TFH v Director-General, Department of Justice and Attorney-General
[2024] QCAT 70
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- TFH v Director-General, Department of Justice and Attorney-General[2024] QCAT 70
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TFH v Director-General, Department of Justice and Attorney-General[2024] QCAT 70
TFH v Director-General, Department of Justice and Attorney-General[2024] QCAT 70
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | TFH v Director-General, Department of Justice and Attorney-General [2024] QCAT 70 |
PARTIES: | TFH (applicant) V Director-general, department of justice and attorney-general (respondent) |
APPLICATION NO/S: | CML 177-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 13 February 2024 |
HEARING DATE: | 4 May 2023 Written submissions 19 May 2023 and 13 July 2023 |
HEARD AT: | Cairns |
DECISION OF: | Member Taylor |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant’s blue card was cancelled for offences against the Commonwealth Criminal Code; namely using a carriage service to menace, harass, or cause offence; and he was issued with a negative notice – where the applicant seeks to review a decision not to cancel his negative notice – where the applicant’s offending conduct involved targeting women to extract revenge on them for having rejected the applicant’s earlier advances – where the applicant purported to engage in consultation with a psychologist to gain insight – where the evidence demonstrated that the applicant concealed the fact of targeting the women for revenge from his psychologist – where the applicant demonstrated an absence of insight into his actions in terms of socially acceptable conduct Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 23, s 25, s 26, s 48 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 294, s 304G, s 354 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206 Re TAA [2006] QCST 11 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | P. McNeill – Advocacy Officer for Blue Card Services |
REASONS FOR DECISION
- [1]It is common in proceedings such as this for the Tribunal to give a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of material in such a proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant, any family member of the applicant, any child, or any non-party to the proceeding. When such is done, the reasons for decision are published in a de-identified format.
- [2]In this proceeding, no such direction has been made nor has any application been made for same. However, notwithstanding the absence of same, in my opinion such a direction should be made. The reason for this is the sensitive and personal nature of issues raised in this proceeding, particularly the circumstance and nature of the applicant’s offending conduct and the associated effect on the victims of that offending, namely two ladies. It also seemed to me necessary in order to ensure recognition of the rights afforded both the applicant and the victims of his offending conduct, as it is enshrined in s 15 of the Human Rights Act 2019 (Qld) (the HRA). Accordingly I made an order to that effect.
Overview
- [3]In 2012, the applicant held a Blue Card, such permitting him to work with children and young people. In December 2014 he engaged in conduct that led to him being charged and convicted of two counts under s 474.17(1) of the Criminal Code Act 1995 (Cwlth) with using a carriage service to menace, harass, or cause offence. This ultimately caused the respondent to cancel his Blue Card and issue him with a negative notice.
- [4]In July 2020 he applied to the respondent to have that negative notice cancelled. It took some time for that application to be determined. He was unsuccessful. Accordingly in June 2022 he applied to this Tribunal for a review of that decision, thereby effectively once again seeking to have his negative notice cancelled such that he could once again obtain a Blue Card.
- [5]As discussed in these reasons, the applicant again fails in his attempts to do so. The reason for this is that, notwithstanding his protestation to the contrary, from the evidence as it was presented before me I formed the view that he had failed to have gained sufficient insight into his offending conduct so as to demonstrate that his circumstances were such as to fall into the category of being an exceptional case. I formed the view it would not be in the best interests of children for him to be issued a Blue Card.
- [6]I was therefore satisfied that the applicant’s case is ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly the Decision was confirmed.
Background
- [7]On 29 May 2012, the applicant was issued with a working with children clearance under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). Such is generally referred to as a ‘Blue Card’.[1]
- [8]On or about 5 January 2015, the respondent was notified of a change to the applicant’s police information, namely that the applicant had been charged on 29 December 2014 under s 474.17(1) of the Criminal Code Act 1995 (Cwlth) with using a carriage service to menace, harass or cause offence. On 15 May 2015, the respondent was advised of a second charge of the same type, such having been made on 3 January 2015 (the Charges). At the time of the Charges, the applicant was 35 years of age.
- [9]The offending conduct was almost identical in each instance. It involved the applicant having made a 20 second video-recording of himself masturbating to the point of ejaculation, then sending that video recording via his mobile phone to two women on separate occasions. On the first occasion he entitled the video “Explosion”. On the second occasion it was accompanied by a text message which read “Happy new year [name redacted] all the best 2u in 2015.” On each occasion, when he received a message back from the persons to whom he had sent the video, he responded to each person with the same message, namely, to apologise and that he had just checked the number to which it was sent and realised it was one-digit different from the number of the person to whom it was intended to be sent. (the Offending Conduct)
- [10]On 25 May 2015, after having given the applicant the opportunity to make submissions to the respondent as to why, given the Charges, his Blue Card should not be cancelled, the respondent cancelled his Blue Card and issued a negative notice.
- [11]On 10 September 2015, the applicant was ultimately convicted on the Charges.
- [12]On 14 July 2020, after a passage of almost five years since then, the applicant applied to the respondent to cancel the negative notice.
- [13]On 26 May 2022, having reassessed the applicant’s eligibility, the respondent notified the applicant of the decision not to cancel the negative notice. (the Decision).
- [14]On 14 June 2022, the applicant then applied to this Tribunal for a review of the Decision.
- [15]His application was heard by me on 4 May 2023. Following that, in accordance with directions I gave at the conclusion of the hearing, written closing submissions were made, firstly by the respondent in terms of ‘Supplementary Submissions’ on 19 May 2023, then by the applicant as ‘Closing Submissions’ on 13 July 2023.[2]
- [16]Regrettably, due to a number of issues arising unexpectedly before me since then, my consideration of this matter was substantially delayed such that it has taken until now to reach a decision and provide these reasons.
The Nature of this Review Proceeding
- [17]This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, more particularly s 354 therein, read together with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I was required to exercise this jurisdiction in accordance with both those pieces of legislation and the Human Rights Act 2019 (Qld) (the HRA), and in doing so I had all the functions of the decision-maker in terms of the decision to be made.[3]
- [18]The purpose of the review was to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[4] It was not necessary for me to consider whether the decision-maker made an error in making the Decision, rather the focus was on the cogency of the applicant’s case as presented in this hearing.
- [19]At the conclusion of the review, I was empowered to confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter to the decision-maker for reconsideration with directions I considered to be appropriate.[5]
The Issue
- [20]The issue in this proceeding was whether the Offending Conduct is such as to lead to the conclusion that the applicant’s case falls within the category of an ‘exceptional case’ so as to deny him a Blue Card. The applicant argued that it was not. The respondent’s representative submitted it was.
- [21]In order to resolve that contest, consideration of WWCA s 226(2) was necessary. It provides for a mandatory list of factors to be considered in deciding whether it was appropriate to issue a negative notice, such being the basis for considering a decision not to cancel a negative notice.[6] In doing so, the following was not to be overlooked:
- The object of the WWCA is to promote and protect the rights, interests, and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[7]
- The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing;[8] and
- The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[9] such being a principle that I was mandated to apply in this review.
- [22]A critical factor in this proceeding, as is the case in any proceeding such as this one, was the question of the degree of insight into the Offending Conduct that was held by the applicant at the time of the hearing. It is this criteria that must be considered in terms of a consideration of fact and degree from which that could be determined, but doing so whilst always having regard to the interests of children.
The Relevant Law
Working with Children (Risk Management and Screening Act) 2000 (Qld)
- [23]The Decision in issue in this proceeding is a refusal to cancel a negative notice. As such, the pathway through the WWCA starts at s 354 therein because such is a reviewable decision for the purposes of that section.
- [24]That invoked the operation of s 294 of the WWCA, with the matter to be decided as if it were a decision about a working with children check application. That led to s 221 of the WWCA which sets out that which the decision-maker is required to consider in determining the application for a Blue Card. For present purposes, in the circumstances of a conviction or charge being part of the applicant’s history, it required a consideration of that contained in s 226(2) to which I referred earlier herein.
- [25]Given that the applicant has been convicted, but not of a serious offence, under WWCA s 221(1)(b) the starting position is that the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.[10] If that starting position stood without exception, then it would be in order for me to set aside the Decision. It is that exception which looms large in this proceeding. It is that the starting position is subject to the exception, such being that if I am satisfied the applicant’s case is one in which it would not be in the best interests of children for him to be issued with such a clearance, then a negative notice must be issued. In turn, in the circumstances of this case, that means his negative notice should not be cancelled and so it would be in order for me to confirm the Decision.[11] That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to be issued with a Blue Card.[12]
- [26]But the WWCA does not define an exceptional case. It thus creates a degree of complexity in matters such as this application. In order to deal with that complexity, it required consideration of fact and degree with such to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC in reference to the predecessor legislation to the WWCA:[13]
It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.
There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that:
‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion’.
We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.
- [27]Neither party bears an onus in determining whether an ‘exceptional case’ exists.[14] It is a matter of discretion ultimately afforded me as the effective decision-maker in this review, such that I was required to decide the question of whether an exceptional case exists on the balance of probabilities.[15]
- [28]But in saying that, in undertaking that task it was not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case was an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales:[16]
The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.
The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.
In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.
The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.
What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.
- [29]The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[17] Accordingly what follows later in these reasons is my consideration of each of those particular criteria.
Human Rights Act 2019 (Qld)
- [30]There is also the application of the Human Rights Act 2019 (Qld) (HRA) that must be considered.[18] The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only as far as is reasonable and justifiable.[19] That being said, all statutory provisions, as far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[20] Such includes the WWCA.
- [31]In my opinion there were a number of human rights relevant in this proceeding, such which included the applicant’s right to recognition and equality before the law, the right to freedom of expression, the right to take part in public life, and the right to privacy and reputation.[21] But there was a competing right that could not be overlooked in a proceeding such as this, and one that permissibly was considered by me in limiting the applicant’s rights in the circumstances of him seeking to be the holder of a Blue Card. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[22]
- [32]In that regard, in my opinion a decision that the applicant’s case is an exceptional case, such which might be said to infringe the applicant’s rights to which I have just referred, will nevertheless be compatible with human rights. This is because, despite any limit the decision places on the applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA, inter alia because it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people. Furthermore, any limitation on the applicant’s human rights remain consistent with the object, purpose and principle of the WWC Act, being that the welfare and best interests of children are paramount.
- [33]As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable relevant factors include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.
- [34]That being so, it must be recalled that the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right pursuant to the HRA, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA, such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That would include the making of a finding that the circumstance the applicant finds himself in is an exceptional case such as to deny him an entitlement to a Blue Card under the WWCA. Such is consistent with s 13 of the HRA.
- [35]My decision in this proceeding was reached applying that approach.
The Evidence & Submissions
- [36]This proceeding was not a traditional adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. My decision turned on the material presented before me at the hearing, both documentary and oral, and the written submissions which followed.
- [37]The respondent was not participating in an adversarial role advocating for the correctness of the decision by the decision-maker. The respondent’s representative’s role was to use his best endeavours to help me in making my decision on the review.[23] As he was required to do,[24] he provided material to this Tribunal, namely the Reasons for the Decision and other documents considered relevant,[25] including an ‘Outline of Submissions’ filed in advance of the hearing.[26] Save only for the provision of the written Supplementary Submissions as closing submissions,[27] the respondent’s representative before me did not seek leave to produce any further material at the hearing, nor did he call any witnesses.
- [38]The applicant provided a written statement to this Tribunal, affirming it as his evidence in chief,[28] and in turn presented himself for cross-examination. He also called his psychologist to give evidence, Dr H, who confirmed two letters previously filed in this proceeding as his ‘report’ to the Tribunal,[29] also presenting Dr H for cross-examination. He also tendered statements of three persons as ‘character references’,[30] such being without objection save only for a related submission on weight to be afforded such statements / references, but did not present them for cross-examination nor to even confirm the truth of that which was contained in those statements.
- [39]As I mentioned earlier at paragraph [15] herein, after the close of the evidence I gave directions for the provision of writing closing submissions, such being received in accordance with the timetable set.
- [40]In my opinion it was not necessary for me to set out the evidence or the submissions in detail in these reasons, it being sufficient to have addressed the relevant parts thereof herein where I discussed it together with the application of the relevant law. I thus now turn to that discussion.
Discussion on the Evidence, Submissions, and the Relevant Law
The applicant’s evidence & submissions
- [41]The applicant’s evidence in chief was of little assistance to me. His statement did not provide me with any meaningful information from which I could discern a basis for the Offending Conduct and more importantly the manner in which he has since developed insight to it. At its highest it informed me that, from the applicant’s perspective, his view of the Offending Conduct was that it was engaged in under the influence of alcohol at a time when he had recently broken up with his girlfriend after a five-year relationship and so, as he described it, “being under a rush of intense mixed emotions, rejection being the main one”[31] with a stated desire to extract revenge on women who had previously rejected him.
- [42]The cross-examination of the applicant was extensive. In his closing submissions, the applicant was critical of it, making these submissions:[32]
The Respondent has … subjected the Applicant to a rigorous and jaded inquisition of the sort and severity that goes well beyond that which ought to be considered fair, reasonable, or balanced consideration, and in any case would seem to take the form of rank character assassination that the upholding of the best interests of children and the public interest.
- [43]I do not agree. As I observed and listened to the cross-examination of the applicant, it was thorough and appropriately evaluated the applicant on various aspects of his Offending Conduct and what had transpired for him since, including the police attendances at his house, and during the court process that resulted in his convictions. It is simply incorrect, and in my opinion a far reaching overstatement, to suggest it was character assassination. As I discuss later in these reasons, it together with the cross examination of Dr H identified that the applicant had been less than fully forthcoming in his consultations with Dr H, such which showed me an absence of the applicant’s depth of insight into his Offending Conduct, such which was drawn out in cross-examination.
- [44]
Each of these references totally praise and exonerate the Applicant’s suitability to hold a blue card, and testify to the good the Applicant has brought to the community and those around him.
- [45]Whilst on a general reading of these references there is substance to that submission, the content of the references was of no assistance to me. They did not contain anything which was relevant to my consideration of the criteria laid down under s 226(2) of the WWCA, but moreover none of it showed me anything from which I could discern the extent to which the applicant had gained insight into his Offending Conduct. I gave them zero weight.
- [46]As I noted earlier herein, the only other person presented as a witness was Dr H. His two letters to this Tribunal were to some degree repetitive, both presenting a positive view of the applicant.[35] As I read them, they showed me there were initial discussions between the applicant and Dr H focussed on an endeavour to establish why the applicant engaged in the Offending Conduct. Following a reference to this, Dr H made this statement in each letter:
In these discussions it became very apparent that irrespective of how he might have been eight years ago [the applicant] shows no signs of prurient interest that could suggest inappropriate sexual behaviours or preoccupation with such. In that context the offences may be considered as one-off and unlikely to be repeated.
- [47]On first reading that suggested on its face that the applicant’s circumstances had substantially altered for the positive since the Offending Conduct occurred. However, must be observed that this statement is made with reference to a particular context, such being one founded in the question of sexual behaviour and preoccupation with such. However, as the applicant’s own evidence showed, his Offending Conduct was not one premised in sexual behaviour or a pre-occupation with such, but rather it was conduct intentionally engaged in on two separate occasions designed to target two specific women with the aim of extracting revenge of them, whilst also engaging in a the same concocted story of an error in sending the message to the wrong phone number given a one digit error intentionally designed in a desire to conceal what he knew to be wrong doing. Thus, in my opinion it was not a proper context from which the assessment of the applicant should be viewed for the purposes of this proceeding.
- [48]As the applicant stated in his written statement,[36] he intentionally targeted the two women to whom he sent the video, selecting them “because they rejected me in previous past years and I thought of getting revenge on them”, and that “since being reminded of my severely embarrassing offences …” he sought assistance from his psychologist “to explore more about myself as a person, how my brain works and to what happen (sic) in my brain that triggered me to commit such offences in the first place.”[37]
- [49]When then under cross-examination when he was asked about his reply to both women in which he expressed an apology asserting that it was a wrong number by one digit, he stated that he wanted the women to think it was accidental so as they would not go to the police. When I asked him whether he meant such was to ‘conceal’ the activity, he said yes.[38] As I discuss later in these reasons, the evidence before me indicated that this was merely the start of a lengthy process of concealment engaged in by the applicant.
- [50]Those two issues then formed the basis of my discussion with Dr H. When I raised with him the fact, as it was presented by the applicant in his evidence, of him having intentionally targeted the two women to extract revenge on them, and then taking intentional steps in an effort to conceal the activity by suggesting it was a mistake, Dr H’s response was one of extreme surprise. From his response, and in particular the body language and facial expressions of Dr H which I observed whilst he was sitting in the witness box, I could readily conclude he was hearing about it for the very first time and as such it fundamentally changed the basis upon which he had expressed his opinions which might otherwise be considered favourable to the applicant.
- [51]In the process of effective re-examination, the applicant asserted he had told Dr H of the intentional targeting of these two women as an act of revenge, he previously stating this to be so during his cross-examination. However no such reference to that appears anywhere in Dr H’s letters to this Tribunal. Moreover, Dr H’s reaction to the fact, when I draw his attention to it, demonstrated unequivocally that such did not occur. As such I did not accept the applicant’s statement to the contrary, and moreover from the manner in which Dr H had described the initial sessions held with the applicant as to “what he could recall has to why he had got into the practice in the first place”,[39] I inferred that the applicant had concealed it from Dr H, once again being an intentional act of concealment.
- [52]As to the overall presentation of his case, the applicant did not present it in any way focussed on the relevant criteria as laid down by s 226(2) of the WWCA and the issue of fact and degree. Rather, in his closing here merely sought to attack the respondent’s presentation of the case against him as being “made in an unduly cynical, negative, and prejudicial manner, particularly for the ostensibly stated purpose of fairly determining the Applicant’s suitability to hold a blue card”.[40]
- [53]Having made such a submissions, the applicant then sought to press his case in those closing submissions under the heading ‘Insight and Remorse’ submitting that he “does have genuine insight and understanding of the nature and circumstances of the offending, and feels remorse and regret for the events as they occurred”, and that he “has come to understand how the behaviour was unacceptable and wrongful, and continues to gain a greater appreciation thereof through past and present lifestyle changes, community support, and professional counselling.”[41]
- [54]Whilst the applicant did not address me in any way on the relevant criteria, and chose to solely rely on the argument of ‘Insight and Remorse’, in my opinion it neither weakens nor strengthens his case. In all respects I simply did not accept the applicant’s arguments as being in any way persuasive in terms of me reaching a finding favourable to him. Whilst I have considered the relevant criteria and discussed it later in these reasons, in my opinion the outcome of this proceeding turned solely on the issue of the applicant’s insight, or more accurately absence of his insight, into the Offending Conduct. As I understood the case he was making, whilst he seemingly was genuinely remorseful for the conduct and the affect it had on the two known victims, and he has taken steps to cease alcohol consumption and re-engaged in his church community, he failed to demonstrate that he possesses the requisite degree of insight so as to off-set the primary risk factor he has identified, that being the desire to extract revenge on a person, to the extent it might remain a factor should he be placed in a position of trust to care for children and young people in an employment or business situation.
The respondent’s submissions
- [55]As noted earlier, notwithstanding the respondent’s representative’s role was to assist me in reaching the correct and preferable decision and not to advocate for the correctness of that decision, in that capacity the respondent’s representative was entitled to lead evidence for my consideration beyond merely the applicant’s evidence. He did so in terms of the documentary evidence being Reasons for the Decision and associated material. He did not present any evidence from witnesses.
- [56]The respondent’s material before me was thus contained solely in that documentation, the Outline of Submissions filed in advance of the hearing, and the written closing submissions filed subsequent to the hearing. In contrast to the relative brevity of the applicant’s closing submissions, the respondents’ written closing submissions were extensive, seemingly seeking to traverse a number of issues which arose from the evidence as it was presented.
- [57]To the extent that ultimately my decision in this proceeding turned on the applicant’s evidence to which I have just referred, in my opinion the following submission from the respondent’s representative fairly sums up that which the respondent urged upon me as being a proper basis for determining the correct and preferable decision:[42]
While it is accepted that the Applicant has now attended upon a medical practitioner and a psychologist, including to see a psychologist to find out “what happened in my brain that triggered me to commit such offences in the first place”, the Respondent submits that the circumstances of the Applicant’s engagement with those practitioners do not divulge a genuine desire to understand the triggers to his offending or address same. The Respondent submits that these are not protective factors but rather actions orchestrated with an intent to improve the Applicant’s chances in a review of the Respondent’s decision before the Tribunal.
- [58]I agree with that submission.
The Relevant Criteria
- [59]All that being said, in my opinion the outcome of the application before me could be determined solely on that basis. However, it remained necessary for me to consider the relevant criteria under s 226 of the WWCA to which I now turn. But before doing so I pause here to once again observe that the applicant did not make any submissions to me in his written closing material specifically addressing these criteria, notwithstanding that the respondent’s representative did present detailed submissions on this criteria within his written closing submissions and which the applicant had the benefit of reading and considering before he provided his written closing submissions.
Whether the offence is a conviction or a charge[43]
- [60]The Offending Conduct gave rise to convictions being recorded by the Court. Notwithstanding such is the entirety of the applicant’s recorded criminal history,[44] such is not a discounting factor given that the Offending Conduct did amount to a conviction and as such it remained a relevant factor in my consideration of the matter in issue in this proceeding, namely whether his case was an exceptional one. In my opinion, the fact that it went beyond merely a charge weighed in favour of his case being an exceptional one.
Whether the offence is a serious offence, and whether it is a disqualifying offence[45]
- [61]The Offending Conduct is neither a serious nor a disqualifying offence under the WWCA, Notwithstanding that, it remains relevant in determining the eligibility of the applicant to work with children in regulated employment, not only for the same reasons I have just given under the last heading, but such being the intention of parliament in enacting this provision within the legislation.[46]
When the offence was committed[47]
- [62]The two events which together make up the Offending Conduct occurred within a few days of each other in late December 2014, early January 2015.
- [63]That being said, it cannot be overlooked that a significant passage of time has passed since, which in some instances might diminish the weight to be attributed to it when considering the question of an exceptional case. However in this proceeding, in my opinion the passage of time since the Offending Conduct was engaged in was relevant because it is during this period of time that the applicant should have, if he was going to, gained the requisite degree of insight into his offending behaviour. The longer the passage of time, the greater should be the prospect that the applicant would have, and should have, gained that insight.
- [64]Yet, as I read the applicant’s statement and listened to him during the hearing, and then read his written closing submissions, as I have mentioned elsewhere in these reasons I was unable to find evidence of him having gained that insight within the now long period of time since the Offending Conduct occurred up to and including the hearing.
- [65]Whilst he made an assertion to the contrary, such being linked to what he said is the remorse he feels, whilst he clearly understands that the conduct was unlawful, and asserts to now realising that it had an effect on the two women he targeted, he did not demonstrate to me in any way that he had gained any understanding that his actions in targeting specific women for the purposes of extracting revenge on them for having rejected him was entirely inappropriate and simply socially unacceptable. Nor did he demonstrate any true understanding of why he found it necessary to extract such revenge and so show me that he is not at risk of repeating some form of conduct in the future designed to target an individual.
- [66]Put simply, on the basis of that which was before me in the evidence, it led me to only one conclusion – in the long passage of time since the Offending Conduct the applicant has not developed the requisite degree of insight into the nature and effect of his Offending Conduct. I was left with the clear impression that he simply wishes to leave it concealed and not explore why it occurred, such conduct showing me an absence of development of insight.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children[48]
- [67]As I often hear the argument from applicants in these types of matters, the offending conduct did not involve children, thereby seemingly seeking to distant it from being relative in their case for holding a Blue Card. The applicant before me in this proceeding seemingly sought to do the same.
- [68]The statement he made in his application to this Tribunal demonstrates this. In response to the requirement to ‘State briefly why you think the decision is wrong or not properly made’, he stated:[49]
My convicted offences were made firstly towards adults, NOT CHILDREN OR TEENAGERS. …
- [69]The nature of the applicant’s offending is disclosed in the various documents that have been filed in this proceeding, with the respondent’s representative properly and appropriately highlighting it his written outline.[50] The closing submission therein is apposite and in my opinion sums up the circumstances as they relate to this criterion. It is as follows:[51]
The Applicant’s offending also raised concerns regarding his respect for the law and lawful behaviour. Respect for the law and lawful behaviour is critical for adults working with children as it contributes to the creation of safe and protective environments for children. The importance of an applicant’s respect for the law was recently emphasised in the blue card review matter of IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206. The Tribunal relevantly held that:
Any child being cared for by a person has a right to have someone who has a respect for the law …
- [70]Whilst that submission refers to only part of that which was said in the IHI decision, in my opinion the full sentence of the learned Member’s reasons therein should be noted, it being:[52]
Any child being cared for by a person has a right to have someone who has a respect for the law and is aware of boundaries and is not prepared to cross these for their own needs …
- [71]The applicant did not demonstrate to me in any way that he respects the law in terms of his conduct in targeting the two women for the purposes of revenge, and moreover that he is aware that in doing so he had crossed a boundary and recognises such that he would know now and in the future not to cross a similar boundary again.
- [72]I agree with the respondent’s submission, and accept it as being correct. The applicant’s offending is relevant to, and reflects adversely on, an evaluation of his eligibility to work with children and young people. In my opinion there was sufficient material before me to raise questions as to whether, in an employment or business situation, given his demonstrated inability to understand judging of appropriate behaviour, the applicant could act properly in the best interests of children.
In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order for the offence … the court’s reasons for its decision.[53]
- [73]In sentencing the applicant, the learned Magistrate made these remarks:[54]
[Applicant named] I take into account your plea of guilty. It cannot be said to be an early plea of guilty. … The lateness of your plea has caused further distress to your victims as they were expecting for some months that they would have to give evidence, which is obviously unpleasant and, considering the nature of the offences, I accept, would have been distressing and embarrassing to them …
…
… I could not find that you – or your offending was trivial or that – having regard to your character, antecedents, age, health or mental condition – it would be inexpedient to inflict any punishment other than a nominal punishment, especially considering that your conduct was not a one-off but was repeated and sent to two different people who did not know you.
Taking into account all those matters, I am satisfied … that the appropriate penalty to impose is a good behaviour bond. You are convicted without passing sentence. I release you upon your giving security by recognisance in the sum of $1000 to be on good behaviour for the next 12 months. Conviction is recorded.
- [74]From these short remarks, as I have extracted them from a longer transcript of the sentencing hearing, it is readily apparent that the learned Magistrate was concerned about the late plea of guilty.
- [75]The applicant was cross-examined on this point in the hearing. In that exchange, the applicant stated he did not think he was innocent at the time of the Charges being laid against him and that he knew he had broken the law and so was guilty. But, when asked why it took him such a length of time to plead guilty, his answer was that at the time he was nervous, he did not know what to say, so ‘eventually’ he just pleaded guilty.
- [76]In my opinion this is an entirely unsatisfactory answer. It demonstrates to me that at the time of the Court process dealing with the Charges the applicant seemingly approached it by simply leaving issues concealed and not bringing them up to be dealt with in a transparent manner. Such conduct continued up to and including the time when he visited Dr H, and as I will discuss under the next heading has been engaged in on other occasions.
- [77]However, notwithstanding the comments as to the distress on the victims, on the applicant’s then circumstances the learned Magistrate could not, whilst noting the seriousness of the Offending Conduct, find it appropriate to pass sentence on the applicant. Whilst the applicant did ultimately plead guilty and avoided a sentence given the Magistrates consideration of his circumstances, in my opinion such does not equate to a basis upon which I could readily find the applicant should be entitled to a Blue Card.
- [78]The issue here is not one of the extent of distress caused to the two women, or the applicant’s circumstances at the time of the Court proceeding. Rather it is whether the applicant now understands, and has demonstrated to me that understanding, the fact of his Offending Conduct and the circumstances which brought it about, namely an act of targeted revenge, seemingly an issue to which the Magistrate was not alerted. It is in my opinion entirely unacceptable in any social norm, as distinct to his understanding that his conduct in sending the videos to these women was an unlawful act.
- [79]That is not something factored into the assessment by the learned Magistrate, nor should her Honour have done so. For the purposes of the Court proceeding, the relevant fact of the Offending Conduct was nothing more than the fact of him having sent the video via his mobile phone. The Court was not required to consider the extent to which the applicant had insight into that Offending Conduct.
- [80]For this reason, in my opinion the sentencing remarks made by the learned Magistrate do not lend any weight in favour of the applicant in this proceeding.
Anything else relating to the commission of the offence I reasonably consider to be relevant to the assessment of the applicant[55]
- [81]In my opinion it is within this criterion that the issue of insight more fully falls. This is particularly so in terms of whether the requisite degree of insight has been shown to exist to the extent it is relevant to assessing the reduction of the risk demonstrated by the Offending Conduct considered in the context of the reason for it, namely targeted revenge.
- [82]That being said, whilst I have already discussed the other criteria in terms of the issue of insight being shown, here I discuss the issue of insight more fulsomely because as I have already indicated earlier in these reasons it is the applicant’s possession of genuine insight which is the critical factor in the consideration of his application to once again effectively obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA:[56]
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.
- [83]There are however other cases which highlight the importance of insight in assessing whether the risks associated with an applicant’s past conduct have been reduced.
- [84]The first is found in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) wherein the Appeal Tribunal considered the issue and expressed this observation:[57]
Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences ….
Ms Lister continues to minimize and justify her conduct …
These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced.
- [85]I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by an applicant, stating:[58]
Notwithstanding that this all occurred now many years ago, in the circumstances of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable.
- [86]Whilst these comments were made in terms of circumstances where there had been a lengthy passage of time between the offending conduct and the application before the Tribunal where the views of the applicant had not seemingly changed over that time, such which might suggest they are distinguishable from the applicant’s case given the applicant before me in this proceeding has not expressed any current view that his conduct was socially acceptable, in my opinion these comments are equally applicable to the circumstances of the applicant given the extent to which, over the passing of that time since the Offending Conduct, he has taken steps to conceal that conduct particularly in his discussions with Dr H. Such in my opinion demonstrates an absence of him in any way becoming aware of the true nature of that conduct.
- [87]I need not repeat all of which I said earlier at paragraphs [46] to [51] herein and need only cross-reference it as being relevant to this criterion. It demonstrates that continued concealment. There was in addition two other pieces of evidence that in my opinion also demonstrated continued concealment.
- [88]On 24 August 2020, in one of his submissions to the respondent during the process of having his request to cancel the negative notice considered, he made this submission:[59]
My two offences that occurred back in the month of December 2014 and the month of January 2015 have been a constant source of great shame to me and something that I am so very much not proud of. I have never told any of my family or friends about this until recently when I have had to review what I have done.
- [89]When questioned about this under cross-examination, he advanced a further comment relative to it, namely:
If somebody asked me what I don’t have a Blue Card I say “common assault”.
- [90]He also made this subsequent written submission to the respondent on 5 September 2020:[60]
To this day I’ve never told anyone of these offences because it brings me great trauma and embarrassment to share it. Back then, five years ago, my lawyer and the judge didn’t even suggest … seeing a psychiatrist, but I would wanna (sic) share this with a stranger anyway. I know they keep things private and confidential, besides the police, I just don’t want that feeling knowing someone else knows about this. Its embarrassing enough finding out now that Blue Card Services knew about this back then. In a polite way, it annoys me how this has been brought up again after all these years.
- [91]In my opinion, all of these facts demonstrate a continued pattern of concealment in a desire to keep the Offending Conduct in some way buried in his past. Such was in my opinion sufficient to demonstrate that the applicant lacked insight into the nature of the circumstances which brought about the Offending Conduct. This was so notwithstanding other steps he had taken to deal with the circumstances he was reportedly in at the time such conduct occurred, and the positive steps he asserted he has taken, namely ceasing consuming alcohol and a return to church community.
- [92]What was relevant in this proceeding in terms of the decision I was being asked to make is whether the applicant demonstrated insight into the Offending Conduct such that he possesses the ability to perceive clearly or deeply the inner nature of things, or a penetrating understanding of a complex situation or problem.[61] In my opinion, because of his continue desire and actions taken to keep the conduct concealed, and moreover his failure to have raised these particular issues with his psychologist, he has done neither.
- [93]In all respects, I reached the conclusion the applicant fails to understand that an intentional act of targeting a women to extract revenge on her by engaging in such conduct demonstrates an inability to understand the fundamental aspect of respect that a reasonable adult would expect to be afforded, and as such he has failed to demonstrate that he could readily afford a child or young person such respect. He has also failed to demonstrate to me that he would know now not to take a step of revengeful conduct towards a child or young person who may, in some way, cross him.
- [94]Accordingly, it was my conclusion that the applicant did not possess the requisite degree of insight into his Offending Conduct such that he presented as a person in whom the care of children or young people in an employment or business circumstance should be entrusted.
Conclusion
- [95]What was relevant in this proceeding was the absence of evidence that shows me the applicant possessed the requisite degree of insight into his Offending Conduct, in particular the extent to which such conduct was engaged in for the purposes of extracting revenge. It left me with the conclusion that the applicant would simply be unsuitable as a holder of a Blue Card, such being a person who must be entrusted to ensure the welfare and best interests of a child would be protected should the applicant find himself in a position of caring for children in an employment of business setting. In the absence any proper demonstration of the requisite degree of insight, I was left with the conclusion that the applicant might engage in some form of conduct that could be said to be revengeful, without the applicant knowing it not to be so. Until such time as the applicant can demonstrate the requisite degree of genuine insight, in my opinion it is entirely inappropriate for him to hold a Blue Card.
- [96]Having considered the evidence, the submissions, and the relevant law, overall the material that was before me shows the absence of the applicant’s insight, such reflecting adversely on his ability to judge appropriate behaviour and present as a positive role model for children. Accordingly, I found the applicant’s case to be an exceptional case such that it would not be in the best interests of children and young people for him to be issued with a blue card.
- [97]In my opinion the applicant’s circumstance does not conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is an appropriate one. There was no basis to set aside the Decision. I confirmed it as being correct. There was an order to that effect.
Footnotes
[1] The previously used terminology of ‘Blue Card’ has survived given its well-known reference, although now it is referred to in the WWCA as ‘working with children card’.
[2] Prior to the hearing the respondent had filed an ‘Outline of Submissions’ which became Exhibit 2 in the proceeding, with the Supplementary Submissions being, as described, a supplement to that Outline, such addressing issues arising in the hearing and thus in effect closing submissions. In these reasons I will refer to the respondent’s Supplementary Submission as RCS, and the applicant’s closing submissions as ACS.
[3] QCAT Act s 19.
[4] QCAT Act s 20.
[5] QCAT Act s 24.
[6] WWCA s 304G and s 294(2)(b)
[7] WWCA s 5.
[8] WWCA s 6.
[9] As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”
[10] See WWCA s 221(2) and s 221(3)(a)(iii). Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.
[11] WWCA s 221(2).
[12] Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].
[13]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.
[14]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[15]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34].
[16]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.
[17]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[18] I pause here to observe that the respondent’s decision-maker recorded consideration of the HRA in reaching the Decision (see Ex 1 BCS 18), and that the respondent’s representative in the hearing appropriately, albeit briefly, referred to the HRA in the respondent’s written submissions (see Ex 2 para’s 78 to 80), but that the applicant did not raise any issue in his closing submissions or at any other time during the hearing as to his human rights or the application of the HRA.
[19] HRA s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.
[20] Ibid s 48(1) & (2).
[21] Ibid s 15, s 21, s 23, and s 25. I pause here to note that the right to privacy is protected by the de-identification of these reasons.
[22] Ibid s 26.
[23] QCAT Act s 21(1).
[24] QCAT Act s 21(2).
[25] Ex 1 – BCS-1 to BCS-82.
[26] Ex 2.
[27] RCS.
[28] Ex 3.
[29] Ex’s 4 & 5.
[30] Ex 6, 7, & 8.
[31] Ex 3 second paragraph.
[32] ACS para 8.
[33] Ex’s 6, 7, and 8.
[34] ACS para 59.
[35] Ex’s 4 & 5.
[36] I pause here to note that when presenting it as his evidence in chief, the applicant confirmed it as being true and correct at the time the statement was prepared, and it being a statement he did not wish to amend of correct in the hearing.
[37] See Ex 3.
[38] Applicant’s oral evidence under cross-examination.
[39] This is as stated by Dr H in his report to this Tribunal (Ex 5 in the proceeding), the reference to ‘the practice’ being as described earlier in the report as being “[Applicant named] explained he had been convicted of a crime using his phone to send a 20 second video of himself masturbating to a number of women he did not know” (My emphasis).
[40] ACS para 5.
[41] ACS para’s 13 and 14.
[42] RCS para 53.
[43] WWCA s 226(2)(a)(i).
[44] See Ex 1 pg BCS-22
[45] WWCA s 226(2)(a)(ii).
[46] Consider the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.
[47] WWCA s 226(2)(a)(iii).
[48] WWCA s 226(2)(a)(iv).
[49] Originating Applicant Part C. Capitalisation of the words is as it appears in the original.
[50] Ex 2 para’s 48 to 54.
[51] Ex 2 para 54. Footnote omitted.
[52]IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206;[84].
[53] WWCA s 226(2)(a)(v).
[54] Ex 1 BCS 81.
[55] WWCA s 226(2)(f). I need not have regard to ss 226(2) (c) to (e) as they are not relevant.
[56]Re TAA [2006] QCST 11, [97] cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].
[57]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [53] to [55].
[58]SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, [68].
[59] See Ex 1 – pg BCS-8.
[60] See Ex 1 – pg BCS-9 & 10. In cross-examination this passage was brought to the applicant’s attention and he confirmed he wrote it. As to the comment about it being ‘embarrassing’ his explanation was that he had put the matter behind him.
[61] These are two dictionary definitions of the word ‘insight’ – see Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London – 1989. The applicant also offered a definitions of ‘insight’ in his written closing (ACS para 18) said to be ‘in the ordinary sense’, such being similar