GWC v Director-General, Department of Justice and Attorney-General
[2023] QCAT 137
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- GWC v Director-General, Department of Justice and Attorney-General[2023] QCAT 137
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GWC v Director-General, Department of Justice and Attorney-General[2023] QCAT 137
GWC v Director-General, Department of Justice and Attorney-General[2023] QCAT 137
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | GWC v Director-General, Department of Justice and Attorney-General [2023] QCAT 137 |
PARTIES: | GWC (applicant) V Director-general, department of justice and attorney-general (respondent) |
APPLICATION NO/S: | CML 247-20 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 18 April 2023 |
HEARING DATE: | 4 November 2022 |
HEARD AT: | Townsville |
DECISION OF: | Member Taylor |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant seeks to review a decision to cancel his positive notice and issue him a negative notice – where the applicant has an extensive criminal history – where the applicant contends his conduct more than 20 years ago for which he was convicted and imprisoned for unlawful stalking was acceptable – where the applicant was convicted of drug offences whilst the holder of a blue card Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 229, s 294, s 354 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24 Human Rights Act 2019 (Qld), s 13, s 26 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 DP v Director-General, Department of Justice and Attorney-General [2021] QCAT 106 IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206 Re TAA [2006] QCST 11 REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 SWJ v Department of Justice and Attorney-General (No 2) [2022] QCATA 119 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | C. Massingham – Legal Officer for Blue Card Services |
REASONS FOR DECISION
- [1]On 16 March 2021, this Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant, any family member of the applicant, any child, or any non-party to the proceeding. Accordingly, these reasons and the Orders given herein are published in a de-identified format.
Overview
- [2]In September 2018, the applicant was issued with a working with children clearance under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). Such is generally referred to as a ‘Blue Card’.[1]
- [3]In May 2019, the respondent was notified of a change to the applicant’s police information, namely that in April 2019 the applicant was convicted of offences under the Drugs Misuse Act 1986, the relevant offences having occurred in March 2019. Ultimately this resulted in the respondent cancelling the positive notice that supported the Blue Card and issuing a negative notice in June 2020 (the Decision).
- [4]Later that same month, the applicant applied to this Tribunal for a review of the Decision. As I will discuss in these reasons, the applicant fails in his application. He did not satisfy me that he had insight into his offending behaviour, not only in terms of the most recent offending which resulted in the conviction to which I just referred but also in terms of his earlier offending of unlawful stalking for which he was also convicted in April 2003. Whilst such offending was not against children, the lack of insight left me with the impression that the applicant is simply unable to discern when certain conduct is not appropriate. As such, I formed the view it would not be in the best interests of children for the applicant to be issued a Blue Card.
- [5]I am therefore satisfied that the applicant’s case is ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly the Decision is confirmed.
The Nature of this Review Proceeding
- [6]This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, and more particularly s 354 therein, read together with the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation, and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[2]
- [7]The purpose of this review is to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[3] It is not necessary for me to consider whether the decision-maker made an error in making the Decision. At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[4]
Background
- [8]The applicant has an extensive criminal history with convictions traversing the period 3 March 1972 to 3 April 2019. Such include stealing, driving under the influence, wilful damage, imposition, possessing dangerous drugs on more than one occasion, and unlawful stalking.[5] In my opinion the earlier offences do not bear on the issues in this proceeding. Rather my focus is on the most recent dangerous drug offence, and the earlier unlawful stalking offence.
- [9]The unlawful stalking occurred between 28 June 2000 and 9 July 2000, although it is apparent that it commenced somewhat earlier than that.[6] The applicant pleaded not guilty to the charge but was found guilty by a jury following a trial. (the Stalking Conviction) It was described by the sentencing Judge in this way:
The harassment involved in this case was over a six month duration, representing quite deliberate and sustained conduct over that period. [7]
- [10]On 18 September 2018, the applicant was issued with a Blue Card under the WWCA.
- [11]Relatively shortly thereafter, on 3 April 2019 he was convicted of two offences under the Drugs Misuse Act 1986 (Qld). The offences occurred on 12 March 2019. These were ‘possessing dangerous drugs’ and one count of ‘possessing anything used in the commission of a crime defined in Part 2’. It was a non-custodial sentence, with the applicant subject to a Probation Order for nine (9) months. No conviction was recorded.[8] (the Drug Conviction)
- [12]On 13 May 2019, the respondent informed the applicant that it had been notified of a change in his police information,[9] providing him a copy of that changed information.[10] As I understand it, this was as a result of the Drug Conviction. The respondent afforded the applicant the opportunity to respond to that information and make a submission as to why he thought he should remain eligible to hold a Blue Card. He was also informed he could provide references in support.[11]
- [13]It is apparent that the applicant did not take up that opportunity and provide any submissions or references. What then followed is, by letter dated 5 June 2020 sent to the applicant, the respondent informed him of its decision to cancel his Blue Care and issue a negative notice.[12] (the Decision)
- [14]By application filed 30 June 2020, the applicant applied to this Tribunal for a review of the Decision. Directions then followed for the provision of relevant material from the parties leading to a Compulsory Conference which was held on 13 August 2021, and then ultimately to the hearing before me on 4 November 2022. Why it took more than two years to be heard is not clear from my reading of the file, however it cannot be overlooked that this duration fell in parallel with the Covid 19 pandemic and the resultant lock-downs and the closure of the Courts and this Tribunal to in the conduct of in-person hearings which accompanied it.
- [15]That hearing occupied an entire day of hearing time. After the close of all the evidence the respondent presented its written closing submissions,[13] supported by oral submissions. The applicant gave a relatively short oral closing but did not hand up any written submissions. I afforded him the opportunity to consider the respondent’s written material further if he felt it was necessary and then in turn have the chance to provide written closing submissions, but he chose not to take up that option and was content to rely on his evidence as he had presented it and his short oral closing.
- [16]Regrettably, due to a number of issues arising unexpectedly before me since then, my consideration of this matter was delayed such that it has taken until now to reach a decision and provide these reasons in this proceeding. To some degree this has been a result of dealing with a backlog for me that arose from the pandemic.
The Issues
- [17]The primary issue is whether the applicant’s conduct is such as to fall within the category of an ‘exceptional case’ so as to deny the applicant his Blue Card. The applicant argued that it was not. The respondent submitted it was.
- [18]In order to resolve that contest, consideration of WWCA s 226(2) is necessary. It sets out that which must be considered in deciding whether it was appropriate to issue a negative notice. In doing so, the following must not be overlooked:
- (a)The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[14]
- (b)The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing;[15] and
- (c)As the respondent has appropriately and properly submitted, the principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[16] such being a principle that I must apply in this review.
- (a)
The Relevant Law
- [19]Given the applicant was a holder of a Blue Card, and thus the issue is one of suspension or cancellation, the pathway through the WWCA starts at s 294 which sets out that which the decision-maker is required to decide in determining whether it was appropriate to issue a negative notice. Under s. 294(2), the decision-maker must decide the matter as if it were a decision about a working with children application, such to be decided under Chapter 8 Part 4 Division 9 of the WWCA. That part encompasses s 226(2) to which I have just referred.
- [20]Given that the applicant has been convicted, but not of a serious offence, under WWCA s 221(1)(b) the starting position is that the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.[17]
- [21]If that starting position stood without exception, then it would be in order for me to set aside the Decision. However, it is that exception which looms large in this proceeding. It is that the starting position is subject to the exception, that exception being if I am satisfied that it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with such a clearance, then a negative notice must be issued and so it would be in order for me to confirm the Decision.[18] That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to be issued with a Blue Card.[19]
- [22]But the WWCA does not define an exceptional case, thus creating a degree of complexities in matters such as these.
- [23]It has been held by way of judicial reasoning that it is a matter of fact and degree to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 in reference to the predecessor legislation to the WWCA:
It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.
There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that:
‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion’.
We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.[20]
- [24]
- [25]In undertaking that task it is not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case is an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303:
The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.
The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.
In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.
The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.
What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[23]
- [26]The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[24] Accordingly what follows later in these reasons is my consideration of each of those particular criteria.
The Evidence & Submissions
- [27]This proceeding is not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it is not an inquisitorial process. My decision turns on the material before me at the hearing, both documentary and oral, and the closing submissions which followed.
- [28]The respondent is not participating in an adversarial role advocating for the correctness of the decision by its decision-maker. Its role is to use its best endeavours to help me in making my decision on the review.[25] As it was required to do,[26] the respondent provided relevant material to this Tribunal, namely its Reasons for the Decision and other documents in its possession considered relevant.[27]
- [29]At the commencement of the hearing, the applicant confirmed he had received copies of this documentation. Save only for the provision of its written closing submissions,[28] the respondent did not seek leave to produce any further material at the hearing, nor did it call any witnesses.
- [30]The applicant provided a written statement of evidence, affirming it as his evidence in chief.[29] He also provided a handwritten statement which may be readily referred to as his ‘Life Story’.[30] He was cross-examined at length by the respondent’s representative, and I also asked him a few questions.
- [31]In addition to his own evidence he called three witnesses, all of whom appeared via telephone link. With the exception of one, each of them swore to the correctness of statements each had previously given essentially in the form of a statement as a character reference, and each were cross-examined. They were respectively an acquaintance of the applicant through community events (W1),[31] and a person who is now the Secretary of a boxing league in which the applicant had been a trainer, she also being the parent of girls the applicant previously trained, and a person who now considers the applicant to be a “close family friend” (W2).[32]
- [32]The applicant also called a third witness, a person said to be his Psychotherapist, a Mr FG. A statement shown as having been given by FG dated 10 September 2021 had previously been filed by the applicant. Efforts to contact FG by telephone when he was initially called to give evidence were unsuccessful. Following an adjournment for lunch efforts were once again made, on that second occasion with success. However, as it became clear very quickly, FG could not recall his statement having been given and he did not have a copy of it. He also said he had only been notified by the applicant about two hours prior that he was to be called as a witness. Accordingly, no evidence in chief was led from FG nor was he cross-examined.
- [33]At the close of the evidence each party gave an oral closing, with the respondent also providing written submissions. In my opinion it is not necessary for me to set out those submissions in any great substance in these reasons, it being sufficient to note the essence of them as follows here.
- [34]For the respondent:
- (a)It acknowledged the positive comments concerning the applicant’s character as made by W1 and W 2, as well as the positive comments by the Magistrate in sentencing the applicant at the time of the Drug Conviction.
- (b)It submitted that there is a high level of community expectation that children will not be placed at risk, referring me to a decision of this Tribunal in DP v Director-General, Department of Justice and Attorney-General [2021] QCAT 106, and there must be cogent evidence of the applicant’s insight and affect of his conduct before allowing him to have care of children so as to meet that expectation, or whether the evidence shows it would not be in the best interests of children for the applicant to be issued a Blue Card.
- (c)Notwithstanding those positive comments, the weight of the evidence shows it would not be in the best interests of children for the applicant to be issued a Blue Card because:
- The recency of the applicant’s offending behaviour suggests an absence of clarity in the applicant’s ability to identify appropriate conduct;
- In the applicant’s evidence given under cross-examination he sought to minimize the issues of drug possession and stalking, both of which he had been convicted, thus demonstrating a lack of insight into the true nature and effect of his offending behaviour.
- The applicant was effectively asking this Tribunal to go behind his convictions, thus raising questions of his respect for the law and his apparent ignorance to it. In that regard the respondent’s representative referred me to another decision of this Tribunal in IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206.
- Without any acknowledgement by the applicant in this respect, it raises the question of his ability to have the proper conduct of care of children.
- (a)
- [35]The applicant’s oral closing was extremely short. It was as follows:
All I can say is – whatever comes across comes across. I agree with everything said. You are the expert. I leave the decision up to you. We are here to look after the kids and that is what it is all about.
- [36]Given the brevity thereof, I then asked him two questions in order to illicit something more as a means of me reaching an understanding of his case. I first referred him to the following statement he had made in his life story:
Additional punishment I feel is being imposed. I took responsibility, was dealt with by Courts, some many many years ago. I am being judged by these offences.
Children have never been in harms way they were with parents at the gym. References enclosed from family. At all times I made sure teenagers were safe.[33]
- [37]I asked him whether, based on everything that he has read and heard discussed today, he maintained that statement. His response to that was “Yes”. I then asked him whether the premise of his arguments in this proceeding is the effect it has on him. His answer was “Partly also partly my wife”.
- [38]My consideration of the issue in this proceeding thus proceeded on this evidence and the respective submissions.
Discussion on the Evidence and Submissions
The Applicant’s Evidence
- [39]The applicant’s evidence in chief, namely his written statement and his life story, was of minimal assistance to me. It did not deal with the relevant issues that arise for consideration under WWCA s 226 in any way that assisted the applicant in the case he was seeking to make.
- [40]I have earlier mentioned in these reasons my discussion with him in closing as to the extent the comment in his life story to which I referred him, and his response to it. That part of his evidence and his response is probative. There is also one aspect of his written statement, and responses from him to questions I asked him about it, that in my opinion is also probative. His statement includes the following:
My main concerns I have is having a conviction 21 years ago in 2000. I was Penalised (sic) for this. I took full responsibility. I turned my life around and have Not (sic) stood on a union picket line since this incident where 100’s of workers were involved in an industrial dispute.
12/3/2019 offence where I received a behaviour bond with no conviction recorded. When I appeared before the court the Magistrate said he would like to see me continue on volunteering my time helping or mentoring young people in the community.[34]
- [41]The first part of that statement is a reference to the Stalking Conviction in the Townsville District Court in April 2023, for which he received a custodial sentence.[35] The detail of that offending conduct is described in substantial detail in the documentation before me, it being in a Queensland Police Service Court Brief.[36] It is not necessary for to set out here the entirety of that, the following will suffice to provide some context to the discussion on it that follows here.
The complainants in this matter are husband and wife and reside at an address known to police. … During 1999 the complainant husband was involved in a local industrial dispute. In the months following this dispute the complainants received numerous telephone calls on the home telephone and the complainant husbands work mobile telephone. The nature of the telephone calls involved the call being made and the caller making no comment. In effect a silent telephone call. Due to the number and nature of the calls the complainants felts intimidated and held fears that they were in danger of assault by persons unknown.
- [42]What then followed that passage was a description of a series of circumstances whereby the applicant was observed to make phone calls at public phone boxes, but without speaking into the handpiece, at times which corresponded with the complainants receiving such phone calls. Following that, in the execution of a search warrant at the applicant’s address, the police found telephone numbers on a piece of paper in the applicant’s wallet on which the word SCAB was also written. The applicant admitted to the police that he had called these numbers and having called the complainants.[37]
- [43]The Police Court Brief then included this statement which, on my reading, followed an interview of the applicant.
The defendant did not regret his actions and informed the police that he thought the issue had been resolved informally through a third person. … Police later spoke with the complainant husband and he confirmed he had been approached to withdraw the complaint however he still wished to proceed.[38]
- [44]I asked the applicant to read the entirety of the content of that Court Brief starting and finishing with the passages I have just extracted. After he had done so I asked him questions to which he responded, all as follows here:
Me Do you agree that the conduct by you stated therein is factually correct?
Applicant Yes
Me Do you agree you had no remorse?
Applicant Yes – I pleaded not guilty.
Me Has that position since changed?
Applicant No.
- [45]The second part of that statement is in regard to the circumstances of the Drug Conviction. Once again I referred him to the content of the relevant Queensland Police Court Brief contained in the respondent’s material filed, asking him to read the content thereof in which his conduct on the day in question was described in detail. It is relatively short and for ease of reference I extract it here to the extent relevant, the reference therein to ‘defendant’ being to the applicant:
At approximately 9:14 am on the 12 Day of March 2019, Detectives from the Major and Organised Crime Squad (Northern) executed a … search warrant at [address]. This warrant was issued in relation to suspected offences against the drugs (sic) Misuse Act and the defendant was the person named in the warrant.
Upon entering the front yard of the property, the defendant was observed to be walked (sic) from the direction of his house, through the back yard towards the back fence and was carrying a white and red coloured plastic bag. The defendant was quickly detained by virtue of the warrant, and handed the plastic bag to Police. …
Upon inspection of the plastic bag found in the possession of the defendant, Police observed it contained a significant quantity of green leafy material and smelt strongly of cannabis. When questioned the defendant admitted that the contents of this bag belonged to him and that it was ‘pot’. This item was later weighed to be approximately 428g (incl plastic bag).[39]
- [46]I also engaged with him in a series of questions and answers as follows:
Me Do you agree that the content of those paragraphs?
Applicant Yes.
Me Did you at any time say you were using pot?
Applicant No.
Me Why did you have it if you were not using it?
Applicant I was holding it for a friend. His house was flooded.
Me Why did you not tell the Police it was not yours; it was your friends?
Applicant Because then it would have been supply and it would have implicated a third person.
- [47]I should also make a brief observation about the cross-examination of the applicant by the respondent’s representative. It was relatively extensive and in depth, presumably in an effort to draw out clarity in terms of the applicant’s insight into his offending behaviour. Whilst it was helpful to me in that regard, in my opinion I need not identify any specific aspects of it, the net effect of it being contained within the short question and answer exercised I engaged in with the applicant as I have just discussed it.
The Applicant’s Witnesses’ Evidence
- [48]As the respondent’s representative appropriately noted in her oral closing, the positive comments about the applicant given in the applicant’s witness statements are not overlooked. But, whilst the intentions of W1 and W2 to paint the applicant in a good light, by giving what was in effect character reference statements, is to be commended this evidence did not provide me with anything upon which I could consider the substantive issues in the proceeding, namely the question of the applicant’s conduct and its connection with the test of an exceptional case under s 221(2) of the WWCA. I gave no weight to the evidence given by W1 and W2.
The Relevant Criteria
- [49]With that brief discussion on the evidence being given as a background to and basis for the consideration and discussion which now follows here, I turn to the relevant criteria I must consider under s 226 of the WWCA. The applicant did not make any submissions on these criteria. In contrast the respondent’s written submission was extensively dedicated to doing so. I will consider each in turn.
Whether the Offence is a conviction or a charge[40]
- [50]There are a number of offences recorded in the applicant’s criminal history, the record of which appears in the respondent’s material filed.[41] It traverses the period 3 March 1972 to 3 April 2019, such being dates of convictions. In my opinion two only of these are relevant to this proceeding given the manner in which the evidence unfolded before me, namely the Stalking Conviction and the Drug Conviction.[42]
Whether the Offence is a serious offence, and whether it is a disqualifying offence[43]
- [51]Neither of these offences is a serious or a disqualifying offence under the WWCA. Notwithstanding that, the respondent submits that it is clear that Parliament intended that all offences on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.[44] I accept that as being a correct submission.
When the Offence was committed[45]
- [52]The stalking offence, being one of the two on which I have focussed, was committed between 8 January 2000 and 9 July 2000. Whilst it has an historical age, which by virtue of his comments as I extracted them in paragraph [40] herein the applicant seems to suggest makes it irrelevant, given the nature and detail of the offending behaviour as I have noted it in paragraph [41] to [43] herein and the responses from the applicant I received when I asked him about his conduct that gave rise to this conviction all as I noted in paragraph [44] herein, in my opinion it remains entirely relevant.
- [53]This is because, despite the passage of time and notwithstanding the applicant’s assertions that he has since then turned his life around and he no longer participates in union picket lines, in my opinion it is abundantly clear that the applicant’s insight into the unacceptable nature of this offending behaviour has not developed during that time. His position was then, as he confirmed it remains now, that he does not have remorse for the offending behaviour. From my discussion with him I was left with the very clear impression that he considered his conduct to be entirely appropriate and acceptable. Thus, the fact that it occurred 23 years ago makes no difference. His lack of understanding of the unacceptable circumstances would be the same as if he had committed the offence only recently.
- [54]As to the drug offences in March 2019, the other of the two on which I have focussed, which resulted in the probation order, specifically the possession of a dangerous drug of a substantial quantity, as the respondent has submitted, correctly in my opinion, the recency supports a finding that the applicant’s case is an exceptional one. It occurred at the time the applicant was the holder of a Blue Card, moreover relatively shortly after having been issued one.
- [55]The applicant’s explanation as to why he told the Police the drugs were his, whilst seemingly holding the view that he was doing the right thing by not opening up the door to a possible charge of supply and not implicating a third person, is in my opinion entirely inappropriate for a person who at the time was a holder of a Blue Card and thus a person expected to be of a mind to have known better. To maintain that reason in the hearing before me as being a correct one demonstrates a lack of insight.
- [56]Whilst the respondent’s representative did not put her submission in this way, in my opinion his conduct in committing the offence, specifically the observations by police of his conduct upon them entering the house to execute the search warrant all as I have described in it paragraph [45] herein, together with his answers to the questions I posed of him as I have noted them in paragraph [46] herein, suggests to me he holds a disrespect for the law and fails to comprehend the gravity of his offending conduct.
- [57]In her closing oral submissions, the respondent’s representative referred to the manner in which the applicant had sought, during the giving of his evidence in the hearing, to minimize the issues of his drug possession and stalking, such demonstrating a lack of insight. I agree. It seemed to me that he was wanting me to go behind the convictions.
- [58]The reference the respondent’s representative made to the decision of this Tribunal in IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206 is an entirely appropriate one. As the learned Member expressed the circumstances of the evidence before her in that matter, speaking in terms of the applicant then before the Tribunal:
She appeared to be lacking in a true appreciation of the seriousness of her offending in particular on her version of events. On this version she lied to the police and by entering a plea of guilty she also lied to the Magistrates Court. She appeared to exhibit either ignorance or at worst wilful disregard for the justice system.[46]
- [59]The learned Member therein later also made this observation, which I respectfully adopt.
The Tribunal is not an appellate body for any of the sentencing courts that have dealt with the applicant. It is not appropriate for me to go behind those convictions and I accept on the balance of probabilities that the events of criminal offending that the applicant pleaded guilty to or was found guilty of are as they were described in either the police’s or court’s material.[47]
The nature of the Offence and its relevance to employment, or carrying on a business, that involves or may involve children[48]
- [60]As the respondent’s representative has put it in her written closing submissions, the nature of the applicant’s alleged offending is disclosed in the various documents that have been filed in this proceeding. Those submissions specifically raised the two convictions on which I have focussed.[49]
- [61]However, whilst the respondent’s submissions were put in that manner, the submissions did not, in my opinion, expand on the fact of this offending in a way that was focussed on this criterion. At its highest, the respondent’s submission was that the applicant’s behaviour raises concerns about his ability to judge positive behaviour and present as a positive role model.[50] Whilst I do not disagree with that submission, the substance of the submissions was of minimal assistance to me.
- [62]Notwithstanding that, it seems to me that the applicant’s conduct to which reference has been made raises concerns about the applicant’s ability to:
- (a)respect personal boundaries and another person’s right to feel safe and free from the fear of being violated against their will, such being demonstrated by his conduct of stalking that led to the Stalking Conviction and his view, as it appeared to me to be held at the time of the hearing, that such conduct was acceptable; and
- (b)behave in an appropriate manner showing respect of the law, such being demonstrated in his conduct at the time of the Police executing the search warrant that led to the Drug Conviction and the manner in which he elected, as it would seem, to deal with the fact he was holding a substantial amount of cannabis.
- (a)
- [63]Thus, in my opinion this raises questions as to whether, in an employment or business situation, he could act properly in the best interests of children.
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 … the court’s reasons for its decision.[51]
- [64]The respondent’s representative addressed this criterion in her written closing submissions.[52] Whilst she did so in terms of all the applicant’s offending as shown in his criminal history report, albeit focussed on the two offences on which I have also focussed, in my opinion this criterion can be sufficiently considered by reference to short passages to be found in the sentencing remarks for each of the Stalking Conviction and the Drug Conviction, copies of which have properly been put before this Tribunal by the applicant.
- [65]Turning firstly to the sentence for the stalking. The learned Judge made these comments in sentencing the applicant to imprisonment for 12 months.
Whilst you do have some convictions for dishonesty in the past and some of them a very long time ago, I do not regard them as being of significance. …
… The harassment involved in this case was over a six month duration, representing quite deliberate and sustained conduct over that period. … the impact upon the victims … has been considerable.
The participation by others in my view does not reduce your criminality. It could only have been with the intention to intensify the distress to the victims, and to reduce the prospect of detection with phone calls being made from many different addresses that would have had the effect to maximise the impact on the family, and it is difficult to determine how long such conduct might have continued had you not been detected. There was a systematic use of public telephones which could only have been done to reduce the prospect of detection.
…
There has been no remorse expressed for your victims, and you no doubt have had the satisfaction of seeking that your intention has been manifested by the anxiety and stress that you caused, which could have been [the] only intention accompanying your conduct.
… Nothing in the antecedent history would have justified such conduct. The motivation simply seems to have been out of some perception that this would right some form of social injustice.
…
The report also records that there has been some adjustment in your attitudes that has been detected over the last couple of years. It is not possible however to conclude that you have any remorse from your victims, although it is certainly possible to conclude and accept readily that you do regret your conduct in the context of causing distress to your wife and family.
Contrasting with your conduct, is the support you have received from a number of referees who have indicated that you are well regarded by them, and they attest to you being well regarded generally in the community, and that you have in your background demonstrated apparently over a lengthy period, your capacity to assist others who are in need.
It is possible I think to categorise your conduct as being driven by some form of obsession, irrationally formulated to support some belief that that conduct would right some for of social injustice. …
… Each member of the community should have a right to expect that they will have quiet enjoyment of their homes without aggravation of this kind, and they should rightfully expect that the Court would express the community’s condemnation for such conduct in circumstances of this kind. The conduct was to my mind, quite inconsistent with what ought to have taken place. …[53]
- [66]Whilst those comments were made now more than 20 years ago, based on the short question and answer engagement I had with the applicant in the hearing as I have noted it in paragraph [44] herein in my opinion they resound just as correct today as they were then. I need only repeat my comments made in paragraph [53] herein. Despite the passage of time, the applicant’s perception of his conduct as being socially acceptable has not changed.
- [67]The learned Judge’s comment as to the expectations of the community are also apposite. They also resound today in terms of relevancy. As the respondent’s representative appropriately made a submission on as I noted it in paragraph [34](b) herein, community expectation is an important and relevant factor that has been applied by this Tribunal in similar matters. As the learned Member put it in DP v Director-General, Department of Justice and Attorney-General [2021] QCAT 106, once again an observation I respectfully adopt:
As an authority figure and holder of a Blue Card at the time, DP had a commensurate level of responsibility towards children in his care, invoking the protective purpose of a regime designed to maintain community confidence in those whom it entrusts with the care of its children. The community must be confident that persons entrusted with the care of children are free of inappropriate conduct towards children in their care.[54]
- [68]I thus turn to the Drug Conviction. The applicant received a non-custodial sentence, but that does not mean that the sentencing remarks are of any less value. As was observed by the Appeal Tribunal SWJ v Department of Justice and Attorney-General (No 2) [2022] QCATA 119, it would be useful to know the approach to the sentence of the Magistrate, the basis on which the sentence was passed, and the reasons for the imposition of the probation order, rather than an order for imprisonment. Mere speculation would be unhelpful.[55]
- [69]The learned Magistrates made these comments which as I understand the applicant’s closing submission he relies on as supporting his case for a blue card.
In terms of what a conviction might have upon your economic or social wellbeing, I take into account your work with children. It might be that you need a blue card. I am also told you are doing this voluntary work at the correctional centre. It might be you would be unable to continue doing so if you end up with convictions recorded. Despite my significant concern about the quantity of drug here, I am going to take into account how long you have been out of trouble and your other community involvement, and I am going to give you the benefit of being convicted with no conviction recorded.[56]
- [70]Whilst those comments suggest that the view taken by the learned Magistrate at the time was that there was some level of understanding held by the applicant into the nature of his offending on that occasion, and that it was not the manifestation of a pattern of behaviour or understanding that would be the antithesis of community expectation, in my opinion it is not enough to overshadow the applicant’s apparently held view in terms of his conduct almost 20 years earlier for which he was convicted and sentenced, and the manner in which he dealt with the events on the day in question that brought about the Drug Conviction, all of which as I have said indicate to me the applicant does not possess a relevant degree of respect for the law.
- [71]Whilst on each occasion there was an acknowledgment by the Court of positive character references given in support of the applicant, in my opinion that of itself is not enough. In all respects the evidence I have been presented with, together with the sentencing remarks of the learned Judge in 2003, which I must say again demonstrate that the applicant still maintains his conduct at that time was acceptable, show me that the applicant still lacks the requisite degree of insight into his offending conduct being contrary to that which meets community expectations, such as being necessary in order to hold a Blue Card.
Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the Applicant[57]
- [72]The respondent’s submissions in respect of this criterion were extensive. They were expressed under the heading ‘Other Relevant Matters’ and in doing so went beyond merely that contemplated by s 226(2)(f) of the WWCA. Whilst much of what was contained therein addressed relevant issues, and for that reason I do not dismiss it, in my opinion it is not necessary for me to discuss it in these reasons. The outcome of this proceeding can readily be determined on that which I have already discussed.
- [73]However, that being said, the submissions did raise one particular aspect which is worthy of a short discussion. I do that under the next heading, it essentially being the subject of consideration upon which the outcome in this proceeding turns.
The Issue of Insight
- [74]The respondent’s representative has appropriately dealt with this under the heading ‘The extent of the Applicant’s insight into his offending behaviour as a whole’.[58]
- [75]The applicant’s possession of genuine insight is an important factor in the process of considering his application to retain his Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA [2006] QCST 11:
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.[59]
- [76]The respondent also appropriately referred me to other consideration of this issue submitting that it highlights the importance of insight in assessing whether the risks associated with an applicant’s post conduct have been reduced.
- [77]The first was in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 wherein the Appeal Tribunal considered the issue and expressed this observation:
Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences ….
Ms Lister continues to minimize and justify her conduct …
These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced.[60]
- [78]As the respondent’s representative also appropriately noted, a similar observation was recently made in SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, a decision of mine wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by the applicant. Therein I made this observation:
Notwithstanding that this all occurred now many years ago, in the circumstances of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable.[61]
- [79]These comments are equally applicable to the circumstances of the applicant now before me. His argument in this proceeding, and the basis upon which he seeks to have the Decision set aside, appears to me to be premised entirely on the effect it will have on him. He did not present his case in any way dealing with the effect his actions had on others or to show his possession of that requisite degree of genuine insight. Concerningly, after more than 20 years, he still considers his conduct which resulted in him being imprisoned for the Stalking Conviction acceptable.
- [80]Whilst it may be the applicant’s view that he is again being punished for this past conduct, such is an entirely incorrect view. It is not the intention of the WWCA to impose additional punishment on the applicant as a result of his past conduct. It is not about punishing people twice. It is about putting gates around employment to protect children from future abuse.[62] Speaking in terms of the West Australian legislation equivalent to the WWCA, the following observation was made in the Court of Appeal in that State:
… The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. [63]
- [81]I respectfully adopt it. Any detriment to the applicant is not relevant.
- [82]What is relevant however is the absence of evidence that shows me the applicant possesses the requisite degree of insight as to his offending behaviour, and that he has taken steps to deal with it in a manner such that would ensure the welfare and best interests of a child would be protected should the applicant find himself in a position of caring for children as a holder of a Blue Card. In the absence any proper demonstration of the requisite degree of insight, I am left with the conclusion that the applicant might allow a child to engage in conduct which is anti-social without the applicant knowing it not to be so. Until such time as the applicant can demonstrate the requisite degree of genuine insight as to the difference, in my opinion it is entirely inappropriate for him to hold a Blue Card.
Human Rights Act 2019 (Qld)
- [83]Before concluding my reasons and expressing my decision it is necessary that I make a short observation on the application of the Human Rights Act 2019 (Qld) (HRA), it being a third piece of legislation under which the issues for determination in this proceeding fall to be decided. The decision maker properly considered the HRA in reaching the Decision, and the respondent’s representative has appropriately also addressed it in her written closing submissions.[64]
- [84]The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed in the HRA are not exclusive, nor are the rights protected under the HRA absolute. They may be limited but only so far as is reasonable and justifiable.[65] That being said, all statutory provisions, so far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[66] Such includes the WWCA.
- [85]The respondent has properly and appropriately acknowledged that there are a number of competing human rights relevant in this proceeding. Whilst not identified in their entirety by the respondent, in my opinion these include the applicant’s right to privacy and reputation, and right to take part in public life.[67]
- [86]But there is a competing right that cannot be overlooked in a proceeding such as this, and one that permissibly is considered in limiting the applicant’s rights in the circumstances of him seeking to be the holder of a Blue Card. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[68] In that regard, the respondent correctly made this submission which I respectfully adopt given its succinctness and clarity.
… a decision that the Applicant’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on the Applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA. The decision will be justified, inter alia, because it will have the proper purpose of promoting and protecting the right, interests and wellbeing of children and young people …
Furthermore, any limitation on the Applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act that is, the welfare and best interests of children are paramount.[69]
- [87]As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable, factors which may be relevant include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[70]
- [88]That being so, it must be recalled as I noted earlier in these reasons, the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA, such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That would include the making of a finding that the circumstance the applicant finds himself in is an exceptional case such as to deny him an entitlement to a Blue Card under the WWCA. Such is not inconsistent with s 13 of the HRA.
Conclusion
- [89]The respondents representative made this submission in her written closing:
Overall, the material suggests the Applicant’s offending behaviour reflects indicates (sic) a lack of acceptance of responsibility for his offending, a lack of remorse, and a lack of insight which reflects adversely on his ability to judge appropriate behaviour, and present as a positive role model for children.
…
The Respondent submits that the Tribunal should find that this case is an exceptional case 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.[71]
- [90]I agree. Based on my discussion of the evidence and the competing submissions as I have expressed it in these reasons, in my opinion the applicant’s circumstance is precisely as the respondent has put it. The fact that the applicant still considered his actions that brought about the Stalking Conviction was acceptable, notwithstanding it being contrary to law, and the absence of any evidence to properly show that he has understood the ramification to others resulting from, or could result from, his conduct, and that he has taken steps to show that the circumstances that brought about such conduct have been remedied, there is simply not enough before me to satisfy me that this is not an exceptional case.
- [91]In my opinion the applicant’s circumstance is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a Blue Card. Accordingly, his circumstance does not conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct. There will be an order to that effect.
Footnotes
[1]The previously used terminology of ‘Blue Card’ has survived given its well-known reference, although now it is referred to in the WWCA as ‘working with children card’.
[2]QCAT Act s 19.
[3]QCAT Act s 20.
[4]QCAT Act s 24.
[5]Ex 1 – BCS 12. Even though no conviction was recorded for many of the offences, for the purposes of the WWC all still fall within the definition of a ‘conviction’ under the Act. See WWCA sch 7
[6]See Ex 1 – BCS 16 and 17.
[7]Ex 2 – NTP 50.
[8]Ex 2 – NTP 28. The background and details of the offending is described in the QP9, a copy of which appears at Ex 2 – NTP 32.
[9]Ex 1 – BCS 23.
[10]As I read the material before me, the relevant information attached to the letter and marked Attachments C & D, but not included in the material as being attached, is that which appears at Ex 1 – BCS 13 to 22.
[11]This is as required under WWCA s 229.
[12]Ex 1 – BCS 33.
[13]Ex 9.
[14]WWCA s 5.
[15]WWCA s 6.
[16]RSC para’s 24 & 25. As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”
[17]See WWCA s 221(2) and s 221(3)(a)(iii). Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.
[18]WWCA s 221(2).
[19]Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].
[20]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.
[21]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[22]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34].
[23]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.
[24]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[25]QCAT Act s 21(1).
[26]QCAT Act s 21(2).
[27]Ex 1, Ex 2, and Ex 3. Ex 3 contained the Sentencing Remarks of the Magistrate at the time of the Conviction.
[28]Ex 9.
[29]Ex 4.
[30]Ex 5.
[31]Ex 6.
[32]Ex 7 and Ex 8. Two references were given and thus received into evidence, although the content of the former is contained in the content of the latter, the latter containing two additional paragraphs.
[33]Ex 5 – pg 5 at 2.2.
[34] Ex 4 – para 3.
[35]Ex 1 – BCS 12.
[36]Ex 1 – BCS 17.
[37]Ex 1 – BCS 17.
[38]Ex 1 – BCS 18.
[39]Ex 1 – BCS 20.
[40]WWCA s 226(2)(a)(i).
[41]Ex 1 – BCS 12
[42]As I noted it earlier, notwithstanding that no conviction was recorded for the drug possession offence, for the purposes of the WWCA it is a ‘conviction’.
[43]WWCA s 226(2)(a)(ii).
[44]Ex 9 – para 38 - referring to the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.
[45]WWCA s 226(2)(a)(iii).
[46]IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206,[64].
[47]Ibid, [72].
[48]WWCA s 226(2)(a)(iv).
[49]Ex 9 – para 40.
[50]Ex 9 – para’s 41 to 44.
[51]WWCA s 226(2)(a)(v).
[52]Ex 9 – para’s 45 to 49.
[53]Ex 2 – NTP 50 to 52.
[54]DP v Director-General, Department of Justice and Attorney-General [2021] QCAT 106,[23]
[55]SWJ v Department of Justice and Attorney-General (No 2) [2022] QCATA 119,[28].
[56]Ex 3 – BCS 44.
[57]WWCA s 226(2)(f). I need not have regard to ss 226(2) (c) to (e) as they are not relevant.
[58]Ex 9 – pg 17.
[59]Re TAA [2006] QCST 11, [97] recently cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].
[60]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87,[53] to [55].
[61]SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392,[68].
[62]Queensland Legislative Assembly 2000, Parliamentary Debates, 14 November, 4391 (The Hon Anna Bligh – Minister for Families, Youth and Community Care and Minister for Disability Services) speaking relevant to the Commission for Children and Young People Bill, in terms of predecessor legislation to the WWCA.
[63]Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] per Buss JA with whom Newnes AJA agreed, McLure JA dissenting (Emphasis added). See also REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312, [33] and the earlier QCAT decision cited therein.
[64]See Ex 1 – BCS 68; Ex 9 – para’s 72 to 74. I pause here to observe that the applicant did not raise any issue in his closing submissions or at any other time during the hearing or within any of his evidence given to this Tribunal as to his human rights or the application of the HRA.
[65]HRA – s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.
[66]Ibid – s 48(1)-(2).
[67]Ex 9 – para 72. I pause here to note that the right to privacy is protected by the de-identification of these reasons.
[68]HRA – s 26(2).
[69]RCS – para’s 73 and 74.
[70]HRA – s 13.
[71]Ex 9 – para’s 77 and 78.