A v Director-General, Department of Justice and Attorney-General [2021] QCAT 287

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: A v Director-General, Department of Justice and Attorney-General [2021] QCAT 287 PARTIES: A (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML480-20 MATTER TYPE: Childrens matters DELIVERED ON: 17 August 2021 HEARING DATE: 10 August 2021 HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: 1. The decision of the Director-General, Department of Justice and Attorney-General made on 16 October 2020 is confirmed. 2. Publication of the applicant’s name, as well as those of his wife, children and employer, other than to the parties to this proceeding is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS - Blue card – where applicant issued with negative notice – whether exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 221, s 226, s 304G, s 353, s 354, s 358 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Re FAA [2006] QCST 15 JQB v Department of Justice and Regulation (Review and Regulation) [2015] VCAT 1721 RPG v Public Safety Business Agency [2016] QCAT 331 -- 1 of 8 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: D Taylor REASONS FOR DECISION Introduction [1] This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General made on 16 October 2020, to issue a negative notice and to cancel A’s blue card. [2] A has pleaded guilty to the charge of observations or recordings in breach of privacy genital or anal reason, which he committed on 17 August 2020. The Magistrates Court recorded no conviction, and fined A the sum of $1,000. [3] The circumstances of the offence were set out in the QP9 as follows: The defendant has provided a version of events to Police and made admissions to filming the private genital area of the victim inside the Coles store. The defendant has informed Police that he had filmed the female victim twice. When requested the defendant sent one video to Police via his personal email and Police have then recorded the second file from the defendant’s mobile as the file was too large to email. One recording was 1:22 in length the other 00:37 seconds. The time of recording up the victims (sic) skirt is approximately 12 seconds on the first recording, approximately 5 seconds on the second. It appears that the victim was wearing a g-string or no underwear, her bare buttocks are clearly visible in the recording. At no point was the victim’s genitalia or the area of her genitalia captured in the recording. The recordings were not obviously time stamped but were recorded within minutes or perhaps seconds of each other. The defendant under the advisement of Police and with Police observing the mobile has had the defendant delete the two video files from his mobile. [4] These circumstances were not disputed by A at the hearing. [5] In her sentencing remarks, the learned magistrate commented: When I consider the nature of the offence, [A], you will not be surprised that I find that conduct revolting and abhorrent. It is conduct that is not acceptable regardless of any circumstances, and women are entitled to go about their business in public and not be subject to such conduct. … In particular, [A], I take into account and give you credit for the steps you have taken towards your own rehabilitation without being ordered to do so by the Court. It is most commendable and it shows significant insight into the terrible predicament that you put yourself in as a consequence of your actions in August in Cairns. However, I do note you are receiving fortnightly sessions with a professional psychologist and additionally you have the protective factor of your wife. Additionally, you are employed in the capacity of a contractor in the -- 2 of 8 -- 3 [omitted] industry and that again is a protective factor for you along with your mature years. The “blue card” legislative framework [6] Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’). The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.1 It is protective legislation and has been described as ‘precautionary’ in its approach. [7] A child related employment decision2 is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.3 The overriding concern is the potential for future harm to children. [8] As applicable to this case, the Working with Children Act requires that a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.4 What is meant by ‘exceptional case’ [9] What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.5 [10] Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:6 (a) Whether it is a conviction or charge; (b) Whether the offence is a serious offence, and if it is whether it is a disqualifying offence; (c) When the offence was committed; (d) The nature of the offence and its relevance to employment that may involve children; and (e) In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision. 1 Working with Children Act, s 5. 2 ‘Child related employment decision’ is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358. 3 Working with Children Act, s 360. See also s 6. 4 Working with Children Act, s 221. 5 Re FAA [2006] QCST 15, [22]. 6 Working with Children Act, s 226(2)(a). -- 3 of 8 -- 4 [11] Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.7 [12] The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.8 The applicant’s evidence and submissions [13] A provided the Tribunal with versions of his life story dated 3 June 2021 and 21 February 2021. He also gave oral evidence at the hearing. Relevantly, A stated: (a) He has been in a relationship with his current wife for seven years, having been married for the last four of those years. (b) He and his wife suffered a pregnancy loss in 2018, and his wife gave birth to a stillborn baby in 2019. They lost another pregnancy in early 2020. (c) He suffered increasing levels of anxiety in the lead up to pregnancy related appointments and scans. (d) The offending took place in the week before a scheduled scan, while he was away working in Cairns. (e) He expressed remorse at causing damage to an innocent woman going about her life, and to his wife. (f) He was assessed by a psychologist in August 2020, and commenced seeing his treating psychologist in September 2020. (g) He has attended 19 sessions with his treating psychologist, and has learned strategies to deal with grief and post-traumatic stress. (h) He receives support, but not treatment from his wife, who is a clinical psychologist. (i) He has also continued in his employment as a contractor. [14] A provided the Tribunal with a report from Damien Thomas, psychologist, dated 8 September 2020. This report was prepared prior to his sentencing in the Magistrates Court. Mr Thomas opined: In my opinion there is a nexus between [A’s] psychological functioning and his offending in that his actions occurred within the contract of an untreated psychiatric disorder (PTSD). Moreover, [A] reported a heightened state or stress and anxiety, throughout the period prior to his offending, noting that soon after his return from working remotely (Cairns) he was scheduled to attend, along with his wife, an ultrasound (pertaining to [Mrs A’s] current pregnancy). [A] disclosed substantial trepidation regarding the health of the foetus noting the death of the couple’s only child in 2019, as well as other failed pregnancies. 7 Working with Children Act, s 226(2)(f). 8 Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391. -- 4 of 8 -- 5 It is further my opinion that [A’s] offending relates to dysfunctional avoidance- type behaviour, noting the stress and anxiety he was experiencing, at the time. … In my opinion risk of reoffending is low. [A’s] contact with the criminal justice system has greatly influenced his attitudes and behaviours. His offending, for example, has prompted immediate engagement with relevant mental health providers towards treatment of his presenting dysfunction, [A’s] offending, in my opinion, related to a significant lapse in judgment that remains inconsistent with his personality and behavioural history. Information provided for the purpose of this report, including as providing by [Mrs A], indicates [A] has remained committed to prosocial behaviours and aspirations throughout his life. He has, moreover, a stable vocational history and is well supported by [Mrs A]; these factors represent significant protective factors for [A]. In my opinion [A] would discernibly benefit from long-term engagement in psychological therapy towards addressing his diagnosed psychopathology, as well as supporting him towards developing insight regarding the factors that have contributed to his offending. [15] Mr Thomas was not made available for cross-examination. [16] A also provided the Tribunal with reports from Anthony Engel, psychologist, dated 15 October 2020 and 29 May 2021. In addition, A provided 19 invoices demonstrating that he has seen Mr Engel on 19 occasions since 1 September 2020. [17] In his most recent report, Mr Engel stated: In regards to further offending, I believe this is highly unlikely because of his general commitment to therapy; no history of offending prior to the incident and past risk factors are no longer present. I also see no risk in working with children and young people, because that has never been a problem in the past, and the good progress made in therapy. Moreover, [A] was filled with remorse, humiliation, guilt and constantly informed me that he will never put himself or his family through what he describes as the most distressing and shameful period for him. [18] Mr Engel was also not made available for cross-examination. In an email provided to the Tribunal, Mr Engel responded to a request by A for him to give evidence by stating: They have all the necessary evidence and don’t really need me echoing on the telephone what I have already written! [19] A provided a witness statement from his wife, Mrs A, dated 2 June 2021. She stated: From what I can understand by [A’s] assessing and treating Psychologists, he had been suffering from undiagnosed Post Traumatic Stress Disorder (PTSD) for a while, related to the grief and losses we had repeatedly suffered as a couple in the last 3 years. The loss of our son, [omitted] in 2019 was what likely precipitated [A’s] mental health difficulties. We got to hold our dead child, spending time with him in the hospital and deal with the pain and suffering of never being able to bring him home. We had never imagined that we would end up organising a funeral for our child. … -- 5 of 8 -- 6 I have seen [A] proactively apply the strategies he has learnt in his psychotherapy sessions. I feel as though a heavy load has been lifted off his shoulders as a result of engaging in psychotherapy and talking about feelings that he had previously supressed. I have also noted a greater acceptance of the passing of our baby in 2019. We are both able to talk about him and honour his short life and the anniversaries without the need to escape from reality. His passing as well as our other losses are something that we have accepted as being a part of our journey. [20] Mrs A gave oral evidence at the hearing. [21] A also provided a witness statement from his employer, P, dated 4 June 2021. He stated: [A] has spoken to me about the recording in breach of privacy charge he is facing including the context and surrounding personal circumstances. In his conversations with me, [A] has been visibly upset, emotionally distressed and expressed genuine remorse for his actions. He has also informed me that he is undergoing professional help. This incident to which he has been charged in my experience would be out of character and a one-off event. [22] P also gave oral evidence at the hearing. Is this an exceptional case? [23] The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case. [24] In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.9 [25] There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.10 [26] Looking at the factors which must be considered and at factors I consider relevant, I make the following observations: Whether the offence is a conviction or a charge [27] A has a finding of guilt made against him in relation to the offence set out above. Although no conviction was recorded, the finding of guilt is regarded as a conviction as defined in Schedule 7 of the Working with Children Act. Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence 9 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30]. 10 Working with Children Act, s353 (definition of ‘chapter 8 reviewable decision’, para (a)); RPG v Public Safety Business Agency [2016] QCAT 331, [27]. -- 6 of 8 -- 7 [28] The offence is not a serious or disqualifying offence. When the offence was committed or is alleged to have been committed [29] The offence was committed on 17 August 2020. This was less than a year prior to the date of hearing. The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children [30] A’s offence raises concerns about his ability to respect personal boundaries, and another person’s right to feel safe and free from being violated. [31] I was referred by the respondent to JQB v Department of Justice and Regulation (Review and Regulation).11 In that case, JQB’s criminal history consisted of one conviction for visually capture persons genitals – upskirting. Judge Jenkins noted that there was ‘no direct relevance between the offence and child related work and no suggestion that the Applicant has a sexual attraction to children’.12 However, his Honour went on to state:13 The Upskirting offence which resulted in a Charge in this case, occurred without the knowledge or suspicion of the victim. The very nature of the offence entails covert behaviour. I consider that a reasonable parent, appraised of all of the relevant facts, would apprehend that a child would be even less likely to recognise when such offending behaviour was taking place, particularly where the child is placed under the supervision of the Applicant. [32] The respondent submitted that the offence is relevant to A’s eligibility to work with children given the protective purposes of the Working with Children Act. I accept this submission. In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision [33] A was fined the sum of $1,000. Other relevant circumstances [34] A presented at the hearing as a credible witness, and expressed genuine remorse. I have considerable sympathy towards A’s experience with pregnancy loss, which could only have been incredibly sad and difficult events in his life. [35] A is to be commended for seeking a psychological assessment from Mr Thomas, and undertaking a course of counselling with Mr Engel. This has led to A gaining insight into his offending and developing strategies to manage his stress, which is to his credit. The reports of Mr Thomas and Mr Engel are very favourable towards A. [36] That said, I am regrettably limited in the weight that I am able to place on Mr Thomas’ report. The Tribunal directed on 24 May 2021 that: 11 [2015] VCAT 1721. 12 Ibid, [60]. 13 Ibid, [87]. -- 7 of 8 -- 8 All witnesses who have given witness statements or references must attend the hearing for cross-examination, unless a member of the Tribunal has given leave for witnesses to attend by telephone. [37] While I accept that A made unsuccessful attempts to arrange for Mr Engel to give evidence by telephone, there is no evidence that he made any attempts to arrange for Mr Thomas to be available for cross-examination. In particular, the respondent was unable to question Mr Thomas as to what timeframe he had in mind when he expressed the view that A would benefit from ‘long-term’ psychological therapy, given the nexus he identified between A’s psychological functioning and offending. [38] I also note that A submitted that his wife and employment constituted protective factors. In that regard, Mrs A and P provided very favourable character references. However, as the respondent pointed out, A’s wife and employment were protective factors which were also present prior to the offending. The same observation applies to his mature age. [39] In assessing whether an exceptional case exists, I place considerable weight on the fact that A’s offending took place on 17 August 2020. As noted above, this was less than a year prior to the date of hearing. While A has commendably undertaken counselling to better manage the stressors in his life during the brief period since his offending, the corollary of this is that he has had limited opportunities to demonstrate that he has the ability to manage situations of high stress. [40] This is a finely balanced case. Ultimately, I am not satisfied that a sufficient period of time has passed without further re-offending. In this regard, I note that s 304G(2) permits an application to cancel a negative notice to be made two years after the notice was issued, which in this case would be after 16 October 2022. I would expect that if A continues his period of non-offending, sufficient time would have elapsed by that date for a different conclusion to be reached. However, this would be a matter for the respondent in the first instance should such an application be made. Conclusion [41] Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued. [42] I therefore confirm the decision under review. Non-publication order [43] Given A’s psychological conditions, I order that the publication of his name, as well as the names of his wife, children and employer, be prohibited other than to the parties to the proceeding pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 8 of 8 --