TNK v Director-General, Department of Justice
[2024] QCAT 589
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- TNK v Director-General, Department of Justice[2024] QCAT 589
- Add to List
TNK v Director-General, Department of Justice[2024] QCAT 589
TNK v Director-General, Department of Justice[2024] QCAT 589
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | TNK v Director-General, Department of Justice [2024] QCAT 589 |
PARTIES: | TNK (applicant) v Director-General, Department of Justice (Blue card Services) (respondent) |
APPLICATION NO/S: | CML313-23 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 24 December 2024 |
HEARING DATE: | 14 October 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Burson |
ORDERS: |
|
CATCHWORDS: | CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – BLUE CARD – application to review a negative notice – whether sufficient time since offending – risk factors – whether an exceptional case in which it would not be in the best interests of children for the applicant to be given a positive notice Working with Children (Risk Management and Screening) Act 2000 (Qld) Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 FBN v Director General, Department of Justice and Attorney General [2021] QCATA 112 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | O'Neill P, Advocacy Officer, Blue Card Screening Services |
REASONS FOR DECISION
- [1]TNK made application to this tribunal on 19 September 2023 to review the decision to issue him with a negative notice refusing his application for a Working With Children Check (‘Blue Card’). The decision was made by the then Acting Director of Blue Card Services, Department of Justice and Attorney-General on 31 August 2023.
Background
- [2]The matter has had a winding path to hearing, including an unsuccessful appeal by TNK against an interlocutory determination. I will not go through the lengthy history that this matter had leading to hearing.
- [3]TNK at the time of hearing was a 29 year old man. TNK is now a health professional and has received an equivalent working with children check in a number of other states. TNK advised the Tribunal that he required a Blue Card for continued training in his chosen professional field in this state.
- [4]TNK at the age of 22, committed an offence of ‘engage in indecent filming – person over 17 years minor’. No conviction was recorded and TNK received a Good Behaviour Bond of $500 to be of good behaviour for 12 months. The relevant facts for the Tribunal’s purposes were as follows:
On 3 April 2018 at about 4:00pm, police were called to attend the security office at a university campus in relation to a mobile phone that had been located by a student in the male toilets. The security (sic) advised police that the phone was located lodged in the ceiling of the male toilets directly above the male urinal, on ‘record’. As police continued gaining details from the security staff, the applicant attended the front counter of the security desk enquiring about a lost phone.
At 5:45pm police spoke with the applicant at the security desk who subsequently confirmed that the mobile phone was the one located in the ceiling of the male toilets. At about 6:15pm, police searched the applicant’s phone and located a saved video from 11:00am on 3 April 2018. The video captured the applicant placing his phone in the ceiling, directly above the urinal. The video clearly shows the applicant’s face as the phone is being placed in the ceiling.
A few minutes later, the video depicts a male student use the urinal. The video captures the male’s penis and him urinating. The applicant was placed under arrest. During an interview with police, the applicant stated he had a urine fetish, which is why he put the phone on record, above the male urinal at the university. The applicant understood that this was an offence and was sorry for his actions.[1]
- [5]TNK has not committed any further offences since this time. It is noted that there has been a seven year period since this offence.
- [6]The victim in this offending was an adult.
- [7]Blue Card Services issued a negative notice to TNK after assessing his eligibility.
- [8]TNK then applied to this Tribunal for a review of the negative notice.
The ‘Blue Card’ legislative framework
- [9]Employment screening for child related employment is under chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (‘the Act’). The object of the Act is to promote and protect the rights, interests and well being of children and young people by, in effect, screening persons engaged in employment or businesses that may involve working with children[2] and the development and implementation of risk management practices. It is protective legislation.
- [10]
- [11]The Act requires that a Blue Card must be issued by the Chief Executive unless they are satisfied that there is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[5]
What is meant by ‘exceptional case’?
- [12]What constitutes an exceptional case is eloquently outlined in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, an “exceptional case in this context is one that does not conform to the general rule”.
- [13]Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists. For the purposes of TNK’s matter consideration must be given to the following:
- Whether it is a conviction or charge;
- Whether it is a serious offence or disqualifying offence;
- When the offence was committed;
- The nature of the offence and its relevance to employment that may involve children; and
- In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
- [14]Consideration must also be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[6]
Applicant’s legislative assertions
- [15]TNK provided in his closing submissions extracts of debate from the Legal Affairs and Safety Committee’s public hearing within Queensland parliament relating to changes to the Act. This is irrelevant for the purposes of consideration of whether or not TNK’s matter constitutes an exceptional case in which it would not be in the best interests of children to have a blue card issued.
- [16]TNK urges the tribunal to consider the relevance of prior assessments undertaken in other states. TNK states,
…I provided the requested details to all states, and in the situation where further information was need for clarity, the other states followed due diligence in following up and requested these further details before making a final decision. In turn, I duly provided the further requested details. Either the Queensland system may not strike the right balance, or the other state systems may be too loose. …It is telling that Queensland has recently made amendments to the operation of the Blue Card Laws…[7]
- [17]The tribunal must consider the law as it currently is. The changes to the Act have yet to be proclaimed. The legislative changes are therefore not in effect and I must consider the current legislation.
- [18]I do not accept TNK’s position regarding the relevance of the assessment outcomes in other jurisdictions. As noted in the submissions of Blue Card Services[8] it is accepted that the Act is designed to prevent possible future harm to children in Queensland.
- [19]As outlined in section 6 of the Act the paramount principle in the Act, is the principle to which all others yield.[9]
Applicant’s evidence and submissions
- [20]TNK provided to the tribunal voluminous and comprehensive material, including the following:
- Application filed on 19 September 2023;
- Submissions received 5 December 2023;
- Decision letter and reasons – Blue Card Services;
- Previous clearance check outcomes (3 x states);
- Exemption order – interstate court;
- Psychological report of Ms P;
- Letter from current treating psychologist GW;
- Consent to discuss information Blue Card Services 2022;
- Letter from TNK to Ms P (Psychologist) received 8 February 2024;
- Applicant response to respondent submissions dated 24 March 2024;
- Applicant’s closing submissions received 4 November 2024;
- Questions of Law received 4 November 2024;
- [21]This list is not exhaustive and material attached to filed statements and professional references, emails and income statements has also been considered.
- [22]TNK gave evidence at the hearing and was cross-examined by the representative of Blue Card Services.
- [23]Psychologist Ms P gave evidence and was cross-examined.
Evidence relied upon by the Respondent
- [24]The evidence from the respondent is summarised as follows:
- Decision to issue a negative notice dated 31 August 2023 including statement of reasons;
- Respondent’s outline of submissions dated 20 March 2024;
- Respondent’s submissions and USB (including 4 x videos from interstate police) filed 20 May 2024;
- Respondent’s outline of submissions filed 19 September 2024;
- TM Psychological Services Notice to Produce Material including report;
- Respondent’s closing submissions filed on 29 October 2024.
- [25]The respondent’s representative also provided oral submissions to the tribunal.
Is this an exceptional case?
- [26]Section 226(2) of the Act lists the matters required to be considered when making a decision about whether or not the review of TNK’s matter is an exceptional case.
- [27]The analysis of whether a matter is an exceptional case is a two stage process. This is identified in FBN v Director General, Department of Justice and Attorney-General (‘FBN’):[10]
- [30]That analysis discloses a two stage process. In the first stage, the relevant facts and circumstances are found. The risk of future events which might be deleterious are identified. These are sometimes called the risk factors. And those circumstances which might reduce those risks are also identified. These are sometimes called the protective factors.
- [31]The second stage is to complete the task set by section 221(2); that is to decide, in the light of the findings in the first stage, and in the context of the objectives of the Act whether it was an exceptional case in which it would not be in the best interests of child for a positive notice to be issues. As said in CMH, this is largely an evaluative exercise rather than a fact-finding exercise, which does not lend itself to exact proof, and with involves a degree of speculation and assessment of risk.
Is there an offence or a charge?
- [28]TNK has one conviction (where no conviction was recorded) for the offence outlined in paragraph 4. This is a conviction for the purposes of the Act.
Is the offence a serious offence and if it is, whether it is a disqualifying offence
- [29]The offence that TNK was charged with is not a serious or disqualifying offence under the Act.
When the offence was committed or is alleged to have been committed
- [30]The offence was committed on the property of a university in public toilets, by placing a mobile phone in video record mode in the ceiling of the toilets.
The nature of the offence and its relevance to employment that may involve children
- [31]The offence was a breach of privacy, in an area where people have a high expectation of privacy. TNK placed a recording device in a ceiling, surreptitiously and deliberately recording people using a urinal. There were four videos. TNK was indiscriminate in his recording and could not know that children would not be recorded whilst undertaking this recording.
In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for the decision
- [32]TNK received a $500 good behaviour bond for 12 months and no conviction was recorded. The magistrate noted that TNK was a young man of high intelligence and that his psychological treatment would remain ongoing.
Other relevant circumstances
- [33]TNK provided a report to the tribunal from an independent psychologist JP. I also considered the previous reports and notes from his previous treating psychologist TM and letter from his current treating psychologist GW. Both attest to his low risk of re-offending. TM and GW were not available for cross-examination, so less weight can be given to this evidence as they were unable to be questioned in relation to the evidence.
- [34]TNK at the time of the offending denied all allegations and in cross-examination accepted that he had lied to the police. The report of JP stated that TNK had “…admitted guilt immediately at the point of detection.”[11] This is a clear discrepancy between the report and TNK’s cross-examination where he admitted that he had lied to the police.
- [35]TNK during cross-examination was found to be forthright when he discussed the nature of the offending and the proclivities that TNK believed led to the behaviour. TNK is commended for his candour with the tribunal and this has been considered carefully.
- [36]TNK has engaged with treatment since he was charged with the offence. TNK remains engaged with treatment through his current treating psychologist GW, seeing GW for approximately three sessions in the year of 2023. At the time of hearing, it was approximately six years since the offence and there have been no further detected offending since this time.
- [37]The independent psychologist JP opined that TNK had no dynamic risk factors. The report identified in psychometric testing the Personality Assessment Inventory, “…However there was evidence of positive impression management in that [TNK] denied common shortcomings to which most people will admit. As such, his results should be viewed with caution.”[12] The report also considers risk factors for recidivism. This is comprehensive and states,
Furthermore, there is research suggested that after to ten to fifteen years living offence-free in the community, individuals with a history of sexual offending are in fact no more likely to commit a sexual offence than individuals with a history of general (that is non-sexual) offending.[13]
- [38]TNK only had one witness at the hearing and whilst he attested to the support that he had from his family and partner, it was noted in cross-examination that his partner did not know of TNK’s past issues. No family member or friend provided any statement, nor did TNK’s partner, and none were available for cross-examination. I cannot give great weight to the evidence of TNK’s support network, which would be a protective factor as there is a lack of independent evidence attesting to this.
- [39]TNK also urges the tribunal to consider the clearances received in other jurisdictions. This is an irrelevant factor for the purposes of the Act. As noted by both TNK and Blue Card Services, the legislative regime is different in different states.
Conclusion
- [40]TNK was a young man of 22 at the time of the offending. At the time of hearing, TNK provided evidence and was cross-examined. Whilst TNK attested to a range of personal support, no person, other than independent psychologist JP, was available for cross-examination. TNK had provided evidence of ongoing psychological support, the offending occurred approximately six years ago. The report of JP also identified research and opined about the level of risk after a ten to fifteen year period. I have considered this evidence carefully, noting that it has been opined that TNK has no dynamic risk.
- [41]The nature of the offence had a high level of deceptive conduct and was extremely intrusive in nature. TNK could not be aware that children would not be affected by his conduct.
- [42]Considering all the evidence, and undertaking the two stage test in FBN, and applying the paramount principle, I find under s 221(2)(b) of the Act that I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a working with children clearance to TNK.
Footnotes
[1] Page 2 Statement of Reasons, Department of Justice and Attorney General, 31 August 2023.
[2] Working with Children (Risk Screening and Management) Act 2000 (‘the Act’) section 5.
[3] Child related employment decision is defined in section 358 of the Act to include a chapter 8 reviewable decision.
[4] Section 360 of the Act. See also section 6.
[5] Section 221 of the Act.
[6] Section 228(2)(f) of the Act.
[7] Applicant’s closing submissions following oral hearing, filed on 5 November 2024 page 5.
[8] Respondent’s Submissions in reply on matters of law, filed 18 November 2024.
[9] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at paragraph 3.
[10] [2021] QCATA 112.
[11] Psychological assessment report – dated 4 December 2023 page 13.
[12] Ibid, page 12.
[13] Ibid, page 18.