CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294

CITATION: CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294 PARTIES: CNL (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML219-16 MATTER TYPE: Childrens matters HEARING DATE: 1 September 2017 HEARD AT: Hervey Bay DECISION OF: Member Milburn DELIVERED ON: 11 September 2017 DELIVERED AT: Hervey Bay ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General that the applicant’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. Other than to the parties to the proceeding, the tribunal prohibits the publication of the names of the applicant and any witnesses appearing for the applicant. 3. The decision of the tribunal is to be delivered to the parties by email. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – review of a decision to issue a negative notice – charged and acquitted of manslaughter – earlier and later convictions for assault occasioning bodily harm – offences are not serious or disqualifying -- 1 of 22 -- 2 offences – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – identity of Applicant – identity of witnesses – confidential information relating to Applicant’s health – interests of justice – exercise of discretion when making a non-publication order Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19(3), s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6, s 167, s 226, s 360 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Chief Executive Officer, Department for Child Protection v Scott [No. 2] [2008] WASCA 171 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 Commission for Young People v V (2002) 56 NSWLR 476 GPM v Director General, Department of Justice and Attorney General [2017] QCAT 278 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCAT 289 TAA, Re [2006] QCST 11 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 APPEARANCES: APPLICANT: Self-represented RESPONDENT: H Marunda, Government Legal Officer for the Director-General, Department of Justice and Attorney-General -- 2 of 22 -- 3 REASONS FOR DECISION Background [1] The applicant has a long and successful association with his football club. Football is his passion. The tribunal was told that he is an inspiration and mentor to young players, and he is highly regarded by the committee. With a view to future coaching within the club, the applicant sought a blue card. [2] It is against that background, and the background of his serious criminal history, that the tribunal must consider his application for a blue card. [3] The applicant was acquitted of charges of manslaughter in 2008. The applicant does not dispute the fact that he delivered the single punch that led to the death of the victim in that case. [4] The respondent submits that the key issues and considerations for the tribunal in this case relate to: a) the applicant’s history that discloses violent conduct often fuelled by alcohol use between 2003 to 2010, suggesting that the applicant has difficulty in managing his anger, maintaining self-control, and responding to conflict; and b) the applicant’s offending or alleged offending often appears to be in an alcohol-related setting, suggesting that alcohol is often a trigger for his behaviour.1 [5] The applicant applied to the respondent for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) (the application). [6] On 21 February 2017, the respondent rejected the application and issued a negative notice under the WWC Act. The applicant is not a disqualified person, and exercised his entitlement to apply to QCAT for a review of the respondent’s decision. [7] The respondent’s case is that the evidence before the tribunal, including police material, raises serious concerns as to the applicant’s violent behaviour towards others.2 The tribunal conducts a merits review [8] The tribunal must hear and decide a review of a decision by way of a fresh hearing on the merits (the review).3 The purpose of the review is to 1 Respondent's submissions, [25]. 2 Ibid, [24]. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(2). -- 3 of 22 -- 4 reconsider the application and produce the correct and preferable decision.4 [9] The tribunal conducts the review within the same legislative framework as the primary decision-maker and has all the functions of the decision-maker for the reviewable decision.5 The tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision- maker.6 [10] The important principles contained in the WWC Act are: a) the welfare and best interests of a child are paramount; and b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.7 [11] The tribunal must have regard to these principles in the context of reviewing child-related employment decisions.8 The legal test [12] A blue card authorises a person to work9 with children in any environment, whether supervised or not. [13] Often, as in this case, the tribunal must decide a merits review in circumstances where, at least in part, the applicant has been charged with criminal activity. [14] The WWC Act provides that some offences are ‘serious offences’,10 leaving others to be described as ‘offences other than serious offences’.11 The categorisation of an offence is important, because it determines a default position. [15] For an applicant with a conviction for a serious offence, the default position is that the respondent must issue a negative notice (that is, deny the applicant a blue card). Otherwise, the case must be exceptional to warrant issuing a negative notice to the applicant. 4 Ibid, s 20(1). 5 QCAT Act, s 19(3). 6 Ibid, s 24(1). 7 WWC Act, s 6. 8 WWC Act, s 360. 9 The screening of persons in employment or carrying on particular businesses is required to promote and protect the rights, interests and wellbeing of children and young people in Queensland. 10 A ‘serious offence’ is defined in s 167 of the WWC Act. 11 The WWC Act also provides for ‘disqualifying offences’ however a person who suffers a disqualifying offence conviction becomes a ‘disqualified person’ and may not make an application for blue card. Accordingly, I have not considered that type of offending behaviour within the context of this summary of the determinative framework under the WWC Act. -- 4 of 22 -- 5 [16] The principles apply equally to the tribunal when it conducts a review. [17] Given the applicant’s circumstances, where there is no conviction for a serious offence, for the tribunal to deny the applicant a blue card, it must conclude that the case is exceptional. The position in this case (police charges) [18] In this case, the applicant has convictions, both recorded and not recorded. The applicant also has been charged with certain offences where he was either acquitted or the prosecution offered no evidence. Assault occasioning bodily harm in 2003 (the assault in 2003) [19] The applicant was convicted for assault occasioning bodily harm on or about 21 November 2003, as a juvenile. On 17 June 2004, a judge of the District Court recorded no conviction, but ordered that the applicant serve community service. Manslaughter charge in 2005 (the incident in 2005) [20] The victim was at a birthday party with friends. In the early hours of 20 February 2005, the applicant was involved in a verbal argument with another male a short distance from the location of the birthday party. The male reported to police that earlier that night he had been assaulted by the applicant inside the location of the party and the applicant was trying to assault him again. That male threw a bottle at the applicant during the second confrontation. The applicant came at the male and the victim stepped into the path of the applicant. Witnesses reported that the applicant requested the victim move out of his way several times while warning him that he would punch him if he did not. While the victim had his arms by his side, the applicant struck him to the mouth. The victim fell to the ground and struck his head on the road. Police arrived almost immediately and the applicant approached police with his hands in the air acknowledging that he was responsible for hitting the victim. The applicant cooperated fully with police. [21] The victim was treated by paramedics but refused to be transported to the hospital. The victim went home with friends and during that time police released the applicant. A short time after arriving home the complainant became gravely ill and was then transported to hospital by ambulance. The complainant was airlifted to another hospital where he underwent surgery for a severe head injury. On 22 February 2015, the victim was pronounced dead. Assault occasioning bodily harm in 2008 (the assault in 2008) [22] The applicant has a conviction for assault occasioning bodily harm on 16 February 2008. On 21 April 2008, the presiding magistrate recorded no conviction, but imposed a fine in the sum of $1500. -- 5 of 22 -- 6 [23] In the early hours of 16 February 2008, the victim was employed as a security supervisor where he noticed a disturbance involving several people fighting at the front of a licensed premises. The victim attended and did note that the applicant had been restrained by security personnel. The applicant was attempting to break free and was yelling abuse at other patrons. The fight was dispersed and the applicant was released. The applicant ran over and began fighting again, at which time the victim attempted to break up the fight by pulling one of the males away from it. The applicant hit out at the victim and punched him to the side of the face. Police arrived but could not interview the applicant due to his level of intoxication. Drunk or Disorderly in Licensed Premises [24] The applicant has a conviction for being drunk or disorderly in premises to which a permit/license relates, on 10 January 2009. On 28 January 2009, the presiding Magistrate imposed a fine of $300 and recorded a conviction. Assault occasioning bodily harm in 2010 [25] The applicant has a conviction for assault occasioning bodily harm on 23 January 2010. On 24 May 2011, the presiding judge of the District Court sentenced the applicant to imprisonment for 12 months, wholly suspended for 2 years, and recorded a conviction. At that time, prosecution withdrew a charge of grievous bodily harm, which was the charge originally proffered against the applicant. [26] In the early hours of 23 January 2010, the victim (together with the victim’s partner and child) left licensed premises via a courtesy bus. Shortly after leaving the licensed premises, the bus driver stopped to pick up the applicant. Shortly after that, the bus driver stopped at the victim’s address and as the victim disembarked he noticed a wallet and mobile phone on the floor near the front seat floor occupied by the applicant. The complainant picked up the wallet and mobile phone and when looking at them after disembarking, realised they belonged to the applicant. The applicant disembarked the bus and had what appears to have been a jovial conversation initially, which became serious. Then, the applicant punched the complainant in the face with his fist. The applicant and the victim became involved in a physical altercation. Witnesses intervened and physically removed the applicant from the complainant. The victim argued with his partner. The victim pushed his partner away and upon observing this the applicant punched the complainant victim in the face once again. The complainant fell to the ground and the bus driver approached the applicant and told him to stop hitting the victim. The victim went to hospital where medical staff glued his cut. Later he attended a specialist eye clinic and complained of blurred vision and constant headaches. The complainant required immediate laser surgery and risked a detachment of his retina, which may cause blindness. The surgery was completed. When the applicant spoke to police he stated that he was intoxicated and could not recall the events of the evening, however he did not recall assaulting the victim as stated by the victim. -- 6 of 22 -- 7 The applicant’s evidence [27] During the hearing of the matter, the applicant responded to questions by the legal officer for the respondent. The applicant’s evidence is identified under the following subheadings, which include the tribunal’s observations: The assault in 2003 [28] The applicant said of the assault in 2003 that he was aged 16 and had consumed alcohol prior to the assault. The incident of the assault involved punching. Because of the assault, the victim lost two front teeth. [29] Following the event, the applicant received counselling at school. [30] Surprisingly, the applicant could not identify a trigger for the assault. [31] The applicant minimised the offending behaviour, dismissing it simply as ‘schoolboy silly stuff’. [32] Candidly, the applicant spoke of his violent behaviour as normalised within his social sphere. He said that at the time that was how he believed he should deal with problems. [33] The counselling that the applicant received following the assault appeared to provide the applicant with little, if any, benefit. The incident in 2005 [34] The applicant said that he was not ‘very intoxicated’ on the night in question, having consumed, by his estimate, ‘six beers’. [35] The applicant substantially agreed with the police account. [36] The applicant said that he was called upon to assist to evict a person. However, before the tribunal he did concede that on the night in question he was not defending anyone, nor was he provoked. [37] The applicant said, ‘a lot was going on that night’. He spoke of his attempt to defend ‘his group’ because a bottle had been thrown at him by someone in another group. [38] The applicant conceded that the victim (deceased) had not done anything to him provoking him, but said there was ‘a lot of lead up’. The applicant said that the victim came across and stood in front of him. He said that while the victim did not have his hands up and was not going to fight, he did perceive the victim as aggressive. [39] Upon striking the victim, the applicant said that he felt instant regret. He asked his friends to call an ambulance. When the police arrived, he volunteered information that he was the assailant and he voluntarily got into the police car. Later, the applicant said that was devastated to hear of the death of his victim. -- 7 of 22 -- 8 [40] In 2006, the manslaughter charge was tried in Supreme Court before a jury, who acquitted the applicant. The applicant felt relief upon hearing the ‘not guilty’ verdict. [41] The applicant was aware that the victim’s family was very upset, but conceded that he was still young and immature, and did not appreciate the effect on them. [42] Surprisingly, neither leading up to nor after the trial, did the applicant receive any professional counselling. He said that no one suggested counselling. The tribunal finds it difficult to accept that during this time no one sought to encourage the applicant to obtain professional counselling. [43] The applicant did receive some counselling. That was through the mother of a friend. She not qualified, but was a person who took a real interest. [44] In short, at that time the applicant did not feel that he needed professional counselling. The assault in 2008 [45] On the evening of the assault in 2008, the applicant was with a group. The applicant says that upon hearing racial slurs, he took action against another group, which prompted a ‘bouncer’ to attend. [46] The applicant did not speak of breaking free from restraint, but does acknowledge that he hit a bouncer. He says that he was not trying to hit the bouncer – he was trying to hit someone else. [47] During the hearing before the tribunal, the applicant conceded that he was not defending anyone or being bullied. [48] Minimising his involvement and contrary to the police evidence, during the tribunal hearing the applicant said, ‘I was not the bully – I did not restart the fight’. However, the applicant did acknowledge that he was intoxicated and may have a ‘wrong recollection’. He conceded that the police records about the incident ‘may be correct’. [49] The applicant was very disappointed to be back in court. He told the tribunal that he had ‘let everyone down’ and that he did care about others. [50] In describing his actions, the applicant told the tribunal that he ‘did not know how to handle the situation and alcohol was involved’. [51] He does now take responsibility, but told the tribunal that in 2008, he had not reflected upon his actions. He said that he did not understand how his actions affected others. The assault in 2010 -- 8 of 22 -- 9 [52] The applicant told the tribunal that the victim took his wallet and phone and was ‘extremely aggressive’. However, the applicant went on to concede that he was intoxicated and he was not provoked. [53] Once again, the applicant said that at that time he could not ‘grasp the consequences’ and that he was only 23 years old and he had still not ‘grown up’. [54] Following the incidents in 2008 and 2010, the applicant did not seek professional counselling nor did he indicate that anyone encouraged him to do so during that time. He continued to seek informal counsel from his friend’s mother. Alcohol [55] Up to 2010, the applicant conceded that he was drinking heavily. He would drink to excess approximately three or four times per week. He said he was drinking beer and rum. [56] During this time, he was playing football. The applicant describes a situation where there appears to have been a drinking mentality amongst the players. He says that now he does not participate in drinking with football friends to the same extent as he did until 2010. [57] The applicant conceded that he used to drink to excess and described his drinking as a ‘coping mechanism’. He said that he thought it was normal behaviour and he described it as the ‘cool thing to do with the boys’. [58] Demonstrating some insight, the applicant told the tribunal that the impact of alcohol consumption on him was ‘massive’. He conceded that when intoxicated, he could not control his temper. [59] The applicant says that he has not received any treatment or counselling for alcohol abuse. He concedes that he does still drink alcohol, but says that he no longer drinks to excess. [60] Candidly, in response to questions about whether he has ‘completely addressed alcohol issues’, the applicant responded by saying that he ‘could manage it better’. [61] The applicant feels that his mental stability has changed, to the point where he can now ‘handle the stuff’. The applicant said that he had poor mental health in the past. [62] The applicant says that he no longer has the urge to drink alcohol to excess. He said that he is mindful of his responsibilities and his priorities are to pay his mortgage and look after his family. These are motivating factors which he says (in relation to alcohol consumption) place him in a state where he ‘can pull himself up’. -- 9 of 22 -- 10 [63] The applicant acknowledges that alcohol is ‘still around’ and he has ‘a few beers with the boys’. He said he calls his wife to collect him if he fears his consumption would put him over the legal driving limit. [64] The applicant described alcohol as ‘just a quick fix’. He said that the next day, he would wake up ‘twice as depressed and anxious’. Treatment [65] Primarily, the applicant has sought treatment from his friend’s mother. He says that she has helped him to deal with situations. The applicant says that he was very down on himself. [66] Under cross-examination, the applicant acknowledged that he has not received counselling directed towards taking responsibility for his actions. [67] For this hearing, the applicant attended one (one hour) session with a psychiatrist. The applicant said he enjoyed speaking with the psychiatrist, but has not made any plans for a follow-up consultation. The applicant said that the psychiatrist ‘made him feel normal’ and he ‘felt the impact of his actions from 2010’. [68] Other than that, the applicant said that his mates help him and he helps them. They ‘pull each other into line when required’. Insight [69] The applicant says that he now understands the impact of his actions on his victims. He says that he understands that he ‘could have done better’. He now understands the impact his actions have had on the family of the deceased, and said that the victim ‘bouncer’ would now be apprehensive. He did not make any statement about the impact of his actions on his victim in 2010. [70] He also now understands the impact of his actions on his own family and on the community. [71] The applicant conceded that he has not spoken to anyone about the impact of actions. [72] Without providing any specific detail, the applicant said that he now possesses strategies on how to deal with conflict. He did speak of using his conflict avoidance strategies in the workplace and on the football field. He said that on worksite there are conflicts and there are issues that require resolution ‘everyday’. He said that his involvement with football helps him to deal with conflict. He has trained himself to ‘just breathe’ and if angry to ‘walk away’. [73] The applicant says that he has gained much insight because of his current circumstances. He has a wife and child. He says that he wants to ‘keep moving forward for the wife and child’. -- 10 of 22 -- 11 [74] The applicant does have anxiety, but says he no longer has the urge to act in a violent manner. When he thinks about the harm caused to others he says that self-loathing and depression ‘kicks in’. If that happens, rather than resort to alcohol consumption, he would keep himself busy (go bush or go fishing). Supports [75] The applicant identifies his supports as his friend’s mother, his wife and his football friends. [76] The applicant acknowledges issues to do with depression and anxiety, but is not involved in obtaining any specific treatment for these conditions. [77] The applicant said that ‘football is where he is comfortable’. He said that had he taken his opportunities he could have made football a career. [78] He did acknowledge that ‘football’ did not change his behaviours in the early years, nor would it seem that his friends were a moderating force in relation to the police charges. Psychiatrist [79] The applicant’s attendance on one occasion with a psychiatrist is a positive step, however it seems clear that the applicant needs to take further steps to gain insight into his offending behaviour. [80] The psychiatrist provided a one-page report for the benefit of the tribunal, which is based on a single attendance with the applicant. In that report, the psychiatrist says that he assessed the applicant in July 2017. He offers an opinion that ‘there is no current evidence of any significant medical problems including any illnesses or operations. He is not on medications. He does not smoke cigarettes and occasionally consumed alcohol.’ He further states that, ‘On assessment there was no evidence of any psychiatric illness or symptoms’. [81] The psychiatrist offers the following opinion: Regarding his application for blue card in order to enable him to coach football, he was open and cooperative discussing some of the behaviours he had in the past which have led to a variety of changes regarding violence. There has been absolutely no evidence of this type of behaviour in recent years. He is in a stable relationship, has stable employment, and has no residual mental health issues. He also no longer drinks to excess. Because of these reasons, I believe he is now fully cleared for approval for blue card. I believe he will be able to contribute a great deal to youth as a coach. [82] The evidence of the psychiatrist was not tested as he was not available to give evidence at the hearing. The psychiatrist does not indicate that he has read the reasons for refusal of the application by the respondent, or any of the details of the police charges. The psychiatrist has not stated the source of the information upon which he relies in coming to his assessment. The -- 11 of 22 -- 12 psychiatrist has not indicated that his opinion is made in the context of the full transferability of a blue card. The psychiatrist speaks only of the applicant’s intention to use his blue card, if granted, in the context of coaching children in football. [83] Accordingly, the tribunal can give only minimal weight to the evidence of the psychiatrist, which it considers in conjunction with all the evidence presented to it in this matter. Witness: The applicant’s wife [84] The applicant’s wife acknowledged that when she met the applicant in mid- 2009, he was a heavy drinker and lived a carefree lifestyle. She said that he was angry and lived ‘on the edge’ with no one else to worry about. But now, he is ‘a totally different person’ and his behaviours have improved. He continues to improve. [85] She told the tribunal that she was aware of violence in her husband’s past, but consistently referred to the incidents, of which she was aware, as ‘fights’. That suggests that based on the information she received, there was a degree of mutual behaviour involving her husband and his victims. At no stage, did she refer to the actions of her husband as ‘assaults’. For example, she spoke of ‘the fight in 2005, which resulted in death’. [86] The applicant’s wife has not read his criminal history. The applicant’s wife was aware of some matters involving her husband’s police charges, but not other matters. She was not aware about her husband being involved with police before 2005. She was not aware of the assault in 2008. [87] She said that while her husband did not initially talk about his involvement with police, after a while he ‘started to open up’. She said that her husband does feel remorse and, speaking of the incident in 2005, that ‘the event goes through his mind every day’. However, in that context, her comment was more to do with the fear that her husband has that he will become the victim rather than empathy for the victim’s family. She said that her husband is ‘concerned that he may become the victim if he goes to the wrong house’. [88] The applicant’s wife did go on to say that the applicant has raised concerns about the impact of his actions in 2005 on the victim’s family. However, she candidly acknowledged that her husband has not spoken about the impacts on the community at large. [89] She has never asked her husband to receive counselling. [90] By the end of 2010, or early 2011, the applicant started to settle down. When angry, he will ‘go for a drive’, or talk to her or his mates or his informal counsellor. [91] She described the applicant as a confident, passionate and caring person. He interacts with young people very well. He has a lot of patience with -- 12 of 22 -- 13 children and he tries to teach them. She said that his family ‘means everything to him’. [92] Candidly, the applicant’s wife said that when he is in situations he cannot handle, the applicant needs to keep working on his response under stress. [93] The applicant’s wife said that the applicant’s consumption of alcohol is limited to weekends or special events. While she had cause to collect him when he had been drinking, that has not occurred in the last 3 years, since the birth of their daughter. [94] However, of concern, the applicant’s wife did state that the applicant ‘gets drunk every few weekends’, although she tempered her comments by saying that he does ‘not get hammered’. [95] The applicant’s wife said that now the applicant does manage his anger very well, and she cannot recall the last time he was angry. [96] She spoke of the importance of football to the applicant and suggested that his mates ‘have always been there for him’. Having a blue card would help her husband a great deal. Witness: JW [97] JW has known the applicant for 15 years. Her son went to the same school. She has provided support and informal counselling to the adult during the time that she has known him. In the early years, she consistently provided informal counselling 3 times per week. Lately, the counselling provided is on average once per week. She said that speaks to the applicant as a ‘friend/aunt/mother/coach’. [98] JW has glanced at, but not read the ‘reasons’ document. That is, the detailed reasons provided by the respondent for its decision to refuse the application for a blue card. [99] JW said that she was aware of police charges against the applicant. She gave an account of some of her discussions with the applicant about the incident in 2005 that led to the death of the victim. She spoke of ‘the boys’ attending a party that night, where they were approached by a hostile group. She was unaware that the victim did not provoke the applicant. [100] She minimised the actions of the applicant by saying that ‘a lot of things could have happened differently that night’. [101] After the event, she spoke with the applicant about regret and she said that he ‘was going through a lot of loss issues’. She referred the applicant to a co-worker for counselling. Though informal, she said that the applicant went to the counsellor for professional help on 2 or 3 occasions but did so to assist him in dealing with his severe depression and lack of motivation/energy. The counselling did not appear to relate to matters that might assist the applicant with issues about insight, consequences, empathy, alcohol consumption or anger management. -- 13 of 22 -- 14 [102] Surprisingly, given how often they spoke, JW was not aware of the assault matter in 2008. [103] JW was aware of the assault in 2010, but minimised the involvement of the applicant by saying that the circumstances were ‘blurred’. She acknowledged that alcohol was an issue on that occasion but opined that the applicant was at ‘the wrong place at the wrong time’. [104] JW told the tribunal that the applicant now does not place himself at risk. The applicant does not abuse alcohol – and has not done so for years – and she has seen positive changes in him. She has seen him become a responsible family man. [105] In response to issues about protective factors, JW says that to her knowledge the applicant has taken positive steps. He does not abuse alcohol and he does not go to places where ‘something could go wrong’. He is a good provider, reliable and not easily led. He has spoken with his GP and psychiatrist. [106] As an insight into his character, and as a partial reason for his aggressive behaviour in the past, JW said that the applicant feels that ‘he is responsible for everyone: perhaps an enforcer, but otherwise as a protector’. She did say that the applicant has changed as an enforcer/protector. He is ‘far less quick to become involved in situations that may escalate’. [107] In relation to his interaction with children, JW said that the applicant is a ‘crowd favourite’ and children relate well to him. [108] As an endorsement for the applicant’s position, she said that the applicant is ‘1000% worthy of a blue card and a wonderful mentor’. [109] She said that ‘the events from ten years ago’ are not raised. Presumably she made that comment in the context of the applicant’s involvement at the football club. [110] Finally, in the statement that the tribunal considers inappropriately minimises the actions of the applicant, JW said that on those occasions where he was charged, if the applicant ‘went to the police, he would be the victim, not the defendant’. That statement is impossible to reconcile with the police records and is inconsistent with the fact that in 2005 the applicant did go to the police. This statement damages the credibility of the evidence of JW. Witness: SH [111] SH has known the applicant for 17 years and sees him regularly. [112] SH told the tribunal that he ‘skimmed through the reasons document’, but is aware of involvement of police with the applicant in the past. [113] In 2005, SH was part of the applicant’s group that night, but not in the immediate vicinity when the applicant fatally punched the victim. He said -- 14 of 22 -- 15 that the applicant showed immediate remorse, by phoning the ambulance and putting himself in the police car. [114] The applicant did speak to SH about the circumstances that occurred that night, but SH was vague as to details. He knew that the applicant punched the victim who was standing in his way. [115] He gave evidence that the applicant talks about his remorse and the impact of his actions on the victim’s family and that he has seen a counsellor. However, the tribunal notes that he described the applicant’s actions in 2005 as being in response to ‘an event that forced him to defend himself’. [116] The applicant did not discuss the assault in 2008 with SH. [117] SH has seen the applicant in an intoxicated and aggressive state, such as when he witnessed the assault in 2010. However, he says that the changes in the applicant over 17 years have been ‘massive’. He says the applicant has matured, he is a leader and people look up to him. [118] SH says the applicant has no weaknesses apparent to him. [119] SH said the applicant is responsible and he would trust the applicant ‘above all others’ with his 3-year-old child. [120] SH acknowledged that the applicant has modified his consumption of alcohol and behaviour since 2010. For example, following a big football win, in the past the applicant might have celebrated for days, but now he does not engage in any ‘big celebration’. Witness: GR [121] GR has known the applicant for 10 years, through football and work. He sees the applicant every day and describes him as ‘a really good fellow’. [122] GR is aware of the involvement of police with the applicant, but minimised the events by stating that ‘a couple of things have not gone his way’. [123] GR has never seen the applicant angry or upset. He has no concerns leaving his children with the applicant. He says the applicant does not abuse alcohol. Witness: NG [124] NG has known the applicant for 17 years, and sees him regularly during football season. [125] NG believes that the respondent rejected the applicant’s blue card application because of ‘the fight in 2005’ involving the death of the victim. [126] NG was not aware of the applicant’s involvement with police before or after that 2005 event. -- 15 of 22 -- 16 [127] The tribunal has concerns about the lack of NG’s knowledge of the applicant’s criminal history and the nature of the applicant’s behaviour in the incident in 2005. [128] NG did say that the applicant drank heavily after the incident in 2005. [129] NG said the applicant is a good influence on others and is always in control on the football field. He described the applicant as a natural leader, who has settled down. Other witness statements [130] The applicant provided witness statements from people who were not called to give evidence. The referees speak highly of the applicant’s abilities as a footballer, his value in imparting knowledge to up-and-coming players and his patience and ability in training apprentices. [131] The tribunal accepts the evidence as truthful, but without reference to the risk issues of concern to the tribunal or the matters relating to police involvement with the applicant, they are of limited probative value. How does the tribunal determine whether this case is exceptional? [132] Courts and tribunals have not established any general rules with respect to what is an exceptional case.12 Each case is determined on its merits. The tribunal should not take a prescriptive approach.13 [133] The tribunal must have regard to the considerations prescribed by s 226 of the WWC Act in determining whether an exceptional case exists. The considerations listed in s 226 are not an exhaustive list.14 Blue card [134] The applicant says he wants a blue card because, when he retires as a player, he wants to coach a football team. He said that he has much to offer to the club and can be a positive influence on young players. He says he ‘can point young people in the right direction’. [135] He says that during the past seven years, he has been clean of offending behaviour. Application and personal statement [136] In his statement of personal circumstances, the applicant provided some background. He overcame his father’s death at young age. 12 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 (Philippides J). 13 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. 14 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 (Philippides J). -- 16 of 22 -- 17 [137] He has played football since he was 5 years old, and still plays. He wants to coach and mentor younger players. [138] He is about to start a new business. He is married and he and his wife have a young daughter. [139] The applicant based his arguments on the positive effects on others if he can coach a football team. He supplements that argument by suggesting that his risk factors are reduced or eliminated because of time since the last offending behaviour and actions he has taken to improve himself. [140] The applicant has minimised his behaviours. In his personal statement, he said ‘upon reflection, at these times of aggression, I had put myself in the position of defending those around me on each occasion’ [emphasis added]. The police material does not suggest issues of self-defence in the actions of the applicant. During the hearing, the applicant conceded that he was not provoked or bullied. [141] The applicant has taken minimal action to deal with risk factors. He continues to consume alcohol and appears not to have resolved underlying personal issues. Risk factors and protective factors [142] The tribunal must consider protective factors and risk factors in deciding whether a case is exceptional.15 [143] The tribunal must not proceed on the basis that there is to be no risk. That is not the appropriate test. The relevant function of the tribunal is to undertake an analysis and evaluation of risk.16 The weight the tribunal applies to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly. What risk factors exist in this case? [144] In coming to its decision, the tribunal must consider any potential risks to children and determine the likelihood of materialisation of a risk event.17 [145] In issuing a negative notice, the respondent considered that the applicant’s case was exceptional, such that it would harm the best interest of children for the applicant to have a positive notice. [146] The tribunal accepts that except for the assault in 2003, which does not have great bearing in this matter, the matters involving police did not involve children. 15 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 16 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, [58]. 17 Commission for Young People v V (2002) 56 NSWLR 476. -- 17 of 22 -- 18 [147] The risk factors in this case are: a) the risk that the applicant may engage in unprovoked violence; b) the applicant’s continued use of alcohol; c) the risk that the applicant has not yet sought and implemented strategies to properly manage his anger; d) the risk of violence by the applicant, triggered by the consumption of alcohol; e) the applicant’s failure to fully address risk issues through adequate professional support; and f) the applicant’s lack of full insight. [148] The tribunal finds that the applicant has not properly addressed the risk factors. What protective factors exist in this case? [149] The applicant’s protective factors are: a) the applicant has developed coping strategies; b) the time that has elapsed since the last matter involving police charges in 2010; c) the applicant has increased insight; d) the applicant has identified alcohol as a significant factor to his offending and has reduced his alcohol consumption; e) the applicant has long-standing, and continuing, informal counselling support; f) the applicant has sought and obtained some professional support; g) the applicant has demonstrated a degree of remorse and regret about the tragic nature of the 2005 incident; h) the applicant’s wife and family are supportive and they provide a strong motivation for the applicant to avoid criminal activity, including alcohol-fuelled violence; i) the applicant has a good work history and is about to commence his own business; j) the applicant has long-term and supportive friends; k) the applicant has provided references where the referees speak positively of his good character and interactions with children; l) witnesses at the hearing indicated that they would have no hesitation trusting the applicant to care for their young children; and m) the applicant is well-regarded, and supported, in the football community. -- 18 of 22 -- 19 [150] Good insight into the harm that an applicant has caused is a protective factor. In TAA, Re,18 the former Children Services Tribunal stated: 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. The applicant’s criminal history [151] When determining whether the case is exceptional or not, the tribunal must consider many matters in relation to the commission or alleged commission of an offence.19 [152] The tribunal acknowledges that the manslaughter charge did not result in a finding of guilt or conviction however it notes the seriousness of the offence and the undisputed fact that the applicant delivered the fatal punch. [153] The tribunal also notes the use of alcohol as a common and exacerbating factor in the matters that resulted in police charges. [154] The tribunal notes the seriousness of the offending behaviour in 2010 which was reflected in the court’s sentence of an order of imprisonment, wholly suspended. [155] The tribunal finds that while the applicant has demonstrated remorse for his past offending behaviour, he continues to minimise his actions. Is this an exceptional case? [156] The tribunal is required to consider whether the applicant’s case is an exceptional one, such that it would not be in the best interests of children for the applicant to have a positive notice. [157] Is the applicant’s case out of the ordinary, unusual or special, such that the applicant should not have a positive notice? [158] The tribunal is to determine the question on the balance of probabilities. [159] In determining this matter, the tribunal may consider the nature of the subject matter of the proceedings and the gravity of the consequences that flow from its decision.20 [160] While the tribunal accepts that neither party to this proceeding carries the burden of proof, the evidence presented by the applicant would have been much stronger had he secured a full report dealing with risk and other 18 [2006] QCST 11, [97]. 19 WWC Ac, s 226. 20 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, [363], where Dixon J said: 'It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.’ -- 19 of 22 -- 20 issues of concern to the tribunal from his psychiatrist. In fairness, the psychiatrist would likely need many more consultations with the applicant to prepare such a report. The applicant ought to have called the psychiatrist to give evidence at the tribunal hearing. [161] The tribunal is not satisfied that the applicant has addressed significant risk factors. That is particularly the case in relation to the consumption of alcohol as a trigger for offending. [162] The evidence suggests that alcohol was a significant trigger in relation to some of the matters that led to police charging the applicant with offending behaviour. The applicant has attended counselling but has not attended any form of alcohol rehabilitation. Given that the applicant continues to consume alcohol, albeit in reduced qualities, the tribunal cannot be satisfied that the applicant has addressed the significant risk factor. Alcohol use has impacted the applicant’s behavioural choices, with grave consequences. [163] The applicant has not engaged in any courses directed at issues of anger management. The applicant has not demonstrated any strategies he would employ to avoid a similar situation in the future. [164] The applicant’s past violence appears in the context of victims who were not confrontational. In the case of the assault in 2008, the applicant caused injury to a person who was attempting to defuse a violent situation. The applicant’s history of indiscriminate and unprovoked violence puts into question his eligibility to work with children because it brings into question his ability to appropriately regulate his own behaviour. [165] The applicant’s lack of demonstrated ability to deal with conflict, particularly arising in circumstances where he has consumed alcohol, raises concerns in relation to his ability to promote and protect the best interests of children in his care and provide a safe and protected environment for children. [166] The passage of time is a relevant consideration, but it is not a determinative factor. The passage of time could be a protective factor where it is accompanied by a genuine insight. [167] Prejudice or hardship to an applicant are not relevant in determining whether a case is exceptional. In Chief Executive Officer, Department for Child Protection v Scott [No. 2] [2008] WASCA 171, Buss J observed (with reference to comparable legislation): The Act does not have a punitive or disciplinary purpose even though, in its application or interpretation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminishion in their earning capacity. That the issuing a negative notice may -- 20 of 22 -- 21 have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.21 [168] The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon the protection of children. [169] Any benefit which might be thought to flow to children by having access to the applicant’s common knowledge, experience or flair in working with children is of no relevance.22 [170] The WWC Act is only intended to benefit children to the extent that it is intended to protect them.23 Conclusion [171] The tribunal is mindful of the fact that a blue card is ‘fully transferable’. The holder of a blue card can undertake a wide range of child-related activities. The blue card is unconditional in its effect, allowing the holder to undertake things such as homestays involving children. [172] The tribunal must make its determination by reference to what activities the holder of a blue card could conceivably undertake and not what activities the holder of the blue card intends to undertake in relation to child-related activities. [173] The tribunal considers the applicant’s risk factors outweigh the applicant’s protective factors in this case. This is an exceptional case. It would be in the best interests of children for the tribunal to confirm the decision of respondent. [174] However, the tribunal does commend the applicant on the way he presented himself during the tribunal hearing. The tribunal recommends to the applicant that he continue to seek out professional assistance with a view to obtaining a comprehensive psychological assessment that deals specifically with risk issues as identified by the tribunal in this case. Non-publication order [175] Amongst other things, the tribunal may make an order prohibiting the publication of the name of the applicant or any witnesses appearing in the application.24 21 Chief Executive Officer, Department for Child Protection v Scott [No. 2] [2008] WASCA 171, [109]. 22 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCAT 289. 23 Chief Executive Officer, Department for Child Protection v Scott [No. 2] [2008] WASCA 171, [109] (Bass J). 24 QCAT Act, s 66(2)(1)(c). -- 21 of 22 -- 22 [176] The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice.25 The tribunal may act on its own initiative.26 [177] Other than to the parties to the proceeding, pursuant to s 66(1)(a) of the QCAT Act, the tribunal elects not to allow publication of the name of the applicant or any of the witnesses appearing at the hearing. In making this decision, the tribunal notes the sensitive nature of the application.27 [178] The tribunal therefore prohibits the publication of the names of the applicant or any witnesses called at the tribunal hearing. Orders [179] The decision of the Director-General, Department of Justice and Attorney- General that the applicant’s case is ‘exceptional’ within the meaning of s 221(2) of the WWC Act is confirmed. [180] Other than to the parties to the proceeding, the tribunal prohibits the publication of the names of the applicant and any witnesses appearing for the applicant. [181]The decision of the tribunal is to be delivered to the parties by email. 25 QCAT Act, s 66(2). 26 Ibid, s 66(3). 27 Adopting the approach of Member Pennell in GPM v Director General, Department of Justice and Attorney General [2017] QCAT 278, [54] – [55]. -- 22 of 22 --