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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
YJP v Director-General, Department of Justice and Attorney-General  QCAT 87
director-general, department of justice and attorney-general
30 March 2020
13 February 2020
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 a conviction for assault with a weapon – 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)
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  QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2)  QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210
Re TAA  QCST 11
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- YJP applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
- 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.
- 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. The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
- By letter dated 14 February 2019 the respondent advised of its decision to issue YJP a negative notice. YJP seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
- Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’ is entitled to apply for a review of a ‘chapter 8 reviewable decision’ within the prescribed 28 day period. 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.
- YJP is not a disqualified person and sought review within the prescribed period.
The Legislative Framework
- The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act. The purpose of the Tribunal’s review is to produce the correct and preferable decision, 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. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount. 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.
- The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland. The principles under which the WWC Act is to be administered are:
- the welfare and best interests of a child are paramount;
- every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- 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.
- Section 221 of the WWC Act provides:
- Subject to subsection (2), the chief executive must issue a positive notice to the person if—
- (a)the chief executive is not aware of any police information or disciplinary information about the person; or
- (b)the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
- (i)investigative information;
- (ii)disciplinary information;
- (iii)a charge for an offence other than a disqualifying offence;
- (iv)a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
- (c)the chief executive is aware of a conviction of the person for an offence other than a serious offence.
- (3)If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
- For the present purposes a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
- The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:
…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.
- In determining whether there is an exceptional case when 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. 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.’
- ‘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’.
- 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. 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.
The Material and Evidence
- The applicant provided the Tribunal with his statement and life story, a statement from his wife, a statement from his GP, a statement from a psychologist and statements from two friends. YJP made oral submissions.
- The respondent provided the Tribunal with its Reasons for Decision and attachments comprising pages BCS-1 to BCS-60 and documents obtained pursuant to a notice to produce, being documents NTP-1 to NTP-10. The respondent had the opportunity to cross-examine YJP, his wife and his friends. The psychologist and GP were not available for cross-examination. The respondent made final oral and written submissions.
- YJP was born and raised, primarily by his mother, in the Philippines, in a happy and loving family. He recalls his father being abusive towards his mother in the early years of his life, until his mother told his father to leave. He began working at the age of 15 to gain an education for himself and to support his family, including his extended family.
- He met his wife, WJP, in the Philippines. They married and she returned to Australia to have their first child. They were unable to contact each other for about a month after she left the Philippines as communications were lost due to a typhoon. This was a difficult time for them: WJP did not know if YJP and his family were alive and well. Already distressed as he was unable to contact his wife, YJP experienced further distress as the typhoon had caused extensive damage to the homes of his extended family and he was unable to work. They eventually reunited in Australia following approval of his visa and shortly before their son was born. YJP’s English was poor and he struggled to adapt to the different culture. Neither of them was working at that time, as WJP was not working due to her pregnancy and YJP was studying to improve his English. He was also his first son’s primary carer. YJP and WJP said they found the first few years of marriage very difficult, particularly due to the stressors they experienced.
- The police brief indicates that on 4 September 2015, YJP and his wife were travelling interstate to find work. They were travelling by car in rural Victoria with their 16-month-old son. Whilst driving they had a verbal argument. YJP removed a steak knife from the glove box, waved it in the air, making stabbing motions, whilst grunting and with his eyes wide open. His wife was scared and wanted him out of the car. When the applicant said he wanted a toilet break WJP pulled into a rest stop. After YJP entered the bathroom, she drove off. WJP called the police who met up with her, and the applicant turned up at the scene.
- In relation to this event YJP said that the verbal argument became physical as his wife hit him. He sought to retrieve his headphones from the glove box, intending to put them on. Using his headphones to block out an argument was a strategy he had adopted in the past. While looking in the glove box he found a knife, which he raised up and told her to ‘stop, stop, stop.’ While he said he did not mean to scare WJP, rather he just wanted her to stop abusing him, he acknowledged that she would have been scared by his conduct.
- He asked WJP to stop the car so he could use the bathroom. Before getting out of the car he apologised. Upon returning from the bathroom, he found his wife had driven off without him. His jacket was on the ground. He had no money, credit cards or telephone. Police arrived and helped him get a lift further up the road to a service station. Upon arrival there he saw his wife and attempted to talk with her. He was handcuffed by police and taken to the police station. Upon release, with assistance from friends, he was able to return to the Gold Coast.
- WJP continued on to Tasmania and spoke with her family. WJP and YJP reunited in Tasmania where they undertook couples’ counselling. He said this counselling helped but as they were not living in Tasmania, he was not able to continue to seek treatment with this counsellor. They had previously attended counselling on the Gold Coast where there were living, to address issue arising in their relationship due to cultural differences. They moved to Sydney where YJP attended individual counselling.
- In preparing for this review the respondent obtained documents pursuant to a notice to produce in relation to an act of domestic violence. On 4 September 2015 the applicant and WJP argued. The Queensland Police Service’s application for a protection order said that, in the presence of their son, the applicant then grabbed his wife around the throat with one hand, causing pain. She fled their home with their son and told police that due to ongoing conflict they intended to separate.
- In relation to this incident YJP said that on the day in question he had returned home from the hospital, where he had received treatment for an ulcer. He had been lying down and when he got up he went to look for his wife. He found her next door in a darkened house drinking with a male neighbour. She told him it was okay to be friends with a man. He said it was not acceptable behaviour. They fought. They returned home where YJP said he pushed his wife in the chest. She retrieved their son and left. He went back to sleep, and the police arrived at his home. He was taken to the watch house and the protection order was made. He said his son did not witness his behaviour. He and WJP sought counselling following this.
- While he has engaged in counselling over about a five-year period, he said that it took some time to find the right counsellor for him. Having found a counsellor with whom he feels comfortable he considers he has made significant progress. He has attended both individual and couples’ counselling.
- Through counselling YJP has realised that, at the time, he had been feeling isolated, particularly as he no longer had his family nearby, and needed to deal with the trauma of his parent’s relationship. In the past, if people were angry or he heard raised voices, YJP would become agitated and respond without thinking. As a result of counselling he is now able to identify his feelings and express them before they build. Both YJP and WJP observed that their relationship has improved considerably as a result of the help they have received and continue to see a counsellor. They have bought property together, including a house, and YJP has started a cleaning business and a hairdressing business, which enable him to support his family.
- In addition to continuing to study English YJP has undertaken a course in aged care with a view to obtaining employment in that field. He and his wife have also undertaken a parenting course. At the time of the hearing they had almost completed a three-month parenting course through Griffith University to assist them to parent their son who has an autism spectrum disorder. YJP has also attended an assertiveness course, which provided him with strategies to deal with stress in an assertive, non-defensive manner.
- Through these courses he has learnt strategies including breathing, time out, open communication and listening, which have helped him to have a better marriage and to resolve conflicts. He has attended regular counselling sessions to address his behaviour. He does not drink or take illicit drugs, endeavouring to live a healthy lifestyle. YJP said that he does not wish to revert to the negative type of relationship he used to have with his wife. He now seeks to communicate in a calm manner, having discussions, rather than arguments.
- As a result of the courses he has undertaken he said he has changed his behaviour. He is proud that his children see him communicate in a constructive, healthy way. YJP wants to be a good role model for his sons and acknowledged that his past behaviour does not set a good example for children.
- The applicant has undertaken a Certificate 3 in aged care and has done work experience in this area. He has continued to study English. His goals include building his cleaning business in order to support his family.
- The applicant said he now has a support network including his friends and the customers in his hairdressing business. He said that while he does not discuss his personal matters with his customers, he observed that it helped him to have these acquaintances.
- YJP said he is opposed to domestic violence, saying he wants his wife and children to be safe. He acknowledged the traumatic impact of domestic violence on the victims. He also observed that children who witness such violence would experience trauma and may come to believe that such behaviour is acceptable, when it is not.
- He said he is deeply embarrassed and ashamed of his actions and acknowledged that the behaviour was unacceptable. He has taken steps to ensure that this does not occur again.
- WJP said that at the time of the July 2015 incident, their disagreement centred around cultural differences. She said that YJP did not strangle her as indicated in the police report but pushed at her throat and further said that their son was not present when she was pushed. She acknowledged that she and YJP were having disagreements at the time, as a result of stressors in their lives. She said that this was the only time YJP has ever touched her in this manner.
- In relation to the September 2015 incident WJP said that they were experiencing considerable stress at the time. She was driving the car when they argued. She started hitting him and was angry. She was shocked when he pulled a knife out of the glove box but said it was in the air for less than a second. When she pulled over for the toilet stop, she threw YJP’s jacket out of the car so he would not get cold, and then drove off. WJP called a friend who told her to call the police, which she did. She does not recall the incident in detail and said that because she was angry, she ‘inflated’ the events when recalling them to police. She accepted that the events indicated in the police brief were concerning and violent.
- WJP confirmed that it took some time to find a suitable counsellor for YJP but that they have now. Since 2015 WJP has observed numerous changes in YJP’s behaviour. She said that YJP now has a support network including friends he can talk to. She acknowledged the changes that counselling and the courses have brought about in YJP, including that he has developed better strategies for dealing with disagreements.
- She said that the stressors in their relationship in 2015 have been resolved and she is confident that YJP would not resort to his previous behaviour if he experienced stressors again. She said they waited to be sure of their relationship before having their second child in April 2019.
- WJP said that YJP is mortified by his past behaviour and that he has indicated to her that he wants to be a good role model for their sons. She has observed YJP’s positive interactions with their own children and the children of family and friends, including while he was the primary carer for their elder son.
- MKU, who has been a friend since about 2014, has observed the improvements in YJP’s communication style and conflict resolution over the time she has known him. She and her partner have a close relationship with YJP. She trusts him to care for her own son. She was aware only of the September 2015 incident and indicated that while she had concerns for the safety of WJP and her son at the time she no longer holds such concerns. WJP has told her that he is ashamed and embarrassed by his past behaviour. In her opinion he has matured since then. MKU is aware of the courses YJP has undertaken which he has indicated to her have helped him. He expressed remorse to her for his past actions and told her that he wants to set a good example for their sons. To her knowledge YJP does not consume alcohol or use illicit drugs. She has observed YJP’s good manner with his own and her children.
- WAT has known the applicant since 2017. She has spoken with both WJP and YJP about the September 2015 incident. She is aware that YJP has undertaken various courses and counselling since that incident and in the time she has known him has observed that the couple have developed a more unified approach to parenting and an improved approach to resolving conflict in their relationship. She has observed the applicant defuse an argument using the strategies he has developed. YJP has expressed to her his shame and remorse for his past behaviour which behaviour, in her opinion, has made him realise he needed to change. The applicant has not consumed alcohol or used drugs in her presence.
- TES has been YJP’s GP for over five years. He had read the respondent’s reasons, but it was not apparent he was aware of the July 2015 incident. He observed that YJP has ‘full insight’ into his offending, is remorseful and is embarrassed by his behaviour. He confirmed that YJP has undertaken extensive counselling since the incident as well as undertaking a course so that YJP has learnt to respond to stress in an assertive, non-defensive manner. He has observed the relationship between YJP and WJP to be calmer and far more stable than it was. TES was not available for cross-examination.
- RAW, a psychologist, has consulted with YJP for three years. She has observed him to be ‘a caring and compassionate father, actively engaged in strengthening his communication skills and addressing cultural differences.’ RAW had read the respondent’s reasons. It seems unlikely she was aware of the July 2015 incident. She said that YJP has demonstrated profound insight into the inappropriateness of his prior offending behaviour. She observed no present risk factors or triggers that could contribute to further offending behaviour, noting that he had dealt with the stressful events surrounding the time of the incident. Protective factors she identified were improved family cohesion and functioning, including practices around communication and self-care strategies. She noted he has built up a support network comprising locally based friends, a local community organisation for parents and counselling, all of which he can readily access. RAW was not available for cross-examination.
Consideration of s 226(2) of the WWC Act
- The matters listed in s 226(2) of the WWC Act must be considered by the Tribunal and are addressed below.
Whether the offence is a conviction or a charge
- For the purposes of the WWC Act, the applicant has one conviction on his criminal history: assault with a weapon.
- Arising out of events which occurred on 4 September 2015 the applicant was charged with assault with a weapon. He was convicted and released on a good behaviour bond. No conviction was recorded. On 17 March 2016 the court was satisfied the applicant had observed the conditions of the undertaking. The applicant was discharged, and the matter was dismissed.
Whether the offence is a serious offence and, if it is whether it is a disqualifying offence
- The offence is not categorised as serious or disqualifying under the WWC Act. However, all offences on a person’s criminal history are able to be taken into account in order to assess the applicant’s eligibility to hold a blue card.
When the offence was committed or is alleged to have been committed
- The offence occurred in September 2015, more than four years ago.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
- The applicant’s reaction, including the use of a knife in a threatening manner in response to a verbal argument with his wife suggests the applicant may have difficulty controlling violent impulses when he is under emotional stress. This incident occurred despite the presence of the applicant’s young son in the vehicle.
- This raises concerns about the applicant’s ability to manage his anger and exercise proposer restraint when faced with personal conflict and is directly relevant to his eligibility to work with children where situations of conflict may be expected to occur.
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
- The applicant was placed on a good behaviour bond.
Any information about the person given to the chief executive under section 318 or 319
- No information was given under s 318 or s 319 of the WWC Act.
Any report about the person’s mental health given to the chief executive under section 335
- No information was given under s 335 of the WWC Act.
Any information about the person given to the chief executive under section 337 or 338
- No information was given under s 337 or s 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.
- Other factors relevant to the police information are addressed in the further consideration below.
- In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.
- A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business.
- The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:
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.
- The applicant has demonstrated insight, and this is confirmed by his wife, his friends, his GP and his psychologist. The respondent acknowledged that the applicant was remorseful for his behaviour and understands that it was wrong and has developed insight into the effects of such behaviour on the victim and upon children who observe such conduct. He has resolved the stressors in his life at that time. While the applicant had been attending counselling around the time of the incidents it took him some time to find the right support. Now that he has done so he has developed strategies that enable him to deal with stressors and conflict, thereby reducing his risk of recidivism. He was able to articulate these strategies.
- The Tribunal finds that the applicant has developed a support network upon which he can rely if he experiences stressors in his life again. This network includes WJP, friends and colleagues, and professional support. Members of this support network confirmed that the applicant has developed strategies to manage conflict and have observed that he is now better able to manage issues in his marriage.
- While RAW was not available for cross-examination her report addressed the matters requested by the Tribunal. Neither she nor TES had stated knowledge of the July 2015 incident but as this predated the September incident, in the circumstances, it is unlikely to have significantly affected their evidence.
- The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.
- There are a range of protective factors relevant to the Tribunal’s consideration:
- (a)The applicant has not been charged with any offences since 2015. However, the passage of time is not determinative of whether or not a case is an exceptional case. This risk factor must be considered in the context of all the relevant circumstances;
- (b)At the time of his offending the applicant said he was experiencing difficulties in his marriage. Since that time, he has made positive changes to his life having engaged in counselling and completed a number of courses. As a result, he said he has more effective communication skills and can more readily manage conflict;
- (c)The applicant has expressed remorse, shame and embarrassment for his offending conduct, to the Tribunal, to WJP and to his friends and medical advisers;
- (d)The applicant has taken steps to address his offending behaviour by engaging in counselling and has developed strategies to ensure such incidents do not happen again. He has provided independent evidence of his engagement in treatment. His has demonstrated insight and was able to articulate the protective strategies he had developed;
- (e)WJP, MKU and WAT all spoke of YJP’s good character and his positive interactions with children. While MKU and WAT were not aware of the earlier offending behaviour, they had all observed changes in the applicant’s lifestyle and attitudes;
- (f)YJP has developed a reliable support network, including professional support; and
- (g)The letters from YJP’s GP and psychologist speak of the applicant’s remorse and strategies which he has developed to ensure he does not repeat his offending behaviour. RAW expressed the view that the applicant has full insight into his offending.
- The risk factors for the applicant are:
- (a)In addition to the single entry on the applicant’s criminal history, material was obtained relating to a strangling incident in which YJP was involved some months before his offending;
- (b)As the applicant was approximately 25 years old at the time of his offending, he was of sufficient maturity to understand the wrongfulness of his actions;
- (c)The offending behaviour occurred in the presence of the applicant’s infant son, exposing his child to violent and anti-social behaviour;
- (d)At the time of his offending behaviour the applicant failed to act in a controlled and reasonable manner; and
- (e)A blue card enables the holder to work in any child-related employment or conduct and child-related business regulated by the WWC Act. The Tribunal has no power to issue a conditional blue card and once issued it is unconditional and fully transferable across all areas of regulated employment.
- The Tribunal notes that these is no evidence of any conduct of concern since 2015. The Tribunal finds that YJP understands that his conduct was wrong, is remorseful for his conduct and has developed insight into the impact such behaviour can have on victims and children who witness it. The applicant is aware of the importance of protecting children from violence and the role that adults have in ensuring the safety and care of children in their care. YJP is committed to setting a good example for his sons and to supporting his wife and children.
- 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.
- 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.
- Pursuant to s 66 of the QCAT Act the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child.
- Accordingly, these reasons have been de-identified.
WWC Act, s 221(2).
Ibid, s 169 (definition of ‘disqualified person’).
Ibid, s 353 (definition of ‘chapter 8 reviewable decision’).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3) (‘QCAT Act’).
WWC Act, s 353(a).
QCAT Act, s 19(a).
Ibid, s 20.
WWC Act, s 360.
QCAT Act, s 24(1).
WWC Act, s 5.
Ibid, s 6.
Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391.
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492, .
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
Ex 14, NTP-6.
WWC Act, s 360.
 QCST 11, . See also Commissioner for Children and Young People and Child Guardian v Lister (No 2)  QCATA 87.
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210, .
- Published Case Name:
YJP v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
YJP v Director-General, Department of Justice and Attorney-General
 QCAT 87
30 Mar 2020