what occurred on his behaviour such that ST had determined it would not happen again.
  6. [54]
    Since 2007 ST has married SS. SS is highly supportive of ST. Their marriage is successful and stable and ST’s personal and family life, on the evidence of ST, SS and ST’s daughter, is positive and healthy. ST’s personal circumstances and lifestyle are vastly different to what they were in 2007, at the time of the alleged offence.
  7. [55]
    Mr Jordan also gave evidence that ST, due to his repressive upbringing as a Seventh Day Adventist, had not had the opportunity, until later, to fully mature. Mr Jordan considered that ST had now had that opportunity and had developed a stable and secure relationship with his current partner characterised by honesty and ease of communication as well as appropriate sexual intimacy.
  8. [56]
    In my view, the passage of time in these circumstances weighs in favour of ST’s not being an “exceptional case”.

The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children[44]

  1. [57]
    The charge involved ST downloading files from an interactive sharing website known as “lime wire shared”. The police facts suggest that ST admitted to using the search terms ‘underage’, ‘incest’ and another word he could not recall but was possibly “barely legal” or “teen”. He also admitted to downloading and viewing a media file of a 10 to 12 year old female child undressing, and acknowledged viewing the file for long enough to see her naked. ST did, however, say that he deleted that file as soon as he knew what it was.
  2. [58]
    The legislation categorises the offence with which ST was charged as a serious and disqualifying offence which demonstrates its relevance to employment, or carrying on a business, that involves or may involve children. The nature of the charge, possessing child exploitation material, is, in my view, of considerable relevance to employment, or carrying on a business that involves or may involve children.
  3. [59]
    ST entered inappropriate search terms into his computer on the night of 18 February 2007. There must have been at least some prospect, notwithstanding ST’s evidence that file names were often sensationalised, that the substance of the files was consistent with their description. I infer that ST deliberately accessed files with names of a child pornography nature knowing that there was at least some risk that they contained child pornography content consistent with the description of the file.
  4. [60]
    Whether the files did, in fact, contain child pornography, will never be known with certainty. With one exception, ST said that they did not. There is no direct evidence of the content of the files to the contrary; but there is evidence of search terms which, as I have said, may have recovered such files. There were also several filenames in the Recent Documents List suggestive of child exploitative material.
  5. [61]
    The respondent also submits that the nature of the offence raises concerns about ST’s ability to judge appropriate behaviour and present as a positive role model. They refer to CW v Chief Executive, Public Safety Business Agency[45] where it was held that it can be “harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong”.[46] This is of relevance but, in all of the circumstances, of relatively lesser relevance.

In the case of a conviction – the penalty imposed and if no imprisonment order or no disqualification order under s 357, the court’s reasons for its decision[47]

  1. [62]
    The charge was dismissed and did not result in a conviction.

Any information provided under ss 318, 319, 335, 337 or 338 of the WWC Act or under s 138ZG of the Disability Services Act[48]

  1. [63]
    No information has been requested or received pursuant to these sections.

Anything else relating to the commission, or alleged commission of the offence that is reasonably considered to be relevant to the assessment of the person.[49]

  1. [64]
    This factor is directed to anything else relating to the alleged commission of the offence that is relevant to “the assessment of the person”.
    1. (i)
      ST’s credibility and integrity;
  2. [65]
    The respondent submits that the police brief and NTP material show that ST’s credibility and integrity is an issue. They point to instances where ST has changed his story in relation to how much of the young girl he saw in the one video he admitted to watching. The respondent submits that ST initially blamed his brother for the files on his computer and said that he was searching for “barely legal” pornography, meaning to him just over 18 year olds, but afterwards said he was searching for “new unviewed content” and that the fastest way to view it was to “download files that came up on every search with [child pornography] sounding names”.[50]
  3. [66]
    ST also gave different descriptions to police to those he gave to QFRS investigators about the details of a file he watched involving a Japanese woman. The respondent says that those instances support the view that ST tends to say whatever casts him in the best light at a given point in time.
  4. [67]
    The respondent also submits that ST has, in effect, changed his position from his initial position in his application for review of 29 January 2020 denying any ill intent, to the delivery of a report of Mr Peter Jordan, psychologist dated 4 February 2021 in which Mr Jordan appears to confirm ST’s deviant sexual interests and their relation to his alleged offending. 
  5. [68]
    I accept that the discrepancies referred to are concerning.
  6. [69]
    However, and having observed ST give evidence, I do not consider that they mean ST is being less than truthful now, when he gave evidence that he no longer views the material he was viewing in 2007. ST was under considerable pressure when he was being interviewed the night the filenames were discovered and a few days later by police. I also note the evidence of Mr Jordan who referred to the objective personality assessment he conducted of ST and to his conclusion that following his assessment, that ST was not attempting to positively impress but was an “honest responder”. Mr Jordan also noted that the Magistrate had commented in the hearing that ST had been open in his interview with police and with his wife.
    1. (ii)
      The report of the psychologist;
  7. [70]
    I consider the report by the psychologist Mr Jordan to be relevant because the report relates to the alleged offence and is reasonably relevant to the assessment of ST. In his report Mr Jordan opines that the reason ST was particularly interested in adult role play pornography depicting a mother and an adolescent son engaging in sexual acts was because he had been sexually abused by his mother when he was 16 years of age. Mr Jordan was asked in the hearing whether he thought viewing adult role play pornography would lead to an increased risk of further deviance. Mr Jordan said that generally, although watching pornography in itself did not give rise to a risk of sexual deviancy, maladaptive use of pornography as a coping mechanism when it leads to an increase in frequency and to the viewing of more and more deviant material, leads to a risk of watching material that could be illegal in nature. However, he said that it has not been shown to lead to an increased risk of committing a contact offence with a child. In respect of ST, Mr Jordan suggested that his viewing of adult role play pornography may not lead to an increased risk of further deviance because there were very distinct reasons why he was seeking to watch that type of pornography at that time.
  8. [71]
    Finally, in his report Mr Jordan opines that: ST now understands that there was a link between his childhood experience of child abuse and the penchant he developed at the time for viewing adult pornography as a coping mechanism; ST has through counselling addressed the use of strategies to cancel any attraction that might arise to the type of adult pornography he was viewing in 2007; the lack of stability and lack of emotional intimacy which was an issue in the past, is no longer is a feature of ST’s life; ST is not a person who exhibits impulsive behaviour; ST’s risk of committing either a non-contact or contact offence against a child is low. This is in a context where it is not possible to state there are no risks as sexual risk assessments do not allow for a prediction of no risk whatsoever.
  9. [72]
    Mr Jordan states that if there was a considered risk, it would relate to ST viewing role-playing pornography with adults, not with children. Mr Jordan also notes that over 14 years have passed since the incident in 2007 and any potential risk of re-offending has been markedly reduced. Finally, that based on results of assessments and Mr Jordan’s clinical judgment that ST’s risk of committing an offence against a child is low.
  10. [73]
    I note ST has also attended counselling with JS. Mr Jordan reported that JS considered that if there was risk, it would relate to ST viewing role-playing pornography with adults, not with children.
    1. (iii)
      ST’s personal circumstances at the time.
  11. [74]
    I also consider the circumstances ST was in at the time of the alleged offence to be relevant. ST was, then, in a toxic, platonic relationship with his de facto partner who was severely mentally ill. ST gave evidence that they never went to bed at the same time and had no intimate relations.
  12. [75]
    ST also says that he suffered greater stress in his life in 2012 when his de facto partner, father and brother died but he did not resort to watching pornography.
  13. [76]
    Mr Jordan gave evidence at the hearing that ST, by self-report, did not at the time of the assessment have any issue with sexual deviancy. Mr Jordan said that this was consistent with JS’ observations. JS was the counsellor to whom Mr Jordan had referred ST. I note that this is also consistent with the evidence given by ST’s wife, SS.
  1. (iv)
     Character evidence
  1. [77]
    ST’s 21 year old daughter, SR, also gave evidence. She was an impressive witness and spoke positively about how wonderful her father had been in raising her and her brother. SR is a qualified teacher while her brother, ST’s son, is studying speech pathology at University, working part-time and living with SR. They were each appointed school captain during their respective final year of High School.
  2. [78]
    ST’s colleague, MC, gave a reference stating that in their role of attending as firefighter crews at fetes, schools and kindergartens to promote fire safety to children, he had observed ST’s interactions with children of all ages and that at no time was he ever concerned about his interaction or behaviour. MC states that ST has always conducted himself in a professional, caring and courteous manner and that he shows an overwhelming commitment to the wellbeing of his children and wife.
  3. [79]
    ST’s close friend of 26 years, WP, also gave a comprehensive reference, providing an in depth and informative background to ST’s character and history. ST and WP met while in the army reserves.
  4. [80]
    ST’s colleague of over 20 years, MI, provided a reference which was very positive and also gave evidence in the hearing. MI said that he had never seen anything regarding ST’s interactions with children that raised any concerns and that he considered ST no risk whatsoever in relation to children.
  5. [81]
    I found SR, MC, WP and MI to be honest and considered witnesses.

Conclusion

  1. [82]
    I have set out above that which I believe establishes to a reasonable degree of satisfaction that ST used at least one search term relating to child exploitation and that he sought to download files which by reason of their name he knew may contain child exploitation material.
  2. [83]
    That said, ST says he did not believe that the files contained child exploitation material and that, when he understood that one of them did, he immediately retreated from his searches and deleted the files. As noted, the police investigation could not locate any material of a child exploitation nature on his computer.
  3. [84]
    The paramount consideration under the WWC Act is the welfare and best interests of children and I am acutely conscious of that in my assessment.
  4. [85]
    In the context of a charge which has been dismissed a blue card should be issued in the absence of exceptional circumstances.
  5. [86]
    The nature of the search terms and the reprehensible names of some of the files, are among the reasons which support a conclusion that this is an “exceptional” case.
  6. [87]
    However, a number of circumstances in the case weigh against the case being regarded as exceptional. No child exploitation material was found on ST’s computer; the police could not prove that it was ever there and the charge was dismissed. It has to be acknowledged that the prosecution was unable to prove the case occurred notwithstanding every opportunity to forensically examine the computer.
  7. [88]
    Notwithstanding the suspicious circumstances it must also be acknowledged that ST has given sworn evidence that he did not intend to access child pornography; that he did not believe he was doing so; and that he deleted the one inappropriate file that in fact he observed. ST also gave sworn evidence that he has not used search terms like that since.
  8. [89]
    The Tribunal considered the relevance of charges against an applicant which did not result in conviction in Volkers v Commissioner for Children and Young People and Child Guardian[51] in which case the Members stated:

It is not this Tribunal’s function to adjudicate upon whether the Applicant is, in fact and at law, guilty or not guilty of the non conviction charges in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the Applicant may have committed previously, but with the prevention of future potential harm Chief Executive Officer, Department for Child Protections v Grinrod (No 2) (2008) WASCA 28 at paragraph 84.

  1. [90]
    As observed by the Tribunal in TNC v Chief Executive, Public Safety Business Agency:[52]

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

  1. [91]
    Charges of this nature are at the highest level of seriousness in the consideration of a person’s eligibility to be entrusted to provide a protective environment for children in activities regulated by the WWC Act. The alleged offending is directly child related.
  2. [92]
    That said, the evidence in relation to the charges was not sufficient to sustain a conviction, indeed it was insufficient for the matter to proceed beyond committal. No child exploitation material was ever found on ST’s computer.
  3. [93]
    There were some ameliorating circumstances at the time the incident occurred. ST was in a very difficult relationship and on the night in question had been drinking, which may have affected his judgement.
  4. [94]
    By contrast, ST is now in a strong and stable relationship and has been for a number of years.
  5. [95]
    I also take into account the evidence of the psychologist Mr Jordan, and through him, the colleague of Mr Jordan, JS, who ST saw for counselling. Both psychologists put the risk of ST committing contact offences against children as very low or minimal, in circumstances where they frankly admit it is not possible to say of anyone that there is no risk at all. Mr Jordan noted that the events which surrounded the discovery of the filenames on his computer, the police investigation, the charges, being stood down and the personal derision and embarrassment he suffered, were all reasons why, in his opinion, he was highly unlikely to search for material which might relate to child exploitation material. 
  6. [96]
    ST’s wife and daughter gave evidence that ST was not only a caring father but that he has always acted completely appropriately with children and young people. A number of work colleagues and friends of ST gave evidence favourable as to his character and to his interactions with children.
  7. [97]
    SS gave evidence that she 100% accepted ST’s explanation, that he did not intend to access child pornography, and did not think for a second he had any untoward interest in children or that he would actually be interested in child pornography. SS said she would have left him in an instant if she had thought otherwise. SS says that they are an extremely close and loving couple and that ST is completely normal and ordinary in all aspects of an intimate nature. SS says that he has never been secretive with his mobile phone, tablet or computer, frequently leaving them unattended and password free, and in full view of the rest of the house.
  8. [98]
    While I acknowledge the interest in which each of those hold in the outcome of ST’s application, I am prepared to find that the evidence of the psychologist together with the evidence of ST’s wife and daughter and his colleagues present a solid body of evidence attesting to his good character and to the fact that he poses a minimal risk of harm to children. I found each of ST’s wife and daughter to be impressive witnesses and that their evidence was genuine and truthful. I formed the same conclusion about ST’s colleagues.
  9. [99]
    I take account of the fact that it has been 14 years since the alleged offence.
  10. [100]
    The Tribunal is acutely conscious of the abhorrent nature of viewing child exploitation material and the community’s harsh condemnation of such behaviour. However, child exploitation material was in fact never found on ST’s computer, notwithstanding its forensic examination. The prosecution did not have sufficient evidence to secure a conviction, or even to proceed to trial. ST has never been charged with any other offence. Apart from this incident, his reputation is apparently good. There is no evidence that, even had he viewed such material, he is more likely to commit a child related contact offence. There is, indeed, evidence to the contrary. It has been 14 years since the charge. ST is in a secure, loving and stable relationship. His wife and daughter gave strong evidence in his support. So did colleagues and friends of long-standing.
  11. [101]
    ST expressed deep remorse for what he did on the night of 20 February 2007 and swore under oath that he has never accessed pornography since.
  12. [102]
    The human rights of ST, as outlined above, are relevant to this application and must be applied by the Tribunal in making its decision.[53] However, although those rights are relevant, the paramount principle, namely, the welfare and best interests of children must take priority.
  13. [103]
    In view of all the circumstances of this case, including the criteria in s 226(2), I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for ST to be given a working with children clearance and blue card. It follows that, ST’s charge having been dealt with, and in view of all the material before me and having regard to the criteria in s 226(2), that ST must be issued with a working with children clearance and ‘blue card’. 
  14. [104]
    I order as follows:
  1. The decision of the Director-General, Department of Justice and Attorney-General made on 15 January 2020 that this is an “exceptional case” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
  1. (a)
    the contents of a document or thing filed in or produced to the Tribunal;
  2. (b)
    evidence given before the Tribunal; and
  3. (c)
    any order made or reasons given by the Tribunal,

is prohibited to that extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or any non-party to the proceedings, save as is necessary to the parties to these proceedings.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act), s 221(1)(b)(iv).

[2]  WWC Act, s 221(2).

[3]  WWC Act, s 229.

[4]  Applicant’s submissions of 30 August 2019; 18 November 2019; 5 December 2019.

[5]  WWC Act, s 17.

[6]  WWC Act, s 353.

[7]  WWC Act, s 354(1).

[8]  WWC Act, s 353, definition of “chapter 8 reviewable decision” (a)(i).

[9]  QCAT Act, s 19(a).

[10]  QCAT Act, s 20(1).

[11]  QCAT Act, s 20(2).

[12]  QCAT Act, s 24(1).

[13]  WC Act, s 6(a); s 360.

[14]  Schedule 4, column 1.

[15] Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 at [65]; Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 at [101].

[16]  [2004] QCA 492.

[17]  Ibid at [34]; applied in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].

[18] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31].

[19]  WWC Act, s 6.

[20]  WC Act, s 226(1).

[21]  [2008] WASCA 28. The equivalent WA legislation is not identical to the WC Act. In particular, it defines the relevant risk as an “unacceptable risk”.

[22]  Transcript of Police Record of Interview, 20 February 2007 at 9:28pm to 10.27pm, BCS 114 at 135 to 136.

[23]  BCS 123: Police Interview of 20 February 2007.

[24]  BCS 124.

[25]  Interview conducted by Ethical Standards Unit on 22 February 2007, RTI 19376 at 197.

[26]  Transcript of Police Record of Interview of 20 February 2007, BCS 114 at BCS 122.

[27]  Transcript of proceedings, Magistrates Court, 23 January 2008, at 21.

[28]  BCS 25, Supporting information provided by the respondent on 31 March 2020.

[29] Grindrod [No 2] at [71].

[30]  WC Act, s 6(a).

[31]  WC Act, s 226(2)(a)(i).

[32]  Transcript of proceedings, Magistrates Court decision dated 23 January 2008, BCS 147-148.

[33]  Ibid, BCS 148.

[34]  Transcript of Proceedings, Magistrates Court, 23 January 2008, 16.

[35]  Explanatory Notes, Commission for Children and Young People Bill 2000, at 11.

[36]  WC Act, s 226(2)(a)(ii).

[37]  WC Act, sch 2.

[38]  WC Act, sch 4.

[39]  WC Act, s 225.

[40]  WC Act, s 226(2)(a)(iii).

[41] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 at [55].

[42]  Report by Peter Jordan dated 4 February 2021, at [9.33].

[43]  Ibid at [9.34].

[44]  WC Act, s 226(2)(a)(iv).

[45]  [2015] QCAT 219.

[46]  Ibid at [67].

[47]  WC Act, s 226(2)(a)(v).

[48]  WC Act, s 226(2)(b), (c), (d), (e).

[49]  WC Act, s 226(2)(f).

[50]  Submission of ST dated 30 August 2019, BCS 43.

[51]  [2010] QCAT 243, [58].

[52]  [2015] QCAT 489 at [83].

[53]  HRA, s 59.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 337

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    30 Sep 2021

Appeal Status

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