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

 

[2020] QCAT 306

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TRE v Director-General, Department of Justice and Attorney-General [2020] QCAT 306

PARTIES:

TRE

(applicant)

v

Director-general, Department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML333-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

5 August 2020

HEARING DATE:

16 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General dated 8 August 2019 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 set aside, and replaced with the Tribunal’s decision that the applicant’s case is not exceptional.
  1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child.

CATCHWORDS:

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

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – where application for review – where applicant has convictions for drug offences – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 13, 58

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

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

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

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

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

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

Re TAA [2006] QCST 11

WJ v Chief Executive Officer, Public Safety and Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

N Rajapakse

REASONS FOR DECISION

Background

  1. [1]
    The applicant, a 43-year-old woman, applied for a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to enable her to coach softball, a sport in which she has participated from a very young age.
  2. [2]
    As a result of TRE’s criminal history the respondent proposed to issue a negative notice so twice invited her to make submissions about whether or not there was an exceptional case for the applicant. The applicant provided material in response.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    The respondent issued a negative notice on 8 August 2019 and TRE seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28 day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    TRE is not a disqualified person and sought review of the decision within the prescribed period.

The legislative framework

  1. [7]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[6] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[7] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[8] The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[9] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[10]
  2. [8]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[11] The principles under which the WWC Act is to be administered are:
    1. (a)
      the welfare and best interests of a child are paramount;
    2. (b)
      every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[12]
  3. [9]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[13]
  4. [10]
    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 to the applicant.[14]
  5. [11]
    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.[15]

  1. [12]
    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.’[16]
  2. [13]
    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.[17] 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.[18]

Consideration of s 226(2) of the WWC Act

  1. [14]
    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

  1. [15]
    The applicant has convictions for the following offences on her criminal history:[19]
    1. (a)
      5 January 2009 - possession of dangerous drugs, in relation to events which occurred on 4 December 2008;
    2. (b)
      4 September 2012:
      1. Permitting use of place between 1 June 2010 and 14 August 2010;
      2. Possession of dangerous drug specified in Schedule 1, on 13 August 2010;
      3. Possession of anything used in the commission of a crime defined in Part 2, on 13 August 2010;
      4. Possession of utensils or pipes etc that had been used, on 13 August 2010.
  2. [16]
    In addition, the applicant has finalised charges arising from events on 13 August 2010 for:
    1. (a)
      Producing dangerous drug – Schedule 1 drug;
    2. (b)
      Possession of dangerous drug specified in Schedule 1; and
    3. (c)
      Possession of anything used in the commission of a crime defined in Part 2.
  3. [17]
    A nolle prosequi was entered in respect of the 2010 finalised charges.

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

  1. [18]
    None of the offences on the applicant’s criminal history are serious offences[20] or disqualifying offences[21] under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card.

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

  1. [19]
    The applicant’s offending occurred in 2008 and 2010 and her alleged offending occurred in 2010.

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

  1. [20]
    The applicant’s multiple convictions and charges are drug related.
  2. [21]
    TRE was convicted of possession of a dangerous drug in 2008 when she was found to be in possession of clip seal bag containing a crystalline substance believed to be amphetamine.
  3. [22]
    When conducting a search of the applicant’s home pursuant to a warrant in 2010, police found a clandestine laboratory used in the production of methylamphetamine in the kitchen. The police seized approximately 53 items including a range of chemicals and glass containers which had been used in the production of methylamphetamine. The material indicates that the applicant’s partner had been producing the dangerous drug for his and the applicant’s personal use. The police located six containers containing a white crystalline substance which the applicant told police was amphetamines. TRE told police that two pipes found at the premises had been used by her to smoke methylamphetamine and that she had purchased various items which had been used in the production of methylamphetamine.
  4. [23]
    The applicant’s drug related convictions and charges raise concerns about her ability to judge appropriate behaviour and present as a positive role model to children. Material provided by the Department of Child Safety, Youth and Women[22] (‘the Department’) indicates that the applicant may have exposed her child (then aged eight to ten) to toxic fumes as a result of the production of methylamphetamine at her residence.
  5. [24]
    Blue card holders are expected to behave in a manner that protects and promotes a child’s safety and physical and psychological wellbeing. Children have a right to be protected from exposure to drug involvement and to be cared for by people who are not using drugs that may impair their ability to promote and protect children’s best interests. Drug use would be likely to detract from the applicant’s ability to provide a protective environment for children placed in her care, and her ability to present as an appropriate role model for them.

In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision

  1. [25]
    Convictions were recorded in relation to the applicant’s offending, reflecting the seriousness of the offending. In relation to the 2008 offending the Court imposed a good behaviour period. However, the 2010 offending was considered sufficiently serious to warrant a sentence of imprisonment for six months, with immediate release on parole.
  2. [26]
    When sentencing in relation to the 2010 offences Her Honour Judge Wilson commented that the applicant had been introduced to drugs by her then de facto partner with whom she had been in a relationship for about seven to eight years and that he produced drugs for their personal use, while the applicant had personally purchased some of the items used in the production. Further, Her Honour noted that the applicant had entered timely pleas of guilty and had not used drugs since the offending in question.

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

  1. [27]
    No information was given under s 318 or s 319 of the WWC Act.

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

  1. [28]
    No information was given under s 335 of the WWC Act.

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

  1. [29]
    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

  1. [30]
    Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.

The material and the evidence

  1. [31]
    The applicant provided the Tribunal with her life story dated 18 October 2019, statements of NJQ dated 29 May 2018 and 2 March 2020 and a statement of NEP dated 19 June 2018. She made written (email dated 8 March 2019)[23] and oral submissions.
  2. [32]
    The respondent provided the Tribunal with a bundle of documents paginated BCS-1 to BCS-60 which included the reasons for its decision and a bundle of documents paginated NTP-1 to NTP-37 obtained pursuant to a notice to produce. The respondent had the opportunity to cross-examine TRE, NEP and NJQ and provided oral and written submissions.
  3. [33]
    TRE said that until she met her de facto, she would ‘occasionally dabble’ in drug use socially and only then when her daughter was at her father’s home. However, after meeting her de facto she began using drugs more frequently. Their life quickly spiralled out of control after he lost his driver’s licence which impacted upon his employment as an interstate truck driver, and TRE was made redundant. They struggled financially and her de facto partner’s drug use increased. He started making drugs for their personal use. During this time the applicant had the care of her daughter who, in addition to spending some weekends with her father, would stay with TRE’s parents when TRE felt that things were not good at home. She and her de facto partner were both charged after he manufactured drugs in their home. He was incarcerated and they lost their home. TRE and her daughter moved in with her parents.
  4. [34]
    TRE remained in contact with her de facto partner while he was incarcerated, and he convinced her that he had changed. Her parents did not like her de facto partner and told her that if TRE reconciled with him her daughter would not be going to stay with her. Upon her partner’s release from jail they reconciled, and her daughter remained with TRE’s parents. TRE found that her de facto partner quickly returned to his ‘old ways’ so she left him. She returned to live with her parents and her daughter.
  5. [35]
    The applicant acknowledged that she purchased items for the manufacture of drugs, and it was apparent during the evidence that the manufacturing in her home did not occur without her knowledge.
  6. [36]
    The documents obtained from the Department raise child safety concerns in relation to TRE’s daughter. The concerns included three incidents of domestic violence which occurred between the applicant and her de facto between January 2009 and September 2009, two at least of which occurred in view or hearing range of TRE’s daughter.
  7. [37]
    Further, in August 2010, the Department received a notification that police had located a laboratory for making methylamphetamine at the applicant’s residence and that the applicant was in custody.[24] In an interview with the Department TRE’s mother said that TRE’s daughter had not lived with the applicant for a while and that TRE ‘is struggling to cope with looking after herself let alone looking after [her child]’.[25] Having identified concerns for TRE’s daughter in relation to her exposure to drug manufacturing occurring in the applicant’s home and to domestic violence, a safety plan was implemented and TRE agreed not to remove her daughter from her mother’s care without speaking with the Department.[26]
  8. [38]
    In September 2010 the Department assessed TRE’s daughter as not in need of protection as she was then located out of the house, with TRE’s parents.[27] The material indicates that TRE was happy for those arrangements to remain in place until she had a firm handle on her life having indicated to the Department at that time that she was taking steps to address her drug use and the violent domestic relationship with her de facto.
  9. [39]
    The material produced by the Department also indicates that the applicant acknowledged that she experienced mental health issues at the time. In the course of an interview with the Department in August 2010 the applicant said that she ‘has depression and has medication but has not been taking it and ….may rely on drugs to manage her stress’.[28] This was confirmed by TRE in her life story.[29] The respondent submitted that this material raises concerns about the applicant’s mental health and whether it has been adequately addressed.
  10. [40]
    TRE accepted that her mental health status was linked to her drug use. TRE acknowledged that her drug use masked issues in her life but said that the drugs did not make her life better. TRE told the Tribunal that she was stupid for not taking her medication at the time. She attended Drug Arm where, she told the Tribunal, she learnt strategies to help her should she feel inclined to use drugs again. She considers that the absence of drugs in her life and not being in a relationship that caused her to behave inappropriately will enable her to deal with depression should she experience it in the future. The applicant’s evidence was that her mental health is stable. There is no evidence of the applicant’s engagement in counselling and the material does not include a health report addressing the applicant’s mental health.
  11. [41]
    The applicant seeks a blue card to enable her coach softball which she has played since she was about six years of age and now plays with her daughter and her niece. She gave evidence that she considered her continued involvement in this sport significantly contributed to her being able to rebuild her life following her drug convictions.
  12. [42]
    Upon reflection, the applicant acknowledged the wrongfulness of her past offending, stating she is ‘not proud’ of her behaviour and is ‘ashamed’ of that part of her life. She identified the triggers to her offending behaviour and has made changes to her life. She said she has not used drugs since her offending, attended Drug Arm for two months, separated from her then partner (whom she has not now seen for over seven years[30]) and changed her friendship group. She and her daughter continue to live with her parents. The applicant has been in stable employment for over seven years.
  13. [43]
    TRE has spoken with her now 17-year-old daughter about drug use and its effects, telling her to stay away from drugs. She said her daughter has told her she hates drugs.
  14. [44]
    TRE said she feels terrible for exposing her daughter to domestic violence. The applicant said that she would not tolerate domestic violence in the future, nor expose her daughter to it again – rather she would leave the situation.
  15. [45]
    She regrets both exposing her daughter to her offending behaviour and the angst she caused her parents by her behaviour. She realises that if it had not been for her parents looking after her daughter when she returned to her partner following his release from incarceration she could have lost custody of her daughter and is appreciative of them taking on this responsibility. She understood at the time that her daughter was protected while staying with her parents. She feels she has let her daughter down by her past conduct.
  16. [46]
    In the almost 10 years since her offending behaviour the applicant has had no further involvement with police, or any drug taking activity and has not further offended. She is motivated to have no further dealings with illicit drugs.[31]
  17. [47]
    TRE did not provide the Tribunal with statements from her mother or her daughter. When asked about this she said that she did not want her daughter to go through that experience. The Tribunal accepts that in making this decision the applicant was acting protectively towards her daughter who turned 18 only shortly before the hearing.
  18. [48]
    NEP provided a letter of support[32] and was available for cross examination. She has known the applicant for about 25 years, was aware of her convictions and spoke highly of her. NEP is related to the applicant by marriage.
  19. [49]
    NEP said she understood the respondent’s concerns about the applicant holding a blue card given her criminal history. She indicated that in her opinion TRE’s de facto partner was a controlling and violent person who sought to control the people who were around TRE and that he was a root cause of the problems experienced by TRE. During TRE’s relationship with her de facto NEP said that NEP distanced herself from TRE. NEP said that the threat of jail scared TRE such that she stopped using drugs and with her de facto incarcerated she was able to spend more time with her friends without threat. Upon his release from incarceration he and TRE reconciled but he did not like the ground rules which TRE established, and she ended the relationship. NEP considers that he is no longer a threat to TRE.
  20. [50]
    She said that the applicant has been involved with the sporting club of which NEP is secretary, for over 30 years. During the time of her offending NEP observed the applicant continued to play the sport but that since her offending behaviour and having made changes to her life, she interacts more with her friends in the club, is more involved in the club community and has actively participated in the direction of the club. She considers that TRE is well respected by the players.
  21. [51]
    NEP observed the significant impact TRE’s offending behaviour has had on her life, causing her to lose friends, her home and her car and to have to return to live with her parents.
  22. [52]
    NEP considers TRE a changed woman now; that she has her friend back. She spoke of the supportive environment in which TRE now lives – that TRE and her daughter still live with her parents to ensure that her daughter continues to experience stability, particularly during her final year of high school. She spoke highly of the applicant’s integral role in supporting the children of a seriously ill relative, ensuring that they continued to be able to get to school and to participate in activities, and seeking to provide them with some normality. TRE has expressed to her regret for the choices she made at that time and for the effect those choices had on her family and friends.
  23. [53]
    NJQ provided two letters of support[33] and was available for cross-examination. She was aware of the applicant’s criminal history and has known the applicant for over 30 years.
  24. [54]
    She gave evidence that the applicant had turned her life around since her convictions and had ‘worked so hard to regain what she had lost and rebuild relationships’.[34] She observed that since her offending TRE no longer uses drugs, has ‘built up and continues a positive lifestyle, maintaining stable employment, enjoying support from family and friends, and continues to play the game she loves and has been involved with for over 30 years.’[35] NJQ said that TRE has re-established the relationships which were important to her prior to her offending such that she now has a reliable support network. NJQ said she was proud of TRE’s achievements in recovering from the difficult time in her life.
  25. [55]
    She considered that TRE’s de facto partner was very controlling of TRE and for this reason the friendship group, which were distanced from her, and her involvement in sport, did not act as protective factors to prevent her offending behaviour. With the absence of the de facto partner, NJQ considers these protective factors would prevent the same conduct today.
  26. [56]
    The Tribunal finds that NJQ and NEP were reliable witnesses who were well placed to give evidence of the applicant’s positive lifestyle factors.
  27. [57]
    RAW provided a brief letter of support.[36] As he had no stated knowledge of the applicant’s offending behaviour and was not made available for cross examination the Tribunal affords no weight to his evidence.
  28. [58]
    The respondent, while acknowledging the changes the applicant has made to her lifestyle, the identification by the applicant of the triggers to her offending behaviour and her acknowledgement of her wrongful behaviour, continues to hold concerns. In particular, the respondent considered the applicant’s drug related criminal history, her drug use, the child safety material, the applicant’s mental health and level of her insight were factors mitigating against a positive notice. Overall, the respondent submitted that this was an exceptional case.

Consideration

  1. [59]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[37]
  2. [60]
    A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.
  3. [61]
    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.[38]

  1. [62]
    TRE was a mature woman at the time of the offending behaviour. While she sought to remove her daughter from exposure to some of this behaviour, the Tribunal finds that this maturity did not extend to awareness, at the time, of the wrongfulness of her offending behaviour.
  2. [63]
    The material regarding the applicant’s drug use is inconsistent. The respondent’s records indicate that in 2009 the applicant told the respondent that the 2008 offence was a ‘one-off thing’ and that she was ‘in the wrong place at the wrong time’.[39] In oral evidence the applicant disputed saying that. These records also indicate that in the course of the application the subject of this review TRE advised the respondent orally in July 2019 that she had used drugs for just over 12 months.[40] The Department’s records from its 2010 enquiries indicate the applicant advised the officers at that time that she had been using drugs for five years.[41] TRE’s submissions[42] and life story[43] do not indicate time frames for her drug use. She said she has not used drugs for about 10 years. That she no longer uses drugs was supported by the evidence of NJQ. The Tribunal finds that TRE’s drug use was more extensive than indicted by her criminal history.
  3. [64]
    Despite this and the inconsistencies in the evidence regarding her drug use, the Tribunal accepts that the applicant has not engaged in any concerning or offending behaviour since the offending behaviour almost ten years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case.[44] This risk factor must be considered in the context of all the relevant circumstances.
  4. [65]
    The applicant demonstrated insight into the harm of her offending behaviour on her daughter and its impacts upon herself and parents. She observed the trauma caused to her daughter as result of them not living together during this time. She expressed remorse for the impacts of her behaviour on her family. While the applicant did not provide a medical report addressing her insight, remorse, or triggers for her behaviour NEP and NJQ attested to the factors, supporting TRE’s own evidence. The Tribunal finds that the applicant is remorseful for her past conduct and has demonstrated insight into the harmful effects of her conduct upon her family.
  5. [66]
    TRE has taken positive steps to change her life since her offending, in addition to cessation of her drug use. These steps include removing herself from her drug taking friendship group, no longer seeing her ex-partner and reconciling with her family with whom she lives. She has stable employment, having been with the same company for about seven years, and expressed pride in a promotion she has received in that employment. She has re-established supportive friendships. This reconnection with family and friends has enabled TRE to establish a good support network. Her evidence in this regard was supported by the evidence of NJQ and NEP. The Tribunal accepts that the applicant no longer uses drugs and that since being charged has made significant changes in her life seeking to turn her life around and to make a better future for herself and her daughter.
  6. [67]
    The Tribunal accepts the applicant’s evidence that her mental health status was linked to her drug taking and further accepts that TRE’s mental health status was also linked to the abusive relationship she was in at the time. While the applicant has engaged in limited counselling to address her mental health and drug use, the Tribunal accepts that the absence of drugs in the applicant’s life, the ending of the abusive relationship many years ago and the re-establishment of her support network, including her extended family, are all strong protective factors for the applicant.
  7. [68]
    In undertaking this review the Tribunal is acting in an administrative capacity and consequently is a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld) (‘HR Act’). Thus, pursuant to s 48 of the HR Act, the Tribunal must interpret statutory provisions in a way that is compatible with human rights, and is required to conduct itself in accordance with s 58 of the HR Act.
  8. [69]
    NJQ said in her statement that to refuse TRE a positive notice and blue card would contravene s 34 of the HR Act as to do so would cause TRE to be tried or punished for her offending more than once.
  9. [70]
    As observed above, it is not the purpose of this review and decision to impose additional punishment on the applicant for her past conduct, but rather to protect children.
  10. [71]
    This review does not constitute a retrial as the Tribunal’s role is not to determine the Applicant’s guilt. Rather, the Tribunal’s function is 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 a positive notice and blue card. The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme ‘…to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[45]
  11. [72]
    As required by s 361(1) WWC Act, the hearing was held in private, which the Tribunal considers to be compatible with the human rights set out in s 31 of the HR Act. 
  12. [73]
    TRE’s human rights, in particular, TRE’s rights to a fair hearing[46] and not to be tried or punished more than once[47] were considered by the Tribunal. The Tribunal has also considered the right of every child to ‘the protection that is needed by the child, and is in the child’s bests interests, because of being a child’.[48] The Tribunal is satisfied that this decision is compatible with human rights and that to the extent that there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of the HR Act.
  13. [74]
    In making this decision the Tribunal is mindful that the effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the reasons the applicant 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.
  14. [75]
    After consideration of all of the evidence, the findings of fact, consideration of 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.
  15. [76]
    The decision of the respondent dated 8 August 2019 that the applicant’s case is an exceptional one within the meaning of s 221(2) of the WWC Act is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.

Non-publication

  1. [77]
    The Tribunal does not propose to identify the witnesses before the Tribunal as to do so could lead to the identification of TRE. Identification of TRE would be contrary to the Direction of the President of the Tribunal prohibiting publication of information that may identify a victim of domestic and family violence.[49] Pursuant to s 66 of the QCAT Act the Tribunal prohibits the publication of the names of the applicant, any complainant, any witnesses appearing for the applicant and any relevant child.
  2. [78]
    Accordingly, these reasons have been de-identified.

Footnotes

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

[2]WWC Act, s 169 (definition of ‘disqualified person’).

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

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

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

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

[7]Ibid, s 20.

[8]Ibid.

[9]WWC Act, s 360.

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

[11]WWC Act, s 5.

[12]Ibid, s 6.

[13]As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

[14]WWC Act, s 221.

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

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

[17]Ibid, [30].

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

[19]Ex 4, BCS 19.

[20]WWC Act, Schedule 2.

[21]Ibid, Schedule 4.

[22]Ex 5.

[23]Ex 4, BCS 51-53.

[24] Ex 5, NTP 33-37.

[25]Ex 5, NTP 24.

[26]Ex 5, NTP 14.

[27]Ex 5, NTP 31.

[28]Ex 5, NTP 23.

[29]Ex 1.

[30]Ex 4, BCS 51.

[31]Ex 1.

[32]Ex 2.

[33]Ex 4, BCS 48-49 and Ex 3.

[34]Ex 4, BCS 48.

[35]Ex 3.

[36]Ex 4, BCS 50.

[37]WWC Act, s 360.

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

[39]Ex 4, BCS 5.

[40]Ex 4, BCS 7.

[41]Ex 5, NTP 23.

[42]Ex 4, BCS 51-53.

[43]Ex 1.

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

[45]WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, per Thomas J, [17].

[46]HR Act, s 31.

[47]Ibid, s 34.

[48]Ibid, s 26(2).

[49]Direction dated 30 April 2020 pursuant to s 172(2)(b) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 306

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    05 Aug 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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