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

 

[2020] QCAT 273

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

HAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 273

PARTIES:

HAP

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML268-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

21 July 2020

HEARING DATE:

13 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where a negative notice was issued – application for review – where applicant has four convictions for breaches of the Weapons Act 1900 (Qld) – where Tribunal confirmed decision to issue a negative notice

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 221, 226, 354, 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219

Re TAA [2006] QCST 11 (26 June 2006)

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

D Taylor

REASONS FOR DECISION

  1. [1]
    HAP was a bus driver and teacher’s aide at his local High School for many years.  He particularly worked with special needs children. He also served as the union representative for teacher aides at the school.  He says this latter role brought him into direct conflict with the then principal of the school.  He had a difficult relationship with that officer, but he says, an excellent relationship with the teachers. 
  2. [2]
    To perform his jobs, HAP has held a blue card for about 12 years without incident.
  3. [3]
    HAP’s brother died unexpectedly in mid-April 2019.  This was a difficult emotional time for HAP and he says created a lot of stress in his life.
  4. [4]
    HAP has an interest in guns.  HAP held licences for three guns – an Uberti revolver handgun, a Smith and Wesson revolver handgun and a Stoeger shotgun.  He was a member of a gun club and held a range officer’s authorisation at his then club.  HAP says he respects the gun licencing laws. 
  5. [5]
    HAP has previously been issued with positive notices and blue cards on 25 November 2008, 30 September 2010, 9 December 2013 and finally 10 November 2016.
  6. [6]
    Following the receipt of police information, HAP’s eligibility was re-assessed, and his blue card was cancelled by issuing a negative notice. HAP has applied to QCAT to review that decision.
  7. [7]
    This is not an appeal decision, but a review. QCAT can review a decision to issue a negative notice under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).[1]  Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)[2] this hearing is a fresh hearing with the purpose of producing the correct and preferable decision on the evidence before the Tribunal.
  8. [8]
    The paramount consideration is the welfare and best interests of children.[3] The central focus of the Act is the protection of children.  It is not intended to impose additional punishment on a person but rather is intended to put gates around employment to protect children from harm.[4]
  1. [9]
    HAP was convicted on 8 July 2019 in the Magistrates Court of four breaches of the Weapons Act 1900 (Qld).  Two convictions were for the contravention of a condition of HAP’s licences and two were for not ensuring secure storage of his guns.[5]  No convictions were recorded.  
  2. [10]
    Under the WWC Act, a positive notice must be issued to HAP unless the Tribunal considers that the facts of the case give rise to an exceptional case in which it would not be in the best interests of children for a positive notice to be in place. This is because none of HAP’s convictions are defined as serious or disqualifying offences under the WWC Act.[6]
  3. [11]
    Police records provide details of the incidents.  The first incident occurred on 24 April 2019, just after HAP’s brother died.  HAP took his unloaded Smith and Wesson revolver to school.  It was taken without ammunition.
  4. [12]
    HAP says this was to show a colleague who was interested in guns and joining the gun club.  He says he showed only one person in a closed room with no student present.  HAP was adamant that he only showed the gun to one person. 
  5. [13]
    HAP transported the gun to school that day on the bus as he started the day doing his job as a bus driver for special needs children.
  6. [14]
    The second incident occurred on 14 June 2019.  HAP says he had recovered by then from the stress of the death of his brother, in fact describing himself at the hearing as being in “great shape” by then. 
  7. [15]
    Between 11.00am and 2.20pm HAP had placed his Uberti revolver and 56 rounds of ammunition into a camouflage bag which he then placed on the back seat of his car.  HAP then travelled to his large local shopping centre where he locked his car, leaving the gun bag visible above the back seat on the folded down rear section of his hatch back motor vehicle. 
  8. [16]
    HAP gave evidence that he was planning to attend a shoot at the gun club that evening at 6.00pm.  HAP says he spent 20 minutes at the shopping centre and then returned home.

Background

  1. [17]
    HAP is 66 years old.  He is the guardian for his adult disabled son whom he fostered with his now ex-wife many years earlier. He is currently finishing family law proceedings with his ex-wife but gave evidence that these proceedings do not stress him.
  2. [18]
    HAP’s general practitioner of three years provided a statement to the Tribunal.  HAP’s doctor opines that HAP is not suffering from a terminal illness, that he is not aware of any history of mental illness in his past and on his own observations, has never had any reason to doubt HAP’s mental health.  The doctor also says he understands an allegation has been made that HAP has made threats to shoot people. If this is true, the doctor opined it would be in stark variance to the personality of the patient he has come to know over the last three years.
  3. [19]
    There was no evidence before me that HAP has ever made any threats of violence and I place no weight on any allegations of this nature.

Discussion

The school incident

  1. [20]
    HAP accepts that taking the revolver to school was an error of judgment soon after the death of his brother.  He is very remorseful.  He says that there was never any risk to children as he showed the gun to one colleague only in a closed room where no children were or would enter. 
  2. [21]
    This evidence is at odds with statements from two witnesses who gave evidence[7] in the police proceedings that they had either been shown the gun or it had come to their attention on the day.  HAP says the evidence of these witnesses is a fabrication in order to advance their positions in the school. 

The shopping centre incident 

  1. [22]
    HAP gave no cogent reason for loading the gun into his car some at least four hours prior to the shoot, particularly as he was returning home prior to the event.  HAP saw no problem with leaving the gun and ammunition in plain sight in his vehicle in the public car park as he says the car was locked. 
  2. [23]
    HAP also admits that he was not completely truthful in answering questions put to him by the police officers when they attended his home that day.

Generally

  1. [24]
    HAP surrendered all of his firearms to police at his home on 14 June 2019 and on 15 June 2019 cancelled his gun club membership.  On 17 June 2019 he further surrendered his gun licences.  Throughout the hearing HAP displayed a level of tolerance to the ownership of guns much lower than that of his community.  He continually downplayed the effect of a gun in a school or at a shopping centre.  He displayed no insight into the possible effects on students, teachers or the general public.
  2. [25]
    After the school incident, the school took steps to ensure the safety of students and staff.  A letter was sent to the parents of students, staff were advised and for a short period, security was increased at the school.  At the hearing, HAP was amused by these steps and considered the response by the school to be “an overreach”, that the stress was fabricated and that there was no stress or harm to anyone.
  3. [26]
    HAP further considered the shopping centre incident to be “minor”, that there was no harm to any one and that the chance of a break-in to the car was “negligible”.
  4. [27]
    HAP provided one character reference from another bus driver with whom he worked for a period of about three years.  The referee said he was aware of the details of HAP’s contravention of the Weapons Act 1900 (Qld) and of his mitigating circumstances at the time. The referee does not indicate he has read the departmental reasons for the refusal of a positive notice and he was not made available to the Tribunal at the hearing.  I place little weight on this reference.
  5. [28]
    I must have regard to the matters set out in s 226(2) of the WWC Act and any other relevant matters. Considering the relevant sections and other matters, I find that:
    1. (a)
      HAP’s history contains four convictions for breaches of the Weapons Act 1900 (Qld) as recently as July 2019;
    2. (b)
      The offences are not “serious offences”;
    3. (c)
      The offences and HAP’s attitude to them displayed in the Tribunal hearing indicate a lack of insight into the prevailing community values and attitude towards guns particularly in regard to the seriousness of the breaches for which HAP was convicted.  
  6. [29]
    In determining whether this is an exceptional case in which it would not be in the best interests of children for HAP to be issued with a positive notice, there is some evidence which supports HAP’s application (the protective factors), and some evidence which does not (the risk factors).
  7. [30]
    Protective factors identified are that HAP has a good record of stable employment with children. These convictions are his first.  HAP is motivated to avoid further incidents and has surrendered all of his firearms and his licences.  The Tribunal accepts that HAP never intended to harm any child by any of his actions and he is now remorseful.   
  8. [31]
    Risk factors include HAP’s inability to deal with stressful events in his life.  While not underestimating the effect of the death of his brother, these are life events faced by everyone.  I am not satisfied that the occurrence of this event excuses HAP from the consequences of the decision he made to take a gun to his workplace – a High School – in a clear breach of his workplace and employment obligations.
  9. [32]
    Also of concern is HAP’s tolerance to the handling of guns.  This attitude and lack of concern about the serious nature of his offending on not just one, but two occasions, leads me to conclude that HAP has no or little insight into the effect of his actions on the community and the risk taking that this represents. HAP admits to being untruthful in answering questions put to him by the police officers at his home and was amused by the steps the school took in response to the first incident, considering the response to be “an overreach”.     
  10. [33]
    I am satisfied at the time of the hearing, HAP lacked insight into the causes, effects, and potential harm caused by his own behaviour. HAP has taken no steps to assist him to deal with stress, other than his reliance on the passage of time.
  11. [34]
    The decision of Re TAA[8] the former Children’s Services Tribunal demonstrates at paragraph 97 that:

“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;”

  1. [35]
    The central focus of the legislation is the protection of children.  It is expected by this Tribunal that blue card holders will model appropriate, safe and legal behaviour and respect for the legal system and legitimate authorities.[9]  HAP has shown his disregard of the gun laws, of his employment obligations and of the need to always tell the whole story to authority figures, so that children develop a sense of right and wrong.
  2. [36]
    I have considered the relevant human rights as set out in the Human Rights Act 2019 (Qld) as required by s 48 of that Act.  I must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
  3. [37]
    HAP’s rights and the rights of children to recognition as people before the law entitled to equal protection without discrimination, freedom of expression and privacy and reputation are all engaged. Of particular concern are the rights of children, the protection that is needed and is in the child’s best interests because they are children. 
  4. [38]
    Taking into account the findings above about the criteria set out in s 221 of the WWC Act, I am satisfied that the limits imposed by the issuing of a positive notice  would not be reasonable and justified in accordance with s 13 of the Human Rights Act 2019 (Qld).
  5. [39]
    A Blue Card is issued unconditionally and would allow HAP to work unsupervised with children across a range of circumstances. HAP is a mature man.  This Tribunal expected him to have developed a mature understanding of the effects and consequences of his actions.  This was not apparent in his evidence or demeanour at the hearing of this matter, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for HAP to be issued with a Blue Card at this time.  The respondent’s decision is confirmed.  

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld); s 354.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld); s 20.

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld); s 6.

[4]  Second reading speech, Commission for Children and Young People Bill (Qld) page 4391.

[5] Weapons Act 1900 (Qld); ss 34 and 60.

[6] Working with Children (Risk Management and Screening) Act 2000 (Qld); s 221.

[7]  Exhibit 5 at NTP 59 onwards.

[8]  [2006] QCST 11 (26 June 2006).

[9] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [61], [67].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 273

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    21 Jul 2020

Appeal Status

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