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GSC v Director General Department of Justice and Attorney-General[2023] QCAT 447

GSC v Director General Department of Justice and Attorney-General[2023] QCAT 447

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GSC v Director General Department of Justice and Attorney-General [2023] QCAT 447

PARTIES:

GSC

(applicant)

v

Director General, department of Justice and attorney general

(respondent)

APPLICATION NO/S:

CML125-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

21 November 2023

HEARING DATE:

2 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney General that GSC’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
    1. the contents of a document or thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal; and
    3. information that may enable GSC or Jane to be identified.

is prohibited.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks review of decision to issue a negative notice following allegations of inappropriate conduct – where alleged inappropriate  conduct does not amount to criminal charges – where the applicant denies the inappropriate conduct – where Tribunal found the evidence supporting the allegations lacked probative force – where the Tribunal concluded an exceptional case did not arise

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226, s 228

Cabal v United Mexican States (2001) 180 ALR 593

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 30

Commission for Children and Young People and Child Guardian v FGC

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

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

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

Kent v Wilson [2000] VSC 98

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

C Davis, Legal Officer

REASONS FOR DECISION

  1. [1]
    GSC applies to the Tribunal to review a decision of the Director-General, Department of Justice and Attorney General (‘DJAG’) to issue him with a negative notice following his application for a working with children check (‘blue card’).

Background

  1. [2]
    On 24 June 2020, GSC applied to DJAG for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’).
  2. [3]
    Section 221 of the WWC Act required DJAG to issue GSC with a blue card, unless it was aware of ‘relevant information’ about GSC and was satisfied it is an ‘exceptional case’ in which it would not be in the best interests of children to issue GSC with a blue card.
  3. [4]
    On 18 March 2022, DJAG issued GSC with a negative notice after deciding that it had ‘relevant information’ about GSC and an ‘exceptional case’ existed.
  4. [5]
    The relevant information DJAG relied on to make its decision comprised of:
    1. Allegations that GSC acted inappropriately towards a 14-year-old female altar server (to whom I have assigned the pseudonym ‘Jane’) when he was a 24-year-old Seminarian; and
    2. GSC’s traffic history, obtained from the Queensland Police Service, which revealed:
  1. on 1 June 2007, GSC was fined $175 for the offence of not having proper control of his (motor) vehicle’ (on 06/05/2007).
  2. on 11 February 2013, GSC was fined $146 for ‘Exceeding the speed limit in a speed zone by less than 13km/hour (on 15/01/2013).
  3. on 14 November 2016, GSC was fined $243 for ‘Exceeding the 100km/hour default speed limit by at least 13km/hour but not more than 20km/hour (on 02/11/2016).
  1. [6]
    DJAG particularises GSC’s inappropriate conduct towards Jane as follows:
    1. he made inappropriate sexual remarks and gestures to Jane at an altar service, which made her feel uncomfortable.
    2. he touched Jane around her waist.
    3. his behaviour escalated towards unwanted touching on the shoulder, back and front.
    4. he initiated inappropriate conversations with Jane, including on one occasion telling her that she could undress in front of him.
    5. on another occasion, Jane was rostered to serve at the Cathedral. When she arrived, GSC advised her that that the other girls had cancelled. Jane was uneasy because of her previous encounters with GSC and did not want to be left alone with him.
    6. GSC’s conduct was referred to the Queensland Police Service.
  2. [7]
    Later, DJAG became aware that GSC was one of a group of seminarians who visited a school on 20 and 21 July 2017 as part of a formation program in youth ministry (‘school visit’).  DJAG relies on GSC’s conduct during that visit as a further basis for asserting an exceptional case exists. DJAG alleges:[1]
    1. the program involved approximately 100 students between grades 5 to 12.
    2. Jane’s younger sister was a student at the school.
    3. following the visit, the school published a photograph of the visiting seminarians, including GSC, in in its weekly newsletter which it emailed to the parents.
    4. Jane’s mother received the newsletter, recognised GSC, and advised the school about his previous interactions with Jane.
    5. during the visit, GSC gave at least two personal business cards to two female teachers containing his private Hotmail e-mail address rather than an Archdiocesan or work email address. He also sent a teacher an email stated that he was happy to “receive any burning questions that the girls didn’t get responses to”. GSC’s conduct was outside the protocols of the visit.
    6. the school formed a reasonable belief, through conversations with teachers, that GSC was aware Jane’s sibling attended the school.
  3. [8]
    It is apposite to note that the QPS investigated GSC’s conduct towards Jane but did not charge him with any criminal offences.  Nevertheless, the alleged conduct is relevant to deciding whether an exceptional case exits because, under s 228(1)(b)(iv) of the WWC Act, it is ‘other information’ about GSC that DJAG reasonably believes is relevant to deciding whether it would be in the best interest of children for DJAG to issue a blue card’.

Primary Issue

  1. [9]
    The decision the Tribunal must make in this review is, whether upon becoming aware that relevant information exists,[2] it is satisfied that it is an ‘exceptional case’ in which it would not be in the best interests of children to issue a blue card to GSC[3].  If the Tribunal is satisfied an exceptional case exits, it must confirm DJAG’s decision to issue GSC with a negative notice.

Relevant Law

  1. [10]
    The purpose of the Tribunal review is to produce the ‘correct and preferable decision’.[4] For the review, the Tribunal stands in the shoes of the decision maker and makes its decision by way of a ‘fresh hearing on the merits’.[5] The review of a child related employment decision is to be undertaken under the principle that the ‘welfare best interests of a child are paramount’.[6] This is the consideration ‘to which all others yield’.[7]
  2. [11]
    The term ‘exceptional case’ in not defined in the WWC Act. The following principles are relevant to considering what is an ‘exceptional case’:
    1. it is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[8]
    2. in order to conclude it is an exceptional case there must be factors that are unusual and extraordinary.[9]
    3. it would be most unwise to lay down any general rule with regard to what is an exceptional case….all these matters are matters of discretion.[10]
    4. correctly stated, the discretion to be exercised by the Tribunal, on review, is unfettered by any general rule in considering the relevant factors to determine whether in all the circumstances it is in the best interests of children for a positive notice to be issued.[11]
    5. it is not possible to state with precision the circumstances that might render a case exceptional. In order to conclude it is an exceptional case there must be factors that are unusual and exceptional.[12]
    6. what constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[13]
    7. neither party bears an onus in determining whether an exceptional case exits.[14]
  3. [12]
    The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. Concerning that standard, in the Commissioner for Children and Young People and Child Guardian v Maher & Anor[15], the Queensland Court of Appeal relevantly stated, at [30]:

…the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.

Section 226 of the WWC Act

  1. [13]
    The Tribunal is aware that GSC was charged with traffic offences, therefore under s 226 of the WWC, I must have regard to the following, (in respect of the offences) when deciding if an exceptional case exists:
    1. whether it is a conviction or charge; and
    2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
    3. when the offence was committed; and
    4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children.

Section 228 of the WWC Act

  1. [14]
    Section 228 of the WWC Act requires that I must have regard to the following when deciding whether there is an exceptional case, if other relevant information exists:
    1. the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information.
    2. the length of time that has passed since the event or conduct the subject of the information occurred.
    3. the relevance of the information to employment, or carrying on a business, that involves or may involve children.
    4. anything else relating to the information the chief executive reasonably believes is relevant to the assessment of the person.
  2. [15]
    Previously, this Tribunal has found that its role is not to make findings about whether the allegations against the Applicant are substantiated. Rather, it has been held that the Tribunal’s findings are limited to a narrower proposition, namely that allegations of the nature made against the applicant are capable of raising the possibility of future risk to children.[16] 
  3. [16]
    Logic dictates that the process of determining risk necessarily requires an assessment about whether the conduct which is said to give rise to the purported risk is more likely to have occurred, than not. To put it another way, it is impossible to make meaningful findings about future risk without first deciding whether, after applying the balance of probabilities standard, the conduct that is contended to give rise to the risk, occurred. A detailed consideration of Jane’s allegations, and GSC’s responses to them, is therefore required.

Jane’s direct allegations against GSC 

  1. [17]
    Jane first raised allegations against GSC on 8 April 2013 in a meeting attended by her mother, father, and members of the Church Professional Standards group. Notes from that meeting indicate that Jane alleged the following:
    1. there was practice for servers at 12.30pm on 7 December 2012. Prior the practice GSC was very talkative about his vocation and his displeasure about his placement. Jane was puzzled as to why GSC would be saying such things to her. She was not interested, and she was the only female server at the rehearsal.
    2. GSC touched Jane on the back which she didn’t appreciate.
    3. later, GSC squeezed Jane on the shoulder.
    4. whilst she was speaking to someone GSC came and stood behind her. GSC wanted to talk but she didn’t want to get into a conversation with him, so she stood alone.
    5. GSC was awkward and red faced when she declined his invitation to sit with the boys.
    6. the next day at the ordination GSC ‘smiled at her’. She pushed past him.
    7. Jane was told to go and light the candles. As she was doing so GSC walked past and squeezed her hips.
    8. after mass on the way out, another seminarian was ready to take the candle, but GSC jumped in and took it. She had to take the candle downstairs with GSC but didn’t want to be with him. She put the candle downstairs and ran upstairs. GSC suggested changing downstairs.
  2. [18]
    Jane provided a more detailed account of GSC’s conduct in two documents provided to the Tribunal by the Australian Catholic Centre for Professional Standards. The documents are titled:
    1. Jane’s Recounts of Events; and
    2. Statement of Jane.
  3. [19]
    In the document tiled ‘Recounts of Events’, which is undated, Jane alleges:
    1. on 6 December 2012, she arrived at the Cathedral for ordination rehearsal.
    2. GSC approached her and said something along the lines of “you’re early”. Jane explained that she had caught the train and jokingly mentioned that she was a little early because she didn’t have a good sense of direction. GSC replied by telling Jane that he had also planned on catching the train but had just missed it so had to find some other form of transport.
    3. GSC spoke to Jane about several other things including: his advent placement, ‘how difficult his vocation was’, and a party he was arranging at the seminary and high school.
    4. initially, Jane thought GSC was trying to be friendly, but started to feel uncomfortable and ‘in her head’ recognised the conversation that he was having with her was ‘odd’ considering she had never spoken to him beyond a ‘good morning’, ‘hi’ or ‘hello’.
    5. GSC continued talking to her, so she began texting friends as a subtle way of communicating that she wasn’t interested in the conversation. GSC didn’t get the message.
    6. Jane was getting a little anxious and was relieved when another seminarian turned up.
    7. when Jane entered the Cathedral, she realised that the other servers were not attending, she was the only female at the rehearsal and only person who not clergy or a seminarian.
    8. Jane was the last person into the Cathedral, so was ‘kind of squished in’ and was close to GSC.  Those things made her feel uncomfortable.
    9. when a priest told Jane that he had not previously met her, GSC ‘jumped in’ to try and introduce her. That annoyed Jane because ‘it was as if GSC thought he knew her best and sort of had the responsibility’.
    10. at one point during ordination practice, GSC approached her, made a comment which she did not hear and squeezed her on the shoulder. She remembers that his hand was ‘warm and sticky’, which ‘creeped her out’. Another priest ‘saw what was happening’ and ‘said nothing’.
    11. at another point in the rehearsal, she waked to the other side of the sanctuary to talk to the Dean of the Cathedral. During that conversation she turned around to find that GSC had followed her and was standing behind her smiling. The way GSC was smiling made her ‘feel really uneasy’. It was at this point that ‘her alarm bells starting ringing’ because not only was GSC talking to her and touching her ‘uncomfortably’, but he was ‘following’ her.
    12. Jane went and sat on a seat behind the Cathedra. GSC followed her without speaking to the Dean.
    13. Jane sat behind the Cathedra and ‘reflected on what was happening’. She ‘completely zoned out’. Jane didn’t realise GSC was calling her. Jane was annoyed because she ‘hated her name being shortened’.
    14. Jane ‘didn’t want to make a scene’ so she waked over to the other seminarians. GSC brought her a chair. He sat down on the floor and crossed he legs, which Jane thought ‘made him look very immature’. Whilst she was annoyed with GSC, she felt comforted by the presence of other seminarians.
    15. however, when the conversation turned to the men’s advent placement GSC began talking Jane out his placement and how the parish priest wanted him to write a reflection for a mass/liturgy. GSC asked Jane ‘what do you think I should write about, she replied ‘in a stern voice’, ‘I don’t care I’m not a priest’, to which GSC replied ‘Oh, well neither am I’.
    16. later, GSC and Jane had a conversation about soccer and rowing.
    17. after the rehearsal ended, Jane called her mother and told her that she needed to talk to her as soon as she got home and that ‘something had happened’ that she wasn’t ‘comfortable about’.
    18. she spoke to her mother about what happened at the rehearsal and how uncomfortable and upset she was. She was also scared about seeing GSC the next day and ‘what he might do’. Her mother was ‘really angry and concerned about GSC’s behaviour’ and expressed the intention to talk to Father (name redacted).
    19. the next day, on the night of the ordination, Jane’s mother drove her to the Cathedral.
    20. Jane noticed that GSC and another seminarian were standing in the doorway talking to someone. GSC looked over his shoulder and saw her. He turned his body around completely to face Jane and smiled at her. Jane did not return his smile. Jane waked straight past GSC and went downstairs to get changed. Jane was ‘really irritated’ by the fact that GSC was not ‘getting her signals’. She was also scared because he was ‘showing her attention’.
    21. downstairs she put her robe and cincture on. She decided to avoid GSC for the remainder of the service.
    22. Jane attempted to light the gospel candles in preparation for the mass commencing. As she raised her hands to light the candles GSC entered the sacristy, grabbed her and ‘squeezed her above the hips’ as he walked past. Jane turned to confront GSC but he had moved on.
    23. during the remainder of the mass she observed GSC ‘out of the corner of her eye’. She could see that GSC was trying to make eye contact with her, but she ignored him.
    24. after mass Jane attempted to take a candle from a seminarian in the congregation but GSC ‘snatched’ it out of their hands so that he could return the candle with Jane. By this point Jane was both scared and furious. She had enough of his ‘games’.
    25. Jane and GSC walked down a set of stairs together. Jane decided that being downstairs in a dim room with GSC wasn’t the safest idea, so she turned around to go back upstairs. At this point GSC said “why are you going back upstairs? Why don’t you just get changed back down here?” Jane ran back up the stairs. She doesn’t remember anything that happened at the Cathedral beyond that point because she was so ‘shaken’.
  4. [20]
    The allegations in Jane’s statement mirror those she raises in the ‘recounts of events’ document, namely that on 6 and 7 December 2012, GSC:
    1. put his hand on her shoulder.
    2. when she was talking to one of the priests on the other side of the sanctuary GSC followed her, stood close to her and grinned.
    3. when she reached up to light gospel candles GSC squeezed her around the waist.
    4. GSC followed Jane to the downstairs area of the Cathedral and said, “Where are you going…why don’t you stay down here and get changed”.
  5. [21]
    In her statement Jane refers to GSC as a ‘perpetrator’ and raises a further allegation that GSC spoke to her at an ordination rehearsal in June 2014. That interaction, she alleges, occurred after she had complained to the church Jane out GSC’s earlier behaviour. Jane’s statement contains limited detail about her interaction with GSC in 2014. However, Jane’s mother provided her own statement to the Australian Catholic Centre for Professional Standards, in which she claims Jane told her the following:
    1. on 26 June 2014, Jane attended decided that she wanted to serve at the ordination of two priests and attended an ordination rehearsal.
    2. shortly after Jane arrived at rehearsal the rehearsal GSC turned up to serve. Jane was furious and scared because she was not expecting to see GSC.
    3. nevertheless, Jane decided to act normally as if nothing had happened because she did not want to make a scene. Jane recalls engaging in a short conversation with GSC which she remembers to be appropriate except when GSC raised that two of his sisters were able to marry in the Cathedral because they were ‘gay’ and were therefore ‘not married under Canon Law’ (‘inappropriate conversation’). Jane thought GSC’s statements were very personal and inappropriate given the circumstances.

DJAG’s written submissions

  1. [22]
    DJAG contends that GSC’s behaviour towards Jane in 2012, 2014, the school visit in 2017 and his unmanaged mental health concerns constitute ‘relevant information’. Further DJAG submits that an exceptional case exits, because:
    1. GSC’s behaviour was repetitious.[17]
    2. in his capacity as a seminarian, which is a position of trust and authority, GSC did not maintain appropriate boundaries with children, exercise good judgement or prioritise the safety and wellbeing of children around him.[18]
    3. whilst GSC’s behaviour did not amount to criminal conduct it was inappropriate, overstepped boundaries and caused the complaint child distress and discomfort.
    4. GSC was 9 years older the Jane. Accordingly, because of that age gap, the balance of power was in the GSC’s favour. He should have been more cautious and aware of how his position and age may have intimidated Jane.[19]
    5. What follows from GSC’s alleged behaviours is that he may not have the necessary skills and ability to work with children and young people, including an ability to:[20]
  1. exercise restraint, self-control, and sound judgement.
  2. regulate emotions and control impulses.
  3. assess and respond to another person’s behaviour.
  4. protect children from harm.
  5. learn from past failings and change behaviour accordingly.
  1. concerning the 2017 school visit, GSC’s decision to hand out his personal business cards outside of protocol, and his failure to ensure that he held a current, valid blue card, compounds the concerns arising from his behaviour in 2012, 2014 and 2017.
  2. GSC’s alleged concerning behaviours are a potential predicator of his future behaviours.
  3. GSC’s behaviour may reflect grooming behaviours[21] and his email to the girls to contact him if they wish was “in the same category as we have seen in grooming behaviours”.[22]
  1. [23]
    concerning, GSC’s traffic history, DJAG submitted that whilst it was not a primary concern, the history contributes to the concerns about whether GSC can respect the law, rules, and boundaries and is an appropriate person to are for the wellbeing of children and young people in activities regulated by the WWC Act.[23]

GSC’s response to the allegations

  1. [24]
    In a written submission to DJAG dated 8 October 2020, GSC responded to Jane’s allegations as follows:
    1. Jane’s allegations about unwanted touching and sexual comments are untrue.
    2. since Jane raised her allegations, he has been issued with:
  1. A Queensland Blue Card in August 2017;
  2. A Western Australian Working with Children Check in 2018;
  3. A National Police Check in 2018 (for employment purposes);
  4. A National Police Check in 2019 (for employment purposes).
  1. [25]
    He has been a member of a non-profit youth organisation (The Australian Air League) since 1998. He retired as a volunteer in 2017. He volunteered as a school rowing coach from 2007 until 2011 and had causal employment in at the same school in 2008. At no time during his time at either of the above organisations was there any indications that any person was uncomfortable with his presence or actions.
  2. [26]
    He spent six years as a seminarian from 2012 to 2017. Of the thousands of families with whom he interacted, only Jane complained about him.
  3. [27]
    Concerning Jane’s disclosures about unwanted touching, he acknowledges an occasion where he ‘extended an arm towards Jane’s back to prevent a collision and the spillage of sacramental wine, but otherwise denies her allegations. He resolutely denies that he held Jane around the waist.
  4. [28]
    Concerning the allegation that he attempted to induce Jane to go downstairs and get changed by herself, he has no recollection of the incident.
  5. [29]
    GSC cannot recall engaging in inappropriate conversations with Jane about whether he wanted to be a priest. GSC submits that such a conversation would not be inappropriate because ‘there is no expectation that all men who enter the seminary will progress to Holy Orders’ and ‘it is not only normal, but perfectly healthy, to have doubts while studying at the seminary’.
  6. [30]
    GSC states that in June 2014 he attended a rehearsal for an ordination that was to take place at the Cathedral the following day. He was desirous of avoiding interaction with Jane because of the allegation she made against him in 2012. He expressed concerns about altering serving in case Jane might be present but was told to ‘serve anyway’. He was instructed to avoid Jane if she was present and he ‘did everything he could’ obey that instruction.
  7. [31]
    During the rehearsal, GSC had a conversation with two adults during which the chapel at Jane’s school emerged as a topic. GSC mentioned that although two of his sisters had attended the school, they would not be getting married there due to their sexual orientation. Partway through the conversation Jane joined the group. GSC believes Jane may have overheard his comment about his sisters’ sexual orientation. In a later written submission to the Tribunal GSC notes that Jane was ‘neither the intended audience, nor invited to participate in the conversation, nor in the vicinity when the conversation started’.[24]
  8. [32]
    GSC denied the allegation that he told Jane to undress in front of him. He submitted that donning vestments does not require undressing and, in his experience, are worn over the top of street clothes.
  9. [33]
    In 2012, GSC underwent sessions of psychotherapy, as is required in seminary training. Those sessions were extended to include the events surrounding Jane’s complaint to the Church.
  10. [34]
    Concerning DJAG’s concerns about his ADHA and ASD (autism spectrum disorder) diagnosis, GSC submitted that he has never been diagnosed with a mental disorder. After Jane’s complaint, GSC attended sessions with an educational and developmental psychologist seeking assessments for attention deficit because he found that his attention span and knowledge retention diminishing and hoped that a diagnosis would explain why. The psychologist assessed that GSC displayed too few indicators of either ADD/ADHD or ASD to warrant the process of attaining a formal diagnosis.
  11. [35]
    Years later, GSC underwent a vocational psychological assessment, where the facilitator hypothesised that he probably had ASD but declined to provide a diagnosis. GSC was referred to a psychiatrist who disputed the need for a diagnosis, instead focusing on relieving situational stress factors exacerbated by Jane’s allegations.
  12. [36]
    After returning to Brisbane in 2020, GSC recommenced psychotherapy to address elevated depression, anxiety, and stress.
  13. [37]
    GSC made the following oral submissions to a Blue Card Services officer during an interview on 6 August 2020. Those submissions mirrored those he made to DJAG. Notably, GSC did not remember touching Jane on her hips, however he recalled carrying wine glasses and putting his hand out to warn Jane that he was behind her. GSC posited that Jane may have interpreted that motion as grabbing her hips.
  14. [38]
    Additionally, concerning the school visitation incident in 2017, GSC stated:
    1. he admitted visiting the school that Jane previously attended, and Jane’s sister currently attended. 
    2. his blue card was being processed and there were three people who held blue cards with him at all times, as well as registered teachers.
    3. the goal was to understand the students about the out the church’s future direction and same sex marriage (SSM) which was an issue of public debate at the time.
    4. in every classroom they attended the children wanted to discuss SSM.
    5. because of his experience which his sister who was homosexual, he answered most of the questions relating to SSM.
    6. at no stage was he alone with children or young people without a blue card.
  15. [39]
    Additionally, GSC responded to Jane’s allegations in a statement dated 17 October 2022 and in written submissions dated 20 March 2023. In those documents, GSC repeated his denials that he acted inappropriately towards Jane.

The oral hearing

  1. [40]
    The review proceeded to oral hearing on 2 June 2023. GSC gave evidence under oath. Consistently, with the position expressed in his written submissions, GSC denied Jane’s allegations.
  2. [41]
    GSC presented as a credible and honest witness. He gave a detailed account about his time as a seminarian and his various interactions with Jane.
  3. [42]
    Although, GSC denied acting inappropriately towards Jane, he made appropriate concessions about other deleterious matters when crossed examined by DJAG’s representative at the hearing. I did not get the impression that GSC sought to minimise matters of an adverse nature that were put to him. For example, GSC readily admitted that concerns were raised about him having a ‘saviour complex’, his autistic tendencies, and that other seminarians complained about his tendency to avoid social interaction.
  4. [43]
    Jane did not give evidence at the Tribunal hearing.
  5. [44]
    DJAG did not call any witnesses to corroborate Jane’s allegations.

Consideration

  1. [45]
    I am not satisfied, on the evidence before me, that GSC acted inappropriately towards Jane. Whilst the Tribunal is not bound by the rules of evidence[25] and may inform itself in any way it considers appropriate,[26]  my decision about whether an exceptional case exists must be based on material which tends to logically show the existence or nonexistence of facts relevant to the issue to be determined.[27] I consider Jane’s allegations to be of limited probative value because:
    1. the allegations are contained in unsworn statements.
    2. they are uncorroborated.
    3. they are hearsay.
    4. their veracity could not be tested because DJAG did not produce Jane for cross examination.
  2. [46]
    Where GSC’s evidence conflicts with Jane’s allegations, I prefer his evidence, because:
    1. at the hearing GSC gave evidence under oath.
    2. GSC’s evidence was uncontradicted.
    3. I had the opportunity to observe GSC’s demeanour when he gave evidence.
    4. GSC’s denials that he did not inappropriately deal with Jane were credible.
    5. GSC provided convincing explanations for why Jane may have misinterpreted or misconstrued his conduct.
    6. I did not consider GSC’s evidence at the hearing to be meaningfully weakened by cross examination.
  3. [47]
    My impression is that Jane formed an early unjustified dislike of GSC, which may have tainted her perceptions about him, and caused her to interpret his innocent behaviour in a sinister way.  For example, when GSC first approached Jane, she was ‘puzzled and ‘not interested’ in talking about his vocation. She was ‘annoyed’ when GSC shortened her name. She considered that sitting on the floor made GSC look ‘very immature’.
  4. [48]
    It seems to me that Jane, in her statements, attempted to portray GSC in a negative light. Much of what Jane purports to be inappropriate conduct, is in my view perfectly innocent behaviour. Jane refers to GSC smiling at her, making eye contact, showing her attention, and engaging in conversations. There is nothing sinister about that behaviour. To the contrary, such behaviour by a seminarian towards a junior parishioner is kindly and laudable.
  5. [49]
    I accept GSC’s supposition that Jane may have mistakenly interpreted GSC putting his hand out as a warning, whilst carrying a wine glass, as touching her on the hips.
  6. [50]
    Concerning the school incident, in my view:
    1. it was not reasonable to expect that GSC ought to have known that Jane’s sister attended the school.
    2. the purported ‘conversations’ with teachers that caused the school to form the view that GSC knew Jane’s sister attended the school, have not been produced to the Tribunal and therefore have limited probative value.
    3. there is no evidence that GSC handing his personal business card to teachers was, as DJAG contends, outside the protocols of the school visits. I accept GSC’s evidence that seminarians did not have official church e-mail accounts. I consider it relevant that GSC did not intend to communicate directly with children, but rather to answer any outstanding questions through their teachers. In those circumstances, I do not consider GSC’s conduct to be inappropriate.
  7. [51]
    I am not satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that the ‘other information’ under s 228 of the WWC Act, occurred. Accordingly, I do not consider there is an exceptional case, in which it would harm the best interests of children for DJAG to issue GSC with a blue card.
  8. [52]
    If I am incorrect in my findings that GSC’s inappropriate conduct most likely did not occur, my conviction that no exceptional case exits would not change. Many years have passed since the alleged conduct. Since that time, GSC has not acted inappropriately. I accept GSC submissions that he has benefited from additional years of formation at the seminary, five years of post-seminary workforce experience and social development, two years of counselling and psychology study and continuing development with a psychologist.[28] Finally, whilst the alleged conduct is relevant to employment, or carrying on a business that involves or may involve children, I do not consider that it rises to a level of gravity that would sustain an exceptional case finding by this Tribunal.

GSC’s traffic offences

  1. [53]
    I have applied s 226(2) of the WWC Act to GSC’s traffic charges. He was charged with three traffic offences. Those offences were not serious offences, nor were they disqualifying offences. The offences were committed in 2007, 2013 and 2016, respectively. GSC voluntarily disclosed traffic infringements committed in Western Australia in 2018 and 2019. The details of those infringements are unknown.
  2. [54]
    DJAG submits that GSC’s traffic history, when considered together with the other ‘relevant information’ before the Tribunal, contributes to concerns about whether he can respect the law, rules and boundaries and is an appropriate person to care for the wellbeing of children in activities regulated by the WWC Act. I reject that submission.  I consider GSC’s traffic history has limited relevance to employment, or carrying on a business, that involves, or may involve children. There is nothing remarkable or concerning about GSC’s traffic history. Nearly seven years has passed since GSC committed his last Queensland traffic offence.  It is quite a stretch to suggest that minor traffic offences committed many years ago make GSC a risk to children, even when those offences are considered in conjunction with Jane’s allegations. I do not consider an exceptional case for GSC arises from his traffic history.
  3. [55]
    Having concluded that there is no exceptional case for GSC, I make the following orders, which include a non-publication order to protect GSC and Jane’s identity: 
    1. The decision of the Director-General, Department of Justice and Attorney General that GSC’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the Tribunal’s decision that there is no exceptional case.
    2. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
  1. the contents of a document or thing filed in or produced to the Tribunal;
  2. evidence given before the Tribunal; and
  3. information that may enable GSC or Jane to be identified.

is prohibited.

Footnotes

[1]  Respondent’s outline of submission, 17 March 2023.

[2]  WWC Act, s 221(2)(a).

[3]  Ibid,  s 221(2)(b).

[4] Working with Children (Risk Management and Screening) Act 2000, s 20(1).

[5] Queensland Civil and Administrative Tribunal Act (Qld), s 20.

[6]  WWC Act, s 360.

[7] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 [3].

[8] Commission for Children and Young People and Child Guardian v FGC [2001] QCATA 291, [31], citing Kent v Wilson [2000] VSC 98, [22].

[9] Cabal v United Mexican States (2001) 180 ALR 593 [33].

[10] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34].

[11] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303.

[12] Commissioner for Children and young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [14] (citing Cabal v United Mexican States (2001) 180 ALR 593 [33].

[13] DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127 (Cranwell M citing Re FAA [2006] QCST 15, [22].

[14] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[15]  [2004] QCA 492.

[16] DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 12, [33]-[35], applying Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, [58] and TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [89].

[17]  Ibid, p 16, para 61.

[18]  Ibid, p 6, para 62.

[19]  Ibid, p 16, para 63.

[20]  DJAG written submission, p 18, para 68.

[21]  DJAG written submission, p 18, para 69(d).

[22]  Ibid, p 19, para 69(d) (citing material from the Professional Standards Office).

[23]  DJAG written submissions, 17 March 2023, p 10, para 50.

[24]  Written Submission of the Applicant, 27 March 2023.

[25] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b).

[26]  Ibid, s 28(3)(c).

[27] R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488.

[28]  Written submission of the Applicant, 17.10.22.

Close

Editorial Notes

  • Published Case Name:

    GSC v Director General Department of Justice and Attorney-General

  • Shortened Case Name:

    GSC v Director General Department of Justice and Attorney-General

  • MNC:

    [2023] QCAT 447

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    21 Nov 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
Cabal v United Mexican States (2001) 180 ALR 593
3 citations
Jump To
Cite 1 - (2001) 180 ALR 593
Cite 2 - (2001) 180 ALR 593
Cite 3 - (2001) 180 ALR 593
Commission for Children and Young People and Child Guardian v FGC [2001] QCATA 291
1 citation
Jump To
Cite 1 - [2001] QCATA 291
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
1 citation
Jump To
Cite 1 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
4 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
1 citation
Jump To
Cite 1 - [2011] QCATA 28
Cook v Paterson [2013] QCATA 30
1 citation
Jump To
Cite 1 - [2013] QCATA 30
DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127
2 citations
Jump To
Cite 1 - [2022] QCAT 127
Cite 2 - [2022] QCAT 127
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Lee v Council of the City of Gold Coast [2022] QCAT 12
1 citation
Jump To
Cite 1 - [2022] QCAT 12
R v Deputy Industrial Injuries Commission; Ex parte Moore (1965) 1 QB 456
2 citations
Jump To
Cite 1 - (1965) 1 QB 456
Cite 2 - (1965) 1 QB 456
Re FAA [2006] QCST 15
1 citation
Jump To
Cite 1 - [2006] QCST 15
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
1 citation
Jump To
Cite 1 - [2015] QCAT 489
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
FZ v Director-General, Department of Justice and Attorney-General [2024] QCAT 3161 citation
GH v Director-General, Department of Justice and Attorney-General [2025] QCAT 861 citation
1

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