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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
NPJ v Director-General, Department of Justice and Attorney-General  QCAT 171
director-general, department of justice and attorney-general
12 May 2020
5 February 2020; 12 March 2020
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 – where applicant has disciplinary information – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 228 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, s 99(2)(a)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 228, s 353, s 354, s 360
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher and 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
G Shepherd, instructed by Jennings and Co (5 February 2020) and HCM Legal (12 March 2020)
REASONS FOR DECISION
- NPJ held positive notices and blue cards under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), from 2011 until 24 April 2015.
- On 2 February 2015 the responsible Department issued to NPJ a Prohibition Notice under s 182 of the Education and Care Services National Law. The Prohibition Notice issued as a result of NPJ leaving four children who were in his care, with his then 17-year-old daughter for a period of 40 minutes while they were visiting a library.
- On 19 March 2015, NPJ applied for a review of the decision to issue the Prohibition Notice.
- On 24 April 2015, the respondent issued a negative notice to NPJ as a result of the issue of the Prohibition Notice.
- On 21 May 2015, NPJ applied to have the decision to issue a negative notice reviewed by the Tribunal.
- Agreement was reached between NPJ and the Department that the Prohibition Notice be cancelled provided that NPJ:
- (a)Undertake specified further education in relation to his responsibilities as a family day care educator and provide evidence of completion of that study; and
- (b)Give an enforceable undertaking to the Department confirming that he would ensure adequate supervision was in place for any children in his care going forward.
- NPJ undertook the training, provided evidence of its completion, gave the enforceable undertaking to the Department, and withdrew the application for review of the decision to issue the Prohibition Notice. On 20 November 2015, the Department cancelled the Prohibition Notice and subsequently advised the respondent of the cancellation. The undertaking given by NPJ remains in effect.
- On 21 December 2015 the Tribunal handed down its decision, confirming that the applicant’s was an exceptional case.
- The applicant appealed the decision and on 18 August 2016, the Appeal Tribunal set aside the decision of the Tribunal, remitted the matter back to the Tribunal for reconsideration and invited the respondent to reconsider its decision to issue a negative notice to the applicant.
- The respondent reconsidered its decision in accordance with that invitation. It confirmed its decision on 27 October 2016.
- The Tribunal reconsidered its decision in accordance with the order, confirming its decision on 18 September 2017.
- The applicant applied to cancel the negative notice. The respondent proposed to continue the negative notice, so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant.
- Where there is disciplinary information about a person, 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.
- On 21 January 2019, the respondent advised of its decision to refuse to cancel the negative notice. The applicant 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.
- NPJ is not a disqualified person and sought the review of the decision within the prescribed period.
The legislative framework
- The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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:
- (a)the welfare and best interests of a child are paramount;
- (b)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:
- (1)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.
- (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.
- 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 if disciplinary information exists about a person the Tribunal must have regard to the matters set out in s 228(2) of the WWC Act.
- 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.
Consideration of s 228(2) of the WWC Act
- In relation to the disciplinary information the Tribunal must have regard to the mandatory considerations contained in s 228(2) of the WWC Act. The matters listed in s 228(2) WWC Act are addressed below.
The decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order.
- On 16 February 2015 the respondent received correspondence from the Department advising that the applicant had been issued with a Prohibition Notice. On 13 March 2015, the Department provided the following information:
- (a)On 20 January 2015, [NPJ] was found to have left children who were in his care as an educator engaged by a family day care service without adequate supervision in a public place without alerting an appropriate adult;
- (b)It was found that [NPJ] left the primary school aged children in a public library while he left the premises, returning after more than 40 minutes;
- (c)It was found that [NPJ] knowingly misled the Investigating Authorised Officers in his version of events, denied leaving the library premises at any time and attempted to minimise his unacceptable conduct; and
- (d)It was found that on 11 April 2014 the family day care service which engaged [NPJ] as an educator informed him in writing of a first and final warning in reference to leaving children unattended at the same library on 10 April 2014.
Any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order
- The applicant sought a review of the decision but following discussions the Prohibition Notice was cancelled and the application for review was withdrawn. NPJ was required to undertake additional training and to give an enforceable undertaking, both of which he did. The enforceable undertaking remains in effect.
The relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children
- The disciplinary information related to the applicant’s conduct while engaged as an educator in family day care. He held a position of trust, responsibility and authority in relation to the children in his care and his conduct constitutes a serious breach of the position which he held.
- The holder of a blue card is expected to behave in a manner that protects a child from harm and promotes their wellbeing. Adults caring for children must always act in the best interests of children, ensuring their physical, emotional and mental wellbeing.
Anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person
- Other relevant matters are considered below.
The material and the evidence
- The applicant provided the Tribunal with his personal submission and his updated personal statement, a statement from his wife, a statement from a mental health social worker, a statement from a consultant psychiatrist, a character reference from his GP and statements from two friends. Oral and written submissions were made on his behalf.
- The respondent provided the Tribunal with a bundle of documents paginated BCS-1 to BCS-287 including the reasons for its decision. The respondent had the opportunity to cross-examine NPJ and all his witnesses and provided oral and written submissions.
- NPJ, born in 1972, fled his home country to escape civil war. He lived in a Tanzanian refugee camp for 13 to 14 years, where he met his wife. They have six children, some born in the refugee camp and some in Australia. He and his family resettled in Australia in 2007. Following his arrival, he studied English, a certificate 3 in child services, a certificate in landscaping and a certificate in the mining industry.
- In 2011, following completion of his children’s services studies he commenced working as a family day care provider.
- On 10 April 2014, the applicant said he was caring for a group of children in the library. His wife was also caring for a group of children at the library. One of the children in NPJ’s group said he was hungry so NPJ asked his wife to care for his group as well as her own while he left the premises for approximately 10 minutes to buy some food. While he was away one of the children for whom he was responsible ran away from his wife. A security officer returned the child.
- The next day NPJ’s employer issued a warning to him in relation to this incident, saying he left the children unattended. NPJ disputes leaving the children unattended, saying they were in the care of his wife, that he understood that the relevant child to adult ratios were satisfied, that his wife was authorised as a carer, and the relevant authorities from the parents were signed.
- The applicant said that he did not understand the significance of the warning upon receiving it but once he did, he disputed it. Nonetheless, the warning letter remained on his record.
- In relation to this incident the applicant said that while he thought he was allowed to leave the children in the care of his wife, he accepts that as he was tasked with the care of the children they remained his responsibility.
- In relation to the 2015 incident, NPJ said he left the children for whom he was caring, in his daughter’s care because he was sick and needed to seek medical attention. He said that:
- (a)He is ashamed of himself as a result of the incident;
- (b)While in the past he has sought to justify his conduct (saying he left the children in the care of his then 17-year-old daughter) he accepted there is no justification for his conduct. He is no longer of the view that leaving the children with his daughter posed no risk to the children;
- (c)He realises how quickly something can go wrong when caring for children, so it is important that they are always properly supervised; and
- (d)He exercised poor judgement leaving the children to be cared for by his daughter. He knows that when entrusted with the care of children, they are the priority. On the day in question the children were his responsibility.
- He said that he has reflected upon his past conduct. He said he appreciates the risks associated with the failure to properly supervise children, including how quickly things can go wrong. He understands the need to ensure that children are always properly supervised and would behave differently today if he found himself in the same situation. He accepts now that the children must always be the priority when in his care and understands how to ensure this.
- To assist in his understanding of his responsibilities towards children in his care, as part of the agreement reached with the Department, NPJ studied the subjects ‘Work legally and ethically’ and ‘Ensure the health and safety of children’. In addition, he has undertaken further studies including the completion of a Community Work Skills Project, obtained a certificate 3 in security operations and completed subjects ‘Identify strategies to respond to basic workplace problems’, ‘Participate in highly familiar spoken exchanges’ and ‘Provide support to people living with dementia’.
- NPJ’s wife WPJ, gave oral evidence but did not update her 2015 statement. She admitted that there were possibly errors in her statement and said she was not aware of the 2015 incident. In the circumstances, the Tribunal affords no weight to WJP’s evidence.
- A friend and a community leader, COM, has known the applicant since his arrival in Australia in 2007. From his discussions with the applicant and from his enquiries within the community he is of the opinion that NPJ has learnt about the importance of the safety of children from the previous incidents and would not repeat his mistakes. He has observed the applicant’s positive interactions with children, including the applicant’s own children.
- JOH, has known NPJ since the early 1990s, in their home country, in the refugee camp in Tanzania and now in Australia. He said NPJ is a good role model in their community, a good family man and is passionate about teaching young children. He expressed the view that NPJ is now aware of his responsibilities when he is caring for children and has since developed insight into the consequences of failing to fulfill those responsibilities.
- NPJ consulted with PSY, a psychiatrist for the purposes of these proceedings. He provided a report and expressed the opinion that NPJ has accepted that he did the wrong thing leaving the children who were in his care and was now more mindful of the risks of the risks to children. He would be more careful and behave differently in the future. PSY observed that NPJ has good insight into his own actions.
- SOC, a mental health social worker with whom NPJ consulted on three or four occasions in relation to his blue card review, said that NPJ realises he made a mistake (in 2015), would not do it again and is very remorseful. She discussed with NPJ what he would do if faced with that situation again, and said he would behave differently in the future.
- NPJ’s GP since 2010, provided a character reference. He said that while he did not recall the detail of the incident leading to the loss of NPJ’s blue card he had discussions with NPJ about it and he was remorseful for it.
- 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.
- It was submitted for the applicant that the 11 April 2014 warning was unwarranted, should not have issued and should be disregarded by the Tribunal. The respondent said that the 2014 and 2015 incidents indicate a pattern of behaviour of concern. There is insufficient information available to the Tribunal to determine the validity of the warning.
- For the present purposes, a warning was issued to NPJ and whether the issue of it was warranted, the Tribunal considers it should have put NPJ on notice about the importance of ensuring that children in his care are always properly supervised.
- Despite this warning, in 2015, NPJ left children for whom he was responsible in the care of his daughter, a minor. A Prohibition Notice issued to NPJ in relation this incident. It was cancelled after the applicant undertook further study and gave an undertaking about his future care of children. This cancellation, of itself, does not address the Tribunal’s concerns; the test for the Department’s consideration is different to that applicable to the Tribunal in the present circumstances. Of concern to the Tribunal is that the applicant’s conduct suggests that he did not appreciate the serious consequences of failing to ensure the adequate supervision of children in his care.
- Since these incidents, the applicant has reflected upon his conduct and accepts that when he is tasked with the care of children, they are his responsibility. NPJ accepted the need to prioritise children in his care. He accepted that it was not appropriate to leave the children in the care of his underaged daughter. The Tribunal finds that NPJ is remorseful for his behaviour. He has since undertaken studies to further his knowledge, including his knowledge of the care of children, and has developed strategies to ensure that the conduct is not repeated. The Tribunal finds that NPJ has developed insight into the serious consequences of the failure to properly care for children for whom he is responsible.
- 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 indicated that he has learnt from the incidents and he would ensure in the future that children in his care are properly supervised;
- (b)NPJ has developed insight into the potential impact of his behaviours of concern saying he would ‘never put another child in danger again’;
- (c)He expressed genuine remorse for the behaviour;
- (d)The behaviour of concern occurred more than five years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case. This factor must be considered in the context of all the relevant circumstances;
- (e)The applicant has undertaken further studies to improve himself;
- (f)The applicant’s supportive referees, including a mental health social worker and a psychiatrist, spoke well of the applicant’s character and his interactions with children; and
- (g)The applicant has given an enforceable undertaking in relation to his future supervision and care of children.
- The risk factors for the applicant are:
- (a)The disciplinary information relates to the conduct of the applicant while children were in his care. He was in a position of trust and responsibility in relation to those children and his conduct was a breach of that position of trust;
- (b)The applicant had received a warning about a previous decision to leave children unsupervised. He disputes that this notice was warranted. Regardless, this warning should have put him on notice about his responsibilities when caring for children. He subsequently left children for whom he was responsible in the care of his underaged daughter; and
- (c)The effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct and child related business regulated by the WWC Act, not just for the reasons NPJ has sought the card. Conditions cannot be imposed on a blue card and once issued it is unconditional and fully transferable across all areas of regulated employment and business.
- The Tribunal finds that on balance the protective factors outweigh the risk factors.
- 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 may make non-publication orders. The Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child.
- Accordingly, these reasons have been de-identified.
 Applying in Queensland as the Education and Care Services National Law (Queensland) by virtue of the Education and Care Services National Law Act 2011 (Qld).
 Ex7, BCS86-89.
 Ex 7, BCS105-108.
 Ex 7, BCS103.
 NPJ v Director-General, Department of Justice and Attorney-General  QCAT 523.
NPJ v Chief Executive Officer, Public Safety Business Agency  QCATA 161.
 Ex 7, BCS207.
NPJ v Director-General, Department of Justice and Attorney-General  QCAT 315.
 WWC Act, s 221(2).
 WWC Act, s 169 (definition of ‘disqualified person’).
 WWC Act, 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.
 As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).
 Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
 Ibid, .
 Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
 Ex 7, BCS19.
 Ex 1.
 Ex 1.
 Ex 3.
 Ex 6.
 Ex 2.
 Ex 4.
 Ex 5.
 Ex 8.
 WWC Act, s 360.
  QCST 11, . See also Commissioner for Children and Young People and Child Guardian v Lister (No 2)  QCATA 87.
 Applicant’s Written Submissions, 5 February 2020, .
 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:
NPJ v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
NPJ v Director-General, Department of Justice and Attorney-General
 QCAT 171
12 May 2020