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SSH v Director-General Department of Justice and Attorney-General[2022] QCAT 220

SSH v Director-General Department of Justice and Attorney-General[2022] QCAT 220

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SSH v Director-General Department of Justice and Attorney-General [2022] QCAT 220

PARTIES:

SSH

(applicant)

v

DIRECTOR-GENERAL

DEPARTMENT OF JUSTICE AND ATORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML436-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

21 June 2022

HEARING DATE:

18 February 2022

HEARD AT:

Cairns

DECISION OF:

Member Pearce

ORDERS:

The decision of the Director-General, Department of Justice and Attorney General that the applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – Applicant prosecuted for a non-serious offence – whether the Applicant’s case is an ‘exceptional case’

Working With Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Criminal Code Qld

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

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

Re TAA [2006] QCST 11

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES &

REPRESENTATION:

Applicant:

SSH represented by David Jenkins, solicitor, Osbourne Butler Lawyers

Respondent:

A Sanders, Advocacy Officer, Blue Card Services, representing the Director-general, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    On 25 September 2019, SSH (“the applicant”) applied for a working with children clearance and blue card (“blue card”) under the Working with Children Act 2000 (Qld) (WWC Act).
  2. [2]
    The respondent proposed to issue the applicant with a negative notice and invited the applicant to make submissions about whether or not there is an exceptional case for the applicant.
  3. [3]
    On 23 September 2020 the respondent issued a negative notice under the WWC Act.
  4. [4]
    On 22 October 2020, the applicant filed an application to the Queensland Civil and Administrative Tribunal (the Tribunal) to review the respondent’s decision.

Legal Framework

  1. [5]
    As noted by Carmody J in RPG v Public Safety Business Agency[1] the blue card regime seeks to ensure child safety by allowing only eligible adults to either work with, or care for, other people’s children, when undertaking what the Working with Children Act terms as ‘regulated employment’. 
  2. [6]
    The blue card regime is administered by Blue Card Services. The major function of Blue Card Services is to engage in a screening process to determine who will be issued with a blue card, by means of a system of ‘positive’ and ‘negative’ notices.[2] Those who obtain a positive notice may obtain a blue card as of right and may work with children. Those given a negative notice may not apply for, or start, or continue in, regulated employment.[3]
  3. [7]
    Of particular relevance is section 221, which provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if-
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence, but is aware that there is 1 or more of the following about the person-

(i) investigative information;

(ii) disciplinary information;

(iii) a charge for an offence other than a disqualifying offence;

(iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
  1. [8]
    In the particular context of ascertaining whether there is an exceptional case requiring the issue of a negative notice, the Working with Children Act mandates regard for the matters set out in s 226(2). Section 226(2) is not to be treated as an exhaustive list and does not expressly or impliedly confine the Tribunal to considering only those matters specified therein. Rather, the matters set out in s 226(2) are ‘merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application’.[4]
  2. [9]
    Section 226 provides:

(1) This section applies if the chief executive-

(a) is deciding whether or not there is an exceptional case for the person; and (b) is aware that the person has been convicted of, or charged with, an offence.

(2) The chief executive must have regard to the following–

(a) In relation to the commission, or alleged commission, of an offence by the person –

(i) whether it is a conviction or a charge; and

(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and

(iii) when the offence was committed or is alleged to have been committed; and

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

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

(b) Any information about the person given to the chief executive under section 318 or 319;

(c) Any report about the person’s mental health given to the chief executive under section 335;

(d) Any information about the person given to the chief executive under section 337 or 338;

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

QCAT Review

  1. [10]
    The purpose of the review before QCAT is for the Tribunal to produce what the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) terms the ‘correct and preferable’ decision, after a fresh hearing, on the merits.[5] In exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the Working with Children Act, and exercises all of the functions of the original decision-maker for the decision now under review.[6] Because of s 19(a) of the QCAT Act, the objects[7] of the Working with Children Act must still be upheld. That is a matter that is also reaffirmed by s 360 of the Working with Children Act, which provides that a child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child (or children) remains paramount. 
  2. [11]
    The decision under review is whether the applicant’s case is an “exceptional case”.[8] Pursuant to section 221(2) of the WWC Act, the decision-maker must issue a blue card unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so.[9]

Material

  1. [12]
    The applicant filed the following material in these proceedings:
    1. (a)
      Application to review the decision;
    2. (b)
      a life story dated 11 March 2021;
    3. (c)
      Affidavit, SSH, dated 29 June 2021;
    4. (d)
      Psychological report, Robert Bright, dated 27 May 2021;
    5. (e)
      Outline of Argument, dated 29 June 2021.
  1. [13]
    The respondent filed the following material in these proceedings:
    1. (a)
      a bundle of documents marked BCS 1-58, which includes:
      1. the applicant’s criminal history;[10]
      2. a police report in relation to the applicant’s offending;[11]
      3. additional information provided by the Queensland Police Service;[12] and
      4. Transcript of Proceedings, magistrate Bentley Sentencing Remarks dated 10 October 2012;[13]
    2. (b)
      A bundle of documents marked NTP1-49 which includes information produced by Queensland Corrective Services.
  2. [14]
    Both parties also provided oral submissions at the hearing.

The Offending Behaviour

  1. [15]
    On 10 October 2012 the applicant was convicted of one charge of observations or recordings in breach of privacy[14] committed on 1 September 2012 in Cairns.
  2. [16]
    The circumstances of the offending as described by police and relayed to the Magistrates Court are that the applicant resided with his wife in a unit complex. The victim resided in the same complex with her husband. At 10:30pm on 1 September 2012, in response to a report, the police attended the unit complex and were informed by the victim’s husband that he caught the applicant filming his wife whilst she was showering. The police seized the applicant’s phone and found 8 video recordings depicting the victim naked whilst showering. The first three recordings captured the side view of the complainant showering. A further 5 recordings were of the victim as she dried herself and applied moisturising lotion. In the 7th recording the victim is seen to look up towards the small window to reach for her lotion. The victim’s eyes appear to focus on something, and a look of fear is seen on her face. She then calls out to her husband that she could see two hands at the window.
  3. [17]
    The applicant participated in an interview with police in which he told police he was downstairs in the car park on the phone to his father when he noticed the female showering and ended the call. The applicant told police he activated his video camera and directed it through the bathroom window hoping to capture and record video footage of the naked female before he heard the door open and tried to run away. The victim’s husband and his friend confronted the applicant and detained him until police arrived. The applicant told police he recorded the victim showering in the hope that he would capture her naked body and be able to watch it later.
  4. [18]
    Until this time the applicant had no criminal history. On 10 October 2012 the applicant was convicted following his own guilty plea in the Cairns Magistrates Court.
  5. [19]
    All surrounding circumstances of the offence and the applicant’s plea of guilty was taken into account during sentencing. The applicant was convicted and ordered to serve 6 months’ probation. The Magistrate also ordered that no conviction be recorded. A requirement of the applicant’s probation order was that he must take part in counselling and attend programs as directed by a Corrective Services Officer.

The Applicant’s Evidence

  1. [20]
    The applicant provided material as outlined above. The applicant migrated to Australia in 2009 with his wife. He became and Australian citizen in 2013. He has 2 young children with his wife. He has competed a Certificate IV in Aged Care and has been working in that field since 2011. He has been working as an Assist in Nursing at Cairns Base Hospital since 2014.
  2. [21]
    The applicant has provided a psychological report from Robert Bright. The report is brief, nearly 3 pages. Mr Bright states the applicant is not at risk of re-offending and that the respondent’s reasoning is flawed. Mr Bright describes the offending behaviour as “very limited and temporal impulsivity”.[15] Mr Bright was not made available as a witness.
  3. [22]
    The applicant highlighted the fact that the blue card is sought for employment purposes and that the applicant has worked in the role for 6 years without any complaints regarding conduct. The applicant has also highlighted that the offence committed was not one to involve children and it occurred in 2012 with no subsequent offending.
  4. [23]
    The applicant stated he had good support network of friends and that his wife was supportive of him.

The Respondent’s Evidence

  1. [24]
    The applicant was cross-examined by the respondent. The applicant advised under cross-examination that his friendship network was unaware of his charge. He stated the only people aware of the charge were his wife and is legal representative.
  2. [25]
    The applicant was questioned about the direction provided to him by Corrective Services whilst on probation, that he was to see a psychologist to address “impulsive and deviant behaviour”.[16] A referral was provided. The applicant stated he did not undertake this appointment.

Section 226(2) matters

  1. [26]
    Section 226(2) of the Working with Children Act requires that in cases where a person has been convicted of, or charged with, an offence that regard can be had for certain matters identified therein:

Whether the offence is a conviction or a charge

  1. [27]
    The offence was a conviction for one count of observations or recordings in breach of privacy. The applicant pled guilty in the Magistrates Court. The order of the Court was that no conviction was to be recorded.

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

  1. [28]
    The offence with which the applicant has been convicted is neither a serious offence[17] nor a disqualifying offence[18] under the WWC Act.

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

  1. [29]
    The applicant committed the offence in 2012. The applicant’s submissions place emphasis on the passage of time in this matter. As discussed in the Appeal Tribunal the passage of time without further offending is not, of itself, conclusive that the risk of harm to children is reduced.[19]

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

  1. [30]
    The nature and circumstances of the applicants offending has already been addressed in these reasons for decisions. The offending behaviour did not involve offences against children, or any element of child endangerment. The offending did involve the filming of a naked woman without her consent and who was unaware of being filmed. The applicant did admit to hoping to capture the image of the naked woman to watch later. There were numerous videos captured which definitely speaks to a deliberateness of action.
  2. [31]
    It is noted that the WWC Act does not require offending to be related to children in order for an exceptional case to be made out.
  3. [32]
    In this particular case, it can be argued that the applicant’s behaviour demonstrates a disregard for privacy and boundaries. The offending can be described as opportunistic given the victim was completely unsuspecting and unaware of the applicant’s presence.
  4. [33]
    The issuing of a blue card expects the holder to be able to act in manner that promotes the safety of children and promotes physical and psychological wellbeing.

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

  1. [34]
    In this case the applicant was sentenced to a 6-month probation order.[20] The Court also chose to not record a conviction. The Court considered the early plea of guilty and the full and frank admissions made as a positive aspect of the applicant’s case.
  2. [35]
    It was, however, specifically noted by Magistrate Bentley that “having said all of that, your behaviour was a gross invasion of privacy, and it is concerning behaviour”.

Section 226(2)(b) – Any information about the person given under sections 318, 319, 335, 337, or 338.

  1. [36]
    No information has been placed before the Tribunal.

Section 226 (2)(e) – Anything else relating to the commission, or alleged commission, of the offence that is reasonably considered to be relevant.

  1. [37]
    The respondent has drawn attention to the fact that the applicant has not identified reasons or triggers for his behaviour. The applicant has characterised it as “spontaneous”.[21]
  2. [38]
    The material provided to the Tribunal outlines a number of “versions” provided over the years by the applicant. There are some inconsistencies when he has been required to answer questions regarding the offending behaviour. The applicant has made admissions that he filmed the victim. In later questioning he has stated he wasn’t sure his camera was working, and then at another pint that he used his mobile to make 4 or 5 videos. It is uncertain whether these are attempts to mimes the offending, or simply inconsistent accounts.
  3. [39]
    From the material provided it would appear that the passage of time has not been accompanied by any genuine insight regarding his behaviour. The importance of genuine insight as a protective factor was noted by the former Children’s Services Tribunal in Re TAA.[22] The Tribunal observed that:

The issue of insight into the harm caused on the incidents is a critical matter for the Tribunal. The Tribunal is of the view the good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.[23]

The Psychological Report Provided by the Applicant

  1. [40]
    In support of the application, the applicant filed a 3-page report from psychologist, Robert Bright. Mr Bright had a single consultation with the Applicant on 27 May 2021. The purpose of the consultation was to furnish a report for these proceedings. The report is somewhat scant in detail regarding the duration of the assessment nor the mode in which it was conducted. There is also limited detail regarding what information was provided for the assessment and details of the offending behaviour. From the report it is revealed the applicant was assessed using the Kessler Psychological Distress Scale[24]. This test measures an individual’s necessity for treatment. It is a one page, 10 question test. It would appear from the report that this test was relied upon to determine the applicant does not require clinical treatment. It is not clear form the report what psychometric testing, if any, Mr Bright has relied upon to form a view that the applicant does not present a risk of re-offending.
  2. [41]
    It does not appear from the brief report that any further testing was undertaken to form the assessment that the applicant does not present a risk of re-offending. In fact, the sexually motivated offending was not examined in detail. In the same way, there was no exploration of risk factors or triggers for re-offending. The author of the report was not made available as a witness to explore these issues further. As such, limited weight is afforded the report.

Decision

  1. [42]
    The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, the applicant’s case is an exceptional case in which it would not be in the best interests of children for the applicant to be issued a blue card.
  2. [43]
    The object of the Act and the principle that the welfare and best interests of s child are paramount support a precautionary approach to decision making in child-related employment maters. The fact that the bule card can be used across a range of regulated employment is also a consideration. It is not confined to that applicant’s job which is related to nursing.
  3. [44]
    The material presented to the Tribunal, and not denied by the applicant, indicates the applicant has engaged in concerning and inappropriate behaviour which resulted in a criminal charge. There has been little evidence presented by the applicant that he has implemented any practical strategies to address the concerns raised at the time that the negative notice was issued.
  4. [45]
    Having regard to all matters raised and the legislative considerations, the Tribunal finds, that on the balance of probabilities, that this case is an exceptional case and as such that it would not be in the best interests of children and young people for the applicant to be issued with a blue card.

Order

  1. [46]
    The decision of the Director-General, Department of Justice and Attorney General that the applicant’s case is “exception” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

Footnotes

[1]  [2016] QCAT 331. [8]-[19].

[2]  Working with Children Act, s 220.

[3]  Working with Children Act, s 257.

[4]  Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, (Philipp ides J).

[5]  QCAT Act, s 20.

[6]  QCAT Act, s 19.

[7]  Working with Children Act, s 5.

[8]  Working with Children Act, s 353.

[9]  Working with Children Act, s 221(2).

[10]  Criminal history, BCS-16 to BCS-17.

[11]  Police briefs of facts BCS-18 to BCS-20

[12]  Additional information provided by the Queensland Police Service, BCS-21.

[13]  Transcript of Magistrate Bentley’s Sentencing Remarks, BCS-56 to BCS-58

[14]  Criminal Code, 227A(1)

[15]  Report Robert Bright, Psychologist, dated 27 May 2021 at p 2.

[16]  Respondent’s materials Queensland Corrective Services, NTP-16

[17]  Working With Children Act, sch 2.

[18]  Working With Children Act, sch 4.

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

[20]  BCS-16 to BCS-17.

[21]  BCS-33.

[22]  [2006] QCST 11.

[23]  Ibid, [97].

[24]  Robert Bright, Psychological Report, 27 May 2021, p 2.

Close

Editorial Notes

  • Published Case Name:

    SSH v Director-General Department of Justice and Attorney-General

  • Shortened Case Name:

    SSH v Director-General Department of Justice and Attorney-General

  • MNC:

    [2022] QCAT 220

  • Court:

    QCAT

  • Judge(s):

    Member Pearce

  • Date:

    21 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Re TAA (2006) QCST 11
3 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Cite 3 - (2006) QCST 11
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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