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WW v Director-General, Department of Justice and Attorney-General[2021] QCAT 7

WW v Director-General, Department of Justice and Attorney-General[2021] QCAT 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

WW v Director-General, Department of Justice and Attorney-General [2021] QCAT 7

PARTIES:

WW

(applicant)

v

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML246-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

8 January 2021

HEARING DATE:

8 October 2020 and 11 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 6 June 2019 that the applicant’s case is ‘exceptional’ 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 the applicant’s case is not exceptional.
  2. Publication of information which may enable identification of the applicant, witnesses, any child or the complainant is prohibited.

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 – where applicant has criminal history – where not categorised as serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant has no offending for more than ten years – 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 13, s 58

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 5, s 6, s 221, s 226, s 360, s 580, Schedule 7

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

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

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Re TAA [2006] QCST 11

APPEARANCES &

REPRESENTATION:

 

Applicant:

KW Gover, instructed by Neale Tobin Solicitor

Respondent:

D Taylor

REASONS FOR DECISION

Background

  1. [1]
    WW, a 53 year old male, was issued with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) on 18 June 2015. He applied to have his negative notice cancelled to enable him to complete the practical component of his university studies.
  2. [2]
    The respondent proposed to continue the negative notice, so invited WW to make submissions about whether or not there was an exceptional case for the applicant. The applicant provided material in response.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, 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 positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    The respondent advised by letter dated 6 June 2019 that it refused to cancel the applicant’s negative notice. The applicant seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28 day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    The applicant is not a disqualified person and sought review of the decision within the prescribed period.

The legislative framework

  1. [7]
    Pursuant to amendments to the WWC Act which came into effect on 31 August 2020, in undertaking this review the Tribunal must apply the amended WWC Act.[6]
  2. [8]
    The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act.[7] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[8] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[9] The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[10] 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 decision-maker for the decision, with or without directions.[11]
  3. [9]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[12] The principles under which the WWC 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.[13]
  4. [10]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[14]
  5. [11]
    Section 221 of the WWC Act provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division 4 and sections 199, 295(1) and 296.

  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. [12]
    For the present purposes, a working with children clearance must be issued unless the Tribunal 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. [13]
    The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts 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.[15]

  1. [14]
    In determining whether there is an exceptional case when a person has been convicted of an offence the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[16]
  2. [15]
    ‘Conviction’ is defined in 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’.
  3. [16]
    In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.[17] The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.[18]

Consideration of s 226(2) of the WWC Act

  1. [17]
    The matters listed in s 226(2) of the WWC Act must be considered by the Tribunal and are addressed below.

Whether the offence is a conviction or a charge

  1. [18]
    For the purposes of the WWC Act, the applicant has two convictions for ‘observations or recordings in breach of privacy’.

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

  1. [19]
    These offences are not serious offences[19] or disqualifying offences[20] under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card.

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

  1. [20]
    The applicant’s offending occurred between September 2008 and February 2009.

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

  1. [21]
    The applicant’s convictions relate to two occasions on which he filmed his teenage daughter in the bathroom on his mobile telephone, without her consent. The recordings depicted the complainant undressing and showed her genital region.
  2. [22]
    The QP9[21] indicates that when the police attended WW’s home to execute a warrant in relation to the videos, WW made immediate admissions that there were video files of his daughter in breach of her privacy on his telephone and that he had downloaded one of these images to his laptop. He voluntarily attended at the police station to be interviewed and during this interview told police he had sent the files to himself. He also acknowledged that he knew his actions were wrong.
  3. [23]
    The Additional Police Information[22] indicates that his daughter was 17 years old when the offending commenced and 18 years old on the last occasion. She was at high school at the time the recordings were made and lived in the applicant’s home.
  4. [24]
    The applicant was in a position of trust and responsibility as the complainant’s parent. Further, his daughter was living in a new country, with a family that was also new to her, with limited support, so was in a position of particular vulnerability.
  5. [25]
    The offending conduct raises concerns about the applicant’s ability to respect personal boundaries, to act protectively of children and to safeguard the best interests of children in his care.

In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision

  1. [26]
    The applicant pleaded guilty and was placed on probation for 18 months with no conviction recorded. The Court’s reasons for imposing these penalties are not known to the Tribunal.

Any information about the person given to the chief executive under s 318, s 319, s 335, s 337 or s 338

  1. [27]
    No information was given or received under these provisions of the WWC Act.

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. [28]
    Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.

The material and the evidence

  1. [29]
    The applicant provided the Tribunal with his life story and an affidavit, an affidavit from his wife and two reports from a clinical psychologist. He, his wife and the clinical psychologist were available for cross examination. Indeed, the proceedings were heard over two days to enable his psychologist to give evidence. Further statements and letters from the applicant, his wife, and various friends provided for the purposes of the application to the respondent are contained in the respondent’s bundle of documents. Oral submissions were made on WW’s behalf.
  2. [30]
    The respondent provided the Tribunal with a bundle of documents paginated BCS-1 to BCS-49,[23] including its reasons for the decision and documents obtained pursuant to notices to produce paginated NTP-1 to NTP-24.[24] The respondent had the opportunity to cross-examine the applicant, his wife and his psychologist. The respondent provided oral submissions.
  3. [31]
    The applicant emigrated to Australia from South America in the mid-1990s when he was in his late 20s. Here he met and married his wife. They returned to his home country from 2004 to 2006 and while there they adopted two children.
  4. [32]
    Also while overseas, he reunited with his biological daughter, then aged about 15. He had met her only twice before, once when she was aged about one and the second time when she was about seven years of age. The applicant, his wife and their two adopted children returned to Australia and his biological daughter later joined them, as they wished to provide her with a better future. She was aged 17, spoke no English and WW was her only family in Australia. His adopted children were aged about three and five at this time.
  5. [33]
    WW acknowledged that this would have been a challenging time for his daughter. He and his wife found his daughter’s behaviour extremely difficult, saying she was dishonest, disrespectful, and confrontational with his wife. Under cross examination he accepted that this was reasonably typical teenage behaviour. Feeling both ill prepared to care for a teenage daughter and responsible for the disruption being caused to the household by his daughter, he became stressed. The family was living with his wife’s mother at this time and family pressure for them to move out was an additional stressor for him.
  6. [34]
    WW’s daughter’s statement to police[25] indicated that on the first occasion she saw the applicant’s telephone on the bathroom floor while she was in there getting undressed and kicked it back under the door. When she asked her father why the telephone had been there, she said he told her that it had fallen onto the floor. She said she was too scared to say anything more to her father but told her grandmother. When she checked his phone later that day she did not find any pictures from the bathroom that morning.
  7. [35]
    Her statement continues, that in February the following year she was checking WW’s telephone and found a video which she recognised as being of her getting undressed, which showed her genitals. As she was about to show her grandmother the video her father came home, so she returned the telephone and said nothing to her father. She said she arranged to stay with her boyfriend’s family and left her family home. When she spoke with her father the following day she said that he ‘basically told me that my clothing was thrown out in the street.’[26]
  8. [36]
    The applicant has consistently maintained that the first recording was accidental and the second was purposeful. He could not explain how the telephone came to be recording on the first occasion. WW said his conduct on the second occasion was motivated by multiple factors. He wanted to know what she was doing in the bathroom that caused her to spend so much time there, he was stressed and frustrated by her behaviour and its impact on the household and he intended to endeavour to manipulate her behaviour by embarrassing her with the video recording. He realised this was a bad idea and did not act on this intention. He denied that he filmed his daughter because he had a sexual interest in her or for sexual gratification.
  9. [37]
    While he maintained that he intended to delete the video, he did not and was unable to explain why he did not delete it.
  10. [38]
    The applicant did not know his daughter had found the video on his telephone at the time she left the house and went to stay with her boyfriend’s family. The absence of this knowledge impacted his understanding of the events of this time. His daughter’s citizenship ceremony had been conducted the day before she found the video. When she disappeared, he thought that having achieved citizenship she did not need him anymore and so left the family home. He felt he and his wife had been used by her and he was hurt. He denied that her belongings were in the street, saying they were outside the door of the home for her to collect. He has not seen his daughter since she left the house that day.
  11. [39]
    He now recognises ‘that my actions caused her both embarrassment and emotional pain and have completely destroyed any trust between us. I am extremely remorseful’.[27] While he has had no contact with his daughter or her mother since that time, he hopes one day to express to her his deepest apologies for the hurt he caused her.
  12. [40]
    WW acknowledged that he had ineffective communication and coping skills and strategies at the time of his offending. The applicant has since undertaken counselling, which he said has enabled him to improve these skills and mechanisms. These sessions also enabled him to examine the effect of his conduct upon his daughter, his wife and himself.
  13. [41]
    While it was tested at the time of his offending, he said his relationship with his wife is now stronger. He endeavours to have an open and honest relationship with his two adopted children whom he seeks to discipline in a fair and respectful manner. He indicated that if confronted today with the same concerns about a teenage daughter he would talk to her about it.
  14. [42]
    The applicant has reengaged in tertiary studies.
  15. [43]
    Following the offending conduct, Child Safety recorded a Child Concern Report, noting that while the information received indicated highly inappropriate behaviour by WW, it was assessed as not meeting the threshold of harm and there was nothing to suggest the two younger siblings were at risk or had been harmed.[28]
  16. [44]
    CC, the applicant’s wife of 22 years, provided a statement[29] to the Tribunal. Included in the respondent’s material were letters of support from CC dated April 2015,[30] which was prepared in relation to an application to become a host family for cultural exchanges, and June 2018,[31] provided to the respondent for the purposes of its decision under review.
  17. [45]
    She confirmed the stressful circumstances of her family’s homelife at the time of WW’s offending and acknowledged that they underestimated the difficulties associated with bringing WW’s daughter to Australia and integrating her into their family. Upon returning to Australia the family settled in Queensland rather than New South Wales where they had previously lived. Due to this relocation CC felt that WW did not have the support network in place that he would otherwise have been able to rely upon. She was shocked when she found out about WW’s offending behaviour and considered that his behaviour was out of character. She encouraged him to undertake counselling to provide him with additional support. CC spoke of the difficulties their relationship endured because of his conduct and said that they worked through these together so that they remain committed today.
  18. [46]
    She described him as a supportive and loving husband and father. The Tribunal found CC to be a reliable witness.
  19. [47]
    The Tribunal was provided with a report and two letters from SS, a psychologist. WW said he consulted with SS by telephone on two occasions shortly after his offending, then again about six years ago and in person approximately one or two years ago. SS’s report and letters refer to only two sessions, with the later letter referring to sessions she undertook with WW about 10 years earlier, but to no recent sessions.
  20. [48]
    While the 2009 report[32] indicates two counselling sessions were undertaken, there is no indication of the strategies sought to be developed in these sessions. SS expresses the opinion that WW’s conduct was out of character and that it occurred in the context of a stressful family situation, as he endeavoured to support his family financially, undertook university studies and grappled with the behaviour of his teenage daughter.
  21. [49]
    The other two letters from SS are references, not professional reports. SS’s 2015 letter[33] was written in support of the application by WW and CC to become homestay parents, for which she recommended them. The 2018 letter[34] is a reference written in support of WW’s blue card application. SS observed that WW is a dedicated husband and father and a kind man of integrity. She considers that he will make an excellent contribution to society in the course of his new profession, following completion of his studies. As SS was not made available for cross examination the Tribunal affords this evidence limited weight.
  22. [50]
    The applicant said that he also consulted a psychiatrist for about five sessions to address the triggers for his offending behaviour but provided no report from the psychiatrist in relation to these sessions.
  23. [51]
    Dr Y, a clinical psychologist, provided two reports[35] to the Tribunal and was available for cross examination. She consulted with WW on at least four occasions, undertaking a clinical interview and psychometric testing, for the purpose of providing reports in respect of this application. She had read the respondent’s reasons of 2015 and 2019 and was aware that WW recorded his daughter on two occasions[36] and that he had sent the videos to himself and copied one to his laptop.
  24. [52]
    Dr Y accepted that the behaviour of the applicant’s daughter which was causing him distress seemed to her to be normal adolescent behaviour. However, in her view, the pressure and circumstances in the household at the time were not normal, due to factors including that his daughter was new to the family and to the country and that they had no prior father-daughter relationship. She observed that instead of talking with his daughter about his concerns he allowed his anger to build.
  25. [53]
    Dr Y observed that:

He understands the ramifications of his actions in 2009 and has good insight into the inappropriateness of his behaviour then. He was able to explain the position of responsibility he had for his daughters, son and wife and that he disregarded this position and failed to meet his obligations as a role model. This understanding gives [WW] immense regret. His plans at that time were to improve his elder daughter’s life by bringing her to Australia, but by his actions he invaded her privacy, negatively impacted on her trust and embarrassed her. He is sad and sorry that he “lost her trust” through his wrong actions. He was able to explain that “It’s not easy to build trust”. It is my impression that he has great empathy for his daughter and the regretful loss of the father-daughter relationship….During his evaluation he demonstrated that he has matured sufficiently and has appropriate insight into what occurred. His conflict resolution strategies have developed, and he could relate now other actions he should have utilized.[37] (de-identified)

  1. [54]
    She considers that WW has addressed his previous risk factors such that they are no longer present as a risk of future offending behaviour. In her assessment of WW’s risk of general and sexual recidivism WW received the lowest possible scores.
  2. [55]
    Dr Y identified protective factors for WW as being that he:
  • is functioning in a stable manner with no evidence of a psychiatric diagnosis;
  • demonstrates a well-developed capacity for empathy, perspective-taking, and social problem solving;
  • displays appropriate self-reflection skills;
  • can form sincere relationships with others and can maintain personal boundaries especially when engaging with children;
  • does not use illicit substances;
  • has no cognitive distortions around his past criminal behaviours and is aware of the wrongfulness of his actions;
  • describes remorse and accepts full responsibility for his actions in 2009;
  • has no other criminal convictions or anti-social behaviour;
  • has appropriate social support networks (church, pro-social friends, work) around him and the family;
  • has improved conflict resolution skills and emotion regulation abilities.[38]
  1. [56]
    Her opinions did not change upon learning of the Child Safety material.[39]
  2. [57]
    In terms of preventative strategies for WW, she understood that he had undertaken training in boundary setting in his tertiary studies and utilises stress management techniques and strategies. He was able to discuss with her how he would address issues with his younger daughter today.
  3. [58]
    The Tribunal accepts Dr Y’s professional opinion.
  4. [59]
    The applicant provided statements from a number of other witnesses[40] who were not made available for cross examination and accordingly, limited weight is given to those references.

Consideration

  1. [60]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[41]
  2. [61]
    The Tribunal accepts that the offences noted are the only entries recorded on the applicant’s criminal history. There have been no other allegations of offending. The applicant has not engaged in any concerning or offending behaviour since the offending behaviour more than 11 years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case.[42] This risk factor must be considered in the context of all the relevant circumstances.
  3. [62]
    The nature of the applicant’s offending is of significant concern: he recorded his vulnerable teenage daughter in the bathroom. She was entitled to feel safe in the family home and to expect her father to act protectively of her. The applicant, in response to a stressful situation, acted in an inappropriate manner to record his daughter in the bathroom. The applicant’s conduct represents a significant breach of trust.
  4. [63]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.[43]

  1. [64]
    Under cross examination the applicant became confused and generally had a poor recollection of dates and the precise sequence of events. However, the Tribunal accepts that WW gave his evidence honestly.
  2. [65]
    WW sincerely regrets his past behaviour, which he accepted was wrong and harmful. That this was aberrant behaviour for the applicant was confirmed by his wife. He clearly has the unqualified support of his wife, who is aware of the risk factors.
  3. [66]
    The evidence regarding the extent to which the applicant engaged in counselling is inconsistent. However, the Tribunal accepts that the applicant has developed strategies to manage stressful situations and would manage a similar situation in a different manner today due to strategies he has developed since his offending conduct.
  4. [67]
    The Tribunal finds that WW has insight into the impact of his behaviour upon his daughter, having lost her trust and their relationship.
  5. [68]
    The applicant has consistently maintained that the first recording was accidental and the second was purposeful. The Tribunal accepts that there may have been multiple motivating factors for the applicant’s conduct. The Tribunal does not accept that the applicant was motivated to record his daughter in the bathroom for his own or others’ sexual gratification. There was no evidence before the Tribunal that WW used the video as he originally intended, having accepted that to do so was a ‘bad idea’.
  6. [69]
    WW made admissions to police during his interview and pleaded guilty, suggesting that he took responsibility for his actions. The respondent said that the applicant could not claim both that he took responsibility and that the first recording was an accident. The Tribunal does not accept this. The Tribunal finds that WW is aware he behaved extremely poorly and exercised poor judgment in stressful circumstances. The circumstances and his motivation do not justify his behaviour and he does not suggest that they do. Rather, he is aware that his behaviour was wrong and was harmful.
  7. [70]
    The Tribunal finds that WW is remorseful for his conduct and for its effect on his family, including its effect upon his daughter from whom he remains estranged. Further, the Tribunal finds that he has developed good insight into the inappropriate nature of his offending and its impact upon his family.
  8. [71]
    The applicant’s remorse and insight, together with the passage of time since his last offending, are protective factors.
  9. [72]
    The Tribunal accepts the applicant’s desire to provide additional financial security for his family by undertaking further studies to better his employment opportunities, which is a protective factor for the applicant.
  10. [73]
    In making this decision the Tribunal has been mindful that the effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the reasons the applicant has sought the card. Conditions cannot be imposed on a blue card and once issued it is unconditional and fully transferable across all areas of regulated employment and business.
  11. [74]
    In undertaking this review the Tribunal is acting in an administrative capacity and consequently is a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld) (‘HR Act’). Thus, pursuant to s 48 of the HR Act, the Tribunal must interpret statutory provisions in a way that is compatible with human rights, and in undertaking this review is required to conduct itself in accordance with s 58 of the HR Act.
  12. [75]
    As observed above, it is not the purpose of this review and decision to impose additional punishment on the applicant for his past conduct, but rather to protect children.
  13. [76]
    This review does not constitute a retrial as the Tribunal’s role is not to determine the Applicant’s guilt. Rather, the Tribunal’s function is to review the respondent’s decision that the applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for the applicant to be issued a working with children clearance and blue card. The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme ‘…to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[44]
  14. [77]
    As required by s 361(1) of the WWC Act, the hearing was held in private, which the Tribunal considers to be compatible with the human rights set out in s 31 of the HR Act.
  15. [78]
    The applicant’s human rights, in particular, his rights to a fair hearing[45] and not to be tried or punished more than once[46] were considered by the Tribunal. The Tribunal has also considered the right of every child to ‘the protection that is needed by the child, and is in the child’s bests interests, because of being a child’.[47] The Tribunal is satisfied that this decision is compatible with human rights and that to the extent that there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of the HR Act.
  16. [79]
    After consideration of all of the evidence, the findings of fact, the risk and protective factors, and the relevant matters in the WWC Act, including  s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is not an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued.
  17. [80]
    Orders have been made by the Tribunal to maintain the confidentiality of documents obtained pursuant to notices to produce issued in these proceedings.[48] Those directions included orders that the parties must destroy the material received at the end of the proceedings.
  18. [81]
    The Tribunal considers it is not in the public interest to release identifying information regarding the applicant, any witnesses for the applicant, any child or any complainant. Accordingly, these reasons are to be published in a de-identified format. Pursuant to s 66 of the QCAT Act the Tribunal orders that publication of information that may enable the applicant, witnesses, or the complainant to be identified is prohibited.

Footnotes

[1]WWC Act, s 221(2).

[2]WWC Act, s 169 (at the time).

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

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3) (‘QCAT Act’).

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

[6]WWC Act, s 580.

[7]QCAT Act, s 19(a).

[8]Ibid, s 20.

[9]Ibid.

[10]WWC Act, s 360.

[11]QCAT Act, s 24(1).

[12]WWC Act, s 5.

[13]Ibid, s 6.

[14]As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

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

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

[17]Ibid, [30].

[18]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[19]WWC Act, Schedule 2.

[20]Ibid, Schedule 4.

[21]Ex 6, BCS19.

[22]Ex 6, BCS21.

[23]Ex 6.

[24]Ex 7.

[25]Ex 7, NTP18 - NTP20.

[26]Ex 7, NTP20.

[27]Ex 2.

[28]Ex 7 NTP6.

[29]Ex 3.

[30]Ex 6, BCS34.

[31]Ex 6, BCS38.

[32]Ex 6, BCS35.

[33]Ex 6, BCS31.

[34]Ex 6, BCS45.

[35]Ex 4 and Ex 5.

[36]Ex 4, paragraph 5.

[37]Ex 4, p3-4.

[38]Ex 4, p5.

[39]Ex 7.

[40]Ex 6, BCS32, BCS33, BCS37, BCS39.

[41]WWC Act, s 360.

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

[43][2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

[44]WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17] (Thomas J).

[45]HR Act, s 31.

[46]HR Act, s 34.

[47]HR Act, s 26(2).

[48] Directions of Member Kent made 20 December 2019.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 7

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    08 Jan 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
1 citation
Jump To
Cite 1 - [2016] QCAT 210
Kent v Wilson (2000) VSC 98
1 citation
Jump To
Cite 1 - (2000) VSC 98
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
1 citation
Jump To
Cite 1 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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