SDS v Director-General, Department of Justice and Attorney-General
[2022] QCAT 165
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- SDS v Director-General, Department of Justice and Attorney-General[2022] QCAT 165
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SDS v Director-General, Department of Justice and Attorney-General[2022] QCAT 165
SDS v Director-General, Department of Justice and Attorney-General[2022] QCAT 165
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | SDS v Director-General, Department of Justice and Attorney-General [2022] QCAT 165 |
PARTIES: | SDS |
(applicant) | |
v | |
Director-general, department of justice and attorney-general | |
(respondent) | |
APPLICATION NO/S: | CML 061-21 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 11 May 2022 |
HEARING DATE: | 28 April 2022 29 April 2022 |
HEARD AT: | Cairns |
DECISION OF: | Member Taylor |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General 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 confirmed. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – applicant seeks a review of decision to cancel a positive notice and issue a negative notice following a charge of ‘Dangerous conduct with a weapon’ – where there is no serious or disqualifying offence – where the charge not proceeded with on basis of ‘no evidence’ – where applicant admits conduct giving rise to the charge – whether an exceptional case exists. Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 156, s 221, s 226, s 294, s 304A, s 354, s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Human Rights Act 2019 (Qld), s 13, s 26, s 48 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 Re TAA [2006] QCST 11 REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | A. Sanders – Legal Officer for Blue Card Services |
REASONS FOR DECISION
- [1]On 19 November 2021, the Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant or any family member of the applicant. Accordingly, these reasons and the Orders are published in a de-identified format.
Background
- [2]The applicant is a young man approaching 22 years of age. In May 2018 he was issued with a working with children clearance (the Blue Card) under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). He then engaged in work as a swim coach and in the surf lifesaving movement.
- [3]On 6th October 2020 the applicant was charged with offences, namely common assault, animal cruelty, and dangerous conduct with a weapon, and issued a Notice to Appear at the Cairns Magistrates Court on 23rd October 2020.
- [4]Each of the charges arose out of a single incident which occurred late in the afternoon on 26th September 2020. At that appearance in October 2020 the applicant entered a plea of not guilty to all three charges. However, by about 25 March 2021 a decision was made by the Queensland Police Prosecutions to withdraw the assault and animal cruelty charges on the basis of an absence of sufficient evidence. But that was not the case for the dangerous conduct with a weapon charge, it being recommended at that time such charge be continued with.
- [5]Notwithstanding that recommendation, on 12 May 2021 all three charges were dismissed on the basis that the prosecutor offers no evidence. It is apparent that a decision was made by the prosecution to also not proceed with the weapons charge on the basis of an exercise of its discretion on public interest grounds given that this was a first offence by the applicant, and due to his age.[1]
The Incident giving rise to the Charges
- [6]On or about 19th September 2020, the applicant together with a friend of his [call him M] concocted a plan, which the applicant describes as being a ‘prank’, or as a ‘joke’ on another friend. That plan was to borrow a gel blaster which looked very similar to an automatic machine gun, drive to a house in which M had previously lived with two other persons, one female and one male, but from which M had been evicted approximately 3 months earlier after what is said to have been a falling out with the female person. Upon arrival at the house, they would each conceal their identities with a face covering and then shoot the gel blaster at the house, or at the very least at the driveway to the house.[2]
- [7]The applicant, with M, put this plan into action on 26th September 2020. Prior to travelling to the house, the applicant says that M requested his brother to check by using ‘Snap-Maps’ whether the female occupant was at the house.[3] Having determined that the female occupant’s location was elsewhere from the house, they together travelled to the house in M’s car. M drove and the applicant sat in the front passenger seat. Upon arrival at the house M parked the car on the street at the end of the driveway to the house with the passenger side of the car facing the house. At the time of their arrival they noted a car parked in the driveway. When queried by the applicant, M identified this as belonging to the female occupant of the house. Notwithstanding her car was there, they each then donned a black T-Shirt over their faces, together with sunglasses. After a short conversation with M, whilst still sitting in the passenger seat, the applicant positioned the gel blaster out of the car window and commenced rapid firing of it at the car parked in the driveway, and the driveway generally. Whilst he was doing this both he and M took a video of the conduct on their mobile phones. After approximately 30 seconds of rapid fire the applicant ceased firing having noted a cat move near the car. He then brought the gel blaster back inside the car, and M immediately drove away. As he drove away, the applicant and/or M were laughing. [4] (the Incident)
- [8]The charges for assault and animal cruelty arose out of what appears to have been a complaint made by the female occupant. She asserts she was home at the time of the Incident, that she went to investigate what is said to have sounded to her like stones hitting her car, and on doing so saw a masked person in a car at the end of her driveway shooting what appeared to her to be an automatic weapon. She also asserts that at that time the man altered his aim and shot directly at her hitting her in the leg, and that she also heard one of her cats make a noise which she believed was a result of the cat also being hit by a pellet.[5]
This Application
- [9]Following the laying of the charges, the Queensland Police Service notified the respondent, as ‘Blue Card Services’, that the applicant’s police information had changed.[6] This resulted in the applicant’s eligibility to hold his Blue Card being re-assessed. On 18 January 2021 the respondent, via its Director Blue Card Services (Screening Services), made the decision to cancel the applicant’s Blue Card and issue a negative notice (the Decision).[7] By application filed 11 February 2021, the applicant applied to this Tribunal for a review of the Decision.
The Nature of this Review Proceeding
- [10]This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, and more particularly s. 354, and the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation, and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[8]
- [11]The purpose of this review is to produce the correct and preferable decision such to be reached by way of a fresh hearing on the merits.[9] It is not necessary for me to consider whether the decision-maker made an error in making the Decision. At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[10]
The Issue in this Proceeding
- [12]The Decision was one open to be made by the decision-maker under the WWCA s. 304A providing that, upon consideration of the relevant further information,[11] it was satisfied that it was appropriate to issue a negative notice.
- [13]WWCA s. 294 sets out that which the decision-maker is required to decide in determining whether it was appropriate to issue a negative notice. Under s. 294(2), the decision-maker must decide the matter as if it were a decision about a working with children application, such to be decided under Chapter 8 Part 4 Division 9 of the WWCA. Given the nature of the charges were not a ‘serious offence’ as that term is used under the WWCA,[12] the relevant provisions of that Part and Division is s. 221(1)(b)(iii) and s. 221(2). These requires the respondent to issue a working with children clearance notwithstanding being aware of the charges unless the circumstances are an exceptional case in which it would not be in the best interests of children for it to issue a working with children clearance, and in that instance the respondent must issue a negative notice. In turn this requires a consideration of the provisions of s. 226(2) of the WWCA.
- [14]The issue therefore is whether the applicant’s conduct in the Incident is such as to fall within the category of an ‘exceptional case’ such as to deny the applicant his Blue Card. The applicant argued that it was not.
The Material before this Tribunal
- [15]This proceeding is not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time, it is not an inquisitorial process. My decision turns on the material before me at the hearing, both documentary and oral.
- [16]The respondent is not participating in an adversarial role advocating for the correctness of its decision. Its role is to use its best endeavours to help me in making my decision on the review.[13] As it was required to do,[14] the respondent provided relevant material to this Tribunal, namely its Reasons for the Decision and other documents in its possession considered relevant.[15] At the commencement of the hearing, the applicant confirmed he had received copies of this documentation. Save only for the provision of written Outline Submissions, the respondent did not seek leave to produce any further material at the hearing, nor did it call any witnesses.
- [17]The applicant provided a written statement together with some documents referred to therein.[16] He also called four witnesses, each of them swearing to the correctness of statements each had previously given. Each were also made available for cross-examination. They were respectively the Managing Director of his current employer (W1),[17] his workplace’s Accounts and Payroll Manager (W2),[18] a police officer who stated he had known the applicant for over 8 years both as a friend of his son as well as through swimming and surf club dealings (W3),[19] and a past teacher of the applicant (W4).[20]
- [18]The applicant also tendered a statement by a person whom it is said had known him for about 3 years through his workplace and had previously trained and accredited him in lifeguard certification, however that person was not presented for cross-examination (W5).[21]
- [19]The presentation of all evidence occupied the entirety of the first day of the hearing. At the conclusion of the evidence, the Respondent provided a written ‘Outline of Submissions’ (ROS). The applicant was given a copy of this Outline at the end of the first day affording him the opportunity to read and consider it before he was called upon to make his closing submissions in the second day of the hearing.
- [20]At the start of Day 2 of the hearing I changed the usual order of closing[22] to require the respondent’s representative to provide her oral submissions to supplement the ROS, as foreshadowed by her the day prior, then affording the applicant a further opportunity of a short recess to consider the entirety of the respondent’s submissions before making his oral closing. The applicant subsequently made a short oral closing.
- [21]Following that I raised certain issues with each party on which I requested further address, and after a further short adjournment to allow them to consider those issues the hearing reconvened to hear those addresses.
- [22]The hearing subsequently concluded with me giving the applicant one final opportunity to provide any last closing submissions either orally or in writing. Whilst he took up that opportunity to provide a further short closing address, he did not provide, nor seek additional time to provide, a written closing submission.
- [23]My consideration of the issue in this proceeding thus proceeded on this evidence and the respective submissions.
The Applicant’s Case / Evidence
- [24]As I understood the applicant’s case, at the start of the hearing his ‘position’ was as expressed in the following passages:
- (a)Firstly, from his application as it was filed:
- (a)
In the reasons, at 5.4, the allegations which form te (sic) basis for the charges are relied on to label the behaviour as “violent” and “anti-social”. I disagree with this label and say that with respect, this categorism (sic) can only be made if the allegations are accepted at face value. …
…
I am contesting the charges and I have engaged lawyers to act on my behalf in the trial.
…
The decision to issue me a negative notice has directly and immediately impacted on me financially as I can no longer partake as a lifeguard nor swim instructor. It has also been the main reasoning for the position of assistant coach was not (sic) given to me. This position would have both increased my hours and therefore my income and also given me significant experience in the field increasing my future employability.
Bearing in mind I am a young single man with no dependants who has never before come to the attention of the criminal justice system before (sic) or been dealt with by the Courts for any breaches of the law in the past, I say that when all of the circumstances are considered that the decision to issue me a negative notice was wrong.
- (b)Secondly, from his written statement:
In late 2020, I made a judgemental error and agreed to join a friend in an ill though out prank of shooting a gel blaster at a driveway of another friend as a joke. This incident spiralled to a police report being made by a third party. In this time my Blue Card was revoked and this has had a significant impact on my current working situation and excludes me from returning to my volunteer work and my beach lifeguard position. This loss of work has impacted me financially and psychologically. I am keen to recommence by lifeguard position as soon as my Blue Card is reinstated and to put the whole distressing and regrettable event being me and move forward with my life.[23]
- [25]Whilst the cross-examination of the applicant was extensive, in my opinion there are only a few aspects of this that I need mention. The decision I have ultimately reached in this proceeding turned solely on these aspects.
- [26]First, his explanation of why he participated in the Incident was simply that he did it to help his friend M, and that he thought it was nothing more than a prank so he went along with it not thinking it was illegal. That being said, he was adamant under cross examination that he was not subject to peer pressure.
- [27]Second, as to his recording of the Incident by way of a video on his mobile phone, he said he did so for his own record, but then gave conflicting evidence as to whether any other person had been shown the video. Whilst he said he had shown it to M on their return to M’s house, he said he had not shown it to any person but on later questioning he said he had shown it to the owner of the gel blaster from whom it was borrowed. He also said on questioning that whilst he thought the video was funny he decided not to share it with anybody else, but then later in the hearing he said he was not proud of the video and thus had chosen not to show it to anybody else.
- [28]Third, as to why laughter could be heard on the video soundtrack as he and M drove away after the firing of the gel blaster had ceased, he says he was laughing because he was amused about shooting the gel blaster.
- [29]Fourth, notwithstanding the statement in his application that he did not agree with the categorisation of his conduct as being ‘violent and anti-social’, during cross-examination he ultimately accepted that his conduct leading up to and then engaging in the Incident was not only inappropriate, but it was also anti-social although he stated with clarity that he did not consider it to be such at the time again stating that this was because he did not think it to be illegal or dangerous.
- [30]He also accepted that it was sufficient to have caused alarm to any person who may have witnessed the Incident, stating that he only realised this when he found out his actions were illegal upon being contacted by the Police. However, following some additional questioning by me whereby I put to him the undisputed facts that he was shooting that which he accepted as being something that looked like a gun, at a house whilst sitting in a car at the end of the driveway to that house, and having intentionally concealed his identity to avoid the occupants of the house learning that it was him shooting, he maintained his assertion that his conduct was not violent.
- [31]Fifth, whilst on many occasions he expressed what he said to be his regret and remorse for the Incident, at no time did he address this in any way in his written statement before me, with it only being raised by him in any an attempted meaningful way during cross-examination and in his closing submissions.[24]
- [32]Sixth, he stated that he had discussed the Incident with each of his witnesses.
- [33]The evidence of his witnesses was of a similar vein, namely the effect on the applicant himself of the decision to cancel his Blue Card. As I both read it and heard it during cross-examination of those witnesses, I was left with the impression that their evidence was all focussed on the applicant’s ‘character’ and not on the primary issue that is necessary to address and consider in a matter such as this, namely the applicant’s insight into the nature and effect of his offending behaviour.[25]
- [34]I will return to each of these aspects of the applicant’s evidence in my discussion later in these reasons, and need only make one more observation regarding the applicant’s presentation of his case. As I have noted it earlier, the presentation of the evidence occupied the entirety of Day 1 of the hearing. On Day 2, when he returned to the hearing room to hear and give closing argument, it was apparent to me that the applicant had reflected on that which he had heard the day prior. Notwithstanding that the day prior he was adamant he was not subject to peer pressure, he then submitted he was subject to peer pressure, seemingly doing so to raise an excuse for his conduct in the Incident. Overall he seemingly then held a different view of the circumstances from the ‘position’ he held when he made the application and presented his evidence.
Consideration & Discussion of the Evidence
- [35]In considering the issue in this proceeding, the following must not be overlooked:
- (a)The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[26] and
- (b)The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[27]
- (a)
- [36]As the respondent has appropriately and properly submitted, the principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield.[28] It is that principle that I must apply in this review.
- [37]The starting position is that notwithstanding the charges, given that they are for offences other than a serious offence, the applicant is entitled to be issued with a working with children clearance.[29] If that starting position stood without exception, then it would be in order for me to set aside the Decision. However, this is subject to the exception that if I am satisfied that it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with such a clearance, then a negative notice must be issued and so it would be in order for me to confirm the Decision.[30] That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to maintain his Blue Card.[31]
- [38]The WWCA does not define an exceptional case. It has been held that it is a matter of fact and degree to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 in reference to the predecessor legislation to the WWCA:
It is to be accepted that phrases like ‘exceptional case’ must be considered in 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: (sic) children.
There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said 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’.
We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.[32]
- [39]Neither party bears an onus in determining whether an ‘exceptional case’ exists.[33] It is a matter of discretion. I must decide the question of whether an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[34]
- [40]It is not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case is an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303:
The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.
The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.
In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.
The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.
What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[35]
- [41]The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed in therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[36] Accordingly what follows here is my consideration of each of those particular criteria.
- [42]But before doing so, I make this overarching point that pervades the consideration of each criterion. The sheer stupidity of the applicant’s actions cannot be overlooked. Whilst the applicant seemingly accepts his conduct was stupid, he has failed to give a proper explanation for it. Moreover, whilst he ultimately accepted it as being anti-social, he seemingly failed to recognise that any such behaviour could also readily be described as violent. As I understood his reasons for not recognizing this, it is because he says nobody was hurt by it.
- [43]In my opinion it beggars belief that a person of any maturity could consider such conduct in any way excusable as a prank. In my opinion it can only be described as a premediated attack of retribution, being one involving what could be readily thought to be an automatic weapon being fired by a person who had intentionally concealed their identify by the use of a face covering and sunglasses, implemented whilst sitting in a car at the end of a driveway to a house firing at the car in that driveway. From any reasonable perspective, such a scenario is not just anti-social, but violent because in my opinion it is one which could readily instil terror in any person witnessing it, and more particularly to an occupant of the house in question.
- [44]This left me constantly looking to the applicant for me to find that he had true insight into his actions and had reached this level of understanding of the circumstances. Regrettably, I could not find that
- [45]I thus now turn to the relevant criteria.
Whether the Offence is a conviction or a charge[37]
Whether the Offence is a serious offence, and whether it is a disqualifying offence[38]
- [46]In my opinion it is convenient to consider these two criteria together.
- [47]The offences in question remained solely as a charge. They did not proceed to conviction. However, whilst the charges were subsequently dismissed on the basis of a ‘no evidence’ position presented by the prosecution,[39] the facts of the offence which gave rise to the weapons charge were effectively admitted by the applicant in the hearing before me. That being so, my consideration of the issue proceeded solely on the existence of these facts and this charge. I did not give any consideration to the asserted facts behind the other charges, nor the existence of those charges.
- [48]Whilst such conduct does not amount to offence that would be a ‘serious offence’ or a ‘disqualifying offence’ as those terms are used in the WWCA, the respondent submits that it is clear that Parliament intended that all offences on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.[40] I accept that as being a correct submission. Accordingly, in my opinion it is proper for me to consider the existence of not only the applicant’s conduct in enacting the Incident, but also the existence of the weapon’s charge that arose from it. I will refer to these together as the ‘Offence’.
When the Offence was committed[41]
- [49]The Offence occurred in September / October 2020. In my opinion that must be considered as being recent as compared to historical, and as such it is highly relevant and goes to the question of whether peer pressure was or now is a relevant factor.
- [50]As I noted earlier in these reasons, the applicant was adamant under cross-examination that he was not subject to peer pressure at that time. Such is consistent with the absence of any such assertion in his own statement. Whilst two of his witnesses suggested in their written statements that his conduct might have been as a consequence of peer pressure,[42] given that which I say later in these reasons about the extent to which the applicant’s witnesses knew of the detail of the Incident nothing contained therein nor the extent to which it was raised with them under cross-examination gave me any indication to accept that this was so.
- [51]However, on what seemed to me to be further reflection by the applicant overnight after having heard the evidence as it was presented the day prior, he seemingly sought to justify his actions on the basis of his acceding to peer pressure at the time. Whilst the submission about peer pressure may have been one genuinely made by the applicant having formed the view that he must have been so pressured, it is not enough. The evidence as presented was that he was not subject to peer pressure, or alternatively there was no evidence that he was so pressured. But moreover, there was no evidence as to the absence of any continuation of association with M or other persons within the friendship group they formed part of at the relevant time by whom that pressure may have been exerted. At its highest, when questioned on it by the respondent’s representative, there was a bare assertion by the applicant that whilst the friendship group that he and M were part of has since dissolved, he is still in contact with M although he had not seen him for about a year.
- [52]Nor did the applicant provide any evidence to show me that, since the commission of the Offence, he has taken any real steps to address his behaviour in concocting the plan nor implementing it by way of the Incident, whether it be as a result of peer pressure or not. Given the relative recency of the Incident, if the applicant was, as he contended at the close of the hearing, subject to peer pressure, there is simply nothing before me to show or satisfy me that he was no longer subject to such pressure in a negative manner.
The nature of the Offence and its relevance to employment, or carrying on a business, that involves or may involve children[43]
- [53]The respondent’s closing submission on this issue is apposite, and I respectfully adopt it verbatim in these reasons, albeit doing so related only to the conduct which is the Incident.
The nature of the Applicant’s alleged offending casts doubt on his ability to judge appropriate behaviour and present as a positive role model. Children rely upon adults to be positive role models, and it has been stated by the Queensland Civil and Administrative Tribunal 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. [44]
- [54]But moreover, the nature of the Offence and its conduct by a person who at the time evidently did not possess the level of maturity and understanding to inform him that such conduct was not only anti-social but readily able to be considered as violent left me with the conclusion that the applicant lacks any proper insight in that regard. As I have previously observed, notwithstanding his apparent concession during the hearing it was anti-social behaviour, the applicant maintained the view at the hearing it was not violent because no person or animal was hurt not property damages.
Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the Applicant[45]
- [55]In its RCS, the respondent encompassed issues under this heading by reference to issues under the heading ‘Other Relevant Matters’ touching on aspects of the facts which fall outside of the listed criterion, as noted earlier such being open for consideration given that s 226(2) is not a set of limiting criteria.[46]
- [56]Notwithstanding the manner in which the respondent presented its closing submissions in my opinion it can all be addressed under this criteria. Additionally, whilst it is expressed as being relative to the commission of the offence, thus the occurrence of the Incident itself, in my opinion that which is relative is not just the facts of the Offence, but encompasses both his earlier conduct from which the Incident is an apparent culmination, as well as considering his subsequent conduct that arose from the Incident.
- [57]There are a number of aspects of the application and the evidence before me that is of concern, and that in my opinion are properly dealt with under this heading. On any reading of that which I have extracted or touched on in paragraphs [24] to [32] herein, the following observations should be made:
- (a)As I have already discussed it and need not repeat the detail of here, the applicant has not shown me any evidence of peer pressure. Nor, if the bare assertion he was subject to it was to be accepted, has he shown any evidence that the relevant and necessary steps have been taken to avoid a repeat of any such pressure.
- (b)There is an absence of any evidence from his circle of friends to attest to any substantial change in his behaviour, or as to any fact to support his bare assertion as to him having ceased involvement with M or others who may have been involved in the Incident, either be in its planning or its implementation.
- (c)The applicant’s stated concerns was with himself and the effect the Offence has had on him. Save only for what may be generally described as a last minute epiphany that his conduct has had an adverse effect on another person, namely the female occupant of the house, and his efforts to show me he is remorseful for such, the applicant has not presented any evidence to show me, nor even suggest, that he properly has an insight into the nature of his offending behaviour and the effect and consequences of his actions.
- (d)Whilst he asserts that he had discussed the Incident with each of his witnesses, and accordingly one may infer if that was accepted as being correct each of the witnesses was giving evidence of their views as to the applicant’s suitability to work with children notwithstanding his involvement in the Incident, it became abundantly clear to me during the examination of each of them that the applicant had not discussed the detail of the Incident with any of them. At the most, all I could be satisfied of was that he had given them a very general description of what occurred.
- (e)This was most telling in the examination of his witness W4. When I raised it with that witness, informing him in detail of the applicant’s conduct as I described it in paragraphs [6] and [7] herein, the witness seemed to me to be somewhat concerned and quick to express the view that which he had stated in his written statement may no longer be appropriate. I was left with the distinct impression that this witness had, or was at least prepared to, withdraw his support for the applicant.
- (a)
An absence of any genuine insight
- [58]The entirety of the evidence left me in a quandary. As I informed the applicant at the close of the hearing, this matter was probably the most, if not one of the most, challenging I have had in this jurisdiction in terms of determining whether an exceptional case existed. Having first read the material filed, then listening to the oral evidence during the hearing, and then in my deliberations on that material and oral evidence, I was constantly switching between a positive and negative decision.
- [59]I acknowledge that the applicant did show me, as least from a very general perspective, he had learned something during the hearing that gave him some insight into the nature of his offending behaviour. But I was left as not being certain as to whether it was true insight or simply a manifestation of a reality starting to sink in of what he had done, such occurring only as a consequence of the two days of hearing time but not yet advancing to the status of genuine insight.
- [60]Ultimately, my decision turned on what I have described earlier in these reasons on what was the absolute sheer stupidity of the applicant’s conduct. In my opinion such is an exhibition of behaviour by a person lacking maturity and an entire lack of understanding of how any person should conduct themselves in society with respect to others, but moreover by a person who is statutorily charged with an entitlement to work with children. When considered in its entirety, in my opinion this evidence portrays a person who simply lacks any insight into the seriousness of his actions in planning then carrying out the plan, whether it be as a prank or something more serious. The applicant’s explanation as to why he did it is entirely inadequate, particularly for a person who at the time was a holder of a blue card and thus a person expected to be of a mind to have known better. He simply lacked genuine insight.
- [61]The applicant’s possession of genuine insight is an important factor in the process of considering his application to retain his Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA [2006] QCST 11:
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend 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 the children.[47]
- [62]The applicant’s argument in this proceeding, and the basis upon which he seeks to have the Decision set aside, appears to me to be premised entirely on the effect it will have on him and the detriment he says he will be exposed to if he is denied a Blue Card. He did not present his case in any way dealing with the effect his actions had on others or to show his possession of that requisite degree of genuine insight.
- [63]It is not the intention of the WWCA to impose additional punishment on the applicant as a result of his participation in the Incident and the weapons charge that arose from it. It is about putting gates around employment to protect children. It is not about punishing people twice. It is about protecting children from future abuse.[48] Speaking in terms of the West Australian legislation equivalent to the WWCA, the following observation was made in the Court of Appeal in that State:
… The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. [49]
- [64]I respectfully adopt it, thus any detriment to the applicant is not relevant.
- [65]What is relevant however is the absence of evidence that shows me the applicant possesses the requisite degree of insight as to his offending behaviour, and that he has taken steps to deal with it in a manner such that would ensure the welfare and best interests of a child would be protected should the applicant find himself in a position of caring for children as a holder of a blue card. In the absence any proper demonstration of the requisite degree of insight, I am left with the conclusion that the applicant might allow a child to engage in conduct which is similarly anti-social or even violent without the applicant knowing it not to be so. Until such time as the applicant can demonstrate the requisite degree of genuine insight as to the difference, in my opinion it is entirely inappropriate for him to hold a blue card.
Human Rights Act 2019 (Qld)
- [66]Before concluding my reasons and expressing my decision it is necessary that I make a short observation as to the relevance of the Human Rights Act 2019 (Qld) (HRA).
- [67]Its main objective is to protect and promote fundamental human rights, however the rights listed in the HRA are not exclusive, nor are the rights protected under the HRA absolute. They may be limited but only so far as is reasonable and justifiable.[50] That being said, all statutory provisions, so far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[51]
- [68]The respondent has properly and appropriately acknowledged in its RCS that there are a number of competing human rights relevant in this proceeding. These include the applicant’s right to privacy and reputation, right to take part in public life, and right to further vocational education and training.[52] But there is a competing right that cannot be overlooked, and one that permissibly is considered in limiting the applicant’s rights. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[53] In that regard, the respondent correctly made this submission which I again respectfully adopt given its succinctness and clarity.
… a decision that the Applicant’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on the Applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA … because it will have the proper purpose of promoting and protecting the right, interests and wellbeing of children and young people …
Furthermore, any limitation on the Applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act that is, the welfare and best interests of children are paramount.[54]
- [69]As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable, factors which may be relevant include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[55]
- [70]That being so, it must be recalled as I noted it in the opening of my consideration at paragraph [35] herein, the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA, such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That includes the making of a finding that the circumstance the applicant finds himself in is an exceptional case such as to deny him an entitlement to a working with children clearance under the WWCA. Such is not inconsistent with s. 13 of the HRA. In my opinion there is no less restrictive way that the requisite purpose can be achieved other than by cancelling the applicant’s Blue Card and issuing a negative notice.[56]
Conclusion
- [71]The respondent made this submission in its closing:
… given the totality of evidence in this case, the circumstances raise the possibility of a risk to children such that it would not be in the best interests of children for the Applicant to be issued with a blue card. [57]
- [72]I agree. As I have noted it, the applicant admitted the facts of his conduct in the Incident, and moreover that he engaged in it simply to help out a friend and not giving any thought to the nature of it on the basis that he did not think it to be illegal, nor that he considered at that time that such was anti-social although later accepting this to be so, but at all times maintaining the view that his conduct could not be categorised as being violent.
- [73]As I have already expressed it, the sheer stupidity the applicant exhibited in engaging in such conduct cannot be overlooked. In the absence of any sensible and rational explanation as to why he did so, and the absence of any evidence to properly show that he has understood the ramification to others resulting from, or could result from, his conduct, and that he has taken steps to show that the circumstances that brought about such conduct have been remedied, there is simply not enough before me to satisfy me that this is not an exceptional case.
- [74]In my opinion the applicant’s circumstance is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a working with children clearance. Accordingly, his circumstance does not conform to the general rule such that a working with children clearance must issue.
- [75]It therefore follows that the Decision to cancel the applicant’s positive notice and issue him with a negative notice, as it is expressed in the respondent’s letter of 18 January 2021 to the applicant,[58] is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct. There will be an order to that effect.
Footnotes
[1] See the letters authored by the applicant’s solicitor to both the Police Prosecutions Corp and the applicant, such being attachments to the applicant’s statement. See Ex. 3.
[2] This was the oral evidence of the applicant given under cross-examination, expanding upon that which he described briefly in his statement filed in this proceeding. See Ex. 3
[3] As I understood the evidence as it was presented in the hearing, Snap-Maps is part of the Snap-Chat social media platform by which the location of a person can be identified as being where that person sent their last snap-chat message.
[4] This is as observed on the two video footages recorded, which together ran for 82 seconds, as presented by the respondent in the hearing during cross examination of the applicant. See Ex. 4. It was also confirmed by the applicant under cross-examination.
[5] See Ex. 2 and the QP 0009 Court Brief at page NTP-42.
[6] Such is as provided for under WWCA s. 317.
[7] A copy of the Decision appears in the material before me – see Ex 1 – pg BCS-47.
[8] QCAT Act s. 19.
[9] QCAT Act s. 20.
[10] QCAT Act s. 24.
[11] The ‘further information’ is as defined in s. 304A. Relevantly for the present matter it is as described in subsection 1(b) therein.
[12] WWCA s. 15 defines a ‘serious offence’.
[13] QCAT Act s. 21(1).
[14] QCAT Act s. 21(2).
[15] Ex 1 and Ex 2.
[16] Ex. 3.
[17] Ex. 5.
[18] Ex. 6.
[19] Ex. 7.
[20] Ex. 8.
[21] The tender of this statement was permitted but noting the respondent’s submission that it be given little to no weight on the basis that the person had not been made available for cross-examination.
[22] See QCAT Practice Direction No 3 of 2013 para’s 5 (e) to (g).
[23] Ex.3.
[24] I pause here to note that it was also essentially absent from his submissions to the original decision-maker prior to the Decision being made. At its highest he makes this assertion therein “I know what I did with the gel blaster was incredibly stupid and I am extremely apologetic for everything and everyone that has been affected by my actions. No animals, people of property were harmed during the incident …” – see Ex 1 pg BCS-33.
[25] Noting that which I had said earlier regarding the evidence of W5, I did not give it any weight.
[26] WWCA s. 5.
[27] WWCA s. 6.
[28] Respondent’s Outline of Submissions (ROS) para’s 22 & 23. As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”
[29] WWCA s. 221(1)(b).
[30] WWCA s. 221(2).
[31] Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].
[32] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.
[33] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[34] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492,[30], [34].
[35] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.
[36] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[37] WWCA s. 226(2)(a)(i).
[38] WWCA s. 226(2)(a)(ii).
[39] I pause here to observe that this seems to me, on the material before me, an entirely appropriate course to have taken. Accordingly it also seemed to me that it was entirely inappropriate for me to give any further consideration to the existence of these charges, and accordingly the alleged conduct that was behind them, albeit historical, in reaching the decision I was required to reach in this proceeding.
[40] RCS – para 46 - referring to the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.
[41] WWCA s. 226(2)(a)(iii).
[42] W 2 and W 4.
[43] WWCA s. 226(2)(a)(iv).
[44] ROS para 51 referring to CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].
[45] WWCA s. 226(2)(f). I need not have regard to ss. 226(2 (a)(v) nor (b) to (d) as they are not relevant to this proceeding.
[46] RCS – para’s 56 to 71.
[47] Re TAA [2006] QCST 11, [97] recently cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].
[48] Queensland Legislative Assembly 2000, Parliamentary Debates, 14 November, 4391 (The Hon Anna Bligh – Minister for Families, Youth and Community Care and Minister for Disability Services) speaking relevant to the Commission for Children and Young People Bill, in terms of predecessor legislation to the WWCA.
[49] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] per Buss JA with whom Newnes AJA agreed, McLure JA dissenting (Emphasis added). See also REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312, [33] and the earlier QCAT decision cited therein.
[50] HRA – s. 13(1). The factors for determining what is reasonable and justifiable are set out in s. 13(2) of the Act.
[51] Ibid – s. 48(1)-(2).
[52] RCS – para 72. I pause here to note that the right to privacy is protected by the de-identification of these reasons.
[53] HRA – s. 26(2).
[54] RCS – para 73 and 74.
[55] HRA – s. 13.
[56] Ibid – s. 13(2)(d).
[57] RCS – para 45.
[58] Ex .1 - BCS - 47.