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GV v Director General, Department of Justice and Attorney General[2023] QCAT 30

GV v Director General, Department of Justice and Attorney General[2023] QCAT 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GV v Director General, Department of Justice and Attorney General [2023] QCAT 30

PARTIES:

GV

(Applicant)

v

Director General, Department of JUSTICE AND Attorney general

(Respondent)

APPLICATION NO/S:

CML510-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

24 January 2023

HEARING DATE:

27 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Hemingway

ORDERS:

  1. The decision of the Director General, Department of Justice and Attorney general that GV’s case is exceptional within the meaning of the working with Children (Risk Management and Screening Act 2000(Qld) is set aside and replaced with a decision that there is no exceptional case in respect of GV.
  1. Publication of the name or identifying information of GV or any person associated with him, other than to the parties of the proceedings is prohibited pursuant to section 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 – negative notice – where applicant a school principal and pastor – where Applicant has no criminal charges or convictions – where multiple investigations of harm to children – where substantiated and unsubstantiated allegations – whether an exceptional case exists

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226 , s 580

Human Rights Act 2019 (Qld), s 8, s 58, s 31,13

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

Re TAA [2006] QCST 11

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 (61)

Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Volkers v Commissioner for Children and Young People [2010] QCAT 243

FBN v Director-General, Department of Justice and Attorney-General [2021] QCATA 112

DL v Director-General, Department of Justice and Attorney General [2021] QCAT 61 at 53

Commissioner for Children and Young People and Child Guardian v Lister (no 2) [2010] QCATA 74

CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305

GEE v Director -General, Department of justice and Attorney General [2022] QCAT 260

Director General, Department of Justice and Attorney -General v PML [2021] QCATA 51

DEF v Director General, Department of Justice and Attorney General [2022] QCAT 127

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7]

Commissioner for Children and Young people and Child Guardian v Ram [2014] QCATA 27

Storch v Director General, Department of Justice and Attorney-General [2020] QCAT 152

APPEARANCES & REPRESENTATION:

 

Applicant:

GV, self -represented.

Respondent:

Catherine Davis

REASONS FOR DECISION FINAL

Background

  1. [1]
    The Applicant applied to the Respondent and received a positive notice for working with children (BlueCard) on the 5 April 2017 pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“WWC Act).” A positive notice is now referred to as a working with children clearance.[1]
  2. [2]
    The Respondent administers a scheme for screening persons employed in child related employment or who carry on child related businesses. The Respondent received complaints concerning the Applicant’s suitability for child related employment on 11 April 2017.
  3. [3]
    In February 2020, the Applicant applied to renew his blue card. On 30 June 2020 the Department received a further complaint about the Applicant. After considering submissions from the Applicant, the Respondent issued the Applicant with a negative notice on 16 November 2020.
  4. [4]
    The Respondent provided Reasons for the refusal of the positive notice. The Applicant applied to the Queensland Civil and Administrative Tribunal for a review of this reviewable decision on the 1 December 2020.
  5. [5]
    GV was the principal of a non-state school in New South Wales resigning from this position in 2016 following a series of allegations against him and investigations into these matters. He is currently registered as a teacher in New South Wales and Victoria. He is qualified as a Minister of Religion and Pastor and wishes to return to his previous role as a Minister of Religion and Pastor having been called to a Parish in Queensland. He requires a working with children clearance to fulfil the criteria for this position. 
  6. [6]
    GV has no criminal history.

Legislative Framework

  1. [7]
    The Queensland Civil and Administrative Tribunal (“the Tribunal”) reviews reviewable decisions of the Respondent in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). The Tribunal must also consider and apply the provisions of the Human Rights Act (Qld) 2019.
  2. [8]
    The purpose of the review by this Tribunal is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.[2] The Review is made by way of a fresh hearing on the merits of the case.
  3. [9]
    In undertaking the Review, the Tribunal considers the object of the WWC Act which is to promote and protect the rights, interests, and wellbeing of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children or who operate relevant businesses.[3]
  4. [10]
    The chief consideration in this review is that the welfare and best interests of children known as the paramount consideration.[4] The Tribunal must apply the paramount principle in its review of the decision to issue a negative notice.
  5. [11]
    Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 is rebutted.
  6. [12]
    The WWC legislation does not define, ‘exceptional case’. It is a matter which should be determined on an individual case basis, not hampered by a general rule.[5] The Tribunal must find an exceptional case exists if based upon all considerations, it would harm the best interests of children to issue a positive notice.
  7. [13]
    Therefore, because the Applicant has not been convicted of a serious offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case.
  8. [14]
    The standard of proof required by the Tribunal is that it must be satisfied on the balance of probabilities.  Neither party bears the onus of proof in the review. The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice in conducting the review.[6]
  9. [15]
    In reaching a decision, the Tribunal must consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6 (a) of the WWC Act and any other relevant factors.
  10. [16]
    It has been established that any hardship or prejudice suffered by the Applicant due to the Tribunal’s decision is not relevant to the finding of an exceptional case.[7] This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations.
  11. [17]
    The Human Rights Act 2019 (Qld) requires that the Tribunal must consider the human rights impacted by the decision, bearing in mind that a balance that must be struck between the rights of children to be protected from harm and any rights the individual applicant may have. This aspect will be considered later in the reasons.
  12. [18]
    A compulsory conference in this proceeding was conducted on the 14 July 2021. Subsequently, the Tribunal issued directions for notices to produce to the New South Wales Ombudsman. The New South Wales Ombudsman was granted leave to comply until 13 October 2021 with direction one of the Directions dated 14 July 2021
  13. [19]
    Directions were given for Notices Produce to be issued to the K Church Australia - New South Wales District.
  14. [20]
    On the 31 August 2021 a Notice to Produce was issued to the Reverend R, Bishop of the K Church Australia - New South Wales.
  15. [21]
    The Applicant was directed on the 26 October 2021 that if his submissions contained a health report it should consider the following:
    1. (a)
      copy of the Reasons of the Respondent for its issue of a negative notice
    2. (b)
      the report should consider the extent to which the Applicant has insight into his alleged offending
    3. (c)
      behaviours /child related behaviours and its impact on society. The victims and any children associated with the applicant
    4. (d)
      what risk factors or triggers if any continue to be present which could contribute to a risk of further alleged offending, behaviours /childcare related alleged offending, behaviours /childcare related behaviours.
    5. (e)
      what protective factors if any are present to reduce further risk and
    6. (f)
      what preventative strategies if any does the applicant use to reduce their risk further
  16. [22]
    On 23 December 2021, the Tribunal directed that the Reverend R, Bishop of the K Church Australia, New South Wales provide reasons as to why the material produced in the Notice to Produce should not be disclosed to the Applicant.  This direction was required to be complied with by the 17 January 2022.  Under the same direction the Respondent’s time for compliance with the Direction 3 of the Tribunal directions dated 26 October 2021 was extended to 7 February 2022. The Applicant’s time for compliance was extended to 7 March 2022.
  17. [23]
    The hearing of the application listed for 22 April 2022 was vacated.
  18. [24]
    A further directions hearing occurred on the 17 May 2022 and the time for the Respondent to file their material was extended to 27 May 2022 and for the Applicant to 3 June 2022.
  19. [25]
    The matter was heard on the 7 and 21 September 2022. The decision was reserved.

Traffic offences 2001-2010

  1. [26]
    The Applicant has four traffic offences between the years 2000 and 2010. In each instance he was fined respectively $135, and three demerit points, $90 and one demerit point, $150 and 3 demerit points and $133 and 1 demerit point. The Applicant does not regard these as charges per se.
  2. [27]
    The Tribunal’s attention was drawn to the decisions in DL[8] and DEF[9] which state that the Applicant’s traffic offences fall with-in the definition of charges in the WWC Act for an offence and so accepts that these may be appropriately raised by the Respondent. The last traffic offence was on the 30 November 2010; twelve years ago.
  3. [28]
    The Tribunal has considered the following information:

Whether the Offence is a serious and whether it is a disqualifying offence

  1. [29]
    The Applicant has not been charged or convicted of any serious or disqualifying offences. The Applicant has no criminal history, and no charges apart from the traffic offences already referenced.
  2. [30]
    The Applicant has four traffic offences in the period 2000-2010 to which the Respondent refers in the decision. There is no evidence that traffic history has any relationship to children. The traffic offences resulted in fines and the issue of demerit points.

Any information about the person given under sections 226(e), 318, 319, 335, 337, 338 of the WWC Act and under section 138 ZG of the Disability Service Act (Qld) 2006

  1. [31]
    There are no reports or information available to the Tribunal under these provisions.

Other relevant Matters pursuant to section 228(2) WWC Act

  1. [32]
    The Applicant’s conduct when employed as a principal was investigated on seven separate occasions by different entities in regard to allegations of harm to children, failure to report to relevant authorities and his conduct towards other adults. The Integroe report was further reviewed by the New South Wales Ombudsman.  Each investigation deals substantially with the same incidents which were investigated using methodology which is questioned by the Applicant as to the fairness and presence of bias.
  2. [33]
    The following reports were provided to the Tribunal in this proceeding:
    1. (i)
      AIS investigation report 2012 -Incident 29 May 2012
    2. (ii)
      Association Independent Schools Report (AIS )11 August 2015
    3. (iii)
      Highett Report 23 November 2015
    4. (iv)
      Professional standards Unit (PSU) of the Lutheran Church Lutheran Education-Listening Visit 21 December 2015
    5. (v)
      Integroe Partners Investigation report 25 July 2016
    6. (vi)
      New South Wales Ombudsman 8 June 2016
    7. (vii)
      Letter Outcomes 1 August 2016
  3. [34]
    The AIS investigation findings dated 29 May 2012 were authored by a Child Protection Investigator. The investigation deemed the act by the Applicant in slapping a child on the face to be a minor physical assault. This conclusion was reached because the child did not require first aid or any on-going medical treatment and there was insufficient evidence to determine if the slap resulted in a red mark and further that the Applicant immediately admitted the incident, realised the inappropriateness of his behaviour and was immediately remorseful for his actions.[10]
  4. [35]
    Allegations in the Investigation by the Association Independent Schools (AIS) dated 11 August 2015 are as follows:
    1. (i)
      One incident where the Applicant slapped a child on face in 2012 which is the same incident referred to in the AIS report above.
    2. (ii)
      Five further allegations of physical assault were made of which one was substantiated but found not to amount to reportable conduct (grabbing a child by the collar).
    3. (iii)
      One further incident included of inappropriate, but not reportable conduct where it was alleged that the Applicant was alleged to have pushed a child against a locker.
    4. (iv)
      A further allegation was that the Applicant was alleged to have hit a child with a tennis racket on the shin. This complaint was not substantiated.
    5. (v)
      Following the AIS investigation, the Applicant was placed on a final warning concerning his employment.
  5. [36]
    After the conclusion of the AIS investigation report, following a complaint to the Professional Standards Unit (“PSU”) of the K Church a listening visit was held where adult complainants were interviewed in person or by telephone by the PSU who made a special field visit to a town in another State. A summary letter was written 21 December 2015 detailing the following methodology and outcomes:
    1. (i)
      Nine Staff were interviewed including seven former employees and one then current employee on Workcover.
    2. (ii)
      Staff complained of intimidation and harassment of staff by the Applicant, describing being targeted and having snide remarks made about them and that the Applicant pointed his finger close to their face and berated them in public.
    3. (iii)
      One staff member alleged seeing the Applicant assault a child and having used physical force at his last school.
    4. (iv)
      A further allegation was that attempts were made by the Applicant to discredit the complainants and the investigation by the Professional Standards Unit.
  6. [37]
    A further investigation was undertaken by Integroe who investigated the AIS allegations and additional allegations. This report found as follows:
    1. (a)
      Allegation 1.

Serious physical assault – This involved the Applicant yelling at a student, swinging him around and slamming him against a wall and saying, “you were supposed to come and see me”. Not sustained.

  1. (b)
    Allegation 2.

That GV stated at a Boarding House meeting he would slap students. Not sustained.

  1. (c)
    Allegation 3.

That GV failed to report sexualised conduct by a student who was looking at a match-making service in January 2013 when the Applicant failed to assess and report the student’s conduct. Not sustained.

  1. (d)
    Allegation 4.

That in November 2013 GV failed to make a mandatory report of a child as a victim of sexual abuse as a report Risk of harm. Allegation sustained.

  1. (e)
    Allegation 5.

That an injury to a child on the temple and causing a blackout was not reported to police. Not sustained.

  1. (f)
    Allegation 6. 

That GV actively encouraged a child not to report the alleged assault in allegation 5. Not Sustained.

  1. (g)
    Allegation 7. 

That a child was victimised by GV following the assault described in allegation 5 having been reported by the student. Not sustained.

  1. (h)
    Allegation 8.

That GV Failed to report a sexual assault by one student on another. Sustained.

  1. (i)
    Allegation 9.

That GV compromised a police investigation into an alleged sexual assault by not complying with mandatory reporting requirements. Sustained.

  1. (j)
    Allegation 10

that GV stated ‘I’ll take the fall for it’ in regard to a change to a student’s medication. Not sustained.

  1. (k)
    Allegation 11

that GV permitted a child aged 14 to drive a car on a public road with GV’s consent. Sustained.

  1. (l)
    Allegation 12.

That GV condoned a wrestling match between students called the Royal Rumble. Sustained. 

  1. (m)
    Allegation 13.

That GV failed to implement fire safety procedures in 2011-2015. Sustained.

  1. (n)
    Allegation 14.

That in 2012 GV struck a child with the back of his hand. Not sustained.

  1. (o)
    Allegation 15

That behaviours and past conduct at another school indicate that GV has demonstrated inappropriate behaviour over a period of time amounting to neglect. Sustained.

  1. (p)
    A general allegation that the Applicant’s lacked insight and understanding of Child Protection concerns. Additional concerns were discussed in the report. This included failure to take action concerning an event where a staff member was injured by a student. This allegation was not sustained. A further allegation was raised in relation to the mental health of a student and failure to raise it with the parent. This allegation was not sustained. A further allegation was that in Term 1, 2016 the Applicant and another staff member decided that Year 12 boys could sleep in their own flat without adult supervision. This allegation was not sustained. A further allegation was that punitive action was taken by the Applicant against a student for reasons not specified. This allegation was not sustained.
  2. (q)
    A general concern was expressed that child protection issues aware not properly prioritised by the Applicant. This allegation was sustained. Several concerns were raised about the Applicant referring to others as mentally instable or unwell.  These people included students, parents, current and former staff members. This allegation was sustained. The continued use of the courtesy title Pastor by the Applicant was complained of, but the allegation was not sustained.
  3. (r)
    This inquiry raised a concern that the Applicant did not report alleged instances of child protection concerns at a previous school. The reports states at page 16 that:

We are aware that the Applicant was employed at G College….  which has been the subject of some inquiry at the Royal Commission into Institutional Responses to Child Sexual Abuse. … we are unaware of any specific complaints about the Applicant to the royal commission. 

  1. [38]
    The New South Wales Ombudsman reviewed the findings of the Integroe report in a Letter to K Church Education dated 8 June 2016. The Ombudsman’s responses are detailed below:
    1. (i)
      Allegation 4 – In our view it was open to you to not sustain this allegation on the basis that there was a failure to report the matter to the NSW Child Protection Helpline, the evidence provided in the investigation report does not meet the threshold of neglect-Gross Professional Misconduct that could have caused death or significant harm.
    2. (ii)
      Allegation 8 – The evidence provided indicated that GV was on leave at the time of the incident and that his replacement was also sick. Whilst he was answering emails, it would be unreasonable to expect that by doing so, he was resuming full responsibility as Principal. If the role of Principal was not sufficiently covered in his absence due to the illness of his replacement, then responsibility for ensuring there was adequate cover rests with the school management Board, not GV. It was therefore open to the agency to not sustain this allegation on this basis.
    3. (iii)
      Allegation 9 – Whilst the conduct is clearly set out in the investigation report, the evidence does not provide sufficient weight to sustain Neglect-Gross professional misconduct that could have caused death or significant harm. On this basis it was open to the agency to consider that this was not reportable conduct but a breach of the Code of conduct.
    4. (iv)
      Allegation 13 – The investigation report provides details regarding adherence fire regulations. This information contains submissions from GV regarding fire drills and the engagement of fire -related services. We note that there are gaps in the information provided and consider it was open to the Agency to sustain that the conduct breached the agency’s code of conduct.  However, the finding that the conduct meets the threshold of neglect Gross breach of professional standards that could have caused death or significant harm is questionable.
    5. (v)
      Allegation 15 – Because the investigation sustained neglect in relation to some of the allegations, we question whether it was necessary for the agency to consider this allegation. Furthermore, the evidence for sustaining a pattern of behaviour of neglect -gross breach of professional standards that caused death or significant harm is not set out to the extent that satisfies the requisite threshold. As such we consider that it was open to you not to sustain his allegation.
    6. (vi)
      In summary, whilst we are not requesting that you review your findings at this stage, we consider that it was open to you not to sustain them. If you decide to review these findings in the future, please keep this office informed.
  2. [39]
    Apart from the content of the investigations of the allegations already discussed, the Department of Employment and Screening in Queensland received further complaints.  
  3. [40]
    Complaints were received by Blue Card services on the 11 April 2017 and 30 June 2020. The complaints were of alleged actions by GV in the period May 2012 until 2016.
  4. [41]
    The complaints to Blue Card Services Queensland on 11 April 2017 and 30 June 2020 in most respects repeat already stated concerns and complaints again stating that the Applicant had:
    1. (a)
      Allowed a 14-year-old child to drive a car on a public road such allegation was sustained.
    2. (b)
      That the Applicant asked children not to report incidents.
    3. (c)
      That in May 2012 the Applicant assaulted a child.
    4. (d)
      That the Applicant failed to report child sexual abuse.
    5. (e)
      That the Applicant failed to report a second incidence of child sexual abuse.
    6. (f)
      That the Applicant allowed students to participate in a wrestling match.
    7. (g)
      That the Applicant did not train staff under his authority in child protection matters.
    8. (h)
      That the Applicant did not know how to handle child protection matters.
    9. (i)
      That the Applicant referred to other adults as ‘mentally unstable’ to discredit them.
    10. (j)
      That there was a large an amount of evidence to support these allegations.
    11. (k)
      That the Applicant was removed from the Roll of Pastors.
    12. (l)
      That the Applicant requested people to call him Pastor when he was not entitled to do so. That there were reports that he is not reinstated as a Pastor.
    13. (m)
      That as there was a shortage of pastors generally the position was that they should not be reinstated except in serious circumstances.
    14. (n)
      That the Applicant underwent psychological testing twice before being placed on the Roll of Pastors.
    15. (o)
      That there were complaints of the Applicant bullying other adults.
    16. (p)
      In Queensland, that the Applicant had failed to report a child sexual assault of a child.
  5. [42]
    These complaints together with the complaints forming the substance of the 2015 and 2016 investigations and the Ombudsman’s analysis are the basis of the concerns of the Respondent in relation to their decision that this is an exceptional case.
  6. [43]
    The Applicant’s material is as follows:
    1. (a)
      Attachment to Applicant’s submission and attachments to it marked A-F
    2. (b)
      Life story dated 12 February 2021
    3. (c)
      Statement of evidence dated 23 November 2022 and appendices
    4. (d)
      Letter dated 30 December 2021
    5. (e)
      Letter J dated 12 January 2022
    6. (f)
      Character reference L
    7. (g)
      Statement of evidence dated 7 March 2022
  7. [44]
    The Respondents’ material is as follows:
    1. (a)
      BCS 1-54
    2. (b)
      Traffic history
    3. (c)
      Summary of complaint information
    4. (d)
      NTP 1-640 K Church documents

Respondent’s case

  1. [45]
    The Respondent asserts that it is appropriate to have regard to the Applicant’s behaviours of concern which the Respondent considers to be a pattern of behaviour.
  2. [46]
    Referring to the decision in FBN,[11] the Respondent is concerned about the ability of the Applicant to:
    1. (a)
      Exercise restraint, self-control and sound judgment.
    2. (b)
      Regulate his emotions and control his impulses.
    3. (c)
      Assess and respond to another person’s behaviour.
    4. (d)
      Protect children from harm.
    5. (e)
      Learn from past failings and change his behaviour accordingly.
  3. [47]
    The Respondent argues that that allegations and findings are relevant to and reflect adversely upon an evaluation of the Applicant’s eligibility to work with children and young people for the following reasons:
    1. (a)
      The Act is to be administered in a way that protects children from harm including protecting them from any detrimental effects on a child’s psychological or emotional well-being.
    2. (b)
      The allegations and findings raise questions about the Applicant’s treatment of and behaviour towards other adults and suggest a potential for similar behaviours towards children and young people. Children have a right to be protected from such behaviour and to have appropriate modelling of appropriate behaviour to them.
    3. (c)
      The decision in CA reflects upon the significance of a propensity for aggression in a person seeking to work with children and that this should be regarded as a relevant factor.[12]
    4. (d)
      The Respondent reiterates that proposition that the material before the Tribunal “raises questions about the Applicant’s ability to act protectively of children and young people and about the extent to which the Applicant has taken seriously his responsibilities in carrying out a child related business’.
    5. (e)
      The Applicant breached his position of trust responsibility and authority.
    6. (f)
      There are concerns about the Applicant’s ability to present a positive role model to children and young people.
    7. (g)
      The alleged conduct of the Applicant was observed as inappropriate by a child and alleged to have been overheard by a witness. The Respondent cites remarks in GEE’s case where it was stated that a conflictual approach to conflict resolution by a person in charge of children may normalise this type of conduct for the child to their detriment.[13]
  4. [48]
    The Respondent contends that the Tribunal should have regard to allegations (substantiated or unsubstantiated) even if they did not lead to a criminal charge or amount to reportable conduct. The Respondent contends that the decisions in PML and Lister support this conclusion. 
  5. [49]
    PML is a decision of the Appeal tribunal which established that a failure to take into account some material consideration is an error of law”[14]The Respondent contends based upon this decision that untested allegations and unsubstantiated allegations must still be considered to be materially relevant.
  6. [50]
    Regarding untested allegations in Lister no 2, the Appeal Tribunal of QCAT established that these allegations are relevant and must be accorded appropriate weight.[15] However, the Tribunal is not required to make findings of fact regarding all untested allegations and uncontested evidence.
  7. [51]
    The Respondent states that insufficient time has elapsed since the events, and this impacts the Applicant’s insight into the harm to children arising from the incidents. 
  8. [52]
    The Tribunal notes the following remarks in the decision cited by the Respondent of Re TAA[16] which describes the value of insight into the harm caused by the offending as being evidence of a protective factor, as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. 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 children.

  1. [53]
    The Respondent contends that the Tribunal is not required to balance risk and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[17] The Respondent submits that the Tribunal is entitled to ignore both hardship to the individual and any skills the Applicant is asserted to have in the determination of whether an exceptional case exists.[18]
  2. [54]
    The Respondent submits that as there is no power to issue a conditional card and once issued, it is fully transferable across all areas of regulated employment and business. The Applicant could seek and be employed to care for children in regulated employment irrespective of his initial stated intention.[19]
  3. [55]
    The Respondent contends that despite there being no convictions that the Applicant demonstrates a pattern of conduct which is concerning and so he should not receive a BlueCard. The submission of the Respondent is that the actions of the Applicant remain of concern, whilst not criminal shows a pattern of conduct as in Storch.[20] The fact of this case is dissimilar to the current case apart from the fact that the Applicant concerned also had no criminal charges. In that case the member stated:

As already explained, the purpose of this review is not to determine the Applicant’s guilt or innocence. It is to determine whether when viewed in its entirety the evidence suggests that on the balance of probabilities, the Applicant may pose a risk to children. The member then referred to the decision in GP as follows: When identifying risk factors, the Tribunal in GP v Commissioner for Children and Young People adopted the approach of New South Wales courts in corresponding cases, by defining ‘risk’ in this context to mean ‘real and appreciable risk’.  The Tribunal held that when identifying risks, as part of its consideration of whether an exceptional case exists ... the tribunal is not concerned with what may be mere possibilities but rather will require foundation in fact. The Tribunal is looking at whether, in all the circumstances, there is a real and appreciable risk.

  1. [56]
    In Storch, the Applicant was charged with, but not convicted of sexually abusing a young child. There the allegations constituted a pattern involving a concern of grooming of several children and young persons who were given access to view pornography and were sexually touched by the Applicant. He was further involved previously in the inappropriate behaviour with young people in residential facilities and was asked to leave. He was also the subject of a standards of care review regarding the two foster children in his care.  A feature of his case was the Applicant’s insistence that he had not behaved improperly but that that the complainants were mistaken or there was another version of the events.[21]

Unsubstantiated allegations

  1. [57]
    The Respondent contends that the unsubstantiated allegations must still be considered by the Tribunal and weighed in the totality of the evidence.  The decisions in Lister No 2[22] and PML[23] support a finding that even if an allegation is not substantiated in an investigation process that the allegation must still be considered by the Tribunal.

The Applicants case

  1. [58]
    GV states that he has no history of charges and no convictions apart from traffic offences of which the last traffic offence was on the 30 November 2010.
  2. [59]
    The Applicant states that he was given misleading information by Blue Card Services about the need for his referees to include knowledge of the substance of the complaints against him; the ability to request an extension for the provision of information, the short time frame for him to respond to the Reasons decision. The Applicant contends that this was a denial of procedural fairness and natural justice.
  3. [60]
    The Applicant contends that the fact that allegations are not substantiated is a factor for the Tribunal on review. He cites the alternate findings in the Ombudsman’s report. The Applicant argues that after a review of the Integroe Report by the NSW Ombudsman, the Ombudsman considered that all but two incidents were sustained. These where his condoning of a regular wrestling match called the Royal Rumble and permitting a child to drive a short distance on a public road having delegated supervision to another staff member. 
  4. [61]
    He further contends that the investigation by Integroe was biased and a denial of his right to a fair process. He states that he was given insufficient time for responses and that the outcome of the investigation was predetermined for extraneous and irrelevant reasons.
  5. [62]
    The Applicant claims a disadvantage and delay to his case resulting from extensions given to the Respondent.
  6. [63]
    The Applicant states that the Respondent’s Reasons disclose:
    1. (a)
      That the finding by them concerning the 2017 complaint information is not without merit.
    2. (b)
      That there were two investigations of him in 2015 and 2016 that support the allegations.
    3. (c)
      That the Applicant considers he is alleged to have minimised the seriousness of his actions and failed to demonstrate any insight into the child related nature of my behaviour.
    4. (d)
      That some referees failed to demonstrate any knowledge of the disciplinary action.
  7. [64]
    The Applicant states that he was not given proper notice when questioned on the telephone by Blue Card services and was invited to make a submission orally. He further states that he was not advised of the need for his referees to include knowledge of the substance of the complaints.
  8. [65]
    Prior to the issue of the negative notice, the Applicant states that he made a freedom of information application and was given a blue card Reasons for Decision document which was drafted with the opposite conclusion (a positive notice) to the decision eventually issued to him. He contends that this demonstrates, ‘the highly subjective nature of the negative notice decision’ process calling in to question the final issue of the negative notice.
  9. [66]
    The Applicant stated that he has worked full-time in schools for 29 years. He stated that has served as a school/chaplain/teacher, in leadership positions and as school principal and CEO.
  10. [67]
    He denies his treatment of his staff and adults generally was bullying in nature. He states that several D school staff were under-performing and resentful of measures he took to improve school outcomes and increase enrolment. He stated that he was given this instruction to increase enrolment and improve staff performance or the school would close when he was employed.[24] Some staff had their working hours reduced and those not able to be mentored to improved performance were asked to leave. The Applicant considers that this caused and fuelled their resentment of him. This led to repeated complaints against him investigated in the listening interview and is reflected in the tenor and conclusions in the final investigation conducted by the PSU. He contends that the grievances of these staff informed the conduct and outcomes of the Integroe investigation.
  11. [68]
    The Applicant contends that the Highett report supports his assertion regarding staff satisfaction issues. This report was conducted with 13 Boarding house staff and 16 college staff, and five Board members constituted at the date of the report. In this report it states that, “staff were positive about the leadership of the principal and saw that he was a strong leader accessible to all.[25]
  12. [69]
    As part of the Highett report, additional staff including two maintenance staff were interviewed regarding school and boarding house matters.  The report writer attended the boarding school and dining room on an informal basis as a way of assessing the situation as part of the report process.  
  13. [70]
    The Applicant refers to the staff satisfaction in this report.   The report states at page 6 that overwhelmingly, with few exceptions, the staff are happy, settled and very supportive of each other.[26] The report does detail numerous improvements that ought to be made as to operational and strategic issues and staffing concerns, but the Applicant asserts that it presents a generally positive view of the principal’s performance from the staff perspective.
  14. [71]
    The Applicant acknowledges some concerns which he acknowledges as that he could have acted with more professionalism[27] but contends that the positive content of this report has been largely ignored in the investigations and by Blue Card services in their decision to issue a negative notice.
  15. [72]
    The Applicant states that the time constraints imposed upon him (as he understood them to be) affected his ability to respond. He further states that he was not given a fair amount of time to respond (on the telephone or in written submissions) which were requested within eight days.
  16. [73]
    The Applicant rejects the assertion that there was a pattern of inappropriate conduct by him citing the alternative analysis of the Ombudsman’s report. He states that in regard to substantiated concerns, that he accepts responsibility for those events which were permitting a child to drive on a public road and allowing the traditional wrestling match known as the Royal Rumble denies occurring. He states that he demonstrated insight regarding the other complaints by seeking guidance. He sought advice concerning both incidents and accepted the further advice from the Senior investigator at the Ombudsman.
  17. [74]
    The Applicant makes the following submissions regarding risk:
    1. (a)
      He states that any minimisation of his actions in terms of physical violence allegations was unintentional.  He reiterates that he is unclear which incident is being referred to in some of the instances but that he states that he has been cleared of any breaches of any Child Protection regulations. He adds that he was also found to have breached the Code of Conduct and agrees that this was the case. He contends that any further explanation he offered in the investigations was not to downplay the seriousness of the concerns but to explain and provide further relevant detail.
    2. (b)
      He states that he did not view the 2015 Report until after he received the negative notice when he received the preliminary findings. He considers that he acted appropriately by meeting with the Board.
    3. (c)
      In regard to the specific incident in May 2015 where it was alleged (though not considered reportable conduct), that the Applicant grabbed the student by the collar and restrained him, the Applicant stated that he was on crutches at the time of the incident in 2015. He states his intention was not to harm but to secure the student’s attention. He states that he accepts that although the action was not reportable, it carried risks of injury.
    4. (d)
      The Applicant asserts that he took steps to improve his understanding of child protection policies and practices by completing a Child Protection Course offered by AIS.
    5. (e)
      He contends that the Ombudsman’s report concludes that all but two of the of the sustained allegations identified in the 2016 investigation did not amount to neglect-gross breach of professional standards.
    6. (f)
      The Applicant disputes claims that he tried to place blame on others for his failures despite his being the responsible person as school principal. He claims the 2016 investigation was motivated by two disgruntled ex-employees to bring a complaint against him. He refers to the supporting views of the witness statement of V who supported his view that the investigator was not impartial and that the interview was an interrogation akin to a criminal investigation.[28]
    7. (g)
      The Applicant maintains that although he was devastated by the fact that the information concerning these events was reported in the newspaper and that some ex-staff went to the PSU, he appreciates that persons with the care and supervision of children should be held accountable. He states that he has rebuilt his life since these events.
    8. (h)
      He denies the allegations concerning any failures to report whilst at his former school, G and the Integroe report supports this position. [29]

Protective factors 

  1. [75]
    The Applicant states that he undertook training and is accredited by AIS as a Child Protection officer for the independent schools in New South Wales.
  2. [76]
    He states that he admits his failings as principal. He states that in explaining this conduct he does not seek to excuse it. He states that in the situation today he would do things differently.[30]
  3. [77]
    He contends that many decisions he believed were in the best interests of students and staff and broader school community were errors of judgment and he takes responsibility for them.
  4. [78]
    He states that he is not displacing his responsibility for the two decisions by attempting to give more substantive details to explain the circumstances in which the decisions were taken.  He submits that the responses made by him have been unfairly construed by the Respondent to form a conclusion that he was that he “was not taking responsibility for his actions or was deflecting blame onto others.” [31]
  5. [79]
    He denies minimising his responsibility for his actions and decisions in the attempt to explain them.
  6. [80]
    The Applicant contends that he now understands the benefit of seeking advice and counsel. He states that he sought further advice about these two incidents and so approached the Senior Investigator in the Child Protection Unit in the New South Wales Ombudsman’s office. The Applicant submits that he received advice from the Senior Investigator that despite checks in place that there were inherent risks to children in both events. The Applicant states that he accepted this advice and learnt from it.[32]
  7. [81]
    The Applicant states he has reflected upon the events and concludes as that some events transpired because of financial imperatives. He understands that he took on additional responsibilities he was either too ill-equipped or too busy to take on properly. He further states that he agreed to enrolling students with high needs which further stretched the resources of the College and put additional pressures on staff resulting in a backlash.
  8. [82]
    The Applicant contends that he does take advice and has undertaken further training in child protection matters and that these are protective factors.  These are detailed in his submissions. [33]
  9. [83]
    The Applicant cites his supervision by professional supervisors as well as the psychologists’ reports indicate his willingness to accept direction and assistance and to reflect upon how he has handled events. He refers to the witness statements and the report of his current psychologist as supportive of the proposition that he does not pose a risk to children were he to be issued with a blue card. 
  10. [84]
    He refers to the positive psychological assessment Report from Mr Reiter’s in 2016. The methodology used by the psychologist in addition to psychometric testing included the following topics:
    1. (a)
      examining the standard of the decisions he had made as principal and whilst not reportable offences would not pass the pub test.
    2. (b)
      examining his past working experiences at the remote aboriginal boarding school.
    3. (c)
      his marriage breakdown.
    4. (d)
      the past generally.
    5. (e)
      his relationship with his adult children.
    6. (f)
      his support mechanisms.
    7. (g)
      reflection on deeper issues.
  11. [85]
    The Applicant details his support network as including his current partner and her family, his 92-year-old father, his mother, his adult children, various church officials of seniority, his church community, his non-clergy Professional Supervisor and Professional supervisor.
  12. [86]
    He describes his daily routine involving a healthy lifestyle and discipline and exercise. He indicates that he continues community and service in his church.
  13. [87]
    He describes the effects of the investigations as causing depression but that he has identified this and is managing without medication.

Witnesses

  1. [88]
    All witnesses spoke of the Applicant’s good character and sound dedication over a long period of time to children and young people and the educational work of the church in schools. The witnesses for the Applicant were convincing and genuine in their assessment of events and the Applicant and his ability to understand the events, his reaction to them and his capacity to learn from errors.
  2. [89]
    Dr F, on 21 November 2021 stated that he was not aware of the intricacies of the case but reaffirmed his good character, good nature and the absence of any clinically significant health issues.
  3. [90]
    Likewise, Dr J stated that the outcomes of the psychometric tests and assessments were that the Applicant did not pose a future risk to children.
  4. [91]
    Whist not aware of specifics of the actual allegations, a fact weighed by the Tribunal, Rev B is a highly experienced and senior figure in the church organisation and was prepared to acknowledge the failings of the Applicant. However, he remains of the view that the Applicant is suitable for inclusion as a member of the clergy due to his retraining and lengthy assessments and supervisions by professional supervisors. He disagreed that the Applicant was a danger to children.
  5. [92]
    Witness U was a was a work colleague at the College and he endorsed the conclusions of the Highett report stating that his observation of staff was that their general satisfaction. He stated an awareness that there was some dissatisfaction amongst some staff who were underperforming. He did not agree that the Applicant had mistreated children but that he was very involved and responsive to the needs of students, doing his utmost in a challenging role. 
  6. [93]
    A further Witness who was a senior church official employed during the period of the 2016 events stated that he believed that the Applicant was subject to on-going pressure by the demands of the school and pressure from employers, staff, students and parents resulting in several misjudgements and mishandling of events.  He did not agree that the Applicant posed a danger to children but had a long history of positive interaction with children.
  7. [94]
    The Integroe report also details an interview by the Integroe investigator, and a person employed at G College, the Applicant’s former school. Despite the repeated questioning by the investigator, the interviewee maintained that the reporting protocols regarding child protection policies at G college were adhered to and not ignored by the Applicant. The witness in this interview maintained that the Applicant was not failing to report.  

The Tribunal analysis findings and decision

  1. [95]
    The Applicant has four traffic offences in the period 2000-2010. Whilst of note, as an indication of a willingness to break the Law, there is no evidence that these traffic history offences have any relationship to children. They occurred some twelve years ago. The traffic offences resulted in fines and the issue of demerit points. As this offending is not recent and does not relate to children the Tribunal gives limited weight to its impact upon the issue of the finding of an exceptional case.
  2. [96]
    The Applicant has no criminal history despite the police having been involved through direct conversations with the Applicant or through referrals to the police service by others. A newspaper report about the Applicant did not result in any police action.   It appears that no actual investigations resulted from the matters which the Respondent claims amounted to failures by the Respondent to report child protection matters. Despite the wide publicity of these events including in the media, the failure of the Integroe investigation to obtain independent corroboration of wrongdoing at the previous school which would have led to the involvement at the Royal Commission, the Applicant has never been charged or convicted of any criminal offence.  
  3. [97]
    The Applicant has been subject to seven separate investigations. No criminal charges, investigations or prosecutions against the Applicant resulted. External responses were made to the alleged failures of the Applicant to report matters. The Applicant is shown in the investigation reports to be candid, responsive, cooperative, and to seek information where his was deficient and to be child-centred in his approach to issues with students. He was not in the Tribunal’s view seeking to minimise or deny events in the multitude of responses given in the processes in which he took part.  His actions though display ineptitude rather than a nefarious purpose. The allegations against the Applicant can be distinguished from the case details in Storch [34]. There the perpetrator continued to deny the claims of abused (very young) children to seek to exculpate himself.  He had several similar situations where he sought opportunities to commit abuse on children and in one case was asked to leave employment as a result of his grooming conduct.
  4. [98]
    The Tribunal notes that the Applicant himself is not charged with sexual misconduct against children but rather mishandling and failing to make appropriate reports which are then further considered in the Ombudsman’s reports. The Tribunal has specifically considered the following two allegations which demonstrate the superficial understanding of the Applicant when handling complaints by students.
  5. [99]
    The allegation of sexual abuse by Student A of another student was the subject of action by the Applicant. A principal would reasonably be expected to make appropriate inquiries regarding such a claim. Making reasonable inquiries does not translate to a denial of the seriousness of the allegation or minimise it but to give fairness to both young people. The rationale provided by the Applicant in his responses was that the complaint lacked specificity, the reporters were unreliable and so the action he took was to consult online reporting. He describes conflicting advice between what the staff member who reported police advice and what the online report advised.  He further describes his reliance on the child protection officers at the school and his incorrect assumption that they would “take the lead”.[35] The sustained allegation arising from this set of circumstances was that the Applicant failed to make a mandatory risk of significant harm report. He is now aware that this is the required procedure. He accepts he is responsible. The Tribunal concludes however that the actions of the Applicant do not establish that he is a risk to children through his failure to report appropriately because he made a decision based on available information. His flawed conclusions was not for the purpose of denying the allegation, as is alleged throughout the Integroe report. The Tribunal considers this to be an honest error.
  6. [100]
    A further example of the actions taken by the Applicant to perform his obligations is illustrated by his handling of the allegation that one student raped another student. The allegation involved complex facts and circumstances, working with especially vulnerable children (in care) and their carers, outside agencies and Police. This concern emerged when the Applicant was on leave. He was held responsible by the investigator despite this fact.
  7. [101]
    There are two complaints against the Applicant in respect of his handling of this event; that he failed to report the assault and that he compromised a police investigation by not doing so.
  8. [102]
    The Applicant contended that the complainant denied her initial claim she had been raped by Student G and that she had merely started a rumour to that effect.  The other relevant consideration is the complainant’s age and immaturity and the fact that assaults by the alleged perpetrator had been on-going. The Applicant demonstrates a lack of understanding of the complexity of these factors. The Applicant shows a concerning lack of understanding of the nature of the behaviour of victims of sexual assault by accepting this comment at face value. He has now a better understanding of complaints of sexual assault by the training he has undertaken.
  9. [103]
    Student G was eventually placed an Apprehended Violence order. The Applicant contended that the case could be reduced to an argument about whether it was an allegation or a rumour and that there was no police investigation. This line of reasoning shows the deficiencies in the Applicant’s understanding of complaints of sexual assault. His explanation of his handling of the events displays incompetence but not malice. These are now managed in a contemporary context where the processes give significant protection and support to the alleged victim. 
  10. [104]
    The Integroe reports states that the Applicant’s internal investigation ‘compromised the necessary criminal investigation’ and that Police queried why the Applicant failed to report the matter. The source of these statements by Police is not recorded. The Police statements negatively impact the credibility of the Applicant but the statements themselves are unsubstantiated.  There is a finding in the Investigation report by Integroe stated as, ‘interfering with a police investigation by conducting his own investigation.’ There is no record of this being the case. There was no investigation by Police to support the contention that the Applicant compromised a police investigation.  This claim is not founded in any complaint brought against the Applicant.
  11. [105]
    The Applicant’s understanding and handling of both allegations show deficiencies in the Applicant’s understanding of complaints of a sexual assault and the current policies and Law with respect to these serious concerns.
  12. [106]
    However, the Tribunal does not consider that the Applicant today is in the same mindset as when these events occurred. He has undertaken child protection training and undergone significant supervision in a professional context thus mitigating the risks identified previously. GV is not in the same category as the Applicant in Storch who deliberately sought to discredit his victims and sought repeated opportunities to groom and exploit his young victims, seeking opportunities to do so and refusing to acknowledge and responsibility. GV is stated to have used his best endeavours to meet his employment obligations and the Tribunal considers that this is an accurate assessment of his actions.
  13. [107]
    It is not the role of the Tribunal to re-evaluate the quality, methodology or findings of the numerous investigations which deal with substantially the same incidents and concerns.   The Tribunal is not required to make findings of fact in regard to the allegations but to weigh allegations both substantiated and unsubstantiated in accordance with its primary duty under the paramount principle.
  14. [108]
    However, the content of much of the Integroe report remains troubling as there are significant instances of a lack of independence. If the allegations in the report and its conclusions form the main basis of the finding by the Respondent that this is an exceptional case, then this is of concern to the Tribunal on review. On its face the conclusions of the Ombudsman’s report[36] demonstrate an alternate view of the incidents and allegations against the Applicant and are at odds with the final report of Integroe.
  15. [109]
    It is therefore open to the Tribunal to consider this fact when considering whether this is an exceptional case. The Tribunal does not have to determine which set of conclusions is correct but to appreciate that a different construct of the same information is possible. Unlike Storch, the Applicant here had no established history or an actual criminal charge of child abuse. The offences in Storch were the result of a deliberate pattern of denial and continued offending against children.
  16. [110]
    GV has however numerous allegations concerning the use of force against children, but the Ombudsman’s report does not find the instances to amount to reportable conduct. This does not dismiss the allegations or diminish their seriousness but is a further relevant fact going to the contention of the Respondent of a pattern of conduct, a lack of insight and a minimisation of his actions by the Applicant.
  17. [111]
    The Tribunal notes that although the Highett Report was available in response to the Notice Produce material, its content is not considered by the Respondent in its submissions. A similar report on staff satisfaction (the listening interview) is detailed in the Respondent’s material. It is significantly negative against the Applicant. 
  18. [112]
    The Respondent reports that in May 2020, the Department of Child safety, Youth and Women advised that there was no substantiated child protection information held in relation to the Applicant. In fact, there is no child protection information substantiated or otherwise held by this Department in relation to the Applicant.
  19. [113]
    There is also an alleged report against the Applicant which he denies, that whilst in Queensland he failed to make a report to Police about the sexual assault of a child. There is no information about this allegation available to the Tribunal in the context of its review of the Respondent’s decision and so this has not been considered. 
  20. [114]
    The Respondent submits that other relevant matters of concern for the Tribunal include the Applicant’s child protection history and insight into this aspect of his case. The Tribunal accepts these factors to be relevant in this review in accordance with section 226 of the WWC Act. The WWC Act is administered under the principle that "the welfare and best interests of a child are paramount”. 
  21. [115]
    The test in Briginshaw applies to child-related employment decisions. The Tribunal must consider the application on the balance of probabilities, but in doing so, it does consider the gravity of consequences involved in its decision.
  22. [116]
    When conducting this review, the Tribunal notes the complex situation of most unrepresented applicants in this type of review where the Applicant is both Witness/ Applicant and Advocate. The conduct of the two roles simultaneously can present difficulty in the presentation of the Applicant’s case. 
  23. [117]
    In the unreported decision of SWJ by Judicial Member DJ McGill SC, his Honour remarks at paragraph 33 that:

It is necessary to bear in mind the appellant in the proceedings has two roles, as witness and as an advocate. If as an advocate, he makes a legitimate submission that breaches of the protection order the subject of the offences and charges were not violent, or relatively serious examples of such breaches, that should not be characterised as his minimising the seriousness of his offending.[37]

  1. [118]
    His Honour’s remark underscores the difficulty for the Tribunal in affording natural justice to the Applicant in circumstances where the Applicant is witness and advocate in this review. Though factually different the remarks of his Honour are relevant to this case.
  2. [119]
    The Applicant has specifically drawn attention to the interpretation placed upon his submissions as his own advocate. These are characterised by the Respondent as a minimisation of his conduct and so a failure to understand the concerns raised by the Respondent regarding his conduct.
  3. [120]
    The Tribunal must consider whether the Applicant has gained insight, particularly into those triggers that may cause a lack of judgement, which may have a potentially adverse effect on children.
  4. [121]
    The Tribunal considers whether the Applicant has addressed the Respondent’s concerns by retraining and reflection and attendance with his psychologist and has gained skills to avoid issues arising in the future. The Tribunal identifies whether the Applicant has gained sufficient insight as demonstrated in an analysis of the protective and risk factors. The Tribunal has considered the Applicant’s lifestyle and support network. 
  5. [122]
    The Tribunal finds that the Applicant provided convincing argument and evidence of significant change in his understanding of the Respondent’s concerns.
  6. [123]
    The Applicant’s case is distinguishable from the facts in the decision in Storch. There has been an extensive analysis undertaken of the Applicant’s conduct over a lengthy period of time from 2009 to 2017. In this case, the Applicant’s actions are not a reliable indicator of future behaviour. What the Applicant has achieved through extensive and ongoing psychological assistance and counselling, and the recommendations and conclusions of Mr T, serve as a more reliable indicator of future behaviours.
  7. [124]
    Through counselling, the Tribunal finds that the Applicant has gained considerable insight into his behaviour and has a particularly good understanding of issues around protective matters, and the care of children demonstrated by his training in child protection matters and awareness of relevant Church policy in this area.
  8. [125]
    The Tribunal must consider risk factors. In this case, the Applicant has demonstrated an ability to understand his previous lack of insight, but he has demonstrated that he can identify and cope with triggers, in such a way as not to pose a risk to children.
  9. [126]
    I have given little weight to the numerous staff complaints against the Applicant and reject the suggestion by the Respondent that he would act in this way towards children and young people in the future. The issue of a BlueCard is in the Tribunal’s view a separate issue from the Applicant’s ability to manage his staff in a dynamic workplace.
  10. [127]
    The grievances of staff against him relate primarily to grievances in the employment sphere. As such those specific complaints are irrelevant to this review except in the sense that they relate to child protection issues. His witness KL acknowledged this fact that popularity rarely accompanies hard decisions which are regularly made in the course of the modern workplace.
  11. [128]
    Clearly, the naivete of GV was a contributing factor to his failings as the principal. The Tribunal accepts that whilst trying to carry out his instructions to improve the school’s enrolment and performance, he failed to use appropriate interpersonal skills, alienating many staff in the process. Staff complaints show a perception of his being out of touch and conveying personal arrogance. This is at odds with his actually stated personal feelings and intentions, but he has demonstrated a capacity to seek assistance and advice and to take it. 
  12. [129]
    The Applicant shows little insight into how his failure to set appropriate boundaries for the school community was a significant and contributing factor to his problems. He consistently modelled blurred roles to staff and students contributing to the many complaints against him. The Applicant had limited insight into this aspect. He appeared oblivious to the fact that his approach as to where the boundaries lay antagonised staff and students alike inviting over familiarity and the issues which arise from this in a student-teacher context. His over-involvement in the Boarding house affairs was fatal to the smooth running of the school leading to the suggested policy changes and suggestions made in the Highett Report.
  13. [130]
    The Respondent spent much unnecessary time on the issue of whether the Applicant insisted that people address him as Pastor when he was not entitled to this title.
  14. [131]
    In respect of the Respondent’s contention that the Applicant ought to advise people not to call him Pastor and that a failure to do so was dissembling, the Tribunal does not find any such nefarious purpose. Any misunderstanding lies with the speaker not the Applicant. The public correction of a person for showing respect incorrectly is not in accordance with societal norms of behaviour and is an unreasonable expectation and imputation of fault.
  15. [132]
    This aspect is within the scope of the Church’s control and is a relatively petty matter in the context of the many serious allegations against the Applicant. The raising of this concern undermines the weight of the real concerns expressed by the complainants to the Respondent. The Tribunal accords negligible weight to this concern for this reason.
  16. [133]
    The Applicant was generally an impressive witness and advocate for himself. His supporting witnesses impressed me as honest adding additional detail to the Applicant’s professional history. They were generally unaware of the detail of the investigations and complaints against him diminishing the weight of their evidence to some extent but not completely.  Generally, I accept the evidence of the Applicant and his witnesses.
  17. [134]
    I am satisfied that the Applicant has sought support and now has a more extensive support network around him
  18. [135]
    He has sought pastoral care through his church. He has complied with the restrictions placed upon him.  He has regular involvement in his church community and is valued by them. He has close friends, such as SA, who has observed his improvement and experienced a greater depth of friendship with him.
  19. [136]
    He has become familiar with and adept at accessing the support which is available. In determining that this is not an exceptional case, the Tribunal considers the section 226 of the WWC Act and other matters as identified in this decision. The Tribunal considers its decision from the perspective that the welfare and best interests of children is paramount.
  20. [137]
    The Applicant has a desire to continue to engage with the psychologist, but that does not mean that he is ineligible to engage in child-related regulated employment.
  21. [138]
    The Applicant was issued with a positive notice under the corresponding legislation in other States. He is entitled to work with children in New South Wales and Victoria.
  22. [139]
    The Tribunal accepts the Respondent’s submissions regarding the appropriate test it must apply in this case. That is, to focus on the best interests of children. This is not a case which involves imposing punishment upon the Applicant, nor is it a case where the Tribunal considers that any detriment to the Applicant as relevant.  The Tribunal is concerned about the risk to children if the Applicant has a blue card. The Tribunal must produce the correct and preferable decision in this review. The standard of proof required is that the Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party.
  23. [140]
    The totality of evidence in this case does not lead to a conclusion that the circumstances raise the possibility of risk to children such that it would not be in the best interests of children for the Applicant to be issued with a positive notice.
  24. [141]
    The Applicant now does have the ability to identify risk and act accordingly. The Tribunal arrives at its decision that his is not an exceptional case because the Applicant has gained considerable insight into his previous behaviours, primarily resulting from having engaged in sessions with the registered clinical psychologist and considerable time spent in refection.
  25. [142]
    The Tribunal makes the following findings that the Applicant has developed insight into the issues for which he has been accused and has expressed genuine remorse for any harm he has caused. He has adopted a range of strategies to reduce stress and regulate his emotions having changed his life and established a support network of close family and friends and colleagues. Allegations concerning his treatment of other adults in the employment context are considered marginally relevant to this review and so have been given limited weight. The role of the Tribunal is not to adjudicate on the outcomes of other investigations but to test their relevance to this review and whether based upon all available information it is unsafe for the Applicant to receive his BlueCard.
  26. [143]
    Weighing all of these matters, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that GV’s case, is not an exceptional case in which the best interests of children would be harmed if a positive notice was issued.

Human Rights Act

  1. [144]
    The Tribunal is obliged to interpret relevant legislation in a way that that is compatible with human rights.[38]
  2. [145]
    If the Tribunal makes a decision that is not compatible with human rights which are enunciated in the Act,[39] then the Tribunal must demonstrate that it has considered the issues outlined in section 13(2) to the Act.[40]
  3. [146]
    The human rights of the Applicant are to be balanced with the human rights of children. The child’s rights are referred to in section 26(2) of the Act.[41]
  4. [147]
    The focus in section 26(2) is on the child’s interests because they are a child. Children are a more vulnerable section of the community. Taken with section 6 of the WWC Act the rights of the child remain the paramount consideration and must outweigh any limitation on the human rights of the Applicant such as a right to obtain certain employment or an entitlement to a particular education. 
  5. [148]
    The Tribunal has turned it mind to these rights which may be abrogated in a decision to deny the Applicant a blue card. The Tribunal finds that the balance is in favour of the rights of the child because of the paramount principle and the Human Rights Act and the fact that the finding must be in favour of the human rights of the child over the adult Applicant’s right to work in chosen employment or to engage in certain educational pursuits.  
  6. [149]
    In this instance, the decision of the Tribunal is that this case is not exceptional and has made orders to reflect this. The result for the Applicant is that any right he may have is not abrogated by the making of the decision that this is not an exceptional case.

Footnotes

[1]Part 4 Division 9 of the WWC Act.

[2]Queensland Civil and Administrative Tribunal Act 2009, s 20 (2).

[3]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

[4]Ibid s 6 (a)

[5]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28].

[6]QCAT Act section 28(3)(b).

[7]Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).

[8]DL v Director-General, Department of Justice and Attorney General [2021] QCAT 61 at 53.

[9]DEF v Director General, Department of Justice and Attorney General [2021] 27.

[10]Final Investigation Report AIS 29 May 2012 page 7.

[11]FBN v Director General, Department of Justice and Attorney-General [2021] QCATA 112.

[12]CA v Director-General, Department of justice and Attorney General [2022] QCAT 305.

[13]GEE v Director-General, Department of justice and Attorney General [2022] QCAT 260.

[14]Director General, Department of Justice and Attorney-General v PML [2021] QCATA 51.

[15]Commissioner for Children and Young People and Child Guardian v Lister (no 2) [2010] QCATA 87.

[16]Re TAA [2006] QCST 11, [97].

[17]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[18]Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).

[19]Commissioner for Children and Young people and Child Guardian v Ram [2014] QCATA 24.

[20]Storch v Director General, Department of Justice and Attorney-General [2020] QCAT 152.

[21]Ibid.

[22]Commissioner for Young people and Child Guardian v Lister (No 2) [2010] QCATA 74.

[23]Director-General, Department of Justice and Attorney General v PML [2021] QCATA 40.

[24]Statement of Applicant to allegations “School to become unviable within 6 months of my arrival” July 2020.

[25]Highett report 23 November 2015 page 3.

[26]Highett report page 3.

[27]Applicant Submission 23 November 2021.

[28]Statement of V.

[29]Integroe report page.

[30]Applicant’s submission Page 4 (iii).

[31]Applicant’s submission Page 8 (iv).

[32]Applicant’s submission Page 6 (vii).

[33]Submission of Applicant page 10.

[34]Storch.

[35]Applicant response to allegation 4 pages 123-124.

[36]Ombudsman report.

[37]McGill Unreported Decision.

[38]Human Rights Act 2019 (Qld) ('HR Act’), s 48.

[39]Ibid.

[40]Ibid.

[41]Ibid.

Close

Editorial Notes

  • Published Case Name:

    GV v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    GV v Director General, Department of Justice and Attorney General

  • MNC:

    [2023] QCAT 30

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    24 Jan 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305
2 citations
Jump To
Cite 1 - [2022] QCAT 305
Cite 2 - [2022] QCAT 305
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
1 citation
Jump To
Cite 1 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (no 2) [2010] QCATA 74
2 citations
Jump To
Cite 1 - [2010] QCATA 74
Cite 2 - [2010] QCATA 74
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
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
1 citation
Jump To
Cite 1 - [2014] QCATA 27
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
1 citation
Jump To
Cite 1 - [2015] QCAT 219
DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127
1 citation
Jump To
Cite 1 - [2022] QCAT 127
Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51
2 citations
Jump To
Cite 1 - [2021] QCATA 51
Cite 2 - [2021] QCATA 51
DL v Director-General, Department of Justice and Attorney General [2021] QCAT 61
2 citations
Jump To
Cite 1 - [2021] QCAT 61
Cite 2 - [2021] QCAT 61
FBN v Director-General, Department of Justice and Attorney-General [2021] QCATA 112
2 citations
Jump To
Cite 1 - [2021] QCATA 112
Cite 2 - [2021] QCATA 112
GEE v Director-General, Department of Justice and Attorney-General [2022] QCAT 260
2 citations
Jump To
Cite 1 - [2022] QCAT 260
Cite 2 - [2022] QCAT 260
Gray v Nish [2014] QCATA 24
1 citation
Jump To
Cite 1 - [2014] QCATA 24
Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87
1 citation
Jump To
Cite 1 - [2010] QCATA 87
NBN Co Limited v Information Commissioner [2021] QCATA 40
1 citation
Jump To
Cite 1 - [2021] QCATA 40
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152
2 citations
Jump To
Cite 1 - [2020] QCAT 152
Cite 2 - [2020] QCAT 152
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
1 citation
Jump To
Cite 1 - [2010] QCAT 243

Cases Citing

Case NameFull CitationFrequency
Director-General, Department of Justice and Attorney-General v GV [2024] QCATA 31 citation
1

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