DP v Director-General, Department of Justice and Attorney-General [2021] QCAT 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DP v Director-General, Department of Justice and Attorney-General [2021] QCAT 106 PARTIES: DP (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML287-18 MATTER TYPE: Children’s matters DELIVERED ON: 6 January 2021 HEARING DATE: 9 November 2020 HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. The decision of the Director-General, Department of Justice and Attorney-General on 17 September 2018 that DP’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. 2. These reasons are to be published in a de-identified format only. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card - application for review – where applicant issued with negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) - where applicant not convicted of any serious offence – where allegations of relationship with or indecently assaulting a minor - whether case is exceptional– whether not in best interests of children to issue positive notice – where consideration of protective and risk factors -- 1 of 8 -- 2 Human Rights Act 2019 (Qld), s 13, s 26 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 156, s 221, s 226, s 360, Schedule 1 ACL v Director-General, Department of Justice and Attorney-General [2020] QCAT 104 AD v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General [2017] QCAT 99 Anderson v Commission for Children and Young People and Child Guardian [2010] QCAT 671 Commissioner for Children and Young People 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 Elliot v Director-General, Department of Justice and Attorney-General [2020] QCAT 245 Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 M v M (1988) 166 CLR 69 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25 PXS v Director-General, Department of Justice and Attorney-General [2020] QCAT 342 Re TAA [2006] QCST 11 TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 APPEARANCES & REPRESENTATION: Applicant: A Hughes of Counsel instructed by Ryan Bosscher Lawyers Respondents: G Yates, Advocacy Officer -- 2 of 8 -- 3 REASONS FOR DECISION What is this Application about? [1] DP has admitted to serious boundary violations of a child, the then 16-year-old friend of his daughter. Police investigated related allegations of indecent assault. However, the investigation did not proceed.1 [2] On 17 September 2018, the Director-General, Department of Justice and Attorney- General issued DP with a ‘negative notice’ to work with children. This means that DP cannot obtain a ‘Blue Card’ to work in certain types of employment and volunteer work.2 [3] DP wants the Tribunal to review the Chief Executive’s decision. As DP is not convicted of any ‘serious offence’, he is entitled to be issued with a positive notice for a Blue Card, unless his case is ‘exceptional’.3 [4] In reviewing the Chief Executive’s decision that DP’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for him to obtain a Blue Card.4 To determine this, I must consider protective factors and risk factors.5 It is not a mathematical exercise.6 Is it not in the best interests of children to issue a positive notice to DP? [5] Given a Blue Card authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a Blue Card to DP.7 [6] Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.8 What protective factors favour issuing a positive notice to DP? [7] DP is a well-educated 61-year-old chemical engineer with a loving and supporting family and a life-long commitment to surf life-saving.9 He has been gainfully employed for most of his adult life, including positions of significant responsibility. [8] He has a strong support network who are aware of the allegations. He provided positive character references to the effect that he is professional, compassionate, 1 Blue Card Services Bundle of Documents, BCS-13. 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156, Schedule 1. 3 Ibid s 226. 4 Ibid s 221. 5 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Commissioner for Children and Young People v Eales [2013] QCATA 303, [6]-[7]; AD v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney- General [2017] QCAT 99, [21]-[22]; Elliot v Director-General, Department of Justice and Attorney- General [2020] QCAT 245, [29]. 6 ACL v Director-General, Department of Justice and Attorney-General [2020] QCAT 104, [38]; PXS v Director-General, Department of Justice and Attorney-General [2020] QCAT 342, [10]. 7 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360. 8 Ibid s 6(b). 9 Life Story dated 30 November 2018. -- 3 of 8 -- 4 generous, fair and of good character.10 Unfortunately, none of the referees attended the hearing to give evidence. Because they were not available for cross-examination, the weight to be attached to their references must be reduced. Nevertheless, the Tribunal is satisfied that the evidence suggests that DP is well respected within his community. [9] DP said that over the past decade, he used a Mental Health Plan for counselling from a psychologist to address anxiety arising from time spent away from home, unsuccessful resuscitations and losing 16 friends in the 2002 Bali bombings.11 Unfortunately, none of this information was sufficient to reveal the extent to which he was able to identify and address the triggers for his behaviour and appropriate coping strategies. [10] DP has no criminal history apart from minor traffic offences, although police information also reveals he had a withdrawn ticket for ‘wilful exposure’.12 What key risk factors prevent issuing a positive notice to DP? [11] In 2018, serious allegations were made that DP had a relationship with or indecently assaulted a 16-year-old friend of his daughter while DP was a volunteer at a Surf Club.13 DP denied many of the allegations and no charges were laid. [12] In a separate investigation by Surf Life Saving Queensland,14 DP admitted to: (a) Sleeping in bed with the child when alternative arrangements could have been made; and (b) Drinking alcohol while the sole chaperone. [13] Other allegations against DP included:15 (a) Giving gifts of underwear to the child; (b) Shaving the child’s vagina while showering with her; and (c) Sending inappropriate texts to the child. [14] Although DP again denied many of the allegations, he did admit to: (a) Buying underwear at the child’s request; (b) Sleeping in the same bed with her on two separate occasions; (c) Showering with her and shaving her pubic region; and 10 Reference of VP dated 9 February 2020, References of KP dated 12 May 2018 and 18 February 2020, References of CJ dated 11 May 2018 and 11 February 2020, Reference of WS dated 14 February 2020. 11 Life Story dated 30 November 2018. 12 Blue Card Services Bundle of Documents, BCS-13; QPS Solicitors’ Office Report Details dated 10 April 2019. 13 QPS Statement of Witness dated 30 September 2017; Letter complainant to Surf Life Saving Club dated 6 February 2018; QPS Statement of Witness dated 11 October 2017. 14 SLSQ Judiciary Hearing dated 4 December 2018. 15 SLSQ Report dated 21 September 2018. -- 4 of 8 -- 5 (d) Parking at a beach with her to watch the surf. [15] DP is entitled to the presumption of innocence for the allegations he denied. However, these are not criminal proceedings. The Tribunal’s role is not that of a Magistrate assessing whether the Crown has a prima facie case sufficient to commit DP to trial, or even to determine whether the evidence is sufficient to bring charges.16 It is not the Tribunal’s function to determine whether DP committed any offences,17 nor is it necessary to be satisfied on the balance of probabilities that any offences occurred:18 … the Applicant’s guilt or innocence is a secondary consideration to the determination of what is in the best interests of children and young people.19 [16] In providing a registration regime for the paramount protection of children, the Legislature appears to have taken the presumption of innocence into account - by including “anything else relevant” as a factor to be considered. The wording is sufficiently broad to extend to allegations of inappropriate behaviour that may not meet the criminal standard of proof, consistent with the objects of the Act.20 This means the Tribunal may consider the nature and circumstances of the alleged behaviour, their seriousness and when they are alleged to have been committed, their relevance to working with children and anything else relevant. [17] The allegations are serious and together raise significant concerns about DP’s ability to provide a protective environment for children.21 At the very least, much of the behaviour that DP has admitted constituted significant boundary violations. [18] While some level of social interaction was a necessary part of the relationship, it must be within acceptable boundaries of the child’s best interests. Entering the shower to shave the child’s pubic region – even if at her request – was extremely inappropriate, particularly within the context of the child’s history of sexual abuse before meeting DP. [19] The child had come from a fractious home environment. She was vulnerable. DP had become her confidant and a father-figure. It was incumbent upon DP to maintain boundaries appropriate to a father-daughter relationship. His actions in the shower did not. He did not provide a protective environment to a vulnerable child in his role as a father-figure to her. [20] Even if DP believed the child or her father consented to various aspects of his conduct, it cannot absolve his failure to provide a protective environment. DP was in a position of influence with both the child and her father. The father had deprioritised his relationship with the child. Children do not always act in their own best interests. Any consent – perceived or real – was vitiated by DP’s influence. Moreover, DP cannot transfer responsibility for his own behaviour to the father or the child. 16 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, [58]. 17 Commissioner for Children and Young People and Child Guardian v Lister (No.2) [2011] QCATA 87, [32]. 18 TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [89]. 19 Anderson v Commission for Children and Young People and Child Guardian [2010] QCAT 671, [55] citing M v M (1988) 166 CLR 69. 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6. 21 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, [66]. -- 5 of 8 -- 6 [21] The Tribunal does not accept that consent – perceived or real - mitigates DP’s behaviour to an acceptable standard for the purposes of the child protection regime where the interests of the child are paramount. DP was still required to act in the child’s best interests and maintain proper boundaries. [22] The behaviour was recent and occurred within a relationship premised on trust and characterised by the exercise of influence. DP was as an authority figure to the child, based on his senior position within the surf life-saving community and as the father of the child’s friend. [23] As an authority figure and holder of a Blue Card at the time, DP had a commensurate level of responsibility towards children in his care, invoking the protective purpose of a regime designed to maintain community confidence in those whom it entrusts with the care of its children. The community must be confident that persons entrusted with the care of children are free of inappropriate conduct towards children in their care. [24] Other behaviour to which DP admitted was of sufficient veracity and seriousness for him to be suspended from surf life-saving for a period of three years.22 It occurred while he was in a position of care and responsibility as a chaperone and senior figure within his local surf life-saving club. Given his experience and seniority within surf life-saving, his behaviour is of considerable concern. [25] DP’s admitted behaviour demonstrated a fundamental lack of understanding of the nature of the relationship with the child. The behaviour disregarded the impacts of compromising that relationship, including the psychological and emotional impact on the child’s well-being and the disruption to the broader life-saving community. It was contrary to the trust the community places in those with the care of children. [26] Moreover, DP’s evidence and submissions since his actions show a lack of understanding of this and why it is relevant to determining his suitability to work with children. He instead focused on denying and minimising his involvement,23 saying that the child “was an adult in that situation” and had made sexual approaches to him over a period, including directing him to enter the shower. She was a child. Boundary violations are unacceptable. [27] The evidence is that the child had been sexualised from a young age and this was readily apparent to DP. Despite this, DP’s overall response to any sexualised approaches from the child did little to discourage her behaviour. At the very least, he allowed the ambivalent and transgressive dynamic to continue. His conduct lacked insight, compromised their relationship of trust and was not appropriate. [28] DP did not provide independent expert evidence of steps he has taken to address factors that might have contributed to his behaviour, such as his anxiety. DP did not provide independent expert evidence of ongoing participation in counselling, psychometric testing or formal assessment of his current suitability to work with children. This can perhaps be attributed to his minimising the impact of his admitted behaviour on the child, saying any harm caused to her was minimal compared with other events in her life up to that time: 22 SLSQ Judiciary Hearing dated 4 December 2018. 23 SLSQ Report dated 21 September 2018. -- 6 of 8 -- 7 A person aware of the consequences of his actions on others is less likely to re- offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.24 [29] DP did not identify any triggers for his offending behaviour or strategies to prevent it, nor any underlying issues. He expressed only modest remorse for his actions, stating “I can’t do this” after the shower incident. He mainly focused on his own hardship that he attributed to the child’s complaints. The process of applying for a Blue Card is about assessing DP’s suitability to work with children. The process serves the best interests of children. [30] The community must be confident that DP is aware of the psychological and emotional impact of his behaviour on others sufficient to work with children. By seeking to minimise the offending behaviour, DP lacks sufficient insight into the impact of his behaviour. This is relevant to child-related employment.25 Is this an ‘exceptional case’ to not issue a positive notice to DP? [31] The legislative provisions favour the protection of children. [32] Without a Blue Card, DP’s involvement in the community and in particular, his commitment to surf life-saving, will be curtailed. However, the law requires that in considering whether to allow a person a positive notice for a Blue Card, the interests of children must take priority over an applicant’s interests.26 [33] Accordingly, any detriment to DP is not relevant to the granting of a positive notice27 – the paramount consideration is the welfare and best interests of children.28 This is consistent with human rights considerations, because it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people.29 [34] DP may have an explanation for at least some of the alleged incidents when taken in isolation. However, when considered together, they show a pattern of behaviour inconsistent with community expectations of proper boundaries and a lack of understanding of, or regard for, those standards. [35] Even if DP’s version of the circumstances of his behaviour is correct, at no stage has he expressed any understanding or insight into why this behaviour could be inappropriate or the impact it might have on others. The community must be confident that a person is aware of the impact of their behaviour sufficient to work with children. DP’s lack of understanding of the nature of his own admitted behaviour and its impact on others is contrary to the protective objects of the legislation. His evidence showed a lack of insight into the relative power imbalance of his relationship with children. [36] Those who work with children must act responsibly and protect them. The behaviour to which DP admitted is sufficiently serious to suggest an unacceptable risk of harm to children. The community cannot be confident that DP can always act responsibly 24 Re TAA [2006] QCST 11, [97] 25 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [65]. 26 Ibid, [63]. 27 Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [47]-[48]; Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2, [29]. 28 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(a), s 360. 29 Human Rights Act 2019 (Qld), s 13, s 26. -- 7 of 8 -- 8 with children and is aware of the impact of his behaviour on others, sufficient to work with children. [37] The nature and seriousness of the behaviour to which DP admitted, together with his limited insight into the impact of that behaviour and failure to undertake steps to address triggers, show an unacceptable risk of harm. [38] DP’s behaviour was integrally linked to – and an abuse of – his relationship of trust with the child. Children depend on adults to have insight into their actions and their likely effect.30 It was DP’s responsibility to provide a safe environment for children. DP has not shown this. His case is ‘exceptional’ and prevents issuing him with a positive notice for a ‘Blue Card’. Conclusion [39] The correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 17 September 2018 to issue DP a negative notice. [40] Because the Tribunal has previously ordered that any reasons or orders of the Tribunal are not to identify relevant persons, these reasons are published in a de-identified format.31 30 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11. 31 Direction 4 of 27 May 2019; Direction 4 of 19 July 2019; Direction 2 of 11 August 2020; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66. -- 8 of 8 --