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TW v Director General, Department of Justice and Attorney-General

 

[2019] QCAT 209

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TW v Director General, Department of Justice and Attorney-General [2019] QCAT 209

PARTIES:

TW

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML286-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

9 August 2019

HEARING DATE:

24 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that TW’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is affirmed.
  2. Publication of the name or identifying information of TW, or any person associated with him and in particular children for whom he has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

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 issue of negative notice – application for review – criminal history – charge of being drunk in a public place – charges and conviction of commit public nuisance – convictions of assaults occasioning bodily harm – conviction of wilful damage – conviction of urinating in a public place – where not categorised as serious offence 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 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Commission for Children and Young People Bill 2000, Explanatory Notes, [10]

Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336

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

Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171

Commissioner for Young People v Storrs [2011] QCATA 28

Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25

Re FAA [2006] QCST 15

Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES & REPRESENTATION:

 

Applicant:

Z Navarro, Solicitor, Navarro Lawyers

Respondent:

R Te Kani, In-House Government Legal Officer

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General (who is the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of TW (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant is a 30 year old man. He is a qualified as an electrician and a refrigeration mechanic. He operates his own business.
  3. [3]
    The Applicant’s criminal history contains a number of charges and convictions made between 2005 and 2014, which will be described in more detail later. None of the charges or convictions were for a serious offence.[1]
  4. [4]
    The Applicant seeks a blue card to enable him to carry out his work duties.
  5. [5]
    In November 2017, the Applicant applied to the Respondent for a positive notice and blue card under the WWC Act.
  6. [6]
    The Respondent considered the Applicant’s application pursuant to ss 221(1) and (2) of the WWC Act having regard to the fact that the Applicant had been charged or convicted for an offence other than a serious offence.[2] The Respondent was satisfied that the Applicant’s case was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[3] Accordingly, by letter dated 31 August 2018, the Respondent advised the Applicant of its decision to issue a negative notice.
  7. [7]
    The Applicant has applied to the Tribunal for review of that decision.

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[4] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[5] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the Respondent issued a negative notice.[6]
  2. [9]
    The Applicant has satisfied the prerequisites to apply to the Tribunal for the review because the Applicant is not a ‘disqualified person’ and the Applicant applied within the prescribed 28 day time limit.[7]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the Respondent as to whether or not there is an exceptional case for the Applicant, because that decision resulted in him being issued with the negative notice.[8]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[9]
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[10]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[11]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[12]
  5. [16]
    The role of the Respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[13]

Law relating to blue cards specifically

  1. [17]
    The WWC Act effectively provides that where a person has been charged or convicted with an offence other than a serious offence,[14] a positive notice must be issued[15] unless the Respondent 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. In that case, a negative notice must be issued.[16]
  2. [18]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  3. [19]
    Section 221 of the WWC Act relevantly provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if-
    1. (a)
      the chief executive is not aware of any police information or disciplinary information about the person; or
    2. (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 –
      1. (i)
        investigative information;
      2. (ii)
        disciplinary information;
      3. (iii)
        a charge for an offence other than a disqualifying offence;
      4. (iv)
        a charge for a disqualifying offence that has been dealt with other than by a conviction; or
    3. (c)
      the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  2. (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.
  1. [20]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined therein.
  2. [21]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [22]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. (a)
      is deciding whether or not there is an exceptional case for the person; and
    2. (b)
      is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. (c)
      in relation to the commission, or alleged commission, of an offence by the person-
      1. (i)
        whether it is a conviction or a charge;
      2. (ii)
        whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. (iii)
        when the offence was committed or is alleged to have been committed;
      4. (iv)
        the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. (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;
    1. (d)
      any information about the person given to the chief executive under section 318 or 319;
    1. (e)
      any report about the person’s mental health given to the chief executive under section 335;
    2. (f)
      any information about the person given to the chief executive under section 337 or 338;
    3. (g)
      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.
  1. [23]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  2. [24]
    The Tribunal cannot go beyond convictions and must accept them as they are.[17] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[18]
  3. [25]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[19]
  4. [26]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[20]

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.

  1. [27]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[21]
  2. [28]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[22]
  3. [29]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[23]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [30]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott No.2, Buss J observed:[24]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, 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 diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.

  1. [31]
    The Tribunal should consider risk and protective factors when determining a review decision.[25]
  2. [32]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[26]
  3. [33]
    Neither party bears the onus in determining whether an exceptional case exists.[27]
  4. [34]
    The Tribunal must review a decision under the WWC Act under the principle that the welfare and best interests of a child are paramount.[28]

Matters required to be considered by s 226 of the WWC Act

Criminal history information given under s 318 WWC Act

  1. [35]
    The Applicant’s criminal history contains:
    1. (a)
      A charge dated 1 November 2005 of being drunk in a public place (on 29 October 2005), which was dismissed;
    2. (b)
      A charge dated 21 February 2006 of commit public nuisance (on 5 February 2006), for which the Applicant was reprimanded with no conviction recorded;
    3. (c)
      A charge dated 13 November 2007 of commit public nuisance (on 26 October 2007), for which the Applicant was fined $150 with no conviction recorded;
    4. (d)
      A charge dated 16 June 2008 of commit public nuisance (on 30 May 2008), for which the Applicant was fined $300 with no conviction recorded;
    5. (e)
      A charge dated 11 January 2010 of commit public nuisance (on 23 August 2009), for which the Applicant was fined $450 with a conviction recorded;
    6. (f)
      A charge dated 18 May 2012 of enter dwelling with intent (on 16 October 2011), in respect of which no evidence was offered;
    7. (g)
      A charge dated 18 May 2012 of assaults occasioning bodily harm (on 16 October 2011), for which the Applicant was sentenced to imprisonment for 9 months (to be suspended for 15 months) to be served concurrently;
    8. (h)
      A charge dated 18 May 2012 of assaults occasioning bodily harm (on 16 October 2011), for which the Applicant was sentenced to imprisonment for 12 months (to be suspended for 15 months) to be served concurrently and ordered to pay compensation of $750;
    9. (i)
      A charge dated 18 May 2012 of wilful damage (on 16 October 2011), for which the Applicant was fined $400, ordered to pay compensation of $953.80 with a conviction recorded; and
    10. (j)
      A charge dated 8 May 2014 of urinating in a public place (on 21 April 2014), for which the Applicant was fined $150 with a conviction recorded.
  2. [36]
    None of the charges are for a serious offence nor a disqualifying offence.[29]
  3. [37]
    The Applicant’s offending ranges over a period of time from 2006 until 2014 when the Applicant was approximately between seventeen and twenty-five years of age.
  4. [38]
    The convictions of four counts of commit public nuisance between 2006 and 2010 are each a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[30] The convictions all involved the Applicant exhibiting violent or aggressive behaviour in a public place either late at night or in the early hours of the morning. The Police Court Briefs state that, in the various incidents, the Applicant head-butted one person, exchanged punches with another, “king hit” a man while he was vomiting, was a participant in a large brawl, and was aggressive towards police.
  5. [39]
    The convictions of two counts of assaults occasioning bodily harm and one (1) count of wilful damage in 2012 involved an incident on 16 October 2011 when the Applicant forced his way into the home of his female ex-partner, damaged a bedroom door to gain entry to the bedroom, punched a male to the head and face with closed fists, grabbed his ex-partner around the throat and punched her twice to the head and broke a towel rail and security door. The Applicant pleaded guilty in respect of those offences.
  6. [40]
    The most recent conviction of one count of urinating in a public place was in 2014.
  7. [41]
    There is no evidence that any child was physically in attendance at the time that any offence was committed.
  8. [42]
    The relevance of the offences to employment, or carrying on a business, that involves or may involve children is that the Applicant’s behaviour was anti-social, aggressive and/or violent. It indicates poor impulse control, an inability to exercise restraint and behave in a law abiding and socially acceptable manner and a tendency to act in an aggressive and violent manner. Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the Applicant’s ability to provide a protective environment for children and to ensure their safety and wellbeing.

Sexual offender order information given under s 319 of the WWC Act

  1. [43]
    No information was requested or received pursuant to that section.

Mental health examination information given under s 335 of the WWC Act

  1. [44]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under ss 337 or 338 of the WWC Act

  1. [45]
    No information was requested or received pursuant to those sections.

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

  1. [46]
    Additional matters which the Respondent considered particularly relevant are that a number of the offences occurred in the context of the Applicant likely being intoxicated with alcohol or in an alcohol related environment.

Materials provided by way of Notice to Produce

  1. [47]
    Material was produced to the Tribunal by the Queensland Police Service and the Townsville Magistrates Court pursuant to Notices to Produce.
  2. [48]
    The material produced by the Queensland Police Service relates to the Applicant’s offending in 2012. Witnesses alleged that the Applicant forcibly entered his ex-partner’s dwelling, caused property damage, used derogatory language against the aggrieved, caused the witnesses to be in fear and physically assaulted his ex-partner and the other the aggrieved person.
  3. [49]
    The material produced by the Townsville Magistrates Court also relates to the Applicant’s offending in 2012. It includes a Protection Order Application made by Queensland Police on behalf of the aggrieved, which also referred to alleged prior instances of violence and aggression exhibited by the Applicant against the aggrieved. It also includes a Protection Order issued on 18 May 2012.
  4. [50]
    The allegations in the produced material that the Applicant exhibited violence and aggression towards his ex-partner prior to the 2012 offending are denied by the Applicant. Further, there is no evidence that any charges were made against the Applicant in respect of those allegations. An allegation is not the same as a charge.[31] Accordingly, the Tribunal does not place any weight on those allegations.

Witness evidence

The Applicant

  1. [51]
    The Applicant gave evidence by way of a written ‘life story’/submission and by oral evidence.
  2. [52]
    The Applicant is a 30 year old man. Originally from the Torres Strait, the Applicant moved to Australia at the age of 15 years for education and work opportunities. He obtained trade qualifications as an electrician and as a refrigeration mechanic.
  3. [53]
    The Applicant now operates his own electrical air-conditioning business. He needs a blue card to do maintenance work at a school. Without a blue card, the Applicant will not be able to perform all his work duties. That would cause financial hardship for his family as he is the major financial contributor.
  4. [54]
    The Applicant has been in a de facto relationship with his partner for several years and they have a daughter. He wants to be a good role model for his daughter and to provide for his family.
  5. [55]
    The Applicant acknowledged that, through his later teen years and into his 20s, he made ‘immature decisions’ involving excessive alcohol consumption and the offending behaviour.
  6. [56]
    In relation to the 2006 offending, the Applicant recalls head-butting a person. In relation to the 2007 offending, the Applicant agrees that he threw punches. In relation to the 2008 offending, the Applicant agrees that he threw punches but does not recall a person vomiting. He denies that he would have thrown a punch at a person who was vomiting or prostrate. In relation to the 2009 offending, he agrees that he was part of a brawl.
  7. [57]
    In cross-examination, the Applicant said that he ‘cannot recall’ whether not being able to stop fighting was a characteristic of his past behaviour. The Applicant attributes his behaviour to his immaturity at the time, living away from his family and friends from a young age, not having guidance to make the right decisions and being in ‘the wrong place at the wrong time’.
  8. [58]
    The Applicant said that the 2012 offending occurred in the context that he was hurt and emotionally affected because he believed that he was still in an ongoing relationship with his ex-partner when he found her in bed with another person. He accepts that his behaviour affected the aggrieved and his ex-partner’s flatmates, whom he did not know prior to that time. He said that he now feels ‘disgusted’ by his behaviour. The Applicant denies allegations that he was physically, mentally or emotionally abusive towards his ex-partner at other times.
  9. [59]
    The Applicant said that the 2014 offending occurred in the context that he urinated in a public place when there were no public toilets available as he was on his way home after a ‘big night out’. When later asked whether he had a big night out like that since 2014, he replied ‘that was not a big night out’.
  10. [60]
    The Applicant believes that he has now matured and is a better person. He understands that he made poor choices in the past which can affect his later life. He is remorseful for his conduct and takes full responsibility for his actions. He will never act that way again.
  11. [61]
    The Applicant accepts that excessive alcohol consumption was a risk factor in the past, but says that it is no longer a risk factor because he no longer drinks alcohol to excess. He now no longer drinks spirits. He has limited his alcohol intake to 3 to 6 mid-strength beers at functions such as weddings, bar-b-ques and parties.
  12. [62]
    He has not received any professional assistance in relation to addressing his alcohol use and has instead relied on the advice of friends. The Applicant’s support network includes his parents and siblings, with whom he speaks on a regular basis.
  13. [63]
    When he is confronted with conflict or stress, the Applicant now removes himself from the situation, thinks through the situation and chooses the best outcome.
  14. [64]
    The Applicant has seen a psychologist that he has consulted. During cross-examination he initially said that he had been seeing the psychologist for the last six months but then clarified that he had seen her twice within the last six months. He said that each session lasted about three hours. He was prompted to see her because he wanted to learn how to deal with stress in relation to his family, business and financial matters. He found the sessions to be helpful and would attend again. He provided her with a copy of the Respondent’s reasons for its decision to issue a negative notice. They discussed how his behaviour affected others, what he needed to do and how he could better himself.
  15. [65]
    When the Applicant was asked during cross-examination whether he could see a link between his offending behaviour and risk to children he answered ‘no’. He said that he loves children and would not want to jeopardise that.
  16. [66]
    When the Applicant was asked what ‘maturity’ means he talked about growing from a child to an adult and ‘making the right decisions at the right time for me and others around me’.
  17. [67]
    The Applicant wants to be a role model to young persons by showing them what they can achieve.
  18. [68]
    The Applicant presented as open and the Tribunal accepts his evidence was honestly given.

TC, Applicant’s defacto partner

  1. [69]
    TC gave evidence by way of a written statement and by oral evidence.
  2. [70]
    TC has been in a relationship with the Applicant for approximately seven years. Their daughter is approximately two years old.
  3. [71]
    She has read the Respondent’s reasons for its decision to issue a negative notice and she is aware of the Applicant’s offending behaviour in 2012. She has not observed the Applicant to engage in such behaviour. The Applicant has expressed remorse for his behaviour and its effect on his life. She believes it has taught him a life lesson and an experience to draw from to better the way he handles his anger and frustration. The Applicant’s alcohol consumption has reduced. She does not believe he has issues with alcohol.
  4. [72]
    TC described the Applicant as very hardworking and the ‘nicest person’. He loves his family and extended family and everyone loves him.
  5. [73]
    Over the years, the Applicant has matured and improved in the way that the Applicant deals with his frustration. She said that he now seems to manage stress ‘quite well’ although she was unable to think of a specific example of that. If they have a disagreement, the Applicant now understands that both feelings and values need to be heard and he discusses the issues.
  6. [74]
    The Applicant’s supports include family and friends.
  7. [75]
    Loss of the Applicant’s job as a result of him not having a blue card, would cause financial stress for the family.
  8. [76]
    TC presented as reasonably open and the Tribunal accepts her evidence was honestly given.

MS, Company Secretary and friend of the Applicant

  1. [77]
    MS gave evidence by way of two written statements and by oral evidence.
  2. [78]
    MS has known the Applicant for about 7 or 8 years since the Applicant was undertaking his electrician apprenticeship and MS employed the Applicant for a period of time. MS considers himself to be a close personal friend of the Applicant and they usually communicate about once per month.
  3. [79]
    MS is aware of the Applicant’s 2012 conviction but he has not read the Respondent’s reasons for its decision to issue the negative notice. He recently read the Applicant’s criminal history.
  4. [80]
    MS recommended the Applicant’s character.
  5. [81]
    MS said that the Applicant was ‘exceptionally remorseful’ about the 2012 offending and tried ‘to achieve a constructive direction from it’.
  6. [82]
    MS believes that the Applicant has learnt from the offending and matured. He considers that the Applicant is a doting father, respectful, considerate of others, respectable, dependable, safe, and maintains a high standard of family morals and strong ethics. MS has observed the Applicant in social settings involving alcohol and the Applicant has conducted himself ‘exceptionally with nothing untoward occurring’. MS recalled that when the Applicant and his partner, TC, were going through ‘rocky periods’, the Applicant ‘walked away’ as a way of managing his anger.
  7. [83]
    MS considers the Applicant’s supports to include a group of friends in addition to his partner and family. The Applicant would turn to MS and others for guidance. The Applicant has not had any problems which required support of a counsellor.
  8. [84]
    MS has observed the Applicant to interact well with children including the Applicant’s own daughter.
  9. [85]
    MS presented as keen to support the Applicant and reluctant to acknowledge any negative aspect of the Applicant. MS was aware of the Applicant’s 2012 conviction. He recently read the Applicant’s criminal history however he has not read the Respondent’s reasons for its decision to issue the negative notice. The Tribunal places less weight on the evidence of MS.

SW, Psychologist

  1. [86]
    SW is a treating psychologist who met with the Applicant. She provided a letter in support of the Applicant. The Applicant did not call SW for cross-examination due to her being on leave. Accordingly, the Tribunal does not place any weight on her evidence.

Respondent’s submissions

  1. [87]
    The Respondent identified the following risk factors relevant to the Applicant:
    1. (a)
      The repeated nature of the Applicant’s offending and behaviours of concern over a period from 2005 to 2014 (when the Applicant was between approximately sixteen and twenty-five years of age);
    2. (b)
      The Applicant’s criminal history indicates a pattern of anti-social, aggressive and violent behaviour which the Applicant exhibited in public and in a domestic setting;
    3. (c)
      The Applicant’s criminal history suggest the Applicant has difficulty with impulse control, anger management and an inability to exercise restraint and behave in a law abiding and socially acceptable manner;
    4. (d)
      The 2012 offending (which occurred in 2011) involved violent assaults which inflicted significant injuries on the Applicant’s ex-partner and the other aggrieved person and also impacted other persons within the unit complex;
    5. (e)
      The produced material suggests that the Applicant was controlling and threatening to his ex-partner prior to the 2012 offending (which occurred in 2011);
    6. (f)
      The Applicant deflects his personal responsibility and minimises his offending behaviour by excusing it as a consequence of his youth, immaturity and being in ‘the wrong place at the wrong time’ and by blaming his ex-partner for his 2012 offending (which occurred in 2011);
    7. (g)
      The Applicant lacks insight into the effect of his behaviours on the victims;
    8. (h)
      The Applicant’s expressions of remorse appear to be self-focused;
    9. (i)
      The Applicant has linked his past excessive consumption of alcohol as a trigger for his offending. The Applicant has not demonstrated that he has sufficiently addressed his relationship with alcohol to ensure that trigger will not be a continuing concern; and
    10. (j)
      Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business, not just for the purpose sought by the Applicant.
  2. [88]
    The Respondent identified the following protective factors relevant to the Applicant:
    1. (a)
      There have been no further entries to the Applicant’s criminal history since 2014;
    2. (b)
      The Applicant has supports which include his long-term partner (TC), his friend (MS) and other family and friends;
    3. (c)
      The Applicant’s long-term partner and friend have given evidence in support of the Applicant;
    4. (d)
      The Applicant has obtained trade qualifications and has established a business;
    5. (e)
      The Applicant states that he has a changed relationship with alcohol and has become more mature;
    6. (f)
      The Applicant has identified some of the triggers for his offending behaviour and strategies he has implemented to address those triggers.
  3. [89]
    Further, the Respondent submitted that:
    1. (a)
      In determining whether the Applicant’s case is an ‘exceptional case’, the Tribunal should not consider prejudice or hardship to the Applicant: Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, Buss J at [109];
    2. (b)
      The Tribunal may consider and give weight to the produced material as part of its unfettered discretion in considering the relevant factors to determine whether in all of the circumstances it is in the best interests of children for a positive notice to be issued: Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [42];
    3. (c)
      The requirement for the Tribunal to promote consistency is subject to the need for the Tribunal to exercise its discretion as to whether the Applicant’s case is an ‘exceptional case’ having regard to the unique circumstances of each case;
    4. (d)
      A precautionary approach should be adopted by the Tribunal even though the Applicant’s criminal offending was not directly child-related; and
    5. (e)
      Having regard to the particular circumstances of the Applicant’s case, the risk factors identified rendered the Applicant’s case an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to issue should be confirmed.

Applicant’s submissions

  1. [90]
    The Applicant submitted that:
    1. (a)
      The Tribunal should give little weight to unproven allegations in the produced material that the Applicant exhibited violence and aggression towards his ex-partner prior to the 2012 offending;
    2. (b)
      The Applicant’s offending, with the exception of the 2012 offending, should not be of concern to the Tribunal due to:
      1. their minor nature;
      2. the monetary penalties imposed; and
      3. they are dated 2009 and earlier, apart from the Urinating in Public offence which occurred in 2014.
    3. (c)
      Although not a ‘serious offence’ as defined in the WWC Act, the 2012 offending was of a more serious nature. The Applicant pleaded guilty and has not sought to avoid responsibility for that offending;
    4. (d)
      There has been no offending behaviour since 2014;
    5. (e)
      The Applicant’s offending did not involve children;
    6. (f)
      The Applicant accepted responsibility for his offending. His explanation of the circumstances in which the 2012 offending occurred was not an attempt to shift blame for the offending to his ex-partner;
    7. (g)
      The Applicant has demonstrated genuine remorse for his offending behaviour;
    8. (h)
      The Applicant has demonstrated genuine insight for his offending behaviour;
    9. (i)
      The Applicant does not have an unhealthy relationship with alcohol;
    10. (j)
      Although the Applicant has not sought professional counselling in relation to his alcohol consumption, he has sought assistance of friends in that regard;
    11. (k)
      The Applicant attended a psychologist on two occasions;
    12. (l)
      The Applicant has a large support network;
    13. (m)
      The Applicant’s ongoing employment / established business is a protective factor;
    14. (n)
      The Applicant has matured since the offending;
    15. (o)
      Witnesses attest to the Applicant’s good character;
    16. (p)
      The offending behaviour and concerns identified by the Respondent have been adequately addressed by the Applicant or are not relevant to determination of whether the Applicant is suitable to work with children;
    17. (q)
      The following decisions of the Tribunal support a finding that there is no ‘exceptional case’ in respect of the Applicant in this case: Corps v Director-General, Department of Justice and Attorney-General [2017] QCAT 219, CAT v Director-General, Department of Justice and Attorney-General [2017] QCAT 69, WAL v Director-General, Department of Justice and Attorney General [2017] QCAT 218; and
    18. (r)
      In the circumstances, there is no ‘exceptional case’ in respect of the Applicant.

Consideration of the law and facts relevant to this case

  1. [91]
    As required, in deciding whether an ‘exceptional case’ exists, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above).
  2. [92]
    The Tribunal has also considered the submissions on behalf of the Applicant and Respondent respectively concerning relevant risk factors and protective factors.
  3. [93]
    Whilst the Applicant was not charged with nor convicted of a serious offence nor a disqualifying offence,[32] the Applicant’s offending over a period of time from 2006 until 2014 is a significant risk factor.
  4. [94]
    The Tribunal does not accept the Applicant’s submissions that the offending, with the exception of the 2012 offending, should not be of concern to the Tribunal due to their minor nature, the monetary penalties imposed and because they are dated 2009 and earlier, apart from the Urinating in Public offence which occurred in 2014.
  1. [95]
    The convictions of four counts of commit public nuisance between 2006 and 2010 involved the Applicant exhibiting violent or aggressive behaviour in a public place either late at night or in the early hours of the morning. The Tribunal accepts the information in the Police Court Briefs that, in the various incidents, the Applicant head-butted one person, exchanged punches with another, “king hit” a man while he was vomiting, was a participant in a large brawl and was aggressive towards police. The Tribunal acknowledges that the Applicant has denied that he would have hit a person who was vomiting or prostrate. However, the Tribunal must accept convictions as they are[33] and cannot now accept a different version of events in relation to the facts concerning the commission of the offence.[34]
  1. [96]
    The convictions of two counts of assaults occasioning bodily harm and one count of wilful damage in 2012 involved an incident in 2011 when the Applicant forced his way into the home of his female ex-partner, damaged a bedroom door to gain entry to the bedroom, punched a male to the head and face with closed fists, grabbed his ex-partner around the throat and punched her twice to the head and broke a towel rail and security door. They were violent assaults which inflicted significant injuries on the Applicant’s ex-partner and the other aggrieved person and also impacted other persons within the unit complex.
  2. [97]
    The Tribunal gives no weight to allegations, which did not result in charges and are denied, that the Applicant exhibited violence and aggression towards his ex-partner prior to the 2012 offending.
  3. [98]
    The most recent conviction of one count of urinating in a public place in 2014 is of lesser seriousness than the other convictions. However, the Tribunal considers that it is part of a pattern of concerning behaviour.
  4. [99]
    The Applicant’s offending behaviour indicates a pattern of poor impulse control, an inability to exercise restraint and to behave in a law abiding and socially acceptable manner. It also indicates a tendency to act in an aggressive and violent manner.
  5. [100]
    There is no evidence that any child was physically in attendance at the time that any offence was committed. Even though the Applicant’s offending was not child-related, it nevertheless raises serious concerns about the Applicant’s risk to children and his ability to provide a protective environment for children and to ensure their safety and wellbeing.
  6. [101]
    The Tribunal accepts that the Applicant has not engaged in any further offending or concerning behaviour since 2014. Whilst this is a relevant consideration, the passage of time alone is not determinative of whether or not a case is an ‘exceptional case’ and it is necessary to also consider all of the other relevant circumstances.[35]
  7. [102]
    The Applicant attributed his various offending behaviour to excessive alcohol consumption, his immaturity at the time, living away from his family and friends from a young age, not having guidance to make the right decisions and being in ‘the wrong place at the wrong time’. The Applicant attributed his 2012 offending to his hurt and being emotionally affected by finding his ex-partner (whom he then believed to be his partner) in bed with another person.
  8. [103]
    The Tribunal accepts that the Applicant has now made positive changes in relation to his alcohol use. Whilst the Applicant continues to drink alcohol, he now does not drink spirits and he limits his alcohol intake to up to six beers on each occasion. The Tribunal accepts that the Applicant has relied on guidance from friends in that regard but no evidence was given in relation to the detail of that guidance. The Applicant has not seen the need to obtain professional assistance to address his alcohol intake. Significantly, the Applicant has not given any evidence about his understanding of his triggers for excessive alcohol use and how he intends to manage them. Accordingly, the Tribunal is not satisfied that the Applicant has demonstrated that he has sufficiently addressed his relationship with alcohol to ensure that trigger will not be an ongoing concern in the future.
  9. [104]
    The Tribunal accepts that the Applicant now has a support network which includes his long-term partner (TC), his friend (MS) and other family and friends which is a protective influence. The Applicant has received guidance from his support network, particularly in relation to addressing his alcohol intake, although as stated above, the extent and detail of that support is not apparent. The Tribunal accepts that the Applicant would in future turn to MS and others for guidance however their level of understanding and ability to assist him is not clear. Whilst MS’s wife is a qualified counsellor, the Applicant has never received professional counselling from her.
  10. [105]
    The Tribunal accepts that the Applicant has consulted with a psychologist however it was limited to two occasions within the last six months. The Applicant said that he found it helpful and he would see her again, however there is no evidence of a plan for ongoing psychological counselling.
  11. [106]
    The Tribunal accepts that the Applicant’s established business and work are a protective factor.
  12. [107]
    The Tribunal also accepts that the Applicant has developed a level of maturity and demonstrated good character in recent years. Further, he has demonstrated an improvement in the way that he deals with stress and frustration by removing himself from the situation, thinking through options and engaging in discussion. The Applicant’s evidence in this regard is supported by the evidence of TC and MS.
  13. [108]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:[36]

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 upon the adults around them having insight into their actions and the likely effect on children.

  1. [109]
    Whilst the Applicant’s plea of guilty in respect of the 2012 offending demonstrates that he accepted legal responsibility for the offending, it does not necessarily mean that he has insight into his offending behaviour.
  2. [110]
    The Tribunal accepts that the Applicant is genuinely remorseful for his offending behaviour and that he now feels ‘disgusted’ by his behaviour. However, the Tribunal has formed the impression that the Applicant’s remorse seems to be more self-centred and directed at the consequences on his life, rather than being based on a real recognition of and remorse for the significant impact that his behaviour would have had on those affected. The Applicant regularly referred in his evidence to the negative impact of the offending on his life. This is also consistent with the evidence of TC.
  3. [111]
    The Tribunal considers that the Applicant’s explanation of his various offending behaviour demonstrated a limited understanding and acceptance of his personal qualities and failures which contributed to the behaviour. Whilst he recognised that his excessive alcohol consumption and ‘immaturity’ were significant contributors to his offending behaviour and he has now taken steps to address those and his ‘stress’ and ‘frustration’, the Applicant does not present as having a depth of understanding and to fully appreciate his patterns of behaviour and underlying behaviour triggers which contributed to his offending behaviour. Significantly, in cross-examination, the Applicant stated that he ‘cannot recall’ whether not being able to stop fighting was a characteristic of his past behaviour.
  4. [112]
    Further, the Applicant did not seem to have an understanding of the relevance of his offending behaviour to the concerns of the Respondent and the welfare of children. The Applicant seemed to lack an appreciation that he demonstrated a pattern of behaviour which could present a risk to children. Significantly, when the Applicant was asked during cross-examination whether he could see a link between his offending behaviour and risk to children, he answered ‘no’.
  5. [113]
    On that basis, the Tribunal is not satisfied that the Applicant has demonstrated genuine insight for his offending.
  6. [114]
    The Applicant submits that a number of decisions of the Tribunal support a finding that there is no ‘exceptional case’ in respect of the Applicant in this case: Corps v Director-General, Department of Justice and Attorney-General [2017] QCAT 219, CAT v Director-General, Department of Justice and Attorney-General [2017] QCAT 69, WAL v Director-General, Department of Justice and Attorney General [2017] QCAT 218.
  7. [115]
    Corps v Director-General, Department of Justice and Attorney-General [2017] QCAT 219 involved an applicant convicted stealing and fraud offences, not aggressive and violent behaviour as in the present case.
  8. [116]
    CAT v Director-General, Department of Justice and Attorney-General [2017] QCAT 69 involved an applicant who had engaged in aggressive behaviour. However, in that case there was strong evidence, which included that of the applicant’s treating psychologist and a senior pastor, that the applicant had developed a good insight and ability to deal with future triggering events through counselling sessions with the psychologist and the pastor, involvement in a men’s group and religion.
  9. [117]
    In WAL v Director-General, Department of Justice and Attorney General [2017] QCAT 218, the applicant was mentally unwell at the time of her aggressive and violent behaviour however she was later in remission and was managing her mental health through ongoing psychiatric and psychological support.
  10. [118]
    The facts of those decisions are very different to those of the present case. Whilst the Tribunal is required to ensure that cases are treated alike,[37] determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts.[38]
  11. [119]
    The purpose for which the Applicant seeks the blue card is irrelevant. The Tribunal accepts that, once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business, not just for the purpose sought by the Applicant.
  12. [120]
    The Tribunal accepts that the Applicant and his family are likely to experience financial hardship if the Applicant is not issued with a positive notice. However, such prejudice or hardship is not relevant to the Tribunal’s determination of whether the Applicant’s case is exceptional.[39]
  13. [121]
    The welfare and best interests of a child is the paramount principle that the Tribunal must apply in this review.[40]

Conclusion

  1. [122]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that there is a real and appreciable risk that the Applicant would harm children whilst employed or undertaking volunteer work.
  2. [123]
    The Tribunal is satisfied, on the balance of probabilities, that it would not be in the best interests of children for the Respondent to issue a positive notice.
  3. [124]
    Accordingly, the Tribunal is satisfied, on the balance of probabilities, that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.
  4. [125]
    The Tribunal orders that the decision of the Respondent that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is affirmed.

Non-publication

  1. [126]
    The Tribunal orders that publication of the name or identifying information of the Applicant, or any person associated with him and in particular children for whom he has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  2. [127]
    Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]  Defined in s 167, WWC Act.

[2]  Defined in s 167, WWC Act.

[3]  Section 221(2), WWC Act.

[4]  Defined by s 169 of the WWC Act.

[5]  Section 354(1), WWC Act.

[6]  Section 353, WWC Act, definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’.

[7]  Section 33(3), QCAT Act.

[8]  Section 353, WWC Act, definition of ‘chapter 8 reviewable decision’; s 354, WWC Act.

[9]  Section 19(a), QCAT Act.

[10]  Section 19(c), QCAT Act.

[11]  Section 20(1), QCAT Act.

[12]  Section 20(2), QCAT Act.

[13]  Section 21, QCAT Act.

[14]  Defined in s 167, WWC Act.

[15]  Section 221(1), WWC Act.

[16]  Section 221(2), WWC Act.

[17] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT, 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[18] Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[19] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[20] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[21]  Section 5(b), WWC Act.

[22] Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[23] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[24]  2008 (WA) SCA 171, [109].

[25] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[26] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336.

[27] Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[28]  Section 360, WWC Act.

[29]  As those terms are defined by ss 167 and 168 WWC Act.

[30]  Schedule 7 WWC Act, definition of ‘conviction’.

[31]  See TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [83].

[32]  As those terms are defined by ss 167 and 168 WWC Act.

[33] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT, 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[34] Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[35] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[36]  [2006] QCST 11, [97].

[37]  Section 4(d), QCAT Act.

[38] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[39] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, Buss J at [109].

[40]  Section 360, WWC Act.

Close

Editorial Notes

  • Published Case Name:

    TW v Director General, Department of Justice and Attorney-General

  • Shortened Case Name:

    TW v Director General, Department of Justice and Attorney-General

  • MNC:

    [2019] QCAT 209

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    09 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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