Commissioner for Children and Young People & Anor v Lister (No 2) [2011] QCATA 87

CITATION: Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 PARTIES: Commissioner for Children and Young People and Child Guardian (Applicant) v Ms Susan Beryl Lister (Respondent) APPLICATION NUMBER: APL258-10 MATTER TYPE: Appeals HEARING DATE: 8 March 2011 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President Ms Gwenn Murray, Member Dr Nigel Collings, Member DELIVERED ON: 31 March 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Decision of the Commissioner for Children and Young People and Child Guardian dated 6 November 2006 to issue a negative notice to Susan Beryl Lister is confirmed. CATCHWORDS: APPEAL – BLUE CARD – SUBSTITUTED DECISION – where respondent wished to submit additional evidence – where respondent requested rehearing – whether matter should be sent back to Tribunal for rehearing – whether Appeal Tribunal should substitute its own decision for the decision set aside CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant sought to review decision of the Commissioner to issue a negative notice – whether an exceptional case – whether not in the best interests of -- 1 of 16 -- 2 children to issue positive notice – where conduct proved or admitted indicated a risk to children – whether that risk was reduced by passage of time or changed circumstances – whether applicant had insight into conduct – whether balancing risk and protective factors established this is an exceptional case Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20, 24, 66(2) Child Protection Act 1992, ss 82(1)(f), 122 Commission for Children and Young People and Child Guardian Act 2000, ss 6, 155, 226(2)(a)-(e), 311, 312 Disability Services Act 1992, s 9(1) Disability Services Act 2006, ss 19, 82B, 89C Cabal v United Mexican States (2001) 180 ALR 593 applied Commission for Young People v V [2002] NSW SC 949 applied Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 applied In the Marriage of Sandrk (1991) 104 FLR 394 applied Kent v Wilson [2000] VSC 98 applied Lister v Commissioner for Children and Young People and Child Guardian [2010] QCAT 473 cited McKee v McKee [1951] AC 352 applied Minister v Gungor (1982) 42 ALR 209 applied R v Lister [2009] QCA 368 cited Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 applied Re TAA [2006] QCST 11 applied Schwerin v Equal Opportunity Board (1994) 2 VR 279 applied -- 2 of 16 -- 3 APPEARANCES and REPRESENTATION (if any): APPLICANT: Commissioner for Children and Young People and Child Guardian appearing by Craig Capper, Senior Legal Officer RESPONDENT: Ms Susan Lister appearing on her own behalf REASONS FOR DECISION [1] The Appeal Tribunal has set aside the decision of a member of a Tribunal which overturned the Commissioner‘s decision to refuse Ms Lister‘s application for a blue card. On 8 March 2011, the Appeal Tribunal heard further applications from Ms Lister. Request for a non-publication order [2] Ms Lister sought a non-publication order for information derived from her interview by an officer of the Adult Guardian. The Tribunal may make such an order if satisfied that it is necessary for any of the reasons specified in the Queensland Civil and Administrative Tribunal Act 2009 s 66(2). The only ground relied upon was that it was in the interests of justice to make a non-publication order. For reasons given orally, the Appeal Tribunal was not convinced that an order was justified and refused the application. Request for rehearing [3] Having allowed the appeal and set aside the Tribunal‘s original decision, there were two courses open to the Appeal Tribunal: to substitute its own decision for the one set aside or to send the matter back to the Tribunal for rehearing by the Tribunal. The latter course would start the review afresh and the parties would be able to lead new evidence. Because Ms Lister wanted to lead further evidence she requested a rehearing of the matter. [4] In determining the appeal, the Appeal Tribunal has considered in detail the material filed in the original proceedings as well as the extensive submissions made by both parties on appeal. Although the appeal was on questions of law, the submissions also dealt at some length with the merits of Ms Lister‘s original application to review the Commissioner‘s decision. [5] The further evidence that Ms Lister hoped to lead would have come from a number of witnesses who gave sworn statements to the police or personal references. Ms Lister did not have further statements from those potential witnesses and the Appeal Tribunal could only assess this application for a rehearing on Ms Lister‘s description of the type of evidence she thought they could give. Her summary was that they would give evidence to the effect that they knew of her convictions and their opinion of her as a good carer remains unchanged. Those who were parents would also say that -- 3 of 16 -- 4 they were free to come to the centre at any time and did so and did not see her engaging in the conduct alleged against her. [6] The evidence of their good opinion is already before the Tribunal. The Commissioner does not contest their views are genuine; rather she submits the Tribunal should not place much weight on them because of their belief that Ms Lister is not guilty of the alleged conduct. [7] The other difficulty for Ms Lister is that she seems to want to lead evidence that cast doubts on the veracity of allegations which she already admitted, in large part, in her interview with the Adult Guardian. Ms Lister has since confirmed that her statements to the Adult Guardian were accurate. [8] The Appeal Tribunal will take into account the good opinion held of Ms Lister by her referees. Ultimately, however, an assessment must be made on the basis of Ms Lister‘s conduct (proved or admitted) and indications of her current attitude to managing challenging behaviour of vulnerable people in her care. The Appeal Tribunal is satisfied that it can fairly proceed without further evidence being allowed. Ms Lister‘s application to review the Commissioner‘s decision has a lengthy history. It is in the interests of the parties to bring the matter to a close. Her application for rehearing was, therefore, refused. The Appeal Tribunal’s decision on the application to review the Commissioner’s decision [9] As explored in the Appeal Tribunal‘s reasons of 1 March 2011, because Ms Lister was convicted of offences that are not classified as serious offences under the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act), the Commissioner was obliged to issue her with a positive notice unless she was satisfied it was an exceptional case in which it would not be in the best interests of children to issue a positive notice to the applicant. [10] When the matter came on for review, the Tribunal stood in the shoes of the Commissioner.1 The purpose of the review was to produce the correct and preferable decision and it was to proceed as a fresh hearing on the merits.2 The Tribunal, therefore, was required to decide whether it was satisfied, on the evidence then placed before it, whether this is an exceptional case in which it would not be in the best interests of children to issue a positive notice to Ms Lister. It decided it is not an exceptional case. That decision has now been set aside. [11] The Appeal Tribunal has substituted its decision on Ms Lister‘s application for review. It had determined that this is an exceptional case. Accordingly, for the reasons that follow, the Appeal Tribunal has confirmed the decision made by the Commissioner to issue a negative notice to Ms Lister. 1 Queensland Civil and Administrative Tribunal Act 2009, ss 19, 24. 2 Queensland Civil and Administrative Tribunal Act 2009, s 20. -- 4 of 16 -- 5 [12] The CCYPCG Act is to be administered under the principle that the welfare and best interests of a child are paramount.3 In making a decision under the employment screening provisions of that Act the paramount consideration is ‗a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.‘4 This is the consideration ‗to which all others yield.‘5 [13] In matters of this kind, this Tribunal, and the former Children Services Tribunal, has sought to assess the risk of harm to children by identifying and balancing the protective and risk factors. This method promotes proper consideration being given to the paramount consideration by assessing whether the applicant presents an unacceptable risk to children.6 [14] The phrase exceptional case is not defined in the CCYPCG Act. In this context an exceptional case is one that does not conform to the general rule.7 It is not possible to state with precision the circumstances that might render a case exceptional. In order to conclude it is an exceptional case there must be factors that are unusual and extraordinary.8 [15] Section 226(2) of the CCYPCG Act prescribes certain matters that must be taken into account in deciding whether or not there is an exceptional case for a person who has been convicted of or charged with an offence. They are: (a) in relation to the commission, or alleged commission, of an offence by the person— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) 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; 3 Commission for Children and Young People and Child Guardian Act 2000, s 6. 4 Commission for Children and Young People and Child Guardian Act 2000, s 155. 5 McKee v McKee [1951] AC 352 per Viscount Simonds at p365, cited with approval in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 [3]. 6 An approach accepted as proper in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 [3]. 7 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 [4]. 8 Cabal v United Mexican States (2001) 180 ALR 593 [33]. -- 5 of 16 -- 6 (b) any information about the person given to the commissioner under section 318 or 319; (c) any report about the person‘s mental health given to the commissioner under section 335; (d) any information about the person given to the commissioner under section 337 or 338; (e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person. [16] The prescribed matters should not be considered in isolation. There may well be other factors that are relevant to determining whether a case is an exceptional one. Ultimately the determination is a matter of discretion on a consideration of the merits of the case, having regard to those factors that must be taken into account. [17] The concept of exceptional case has been considered in other statutory contexts as well as this one.9 The principles derived from those authorities may be summarised as follows: (a) The intention of the legislation is to protect children from harm. (b) Whether a case is exceptional involves the exercise of discretion and a consideration of the individual circumstances of the case. (c) A number of factors in combination may constitute an exceptional case. (d) Assessing the potential risk to children is a qualitative exercise. (e) The question is whether there is a foundation in the evidence for concluding that there is ‗real and appreciable risk‘ to the safety of children. (f) The risk must be assessed at the time the application is being considered. In the following passages, the Appeal Tribunal considers the risk and protective factors which arise in Ms Lister‘s case which have led to its determination that this is an exceptional case. [18] At the heart of these proceedings is Ms Lister‘s conduct when caring for intellectually impaired adults and children between 2000 and 2003 at the Care Independent Living facility at Bribie Island. [19] After the Adult Guardian and the Police conducted an investigation into allegations about the centre, Ms Lister faced six charges of deprivation of liberty, twenty-eight charges of common assault and one charge of assault occasioning bodily harm. At some stage of the criminal proceedings, for reasons not evident in the material, the Director of Public Prosecutions 9 Kent v Wilson [2000] VSC 98 [29]; Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1; Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492; In the Marriage of Sandrk (1991) 104 FLR 394, 399-400; Schwerin v Equal Opportunity Board (1994) 2 VR 279, 287-288; Commission for Young People v V [2002] NSW SC 949 [42]. -- 6 of 16 -- 7 decided not to proceed with four charges of deprivation of liberty, twenty- one charges of common assault and one charge of assault occasioning bodily harm. Precisely what conduct was encompassed by those charges that were not pursued is difficult to identify on the material before the Tribunal. [20] On 4 September 2009, Ms Lister was found not guilty by a jury of one of the two remaining charges of deprivation of liberty and five of the seven charges of common assault. On the same day she was found guilty of one charge of deprivation of liberty and two charges of common assault. [21] The convictions relate to two children. The deprivation of liberty conviction related to conduct that occurred somewhere between April 2000 and July 2003. The complainant was a young boy aged between 6 and 9 years who suffered severe autism and was susceptible to tantrums which had the potential to escalate to violence. Ms Lister tied his arms and legs to restrain him on a toilet seat. [22] On Ms Lister‘s appeal against sentence, one of the Court of Appeal judges referred in his reasons to Ms Lister having taken a photograph of the boy so restrained.10 Throughout these proceedings, Ms Lister has vigorously asserted that was an allegation only, that there is no such photograph and that no evidence of it was led during the trial. [23] Whether Ms Lister did take such a photograph is relevant to assessing her character. It would indicate extreme insensitivity, to say the least. The Tribunal does not have the full transcript of the trial and is not in a position to verify Ms Lister‘s assertion about what evidence was led. The Tribunal Member who heard the review at first instance said he was not necessarily satisfied that the photograph had been taken.11 The Commissioner‘s grounds of appeal included complaints that the Member had erred in making that finding either because he went behind the conviction or made the finding without making proper enquiry. [24] The essential physical element of the charge of deprivation of liberty is that she restrained the boy on the toilet. Ms Lister pleaded not guilty to the charge and in her submissions to the Tribunal, variously denied or said she could not recall doing it. Nevertheless her conviction establishes the restraint and the Tribunal is required to act upon it.12 [25] The allegation regarding the photograph is in a different category. It is not clear this was a particular relied upon by the prosecution nor has it been established that evidence about it was led at the trial. The transcript of Ms Lister‘s cross-examination shows that she was not asked questions about or shown such a photograph. The sentencing judge at trial did not refer to it, nor did counsel during their submissions on sentence. Without a full transcript of the trial, the Appeal Tribunal is not in a position to make a 10 R v Lister [2009] QCA 368, 5. 11 Lister v Commissioner for Children and Young People and Child Guardian [2010] QCAT 473 [4]. 12 Minister v Gungor (1982) 42 ALR 209. -- 7 of 16 -- 8 finding about whether the allegation about the photograph is proved by the conviction. The Commissioner led no other evidence about the matter. [26] Given other conduct admitted or proved against Ms Lister, the Appeal Tribunal is satisfied that its decision would not turn on whether or not such a photograph was taken. It would only serve to aggravate egregious conduct. [27] Ms Lister was convicted of a second offence, common assault, against the same child. In her submissions to the Tribunal, she says she only struck the boy‘s hand. During the trial, evidence was led in support of the prosecution‘s allegation that she struck him on his arms, back and the back of his head with a plastic fly swatter a number of times. Ms Lister hit him because he was not eating his dinner. He was upset and crying. He put his arms up to try to push the applicant away. [28] The third conviction, also for common assault, related to a second child who was aged between 9 and 15 at the time of the offence. He also suffered severe autism. Ms Lister held him down whilst another carer rubbed chilli onto his mouth.13 In these proceedings Ms Lister has maintained her denial of this offence. [29] In formulating his sentence, the Trial Judge took into account a number of factors. He accepted caring for people with severe disabilities would not be an easy task and might at times be frustrating. He noted the two complainants behaved in a way which was unacceptable if judged against the general standards of behaviour in the community and that Ms Lister was attempting to modify their behaviour. He took into account that her conduct was supported and perhaps even demanded by the Director of the facility. He observed that, although some employees disagreed with the conduct and attempted to protest, Ms Lister ‗fell into line with what management was suggesting was appropriate.‘14 [30] The convictions were arrived at after a five day trial. The Trial Judge ordered convictions be recorded and directed Ms Lister to perform unpaid community service for 150 hours. She unsuccessfully appealed the Trial Judge‘s decision to record convictions. Other conduct alleged [31] The evidence before the Tribunal extends beyond the conduct proved by the three convictions. The Commissioner was required to take into account any other material relating to the commission of the offences which assists in the assessment of the person.15 In this case that includes numerous sworn statements to police about Ms Lister‘s conduct at the Care facility. 13 The descriptions of the conduct upon which the convictions was based is derived from the reasons of the Court of Appeal in R v Lister [2009] QCA 368, 2-3. 14 R v Lister [2009] QCA 368, 3. 15 Commission for Children and Young People and Child Guardian Act 2000, ss 226(2)(a)-(e). -- 8 of 16 -- 9 [32] It was not the Commissioner‘s function (nor is it the Tribunal‘s) to determine whether Ms Lister committed any criminal offences. The fact that the authors of the statements have not been cross-examined will affect what weight should be placed on them, but does not render them irrelevant. Even untested allegations made in sworn statements to the police bear on the question whether this is an exceptional case. [33] The Appeal Tribunal considers the totality of the allegations made against Ms Lister indicate a risk to the safety of children in her care. [34] The Police Brief16 contains twenty-four witness statements which have been redacted, presumably to protect the witnesses‘ identity. Thirteen of them directly implicate Ms Lister in unacceptable care of children or adults with an intellectual impairment. The fact that much of the conduct relates to adults rather than children does not diminish its significance. The adults were all persons with an intellectual impairment. They share with children (with or without a disability) vulnerability, though different, which calls for protection. [35] Seven of the witnesses were fellow carers who worked at one time or another with Ms Lister. One was a cleaner at the centre. Three were volunteers who either assisted at the centre or during the residents‘ excursions. Their allegations (other than the conduct for which Ms Lister was convicted) can be summarised as: (a) Neglecting the needs of residents for medical attention or personal care (two allegations); (b) Hair pulling; (c) Pulling a resident by their earlobe; (d) Slapping a resident‘s face; (e) Washing out a resident‘s mouth with soap; (f) Showering residents with cold water and, sometimes, fully clothed; (g) Withholding food; (h) Cutting a resident‘s nails so close to the quick that they bled; (i) Pinching a resident who had pinched her; (j) Boxing the ears of a resident; (k) Punching a resident; (l) Hitting a resident with a broom; (m) Confining a resident to a chair; (n) Taking away a resident‘s prosthetic leg and crutches so that he could not be mobile; and (o) Hosing a resident. [36] The conduct was alleged to have been engaged in to modify the behaviour of the victims. 16 Apparently provided to the Commissioner pursuant to the Commission for Children and Young People and Child Guardian Act 2000, ss 311, 312 by which the Commissioner may ask the Police Commissioner for information, or for access to the Police Commissioner‘s records, to enable the Commissioner to learn what, if any, Police information exists about an applicant for a Blue Card. -- 9 of 16 -- 10 [37] The conduct attributed to Ms Lister is mean-spirited, threatening, humiliating, abusive and bullying. It gives rise to an immediate concern about the risk of harm to children and young people left in her care, whether suffering from a disability or not. Other conduct admitted [38] In her interview with the Adult Guardian on 27 August 2003, Ms Lister admitted a range of conduct that is consistent with the nature of the allegations made by others17: (a) Slap stick humour involving tricking the residents into thinking they were drinking alcohol (p25); (b) Withholding meals and giving residents a ―bread and butter sandwich‖ instead of the proper meal (p30); (c) Taking a resident‘s prosthetic leg and placing it out of his reach (p31); (d) Hitting a resident with a fly swatter (p37); (e) Giving a resident a warm shower after the resident had punched her in the eye three times (p39); (f) Washing out a resident‘s mouth with soap (two occasions) (pp 40 – 42); (g) Slapping a resident‘s face (p43); (h) Pulling the hair of girls who had been fighting (p43); (i) Hitting a resident (p44); (j) Tying a resident to a chair (p45); (k) Humiliating a resident who had worn an item of girl‘s clothing (although she did not think anyone else was present when she did so) (pp 50 – 51); (l) Using fly spray to treat head lice on a resident (p53); and (m) Instructing another staff member to threaten to withhold a resident‘s pension (p54). [39] While there are some differences between her admissions and the conduct alleged against her (such as whether Ms Lister hosed a resident, boxed a resident‘s ears or gave warm or cold showers) in large part Ms Lister admits to behaviour consistent with the allegations. The picture that emerges from the statements sits comfortably with that gained from reading the interview. That fortifies the Tribunal in giving weight to the statements made to police, although the authors were not cross-examined about them. [40] It is worth observing that the statements contain allegations about other people as serious as the allegations made against Ms Lister, and, in some cases, more so. The statements made about how residents were treated generally at the Care facility gives the context in which Ms Lister worked. 17 The page references relate to the transcript of the interview that was received by the Tribunal on the initial hearing of Ms Lister‘s application to review the Commissioner‘s decision. -- 10 of 16 -- 11 They suggest the offending conduct was routinely used by some staff and was modelled and encouraged by management at the most senior levels. [41] The conduct proved or admitted relates to her treatment of children and adults in her care. It is directly relevant to her employment to care for children and young people. Ms Lister’s attitude to the conduct then and now [42] A number of the police witnesses attributed statements to Ms Lister which, if accepted, present a concerning picture about her attitude to behaviour management. There is a common theme and a similarity of language and tone that emerges from the statements attributed to her by several witnesses. The flavour of them is represented by the allegation that Ms Lister said of the residents that ―You need to break them‖.18 This would indicate that Ms Lister embraced this as a philosophy, not that she was overborne by procedure and policy put in place by management. [43] Although Ms Lister did not go so far in her explanations to the Adult Guardian, she did describe her conduct as the sort of ‗behaviour management‘ that any parent would do. She said parents of the residents would tell her what they did and told her to do the same, although it was not the practice of the Care facility to get those instructions in writing. Ms Lister described the Care facility as like a family. They did not need to document incidents or medication. At the time, she said, she did not know what she had done was wrong. Ms Lister made similar statements to the Appeal Tribunal. [44] At the end of an interview which was lengthy and undoubtedly very taxing, Ms Lister was unable to explain to the Adult Guardian how she would then handle similar situations. By that time she had undertaken further training and told the Adult Guardian that she had learned new ways of managing behaviour. Likewise, her statements to the Appeal Tribunal that she understands that the behaviour is unacceptable do not assuage the concern arising from her continued assertion that the practices are appropriate and acceptable parental discipline. Independent assessment of the likelihood of such conduct being repeated 18 This appeared at paragraph [21] of a 20 page statement given on 30 May 2003 by a 53 year old woman who worked as a carer for Care Independent Living between May 2000 and May 2003. The statement is the fourth in order in the Queensland Police Service Brief. A strikingly similar statement was attributed to Ms Lister at paragraph [5] of a 12 page (addendum) statement given on 17 November 2003 by another person who worked as a carer for Care Independent Living between May 1999 and July 2002. That statement is the tenth in order in the Queensland Police Service Brief. In that witness‘ first statement (number nine in the order) and a number of other statements by other people, the witnesses attribute statements to Ms Lister in which she either gives instructions about or explanations for inappropriate and, in some cases, abusive techniques for modifying the behaviour of the residents. -- 11 of 16 -- 12 [45] In his reasons on Ms Lister‘s appeal against her sentence, Justice Fraser observed that she had been put in a position by management where her beliefs, morals and ethics were tested: ―That the applicant committed her offences in an environment where other employees apparently acquiesced in management‘s wishes to engage in similar appalling conduct perhaps provides a partial explanation of the applicant‘s departure from the standards of conduct to be expected of one in her position, but it does not excuse it. It also revealed a concerning failure to exhibit that strength of character which her demanding occupation required.‖19 [46] Given the nature of the offences and conduct admitted it could be expected that the Tribunal would be provided with an independent psychological assessment of Ms Lister‘s suitability to work with children and young people. Regrettably, there is no recent independent professional assessment of Ms Lister‘s suitability. [47] The Tribunal was provided with a psychological report of Alec F Jones prepared in January 2007. It could not be considered to be independent and is not recent. Despite Ms Lister substantially admitting the allegations to the Adult Guardian, Mr Jones found ‗no indication at any time that she has conducted herself in an abusive manner, either physically or verbally towards individuals in her care or their families‘. He reported that she strongly refuted the nature of a significant amount of the material. The foundation upon which Mr Jones based his report is inaccurate and this undermines its value in these proceedings. [48] Nevertheless, even on his generous acceptance of her assurances about her conduct, Mr Jones diagnosed Ms Lister as possessing some character traits and psychological dysfunction which present as risk factors. Mr Jones wrote that Ms Lister appeared to exhibit psychological dysfunction of mild to moderate severity, in that she appeared to fit the Axis II classification for histrionic personality disorder with narcissistic features and obsessive compulsive personality features. [49] Ms Lister presented to the Appeal Tribunal as overly involved in her relationship with the residents. She repeatedly told the Adult Guardian that she loved the residents and made similar statements in these proceedings. Mr Jones reported that Ms Lister has developed an histrionic profile of a self protective ‗out there‘ persona. He described her as being ‗a bit in your face and needing approval‘. Caring for the sick and disabled had become her raison d‘être. He said she had a narcissistic focus on self and that a compulsive disorder was ‗the most important driver and the crux point of her problems‘. While supporting her application for a blue card, Mr Jones did not address her suitability to work with children and young people within the context of the Act. 19 R v Lister [2009] QCA 368, 6. -- 12 of 16 -- 13 [50] Ms Lister led a number of supportive personal references. Most of them did not appear to have full knowledge of the offences and allegations and some held views that Ms Lister should not have been charged at all. Others believed she was not guilty of those offences she had been convicted of. This begs the question of what their opinion of her would be if they accepted she had been properly convicted of the offences or if they knew of the conduct to which she admitted. This must affect the weight that can be given to the expressions of support she has put forward. In any case the views of those who might work with or place their loved ones in Ms Lister‘s care cannot supplant an independent assessment of her suitability based on her past conduct and current attitude. The passage of time, insight and remorse [51] It has been six years since the charges were laid against Ms Lister. In that time, there is an absence of evidence of any misconduct. During that time, it seems she continued to care for adults with an intellectual impairment. The absence of evidence of misconduct in those circumstances might give comfort that the risk her past conduct and personal profile presents is reduced, because Ms Lister now understands her behaviour was unacceptable and will not repeat it. She has certainly said as much to the Tribunal. If the Tribunal was satisfied Ms Lister has insight, that would be a protective factor. [52] The Appeal Tribunal respectfully adopts the reasoning of the former Children Services Tribunal20 about the role that insight plays in such applications: ―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 upon the adults around them having insight into their actions and the likely effect on children.‖ [53] Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences and, also, to the other conduct she admits. [54] Ms Lister continues to minimise and justify her conduct. While she says she accepts the practices are now considered unacceptable, she appears not to understand why. She argued that restraining the child on the toilet was a method of toilet training that was ultimately successful. She defended hitting a child with a fly swatter as the sort of correction that any parent might give to modify a child‘s behaviour. She has maintained the 20 Re TAA [2006] QCST 11 [97]. -- 13 of 16 -- 14 attitude that her conduct ‗achieved‘ certain results, for example the child hit with the fly swatter was able to appropriately eat his food following the incident. Whilst not expressly stated as such, she thought the ends justified the means. She asserted no harm was done to a child. She has maintained throughout the criminal and blue card proceedings that her conduct has been taken out of context. In her final submissions, when providing what she says is the proper context she demonstrated that she remains comfortable with her actions. The context that she has provided, even if accepted, does not make the conduct acceptable. Ms Lister declared she had never done anything to abuse anyone. This is completely at odds with her admissions. [55] These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister‘s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean the risk has been reduced. Other protective factors [56] Ms Lister appears to have a supportive family and wider community supports. She has an extensive and long history of community work, working voluntarily for organisations such as Lions International and in fund raising for various causes, particularly children and young people with disabilities. [57] Thirty-two signatories vouched for Ms Lister‘s extensive volunteering with community groups, charity organisations, school, hospitals and disabled centres. She also attended a 12 day visit to Vietnam where 72 blind children were given the ‗gift of sight‘ through a project assisted through the Lions Club. The signatories provided positive and favourable views of Ms Lister. [58] Ms Lister has a long history of caring for family members. She raised her own children and she cared for her first husband‘s father for ten years when he was suffering from Alzheimer‘s disease. She cared for her mother until she died. As well, she cared for her sister‘s two children, who referred to her as ‗mum‘. Ms Lister also cared for her second husband‘s nephew for about three years until he returned to live with his mother. [59] All of this speaks well of Ms Lister‘s motivations. It does not amount to an independent assessment of what risk she might pose in caring for children. Importantly, much of the good work relied upon occurred before and during the time the offending conduct occurred. It is not, then, a good indicator of whether the risk has been reduced over time. Conclusion – balancing risk and protective factors [60] The central focus of the CCYPCG Act is the protection of children. It is not a statute intended to impose additional punishment on a person who has a -- 14 of 16 -- 15 criminal history. Rather it is intended to put gates around employment to protect children from harm.21 [61] Standards of Care for children have been promulgated under the Child Protection Act 1992.22 They apply to children in care if their parents relinquished guardianship of them in order for them to be accommodated and provided with services.23 It is not clear whether that was the situation for the children who were the victims of Ms Lister‘s offences. [62] Regardless, the Standards provide a useful benchmark against which to judge the conduct. They provide: (a) The dignity and rights of children must be respected; (b) Their needs for physical and emotional care must be met; (c) If the child has a disability, the child must receive care and help appropriate to the child‘s special needs; and (d) Techniques for managing the child‘s behaviour must not include corporal punishment or punishment that humiliates, frightens or threatens the child in a way that is likely to cause emotional harm. [63] Although these proceedings concern an approval to work with children, the Tribunal must also be cognisant that it would also allow Ms Lister to work with another group of people whose vulnerability demands special consideration: those suffering from an intellectual or other impairment.24 [64] Similar standards as those adopted for children are accepted for people with a disability. There is now a Charter of Rights established under the Disability Services Act 2006. This includes the right to live their lives free from abuse, neglect or exploitation; and to receive services safely.25 That Act‘s predecessor provided that ‗people with disabilities have the same basic human rights as other members of society and should be empowered to exercise their rights‘.26 [65] It is self evident that Ms Lister‘s conduct, proved or admitted, does not conform with appropriate standards of care and indicates an appreciable risk of harm to vulnerable members of the community left in her care. [66] The central question before the Tribunal is whether the risk factors demonstrated by her past conduct and personal profile still present an unacceptable risk to children and young people. [67] Ms Lister was not able to articulate to the Adult Guardian, to the Court or to the Tribunal how she would manage the situation differently now. There is no evidence of significant or exceptional change in her life that would 21 Queensland, Parliamentary Debates, Legislative Assembly, 14 November 2000, 4391, (Anna Bligh). 22 Child Protection Act 1992, s 122. 23 Child Protection Act 1992, s 82(1)(f). 24 Disability Services Act 2006, ss 82B, 89C. 25 Disability Services Act 2006, s 19. 26 Disability Services Act 1992, s 9(1) (since repealed). -- 15 of 16 -- 16 provide assurances to the Tribunal that there was no longer an unacceptable risk to children and young people. [68] Ms Lister has not demonstrated insight into her behaviour. The Appeal Tribunal is not comfortably satisfied that Ms Lister now possesses the skills and personal resources that would allow her to safely and properly manage difficult behaviour by vulnerable persons in her care. [69] The Appeal Tribunal finds this is an ‗exceptional case‘ in which it would not be in the best interests of children to issue a positive notice to Ms Lister. -- 16 of 16 --