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MWT v Director-General, Department of Justice and Attorney-General[2023] QCAT 206

MWT v Director-General, Department of Justice and Attorney-General[2023] QCAT 206

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MWT v Director -General, Department of Justice and Attorney-General [2023] QCAT 206

PARTIES:

MWT

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML034-21

MATTER TYPE:

Children’s matters

DELIVERED ON:

8 June 2023

HEARING DATE:

1 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Burson

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 22 January 2021 is confirmed
  2. Publication of the applicant’s name is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Publication of the documents filed by the parties as evidence in these proceedings is prohibited, save as was and is necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons, under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – BLUE CARD – application to review a negative notice – whether sufficient time since offending – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a positive notice

Mental Health (Forensic Provisions) Act 1990 (NSW)

Working with Children (Risk Management and Screening) Act 2000

Chief Executive Officer, Department of Child Protection v Grinrod (No 2) (2008) WASCA 28

Re FAA [2006] QCAT 15

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

REASONS FOR DECISION

Background

  1. [1]
    This is an application for a review of a decision by the Director General, Department of Justice and Attorney General made on 27 January 2021 to issue a negative notice to refuse the Applicant’s application for a Working With Child Check (“Blue Card”).
  2. [2]
    The Applicant at the time of hearing was a 38-year-old man.  The Applicant is a qualified solicitor and qualified teacher in New South Wales.  At the time of hearing the Applicant was not working within either profession.
  3. [3]
    The Applicant has a background of mental health admissions over a number of years.  At the present time the evidence presented was that his mental health was stable.  At the age of 27 on 2 October 2013, four charges were finalised against the Applicant for ‘possess child abuse material’ two charges were taken into account by the court and one charge withdrawn.
  4. [4]
    The Applicant’s charges were dismissed under section 32 Mental Health (Forensic Provisions) Act 1990 (NSW).  The dismissal was conditional on the Applicant attending therapy with his psychiatrist and taking medication as directed by his general practitioner.
  5. [5]
    The court accepted that the accessing of material was in approximately 2003/2004, when the Applicant was aged 18.
  6. [6]
    The charges came to the attention of authorities after the Applicant made admissions to the Principal of the school that the Applicant was working then working.
  7. [7]
    The Applicant applied for a Blue Card on 16 January 2020.
  8. [8]
    After assessing the Applicant’s eligibility for a Blue Card the Applicant was issued with a negative notice on 22 January 2021.  The Respondent determined that the Applicant’s case was an “exceptional case”.
  9. [9]
    The Applicant applied for a review of the decision under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’) of the issue of a negative notice on 27 January 2021.

The ‘Blue Card’ legislative framework

  1. [10]
    Employment screening for child-related employment is dealt with in chapter 8 of the Act. The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [11]
    A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [12]
    As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’?

  1. [13]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [14]
    Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [15]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [16]
    The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

Evidence relied upon by the Respondent

  1. [17]
    The police brief is summarised as follows:
    1. (a)
      The Applicant commenced employment at a school as a full-time teacher.  In this role he worked outside of a classroom and supported other teachers with the wellbeing and behaviour of students.  He lived onsite at the school.
    2. (b)
      At 9:30am on 18 October 2012, the Applicant approached the School Principal and asked to speak in private.  The Applicant disclosed to the Principal he had accessed child pornography some years before.  He stated he disclosed this as he believed authorities had accessed his computer firewall.
    3. (c)
      The Principal subsequently contacted the relevant education office and the police.
    4. (d)
      Police attended and during the interview the Applicant admitted to downloading the child pornography between seven and eight years earlier.
    5. (e)
      The Applicant made admissions to copying the images onto his computer, which he further downloaded onto a portable hard drive and discs.
    6. (f)
      The Applicant stated that the computer and hard drive were in his unit at the school and the discs were at his home in regional NSW.
    7. (g)
      Police attended the Applicant’s unit at the school and the Applicant gave permission to the police to seize a number of items including his laptop and portable hard drive.  The Applicant stated that he provided police with everything that he thought was illegal.
    8. (h)
      During this time, the Applicant requested the search stop and he would seek legal advice.  The search subsequently ceased.
    9. (i)
      The Applicant and police left the unit.  The police posted a guard on the unit whilst applying for a search warrant.
    10. (j)
      At about 6pm the police returned to the unit and executed the search warrant in the presence of the Applicant and the Principal.  Numerous items were seized including cameras, iPod, iPhones and DVDs.
    11. (k)
      At the completion of the search warrant, the Applicant provided his home address where he believed the copies of child pornography were copied to the discs.
    12. (l)
      The Applicant was subsequently suspended from his position at the school and required to leave the premises.
    13. (m)
      On 24 October 2012, police attended the Applicant’s regional NSW home.  The Applicant invited the police into his home.  The Applicant was advised that he did not have to let police into his home.
    14. (n)
      The applicant handed to the police three CDs.  The CETS (child exploitation tracking scheme) is a rating system used to categorise the severity of pornographic pictures of children.  The three CDs were subsequently reviewed by police. Police utilised the CETS scales to determine the level of severity of the images.
    15. (o)
      There was a large of amount of images of child pornography.  These ranged from level 1 to level 4 on the CETS scale.
  2. [18]
    Each charge and the image content was also summarised by the Respondent.
  3. [19]
    The Respondent also provided copies of the Notice to Produce material to the Tribunal, consisting of the following:
    1. (a)
      medical records of the Applicant;
    2. (b)
      case notes of NSW education department;
    3. (c)
      investigation plan for NSW education department;
    4. (d)
      facts sheet NSW education department;
    5. (e)
      material from the Office of Children’s guardian NSW; 
    6. (f)
      police statements;
    7. (g)
      responses from the Independent Education Union on behalf of the Applicant; and
    8. (h)
      addendum report of the Office of Children’s Guardian NSW.

The Applicant’s evidence and submissions

  1. [20]
    The Applicant provided the Tribunal with comprehensive material, including the following:
    1. (a)
      final written submissions;
    2. (b)
      complaint material and response to the Queensland Ombudsman;
    3. (c)
      internal review decision Blue Card Services;
    4. (d)
      NSW working with children check confirmation;
    5. (e)
      notice of appeal by NSW Education Standards Authority;
    6. (f)
      order NSW Civil and Administrative Tribunal;
    7. (g)
      NSW Civil and Administrative Tribunal decision;
    8. (h)
      order appeal of decision NSW Civil and Administrative Tribunal;
    9. (i)
      decision of Appeal of NSW Civil and Administrative Tribunal;
    10. (j)
      material from NSW Education Standards authority suspending teaching accreditation;
    11. (k)
      material seeking review of not to be employed status NSW Education and Training Department;
    12. (l)
      two personal references;
    13. (m)
      reports of the Applicant’s psychologist and psychiatrist;
    14. (n)
      reports of forensic psychiatrist;
    15. (o)
      submission of solicitor to Office of Children’s Guardian NSW and submission by the Independent Education Union;
    16. (p)
      the Applicant’s statutory declaration dated July 2016; and
    17. (q)
      application for admission as a solicitor.
  2. [21]
    The Applicant gave oral evidence during the hearing.
  3. [22]
    The Applicant handed up journal articles regarding the effects of non-therapeutic male circumcision and the circumcision of male infants and the effects that this has on males.  The Applicant in his evidence, detailed the effect that circumcision had had on his sexual identity and development.  This was supported by the Applicant’s current treating psychiatrist.
  4. [23]
    The Applicant did not deny the offences before the Tribunal.  The Applicant to his credit co-operated fully with police.  The Applicant stated that he fully accepted responsibility for his actions.
  5. [24]
    The Applicant provided psychiatric evidence of that he was not attracted to children but the behaviour in viewing the child abuse material was to make sense of the history of abuse that he had suffered as a child and the impacts that circumcision had had on his development.
  6. [25]
    The Applicant had approached media organisations regarding the loss of his ability to teach in NSW, notwithstanding the weight of psychiatric and psychological evidence, the media was not favourable to his situation.
  7. [26]
    The Applicant was subjected to media scrutiny and publication of the charges and his history as a teacher.  The Applicant in the Tribunal recognised that approaching the media was a poor choice.
  8. [27]
    The Applicant in cross-examination admitted that he had ‘threatened to go to the media’ about Blue Card Services.  The Applicant also noted that he had learned his lesson by the time of the New South Wales Civil and Administrative Tribunal in May 2021 about threatening to go the media. I take this into account regarding the insight that the Applicant has into the nature of the charges.
  9. [28]
    The Applicant had a number of witnesses, including a neighbour who provided a character reference but was unaware of the criminal charge and a family friend who was aware that the charges had been dismissed on mental health grounds but was unaware of the Applicant’s mental health matters.
  10. [29]
    The Applicant’s psychiatrist and psychologist were both cross-examined extensively.
  11. [30]
    At the time of the Applicant’s approach to the media it is accepted by the Tribunal that this was a time of crisis for the Applicant.
  12. [31]
    The Applicant’s psychiatrist has expertise and practises in the area of adolescent mental health and sexual health.  The Applicant’s psychiatrist impressed upon the Tribunal that whilst the offences occurred whilst the Applicant was an adult at 18 years old, the Applicant had developmental delays and was still very much an adolescent at the time of the offences and was very confused about his sexuality. 
  13. [32]
    The Applicant’s psychiatrist gave evidence that the Applicant was at the time of the offences, still functioning as a child, with a developmental age under his stated age of 18 at the time of accessing the child abuse material.  The Applicant’s psychiatrist noted that the Applicant had actively sought mental health treatment and had now regained his mental health stability.
  14. [33]
    The Applicant’s psychiatrist also noted that there are a number of protective factors for the Applicant, and that was that he had increased insight to the offences and his behaviour, the Applicant had greater resilience, support of family and friends and that the Applicant now had psychological self- management skills to recognise when he is struggling.
  15. [34]
    The Applicant’s medical practitioners and treatment team were all supportive of the suitability of the Applicant to work with children.
  16. [35]
    The Applicant’s treating psychiatrist expressed that he was of the belief that the Applicant had a low risk of offending.

Is this an exceptional case?

  1. [36]
    The factors in section 226(2) of the WWC Act are the factors that must be considered in making a decision about whether it is an exceptional case.
  2. [37]
    In terms of the level of satisfaction required to meet section 221(2) of the WWC Act, it has been accepted that while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[9]
  3. [38]
    The factors which must be observed and that I consider relevant are:

Is the offence a conviction or a charge?

  1. [39]
    The Applicant was received a mental health discharge in respect of four counts of Possess Child Abuse material.  The charges were dismissed conditionally as outlined in paragraph 4.
  2. [40]
    Notwithstanding that the charges were dismissed the relevance of charges that do not result in conviction are matters that can be considered.[10]
  3. [41]
    It is an evaluation of risk that the Tribunal must undertake in this review.  As noted in Grinrod (No 2) (2008).[11]

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

  1. [42]
    The offences the subject of the charges against the Applicant were disqualifying offences under the WWC Act.

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

  1. [43]
    The behaviour that was the subject of the charges was committed in 2003/4 but not charged until 2012/2013

The nature of the offence and its relevance to employment that may involve children

  1. [44]
    The nature of the charges were possess child abuse material.  The offence is one that is against children and children are entitled to be protected from the ongoing and repeated victimisation that occurs in offence that is the viewing of child pornographic material.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for decision

  1. [45]
    The Applicant was not convicted of the offences.

Other relevant circumstances

  1. [46]
    The Applicant admitted to the Tribunal that he had possession of child abuse material.
  2. [47]
    The Applicant remained in possession of this material from 2003/2004 until his admissions in October 2012.
  3. [48]
    The Respondent urges the Tribunal to take into account the Applicant’s management of his mental health.  As noted in the material presented to the Tribunal and by the evidence given by the Respondent’s treating practitioner’s, the Respondent has long standing mental health issues.  The evidence given to the Tribunal by the Applicant’s psychiatrist was that the Applicant became a lot more resilient in 2020 and did not agree that the Applicant was a chronic suicide risk.
  4. [49]
    I am not required to outline all the evidence provided to the Tribunal in this decision. The Tribunal accepts the evidence that the Applicant has become a lot more resilient since 2020 with regard to his mental health.
  5. [50]
    I am concerned that the Applicant has not accepted the brevity of the offences, with his approaches to the media and the lack of insight that this represents as to the nature of the offences, with the naivety of expected support by the wider community of his position.
  6. [51]
    Whilst I have accepted the psychological and psychiatric material that the Applicant may be a low risk of offending in the future, I must have regard to the overarching principle of the WWC Act that is that the welfare and best interest of a child are paramount.

Conclusion

  1. [52]
    I have weighed all the matters in section 226(2) and the other circumstances, I have considered all the evidence, including the psychological and psychiatric evidence.  I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
  2. [53]
    I confirm the decision of the delegate of the Director-General, Department of Justice and Attorney General made on 22 January 2021.
  3. [54]
    I have considered the provisions of the Human Rights Act 2019 (QLD) and I am satisfied that any limitation on the Applicant’s human rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people.[12]

Non-Publication Order

  1. [55]
    I order that the publication of the name of the complainant be prohibited other than to parties to the proceeding pursuant to section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
  2. [56]
    I also order, pursuant to section 66(1)(a) of the QCAT Act that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these proceedings.

Footnotes

[1] Working with Children (Risk Screening and Management) Act 2000, section 5.

[2]  Child related employment decision is defined to include a chapter 8 reviewable decision; Working with Children (Risk Management and Screening) Act 2000, section 358.

[3] Working with Children (Risk Management and Screening) Act 2000, section 360. See also section 6.

[4] Working with Children (Risk Management and Screening) Act 2000, section 221.

[5] Re FAA [2006] QCAT 15, [22].

[6] Working with Children (Risk Management and Screening) Act 2000, section 228(2)(a).

[7] Working with Children (Risk Management and Screening) Act 2000, section 228(2)(f).

[8] Re FAA [2006] QCAT 15, [29] citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391.

[9]  [2004] QCA 491, [30].

[10] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.

[11] Chief Executive Officer, Department of Child Protection v Grinrod (No 2) (2008) WASCA 28 [28].

[12] Human Rights Act 2019 (Qld), s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2023] QCAT 206

  • Court:

    QCAT

  • Judge(s):

    Member Burson

  • Date:

    08 Jun 2023

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
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
2 citations
Jump To
Cite 1 - (2008) WASCA 28
Cite 2 - (2008) WASCA 28
Re FAA [2006] QCAT 15
3 citations
Jump To
Cite 1 - [2006] QCAT 15
Cite 2 - [2006] QCAT 15
Cite 3 - [2006] QCAT 15
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243
Zipside Pty Ltd v Anscor Pty Ltd [2004] QCA 491
1 citation
Jump To
Cite 1 - [2004] QCA 491

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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