CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61 PARTIES: CSK (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML320-18 MATTER TYPE: Childrens matters DELIVERED ON: 3 March 2020 HEARING DATE: 17 October 2019 HEARD AT: Brisbane DECISION OF: Member McDonnell ORDERS: The decision of the Director-General, Department of Justice and Attorney-General made on 5 November 2018 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child. Accordingly, these reasons have been de-identified. 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 – where positive notice and blue card suspended – where issue of negative notice – application for review – where applicant has disciplinary information – where applicant has charges for -- 1 of 30 -- 2 disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 228 of the Working With Children (Risk Management and Screening) Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 228, s 237, s 242, s 243, s 353, s 354, s 360 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 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 FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210 Re TAA [2006] QCST 11 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: A Bryant REASONS FOR DECISION Introduction CSK, a 52 year old man who was a registered teacher, had been issued a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) on 14 October 2005, 12 December 2007, 23 October 2009 and 23 January 2012. On 24 September 2014 the respondent was advised by the Queensland College of Teachers (‘QCT’) that the applicant’s teacher’s registration had been suspended under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’).1 On the same day, disciplinary proceedings were commenced in QCAT against the applicant on the ground that he was unsuitable to teach. As required under s 242 WWC Act, on 26 September 2014, the respondent advised the applicant that his positive notice and blue card were suspended. As a result of the disciplinary proceedings CSK’s teacher’s registration was cancelled and the respondent was notified. The respondent conducted a reassessment of the 1 Ex 7, BCS-50. -- 2 of 30 -- 3 applicant’s eligibility to hold a positive notice and blue card and invited the applicant to make submissions about whether or not there was an exceptional case for the applicant. He made submissions. Where the chief executive is aware of disciplinary information or a charge for a disqualifying offence that has been dealt with other than by a conviction, the chief executive must issue a positive notice, 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 positive notice to be issued.2 The chief executive was satisfied the case was exceptional within the meaning of the WWC Act. On 5 November 2018, the respondent wrote to the applicant advising that it had decided to cancel CSK’s positive notice and issue a negative notice. CSK seeks a review of the respondent’s decision. Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’3 is entitled to apply for a review of a ‘chapter 8 reviewable decision’4 within the prescribed 28 day period.5 This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.6 CSK is not a disqualified person and sought a review within the prescribed period. Background to the proceedings The applicant has the following entries on his criminal history check: (a) Three charges for unlawful relationship of a sexual nature with child under 16 years of age; (b) One charge for rape; and (c) Four charges for unlawful and indecent dealing with child under 16 years of age (‘the Charges’).7 The alleged offending occurred between June 1995 and March 1996 while the applicant was a teacher in the Northern Territory. CSK was charged in about May 1996. He was suspended from teaching by the Northern Territory Department of Education on 19 June 1996. At the committal hearing on 1 November 1996 the Charges were dismissed and the applicant was discharged.8 The applicant’s teaching suspension was lifted on 21 November 1996. 2 WWC Act, s 221(2). 3 WWC Act, s 169 (definition of ‘disqualified person’). 4 WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 33(3). 6 WWC Act, s 353(a). 7 Ex 7, BCS-43. 8 Ex 7, BCS-44 to BCS-45, and BCS-98. -- 3 of 30 -- 4 The applicant commenced employment with the Queensland Department of Education (‘DOE’) in 1997 and became a state school principal in 2001. In 2003, the DOE became aware of the Charges and the Queensland Board of Teacher Registration appointed a Committee of Inquiry (‘the Committee’) to inquire into matters involving CSK. The Committee reported to the Board on 7 June 2004 that it had concluded that the applicant was not of good character in that his conduct in the Northern Territory was below that generally expected of a teacher.9 However, due to special circumstances no further action was taken10 and the applicant was permitted to return to teaching.11 In the course of the applicant’s application for a blue card in 2007 the respondent invited the applicant to make submissions about the Charges, which he did on 15 October 2007.12 While the respondent’s decision is not before the Tribunal, it was common ground that the applicant was issued with a positive notice and blue card on 12 December 2007. During 2012, seven teachers at the school at which CSK was then principal made complaints which resulted in an investigation of CSK by the Ethical Standards Unit. As a result of this investigation the QCT suspended the applicant’s registration as a teacher under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld). QCT gave the respondent notice of this suspension on 24 September 201413 and commenced disciplinary proceedings in QCAT against the applicant on the ground that he was unsuitable to teach. As required, pursuant to s 242 WWC Act, the respondent wrote to CSK advising that his positive notice and blue card were suspended, on 26 September 2014. The respondent requested further information from the QCT and on 15 December 2014 QCT advised the respondent that the decision to suspend was based on the reasonable belief that between 1 June 2010 and 22 November 2012 (except during an absence for long service leave from 16 April to 18 May 2012), CSK, while principal, contrary to his duties as a principal and a registered teacher: (a) Failed to maintain appropriate professional boundaries with Year 7 students under his care and control through (but not limited to): i. a pattern of favouritism; ii. meeting and socialising with students outside of school hours; iii. giving of food and gifts; iv. removal of students from school during school hours; v. special treatment on school camp; and 9 Ex 7, Committee of Inquiry – Report and Recommendations to Board, BCS-139 to BCS-144. 10 Ex 7, Extract of Minutes of Board of Teacher Registration Meeting 17 June 2004, BCS-145. 11 Ex 7, BCS-84. 12 Ex 7, BCS-75 to BCS-76. 13 Ex 7, BCS-50. -- 4 of 30 -- 5 vi. ‘friending’ and communicating with students via Facebook; (b) Failed to maintain objective and impartial levels of disciplinary standards for Year 7 students; and (c) Failed to appropriately address concerns within his knowledge in respect of alleged boundary violations with Year 7 students under his care and control.14 On 30 October 2015, at first instance, the Tribunal (‘the Disciplinary Tribunal’) determined that the applicant had engaged in conduct such that he had failed to maintain professional boundaries and failed to maintain objective and impartial levels of discipline for students in his care and control. The conduct and the findings are discussed below. The Disciplinary Tribunal was satisfied that there was sufficient evidence to establish that CSK was not suitable to teach but was not satisfied the evidence established that the applicant was an imminent risk of harm to children. Due to the manner in which the referral was framed, the Disciplinary Tribunal dismissed the referral. 15 The QCT appealed the decision. The Appeal Tribunal’s decision of 31 August 2016 (‘the Appeal Decision’)16 did not disturb the Disciplinary Tribunal’s findings of fact. It declared that a ground for disciplinary action had been established: that the applicant was not suitable to teach. The matter was remitted to the Tribunal to determine the sanction. In March 2018, the Tribunal cancelled the applicant’s teacher’s registration and he was prohibited from applying for registration for four and a half years from 24 September 2014 (‘the Sanction Decision’).17 He was permitted to reapply for his teacher’s registration from 24 March 2019. By letter dated 19 March 2018,18 pursuant to s 285A of the Education (Queensland College of Teachers) Act 2005 (Qld), the QCT advised the respondent of the cancelation of CSK’s teacher’s registration. The respondent wrote to CSK on 21 May 2018 advising that ‘I am now re-assessing your positive notice and blue card and proposing to cancel the suspension of your blue card and issue a negative notice.’19 The applicant was given the opportunity to make submissions. He provided substantial submissions and references to the respondent.20 On 23 October 2018,21 the respondent invited the applicant to make further submissions, which he did on 30 October 2018.22 By letter dated 5 November 2018 the respondent advised the applicant of its decision. 14 Ex 7, BCS-51. 15 Queensland College of Teachers v Smith [2015] QCAT 426. 16 Queensland College of Teachers v CSK [2016] QCATA 125. 17 Queensland College of Teachers v CSK [2018] QCAT 70. 18 Ex 7, BCS-53 to BCS-54. 19 Ex 7, BCS 63. 20 Ex 7, BCS-129 to BCS-188. 21 Ex 7, BCS-74. 22 Ex 7, BCS-190 to BCS-191. -- 5 of 30 -- 6 The material The applicant provided the Tribunal with his life story dated 17 December 2018, his affidavit sworn 26 April 2019 with numerous exhibits including a report from a psychologist dated 22 June 2017, affidavits from four referees and numerous statements from other witnesses. He made oral and written submissions. The Respondent provided the Tribunal with its Reasons for Decision and attachments comprising pages BCS-1 to BCS-254 and documents obtained pursuant to notices to produce being NTP-1 to NTP-405. The respondent had the opportunity to cross- examine CSK and his witnesses and made oral and written submissions. The relevant law The parties disagree about the law to be applied in the review of the decision. This issue was raised in the applicant’s closing address. The Tribunal ordered that the parties provide written submissions dealing with the issue. Written submissions were received from the applicant dated 24 October 2019 and 6 November 2019. The respondent provided written submissions dated 30 October 2019. This issue will be discussed further, below. Consideration of s 226(2) WWC Act If the Charges are relevant to the Tribunal’s consideration then the Tribunal must have regard to the mandatory considerations contained in s 226(2) of the WWC Act, which are addressed below. Whether the offence is a conviction or a charge The applicant has charges as set out in paragraph [10] above. The Northern Territory Office of the Director of Public Prosecutions advised the respondent on 2 October 2007 that the matter proceeded to a committal hearing and the applicant was discharged on each and every count.23 As the records of the proceedings were lost in floods the applicant provided the Tribunal with other material relating to the dismissal of these proceedings. The barrister who acted for CSK in the committal proceedings in the Northern Territory provided an affidavit to the 2004 Committee of Inquiry24 as to his recollection of the committal hearing. A copy of this affidavit was provided to the Tribunal. The deponent was not made available for cross-examination. In the deponent’s view, at the committal hearing ‘none of the six witnesses gave any evidence upon which a properly instructed jury could convict on any charge.’25 His recollection was that at the conclusion of the proceedings the prosecutor made a submission that the Court should not commit for trial. He further observed that ‘[i]n 23 Ex 7, BCS-45. 24 Ex 2, CK-2, pages 61-71. 25 Ibid, page 71. -- 6 of 30 -- 7 all my years in practice I have not encountered a more implausible set of allegations. The evidence as presented was plainly incapable of belief.’26 CSK’s brother, who attended the committal hearing, told the Tribunal that the Charges were dismissed due to there being no evidence of wrong-doing.27 A number of the other witnesses for the applicant gave evidence about the basis for the dismissal of the Charges, which evidence is at best hearsay. The Tribunal accepts that the Charges were dismissed and that the applicant was discharged. In the Tribunal’s view it is not necessary to make further findings about these proceedings. Whether the offence is a serious offence and, if it is whether it is a disqualifying offence The offences with which the applicant was charged are disqualifying offences under the WWC Act. This is indicative of the gravity with which Parliament considers offences or alleged offences of this nature and their direct relevance to an applicant’s eligibility to hold a blue card. When the offence was committed or is alleged to have been committed The offending is alleged to have been committed between 1995 and 1996. Over 20 years has elapsed since that time. The Charges were dismissed at committal hearing. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children Serious allegations of sexual offences against three male complainants aged between 10 and 12, who were students of the applicant at the relevant time, were made. It was alleged that between June 1995 and March 1996 the complainants stayed at the applicant’s house regularly. The applicant was alleged to have: (a) Insisted the complainants shower; (b) Provided them with t-shirts of his own to wear to bed; (c) Slept in the same bed as the complainants; (d) Fondled the complainant’s genitals; and (e) Masturbated the complainants. The applicant was in a position of trust and authority in his role as the complainants’ teacher. Although the Charges were dismissed the applicant admitted that students stayed overnight at his house on approximately 10 occasions and on at least some occasions he was the only adult present.28 26 Ibid. 27 Ex 6, paragraph 13. 28 Ex 7, BCS-87 to BCS-95, Statement of CSK 16 April 2004, paragraph 29. -- 7 of 30 -- 8 The applicant’s behaviour is directly relevant to his working with children. Granting a positive notice and blue card would enable the applicant to work in situations where he would be placed in positions of trust and would be responsible for the care, supervision and wellbeing of children. The applicant’s admissions raise concerns regarding his ability to maintain appropriate boundaries, act protectively and promote a safe, protective and supportive environment at all times. 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 or not to make a disqualification order under section 357, the court’s reasons for its decision [40] The Charges were dismissed at committal hearing. Any information about the person given to the chief executive under section 318 or 319 No information was given under s 318 or s 319 of the WWC Act. Any report about the person’s mental health given to the chief executive under section 335 No information was given under s 335 of the WWC Act. Any information about the person given to the chief executive under section 337 or 338 No information was given under s 337 or 338 of the WWC Act. Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. In 2004, the Queensland Board of Teacher Registration appointed a Committee of Inquiry to inquire into matters involving CSK as there were grounds to believe he was no longer of good character to be registered as a teacher. The Committee investigated allegations including the Charges and other alleged behaviour by CSK in the Northern Territory including: That the teacher behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher and he behaved in a disgraceful and improper way that shows he is unfit to be registered as a teacher in that: (a) He behaved in an inappropriate manner towards students, in that he had an inappropriate relationship with students of [the school], Northern Territory while engaged as a teacher at the school. The nature of the relationships is that between the 1 st of June 1995 and 15th of March 1996 he entertained students at his home at [address], and engaged in activities including: (i) accommodating students in his home, including overnight; (ii) instructing and/or allowing students to shower in his home; (iii) instructing and/or allowing students to change into clothes of his, namely t-shirts; (iv) instructing students they were not allowed to wear shorts while they slept over, or allowing them to not wear shorts while they slept over; -- 8 of 30 -- 9 (v) sleeping with students in his bed; (vi) allowing students to sleep with him in his bed; (vii) allowing students to sleep in another bed in the same bedroom with him.29 In his statement dated 16 April 2004 prepared for the Committee, CSK admitted that students stayed overnight at his house on approximately 10 occasions and on at least some occasions he was the only adult present (‘the Admitted Conduct’), but that there had always been more than one student at any time and that the children stayed in a double bed in a room from the teacher. He denied the remainder of the claims in part (a) above.30 The Committee reported to the Board on 7 June 200431 that it was ‘… satisfied to the required degree that the respondent teacher is not of good character in that he behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher.’32 However, the Committee reported that it considered that the applicant’s behaviour needed to be contextualised. It observed ‘while he should have been aware, as a mature person, that his conduct in accommodating students overnight could compromise both his position as a teacher and the welfare of the students’, there were mitigating factors to be taken into account in determining the appropriate order. On the basis of the Committee’s report the Board did not take action to suspend or cancel the applicant’s teacher’s registration in Queensland.33 In evidence before this Tribunal the applicant acknowledged that the Admitted Conduct fell below the standard expected of a teacher. This behaviour demonstrates a failure by the applicant to establish and maintain appropriate professional boundaries. In the course of the CSK’s application for a blue card in 2007, the respondent invited the applicant to make submissions about his conduct in the Northern Territory, which he did. The applicant was issued with a positive notice and blue card on 12 December 2007. Thus, the respondent was aware of the applicant’s conduct in the Northern Territory, the Charges, and the Committee’s findings when it issued a positive notice and blue card to the respondent on 23 January 2012. Consideration of s 228(2) WWC Act In relation to the disciplinary information the Tribunal must have regard to the mandatory considerations contained in s 228(2) of the WWC Act. The matters listed in s 228(2) WWC Act are addressed below. 29 Ex 7, BCS-139 (de-identified). 30 Ex 7, BCS-87 to BCS-95, Statement of CSK dated 16 April 2004, paragraphs 14, 29-32. 31 Ex 7, BCS-139 to BCS-144, Committee of Inquiry – Report and Recommendation to Board, 7 June 2004. 32 Ex 7, BCS-144. 33 Ex 7, BCS-145. -- 9 of 30 -- 10 The decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order. Allegations were made that while engaged as a principal at a state school in Queensland, CSK engaged in inappropriate behaviour with a group of year 7 students in the period 1 June 2010 to 18 May 2012. On 24 September 2014, after investigation, the Queensland College of Teachers suspended CSK’s teacher registration and referred the matter to the Tribunal for disciplinary action. The Disciplinary Tribunal delivered its decision on 30 October 2015. It was satisfied that there was sufficient evidence to establish that CSK was not suitable to teach but that it did not support a finding that he posed an imminent risk of harm to children. The Tribunal dismissed the referral.34 It made numerous findings, in particular, that CSK: (a) Failed to maintain appropriate professional boundaries with year 7 students under his care and control through (but not limited to): (i) A pattern of favouritism; (ii) Meeting and socialising with students outside of school hours; (iii) Giving of food and gifts; (iv) Removal of students from school during school hours; (v) Special treatment on school camp; and (vi) ‘Friending’ and communicating with students via Facebook; (b) Failed to address appropriately concerns within his knowledge about alleged boundary violations with Year 7 students in his care and control; and (c) Failed to maintain objective and impartial levels of disciplinary standards for Year 7 students under his care and control. The conduct of the respondent which resulted in these findings included: (a) Taking a boy to McDonalds in circumstances that were not part of a regular school activity or reward system; (b) Associating with a boy on weekends other than in respect of school activities; (c) Buying a boy football boots, a mouthguard and a rugby club registration; (d) Taking a boy to Kmart; (e) Selecting particular boys for trips to hardware shops during school hours and rewarding them with McDonalds; (f) Selecting particular boys, and taking them out of school to buy ingredients for cooking classes; 34 Queensland College of Teachers v Smith [2015] QCAT 426. -- 10 of 30 -- 11 (g) Requesting particular boys to attended his house on weekends to mow the lawn and perform yard work for monetary payment; (h) Driving particular boys to another town outside school hours to mow the lawn at premises where his wife resided; (i) Driving particular boys to a fete in another town and buying them drinks and hamburgers; (j) Failing to obtain parents’ written permission to have students build a garden and set up a games room, during school holidays; (k) Permitting particular boys to sleep over at his house on the basis that it was a reward for work on the garden and games’ room; (l) Taking students fishing after school hours and on weekends; (m) Allowing students to drive his car when they were unlicensed and did not have parental permission; (n) Becoming friends, and communicating, with three students on Facebook without meeting the strict conditions required by the Education Queensland Student Protection Policy; and (o) Choosing particular boys to travel with him for both the trip to camp and back, reinforcing the perception that these boys were his favourites. Some of these same boys were taken on a helicopter flight at CSK’s expense, exacerbating the perception of favouritism. Parental permission for this activity was not obtained, demonstrating a lack of respect for proper procedure. In relation to the sleepover, the Disciplinary Tribunal found CSK’s explanation for moving its location from school to his home unconvincing. Further it found that, at best, he was ill-prepared for the sleepover, was careless of his obligations and that he did not properly consider the needs of the students in his care The Disciplinary Tribunal observed that CSK’s conduct demonstrated a misunderstanding of his role as a teacher/principal and considered that CSK’s failure to understand the potential for misunderstanding or misinterpretation of his actions demonstrated a lack of insight. Also troubling to this Tribunal is that the Disciplinary Tribunal determined that CSK ‘failed to create the necessary atmosphere of trust and mutual respect’35 with his staff such that they did not feel comfortable raising their concerns about CSK’s treatment of the boys. Any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order The Appeal Tribunal36 found that a ground for disciplinary action had been established, that CSK was unsuitable to teach. It agreed with the Disciplinary Tribunal 35 Ibid, [235]. 36 Queensland College of Teachers v CSK [2016] QCATA 125. -- 11 of 30 -- 12 that he did not pose an imminent risk of harm to children. The Appeal Tribunal remitted the matter to the Tribunal to impose a sanction. On 14 March 2018, the Tribunal ordered37 that CSK’s teacher’s registration be cancelled and he was prohibited from reapplying for registration for a period of four and a half years from his suspension, until 24 March 2019. In arriving at the Sanction Decision the Tribunal had the benefit of joint submissions from the parties. In the present proceedings CSK was critical of that Tribunal for failing to simply adopt those submissions and apply the agreed sanction, demonstrating a misunderstanding of the role and responsibility of that Tribunal. In making the Sanction Decision the Tribunal observed that CSK: (a) Had shown some insight into his behaviour, as reported to the clinical psychologist in that he acknowledged that it was wrong and sought psychological treatment; (b) Had demonstrated a degree of minimisation of his behaviour and a lack of insight into its impact on students; (c) Was the principal of the school and therefore in a position of greater authority and responsibility, with a greater expectation of leadership; (d) Faced previous disciplinary charges and criminal charges relating to inappropriate behaviour while a teacher in the Northern Territory, and while those charges were not progressed, it considered that CSK should have been more alert to community perceptions about appropriate behaviour with students; (e) Behaved in a manner demonstrating a pattern of serious boundary violations over an extended period; and (f) Expressed no remorse or concerns about the impact of his behaviour on his students or members of his staff or the local community, therefore causing the Tribunal to have concerns about his level of insight. The Tribunal considered it was necessary to prevent the applicant from teaching for a further period to achieve the objects of the QCT Act and to convey the Tribunal’s strong disapproval of his behaviour and allow him to further reflect on its impact on both his students and members of his staff and that this would serve as a deterrence to others. The relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children The disciplinary information contains reports of inappropriate behaviour by the applicant while a teacher and principal. He was in a position of trust, responsibility and authority and his behaviour constituted a significant breach of the trust placed in him by his students, his staff and the community. 37 Queensland College of Teachers v CSK [2018] QCAT 70. -- 12 of 30 -- 13 Over a period of 2 years the applicant demonstrated a lowering of professional boundaries. As a teacher and principal with many years of experience he should have been aware that his conduct was unacceptable and in breach of his professional standards of behaviour. The information before the Tribunal raises serious concerns regarding CSK’s ability to maintain appropriate boundaries with children, determine appropriate behaviour when interacting with children and adhere to standards of conduct and policy. The Disciplinary Tribunal’s finding that CSK ‘failed to create the necessary atmosphere of trust and mutual respect’38 with his staff such that they did not feel comfortable raising their concerns about CSK’s treatment of the boys is also of concern to the Tribunal. Anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person CSK placed importance on the fact that the investigation occurred as a result of complaints made by only seven teachers, and that no students or parents of students, nor the other 33 staff members, made complaints. He was critical of the investigation leading to the termination of his teacher’s registration, saying that it lacked procedural fairness. He alleged collusion between an investigator and a teacher in relation to the evidence before the Disciplinary Tribunal. He went so far as to say that if the investigation had been fairly conducted he would not now be before this Tribunal. This allegation of collusion was raised by CSK before the Disciplinary Tribunal and before the Appeal Tribunal. The Disciplinary Tribunal dealt with the inconsistent evidence and preferred the teacher’s evidence over CSK’s. The Appeal Tribunal did not accept that the evidence before it established that there had been collusion. This Tribunal must consider the disciplinary information before it. It is not for this Tribunal to look behind the findings of those tribunals. Other relevant matters are considered below. The evidence and the submissions CSK gave evidence. He said that he is close to his family and this was evident to the Tribunal as his brother gave evidence and his sister attended at the hearing to support him. CSK is in a long term relationship with his current partner, and with her they raised her two children from a previous relationship. He said she supports his application for a blue card. She did not give evidence. CSK said that his partner’s now-adult children consider him their father and that he has a close personal relationship with them. One of them provided a written statement and was available for cross-examination. He observed he has a strong support network of friends, including many long term friends. A number of these friends gave evidence to the Tribunal. In relation to the circumstances giving rise to the Charges, CSK said that he and the previous principal at the school had been working hard to build up attendance at the 38 Queensland College of Teachers v Smith [2015] QCAT 426, [235]. -- 13 of 30 -- 14 school. A new principal arrived at the school and was hostile towards him, and in his opinion this new principal was ‘the catalyst for the fabrications’39 of the complainants’ evidence in the committal hearing. He told the Tribunal that the Charges were dismissed as the complainants had lied to the police and the Court, and he was able to return to work. CSK agreed that having children stay at his residence in the Northern Territory ‘opened the door’ for the Charges. CSK said that as a result of the Charges he changed his behaviour, including the way he interacted with the students. When asked about the nature of the changes he made he told the Tribunal that: (a) He taught the same way as before; (b) He elected not to teach in an Aboriginal community; (c) He ceased to have the same amount of sympathy for the Aboriginal community and the students; (d) He resigned from the Northern Territory Education Department; and (e) Until he was ‘forced’ to have children stay at his residence (referring to the sleepover which he relocated from the school to his home and forming part of the disciplinary information) he only ever had his daughter’s friends stay overnight. While the Charges were dismissed, the Admitted Conduct was found by the Committee to be below the standard generally expected of a teacher. 40 CSK said he felt the decision of the Committee was fair and that the Admitted Conduct fell below the standard expected. By way of background to the disciplinary information CSK told the Tribunal: (a) The Queensland school at which he was principal when the complaints were made was a co-educational state school with about 400 students from prep to year 7. CSK said that 50-60% of the school population was indigenous. CSK said that there were many students in need in the school and many of the teachers helped them; (b) The police asked him to be involved with the boy for whom he bought the sporting equipment and club registration and that the grandfather, who was caring for the boy, was paying him back the money for the items. CSK said that the boy mowed his wife’s lawn in part payment; (c) He ‘followed’ some students on Facebook to address racial bullying. He spoke with the parents and a teacher about ‘following’ the students in an attempt to identify who was responsible for the bullying behaviour and then address it. He said his ‘friending’ a student on social media was not a breach of standards/policy as he had told his supervisor. CSK said his supervisor denied 39 Ex 7, letter from CSK to the respondent dated 15 October 2007, BCS-146 to BCS-147. 40 Ex 7 BCS-139 to BCS-145. -- 14 of 30 -- 15 being told and that because he had been suspended CSK was unable to access his school email to provide evidence that he had told his supervisor; and (d) He had arranged a sleepover for some boys and that this was to take place at school but that as he was unable to turn off the school alarm system he relocated the sleepover to his home. There was differing evidence before the Disciplinary Tribunal about whether CSK, as principal, could turn off the alarms at the school. CSK said he had arranged for another teacher to attend the sleepover at the school but that this teacher, in collusion with the investigator, changed his evidence, telling the Disciplinary Tribunal that he did not know about the sleepover until afterwards. CSK accepted that it was poor judgement on his part to allow the sleepover to go ahead once the location was changed but that he felt he could not cancel it as the parents of some of the boys were not home. He told the Tribunal that he was ‘forced’ to go ahead with the sleepover at his home. He acknowledged he ‘made some serious errors of judgement whilst employed as the Principal’41 at the Queensland school and said that he would not act in the same way again. Despite his criticisms of the investigation and the Tribunal, CSK told this Tribunal that he accepted the Disciplinary Tribunal’s findings but went on to say that he disputed the finding that he failed to create an environment in which his staff felt comfortable raising their concerns about CSK’s treatment of the boys. He expressed the view that the Sanction Decision was ‘highly appealable’.42 CSK said that his actions leading to the cancellation of his teacher’s registration were ‘in no way actions which should result in the cancellation of my positive notice and Blue Card.’43 CSK placed reliance upon the Disciplinary Tribunal’s finding that he did not pose an imminent risk of harm to children,44 its observation that the ‘boys never felt intimidated, pressured or uncomfortable’ in CSK’s presence and that the evidence did not support a finding that CSK had engaged in grooming. Since being de-registered as a teacher CSK has completed a law degree and obtained a diploma in human resources. He has undertaken a variety of work, including working as a farm manager, and is not presently sure what employment he will seek in the future. CSK submitted that the period of time that has elapsed since the Northern Territory charges and that he has no other criminal history, support a determination by this Tribunal that this is not an exceptional case. CSK advocated the following protective factors: (a) His unblemished 16 year career as an educator and school leader in which student welfare was his paramount consideration; 41 Ex 2, Ex CK-1, p 2. 42 Ex 2, Ex CK-1, p 2. 43 Ex 2, Ex CK-1, p 2. 44 Queensland College of Teachers v CSK [2016] QCATA 125, [88]. -- 15 of 30 -- 16 (b) LAV’s report demonstrating CSK’s personal insights and acceptance of responsibility as the principal; (c) His long term stable relationship with his partner; (d) His supportive extended family; (e) Referees who support his application and attested to CSK’s ability to work with children in an ethical and professional manner; (f) That he became a JP (Qualified) to give back to the community; (g) That he completed a bachelor of Laws in 2018 and is to be admitted as a lawyer in December 2019; (h) His criminal history is 23 years old; (i) The actions leading to the disciplinary action occurred seven years ago; and (j) The he has been able to apply for his teacher’s registration since 24 March 2019. The risk factors he identified were: (a) That he was charged with child related offences in the Northern Territory in 1996; and (b) That he was subject to a disciplinary penalty in 2018. In explaining that the Tribunal could be satisfied that he would not engage in inappropriate boundary crossing in the future, CSK said: (a) The Tribunal could rely upon the psychologist’s report; (b) That since the last events occurred seven to eight years ago he had reflected on the gravity of the events and his poor judgement; (c) That he acknowledged he had made poor decisions; and (d) That there are a range of protective factors. CSK said he undertook extensive counselling in the period 2012 to 2014 and did a lot of work in these sessions around appropriate professional boundaries. CSK was unable to articulate what he had learnt in these sessions. He said that due to the transient nature of the local population where he lived, he had seen three different counsellors in that time. He did not obtain an up to date medical report as this would have necessitated seeing another counsellor and he could not afford the cost of the consultation and report. The applicant said that he suffered a major depressive disorder because of his Queensland suspension and the manner in which he was suspended but that his mental health is now ‘great’. He told the Tribunal that he was currently working with his GP on his anxiety, depression and the stressors in his life and they were working to cease the medication he has been taking to assist with his mental health. No independent evidence was offered in relation to this treatment or the applicant’s current mental health. -- 16 of 30 -- 17 CSK relied upon the report of LAV45, which he had also provided to the Tribunal for the purposes of the sanction proceedings. The report was not updated for the present proceedings and LAV was not made available for cross-examination. LAV reported that CSK displayed insight into the protective features supporting CSK’s capacity to address stressors including that he had pursued higher education, secured employment within a field of enduring interest (farm management), had maintained a long-standing relationship (and recognised the importance of cohabitation) and had engaged in psychiatric/psychological treatment in times of personal difficulty. LAV observed that CSK acknowledged he had ‘displayed short comings in his capacity to maintain professional boundaries with a number of students’ but that CSK maintained that his behaviour was ‘altruistic’ and motivated by ‘empathy’. CSK’s step-daughter, JLP, gave evidence that CSK has filled the role of father in her life since she was eight years old and that she and her partner and daughter have a close relationship with CSK. JLP spoke of CSK as a dedicated teacher. She had no recollection of having read the reasons of the respondent and had no knowledge of the Charges or the findings of the Committee. She had a very limited awareness of the disciplinary information at the time as her mother and step-father did not discuss the matter in her presence due to her age. She has had limited conversations with CSK about the matter since then. She denied that CSK associated with students at his house46 and disagreed with the Disciplinary Tribunal’s finding that CSK associated with students at his house on weekends. Her evidence in this respect conflicts with CSK’s own evidence. In view of her very limited knowledge of the relevant events the Tribunal places no weight on JLP’s evidence. NTT has known CSK since 1999 when they taught at the same school and he said that they have maintained a personal and professional relationship.47 He is a state school principal and the departmental officer for ensuring child protection in his school. He was aware that the Charges against CSK were dismissed. He considered these allegations were not relevant to the current proceedings as CSK has taught with the Department and held a blue card since then. He said he was aware of the circumstances leading to CSK’s termination by Education Queensland and in his view that conduct should not preclude him from obtaining a blue card. He spoke of the loving and supporting family relationship CSK has with his partner and her children and grandchildren. He spoke of the positive interactions CSK has had with NTT’s own children. He was of the opinion that CSK’s interactions with children are always ethical. It was not clear to the Tribunal whether NTT was aware of the Committee’s findings or the Admitted Conduct, but as he did not consider the Charges relevant to the present proceedings, the Tribunal considers it unlikely this knowledge would have altered NTT’s views. BAP, a state school principal, is an experienced teacher, acting deputy principal and principal, who has known CSK since 2001.48 He said they have maintained a personal and professional relationship since that time and that he supported CSK through the Committee of Inquiry. He said that as a result of providing his support he is aware of 45 Ex 2, CK-6, pages 89-106. 46 Ex 4. 47 Ex 3. 48 Ex 5. -- 17 of 30 -- 18 the alleged conduct which resulted in the Charges. While he was aware that CSK was permitted to continue to teach following the Committee’s report, he was not aware of any findings made by the Committee. BAP said he was fully aware of the Queensland allegations against CSK and in his opinion the termination of CSK’s teacher’s registration by Education Queensland was excessive. He told the Tribunal he had read the Tribunal’s three decisions and believed that some matters were considered by the Tribunals to be borderline standards’ breaches. He accepted that he did not have full knowledge of the Tribunal’s findings. He said his knowledge of CSK’s interactions with students was greater than the complainant teachers’ knowledge, having observed CSK while they were principals at nearby state schools, including at about 12 school camps, interschool sport and arts and science days in school groups. At times CSK coached students from BAP’s school in sport. He said in this time he had never received a complaint about CSK from a student, parent or teacher. BAP said he had never had concerns about CSK’s conduct or behaviour with students and that the applicant has always, in his view, maintained ethical and professional boundaries with both students and the broader community. He told the Tribunal that CSK prioritised the needs and welfare of his students and is highly regarded and respected by his North Queensland Region colleagues. BAP has no concerns about CSK working with children and supports his application. The applicant’s brother, a retired police officer, gave evidence. He had not read the respondent’s reasons. He attended the Northern Territory Committal hearing. He was critical of the manner in which the investigation by Education Queensland leading to the disciplinary proceedings was undertaken. He spoke of the close family relationships CSK enjoys both with CSK’s partner, children and grandchildren and he and his family. He said that the outcome of the 2004 Committee of Inquiry was in CSK’s favour and he was allowed to return to teaching. He made no mention of the Admitted Conduct, nor the findings about this conduct by the Committee. CSK’s brother told the Tribunal that CSK had not indicated to him that his behaviour was as a result of an error in judgement or that he would do anything differently in the future. He supports his brother’s application, having observed his ‘ethical and appropriate’49 interactions with students. BCU provided a statement dated 28 May 2018.50 BCU is a teacher who has known CSK professionally and through the community for eight years. She considers him to be helpful and supportive, and highly skilled in a number of professional areas. She has observed only professional, supportive and positive interactions between CSK and children. BCU was not available for cross-examination and had no stated knowledge of the Charges, the Committee’s report, the Admitted Conduct or the disciplinary information. Accordingly, the Tribunal affords very limited weight to BCU’s evidence. CSK’s son-in-law provided a statement dated 4 June 2018.51 He has observed CSK as a ‘dedicated, loving, family orientated man.’ He supports CSK’s application for a blue 49 Ex 6, paragraph 40. 50 Ex 7, BCS-181. 51 Ex 7, BCS-183. -- 18 of 30 -- 19 card. He had no stated knowledge of the Charges, the Committee’s report, the Admitted Conduct or the disciplinary information and was not available for cross- examination. The Tribunal affords very limited weight to his evidence. MAB has known CSK personally and professionally for more than 22 years and provided a reference dated 3 June 2018.52 She spoke of the positive effect CSK had both upon the class and the school as a whole after he arrived at a particular school and began teaching a notorious year 7 class. She said he brought about changes in the classroom through respect and a love of learning and reinvigorated the other teachers. She said that he emphasised the sports program at the school which had the effect of reducing behavioural problems at the school. She observed that he was liked and trusted by everyone. She had no stated knowledge of the Charges, the Committee’s report, the Admitted Conduct or the disciplinary information and was not available for cross-examination. The Tribunal affords MAB’s evidence very limited weight. A parent of a student at the school at which CSK taught between 2010 and 2012 gave evidence of CSK’s helpful manner with children.53 There was no stated knowledge of the Charges, the Committee’s report, the Admitted Conduct or the disciplinary information. The Tribunal affords this evidence no weight. CSK said that in undertaking this review the Tribunal may consider only information about him that was not known to the respondent at the time of its decision to issue the latest positive notice to the applicant on 23 January 2012. Further, he said that as 23 years have elapsed since the Charges and 15 years have elapsed between the Charges and the behaviour giving rise to the Queensland disciplinary proceedings, the behaviour is now in the past. He disputes his conduct leading to the cancellation of his teacher’s registration is such that it warrants refusal of a positive notice. The respondent said the Tribunal must consider all information available to it in undertaking the review. It urged that limited weight be given to all witnesses not made available for cross-examination. Further, it said limited weight should be afforded to the evidence of CSK’s step-daughter because she had no knowledge of the relevant matters and denied children slept at the applicant’s home, which the applicant admitted they did. The respondent was of the view that limited weight should be given to the evidence of NTT as he had no knowledge of the Committee of Inquiry and limited knowledge of the disciplinary information. It urged limited weight be given to BAP’s evidence as he had limited knowledge of the disciplinary information. The respondent acknowledged protective factors applicable for the applicant but was concerned that there was no up-to-date report addressing the applicant’s current mental health. It urged that while the applicant claimed to have learnt from the matters arising in the Northern Territory and changed his conduct, the 2010-2012 conduct showed he did not. The respondent identified the 15 year gap between incidents as a risk because, despite the time and the applicant’s role as principal, he still acted inappropriately. The respondent expressed concern that CSK demonstrated a tendency to transfer blame to others and still disputes the evidence and the findings of the Tribunal. 52 Ex 7, BCS-186 to BCS-187. 53 Ex 7, BCS-188. -- 19 of 30 -- 20 The protective factors identified by the respondent included: (a) That he has created a positive and productive lifestyle. He has been in continuous employment or studying during his adult life, undertaking further study to complete a law degree following cancellation of his teacher’s registration; (b) That he is in a long standing, stable relationship and has developed a close relationship with his step-daughter and step-grandchildren; (c) That he has demonstrated some remorse and insight into his behaviour which resulted in the disciplinary action, which was to be explored further at the hearing; and (d) He provided statements from eight referees who attested to his character and positive interactions with students and provide a strong support network for the applicant. As to risk factors the respondent said: (a) That the Charges, while dismissed, were all disqualifying offences under the WWC Act; (b) While the Charges did not proceed, the material raised significant concerns about the possible risks posed to children by the applicant within the context of the current proceedings, noting that the provisions of the WWC Act, given its protective jurisdiction, are different to those applied in criminal proceedings; (c) That the applicant submitted that the evidence of the complainant children and other witnesses was ‘totally wrong’54, that the witnesses’ evidence at the committal hearing was inconsistent with previous statements and that the complainants were coerced into making the statements; (d) While acknowledging that the Charges did not proceed and the material indicated the evidence of some of the complainant children changed, that the material suggests that the reason Charges did not proceed may have related to the children’s limited English and issues associated with shame. Thus, it urged the Tribunal to consider the inherent difficulties relating to the prosecution of child sex charges, and also the specific difficulties of this matter; (e) The applicant’s pattern of breaching professional standards and boundary violations, in befriending and favouring male students between nine and twelve years of age and his admissions that he allowed them to spend time at his house, to stay overnight at his house without the supervision of another adult, and that he spent time with them outside of school hours; (f) The applicant was the subject of a 2004 Committee of Inquiry in relation to his Northern Territory conduct and the Committee concluded that his conduct was below that generally expected of a teacher. However, due to special circumstances no further action was taken by the Board. This inquiry should 54 Ex 7, BCS-87 to BCS-95, Statement of CSK dated 16 April 2004. -- 20 of 30 -- 21 have alerted CSK to the importance of maintaining professional boundaries with students; (g) The applicant was investigated for engaging in inappropriate conduct between 2010 and 2012 whilst a principal in Queensland. Findings were made by the Tribunal and CSK’s teacher’s registration was cancelled and he was prohibited from reapplying for four and a half years. The Disciplinary Tribunal found that upon becoming aware of rumours about himself acting favourably towards some students, CSK breached his ethical and professional standards, failed to report the matter and during a staff meeting threatened to sue or jeopardise the career of his colleagues if they raised any concerns about the matters; (h) Having been the subject of criminal charges in 1996 and an investigation in 2003 in relation to that same conduct, by 2010 the applicant should have been alerted to the inappropriateness of engaging in overly familiar relationships with students and the importance of maintaining professional boundaries with students and acting in accordance with standards of practice; (i) At the time of his further inappropriate conduct he was a school principal, a position of considerable responsibility and trust. Given his position and the previous experiences arising out of the Northern Territory conduct he should have been aware of the need to maintain appropriate professional boundaries. This pattern of behaviour indicates that the applicant has little regard for professional and ethical boundaries and raises significant concerns about his ability to act appropriately in the future; (j) The respondent submits that the material before the Tribunal raises concerns that the applicant’s behaviour during the periods of concern may have been grooming, which raises serious concerns about the applicant’s ability to act protectively and in the best interests of children and young people; (k) The applicant has demonstrated some limited remorse with respect to the disciplinary proceedings but when considering the material in its entirety considers he possesses limited genuine remorse and insight, as evidenced by: (i) his tendency to shift blame to others, including discrediting some of the students and adults who raised concerns about his behaviour; (ii) disputing the legality of the disciplinary proceedings which resulted in the cancellation of his teacher’s registration; and (iii) a tendency to minimise the seriousness of his actions; (l) That conditions cannot be imposed on a blue card and that once issued it is fully transferable. The Legislative Framework As indicated above, the parties disagreed about the law to be applied in this review. The parties agreed that s 242 was applicable to the suspension of the applicant’s positive notice and blue card, but disagreed as to the law to be applied in ending the suspension and issuing a replacement notice, in undertaking this review. -- 21 of 30 -- 22 The applicant’s submissions Briefly, the applicant said that sections 237, 221, 226 and 228 WWC Act must be applied in this review and that the effect of these provisions is that the Tribunal may consider only information not known to the chief executive at the time the 23 January 2012 positive notice was issued. Thus, he says, the Tribunal may have regard to the disciplinary information, but not to information known to the respondent at 23 January 2012. Section 237(1) and (2) WWC Act provide: (1) The chief executive may cancel a person’s positive notice (the cancelled notice) and substitute a negative notice if the chief executive is satisfied that— (a) the decision on the application for the cancelled notice was based on wrong or incomplete information and, based on the correct or complete information, the chief executive should issue a negative notice to the person; or (b) subject to sections 240 and 242, it is appropriate to cancel the positive notice having regard to— (i) disciplinary information, or information received under part 6, division 2 to 4, about the person, other than information known to the chief executive at the time the positive notice was issued; or (ii) a decision of a court made after the positive notice was issued, including the reasons for the decision, relating to an offence committed by the person. Note— Sections 240 and 242 provide for the suspension of a person’s positive notice, in particular circumstances, before the chief executive decides whether to issue a further positive notice or a negative notice to the person. (2) In making a decision under subsection (1), the chief executive must make the decision as if it were a decision about a prescribed notice application and, for that purpose, division 9 applies in relation to making the decision. CSK said that: (a) His positive notice and blue card was suspended under s 242 WWC Act; (b) Pursuant to s 242(10) WWC Act the positive notice, while current, remained suspended until cancelled by the respondent on 5 November 2018; (c) The positive notice was substituted with a negative notice upon application of Chapter 8, Division 11, WWC Act; (d) Section 242 is the only provision in the WWC Act which deals exclusively with suspension of a teacher’s positive notice; -- 22 of 30 -- 23 (e) Section 242 WWC Act contains no provision enabling the respondent to cancel a teacher’s positive notice by reference to a provision other than in Chapter 8, Division 11; (f) Having cancelled CSK’s positive notice the respondent (and the Tribunal) is required to apply s 221 WWC Act; (g) The respondent applied s 226 and s 228 WWC Act in deciding if an exceptional case exists; (h) Sections 226 and 228 WWC Act make it clear that the respondent (and the Tribunal) must adhere to the provisions of Chapter 8, Division 11; (i) The WWC Act contains no other provisions dealing with cancelling a positive notice and substituting a negative notice; (j) Thus, s 237 WWC Act must be applied in determining these review proceedings, as it is the only provision which deals with cancelling a positive notice and substituting a negative notice; (k) That the legislative intent of the WWC Act is outlined in s 5 WWC Act and that s 226(2)(e) and s 228 (2)(d) must not be read in isolation of, or independently from s 237 WWC Act. He said this means the respondent may have regard only to ‘disciplinary information … about the person other than information known to the chief executive at the time the positive notice was issued’; and (l) Allowing the respondent to reassess information considered on multiple occasions would be to deny the applicant procedural fairness. The respondent’s submissions Briefly, the respondent said that s 237 WWC Act does not apply to the present proceedings, but rather that s 243 is the applicable provision. Thus, it says the Tribunal must have regard to all the information in making its decision pursuant to Chapter 8, division 9 of the WWC Act. It does not deny the application of Chapter 8, division 11 WWC Act but says sections 226 and 228 Chapter 8, division 9 WWC Act provide the test to be applied when making the decision under Chapter 8, division 11 WWC Act. It said these provisions require the decision-maker to consider all information available to it at the time of making the decision. Relevantly, s 243 WWC Act provides: (1) This section applies to a positive notice held by a person that is suspended under section 242 (the suspended notice). (2) The suspension ends if— (a) the suspended notice is cancelled under another provision of this division; or (b) on the chief executive’s own initiative or on application by the person— (i) the chief executive cancels the suspended notice and issues the following (replacement notice) to the person— -- 23 of 30 -- 24 (A) if the person is not a registered teacher when the suspended notice is cancelled—a further positive notice or a negative notice; (B) if the person is a registered teacher when the suspended notice is cancelled—a positive exemption notice or negative exemption notice; or (ii) the chief executive cancels the suspended notice as mentioned in subsection (6). (3) If the person is not a registered teacher when the chief executive is acting under subsection (2)(b), in making a decision to cancel the suspended notice and, subject to subsection (6), issue a replacement notice to the person, the chief executive must make the decision as if it were a decision about a prescribed notice application and, for that purpose, division 9 applies in relation to making the decision. The respondent said that: (a) It advised the applicant in writing pursuant to s 242(2) WWC Act that his positive notice and blue card were suspended; (b) Following advice from the QCT that the disciplinary proceedings against the applicant had been finalised and his teacher’s registration cancelled, the respondent conducted a reassessment of CSK’s eligibility to hold a positive notice and blue card; (c) Following reassessment, the applicant’s suspended notice was cancelled and a negative notice issued under s 243(2)(b)(i)(A) WWC Act; (d) That s 237(1)(b)(i) WWC Act does not apply as s 243 WWC Act is the correct provision; (e) That sections 226 and 228 WWC Act provide the test that is to apply when making decisions pursuant to Chapter 8, division 11 WWC Act; (f) The words ‘anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considered to be relevant to the assessment of the person’ in s 226(2)(e) enable the Tribunal to consider all information available to it at the time of making its decision; (g) The words ‘anything else relating to the disciplinary information’ in s 228(2)(d) similarly enable the Tribunal to consider all information available to it at the time of making the decision; and (h) Further, said that if s 237 does apply: (i) The Tribunal is still required to make the decision as if it were a decision about a prescribed notice application and division 9 applies to making the decision (s 237(2) WWC Act); and (ii) Chapter 8, division 9 WWC Act makes it clear that the decision maker must have regard to any information it reasonably considers to be relevant. -- 24 of 30 -- 25 Consideration As CSK’s teacher’s registration was suspended on 24 September 2014 under s 49 Education (Queensland College of Teachers) Act and he held a positive notice, s 242 WWC Act required the chief executive to give written notice to CSK of the suspension of his positive notice. The chief executive had no discretion to exercise. The parties agree the chief executive gave this notice on 26 September 2014. The 21 May 2018 notice issued by the respondent asking the applicant for submissions advised that ‘I am now re-assessing your positive notice and blue card and proposing to cancel the suspension of your blue card and issue a negative notice.’55 The decision letter dated 5 November 2018 says the respondent considered the change to the disciplinary information and reassessed CSK’s eligibility to continue to hold a blue card and ‘decided to cancel your positive notice and issue you with a negative notice.’56 It seems to the Tribunal that s 243 WWC Act, being the specific provision dealing with the ending of a suspension under s 242 WWC Act, applies to the present case. Section 243(3) WWC Act requires the decision to issue a replacement notice to be made ‘as if it were a decision about a prescribed notice application and, for that purpose, division 9 applies in relation to making that decision.’ It does not limit the information to be considered in making this decision. If Parliament had intended that the Tribunal’s consideration under s 243 WWC Act was to be limited to only new information it could have stated this, as it did in s 237 WWC Act. It did not. Thus, the Tribunal is of the view that it may take all the information available into consideration in making this decision. However, it is not necessary for the Tribunal to make a decision on this point. The purpose of the WWC Act is protective – the welfare and best interests of a child is a paramount principle in the Tribunal’s review. In the Tribunal’s opinion the disciplinary information alone is sufficient for the Tribunal to determine the review. Thus, in making this decision the Tribunal has had no regard to the information known to the respondent as at 23 January 2012. The law to be applied The Tribunal in its disciplinary jurisdiction considered a different issue to that before this Tribunal. In its disciplinary jurisdiction the Tribunal assessed the applicant’s suitability to teach. The considerations for this Tribunal are different. This Tribunal must consider whether it is satisfied this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. CSK alleged that the respondent made significant errors in its decision making. It is not necessary for the Tribunal to find an error in the respondent’s decision making. 55 Ex 7, BCS-63. 56 Ex 7, BCS-192 to BCS-193. -- 25 of 30 -- 26 The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.57 The purpose of the Tribunal’s review is to produce the correct and preferable decision,58 on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.59 The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.60 On review, the Tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.61 The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.62 The principles under which the WWC Act is to be administered are: (a) the welfare and best interests of a child are paramount; (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.63 It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.64 Section 221 of the WWC Act provides: (1) Subject to subsection (2), the chief executive must issue a positive notice to the person if— (a) the chief executive is not aware of any police information or disciplinary information about the person; or (b) the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person— (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 57 QCAT Act, s 19(a). 58 Ibid, s 20. 59 Ibid, s 20. 60 WWC Act, s 360. 61 QCAT Act, s 24(1). 62 WWC Act, s 5. 63 Ibid, s 6. 64 Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391. -- 26 of 30 -- 27 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices). (c) the chief executive is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. For the present purposes a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued. The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:65 …the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children. In determining whether there is an exceptional case when aware of disciplinary information about the person, the Tribunal must have regard to the matters set out in s 228(2) of the WWC Act, as follows: (a) the decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order; (b) any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order; (c) the relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children; (d) anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person. In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.66 The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.67 65 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]. 66 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30]. 67 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. -- 27 of 30 -- 28 Consideration In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.68 A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business. The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:69 The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. 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. In the Tribunal’s view, CSK’s claims to LAV that his behaviour was altruistic and motivated by empathy demonstrate a degree of minimisation of his behaviour and a lack of insight into its impact on students at the time of the consultation for the report. There is no medical evidence before the Tribunal regarding the development of CSK’s insight since the August 2017 report. NTT said he did not consider that the conduct leading to the termination of CSK’s teacher’s registration by Education Queensland should preclude CSK from obtaining a blue card. The evidence of NTT, BAP and CSK’s brother do not address the applicant’s insight or remorse in relation to CSK’s behaviour in the period 2010-2012. Accordingly, there is limited independent evidence to support a finding that the applicant has developed insight into his conduct. CSK acknowledged that he had made poor decisions in the past. Despite this acknowledgement CSK has not demonstrated to the Tribunal’s satisfaction that his decision today, if he were to find himself in the same situation, would be different. In the Tribunal’s view CSK displayed limited insight. He tended to blame others, discrediting some students and adults who had raised concerns about his behaviour,70 disputed the procedural fairness of the investigation leading to the termination of his Queensland teacher registration and alleged collusion between the investigator and a teacher in relation to the disciplinary information. This tendency to blame others and not look to his own behaviour indicates to the Tribunal a lack of insight on the part of the applicant. LAV’s medical report is dated 27 August 2017 and no updated report was provided. The applicant referred the Tribunal to the decision in Re BAD [2008] QCST 13, in 68 WWC Act, s 60. 69 [2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87. 70 Ex 2. -- 28 of 30 -- 29 relation to the report. In that matter, the Tribunal was not provided a current psychological report but instead was given earlier reports. The Tribunal accepted those reports as evidence of the applicant’s willingness to undergo assessments as required by various authorities. It rejected the respondent’s argument that the failure to provide a current report ‘amounts to there being insignificant psychiatric/psychological evidence available to the Tribunal or that the Tribunal did not have before it all the material on which to reach a decision.’71 Here, the respondent’s position was that the report should be given limited weight because it was prepared two years ago, was not prepared for these proceedings and the author was not available for cross-examination. There was no suggestion by the respondent that the applicant was unwilling to undergo assessment. LAV said that the assessment he undertook of CSK was approximately four hours in length. It does not indicate that the applicant consulted him on more that this single occasion. The consultation was undertaken specifically for the purpose of the sanction proceedings. This Tribunal accepts that the report is evidence of the applicant’s willingness to undergo assessment. CSK said he has had and continues to receive treatment for his mental health and told LAV that he had undertaken psychological/psychiatric treatment. He should be commended for this. However, the Tribunal has not been provided with any independent evidence of any such treatment sought or undertaken by the applicant. Apart from LAV’s untested report there was no independent evidence before the Tribunal in relation to CSK’s remorse. The applicant acknowledged he made a poor decision going ahead with the sleepover when the venue changed. He is of the view that disciplinary proceedings should not have been referred to the Tribunal and that this occurred only because the investigation into his conduct was unfair. This suggests to the Tribunal a lack of remorse on the part of the applicant. At the time of the conduct leading to the disciplinary information the applicant was a state school principal. The Appeal Tribunal found a ground for disciplinary action had been established, that CSK was not suitable to teach. The behaviour examined by the Tribunal demonstrated a lack of appreciation for establishing and maintaining appropriate professional boundaries. CSK reported to LAV that ‘he had reflected on the importance of ‘professional boundaries’ between teaching staff and students.’72 CSK could not articulate for this Tribunal the lessons he had learnt in his counselling sessions concerning the setting of professional boundaries. BAP expressed the opinion that CSK always maintained ethical and professional boundaries with students and the broader community, which is contrary to the findings of the Disciplinary Tribunal. CSK has a strong and supportive network of friends and colleagues by whom he is highly regarded and who gave evidence before the Tribunal. This network is a protective factor. These witnesses spoke of his positive interactions with children including students and children of family and friends. This evidence of CSK’s positive interactions with children is not sufficient to overcome the Tribunal’s significant 71 Re BAD [2008] QCST 13, [149]. 72 Ex 2, CK-6, page 106. -- 29 of 30 -- 30 reservations about CSK’s ability to establish and maintain appropriate professional boundaries. To the extent those witnesses were aware of the reasons for the termination of CSK’s teacher’s registration they did not consider those reasons sufficient to warrant refusal of the applicant’s blue card. CSK is a mature man and was a teacher and principal of many years standing. Having regard to this and to the disciplinary proceedings to which CSK was subject in relation to the 2010-2012 conduct, the Tribunal would expect CSK to now be much more aware of the need to establish and maintain appropriate professional boundaries. The community is entitled to expect the holder of a blue card to be observant of proper boundaries in caring for children. On balance, the Tribunal is not satisfied that the applicant has demonstrated genuine insight into the effects and appropriateness of his behaviour and his responsibility to establish and maintain professional boundaries when he has children in his care. The Tribunal finds that the applicant has demonstrated very limited remorse. The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.73 The welfare and best interests of a child is the paramount principal that the Tribunal must apply in its review.74 The Tribunal has balanced the protective and risk factors as identified by the parties and outlined above in so far as they relate to the disciplinary information. The applicant has not engaged in in any concerning or offending behaviour since 2015. However, the passage of time is not determinative of whether or not a case is an exceptional case.75 This factor must be considered in the context of all the relevant circumstances. After consideration of the disciplinary information, all the relevant evidence, the findings of fact, weighing the risk and protective factors, and the relevant matters in the WWC Act, including s 228(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. In making this decision the Tribunal has had no regard to the information of which the respondent was aware as at 23 January 2012. The decision of the respondent is confirmed. Non-publication/de-identification Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child. Accordingly, these reasons have been de-identified. 73 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 74 WWC Act, s 360. 75 FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8]. -- 30 of 30 --