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

 

[2019] QCAT 367

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

TAC v Director General, Department of Justice and Attorney-General [2019] QCAT 367

PARTIES:

TAC

(applicant)

 

v

 

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML063-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

2 December 2019

HEARING DATE:

16 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is an exceptional one within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child; and
  3. Accordingly, these reasons have been de-identified.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where 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 – where application for review – where applicant has convictions for assault – where applicant has convictions for public nuisance – where applicant has conviction for drug offences – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360, Schedule 7

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

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

Re TAA [2006] QCST 11

APPEARANCES &

REPRESENTATION:

 

Applicant:

D Younger of Counsel, instructed by LawRight

Respondent:

N Rajapakse

REASONS FOR DECISION

Introduction

  1. [1]
    TAC applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), in order to continue to be a kinship carer for his grandchildren. He has previously held positive notices and blue cards under the WWC Act between 2006 and 2017.
  2. [2]
    The respondent proposed to issue a negative notice so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    By letter dated 15 January 2019 the respondent advised of its decision to issue TAC a negative notice. TAC seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28 day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    TAC is not a disqualified person and sought review within the prescribed period.

The Legislative Framework

  1. [7]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[6] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[7] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[8] The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[9] On review, the Tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[10]
  2. [8]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[11] The principles under which the WWC Act is to be administered are:
  1. the welfare and best interests of a child are paramount;
  2. every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
  1. [9]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[13]
  2. [10]
    Section 221 of the WWC Act 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
  1. (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;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (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. [11]
    For the present purposes a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
  2. [12]
    The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[14]

  1. [13]
    In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (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. (b)
    any information about the person given to the chief executive under section 318 or 319;
  1. (c)
    any report about the person’s mental health given to the chief executive under section 335;
  1. (d)
    any information about the person given to the chief executive under section 337 or 338;
  1. (e)
    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. [14]
    The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[15]
  2. [15]
    ‘Conviction’ is defined in 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’.
  3. [16]
    In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.[16] The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.[17]

The Material and Evidence

  1. [17]
    The applicant provided the Tribunal with his statement and life story, statements from 7 witnesses, a copy of a Kinship Carer Renewal Assessment Report, he and a number of witnesses gave oral evidence and his Counsel made oral and written submissions.
  2. [18]
    The respondent provided the Tribunal with its Reasons for Decision and attachments comprising pages BCS-1 to BCS-55 and documents obtained a pursuant to a notice to produce being documents NTP-1 to NTP-33. The respondent had the opportunity to cross examine TAC and the witnesses and made final oral and written submissions.
  3. [19]
    TAC is a 52 year old man who cares for his wife, who is partially blind and deaf. They have been together for 15 years and married for 12. He and his wife have cared for her now teenaged grandchildren for many years, presently caring for a grandson during the school holidays.
  4. [20]
    TAC’s criminal history is as follows:[18]
    1. (a)
      1988 – stealing – convicted and fined $250 and ordered to pay restitution;
    2. (b)
      2000 – common assault – convicted, ordered to pay recognisance $900 and placed on a good behaviour bond for 12 months, conviction recorded;
    3. (c)
      2004 – common assault – no evidence to offer;
    4. (d)
      2009 – public nuisance  – convicted and fined $200, conviction recorded;
    5. (e)
      2010 – producing dangerous drugs (13 July 2010 to 9 August 2010), possession of utensils or pipes etc. for use – convicted and fined $600, no conviction recorded;
    6. (f)
      2012 – wilful damage, trespass – entering or remaining in yard or place for business, committing public nuisance – convicted, no conviction recorded, recognisance of $300 and compensation of $1900; and
    7. (g)
      2015 – commit public nuisance on licensed premises or in the vicinity of licensed premises, contravening a direction or requirement, assault or obstructing a police officer – convicted on all charges and placed on 6 months’ probation, conviction recorded.
  5. [21]
    The applicant has a minor traffic history which the respondent indicated is not of concern to it in these proceedings. The Tribunal agrees. 
  6. [22]
    The applicant has previously held a blue card, his most recent expiring on 26 November 2017. As a result of his most recent offending, in 2015, the respondent expressed concern that the applicant had not addressed the triggers to his offending so issued a negative notice.
  1. [23]
    In relation to the 2000 assault, the police material indicates that TAC had been drinking at a canteen and bought three cans of beer to take home. He placed them on a cigarette machine and went to the bathroom. Upon returning he noticed one can was missing and the complainant was walking away. He approached the complainant, kicked him, causing the complainant to fall to the floor, and recovered the can. When interviewed by police the applicant admitted kicking the complainant because he thought the complainant had stolen his beer. The complainant, who had in fact stolen the beer, sustained minor bruising. The applicant was convicted and released upon entering $900 recognisance and conditioned to be of good behaviour for 12 months. A conviction was recorded.[19]
  2. [24]
    The police report relating to the 2004 assault charge indicates that at about 6pm the applicant had been drinking at a hotel, harassing the customers and staff. The complainant, who identified himself, asked the applicant to leave the staff alone. He asked the assistant manager to escort TAC from the premises. He was told by the complainant to leave and was escorted outside by a staff member. The complainant observed an argument between TAC and the assistant manager. The assistant manager told him TAC had made a bomb threat to him to burn the hotel. The complainant observed the applicant arguing with staff and customers at the drive through bottle shop. He grabbed the applicant by the collar of his jacket and walked him to the entrance to the drive through. The applicant struggled free, kicked the complainant in the shins and ran away. The applicant later voluntarily attended the police station. While he refused to be interviewed he admitted to having been at the hotel and struggling with the manager but said he was intoxicated at the time and could not remember threatening or assaulting anyone.[20] The complainant withdrew his complaint and the prosecutor offered no evidence.
  3. [25]
    In August 2010 the police found two green leaf plants about 15 centimetres high and 5 seedlings about 5 centimetres high at the applicant’s residence. They also located a ‘bucket bong set’ with a cone piece attached, a pair of scissors and a ceramic plate with green leafy material attached, in the laundry. The applicant told police that the marijuana plants were his and that he had planted them approximately three weeks earlier. He stated that the items found in the laundry were his and he used them for smoking cannabis.[21] The applicant was convicted of producing dangerous drugs and possession and was fined $600 with no conviction recorded.
  4. [26]
    No documents or other evidence were produced to the Tribunal in relation to the events leading to the 2009 and 2012 convictions in TAC’s criminal history.
  5. [27]
    The police material indicates that in June 2015 the police observed the applicant was inside a hotel and was observed to be ‘considerably intoxicated, unsteady on his feet, slurred speech and blood shot eyes’.[22] He was asked by police and staff to leave the premises but refused on numerous occasions. When removed by staff he continued to re-enter. The applicant removed his shirt and offered to fight police. He swore at a female passer-by who indicated to police she was scared. He refused to provide his full name to police, and refused to enter the police vehicle, swearing at police. They were required to force him into the police vehicle. Upon arrival at the police station he refused to leave the police vehicle and had to be forcibly removed. He refused to comply with police requests while in the station and offered to fight police. He provided a positive breath test with a blood alcohol content of .307%. The applicant was convicted and sentenced to 6 months’ probation. Convictions were recorded.
  6. [28]
    TAC grew up in the Torres Straight amongst a large extended family, in a supportive community. He returned to the Torres Straight after completing his secondary schooling in Brisbane. He was a passionate sportsman, playing representative football. In 1987 he suffered a serious injury which resulted in the paralysis of his right arm. He struggled to adapt to living with this disability but did adapt with the support of his family and friends. He met his now wife 15 years ago and moved to be closer to her. They have been married for 12 years. He now cares for his wife who is partially blind and deaf. TAC said that he has matured over the years since his offending and deals with problems differently now, talking with a friend or taking time for himself. He and his wife are approved kinship carers for her grandchildren. One child remains in their care.
  7. [29]
    TAC had a poor recollection of the events leading up to his 2000 and 2004. However, he acknowledged that he had been drinking prior to both events to help him deal with the stress that he was experiencing at the time.
  8. [30]
    The applicant said that in the lead up to the 2015 offending he was under a lot of pressure and felt very stressed. His relationship with his wife was strained at the time as her son was living in their house. On the night in question he had a fight with his wife, went to the hotel to have some drinks and drank too much. He said he pleaded guilty to the offences, recognising that his actions have consequences.
  9. [31]
    He said that he is one of the main hunters in his community. Accordingly, he has certain responsibilities concerning funerals and tombstones ceremonies, which include putting food on the table for these special occasions. At the time of each of these offending occurrences in 2000, 2004 and 2015, as a result of his responsibilities in relation to these ceremonies, he was experiencing significant stress.
  10. [32]
    TAC admitted that his anti-social behaviour and his behaviour leading to the assaults were wrong. He said that he is ashamed of that behaviour and extremely remorseful for it. He said that due to the shame he feels he finds it difficult to talk about his behaviour and believed that this reluctance to talk may have lead the respondent to believe he lacked insight in relation to his offending behaviour.
  11. [33]
    TAC said that he and his wife have been kinship carers for about 16 years. He said that the children were not in his care at the time of his offending and expressed the opinion that it would be ‘really bad’ for the children in his care to know of his offending. He said he has not and would not smoke cannabis in the presence of children. When he has used cannabis in the past he left the community to do so and returned later.
  12. [34]
    He said that he identified that this behaviour was related to alcohol use so sought assistance. Following his 2015 offending, TAC engaged with ATODS to reduce his consumption of alcohol and marijuana as he recognised these substances contributed to marital and family issues. He also said he learnt ways to manage his stress. He now endeavours to resolve issues by talking them through or taking time out and going for a walk, or going hunting or fishing. He does not consume alcohol or smoke around the children in his care as he knows this is not the right thing to do.
  13. [35]
    TAC described skills he has developed which would assist him if faced with the same circumstances he experienced in 2000 and 2004. He said that if confronted with these situations today he knows not to take physical action. Today he knows to walk away or to talk about the issues and he has learnt this from other families upon whom he can rely for support. If he feels stressed he indicated that he can ask for help from other families, or talk with them. He identified that he goes fishing or hunting to relieve stress.
  14. [36]
    The applicant took responsibility for his offending. He said that as newlyweds he and his wife encountered obstacles which turned minor issues into major issues. He would leave the house and go and consume alcohol with his friends and other family members to relive stress.
  15. [37]
    He said he regretted his actions and wished he had more support back then. As TAC is not from the community in which he now lives he previously had limited friends and family upon whom to rely. He said he now has support from a family member, employed by Queensland Health – Mental Health (ATODS), who offers practical advice. He also has support from the Department of Child Safety, Youth and Women and the ITEC Youth’s placement support worker currently placed in his community. He said he understands the effect of criminal activity on children’s emotional and psychological development, particularly his own actions and their impacts on his grandchildren.
  16. [38]
    He associates mainly with family members and has distanced himself from friends who drink, although he said that some friends have followed his lead by not drinking alcohol, so as to have a better life.
  17. [39]
    In relation to the 2010 drug offences TAC said he was living by himself at the time and not caring for children. He said that he rarely smokes cannabis anymore. He said that it is not good to smoke around children and that he has never smoked around children or cared for children after using cannabis. He told the Tribunal that he would be upset if his children saw him smoking. The applicant admitted to most recently smoking cannabis 4 months before the hearing.
  18. [40]
    The material provided by the Department of Child Safety, Youth and Women (‘the Department’) pursuant to a notice to produce indicates:
    1. (a)
      On 10 August 2007, the Department received a notification expressing that the applicant regularly hits children in his care with a broomstick. When interviewed at the time the applicant said ‘No I didn’t hit with broom. Just smack on the bum, a tap on the bum’.[23] The department found there had been a breach of the standards of care in relation to a child but that the child had not been harmed or at risk of harm.[24] The Department recorded a child placement concern report;
    2. (b)
      On 26 September 2007, the Department received a notification that the applicant had slapped a child in his care across the face and left a small mark.[25] When interviewed the applicant said that the marks were from ringworm and that the child would grow out of it. The Department found there had been a breach of the standards of care but that the child had not been harmed or at risk of harm. The Department recorded a child placement concern report;
    3. (c)
      On 10 June 2008, the Department received a notification that children in the applicant’s care stated that he and his partner ‘flog’ the children, they get locked in their room and sometimes out of the house and they did not feel safe.[26] When interviewed the applicant said that he smacked children in his care for climbing on a tree or a broken fence and in a shop as they were running away.[27] The Department observed that TAC and his wife had not received adequate training and support from their designated support agency. The Department assessed that, with appropriate training and support, the applicant would be able to modify his behaviour as a carer. It recorded a Matter of Concern; and
    4. (d)
      On 26 November 2008, the Department received a notification that the applicant had smacked child in his care on the bottom with his hand and yelled in her ear.[28] This notification was assessed by the Department as part of the matters of concern process in relation to the 10 June 2008 notification.
  19. [41]
    When the children in his care were younger, TAC said that he would sometimes smack them to prevent them from touching dangerous items such as the hot stove or knives in the kitchen, but that this occurred quite some time ago now. TAC said that as the child in his care is now older he does no longer needs to stop him doing these types of things. He said that if young children were in his care now and he needed to prevent them from doing something dangerous he would talk to the child and redirect them.
  20. [42]
    In relation to the Department 2007’s concern that TAC failed to seek medical treatment for ringworm for a child in his care he said that in the same situation today he would seek medical treatment for the child.
  1. [43]
    He said that he believes he can provide a positive and protective environment to children, which is free from violence and anti-social behaviour.
  2. [44]
    NAC, TAC’s wife told the tribunal of TAC’s positive interactions with their grandchildren, as he sought to ease them through change. He has taught their grandsons traditional hunting, fishing and gathering, using their local language.[29] She denied that TAC ever smacked the children and said she was not aware the Department had spoken to TAC about child safety concerns. She said that they jointly care for the grandchildren, including ensuring they receive medical care.
  3. [45]
    NAC said she was aware of TAC’s criminal history but did not have a fulsome recollection of it. Broadly speaking, she observed that at the time of his offending he needed a break so left their community to spend some time with his family and that by doing this his behaviour was not witnessed by children. When he returned he acted as a father to the children in their care. She said he knows ‘very well’ not to drink excessively within their community and with the family. He does not drink in front of the children and if he drinks he stays away, returning when he is sober. She has observed that TAC drinks less since his most recent offending.
  4. [46]
    HHN gave evidence that he has known TAC his whole life as they grew up together in their home community, where TAC is a traditional owner. They are closely related, being cousin brothers, and TAC is like a big brother to him. He was aware of TAC’s criminal history and said that from his own observations he was aware that the history is a sensitive subject for TAC to discuss with others. HHN has observed that TAC is very remorseful for his past behaviour and understands that such behaviour can put any children in his care at risk. HHN had spoken with TAC about the respondent’s reasons for refusal of TAC’s blue card application. HHN spoke of TAC’s positive ways with children, having observed him to be compassionate, respectful and thoughtful. He considered that TAC has a ‘unique way with children when it comes to teaching cultural protocols, traditional language/singing/dancing/hunting and gathering.’[30]
  5. [47]
    HNN has observed changes in TAC’s behaviour since his most recent offending, looking after his family and is now more communicative. He said that TAC’s role has evolved into a more father-like role. He said that TAC has grown out of his previous behaviour and is now a role model for HNN and his children. He told the Tribunal that TAC’s changes have influenced HNN to change for the better also.
  6. [48]
    AMK is a foster and kinship care placement support worker with ITEC Youth in TAC’s area. She has known the applicant in that capacity for 6 years and has known him personally for over 15 years as they come from the same area. In her role with ITEC her responsibilities include providing support to families to care for their kin and ensuring the safety of children placed with carers. During her time as support worker for TAC she has had no cause to report any matters of concern or respond to any Standard of Care issues for him.
  7. [49]
    She said she was aware of TAC’s criminal history and has read the respondent’s reasons for refusal of a positive notice. She has spoken with TAC about his offending and he has told her he is sorry for it and is aware that offending of that nature places children at risk. She said TAC has told her he has modified his lifestyle since his offending because ‘he knows that he needs to be a positive role model for his grandchildren, and he knows he cannot do this when he commits offences.’[31]
  8. [50]
    She attends home visits with TAC every 2-3 weeks. On these visits she has observed TAC’s positive, patient and caring manner with his grandchildren. She has personally observed changes in TAC since about 2015 saying he is now calmer, and that he removes himself from stressful situations. She has not seen him under the influence of alcohol or cannabis. In her opinion TAC is now a positive role model to children, engaging them in cultural activities
  9. [51]
    NAN said the applicant is known traditionally as her cousin brother, and that she has known TAC all his life as she and her brother grew up with TAC in the same community. The older brother role TAC played in NAN’s life has continued with NAN’s own children as they now live in the same community. She told the Tribunal she has observed TAC to be respectful, patient and kind with children. She was aware of TAC’s criminal history and has read the respondent’s reasons. NAN said that TAC is remorseful and regretful for committing the offences. She said that TAC understands that he is not a good role model for children when he behaves in that manner and that the behaviour puts children at risk.[32] She has observed changes in TAC since his most recent offending including that he visits NAN more frequently, teaches her children cultural protocols and reprimands her children when required in an appropriate manner.
  10. [52]
    The remaining witnesses were not available for cross examination.
  11. [53]
    TAN has known TAC most of his life as they grew up in the same community and have maintained contact now that TAC has moved away. He said he was aware of TAC’s criminal history. He has observed that TAC is sensitive about discussing it. He had spoken with TAC about the reasons for the respondent’s refusal of his application. He has observed that TAC is remorseful for his wrongdoing and understands he is not a good role model for children when he behaves in that manner.[33] TAN has engaged with TAC on a professional basis at ATODS. He has observed that TAC now makes better choices and has observed changes in TAC’s lifestyle since engaging with ATODS. This evidence, including the nature of the changes he has observed in TAC, was not able to be explored in cross-examination.
  12. [54]
    RAS, TAC’s wife’s grandson, provided a statement to the Tribunal.[34] TAC is his kinship carer and has played the role of father to him since he has been in his grandparent’s care. He told the Tribunal that TAC does not use corporal punishment to discipline. Rather he uses a firm and non-threatening parenting style. He observed that TAC goes for walks when he is experiencing stress. RAS said that TAC has taught him traditional hunting, fishing and gathering and said that they go out to camp. He observed that TAC has built a relationship with him based on honesty and trust. They speak together in their local language. He said he was aware of TAC’s criminal history but had not read the respondent’s reasons for refusal of the application. This evidence was not able to be explored in cross-examination.
  13. [55]
    A local doctor provided a brief letter[35] confirming TAC’s right arm paralysis and indicating that he was not aware of any medical reason for TAC not to be granted a blue card. While the GP was not available for cross-examination the contents of the letter seem uncontroversial. There was no suggestion there were any medical issues relevant to the Tribunal’s consideration.
  14. [56]
    TAC provided a copy of the Kinship Carer Renewal report dated 20 September 2017.[36] It recommended that TAC and NAC continue as kinship carers to their 2 grandchildren (one is now an adult), observing that there were both willing and able to engage with family, social and community services support to ensure stability and care for the children. It was recommended that they attend training as it became available.
  15. [57]
    The respondent’s concerns about TAC being granted a positive notice were centred on his disciplinary techniques, drug use and assault history. The respondent said it was unclear the strategies TAC would use today to discipline children. The drug charge was of concern particularly as it was for producing drugs and further TAC admitted to police to using cannabis. Finally, the respondent said there were insufficient gaps in the applicant’s criminal history to indicate that he had addressed the triggers for this behaviour.

Consideration

  1. [58]
    In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.[37]
  2. [59]
    A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business.
  3. [60]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:[38]

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

Consideration of s 226(2) WWC Act

  1. [61]
    The matters listed in s 226(2) WWC Act must be considered by the Tribunal and are addressed below.

Whether the offence is a conviction or a charge

  1. [62]
    For the purposes of the WWC Act, the applicant has convictions for stealing, common assault, commit public nuisance (two (2) counts), producing dangerous drugs, possessing utensils or pipes etc. for use, wilful damage, trespass (entering or remaining in yard or place for business), commit public nuisance on licensed premises or in the vicinity of licensed premises, contravening a direction or requirement and assault or obstruct police.
  2. [63]
    The applicant also has a 2004 charge for common assault.

Whether the offence is a serious offence and, if it is whether it is a disqualifying offence

  1. [64]
    None of the offences on the applicant’s criminal history are serious or disqualifying offences under the WWC Act.

When the offence was committed or is alleged to have been committed

  1. [65]
    The offending took place in 1988 and then between 2000 and 2015.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children

  1. [66]
    The 2000 and 2015 convictions and the 2004 charge involved violent, anti-social behaviour. Children are entitled to be cared for by adults who do not engage in violent and anti-social behaviour. Exposure to such behaviour affects a child’s perception of what is appropriate behaviour in the community. There is no evidence that the applicant’s offending occurred in the presence of children.

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. [67]
    The court imposed penalties including fines, good behaviour periods and a probation order in relation to the applicant’s offending. The court recorded convictions in relation to the 2000, 2009 and 2015 offending. The court’s reasons for imposing these penalties are not known to the Tribunal.

Any information about the person given to the chief executive under section 318 or 319

  1. [68]
    No information was given under s 318 or s 319 of the WWC Act.

Any report about the person’s mental health given to the chief executive under section 335

  1. [69]
    No information was given under s 335 of the WWC Act.

Any information about the person given to the chief executive under section 337 or 338

  1. [70]
    No information was given under s 337 or 338 of the WWC Act.

Anything else relating to the commission or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

  1. [71]
    Other factors relevant to the police information are addressed in the further consideration below.
  2. [72]
    There have been significant gaps in the applicant’s offending, including between 1988 and 2000. The applicant admitted that the 2000, 2004 and 2015 offences occurred while he was intoxicated and during periods of personal stress. Since his most recent offending he has sought support for his alcohol use through ATODS, which included counselling and recognition of alcohol use as a trigger. In addition to ATODS, he also now has the support of an ITEC Youth Foster and Kinship Care support worker and the Department. He said, and a number of his witnesses confirmed that, he has reduced his alcohol consumption. He said that he does not consume alcohol or smoke around children as he understands this is not the right thing to do.
  3. [73]
    While TAC had a poor recollection of the precise events leading to his offending, he accepted that his previous violent and anti-social behaviour was wrong and has taken steps to address his wrong doing and to seek treatment. TAC did not seek to make excuses for, or justify, his past behaviour. He believes he can provide a positive and protective environment for children.
  4. [74]
    TAC has strategies in place to deal with anger and conflict management. He had identified that these issues are linked with his alcohol use. His strategies include reducing his consumption of alcohol, taking time out, by going fishing or hunting, and talking with his support network. Witnesses for the applicant have also observed changes in TAC’s behaviour and his positive influence upon others in the community.
  5. [75]
    His drug conviction occurred while he was living alone and not caring for children. TAC has admitted to drug use to police, because he believes telling the truth is the right thing to do. He said that he rarely smokes cannabis anymore. He agreed it is not good to smoke around children or to be responsible for caring for children if you have had cannabis. His past drug use occurred out of the community suggesting that he is mindful of the harmful effects of such behaviour.
  6. [76]
    A number of witnesses gave evidence on behalf of TAC. The Tribunal accepts the evidence of the witnesses, but places less weight on those who were not made available for cross examination.
  7. [77]
    While the applicant did not provide a medical report addressing his insight, triggers for his behaviour and remorse, his numerous witnesses attested to this.
  8. [78]
    The Tribunal accepts that TAC has a supportive network both within and outside of his community. Many of the witnesses expressed the view that TAC is remorseful for his offending behaviour and that he has expressed this to them. These people have noticed TAC’s changed behaviour since his most recent offending, including reducing his alcohol consumption, and said that TAC presents as a positive role model to the members of the community. These changes have had a positive influence on friends and others within his community, causing them to change their behaviour also. They talked of the respectful, compassionate and thoughtful manner TAC has with children and told the Tribunal that TAC has been teaching his grandchildren and other children in the community cultural protocols, including traditional language, singing, dancing, hunting, fishing and gathering.
  9. [79]
    The Tribunal finds that TAC has taken steps to address his triggers and adopted strategies to enable him to more appropriately manage his stress and conflict management. Further, the Tribunal accepts the evidence of the numerous witnesses who said that TAC has changed his behaviour since his most recent offending.  
  10. [80]
    The Tribunal accepts that TAC is remorseful for his offending behaviour and has demonstrated insight into the effect of his behaviour on children in his care. The Tribunal is of the view that TAC has demonstrated insight into the impact violent behaviour and drug use has on children. Numerous witnesses spoke of the remorse TAC expressed to them for his past behaviour.
  11. [81]
    The Department’s child safety concerns were raised more than 10 years ago. While NAC said that TAC did not smack the children in their care, TAC admitted to smacking them. He said that he now knows to use methods other than smacking for discipline. The Tribunal accepts that TAC has taken steps to address these concerns and would behave differently today, talking with or redirecting a child to ensure they avoid harm, and would take responsibility for their medical treatment.
  12. [82]
    Without a blue card TAC will not be able to continue to be a carer for his grandchildren. However, any detriment to TAC is irrelevant to the Tribunal’s consideration as to whether an exceptional case exists.
  13. [83]
    The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.[39]
  14. [84]
    There are a range of protective factors relevant to the Tribunal’s consideration:
    1. (a)
      He takes full responsibility for his past offending behaviour;
    2. (b)
      The applicant has engaged with ATODS to address his alcohol and drug use;
    3. (c)
      The applicant has demonstrated insight into his criminal offending, acknowledging a connection between his alcohol use and his violent and antisocial behaviour;
    4. (d)
      He has expressed remorse for his offending behaviour;
    5. (e)
      He identified the negative impact that his behaviour can have upon children in his care and has taken steps to address concerns;
    6. (f)
      The Department’s child safety concerns were over 10 years ago and the applicant has developed different child care strategies since then;
    7. (g)
      The applicant has a good support network, including friends, family and community support groups;
    8. (h)
      He has made changes to his lifestyle to enable him to respond appropriately to stress in his life, including reducing his alcohol consumption; and
    9. (i)
      He has been observed to interact positively and appropriately with children.
  1. [85]
    The risk factors for the applicant are:
    1. (a)
      The applicant has a criminal history which includes violent and anti-social behaviour and drug related offending;
    2. (b)
      The applicant’s offending occurred most recently in 2015. There have been gaps in his offending. These previous gaps raise concern that the applicant has not yet had opportunity to demonstrate that he is able to refrain from such offending;
    3. (c)
      The applicant’s offending in 2000, 2004 and 2015 occurred while he was intoxicated;
    4. (d)
      The applicant has admitted to the use of cannabis, but agrees that it is not good to smoke around children or be responsible for caring for children if you have had cannabis; and
    5. (e)
      That a blue card, if issued, is fully transferrable across all areas of regulated employment and is unconditional.
  1. [86]
    The applicant has not engaged in in any concerning or offending behaviour since 2015. However the passage of time is not determinative of whether or not a case is an exceptional case.[40] This risk factor must be considered in the context of all the relevant circumstances.
  2. [87]
    On balance, after consideration of all of the evidence, the findings of fact, weighing the risk and protective factors, and the relevant matters in the WWC Act, including
    s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.

Orders

  1. The decision of the respondent that the applicant’s case is an exceptional one within the meaning of s 221(2) of the WWC Act is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.

Non-publication/de-identification

  1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child; and
  2. Accordingly, these reasons have been de-identified.

Footnotes

[1]WWC Act, s 221(2).

[2]Ibid s 169 (definition of ‘disqualified person’).

[3]Ibid s 353 (definition of ‘chapter 8 reviewable decision’).

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 33(3).

[5]WWC Act, s 353(a).

[6]QCAT Act, s 19(a).

[7]Ibid s 20.

[8]Ibid s 20.

[9]WWC Act, s 360.

[10]QCAT Act, s 24(1).

[11]  WWC Act, s 5.

[12]  Ibid s 6.

[13]Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391.

[14]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].

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

[16]Ibid [30].

[17]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[18]  Ex 12, Applicant’s Criminal History, 17 November 2017 – BCS-13 to BCS-14.

[19]  Ex 12, QPS Court Brief, BCS-17.

[20]  Ex 12, QPS Court Brief, BCS-21.

[21]  Ex 12, QPS Court Brief, BCS-24

[22]  Ex 12, QPS Court Brief, BCS-26.

[23]  Ex 11, NTP-7.

[24]  Ex 11, NTP-8 to NTP-9.

[25]  Ex 11, NTP-11 to NTP-17.

[26]  Ex 11, NTP-18 to NTP-19.

[27]  Ex 11, NTP-25.

[28]  Ex 11, NTP-28.

[29]  Ex 7.

[30]  Ex 3.

[31]  Ex 4.

[32]  Ex 5.

[33]  Ex 6.

[34]  Ex 8.

[35]  Ex 10.

[36]  Ex 9.

[37]  WWC Act, s 360.

[38][2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

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

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

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2019] QCAT 367

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    02 Dec 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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