MB[2022] QCAT 185

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background and Introduction

1. [1]
   Since 1979, MB (‘The Applicant’) has engaged in work related to education, homeless services, and child safety.  For ten years he was a High School Principal. In 2011, he took up the position of Manager of the Child Safety community Support Team.  In order to undertake regulated employment with children he applied for and was issued a blue card on 7 May 2013. He became Principal Team Leader, Family Group Meeting Convenors, in 2014 and was reissued a blue card on 3 May 2016.
2. [2]
   On 16 February 2018 the Applicant was arrested and charged with Indecent treatment of a child under 16 (indecent film etc) between 1 December 2008 and 31 December 2009, and with Indecent act in any place with intent to insult or offend any person between 15 August 2011 and 14 August 2012. On the same day Blue Card Services (‘The Respondent’) were advised of the resulting change in the Applicant’s police information and immediately suspended his blue card.
3. [3]
   In March and May 2019, Blue Card Services were advised that the charges against the Applicant were finalised, enabling his eligibility to hold a blue card to be reassessed. Consequently, in April and June 2019, Blue Card Services provided the Applicant with information relating to the updated police information and invited him to make submissions as to why he should not be issued a negative notice. The Applicant lodged such a submission requested a reassessment of his eligibility to hold a blue card.
4. [4]
   On 10 June 2020 the Director, Blue Card Services advised the Applicant that after reassessing his eligibility to continue to hold a blue card and considering his submissions, the Director had decided to cancel his positive notice and issue him with a negative notice.
5. [5]
   On 22 July 2020, the Applicant lodged an application with the Queensland Civil and Administrative Tribunal (the Tribunal) to review the decision made by the Director, Screening Services Unit Blue Card Services, Department of Justice and Attorney-General, on 10 June March 2020.

The Relevant Law

6. [6]
   The Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’) is the Act under which the Respondent’s decision was made. The Act also empowers the Tribunal to review its ‘reviewable decisions’, which include the decision that the Applicant asks to be reviewed -, ‘whether or not there is an exceptional case for the person, if because of the decision … [the Respondent] issued a negative notice’.^[1]
7. [7]
   The WWC Act provides that in cases such as the Applicant’s, where the decision maker is not aware of a conviction for an offence that for the purposes of the WWC Act constitutes a ‘serious offence’,^[2] the decision maker, ‘must issue a working with children clearance’.^[3]
8. [8]
   However, the reasons the Respondent issued the Applicant with a negative notice is because the Respondent was satisfied that the case is ‘an exceptional case in which it would not be in the best interests of children for the Respondent to issue a working with children clearance’.^[4] In such a case, the WWC Act states, ‘the Respondent ‘must issue a negative notice to the person.’^[5]
9. [9]
   The application to the Tribunal, in effect asks the Tribunal to review the Respondent’s decision that the Applicant’s case ‘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’.^[6]
10. [10]
    This review is not an appeal of the earlier decision by Blue Card Services. Instead, the Queensland Civil and Administrative Tribunal Act 2019 (QCAT Act), which governs the operation of the Tribunal, states, it is a fresh hearing in which the Tribunal ‘has all the functions of the decision-maker for the decision being reviewed’,^[7] and ‘must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.’^[8]
11. [11]
    Consequently, when reviewing the earlier decision, the Tribunal takes on the role of the earlier decision maker, ‘to produce the correct and preferable decision’.^[9]
12. [12]
    Because the Tribunal’s review of the Respondent’s decision is by way of a ‘fresh hearing on the merits’, the Tribunal must consider not only the evidence available to the Respondent at the time of the decision under review, but also additional evidence submitted by the parties or otherwise obtained by the Tribunal because of its relevance to the Tribunal’s review of the reviewable decision.^[10]
13. [13]
    Section 28 of the QCAT Act requires the Tribunal to ‘act fairly and according to the substantial merits of the case’. While the Tribunal ‘must observe the rules of natural justice’ it ‘is not bound by the rules of evidence’ and ‘may inform itself in any way it considers appropriate.’
14. [14]
    Neither the Respondent nor the Applicant bear an onus of proof to establish that the case is or is not ‘exceptional.’ Unlike the criminal standard of proof ‘beyond reasonable doubt’ the Tribunal must only be satisfied on the balance of probabilities. However, as the Respondent submits, the paramount principle that the welfare and best interests of a child are paramount ‘ought to inform the standard of proof in decisions under the WWC Act.^[11]
15. [15]
    Just as the WWC Act restricted the decision options of the decision maker so it also restricts the decisions the Tribunal may make following its review. ^[12] The Tribunal may only either confirm the decision-maker’s decision that the case is an exceptional case, or set aside the decision and substitute its own decision,^[13] that the case is not an exceptional case, as the correct and preferable decision.^[14]
16. [16]
    In undertaking this review, the Tribunal must also comply with applicable provisions of the Human Rights Act 2019 (Qld) (the HR Act).
17. [17]
    When acting in an administrative capacity, courts and tribunals are deemed to be ‘public entities’ for the purposes of the HR Act. ^[15]  The Tribunal is held to be acting in its administrative capacity when exercising its review jurisdiction through a fresh hearing on the merits, such as in this review. On that basis it is held to be a public entity for the purposes of the HR Act.^[16]
18. [18]
    As a ‘public entity’ the Tribunal, is required ‘to act and make decisions in a way that is compatible with human rights’,^[17] and to give proper consideration to a human right relevant to the decision’.^[18]
19. [19]
    The HR Act also requires ‘courts and tribunals to interpret provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.’^[19]
20. [20]
    In section 8, the HR Act explains that—

An act, decision or statutory provision is compatible with human rights, if the act, decision or provision—

1. (a)
   does not limit a human right; or

2. (b)
   limits the human right only to the extent that is reasonable and demonstrably justifiable …

21. [21]
    This requires the Tribunal to identify any human rights that may be limited by acts, its decision or legal provisions, and to determine whether such acts, decisions or provisions are compatible with the human right by being a reasonable limit ‘that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’^[20]
22. [22]
    The Act lists consideration that ‘may be relevant’ to the determination of, ‘whether a limit on a human right is reasonable and justifiable.’^[21]

What constitutes an ‘exceptional case’?

23. [23]
    In this review, the Tribunal is asked to determine whether it is satisfied that for the purposes of the WWC Act, the Applicant’s case is an exceptional case.
24. [24]
    The literal or ordinary meaning of ‘exceptional’ is of something that is not ordinary or typical, or something ‘forming an exception or unusual instance [or] extraordinary.’^[22] However, as the legislature may intend words to have a specific meaning in an Act, the term must be considered in the context of the WWC Act.
25. [25]
    It is accepted that the determination of the meaning of ‘exceptional case’ calls for a consideration of ‘the context of the legislation… the intent and purpose of the legislation and the interests of the persons whom it is designed to protect’.^[23] 
26. [26]
    What renders a case exceptional is clearly assisted by the express object of the WWC Act. Section 5(b) states that –

The Object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring—

2. (b)
   the screening of persons employed in particular employment or carrying on particular business.^[24]

27. [27]
    Further assistance is provided by section 6 of the WWC Act, which sets out the following principles under which the Act is to be administered—

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.^[25]

28. [28]
    Division 9 of the WWC Act is concerned with deciding applications seeking a ‘working with children clearance’, which is required for the issuing of a blue card. The Act specifies the circumstances in which notices of approval or refusal are to be issued^[26] and how in certain cases approval or refusal is to be decided.^[27]
29. [29]
    In Division 9 the term, ‘exceptional case’ is used consistently to identify exceptions to the mandatory issuing of a positive notice in some cases and a negative notice in others. The term is only used when referring to cases in which a decision maker is satisfied that a case is an exceptional case calling for an issuing of a different notice to that mandated for unexceptional cases of that category.
30. [30]
    The present case falls under s 221(1)(b)(c) of the WWC Act. In this category of cases, ‘the chief executive must issue a positive notice.’^[28] Section 221(2) describes the exception to this requirement as being, where—

The chief executive is satisfied it is an exceptional case in which it would not be in the best interests of the children’ for the chief executive to issue a working with children clearance, the chief executive must issue a negative notice to the person.^[29]

31. [31]
    So, while the WWC Act does not define the meaning of ‘exceptional case’, the immediate context of WWC Act s 221(2) makes it clear that what is needed to make a case ‘exceptional’ is that while the case would ordinarily require the chief executive to issue a positive notice ‘the chief executive is satisfied …it would not be in the best interests of children for the chief executive to issue a positive notice.’
32. [32]
    What constitutes an exceptional case clearly needs to be decided on its own facts, or as a ‘question of fact and degree in the whole of the circumstances of each particular case’.^[30]
33. [33]
    It has also been held that whether the Applicant’s case is an ‘exceptional case’ is for the Tribunal to determine, weighing the evidence presented by the parties, and reaching a decision on the balance of probability, while bearing in mind the gravity of the consequences involved.^[31]
34. [34]
    While such determinations have also been described as ‘matters of discretion,^’[32] the decision maker’s discretion is not unfettered.
35. [35]
    Apart from the considerations addressed above, the WWC Act provides the decision maker with a detailed mandatory guide and check list of considerations in accord with which to determine whether a particular case is exceptional.

Specific Factors that a Decision Maker Must Consider in Deciding Whether a Case is an ‘Exceptional Case’

First: Whether the alleged commission of offences by the Applicant, relates to a conviction or a charge.^[33]

36. [36]
    The Applicant’s alleged commission of an act constituting Indecent treatment of a child under 16 pursuant to section 210(1)(e) of the Criminal Code Act 1899 (Qld) (CC Act) relates to a charge.^[34] The prosecution was discontinued when on 29 January 2019 in the Cairns District Court the Crown had entered a nolle prosequi in relation to the indictment.^[35]
37. [37]
    Similarly, the Applicant’s alleged commission of Indecent act in any place with intent to insult or offend any person contrary to section 227(i)(b) of the CC Act 1899 relates to a charge. Although the Applicant was committed for trial, the Crown did not indict the charge,^[36] ending the prosecution of this charge.
38. [38]
    As the Applicant was not convicted of either offence, the alleged commission of the two offences relates to charges.
39. [39]
    While the Act requires decision makers to distinguish between charges and convictions, in practice the distinction can be misleading. For that reason, the Tribunal must also consider the discernible reasons for why charges were not finalised in convictions or even proceed to trial.  
40. [40]
    The Applicant and Respondent offer competing explanations for why these charges did not proceed to trial.
41. [41]
    According to the Respondent, with respect to the charge of Indecent act in any place with intent to insult or offend any person, the Crown determined it would not indict this charge as it could not establish the elements to prove the elements of the offence – that that ‘wilfully did an indecent act with intent to insult or offend the complainant.’
42. [42]
    Specifically, the office of the DPP advised the Respondent that –

the term ‘indecent’ in s 227 of CC Act excludes conduct merely unbecoming or offensive to common propriety, and it is not the function of section to punish lapses of good taste or good manners but rather strike at conduct that is lewd or prurient. The Crown, therefore had Crown concerns as to whether exposure while sitting on couch could be regarded as “indecent” within meaning of s 227.^[37]

43. [43]
    In addition, the Crown had formed the view that it could not establish that the alleged conduct was done ‘wilfully’ and ‘with intent to insult or offend’. On that basis the Crown formed the view that it would be ‘reasonable for a jury to find that the applicant was simply not aware that his genitals were exposed while he was sitting on the couch.’
44. [44]
    With respect to Indecent treatment of a child under 16 the DPP advised that what was problematic was that the Applicant posted the package from Queensland to New South Wales.
45. [45]
    Such situations are governed by section 12(4) of the CC Act which states that –

Where an event occurs out of Queensland caused by an act done or omission made in Queensland, which act or omission would constitute an offence had the event occurred in Queensland, the person who does the act or makes the omission is guilty of an offence of the same kind and is liable to the same punishment as if the event had occurred in Queensland.

46. [46]
    However, in this case, the prosecution could not rely on this provision as the prosecution could not prove on the balance of probabilities that the Applicant posted the package from Qld.
47. [47]
    Consequently, the Crown determined that it be left to NSW Police to determine whether charges be brought.
48. [48]
    The Applicant offers a competing explanation, stating that his advice from Police and lawyers was that the charges did not proceed to trial due to a total lack of evidence and even a reluctance of the only two witnesses to testify under oath.
49. [49]
    The available evidence and information suggest that the elements of both offences were highly unlikely to be established beyond reasonable doubt, if they proceeded to trial. The elements of the alleged offences may even be unlikely to be established on the balance of probabilities.
50. [50]
    However, whether the Applicant is or is not guilty of a crime is not for the Tribunal to second guess. It is the Tribunal’s role to determine on balance whether or not the alleged acts or similar acts occurred, and whether they are relevant to the Tribunal’s determination of whether this is an exceptional case.

Second: Whether in relation to the alleged commission of offences by the Applicant, any offence is a ‘serious offence, and if it is, whether it is a disqualifying offence’.^[38]

51. [51]
    The Applicant was charged with Indecent treatment of children under 16, contrary to section 210(1)(e) of the CC Act. This offence is classified as both a serious offence ^[39] and a disqualifying offence^[40] for the purposes of the WWC Act.
52. [52]
    The Applicant was also charged with committing an Indecent act in any place with intent to insult or offend any person contrary to section 227(1)(b) of the CC Act. For the purposes of the WWC Act, this offence is not classified as a serious offence or a disqualifying offence.

Third: When the alleged offences were committed.^[41]

53. [53]
    The alleged offence of Indecent Treatment of a Child under 16 was alleged to have been between 4 March 2008 and 31 December 2009. The Applicant was 51 years of age and the complainant 14 years of age at the time
54. [54]
    The alleged offence of Indecent act in any place with intent to insult or offend any person Treatment of a Child was alleged to have between 15 August 2011 and 14 August 2012. The Applicant was 54 years of age and the complainant was 17 years of age.
55. [55]
    When these offences are alleged to have occurred raises a number of issues.
56. [56]
    First, the offences are alleged to have been committed between 10 and 14 years, yet the complaint regarding both alleged offences was only made on 16 January 2018 (just over four years ago) when the alleged victim was age 23.
57. [57]
    This poses a number of questions: why did it take so long for the complainant in both of these alleged offences to lodge her complaints? why should such seemingly historic alleged offences be considered to be relevant, especially as the prosecution of both was discontinued. 
58. [58]
    For the purposes of the WWC Act, ‘criminal history’ is defined to mean not only every conviction for an offence but also every charge for an offence.^[42] In addition, as the WWC Act is not subject to the Criminal Law (Rehabilitation of Offenders) Act 1986,^[43] convictions that are set aside or quashed,^[44] or those which would be ‘spent convictions’ due to passage of time,^[45] are also to be considered.
59. [59]
    The reasoning behind the decision maker being required to consider all charges, offences, and alleged defences no matter how old, is that it is not an applicant’s guilt that is being assessed but rather their suitability to be issued a working with children clearance. Such an approach also recognised the reality of pleas and convictions or discontinued prosecutions. For example, a ‘no evidence to offer’ may be presented in exchange for a guilty plea to a lesser charge, or because proving a case beyond reasonable doubt may be too difficult or rules of evidence or other ‘legal technicalities’ prevent the presentation of crucial evidence.
60. [60]
    As to what encompasses an offence or alleged offence covers everything from a charge withdrawn for reasons that exonerate, to convictions for the most heinous of offences, the weight to be attributed to a past offence or alleged offence will also need to vary greatly.
61. [61]
    Other questions include, why the time of the alleged offences was unable to be estimated more precisely than being estimated to fall within a time frame of over a year for each alleged offence?
62. [62]
    In addition, if the alleged commission of both offences was known to the complainant and her mother at the time of its commission,^[46] why were they not reported to the police at the time?
63. [63]
    While the relevance of behaviour leading to charges being laid may be considered to diminish with time, this is more likely to be the case where the passage of time coincides with maturity levels and associated expectation of behaviour changes.
64. [64]
    However, the passage of time may be seen as affording time and opportunity for an offender, or alleged offender to gain insight into causes and triggers of problematic behaviours and to acquire an insight into the impact of such behaviours on others and especially children. 

Fourth: The nature of the alleged offences and their relevance to employment, or carrying on a business, that involves or may involve children. ^[47]

65. [65]
    First, I turn to consider what it is that the Applicant is alleged to have done in order to be charged with the two offences. The sources of this information are the QPS Court Brief of facts^[48] and the witness statements of AN, the complainant as made to QPS Officers on 15 January 2018,^[49]and the witness statement of AN’s mother, LM.^[50]
66. [66]
    The earlier charge related to Indecent treatment of a child under 16 (indecent film etc). Section 210(1)(e) of the Criminal Code Act 1899 provides that –

3. (1)
   Any person who—

5. (e)
   without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter

is guilty of an indictable offence.

67. [67]
    This offence is alleged to have occurred on an unknown date between 4 March 2008 and 31 December 2009. At the time the complainant, (AN) was aged 14 while the Applicant was 50 years of age.
68. [68]
    The Applicant was known to AN as her mother’s ‘off-and-on boyfriend for a few years’.^[51] The Applicant had been LM’s science teacher from 1980 to 1983.^[52] They reconnected online in 2008.
69. [69]
    At the time of the alleged offence AN lived in a Sydney unit with her mother, LM, while the Applicant lived in Cairns. 
70. [70]
    AN says that in 2010 she began to chat with him online, before her mother created an email account for her and she began to exchange emails daily with the Applicant.
71. [71]
    AN alleges that her mother had told the Applicant that she (AN) had been sexually assaulted between the ages of 9 and 13. In her complaint statement AN also alleges that he was very inquisitive about what happened, and that she stopped talking about it when she sensed that he enjoyed hearing the details
72. [72]
    At this time AN said that that in phone conversations and emails, the Applicant talked about sex, asked her about her sex life, and told her that he would send her a vibrator. AN says that she remembers her mother telling him not to send a vibrator, but that he insisted that he would send it for ‘health reasons’ and that using a vibrator would ‘get me used to having sex.’ AN also recalls that her mother found an email from 22 December 2009 in which he discussed sending a package.
73. [73]
    AN told QPS officers that when she was 14, MB had sent her a parcel. It was addressed to her and contained a purple vibrator. After her mother explained what it was, AN was reportedly disgusted. AN says that the Applicant told her that he had bought the vibrator on Ebay. She told police that as she was not then sexually active, she left the vibrator in the cupboard.
74. [74]
    When QPS Officers spoke with the Applicant on 15 January 2018, the Applicant told them that he had purchased a vibrator for AN, but only when she was 19 and after consulting with her mother, LM. He described his relationship with AN as being ‘like a dad to her’.^[53]

Second Offence

75. [75]
    The Applicant’s was also charged with committing an Indecent act in any place with intent to insult or offend any person on an unknown date between 15 August 2011 and 14 August 2012 – 54 years of age when girl aged 17.
76. [76]
    According to section 227(1)(b) of the CC Act

3. (1)
   Any person who—

2. (b)
   wilfully does any indecent act in any place with intent to insult or offend any person;

is guilty of a misdemeanour, and is liable to imprisonment for 2 years.

77. [77]
    Both AN and LM say that the Applicant would often visit the unit where they lived, and when he visited he would wear one of LM’s sarongs without anything underneath.^[54] Both also state that he would adjust the sarong by opening the front and consequently exposing himself.^[55] AN alleges that when he did so he would smile at her.
78. [78]
    The allegation that led to the Applicant being charged related to an occasion on which AN alleges that as she exited the bathroom, she saw the Applicant sitting on the couch only wearing a sarong with one leg over the arm of couch exposing his genitals and with a big smile on his face. LM states that she does ‘not specifically recall an incident where [the Applicant] was sitting with himself exposed as (sic) [AN] as she came out of the bathroom.’^[56] However, AN says that she told her mother immediately after he exposed himself to her.^[57]
79. [79]
    When police spoke with the Applicant on 15 February 2018, he told them that he would regularly wear a sarong with no underwear but did not intentionally expose himself to AN.^[58]

Why crown said would not prosecute for exposing

80. [80]
    On 9 July 2018 the Applicant was committed for trial in Cairns Magistrates Court. However, by letter dated 27 May 2018, the Office of the Director of Public Prosecutions advised Blue Card Services of why the Crown made this decision.

After careful consideration of the relevant and admissible evidence, the Crown determined that it would not indict this charge because it could not establish the elements to prove the offence. The elements are that the defendant: wilfully; did an indecent act; with intent to insult or offend the complainant

The Crown noted that the term ‘indecent’ in s 227 Criminal Code excludes conduct which is merely unbecoming or offensive to common propriety and it is not the function of this section to punish lapses of good taste or good manners. Rather, the intent of s 227 is to strike at conduct which is lewd or prurient. The crown therefore had concerns as to whether the defendant’s exposure while sitting on the couch could be regarded as ‘indecent’ within the meaning of s 227.

The Crown also determined that it could not establish that the conduct was done wilfully and with intent to insult or offend. There was evidence from the complainant and the complainant’s mother that the defendant often wore sarongs around the house, he would often adjust the sarong and expose himself and that he would often sit with one leg on the couch and the other under his buttocks. The Crown determined that it would be reasonable for a jury to find that the defendant was simply not aware that his genitals were exposed while he was sitting in the couch.^[59]

81. [81]
    Computers and phones were seized during the investigation but no indecent images were located and these items were returned to MB.

Conclusion

82. [82]
    Whether, how, and to what extent the alleged offences are relevant to the Applicant’s suitability to undertake employment that involves children, is largely dependent on whether it is more likely than not that the allegations are true or at least substantially true.
83. [83]
    As discussed above, the relevance of the alleged offences depends not on whether the evidence suggests that the Applicant is guilty or not guilty, but rather on whether the Tribunal is satisfied that on balance that the evidence supports the allegations regarding one or both of the offences or of some of the alleged associated circumstances.
84. [84]
    As also previously indicated I consider it highly unlikely that the elements of either of the offences could be established beyond reasonable doubt or even on the balance of probabilities. However, I do find a number of elements of the allegations to be either not refuted or consistent with the Applicant’s statements, behaviour or lifestyle.
85. [85]
    It is more likely than not that the Applicant did visit LM and her 17-year-old daughter AN, that he drank alcohol and wore only a knee length sarong without underwear with a t-shirt or bare-chested. On such occasions, it is quite likely that he would from time to time adjust his sarong by opening it at the front exposing himself to anyone in front of him. Whether the Applicant did intentionally expose himself probably depended on how much alcohol he consumed. In any event I doubt that he would do so when sober. His behaviour did not appear to offend or upset LM or cause her to be concerned for her 17-year-old daughter.
86. [86]
    That the Applicant’s has lived an alternative lifestyle is not relevant except that it appears to have left the Applicant more likely to cross the line of what is appropriate behaviour for someone who blurred the line between work and social life. In addition, as an eminently experienced and qualified professional living an unorthodox lifestyle, the Applicant was not content to comply with rules that he had a reason to break.
87. [87]
    Irrespective of whether the Applicant actually posted a package containing a vibrator to then 14-year-old AN, it is consistent with other evidence regarding the Applicant’s lifestyle and statements that if he felt that he was helping AN deal with her earlier sexual abuse and early sexual experiences he would have, as alleged spoken to her about her sexual abuse and may well have given her a vibrator. At the same time, I accept that without these qualifications the Applicant would consider such discussions or the gifting of a sex toy to a 14-year-old to be totally inappropriate.
88. [88]
    What the evidence regarding the alleged offences demonstrates is a man committed to helping others. Partly due to his alternative lifestyle and partly due to sense of being best able to judge what is appropriate and what isn’t, he is more likely to find himself in situations where he has lapses of judgment and acts inappropriately.
89. [89]
    In 2018 the Applicant said that his excessive consumption of alcohol was in the past. The overwhelming evidence of his colleagues and other third parties was that he drank alcohol to the extent that it affected his work. Even if his drinking was something in the past it appeared to play a significant role in the period at the time of his alleged offences and in particular the Indecent act in any place offence.
90. [90]
    To what extent the Applicant recognises the causes and triggers of his inappropriate behaviour including his consumption of alcohol, how his behaviour impacts or could adversely affect children and young people with who he works, and what he has done to acquire requisite insight and address the issues, are key factors in this review.

Fifth, the penalty imposed by the court and reasons for not imposing an imprisonment order and reasons for its decision.^[60]

91. [91]
    No penalty was imposed as neither of the charges was taken to trial.

Sixth, Information about the person received by the Respondent.^[61]

92. [92]
    No relevant information about the person was provided to the Chief Executive by the Director of Public Prosecutions or by Corrective Services under section 318 or 319 of the WWC Act.^[62] No report about the Applicant’s mental health was given to the Chief Executive under section 335 of the WWC Act.^[63] And, no information about the Applicant was given to the chief executive under sections 337 or 338 of the WWC Act by the Mental Health Court or the Mental Health Review Tribunal.^[64]

Lastly, ‘Anything else relating to the commission, or alleged commission, of the offence that the [decision maker] reasonably considers to be relevant to the assessment of the person.^[65]

93. [93]
    For the last of the mandatory considerations, I turn to the Applicant’s oral evidence in cross examination and the written references and witnesses’ oral evidence presented at the hearings.

MB

94. [94]
    On 14 April 2021, the Applicant was cross examined. When asked about work place conflict, he attributed the conflict to conflict of styles.
95. [95]
    He saw workplace issues and those relating to the charges brought against him as connected by LM and AN attendance at his workplace.
96. [96]
    Invited to comment on AN’s witness statement, the Applicant said he didn’t recall chatting with AN online, as she states, but that its possible that he did.^[66] However, he denied ever asking AN questions about being sexually assaulted or for details of the assault.^[67] He also stated that they never discussed sex over the phone
97. [97]
    He denied the allegation that he posted a vibrator to AN, adding that he bought her a vibrator when she was 19. He said he found the suggestion that he would send a vibrator to a 14-year-old to be abhorrent.
98. [98]
    When questioned about whether gifting a vibrator was appropriate in view of the sexual abuse, he stated that he didn’t know ‘what sex abuse, and suggested that perhaps it didn’t happen, adding that AN’s brother was also supposed to have been assaulted.
99. [99]
    The Applicant mentioned that around the time he was alleged to have sent the vibrator he had not yet met AN, but was merely involved in getting her back to school.
100. [100]
     As to why he gave AN a vibrator when she was 19, he replied that he only remembered that he and LM thought it was a good idea at the time.
101. [101]
     After AN turned 18 he said he gave her advice and warnings about dating sites and on rare occasions would take her shopping
102. [102]
     The Applicant was asked to comment on why AN would say that he has a drinking problem. He said that it was a ‘story concocted by [LM]’. He denied ever groping or having sexual contact with AN.
103. [103]
     The Applicant also denied having any pornography or a number of phones, adding that there is no evidence to the contrary.
104. [104]
     Asked about the sarong exposure allegations, he denied that it happened. He noted that LM didn’t say anything to him.
105. [105]
     With respect to his alleged relationship with LM, he noted that while he did go ‘over there’ (her house or apartment) it was when he was not in a relationship.
106. [106]
     With respect to the sarongs, he stressed that they were not his and added that sarongs are worn without underwear. While acknowledging that some men expose themselves, he suggested that he was ‘quite private about [his] privates’
107. [107]
     When questioned about the appropriateness of sarong only attire and that a child may be exposed, he replied that no one had suggested that the clothing was inappropriate, and in any event that it was perfectly appropriate for this climate
108. [108]
     When asked whether in hindsight he would wear underpants if he though he could be exposed, the Applicant dismissed that possibility.
109. [109]
     It was put to the Applicant that in her witness statement AN recounts that the Applicant had asked her to kiss him.^[68]He said that it didn’t happen, he never tried to kiss her on the lips, only on her cheeks when saying hello and goodbye. He noted that different people have different views on kissing.
110. [110]
     The Applicant also denied AN’s statement regarding the Applicant telling her that she had good legs and asking to have sex with her.^[69] He said that it did not occur and posed the question ‘Why do we assume that anything was true’.
111. [111]
     As to his relationship with LM, the Applicant described it as casual sex when not in another relationship.
112. [112]
     Asked why he formed a father daughter relationship with AN, the Applicant said he took on the role because AN’s father was a ‘monster’. He qualified his relationship with AN by noting that it did not begin when she was 14, and that it was after he asked LM whether it would be OK.
113. [113]
     The Applicant was asked why he had submitted TC’s 3 February 2020 (firearm reference) reference in these proceedings. He said that it was because he had run out of time. As to why she refers to ‘regaining possession’ when he states that he has never owned a gun, the Applicant suggested that ‘you would need to speak with her’.

Witnesses

114. [114]
     Three of the Applicant’s witnesses were cross examined on 14 April 2021.

TW

115. [115]
     In his character reference dated 20 May 2019, ^[70] TW states that he has known the Applicant as a work colleague and socially for approximately 5 years. During this time, he says that he came to known the Applicant, well. He described the Applicant as a caring and thoughtful person with a passion for social justice and assisting those in a situation of disadvantage.’
116. [116]
     TW notes that as fellow employees of the Department of Child Safety he and the Applicant regularly worked with children and would ‘regularly be consulting children on sensitive and emotional matters.’ TW says that he observed the Applicant undertake this type of consultation ‘entirely appropriately, and to show strong empathy and ability to communicate effectively, regardless of the child’s particular circumstances.’ He further states, ‘I have never experienced [the Applicant] to act in anyway, with any child, other than completely professionally, and appropriately.’
117. [117]
     In cross examination TW indicated that he stands by his statements and even though now aware of criminal charges brought against the Applicant, when he wrote the reference.

MS 

118. [118]
     In her reference dated 17 May 2019 ^[71] MS states that she has known the Applicant for 5 years as a colleague at the Department of Child Safety. She describes him as ‘a unique personality and quite unconventional’. She qualifies this stating that she has always found him to be ‘professional and ethical in his interactions with staff and clients.’
119. [119]
     She notes that the Applicant’s ‘practice framework is deeply founded in ‘ensuring the best interest of the client’, and that he has an uncanny ability to understand ‘the complex issues which many families face and build rapport easily.’ She says that in working with the Applicant ‘on shared cases, I have observed his interactions with clients and in particular, children always to be appropriate and professional.’
120. [120]
     Under cross examination MS spoke of significant issues in workplace bullying and emotional violence, people out to get him – to remove him. While she confessed to not being aware of the charges, she saw them as vexatious and mixed up in work situation. Asked to qualify her description of ‘unique personality and quite unconventional’ she mentioned that he didn’t wear shoes, was able to relate to Aboriginal community, was outside of the cookie cutter public servant, a relaxed persona around children, and had a hippieness that didn’t fit in.
121. [121]
     KC
122. [122]
     The reference by KC and dated 2 May 2019^[72] attests to the Applicant’s professional manner of conduct and being ‘highly respected by colleagues and service partners. KC had worked with the Applicant for over 10 years and described him as a ‘skilled and caring professional’. She also observes that the Applicant ‘has an extensive career which has improved the lives of many children, and notes, ‘I have observed him to be respectful and caring and never heard reports of any concerns.’
123. [123]
     In cross examination she was asked whether as a child safety worker she considered wearing only a sarong to be appropriate. She stated that she didn’t necessarily agree but added that the allegations had been twisted to make them sound bad.
124. [124]
     A further three witnesses were cross examined on 10 November 2021.

TC

125. [125]
     In her written statement dated 27 February 2021, TC, a consulting psychologist notes that the Applicant had been referred to her on 4 June 2018 by his General Practitioner for ‘psychological treatment for stress related issues.’ In her reference she reports that between June 2018 and February 2021 the Applicant had attended 30 sessions. TC observes that she has read the reasons for the decisions to issue a negative notice dated 10 June 2020.
126. [126]
     TC reports that from her discussions with the Applicant, ‘it has become apparent that [the Applicant] possesses adequate insight into the circumstances for which he was charged.’ She notes that ‘throughout his intervention, [the Applicant] has not presented with any risk factors that indicated inappropriate circumstance or behaviours have or will present in the future. I therefore cannot recommend the necessity for preventative factors or preventative strategies to be implemented. As such, I cannot provide any evidence that would mitigate against [the Applicant] to be a suitable person to hold a Positive Notice and Blue Card.’
127. [127]
     When questioned about her ‘adequate insight’ remark in reference to the Applicant’s alleged indecent exposure, she suggested that it was something he had overlooked but that he was now aware that it was inappropriate in the circumstances to only wear only a sarong.
128. [128]
     Questioned about the 30 sessions the Applicant had with her, she told the Tribunal that she had diagnosed the Applicant as having post-traumatic stress disorder due to the loss of his home, contents and personal possessions in early 2018. TC also advised that since the loss of his house the Applicants consumption of alcohol had increased as he was using alcohol as a ‘coping strategy’
129. [129]
     When cross examined with regard to her statement that she did not ‘recommend the necessity for preventative factors or preventative strategies to be implemented’, she conceded that she and the Applicant had discussed the ‘importance of “boundaries” in the future, and “referring on rather than providing support”.’
130. [130]
     TC was also questioned about her earlier reference dated 3 February 2020, in which she stated,

in my professional capacity I have no reservation in providing Michael with support to regain his firearm as he does not present with any psychological or personality features which would preclude him from possessing firearms.

131. [131]
     Ms Clarke explained that she had misunderstood the Applicant, believing that he had lost his firearm licence and was asking to have it reissued rather than applying to have one issued. Regarding an email from the Applicant^[73] appearing to tell her what to write in the 3 February 2020 reference, she stated that it is her practice to ask patients to email to her what is required in the requested letter. He emphasised, however, that she didn’t necessarily write everything that was requested – (which is clearly the case when his email is compared to her reference).

JF

132. [132]
     A further reference dated 23 May 2019^[74] was provided by JF who at the time had known the Applicant for 3 years, both through work and socially. She states that the Applicant ‘demonstrated an appropriate and professional manner towards children and their families.’ She further observes that ‘He understands and respects the complexities and diversities involved when working with children and families and ensures privacy and confidentiality at all times.’

In cross examination JF revealed her lack of familiarity with the charges by suggesting that the charges related to an allegation by a young female colleague that the Applicant had exposed himself to her but that the matter did not proceed due to a lack of evidence. As JF had worked with the Applicant in 2017 and 2018 she was asked whether she had been aware of any allegations against the Applicant. She indicated that she had been made aware of an allegation that the Applicant had been intoxicated in the workplace when a wine bottle was found under the Applicant’s desk, and described the workplace as a ‘toxic environment’.

RS

133. [133]
     In her reference dated 10 November 2021,^[75] RS, a Mental Health Practitioner states that she has known the Applicant for at least 6 years. She states that she has been in a de-facto relationship with him for two and a half years and that they jointly purchased a house in which they live.
134. [134]
     She states that she believes ‘the allegations made by [AN] to be false’. She states that she had spoken with AN and that AN ‘admitted that the statement was untrue and that her mother had manipulated her into making the statement on 16th January 2018.’
135. [135]
     She says that she has also spoken with LM regarding her relationship with Applicant and stated ‘[LM] was very vindictive and jealous causing problems for myself and [the Applicant].
136. [136]
     Her assessment of the Applicant is that he has ‘dedicated his whole life to helping children and families, through his work as a school principal and other positions. She also stated that her ‘observation of [the Applicant] has only ever been positive. ‘
137. [137]
     Under cross examination RS was not as clear or forthcoming. She was unable to state when she had her conversation with AN and surprisingly if not unconvincingly stated that she was unaware of any allegations regarding the Applicant in his workplace. RS also backed up the Applicant’s submissions that he only liked to have a glass of wine with dinner.

AN’s written reference dated 14 May 2019^[76]

138. [138]
     The Applicant also tendered a written reference that was not able to be tested through cross-examination. In fact, AN, the author of the email has not been able to be contacted.
139. [139]
     The Applicant has reported that she was unwilling to attend due to her concerns about self incrimination over her sworn statement given to police which she now says is not true. The Respondent urges that the explanation is not persuasive and should be given little if any weight.
140. [140]
     At the directions hearing on 2 September 2021, the Applicant had indicated that he would endeavour to locate and persuade AN to attend and be examined regarding her reference dated 14 May 2019, in the light of her statement to the QPS on 15 December 2018. She did not attend the hearing.
141. [141]
     In her 14 May 2019 reference, AN describes the Applicant as a support person for her and her family for ‘almost 10 years’. She notes in particular that he helped her and her younger brother. The allegations that were made to the police in 2018, she says.

were from my mother because of jealousy and were untrue…I trust [the Applicant] and have zero concerns when it comes to him working with children. I have witnessed [the Applicant] around many children over the years and have no doubt his intentions are to help every single one of them.’

142. [142]
     One further reference was submitted.

ST 

143. [143]
     In his reference dated 20 May 2019,^[77] ST states that he has known the Applicant for over three years. He notes, –

I have observed his practice with Children and child related activities in relation to sensitive and often complex matters. He has an expert level of understanding and has readily demonstrated this repeatedly whilst encouraging it in others.

Any Other Factors Relevant to the assessment of the person.

144. [144]
     As noted earlier, a review of a ‘reviewable decision’ is required to be undertaken by way of a fresh hearing on the merits,’^[78] and is not an appeal of the original decision. Therefore, the scope of what can be considered in this review is not confined to evidence before the original decision maker or to factors present at the time of the alleged offences.
145. [145]
     For that reason, in a review of a decision that a case is an ‘exceptional case’ for the purposes of section 221(2) of the WWC Act, any additional offences or charges, any additional investigative or disciplinary information or other relevant developments are also to be considered by the Tribunal.
146. [146]
     In Eales,^[79] the Appeal Tribunal relied on the Court of Appeal decision in Maher,^[80] in holding that while the Act lists factors to which the decision maker ‘must have regard’, when determining whether the case is an exceptional case, ‘the factors prescribed under s 226 … are not exhaustive and include factors ‘reasonably considered’ relevant to the ‘assessment’ of the person.’^[81]
147. [147]
     Consequently, a factor that is relevant to the assessment of the Applicant’s suitability to be issued a positive notice, may be considered either under a broad interpretation of the seventh mandatory factor, or as a factor in addition to the factors mandated in section 226(2) of the WWC Act, but required to assess suitability.
148. [148]
     I turn to address factors relevant to the assessment of the Applicant’s suitability that are unrelated, or only indirectly related to both the Applicant’s offences and charge.

Firearm Licence and Domestic Violence

149. [149]
     In response to a ‘direction to produce’ issued to the Queensland Police Service (QPS) by the Tribunal on 14 April 2021, the QPS advised that no orders or temporary Domestic Violence Orders relating to the Applicant had been located, but provided certain documents relating to the Applicant’s ownership, possession or licence of firearms.^[82]
150. [150]
     This Notice to Produce was instigated by evidence presented in writing and orally at the first hearing on 14 April 2021.
151. [151]
     The documents provided by the QPS consisted of a letter from TC dated 3 February 2020, a weapons licencing application by the Applicant and a letter to the Applicant from the QPS.^[83]
152. [152]
     The Applicant had tendered a written reference dated 3 February 2020 from his consulting psychologist,^[84] in which she states,

in my professional capacity I have no reservation in providing [the Applicant] with support to regain his firearm as he does not present with any psychological or personality features which would preclude him from possessing firearms.

153. [153]
     On page 7 of the Applicant’s 11-page Firearm Licence application^[85] the Applicant indicates that he had previously been issued a firearm licence in NSW in 1999. In providing his medical history the Applicant had also indicated that he had received treatment for a ‘psychiatric or emotional problems’. Consequently, he was asked to provide additional information including a medical certificate that the condition ‘does not affect his ability to possess or use a firearm.’^[86] The Applicant also requested his psychologist to state that

[he] is aware that in 2012 he had a welfare check done by Queensland Police due to an allegation that he had sent some sort of communication indicating that he was contemplating suicide…he has never sent any communication indicating this; there is no evidence that he has done this; he believes the allegation to Police was designed to cause mischief; and he believes the report from the officer doing the welfare check would confirm he was of sound mind.^[87]

154. [154]
     In a letter dated 28 November 2019^[88], the Applicant was advised that as he indicated that he had been charged in 2018 with Indecent treatment of a child under 16, he needed to provide submissions as to why he should be considered a fit and proper person to hold a firearms licence.^[89]

Workplace Allegations

155. [155]
     Oral evidence given in cross examination on the first day of the hearing alerted the Tribunal to workplace allegations against the Applicant, bullying of the Applicant and what appeared to be, disciplinary proceedings against the Applicant. Consequently, on 14 April 2021, the Tribunal directed the Applicant’s employer, the Department of Children, Youth Justice and Multicultural Affairs to produce any documents and correspondence regarding any allegations or investigation of allegations, and any other information relevant to the Applicant’s conduct.
156. [156]
     The received documents reveal that part from two concerns documented in 2014, all other allegations and concerns regarding the Applicant’s behaviour relate to 2017 to 2018.

Organisation of Meeting

157. [157]
     The first of many recorded work-related concerns is to be found in a 21 July 2014 communication from a ‘stakeholder’ regarding the Applicant’s lack of professionalism in his organisation of a work-related meeting. The description of the alleged behaviour suggests that the Applicant had been arrogant, unreliable, flippant and negligent.^[90]

Lack of Professionalism

158. [158]
     On 8 December 2014 a concern was also expressed about the Applicant’s seemingly unprofessional relationship with a female departmental client. An end of shift report recorded the female departmental client saying that ‘she came in to town because her uncle ([the Applicant]) shouted her to get her belly piercing and some new clothes.’^[91]

Anonymous Phone Call allegations

159. [159]
     Allegations regarding the Applicant were also made to the Department by an anonymous telephone caller in February and March 2017.^[92] In February the caller registered a complaint alleging that the Applicant engaged in inappropriate conduct by being intoxicated whist performing work duties, and by ‘grooming children (who have been in care) by buying them “drugs, whatever they want, to sleep with them.’^[93] Asked how he/she knew that the Applicant ‘visits families while intoxicated [and] stinks of alcohol,’ the caller replied, ‘People who work with him must smell it on him. Is this the type of person that any parent wants anywhere near their child?^[94]
160. [160]
     The caller also alleged that the Applicant was ‘telling one family about another family’s business – there is no confidentiality.’^[95] In addition, the caller also said that the Applicant had been reported to the QPS for drink driving.^[96]
161. [161]
     Ethical Standards reviewed what they identified as the three issues of concern, that the Applicant—

     1. (a)
        visited the homes of departmental clients under the influence of alcohol,
     2. (b)
        supplied drugs to departmental children-clients when grooming them for sex, and
     3. (c)
        breached confidentiality by disclosing information to families not entitled.
162. [162]
     The Ethical Standards review and assessment of the allegations determined that with respect to the first allegation, there was insufficient evidence to ‘reach the heightened threshold to reasonably corrupt conduct.’ However, Ethical Standards recommended that the allegation be dealt with under the Public Service Commission’s CaPE [Conduct and Performance Excellence] framework.^[97]
163. [163]
     With respect to the second and third allegations Ethical Standards determined that the allegations ‘would meet the definition of corrupt conduct and therefore referred the allegations to the Crime and Corruption Commission.^[98]
164. [164]
     On 4 May 2017, Ethical Standards advised the Applicant that as a consequence of determining that there was ‘insufficient evidence to support taking any further action’ the matter was closed.
165. [165]
     In the second phone call in March 2017, the anonymous caller alleged that the Applicant had given a departmental client money to buy ‘ice’.^[99] The information was conveyed to the QPS, however, when questioned by Police the client denied the transaction.^[100]
166. [166]
     On 7 April 2017 Ethical Standards’ preliminary inquiry report found the allegations made by the anonymous caller to be incapable of being substantiated. ^[101] Consequently, on 4 May 2017 the Applicant was advised that Ethical Standards had finalised their review and determined that there is insufficient evidence to support any further action in relation to the allegations that the Applicant had engaged in alcohol misuse whilst at work and that he had engaged in grooming behaviour procuring drugs for Child Safety clients.^[102]

Training Course

167. [167]
     In July 2017, whilst attending a training course in Brisbane, the Applicant was alleged to have been intoxicated and to have inappropriately touched a female colleague.
168. [168]
     Although the Applicant alleged that he was warned that people were ‘stirring up trouble for [him]’ he failed to identify those who allegedly raised these concerns and did not identify those who were colluding or stirring up trouble against him. Consequently, he was advised that there was no substance to his claims.
169. [169]
     It was noted that he conceded that on 26 July 2017 he—

Placed his hand on a female colleague’s back, kissed her on the head and hugged her from the side. Even though his explanations varied significantly from those of the staff in question - he was advised that his actions were ‘highly inappropriate, were unwarranted and made staff members feel uncomfortable.’^[103]

170. [170]
     In a letter dated 27 September 2017, the Applicant explains why some may have smelt alcohol on his breath at the training—

While on recreation leave, I have realised that what one or more people may have thought was a smell of alcohol could have in fact been an acetone-like smell as I have been fasting for several days and my body was probably in a state of ketosis – acetone breath is a symptom that often manifests while in this state.^[104]

171. [171]
     More generally abut his consumption of alcohol, the Applicant stated –

I state as an absolute fact that I have not consumed any alcohol or been in the presence of any other person consuming alcohol for at least 36 hours prior to the commencement of the training. I did not consume any alcohol during the training. I have never been under the influence of alcohol or any other drug in any workplace or any work context at any time in my life. ^[105]

172. [172]
     The author of the letter explained why he/she chose to accept the allegations in spite of his denials and explanations.

After considering all available evidence, including the Applicant’s response, the allegation was found to be substantiated on the balance of probabilities. Having regard to your responses I wish to make the following observations. All staff members who provided statements in this matter were affected by an over-arching concern regarding your health and well-being. No information was supplied in a manner suggestive of any retributive or sinister motivation. I also observe that all information provided by staff in this matter was unemotional, consistent, balanced and particularised. To that end I have determined to prefer their version of events. I note that you have made certain concessions regarding touching other staff and stakeholders and you have identified that staff did raise with you concerns that you were not fit for duty.^[106]

173. [173]
     The Applicant was advised that disciplinary action in the form of a reprimand was being considered and was once again invited to make submissions regarding the proposed plenary action.^[107]
174. [174]
     The Applicant responded on 8 November 2017, but in a letter dated 11 December 2017 he was advised that it had been determined that disciplinary action would be taken against him in the form of a reprimand.
175. [175]
     In advising this decision, the author observed—

you have acknowledged that your conduct caused other staff distress and was incompatible with your obligations pursuant to the code of conduct of the Queensland Public Service. Further your response also concedes that you express remorse and regret for your conduct and advise that you intend to ensure that matters of this nature do not re-occur in the future.’^[108]

A communication on 16 August notes that the ‘Applicant continues to deny that he was alcohol affected at ‘the training incident’ and refuses any support.’^[109]

176. [176]
     The Applicant’s responded to the allegation that he had inappropriately touched a colleague by stating, ‘I am horrified that I made her feel uncomfortable and after this matter is concluded will ensure that I apologise to her.’^[110]             

26 September 2017

177. [177]
     Central to the allegations about the Applicant are the allegations relating to 26 September 2017. On this day the Applicant was alleged to have ‘performed duties whilst intoxicated and made inappropriate comments to and/or threatened a departmental client.’^[111] Complaints to that effect were received from a departmental client on the same day^[112] and from work colleagues on the following day, 27 September 2017.^[113]
178. [178]
     A review of available information commenced on 28 September 2017, led to an investigation by Ethical Standards,

to determine whether [the Applicant] Principal Team Leader, Collaborative Family Decision Making Team, Far North Queensland Region conducted a client visit whilst under the influence of alcohol and if his conversation with a departmental client was appropriate [and] to make a finding as to whether there is sufficient evidence to substantiate the allegations, based on the balance of probabilities.^[114]

179. [179]
     In an interview conducted on 30 November 2017, the Applicant stated that a departmental client had telephoned him the night before, and as she sounded distressed, he had offered to visit her home before work the following day.  He said that he attended her house around 8 am and engaged in a discussion about an FGM. He says that she became frustrated, and as he was unable to ‘deescalate her behaviour’, he left.^[115]
180. [180]
     The Applicant denied that he was intoxicated and claimed to have had only a glass of wine with dinner the night before. He also denied threatening the client. In addition, the Applicant volunteered the information that he had been a heavy drinker in the past but ‘not now’.^[116]
181. [181]
     Regarding complaints that he was confused and unable to focus, he said he was probably ‘flat’ because of the allegations made by the client about his morning visit.^[117]
182. [182]
     The Applicant also alleged that one of the complainants, ‘had been coached to fabricate evidence against him and there is a conspiracy by two people including against him, and believed [unknown] did not want him as a Team Leader.’ He also noted that in a meeting later that morning he had sat next to another staff member who would have smelt alcohol on him if he had been drinking, but she did not.^[118]
183. [183]
     The Applicant had also observed that due to previous allegations that he was intoxicated at work, he was to be advised of any further such allegations, so that he could obtain a blood alcohol reading.’^[119] He was aggrieved that he had not been afforded the opportunity on this occasion.^[120] On 23 August 2017 when the Applicant arrived at work to found an empty bottle of wine under his desk, he ‘expressed concern that “someone is doing this to me”. He was asked to undertake a breath test to confirm he was not alcohol affected.  However, when the Applicant contacted a police station, he was advised that they were not permitted to do this. ^[121]  In addition the Applicant’s union advised him not to subject himself to such a test.^[122]
184. [184]
     Ethical Standards found that it was not in dispute that the Applicant attended at the home of a departmental client at about 8 am on 26 September 2017. Ethical Standards also found that the weight of the evidence suggested that the Applicant had arrived uninvited, that he appeared and smelt intoxicated, and that he had threatened the departmental client. Ethical Standards found that the Applicant’s comments to the client were interpreted by her as a threat relating to her access to her son, ie, ‘not getting her kid back’.^[123] Corroborated evidence also suggested that the Applicant told her that he could say and do whatever he wanted to.^[124]
185. [185]
     The allegation that the Applicant ‘carried out his role and conducted his duties whilst under the influence of alcohol,’ related to both the above discussed early morning visit to the home of a departmental client and to his attendance at the workplace office later that day.
186. [186]
     In their report on the allegations of misconduct against the Applicant, Ethical Standards note that, ‘Multiple witnesses of [the Adult’s] conduct have made observations of his presentation that would indicate he was under the influence of alcohol and intoxicated.’^[125]
187. [187]
     The basis for this conclusion included staff members’ comments that the Applicant ‘was not presenting well and once again smelt of alcohol,’^[126]that he ‘appeared confused, disoriented and incoherent. [That the Applicant’s] behaviour was in stark contrast to his presentation on the previous day,’^[127] and that he was difficult to understand.
188. [188]
     In their Report, Ethical Standards explain why, even though the Applicant strenuously denied the allegation that he was intoxicated, they preferred the evidence of those making the allegation. They note, ‘Each observation made independently by each witness corroborates that [the Applicant] was exhibiting behaviours associated with the excessive consumption of alcohol.’^[128]
189. [189]
     Ethical Standards also took into account the evidence of staff members who alleged, that—

the Applicant was an alcoholic and his daily life revolved around the excessive consumption of alcohol, that

a staff member ‘was so concerned about [the Applicant’s] condition she felt it necessary to notify the department given his consumption of alcohol was affecting and impacting on his professional life,’

he would drink excessive amounts before driving his own vehicle to work, and

that he had previously on multiple occasions attended the workplace under the influence of alcohol and unfit for duty.’^[129]

190. [190]
     Ethical Standards concluded—

Based on witness accounts in relation to [the Applicant’s] behaviour and presentation on 26 September 2017, and a pattern of behaviours demonstrated by [the Applicant] through [unnamed] it is highly likely that on 26 September 2017, [the Applicant] was under the influence of alcohol and unfit for duty as per Part 1.5^[130] of the Code of Conduct.^[131]

191. [191]
     Ethical Standards’ investigation found that:

     1. (a)
        On 26 September 2017 the Applicant made inappropriate comments and/or threatened a departmental client is capable of being substantiated on the balance of probabilities.^[132]
     2. (b)
        On 26 September 2017 the Applicant carried out his role and conducted his duties whilst under the influence of alcohol is capable of being substantiated on the balance of probabilities.^[133]
192. [192]
     Consequently, on 25 October 2017 the alleged conduct was assessed as alleged misconduct and an investigator was appointed to investigate the two allegations relating to 26 September 2017.^[134]
193. [193]
     The Applicant was advised of the inquiry and interviewed by Ethical Standards on 30 November 2017.^[135]
194. [194]
     On 5 March the investigation into the September 2017 was completed and the report advised that all allegations against the Applicant were capable of being substantiated.^[136]
195. [195]
     In correspondence dated 30 April 2018, the Applicant was invited to ‘show cause why disciplinary findings should not be made against you in relation to the allegations.^[137]’
196. [196]
     The Applicant was also advised that,

the investigator has raised an additional allegation…that you have failed to comply with a lawful direction. Additionally, another two allegations have been raised (since your suspension) regarding concerns that you have failed to appropriately manage departmental records.’^[138]

197. [197]
     With the third and fourth allegations added on 11 January 2018 and the fifth on the 16 February 2018, the five allegations were—

1. Inappropriate comments and threatened department client on 26 September 2017

2. Carried out your role and conducted duties whilst unfit for duty – 26 September

3. That failed to follow a lawful and reasonable direction re direction to cease performing FGM consultations and concentrate on managing thze team – 4 May 2017 The direction was reaffirmed 16 August 28 September

4. That between 30 Nov 2017 and 5 Dec 2017 failed to secure private and confidential staff records.

5. That on 15 February failed to secure private and confidential client records.

198. [198]
     The Applicant’s response to the first two allegations was to declare them to be entirely untrue.^[139]
199. [199]
     The Applicant was provided with opportunity to respond to allegations to the additional three allegations.

Allegation 3 - That failed to follow a lawful and reasonable direction

200. [200]
     Between 2014 and 2018, the Applicant held the position of Principal Team Leader Family Group Meeting Convenors (Collaborative Family Led Decision Making Team). Concerns regarding his ability to run Family Group Meetings impartially were received in June 2017. ^[140]
201. [201]
     On 19 June 2017 a request was lodged that the Applicant be removed as FGM convenor because he was allegedly not acting impartially as convenor of that Family Group Meeting and was coercing a child.^[141] It was alleged that through close involvement with individual departmental clients by for example helping them move house,^[142] he clouded his view of particular clients and could not be an impartial convenor.^[143]
202. [202]
     A concern communicated on 28 July 2017, noted that the Applicant had appointed himself as Convenor of a Family Group Meeting and a party to that Meeting had asked that someone independent and not known to her and her family be allocated instead.^[144]
203. [203]
     What made these actions particularly concerning was that on 4 May 2017 the Applicant had been directed to cease performing FGMs. ^[145]
204. [204]
     On 1 August 2017 concern was expressed that even though the Applicant was given written directions not to undertake FGM’s ‘unless exceptional circumstances apply, these being unplanned staffing deficits,’ he had allocated FGM’s to himself and was continuing to undertake Family Group Meetings despite this formal direction not to do so.^[146]
205. [205]
     The 4 May 2017 direction was subsequently reaffirmed on 16 August 2017, and further restated in correspondence on 28 September 2017. The day before the final reminder, a particularly disturbing concern had been conveyed alleging the Applicant was not capable of meaningful involvement in FGMs.^[147]
206. [206]
     The Applicant declared the third allegation incorrect and stated ‘I am appalled that anyone would suggest that I would follow a lawful and reasonable direction from any senior officer.’^[148]

Breach of Confidentiality – Failure to secure departmental records

Allegation 4 - That between 30 November 2017 and 5 December 2017, [the Applicant] failed to secure departmental staff supervision records.

207. [207]
     On 15 December 2017, Ethical Standards received allegation that the Applicant had claimed ‘that a number of files had been stolen from a locked set of drawers located at his work station.’^[149]
208. [208]
     In response to the privacy breach an investigation was initiated and found that on 30 November 2017 the Applicant had been asked to attend a meeting to review his performance against his Performance Improvement Plan. He was asked to bring certain documents with him.^[150] The specified documents were required as evidence of the Applicant’s supervision ‘with all staff against the REACH Framework’, of ‘supervision agreements with all FGM Convenors’ and of ‘staff meetings and group supervision’.^[151] The requested files have also been described as including, ‘loose supervision notes including supervision guidelines and agreements, performance improvement plans records, loose recruitment documents.^[152]
209. [209]
     The Applicant attended the meeting without the requested documents. and asked for time ‘to transcribe hand written notes into a more legible format.’ He was given until 5 December to provide the requested documents.
210. [210]
     The Applicant did not meet this deadline and a further meeting was scheduled for 6 December 2017. Prior to this meeting the Applicant delivered a limited number of supervision records together with a note stating that the remaining documents had gone missing. He later advised that the remaining 20 to 30 pages of documents had gone missing from the locked cabinet in his office.
211. [211]
     A security check failed to identify how the documents could have been taken out of the locker by anyone other than the Applicant.
212. [212]
     Ethical standards reviewed this information together with that relating to another ‘breach of confidentiality and failure to secure departmental documents’ allegation referred on 16 February 2018

Allegation 5 - That on 15 February failed to secure private and confidential client records.

213. [213]
     When the Applicant was arrested at his home on 15 February 2018, QPS Officers searched the Applicant’s motor vehicle and found a substantial volume of department files and documents, later audited by departmental staff and found to consist of 607 pages of client related information.^[153]
214. [214]
     As the Applicant had been suspended from duty a month earlier, on 15 January 2018, there did not appear to be a legitimate reason for him to have the documents in his possession or in his car.^[154]
215. [215]
     The Applicant accepted the fourth and fifth allegations as ‘substantially correct’, and stated that he had forgotten that the documents were in his motor vehicle.^[155]
216. [216]
     The Preliminary Inquiry by Ethical Standards advised on 12 March 2018 that it had assessed the evidence as not reaching the threshold to reasonably suspect corrupt conduct.^[156] However Ethical Standards recommended a number of possible further actions, including the consideration of whether any disciplinary or performance management action should be initiated. ^[157]

Other Allegations and Concerns

Work Hours

217. [217]
     On 28 September 2017, two days following the events of 26 September 2017, the Applicant was advised in person and in writing that he was required to—

     1. (a)
        Work a 7 hr 15 minutes day between 8 am and 4 pm,
     2. (b)
        Take a minimum half an hour for lunch in this spread of hours,
     3. (c)
        Make a morning and afternoon face to face check-in with [specified person/s] and provide an update on FGM activities ‘This is to enable [unknown] to assess your health and being in light of the recent issues.
     4. (d)
        Not engage in any client contact ‘including phone and email contact’
     5. (e)
        ‘You are not permitted to conduct any Family Group Meetings.’^[158]
218. [218]
     In mid December the Applicant’s time sheets suggested that he had worked outside of the prescribed hours. He was confronted with a time sheet spanning 13 November to 7 December showing that he had breached the eight to four working day directive on every day that he had worked in that period. The Applicant replied that he ‘did not deliberately defy [the] directive. The reasons he gives is—

I thought there was a discussion (I can’t remember whether it was with you and [unknown] or just [unknown] that sometimes I would be slightly outside of this time due to whatever I was completing at the time and only put 30 min down for lunch.^[159]

219. [219]
     On 20 December 2017, the Applicant wrote ‘requesting reconsideration of the formal direction.^[160] Seemingly unaware of the purpose of the time restrictions, the Applicant then suggests ‘If you are not happy with any of the times, I put on my Timesheets I am prepared to withdraw them and redo them.’^[161]
220. [220]
     The working hours issue illustrates the Applicant’s reluctance to accept assistance and guidelines designed to protect his wellbeing. The Applicant’s acceptance of advice and willingness to alter work or life habits as required has not been demonstrated in this case. Unfortunately, the Applicant’s response in December appears to be more representative of the Applicant’s approach.

Alcohol Consumption

221. [221]
     Allegations relating to the Applicant’s excessive drinking, being under the influence while being at work or smelling of alcohol are a predictable element of most allegations relating to the Applicant’s misconduct at work. In contrast, the Applicant consistently denies being intoxicated at work or drinking before work. When challenged the Applicant refers to the glass of wine he had with dinner the previous evening, the effects of his exotic food or his diet that may have been mistaken for smells associated with alcohol. While denying a current drinking problem the Applicant has conceded that he ‘maybe had a drinking problem years ago.’^[162]
222. [222]
     Departmental documents appear to confirm that the Applicant’s colleagues had been concerned about his health and the role that alcohol played.^[163] An Ethical Standards inquiry notes that one of the Applicant, colleagues, ‘felt it necessary’ to notify the department that the Applicant’s life revolved around ‘excessive consumption of alcohol’ and ‘was affecting and impacting on his professional life.’^[164]
223. [223]
     Concerns regarding the Applicant smelling of alcohol whilst at work have include that of a female colleague who was unwilling to work with him due to the smell of alcohol which triggered a significant trauma memory. While the Applicant had consistently denied having alcohol on his breath, he was reported to be upset that had inadvertently caused her distress^[165]
224. [224]
     Another female colleague is reported to have expressed concern that the Applicant would do something inappropriate like touch her or kiss her’ did not want to be in a room with him with the door closed or be supervised by him and was considering a restraining order and laying charges against him for harassment.^[166]

Maintenance of Records

225. [225]
     In his October 2017 performance review, concern was expressed about the Applicant’s ‘failure to maintain supervision notes, an accurate database and the use of his private motor vehicle.^[167]
226. [226]
     Such concerns may not seem relevant to the determination of the Applicant’s suitability to work with children. However, in the Applicant’s case, the denial or concealment of such failures led to allegations of theft and exposed the Applicant to an internal investigation regarding his mishandling of confidential materials.
227. [227]
     The broader issue raised by these concerns relate to the Applicant’s honesty and trustworthiness, characteristics expected of those entrusted with the care of children and young people.

Culturally and Sexually inappropriate Comment

228. [228]
     In August 2017, the Applicant made a ‘culturally insensitive’ comment to a female colleague also deemed to have a sexual connotation.^[168]
229. [229]
     I note that while the Applicant apologised ‘unreservedly,’ his apparent attempts to explain the comment proved to also be offensive.  It seems that he ‘talked about an incident where other aboriginal people were arguing because someone called him ‘white’ and saying he is not, so implying he has a right to say things about aboriginal people.’^[169]
230. [230]
     Though not an example of a significant offence, such lapses in judgment are nevertheless concerning, especially when considered in the light of the Applicant’s experience and position.

Undocumented Allegation of Indecent Exposure

231. [231]
     In the course of being cross examined on 10 November 2021, the Applicant’s witness, JF disclosed that her understanding of why the Applicant was seeking to have his blue card reinstated related to an allegation by a young female colleague that the Applicant had exposed himself to her. But she also noted that the matter did not proceed due to a lack of evidence.

Official Complaints by a Neighbour and/or LM

232. [232]
     In her police Witness Statement,^[170] AN refers to a conversation some two years earlier with one of the Applicant’s neighbours, in which the neighbour told her that ‘

she has seen lots of small naked girls and women at [the Applicant’s] house. She told me that she had gone into [his] workplace and made an official complaint about what she had witnessed at his house.^[171]

233. [233]
     In response to AN’s witness statement to QPS, the Applicant says, ‘I don’t know if [neighbour] said this or did this…I do know however that [LM] went to my workplace and made several untrue accusations subsequent to 7 January.’^[172]
234. [234]
     A preliminary briefing as to a complaint received about the Applicant following his suspension from employment on 15 January referred to a number of recent concerns. These included the Applicant’s conduct with ‘some young indigenous girls’, ‘a number of young indigenous girls walking around the house naked, and the Applicant ‘having sex with a young girl.’^[173]
235. [235]
     In rejecting this and similar allegations, the Applicant stated that

[LM] has fabricated many stories and documents since early January 2018 and has spread them personally and via social media – the stories change (I believe) to suit [her] perception of what will do the most damage to my reputation with each audience.^[174]

Relevance

236. [236]
     The most obvious relevance of the Applicant’s work performance is that his work is child related and that he has devoted his working life to child related employment.
237. [237]
     As Principal Team Leader FGM Cairns, the Applicant has worked with vulnerable families. While the Tribunal has heard that the Applicant was considered able to relate to Indigenous families, what documents obtained from the Department reveal is that his work was the subject of numerous allegations and expressions of concern.
238. [238]
     The allegations raise some concerns regarding the Applicant’s relationships with his clients, and especially young female clients.  While the Applicant seeks to have a distinction drawn between his personal life and his work life, the nature of his work and the wide range of work in which a blue card holder may engage, may take inappropriate.
239. [239]
     As some of the allegations demonstrate, if perceived to sexually abuse children or otherwise cross the boundary of engagement with clients because of behaviour outside of work hours and locations, the capacity to work and perceived suitability to undertake related work suffers. It appears that the Applicant either did not care about perceptions or his lapses in judgment let him down.
240. [240]
     The Applicant’s denials and explanations offer little if any reassurance. I have great doubts as to the Applicant’s willingness and maybe even capacity to acknowledge the validity of the concerns raised and see the reason why so many allegations have been raised about his behaviour.
241. [241]
     Suitability to hold a blue card when reassessed in the light of criminal charges and a problematic record in recent child related employment, has an expectation of significant meaningful work being undertaken to recognise and address the underlying issues and triggers of previously identified problematic behaviours.
242. [242]
     I do not see any evidence of this in this case. While the Applicant has attended over 30 sessions with his therapist, the focus of the sessions has not been on his criminal charges and disciplinary proceedings at work.

243. [243]
     A consideration of the Applicant’s work-related issues is particularly relevant and illuminating because it picks up the concerns raised by the criminal charges and applies them to the work undertaken by a blue card holder in child related employment.

Transferability

244. [244]
     The Respondent submits that, ‘The effect of issuing the Applicant a blue card is that the Applicant is able to work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the Act, not just for the purposes for which the Applicant has sought the card.’^[175]
245. [245]
     The nature of the concerns expressed about the Applicant’s interactions with young people both at and away from work, make it all the more pertinent to consider whether it would be in the interest of children falling into any category of regulated employment or business for the Applicant to be issued a working with children clearance.
246. [246]
     Most recently, the Applicant worked with particularly vulnerable young people. It is in this work that he exhibited behaviours that were found to be unprofessional and inappropriate. Due to the Applicant’s continuing lack of insight into his behaviours and their impact on others including young people, there is no reassurance that he would not repeat his actions when working with other children and young people.
247. [247]
     The evidence in this case suggests that in spite of his vast relevant experience and qualifications, the Applicant is not currently suitable for employment in his most recent category of regulated employment nor in other forms of child-related employment.

Human Rights

248. [248]
     Finally, I turn to consider the obligations the HR Act imposes on this Tribunal’s statutory interpretation, and on its actions and decision. As noted earlier, the HR Act states that it would be ‘unlawful’ for the Tribunal to either ‘

act or make a decision in a way that is not compatible with human rights; or in making a decision to fail to give proper consideration to a human right relevant to the decision.^[176]

249. [249]
     In order to give proper consideration to relevant human rights, the Tribunal needs to identify the rights that its decision may affect.^[177]  Aware of how its decision may protect certain rights while limiting others, the Tribunal is then required to ‘make a decision in a way that is compatible with human rights’^[178]
250. [250]
     The practical implication of the Tribunal decision is that if the Tribunal decides that the Applicant’s case is an ‘exceptional’ case, it will confirm the Respondent’s decision to not issue a working with children clearance and Blue Card to the Applicant.^[179] A decision by the Tribunal that the case is not an ‘exceptional’ case, on the other hand, would be a finding that requires the chief executive to issue a working with children clearance. ^[180]
251. [251]
     The HR Act requires the Tribunal to ask whether any resulting hardships would constitute a limitation of human rights and if so, whether such limits are reasonable and justifiable in order to, ‘

promote and protect the rights interests and wellbeing of children and young people…[by] screening persons employed in particular employment^[181][under the principle that]‘the welfare and best interests of a child are paramount.’^[182]

The Applicant’s Right to Work

252. [252]
     The Applicant points out that the Respondent’s decision to issue a negative notice has prevented him working in regulated employment since the beginning of 2018.
253. [253]
     While recognised in international law^[183] the right to work is not one of the human rights specifically listed in the HR Act. However, as he Respondent suggests, ‘the right to privacy and reputation^[184] may potentially encompass a right to work.’^[185] The right, listed in the HR Act, to own property and ‘not be arbitrarily deprived of … property’^[186] and the economic, social and cultural right declaring that, ‘Every person, has the right to have access, based on the person’s abilities to further vocational education and training that is equally accessible to all,’ arguably also encompass the right to work.^[187]
254. [254]
     However, any right to work is clearly qualified by the requirement that a person possesses the appropriate skills and qualifications to undertake particular work. On that basis it could be said that a negative assessment of a person’s suitability to undertake particular work is not necessarily a breach or limitation of that right.
255. [255]
     The WWC Act establishes and regulates the screening of persons wishing to work with children. Consequently, the right to undertake’ regulated employment’ appears to be a right to be assessed and if deemed suitable to be issued a working with children clearance and blue card.
256. [256]
     Rather than being perceived as a law, process, or decision that limits the Applicant’s right to work, the Act may be said to respect the Applicant’s right to undertake work of his choice within the context of the primary object of protecting the safety and best interest of children.
257. [257]
     However, even if the Applicant’s right to work is limited, it will be deemed compatible with the right, as long as the constraints are ‘reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’^[188]
258. [258]
     At international level the right to work may be subject to limitations. Article 19 of the International Covenant on Economic, Social and Cultural Rights provides that any limits imposed on human rights must be, (1) provided by law and, (2) necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals.

The Applicant’s Right to Privacy and Reputation

259. [259]
     The HR Act also lists ‘Privacy and Reputation’ as human rights, and states—

A person has the right—

1. (a)
   not to have the person’s privacy, family, home or correspondence

unlawfully or arbitrarily interfered with; and

2. (b)
   not to have the person’s reputation unlawfully attacked.^[189]

260. [260]
     There is no doubt that this process of review has intruded on the Applicant’s privacy and at times attacked his reputation. In enacting the WWC Act, the law makers recognised that the provisions designed to protect the best interests of children would have a punitive effect on others. The rationale given for why legislation protecting children in some cases punishes those convicted, or even acquitted, or simply charged with offences was that, ‘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.’ ^[190]

Both the WWC Act and the QCAT Act contain provisions restricting access and disclosure of information that would otherwise be inaccessible due its private nature or be likely to adversely affect reputation. However, such provisions are limited as they need to be considered against competing rights discussed below.

The Right to be Accorded a Fair Hearing and Natural Justice

261. [261]
     During the lengthy process of this review, the Applicant has raised the issue of natural justice. The Tribunal is indeed required to act ‘fairly and according to the substantial merits of the case.’^[191] In proceedings, the Tribunal ‘must observe the rules of natural justice.’^[192]

Fair Hearing

262. [262]
     At its core, natural justice refers to the right to a fair hearing. A fair hearing generally entails appropriate notice of a hearing, a right to present one’s case, and a decision maker who is impartial, competent and unbiased. It also enshrines a party’s right to present their own case, and be provided with a logically probative decision based on all the evidence presented.
263. [263]
     The HR Act lists the right to a fair hearing as a human right. Section 31(2) provides that—

1. (1)
   A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

2. (2)
   However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice.

3. (3)
   All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.

Competent, Independent and Impartial Tribunal

264. [264]
     Provisions of the QCAT Act and the Tribunal’s processes including the appointment of a Tribunal Member to preside in a review of a WWC decision, are designed to ensure that parties to such proceedings are accorded their rights ‘to have the proceedings decided by a competent, independent and impartial tribunal.’

Fair Hearing

265. [265]
     The QCAT Act, and the enabling WWC Act, contain many provisions designed to ensure that the Applicant receives a fair hearing. Although the Applicant has at times been frustrated by the process, I am not aware of any infringements of the Applicant’s right to a fair hearing.
266. [266]
     In providing these reasons for my decision, I am also conscious of my obligation to show that my decision is fair, based on the substantial merits of all the evidence and logically probative.

Public Hearing

267. [267]
     As part of the right to a fair hearing, the HR Act clearly states that a party to civil proceedings has a right to have their proceeding decided in a ‘public hearing’.^[193]
268. [268]
     Section 90(1) of the QCAT Act provides that, ‘Unless an enabling Act…provides otherwise, a hearing of a proceeding must be held in public’. As the enabling Act (in this case the WWC Act) states that, ‘A hearing of a proceeding for a QCAT child-related employment review must be held in private,’^[194]these proceedings were conducted in private.
269. [269]
     Section 31(2) of the HR Act provides that the limiting of public access to hearing is permissible if ‘in the public interest or the interests of justice.
270. [270]
     I find the exclusion of the media and public from hearings by this Tribunal of a child-related employment review required by section 361(1) falls within the qualification of section 31(2) of the HR Act.

Decision to be Publicly Available

271. [271]
     Section 31(3) of the HR Act requires all tribunal decisions to be ‘publicly available’. 
272. [272]
     While section 66(1)(c) of the QCAT Act permits the Tribunal to make non-publication orders, ‘prohibiting the publication of…information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified’, the Tribunal may only make such an order if it considers the order necessary for a number of specific reasons.^[195]
273. [273]
     These include, ‘to avoid the publication of confidential information or information whose publication would be contrary to the public interest’^[196] and ‘for any other reason in the interests of justice’.^[197]
274. [274]
     As these proceedings concerned child-related employment under the WWC Act, the interests of justice require that nothing be published that could identify the any children who may be ‘affected by the proceeding’.^[198]
275. [275]
     A non publication order is also required in order to protect children in accordance with the right set out in s 26(2), that ‘Every child has the right without discrimination to the protection that is needed by the child, and is in the child’s best interest, because of being a child.’
276. [276]
     In addition, I consider it necessary to prohibit the publication of the names or anything otherwise identifying the Applicant, witnesses or any third party to these proceedings for a number of reasons. These include: to protect the identity of any children likely to be affected, to prevent the disclosure of confidential information, to avoid infringement on any party’s right to privacy and not to have their reputation unlawfully attacked.^[199]and arbitrarily interfered with.^[200]
277. [277]
     This Tribunal’s actions in issuing non-publication orders pursuant to section 66(1)(c) of the QCAT Act, and issuing directions regarding non publication, clearly limit the Applicant’s right to a fair hearing, enshrined in s 31(3) of the Human Rights Act.
278. [278]
     However, I am satisfied that the limit imposed is reasonable and justifiable for the purposes of s 13 of the Human Rights Act, and therefore is compatible with rights that may be limited. In particular, I note that the publication of these anonymized reasons does not infringe on the requirement for this decision to be ‘publicly available’.
279. [279]
     In accordance with factors listed in s 13(2) of the Act, I note ‘the importance of the purpose of the limitation’,^[201] ‘the importance of preserving the human right, taking into account the nature and extent of the limitation on the right’^[202], ‘the balance between the [last two factors]’^[203] and ‘whether there are any less restrictive and reasonably available ways to achieve the purpose’.^[204]
280. [280]
     On this basis, I consider it appropriate and necessary to make a non-publication order prohibiting the publication of statements, documents and any other information in these proceedings that may be capable of identifying the Applicant, and any child, witness or third party in these proceedings.

Human Rights Conclusion

281. [281]
     In assessing the relative significance of all relevant factors, the HR Act requires the Tribunal to consider whether its decision will affect the human rights of a party in a manner that is not reasonable and justifiable.
282. [282]
     It requires the Tribunal to recognise that the issuing of any working with children clearance has an inherent risk factor, and therefore that not all risks justify a finding against an Applicant.
283. [283]
     Prior to the enactment of the HR Act, the Tribunal distinguished between ‘risk’ as ‘a mere possibility’ and ‘risk’ as ‘a real and appreciable risk’. ^[205] Since the enactment of the HR Act, decision makers are required to distinguish between a ‘a risk which limits an applicant’s human rights no more than is reasonable and justifiable, and ‘a risk which limits an applicant’s human rights more than is reasonable and justifiable, as determined in accord with section 13 of the HR Act’.   
284. [284]
     In section 48, the HR Act also stipulates that—

1. (1)
   All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

285. [285]
     Consequently, ‘the welfare and best interests of a child are paramount’ must be read as justifying the limiting of unavoidable competing rights but only to the extent that such infringement with the rights of others can be said to be justifiable and reasonable.
286. [286]
     On that basis I would consider it ‘unlawful for a public entity to make a ‘just to be on the safe side’ decision, as such a decision would in mind view be made in a way that ‘is not compatible with human rights.’^[206] 
287. [287]
     I have recognised a number of the Applicant’s human rights that are affected by the law, process or decision in this review. To determining whether such limits on the Applicant’s rights are reasonable and justifiable and therefore compatible with human rights, I have considered the factors set out in s 13(2) of the HR Act.
288. [288]
     In so doing I have taken into account the competing human rights of children affected by this decision. Section 26(2) of the HR Act states that, ‘Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.’^[207]
289. [289]
     I have also considered the Applicant’s rights in the light of the object of the WWC Act, ‘to promote and protect the rights, interests and wellbeing of children and young people,^[208] and the principle for administering the Act,^[209] and for reviewing child-related employment,^[210] that ‘the welfare and best interests of a child are paramount.’^[211]
290. [290]
     On that basis I find that the Applicant’s human rights have not been limited to an extent and in a manner that is not reasonable and demonstrably justifiable.^[212]

Conclusion

291. [291]
     In concluding that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a blue card to be issued to the Applicant, I have considered the evidence in the light of—

     1. (i)
        The WWC Act’s object and principles;
     2. (ii)
        The WWC Act’s stipulation that, ‘A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.’^[213]
     3. (iii)
        The statutory factors listed in section 226(2) of the WWC Act, to which the Tribunal, as decision maker, must have regard;
     4. (iv)
        Other factors of which the Tribunal is aware that are relevant to the assessment of the person;
     5. (v)
        The requirement of the HR Act that the Tribunal---

        1. give a proper consideration to human rights relevant to the decision;^[214]
        2. act and make decisions in a way compatible with human rights;^[215]
        3. interpret statutory provisions ‘to the extent that is consistent with their purpose, in a way compatible with human rights’;^[216] and
        4. determine whether any identified limits on human rights are reasonable and justifiable in accordance with s 13 of the Human Rights.
292. [292]
     I note that the paramount consideration of the WWC Act is appropriately said to call for a precautionary approach to be taken in child related employment matters. In the words of Philippides J, ‘the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there [is] an exceptional case.’^[217] However, the HR Act prevents this cautionary approach to unjustifiably or unreasonably impinge on the human rights of parties to the proceedings and in particular the Applicant.
293. [293]
     The only options available to me in this review, are to decide whether for the purposes of section 221(2) of the WWC Act, this is an exceptional case, or that it is not an exceptional case.
294. [294]
     While neither party bore the onus of proof, the Applicant’s case involves a charge for a disqualifying offence, and as such, ordinarily requires that a working with children clearance to be issued. Thus, while neither party bore the onus of proof, the Tribunal would need to be satisfied that the case is an exceptional case, in order to agree with the Respondent’s submission that it would not be in the best interests of children for the chief executive to issue a working with children clearance.
295. [295]
     The evidence in this case leaves me with significant concerns as to whether it ‘would be in the best interests of children for the chief executive to issue a working with children clearance’ to the Applicant.
296. [296]
     I note that the Applicant’s qualifications for and experience in working with children and young people, including in child safety is extensive. Consequently, it is to be expected that he has ample understanding and insight into issues faced by those working with children, and understands how to protect and promote the best interests of children. Evidence of this may be found in the Applicant’s statements, for example, when questioned about the mandate to ensure the safety and welfare of Queensland’s children, the Applicant states, ‘I fully support this and have worked to support this throughout my life.’^[218]
297. [297]
     The statements of the Applicant’s witnesses’ and his senior position largely support this view of the Applicant,
298. [298]
     The circumstances surrounding the alleged offences, evidence as to why the charges were not pursued to trial are at odds with those reasonably expected of a person with a long career in the education and protection of children. Similarly, the materials obtained from the Adult’s workplace, the Department of Children, Youth and Multicultural Affairs, provided evidence of numerous allegations against the Applicant, many of which are directly relevant to the issues for determination in this review.
299. [299]
     The Applicant’s work performance, particularly in 2017 and 2018 as documented appears to reflect his inability or unwillingness to accept official boundaries of professional behaviour, and to see how his behaviour or perceived behaviour impacts colleagues and vulnerable departmental clients, including children and young people.
300. [300]
     The Applicant presented himself to the Tribunal as possessing even less understanding and insight into his actions than documentary evidence suggested. In particular I note that he dismissed and continues to dismiss the relevance of materials the Tribunal directed the Department of Children, Youth and Multicultural Affairs to produce. Yet, the material provided by the Department discloses many troubling aspects of the Applicant’s behaviour and character. Contradicting the Applicant’s repeated assertions, almost all the allegations raised against the Applicant in his workplace were found to be substantiated and unrelated to the criminal charges brought against him.
301. [301]
     For the reasons provided by both the Director of Public Prosecutions and by the Applicant, I have no doubt that had the charges gone to trial, the Applicant would have been found not guilty. However, the Tribunal is not concerned with the need to establish guilt beyond reasonable doubt, the prosecution’s onus of proof, or constraining rules of evidence, as this review is not concerned about the Applicant’s guilt or innocence. Instead, the review considers whether on balance the evidence suggests that the Applicant engaged in behaviour, (regardless of whether it was criminal) that would not be considered to be in the best interests of children. 
302. [302]
     With respect to the offences, the Tribunal needs to determine whether on balance the alleged offences or at least the circumstances surrounding them, are relevant to the Applicant’s suitability to work with children and young people.  
303. [303]
     The Departmental materials reveal a seemingly endless series of allegations, denials, excuses and some reluctant temporary acceptance of findings, later attributed to bullying or conspiracies. The documents reveal, not someone who was victimised, but someone who believed that rules of conduct didn’t apply to him.
304. [304]
     The Applicant is an educated and clearly intelligent and capable man, yet his work-related documents reveal repeated excuses, and claims of misunderstood requests and directions. Many of the explanations given by the Applicant are either misleading or less than truthful.
305. [305]
     This would be less important to this review if it were not accompanied by a lack of insight into how his behaviour affects others. While the Applicant demonstrably understands the vulnerability of children and what it means to protect them and act in their best interests. The Applicant appears to grudgingly concede lapses in professional judgment only when forced. Consequently, there is a lack of demonstrated subsequent adjustments.
306. [306]
     The Applicant questions the relevance of some of his actions, particularly those taking place outside of work. A working with children clearance would authorise the Applicant’s interaction with children and young people in a wide range of situations and relationships, a number of which are not confined to a work place or work hours. Consequently, as allegations regarding the Applicant’s consumption of alcohol and his interactions with departmental clients when not working reveal, personal life can inappropriately overlap with work.
307. [307]
     Similarly, behaviours in relation to adults may also be considered relevant when assessing risk to children, especially if the actions are repeated lapses of judgment. 
308. [308]
     The Applicant’s personality and level of confidence may account for his apparent resistance to conform and comply. While this clearly makes him unusual and likeable it creates problems in situations where norms of conduct matter. Departmental correspondence reveals the Applicant to be flippant when serious matters are raised – creating an impression that he doesn’t respect the concerns of those to whom he is accountable at work.
309. [309]
     In considering, the circumstances surrounding the alleged offences and the allegations levelled against him in his workplace together with Applicant’s responses to the charges and workplace allegations, the common themes that emerge are his behaviours such as alcohol consumption that are seen or actually affect his work and interaction with colleagues and clients (and by implication children).
310. [310]
     The other common theme relates to actual or perceived lack of insight into how his behaviours affect others or are perceived to adversely affect others, such as a private life that is or is perceived to be incompatible with working with children.  In large measure it is the presence of these common themes that make this an exceptional case. 
311. [311]
     Consequently, I make the following finding and decision.
312. [312]
     I am satisfied that the Applicant’s case is, in terms of section 221(2) of the WWC Act, 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 to the Applicant.

Decisions

1. 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.

2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to the extent that such could identify or lead to the identification of the applicant, any child, witness, or third party in these proceedings.