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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
SSJ v Director-General, Department of Justice and Attorney-General  QCAT 252
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
17 June 2020
13 March 2020
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – BLUE CARD – where Applicant seeks a review of the decision to issue a negative notice – where change of criminal history – charge of Domestic Violence – whether or not in the best interests of children to issue a positive notice
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 66
Working with Children Risk Management and Screening Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354, s 360
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
RPG v Public Safety Business Agency  QCAT 331
I Baxter, solicitor of O’Shea & Dyer Solicitors
D Taylor, Government Legal Officer
REASONS FOR DECISION
- The Applicant, SSJ, has applied for a review of a reviewable decision under the Working with Children (Risk Management and Screening Act) 2000 (Qld).
- The Applicant had previously been issued with a positive notice and blue card under the Act on 14 August 2017.
- After receiving further information from the Queensland Police Service the Applicant’s eligibility has been re-assessed and the Respondent issued a negative notice under the Act.
- The Applicant was provided with written notice of the decision, the reasons for the decision and the relevant review information.
- On 15 April 2019, the Applicant filed an application to the Queensland Civil and Administrative Tribunal (the Tribunal) to review the Respondent’s decision that the Applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for the Applicant to be issued with a positive notice and blue card.
Relevant law to be applied
- The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
- The object of the Act is to promote and protect the rights, interests and well-being of children in Queensland. The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
- The decision under review is whether the Applicant’s case is an ‘exceptional case’ in as much as the presumption prescribed by section 221 of the Act has been displaced. The nature of the Applicant’s Police information is such that the statutory presumption is that a notice should be issued to the Applicant.
- In order to issue a negative notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case’ exists.
- Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
- The Tribunal has decided in other cases that the passage of time alone is not determinative as to whether or not an ‘exceptional case’ exists.
What is an ‘exceptional case’?
- The QCAT Act governs the processes and procedures to be adopted by the Tribunal with the decision-making process being governed by the Act to make the correct and preferable decision.
- The decision under review was whether the case is an ‘exceptional case’ such that the presumption prescribed by section 221 of the Act has been displaced. Based on the Applicant’s police information the statutory presumption is that a positive notice should be issued to Applicant.
- In order to not issue a positive notice to the Applicant the Tribunal must be satisfied, on balance of probabilities and bearing in mind the gravity of the consequences of such, that an ‘exceptional case’ does exist.
- The Act does not define the meaning of an ‘exceptional case’. Section 226 of the Act refers to certain factors that the Respondent must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Respondent reasonably considers relevant to the assessment of the person.
- The Tribunal must, in exercising its review function under the QCAT Act, and in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its ‘paramount consideration’.
- It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to ‘any general rule’. The Appeal Tribunal, in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher, stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.
- The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, there are exceptional circumstances, which dictate that it would not be in the best interests for children for a blue card to be re-issued.
- The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
- The Tribunal must be satisfied that this is an ‘exceptional case’ of harm to children. The onus is on the Briginshaw standard (on the balance of probabilities) to show that there is such ‘exceptional case’ relating to harm to children.
- SSJ stated that the charge of public nuisance occurred at a “schoolies” function at age 17 when he was under the influence. He admitted the facts behind the charge and said that his behaviour was clearly quite stupid and that his judgement was impaired under the influence of alcohol. The sentencing Magistrate recorded ‘No Conviction’ and he was placed on a $500 recognisance. The Applicant accepts that his behaviour was unacceptable.
- The other charge against him is a breach of Domestic Violence Order. The Order and breach charge arise out of a very difficult home situation. He has learnt to better manage his anger, develop conflict management skills, learnt to step back and reflect on his decisions and learnt breathing exercises to make him a calmer person.
- When he saw his psychologist he worked on strategies to manage his anger; live with less conflict and go to the gym to help him unwind. He learnt to take a step back and think about the other person’s perspective. He learnt to take care to understand what was being said and to be able to walk away before he lost control. He learnt how to hold a conversation without escalating the emotions involved. He learnt how to defuse situations before they became out of control. He learnt to think before he reacted. These strategies had a quite significant effect on him when dealing the tensions within the household.
- The trigger for the Domestic Violence Order related initially to his use of the X-Box. He was extremely loud and motivated to win. On the night in question his mother told him that he was being too loud. He lashed out in frustration and is disgusted with himself that he should treat his mother in this way.
- SSJ told the Tribunal that two years ago it was a very stressful time in the household. His family was grieving due to the loss of two family members and he was arguing a lot with his mother who was quite distressed.
- The triggers for his behaviour seem to be:
- (a)anger and frustration;
- (b)being unable to manage conflict; and
- (c)the effects of alcohol consumption.
- He has limited his alcohol to one standard drink and addressed the effect of alcohol on his judgement.
- The main cause of his conflict with his mother arose out of his use of the Xbox. He has reduced the hours he plays; become less competitive; become more involved with activities outside of the household.
- SSJ says that he has changed a lot since the charges in 2018. He has matured as a person and is making better decisions. The Applicant stated that he had no difficulty handling responsibility outside the home in the workplace; sport; and at school, so he knew that he could think his way through his issues at home.
- SSJ admitted that he was a very selfish person as a young person who acted in a horrible way to get attention. He has learnt to better manage his own emotions, to communicate better, and to act in a way that doesn’t cause others harm. He admitted that his behaviour had caused harm to his mother and he now really regretted his actions. He has learnt to be a better communicator and to be empathetic. He wanted to change to be the type of person that his mother would like to see.
- He has a range of supports that include:
- (a)a good group of friends;
- (b)more ability to express his feelings and discuss issues with those friends;
- (c)a better relationship with his mother; and
- (d)access to his psychologist.
- He has made changes to his lifestyle which include:
- (a)engaging in scheduled activities;
- (b)engaging in an active lifestyle and activities outside of his home;
- (c)use of the gym to support his physical and mental welfare.
- He saw his strengths as being:
- (a)a compassionate person;
- (b)with leadership skills;
- (c)able to act in control in whatever circumstances;
- (d)motivated to be successful.
- He admitted the following particulars in relation to his charges:
- (a)he had struck his mother with a broom handle;
- (b)that he had been asked by his mother to move out of the household;
- (c)that his mother was fearful of his actions escalating;
- (d)that he had become angry with his mother when she told him to turn the noise down and that the altercation had occurred;
- (e)that he had been emotionally abusive of his mother and told her to hang herself;
- (f)that he caused his mother emotional harm;
- (g)that he told police that he gets into a rage and needs to control his anger.
- The Applicant admitted that he been referred to Headspace but had chosen not to attend because of what other young people had told him about the effectiveness of the service.
- The Applicant said that his mother had been the principal caregiver as his father left the family when he was at age two. He talked about having to manage to grieve around the loss of an older sister. He had to deal with his mother who had been profoundly affected by the loss of two of the children. His mother had told him on several occasions that she wanted to end her life. He talked about having to bottle up his emotions and being unable to express his feelings. He had found it useful to talk to the school’s psychologist about his sister’s death. He found his sessions with Mr Weightman the psychologist very helpful. He learnt breathing exercises which helped him deal with stress. He learnt how to manage particular situations much better. He learnt to leave a discussion before it became out of control; became better able to assess situations and make the right choices; and more able to walk away rather than escalate conflict.
- The Applicant in August 2018 moved out of the family home into another property owned by his mother. A couple of months later she moved in with him and has been living with him without any issues since that time.
Tony Weightman, Psychologist
- He saw the Applicant over a 12 month period. He was well aware of the Domestic Violence Order and breach. The main purpose of the treatment was to help the Applicant with conflict management skills. He told the Tribunal that the family had a very difficult environment with two of the children of the household having died. There were significant feelings of grief and loss within the family household. He was of the view that it would have been very difficult for a young person in the Applicant’s position to deal with the environment in which he was living. He says that the Applicant stayed in the household because he cared for his mother whereas his younger brother left the household as soon as he could. He would not expect the Applicant to have the maturity at the time to understand or deal with the emotional issues that he was facing given the state of his mother. He believes that the Applicant has learnt from his mistakes, matured and now goes out of his way to avoid conflict. He has helped the Applicant with breathing exercises to make him a calmer person. He has helped him with strategies to have a constructive engagement with his mother rather than a reactive response to her.
- He stated that the Applicant’s behaviour was not an issue outside his relationship with his mother. The issue with his mother was that she had her own issues and she was not an easy person to live with. He told the Tribunal that the Applicant developed more insight into his own behaviour and dealing with his mother. He was a very caring person who now knows how to much better deal with his mother. He had no reservations about the Applicant working with children.
- Mr Weightman conceded that he only spent two sessions with the Applicant for a total of around three hours. The focus of his work was on the Applicant’s anxiety and depression. The referral had come from his GP.
- Mr Weightman stated that the Applicant gained skills to help with conflict resolution. The reason for the Applicant’s offending was as a very difficult home environment. There are a number of issues which included his level of maturity and both his and his mother’s response to the loss of two of her children. He said that the Applicant’s siblings had moved out because it was too hard to live with his mother. Mr Weightman believes that confronted with the same situation now that the Applicant would act differently. He has learnt from the trauma he has experienced. He was of the view that the Applicant and his mother were both responsible for setting the scene that led to the Applicant reacting in a negative way. The Applicant’s mother had lost two children and attempted to level an unreasonable degree of control on the Applicant. The Applicant grated against the control she was asserting and that led to conflict between the two of them. He stated that the Applicant’s mother should have been more respectful of the fact that the Applicant sought to escape the tension within the household by playing on his Xbox which put his mind in a different space. The problem arose out of his mother invading his personal space.
- Mr Weightman on cross examination acknowledged that it was unacceptable for anyone to yell or threaten someone else. He believes that the Applicant would deal with those situations differently now.
- Mr Weightman when criticised for blaming the victim of domestic violence said that the domestic violence in this situation impacted on both parties because it was a mother-child situation. They were both victims at the same time.
- Mr Weightman described the Applicant’s use of foul language as a desperate measure to deal with the negative environment he was living in. He wanted his mother to listen to him because he was afraid that she wasn’t listening.
- Mr Weightman wasn’t concerned by the Applicant’s use of alcohol and self-help. A lot of young people use marijuana as self-treatment. In the Applicant’s case he has been able to moderate his intake and this is not a risk factor.
- He stated that the Applicant had:
- (a)developed quite a lot of insight;
- (b)expressed remorse for his actions;
- (c)been able to move out and then when his mother returned deal with it without any problems.
- He described his strength as:
- (a)insight into his actions;
- (b)control over his actions;
- (c)being a gentle person;
- (d)being able to take into account the contributions of others;
- (e)being more accommodating of others’ views;
- (f)keen to avoid conflict;
- (g)able to use appropriate strategies; and
- (h)being polite and respectful.
- Mr Weightman stated that the Applicant had learnt to understand the effects of trauma on the behaviour of others. He had learnt to be more understanding of the issues of his mother and her point of view.
The Applicant’s mother
- The Applicant’s mother told the Tribunal that she moved into the rental property with the Applicant and that there have been no problems during that period of time.
- The Applicant’s mother stated that at the time of the Domestic Violence breach on 16 April 2018 she was managing significant loss and grief and would have been difficult to live with. She told the Tribunal that she never rang the police; that it was her youngest son. When the police arrived she told them that she was good. They were aware that her daughter had been killed and suggested the DVO to scare the Applicant. She told the Tribunal despite the charge her son had never really caused her any serious harm. She admitted that since her daughter’s death she had spoken to the Applicant about being very unhappy with her life. Her youngest son left as soon as he could. She admitted to having been suicidal and that the Applicant had no way to deal with her behaviour. She said that a bit of yelling and screaming was the Italian way. There were two or three occasions when the discussions became really heated.
- The Applicant’s mother told the Tribunal she had seen great changes in her son and that they now had a very positive relationship.
The Applicant’s supervisor
- The Applicant had worked for her at KFC. He was her star employee. He dealt with other staff in a positive way and was able to handle irate customers. He handled himself in a very mature way. He was a very good leader. She had no concerns about his behaviour in any way at all.
- SSJ will soon be 20. He is an intelligent, articulate and hard-working young man. Ivan Baxter, the Applicant’s solicitor, submitted that this was not on balance an exceptional case. The matters of relevance were anger management and ability to use reasonable conflict management skills. In terms of anger management the breach of the domestic violence orders occurred almost two years ago. These issues lie exclusively around his relationship with his mother. There was no evidence outside the home that his behaviour is of any concern to the community.
- The initial incident occurred at schoolies at age 17. This offence has not precluded the issue of a positive notice and blue card.
- In relation to domestic violence issues the Applicant gave his evidence in a forthright and honest manner. He was open about things that he had said to his mother and he accepted that his actions were unacceptable and that his behaviour was disgraceful and clearly indicated that he was remorseful.
- Mr Weightman’s evidence to the Tribunal was that the offending occurred in circumstances where each of the parties, mother and son, bore some responsibility. His mother accepts that she had some responsibility for what happened. She sought to exert control over the Applicant because of the immense feelings of grief she was feeling.
- Ivan Baxter stated that the Applicant had come a long way, dealing with his mother’s issues in a supportive and appropriate manner. These offences happened when the Applicant was a young man at age 17 and 19. There is no test set out in the legislation, rather the Tribunal has to look at the circumstances in which the offending occurred. In terms of the risk factors (recency of the offending), it is almost two years since the Applicant was brought to the attention of police. The passage of time and stability of the Applicant lower the risks. The Applicant has matured. He has developed significant insight into the seriousness of his behaviour and understanding of its relevance in relation to working with children. He has sought treatment. He has outlined the techniques that he uses to a lower stress and deal with conflict. These techniques have had the desired effect that there have been no incidents of domestic violence in the last two years. He has reduced his consumption of alcohol. He has changed his lifestyle. He has undertaken work. He has undertaken study. He uses the gym as an outlet. He has developed a circle of friends who he could talk with about issues and stressors.
- In relation to the risk factors, he continues to live with his mother. He has ensured that his Xbox use is under control. His mother has sought counselling to deal with her grief reactions so she is easier to live with. He has developed empathy and a better understanding of his relationship with his mother.
- Ivan Baxter submitted that the protective factors outweigh the risk factors; that the risk factors had been mitigated.
The Respondent’s submissions
- The test is whether an exceptional case exists where the welfare and best interests of a child are paramount (section 360, the Act).
- The Respondent’s position is that this case remains an exceptional case under section 221 of the Act.
- When looking at the Maher case and the assessment of risk factors and protective factors there are a number of positive protective factors these include:
- (a)the Applicant has worked for a number of years;
- (b)The Applicant’s supervisor’s evidence that the Applicant was a reliable and punctual worker;
- (c)the Applicant has been successful in finishing school;
- (d)the Applicant was willing to seek counselling;
- (e)the Applicant has provided three references, each of which speak positively about his character.
- The Respondent submitted that limited weight should be placed on the Applicant’s supervisor’s evidence as she was unaware of the offences.
- The Applicant has referred to number of protective factors. The Tribunal should exercise caution in the weight attached to some of these factors. The Applicant has friends but they did little to impact on the offending.
- The fact that the Applicant can talk more easily in social settings will help drive change.
- There is evidence that the Applicant has matured as a person.
- There is evidence in the life story that the Applicant has sought counselling.
- The Applicant’s improved relationship with his mother is a protective factor.
- The Respondent accepts that counselling would bring about changes in both the Applicant and his mother which would help them live together.
- The Respondent has significant reservations about the material of the psychologist.
- The Respondent accepts that the decrease in alcohol is a positive step.
- The Respondent accepts that the Applicant’s study is a positive step.
- The Respondent accepts the Applicant’s gym workouts are a supportive protective factor.
- The Respondent in relation to the risk factors states that the nature of the offending in May 2018 involved abusing the Applicant’s mother and in October 2017 the Applicant admitted to striking his mother with a broom. A protection order is only made for the well-being of a victim sought to be protected. The behaviour reflecting upon his behaviour indicates that the Applicant’s household was an unsafe environment.
- The Respondent states that the behaviour in April 2018 constituted a breach of the order. The Applicant admitted to needing anger management and conflict training. The behaviour occurred in front of his 15 year old brother which was also concerning. This reflects on the Applicant’s ability to manage conflict and is highly relevant.
- The Respondent submits that the Applicant has not addressed the triggers of the old offending. The Respondent is concerned about the repeated nature of the offending. The offending reflects the Applicant making poor decisions. The Respondent submits that insufficient time has passed and that the likelihood of reoffending is not diminished. The Respondent submits that the Applicant has a need for further treatment.
- The Respondent in relation to the psychological examination highlights that the assessment treatment took place in two sessions and the clinical period was for less than one and a half hours. The Respondent submits that this was not long enough for effective therapy to take place. The psychologist admitted to not being fully aware of all the circumstances.
- The Respondent submits that weight should not be applied to the psychological report because of these reservations.
- The Respondent submits that the Applicant’s evidence did not touch upon his sister’s death. This clearly affected him in a significant way and has not been referred to in terms of him addressing the issue. This was a significant omission.
- The Respondent does not accept that the Applicant’s mother should accept blame for the domestic violence having occurred. There is no excuse for foul language or the striking of the mother by a broom. The Respondent says that limited weight should be placed on the Applicant’s evidence.
Discussion of the evidence
- The Applicant has a very limited criminal history. The first charge related to him committing a public nuisance and assault or obstruct police officer on 20 November 2016. The offence took place at a schoolies function when the Applicant was 17 and under the influence of alcohol. The sentencing Magistrate did not record a conviction and placed the Applicant on a $500 Recognisance and a Good Behaviour period of 12 months. The Applicant admitted that his actions were stupid and inappropriate. The sentencing Magistrate was clearly of the view that this offence was at the lower end for such offences. The Respondent took the same view and issued a positive notice and blue card to the Applicant. The Tribunal is of the view that little weight should be placed on the offence for the same reasons.
- The second conviction related to the contravention of a Domestic Violence Order on 16 April 2018. The making of a Domestic Violence Order and the breach related to a very difficult period in the Applicant’s life. The Applicant admitted that he had abused his mother and had on one occasion struck her with a broom. The Tribunal accepts the evidence of Mr Weightman the psychologist that there were unusual circumstances surrounding this offence. The psychologist was in a unique position providing counselling for both the Applicant and his mother, the victim of the domestic violence. The Applicant’s mother had lost two of her children. This had resulted in a significant grief reaction that affected both her and the Applicant. The Applicant was in a household where his mother sought to place considerable control on him. His mother had extreme feelings of grief and experienced suicidal ideation. The Applicant’s mother gave evidence that she was a very difficult person to live with at that time. The psychologist pointed out that the Applicant’s behaviour was between a mother and her child. There was no evidence that the Applicant had a problem dealing with the normal life stressors such as school, working and relationships outside the home.
- The Tribunal accepts the Applicant’s mother’s evidence that robust discussion was one of the things that could happen naturally within Italian families. The Tribunal would like to say however that Domestic Violence in whatever form or shape is simply unacceptable. This type of behaviour by the Applicant is not accepted by society and nor should it be. The Tribunal accepts that the Applicant was a young person who was living in a home with very difficult family dynamics.
- The Tribunal is of the view that there can be no doubt that the Applicant’s actions did cause harm to his mother notwithstanding what she says about the matter. The key from the Tribunal’s perspective is that the Applicant has developed insight into the harm that he has caused. This insight has allowed him to express genuine remorse for his actions and develop strategies to address his triggers and minimise the risks. The Tribunal is satisfied on the evidence that this has occurred. The Tribunal is of the view in those circumstances that the risks have been substantially reduced. This would seem to be borne out by two factors:
- (a)his mother has recommenced living with him and has done so for several months without any difficulties or similar behaviour occurring ; and
- (b)there has been no evidence of this type of behaviour outside his relationship with his mother.
- The Tribunal accepts the Applicant’s evidence that he has developed insight into his actions. The Tribunal accepts that the Applicant has expressed remorse for his actions. The Tribunal notes that the Applicant did not contest most of the allegations against him. He accepted that he had abused his mother and that he had struck her with the broom. He admitted he done these things and was ashamed of his actions. The fact that he admitted that he was ashamed of his actions speaks highly for him because he has accepted that no circumstances justified his conduct.
- The Tribunal is satisfied that the Applicant has addressed his triggers. The best evidence of this is that his mother has moved back to live with him and she has indicated she has no concerns about his behaviour. The Tribunal notes that the Applicant has developed a range of supports and has made changes in his lifestyle. The Tribunal accepts the Applicant’s solicitor’s submission that the Applicant has matured as a person. The Tribunal is also of the view that as a young person the Applicant did not have the skills and abilities to deal with the complex trauma dynamics that existed within his household. He has needed to mature and develop strategies to enable him to deal with what is a difficult home situation. The Tribunal accepts the Applicant’s solicitor’s submission that the evidence shows that he has matured and developed skills and abilities to help him deal with complex grief issues within his household.
- The Tribunal would also make the point that the Applicant as a young person would not have had the skills and abilities to deal with the complex grief circumstances that confronted him in the grief stricken household. He should not be judged too severely on the fact that he was unable to respond in an appropriate way as a young person to the circumstances that confronted him. He clearly responded in an immature and inappropriate manner to the situation in which he was placed. He did not have the skills and abilities to deal with the circumstances that confronted him. His actions need to be seen through that lens. This is another factor that differentiates this case from others involving domestic violence. This can also be seen in the recording of ‘No Conviction’ by the sentencing Magistrate.
- The Tribunal accepts the Respondent’s submission that there was a limit to the therapy that could have been provided to the Applicant in his time with the psychologist.
- The Tribunal accepts the Respondent’s submissions that the nature of offending should be of concern to the Tribunal. The Tribunal however has expressed its view of the unusual circumstances of this case above.
- The Tribunal does not accept the Respondent’s submission that the Applicant has not addressed his triggers. The Tribunal accepts the evidence of the Applicant that he has developed strategies to deal with his triggers. These include breathing exercises to make him a calmer person. This includes a range of skills dealing with conflict which include monitoring his emotional involvement; listening and being empathetic; understanding the position of his mother; and being able to walk away before conflict escalates. These skills have all been road-tested with his mother moving back in with him. There is no evidence outside of his relationship with his mother that the Applicant is a risk of harm to others.
- The Tribunal is of the view that in this case that two years since the 2018 offence is long enough to accept that the Applicant has made major lifestyle changes. There will always be a risk but the Tribunal is of the view that the risk has been greatly mitigated. The Tribunal is of this view because the Applicant has effected these lifestyle changes while still having to deal with major stressors which in the past would have placed the Applicant at risk of relapse. He has navigated:
- (a)the criminal process;
- (b)changes to the nature of his support network;
- (c)the loss of his blue card;
- (d)a range of other issues including significant grief issues.
- The evidence around these matters strengthens the Applicant’s case that he has successfully transitioned to a new lifestyle.
- The Applicant was charged with an offence that was not minor in its nature. The Magistrate who heard the matter however decided in all the circumstances to record ‘No Conviction’ and fined the Applicant $400. The Magistrate was clearly of the view that the Applicant had good prospects of rehabilitation. The fact that the Magistrate recorded ‘No Conviction’ says to the Tribunal that the Magistrate viewed these offences in the totality of the circumstances as being at the lower range of criminal behaviour. The Tribunal is required to look at the penalty but the clear inference that must be made is that the Magistrate did not accept these were significant offences and the Magistrate sought for the Applicant to be rehabilitated.
- The Tribunal notes that the charges of 14 December 2016 and 16 May 2018 are the only criminal charges in the Applicant’s criminal history. While the Tribunal accepts the Respondent’s argument that there are several events of domestic violence there was only one breach for which he was charged. The Applicant’s criminal history is accordingly quite limited.
- The Tribunal is of the view that the Applicant has taken the chance given to him to rehabilitate his life.
- The Tribunal accepts that some individuals have the ability to make major life changes without recourse to extensive formal rehabilitation. The evidence is that the Applicant learned strategies to help him cope with his stress and anxiety. The evidence in this matter is abundant that the Applicant has made those changes. He has adopted supportive strategies and he has support of a network of friends and family.
- The Tribunal accepts the evidence of the Applicant he has developed insight and expressed remorse.
- The Tribunal also notes that the Applicant does not have a history outside his relationship with his mother of causing harm to others. The Respondents conceded that there was no such evidence.
- The Tribunal accepts that:
- (a)developing insight;
- (b)improving his relationship with his mother;
- (c)developing strategies to deal with anxiety and stress;
- (d)developing strategies to resolve and manage conflict;
- (e)attending gym and doing other activities outside the household;
have all reduced his risk of reoffending.
- The supports were road-tested when his mother recommenced living with him. The clear inference from that was that his mother was of the view that she could live with him without being placed at risk.
- The Tribunal makes the following findings:
- (a)the Applicant has developed insight into the harm he caused with his actions against his mother;
- (b)the Applicant has expressed genuine remorse for this harm he has caused;
- (c)the Applicant has adopted a range of strategies to reduce stress and regulate his emotions;
- (d)the Applicant has remained offence free for two years;
- (e)the Applicant has a support network;
- (f)the Applicant has matured as a person; and
- (g)the sentencing Magistrate recorded ‘No Conviction’ and imposed a fine of $400.
- The Tribunal accepted the Applicant’s evidence, finding him an honest and reliable witness. The Tribunal placed weight on his evidence. The Tribunal in relation to weight on the evidence of other witnesses referred to that in the course of these reasons.
- The Tribunal has considered all the materials for the Respondent at the time the reviewable decision was made, the additional materials submitted for the review hearing and the sworn evidence given during that hearing. The Tribunal has considered that against the statutory factors listed in section 226, to which the Tribunal, as decision-maker, must have regard, the Act’s objectives and principles, and other evidence relevant to the assessment of the Applicant. The Tribunal has also weighed the identified risks against the protective factors. The Tribunal in reaching its decision is mindful that it needs to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.
- The Tribunal is satisfied in undertaking this weighing exercise that it has been established on the balance of probabilities that the case against the Applicant is not an ‘exceptional case’, which would harm the welfare of children and young people.
- The Tribunal takes the view that the Applicant’s charges must be taken into the context of:
- (a)his criminal history as a whole;
- (b)the balance between risk and protective factors; and
- (c)the strategies which the Applicant has put in place to address his offending behaviour.
- The Tribunal in the circumstances above does not accept the Respondent’s position as set out in paragraph 6 of the Respondent’s Reasons document that the evidence establishes an exceptional case.
- The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
- The Respondent was probably right to refuse the Applicant at first instance based on the information that was before the Respondent. The Tribunal has had the advantage of much more evidence then was before the Respondent and is of the view that the Applicant’s circumstances are such that the Tribunal is satisfied that this is not an ‘exceptional case’.
Human Rights Act 2019
- The Tribunal has considered the relevant human rights as set out in the Human Rights Act 2019 (Qld) (the ‘Human Rights Act’). In this review the Tribunal has acted in an administrative capacity and consequently, is ‘a public entity’ for the purposes of the Human Rights Act.
- Acting as a public entity the Tribunal is required to state ‘human rights Parliament specifically seeks to protect and promote’ and to ‘act and make decisions in a way compatible with human rights’. The Tribunal must also interpret statutory provisions ‘to the extent possible that is consistent with their purpose, in a way that is compatible with human rights’.
- On the basis of:
- (a)the Tribunal’s specific findings above about the Applicant;
- (b)relevant provisions of the Working with Children Act;
- (c)the QCAT Act; as well as
- (d)the actions and decisions of this Tribunal,
the Tribunal is satisfied that it has given:
- (e)proper consideration to human rights relevant to the decision;
- (f)acted and made this decision in a way compatible with human rights; and
- (g)interpreted statutory provisions ‘to the extent possible that is consistent with their purpose, in a way compatible with human rights’.
- The Tribunal is also satisfied where the Tribunal identified limits on rights, the Tribunal has determined whether any limits imposed are reasonable and justifiable in accordance with section 13 of the Human Rights Act.
- The Tribunal notes the decision of his Honour Justice Carmody in RPG v Public Safety Business Agency  QCAT 331 where he found that the Tribunal can only in these circumstances set aside the decision of the Respondent and remit that back to the Respondent. The practice of the Respondent is to then take into account the reasons and decision of the Tribunal.
- The decision of the Director-General, Department of Justice and Attorney-General dated 18 March 2019 to issue a negative notice to SSJ is set aside as the Tribunal finds that there is no exceptional case.
- The practice in accordance with the decision referred to in paragraph 113 of his Honour Justice Carmody is that the matter is remitted back to the Respondent to take into account the reasons and decision of the Tribunal.
- Published Case Name:
SSJ v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
SSJ v Director-General, Department of Justice and Attorney-General
 QCAT 252
17 Jun 2020