GPM v Director General, Department of Justice and Attorney General
[2017] QCAT 278
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- GPM v Director General, Department of Justice and Attorney General[2017] QCAT 278
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GPM v Director General, Department of Justice and Attorney General[2017] QCAT 278
GPM v Director General, Department of Justice and Attorney General[2017] QCAT 278
CITATION: | GPM v Director General, Department of Justice and Attorney General [2017] QCAT 278 |
PARTIES: | GPM (Applicant) v Director General, Department of Justice and Attorney General (Respondent) |
APPLICATION NUMBER: | CML261-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 31 March 2017 |
HEARD AT: | Townsville |
DECISION OF: | Member Pennell |
DELIVERED ON: | 19 June 2017 |
DELIVERED AT: | Townsville |
ORDERS MADE: |
|
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – review of a decision to issue a negative notice – conviction for protracted period of stalking – conviction for wilful damage – offences are not serious or disqualifying offences – whether exceptional circumstances exist – whether risk to children sufficiently negated – whether it is in the best interests of children to issue a positive notice EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – identity of Applicant – identity of witnesses – confidential information relating to Applicant’s health – interests of justice – exercise of discretion when making a non-publication order Penalties and Sentences Act 1992 (Qld), s 12 Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20(1), s 20(2), s 24, s 66(1), s 66(2)(d) and s 66(3) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 6(a), s 221, s 226(2), s 353, s 354, s 360, Schedule 1 and Schedule 4 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 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 FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Kent v Wilson [2000] VSC 98 Perry and Browns Patents (1930) 48 RPC 200 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 | |
APPEARANCES: | |
APPLICANT: RESPONDENT: | Ms V Keegan of Counsel instructed by Mr David Maunsell of Law Right Ms H Marunda, Government Legal Officer |
REASONS FOR DECISION
Introduction
- [1]The Applicant is aged 37. He was born with Retinitis pigmentosa which is the condition of Albinism. Because of that condition, he is legally blind and only has three per cent vision in his left eye and about one and half percent vision in his right eye. Up until 2014, he was aided by the use of a guide dog; however, he has now progressed to using an electronic travel aid which utilises sonar and sends out a pulse to inform him how far he is away from an object.
- [2]In 2012, the Applicant started a relationship with his wife and moved into her apartment. His wife experiences her own life challenges. She has an acquired brain injury and physical disabilities because of a car accident. Her mobility is restricted to a motorised scooter.
- [3]A dispute arose between the Applicant’s wife and their neighbour in the apartment complex. From about 2003, she felt harassed from time to time by the neighbour. When the Applicant moved in with her, the neighbour complained about his guide dog and the neighbour would occasionally drive up close to him and spook the guide dog. Over time, various incidents occurred which escalated tensions between the Applicant and the neighbour.
- [4]On 11 May 2014, the Applicant was issued with a positive notice and a blue card. At that time, the Applicant was working at the Edmund Rice Education Australia Flexible Learning Centre as a Youth Support Worker.
- [5]Subsequent to the blue card being issued, the Applicant was prosecuted by the police for stalking his neighbour and damaging the neighbour’s car. Accordingly, the Queensland Police Service notified the Respondent that the Applicant’s police information had changed. The Respondent re-assessed the Applicant’s eligibility to hold a blue card and then issued him with a negative notice on 1 September 2015.
- [6]The information provided to the Respondent which prompted the re-assessment of the Applicant’s status to hold a blue card resulted from the Applicant being charged with 17 criminal offences committed over a protracted period from 24 February 2012 to 22 November 2014. The offences included a single count of stalking and 16 counts of wilful damage. Those offences related to the tensions between him and the previously mentioned neighbour. Noticeably, prior to those offences, the Applicant had no prior criminal behaviour.
- [7]The Applicant later appeared in the Magistrates Court at Townsville and pleaded guilty to the offences. The Court considered the seriousness of the Applicant’s offending, along with a number of mitigating circumstances in his favour. He was placed on probation for a period of 18 months and ordered to pay to the victim $4,006.79 by way of compensation. The Court then considered whether or not to impose a conviction upon the Applicant.
- [8]
“I note there is no criminal history and you have otherwise been gainfully employed. I also have to consider what impact recording a conviction would have on your economic or social wellbeing or your employment situation. I do note again that even being charged with this offending has seen your blue card suspended and one might reasonably conclude that convictions recorded against you; you might lose your blue card and that would seem to prevent you from returning to work … I am going to take into account that in circumstances where I’m asked to make an order for restitution; which you are prepared to pay; it might also adversely impact the complainant by preventing you from being able to pay restitution in a more timely manner…”
- [9]The Magistrate considered imposing a restraining order on the Applicant in regard to any possible interaction he may have with the victim, however decided that it was not necessary because of the passing of nearly two years between the period of offending and the finalisation of the matter in court, and there was no evidence that the Applicant had, or intended to contact the victim.
- [10]In opposing this application, the Respondent urged upon the Queensland Civil and Administrative Tribunal (“the Tribunal”) that the facts relating to the charges of wilful damage and stalking preferred against the Applicant are a demonstration of a pattern of anti-social behaviour which raises concerned about the Applicant’s eligibility to engage in child related employment.[2] The Respondent went on to argue that the Applicant’s prolonged anti-social behaviour adversely affected his ability to be a positive role model to children and young people.[3]
- [11]The Respondent said that the risk factors identified in this matter rendered the case an exceptional one such that it would not be in best interests of children and young people for the Applicant to be issued with a positive notice and blue card.[4] The Respondent asked the Tribunal to confirm the decision that was made.
- [12]The Applicant seeks a review of the Respondent’s decision and asked the Tribunal to set that decision aside.
Review Jurisdiction
- [13]An object of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“the Working with Children Act”) is to promote and protect the rights, interests and wellbeing of children in Queensland.[5] The principle under which the Working with Children Act must be administered is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[6] Any child-related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount.[7]
- [14]The decision under review is whether the Applicant's case is an exceptional case[8] displacing the presumption under section 221 of the Working with Children Act that a positive notice should be issued to him.
- [15]A person affected by a decision of the Respondent may apply to the Tribunal for a review of that decision.[9] The Tribunal must then hear and decide the review by way of a fresh hearing on the merits of the application.[10] The question for the Tribunal to decide is whether an exceptional case exists bearing in mind the gravity of the consequences involved.[11] In reaching a decision, the Tribunal need only weigh up the competing facts and apply the balance of probabilities principle. Neither party bears the onus in determining whether an exceptional case exists.[12]
- [16]The purpose of the review hearing is to produce the correct and preferable decision[13] and in carrying out that function, the Tribunal may either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate.[14]
The evidence
The Applicant
- [17]In giving evidence at the Tribunal hearing, the Applicant said that in hindsight he now realises that his conduct which led to him being criminally charged was not appropriate. It was not the correct way to behave regardless of any stress and anxiety that he was experiencing at the time. He went on to tell the Tribunal that he looked back upon his behaviour with remorse. He had reflected a great deal upon his behaviour and said that if a similar situation arose again, he certainly would not react in the same way.
- [18]The Applicant acknowledged that his behaviour impacted upon the victim’s life. He also told the Tribunal of how his behaviour also impacted of his own life, in particular the severe consequences of losing his employment and the on flowing effect from that upon his financial situation.
- [19]The Tribunal acknowledges that the Applicant now appears to have more insight into his past behaviour. The Respondent accepted and conceded that the Applicant’s insight was more evident at the time of the hearing, even more so than it was in the last few months leading up to the hearing.[15] Notwithstanding that, the Respondent guided the Tribunal to the Applicant’s past attitude towards his behaviour. It was the Respondent’s argument that any insight now shown by the Applicant contrasts with the earlier lack of insight the Applicant displayed prior to the hearing. That lack of insight is a feature in the decision reached by the Respondent.
- [20]Although the Respondent may have been influenced when making its decision by a notion that the Applicant did not have insight into his past behaviour, the question for the determination of the Tribunal is not whether the original decision was the correct or preferable one based on the material which was before the decision maker at that time, but rather whether that decision was the correct and preferable one based on the material before the Tribunal at the time of the hearing.[16]
- [21]Evidence was given at the hearing that the Applicant had undertaken counselling, and his doctor[17] had written a mental health plan for him. The provisional diagnosis of the Applicant was that he experienced anxiety, depression and panic attacks. The reasons given in the plan for the Applicant’s treatment were to treat those conditions as well as his fluctuating moods. It was noted that the plan referred to the Applicant having no thoughts of self harm or harm to others.
- [22]By consulting a medical practitioner, and approaching the many challenging aspects of his personal life, the Applicant appears to have demonstrated a willingness to improve his mental state, and the way it impacts upon others. It also appears that the Applicant now possesses a more appreciable ability to grasp the seriousness of, or indeed the impact of his past behaviour, than what he could demonstrate to the Respondent in the past. The Tribunal is satisfied that he now possesses insight into those features just discussed.
- [23]That mental health plan, coupled with the Applicant expressing his remorse and his ongoing counselling are factors which impressed upon the Tribunal that he does have insight into his past behaviour.
- [24]Apart from the Applicant, evidence was also taken from three other witnesses, AT, SR and FV.
AT
- [25]The witness AT is a registered teacher. He holds a Bachelor of Education and a Bachelor of Science. He is currently furthering his studies by undertaking a Masters of Education. At present, he is employed as the Head of Campus of the Townsville Flexible Learning Centre.
- [26]Witness AT met the Applicant through his role as Head of Campus of the Townsville Flexible Learning Centre. The Centre is a registered high school offering educational pathways for young people outside of the mainstream education environment. The Applicant was employed by the Centre for the period from June 2015 to August 2015 in a part time position as a youth support worker. During that time, the Applicant worked as part of a small team, and occasionally independently, to determine the best response to a young person’s personal circumstance.
- [27]The witness AT said that the Applicant had a professional attitude when undertaking his duties and he was focused when providing support directly within the team environment. The witness AT came to believe that the Applicant was an honest and respectful person, who when given the opportunity could provide support to young people through his skills and qualification as a social worker.
- [28]When asked to explain to the Tribunal how he thought the Applicant might deal with any conflict, this witness said that the Applicant’s work with the young people involved within his organisation can be quite challenging and confrontational at time. He found that the Applicant was able to handle that conflict.
- [29]The witness AT had never observed, and nor does he know of any adverse interactions between the Applicant and children. He had always observed positive interaction between children and the Applicant within the workplace, with good relationships being developed through that interaction.
SR
- [30]SR holds a Bachelor of Social Work. He is a Senior Practitioner at Roma House Mission Australia. This witness has known the Applicant from when they both attended the James Cook University together. SR told the Tribunal of the Applicant’s honesty, and the initiative the Applicant demonstrated to help other students with their studies. He was known by other students and university staff for being approachable and polite.
- [31]After graduating from university, SR worked with the Applicant in the area of child protection. The Applicant strived towards assisting many vulnerable children and young people obtain sustainable youth housing. Much of the remainder of the evidence from this witness involved a personal character description from clearly a person who was a close friend of the Applicant.
FV
- [32]The witness FV is a qualified Social Worker and is employed as a Team Leader with Queensland Health. The Applicant and this witness met when the Applicant was employed by the witness for a position with Australian Red Cross. He was employed as a Homelessness Worker in the Homelessness Services Hub during 2012 through to 2014.
- [33]The Applicant’s duties included engaging with very vulnerable clients who presented in need to the Homelessness Services Hub and required assistance with accommodation, rental arrears and other broader psycho-social issues. He worked with adults and families, as well as people from an array of cultural, ethnic and socioeconomic backgrounds.
- [34]The witness FV told the Tribunal that the Applicant treated all clients with dignity and respect and he undertook his role in a highly professional manner. His conduct in exercising his duties was beyond reproach and he had never been the subject of any disciplinary action within that organisation.
What is an “exceptional case”?
- [35]It is a well-known principle that the term “exceptional case” is not defined in the Working with Children Act. The term requires a determination of a question of fact and degree for each individual case. This term has been discussed across many jurisdictions, including the Tribunal’s appeal jurisdiction.
- [36]In deciding on the issue of the above principle, what must also be considered is the intent, purpose and the context of the legislation for the protection of children.[18] Frequently cited is the comment made by Luxmoore J in Re Perry and Brown's Patents[19] that particular attention should be paid to his warning that it would be most unwise to lay down any general rule about what an exceptional case was. Discretion should be used and each case should be considered on its own facts.[20]
- [37]
- [38]That term exceptional was also discussed in Kent v Wilson[23] where reference was made to the definition of exceptional as meaning unusual, special, out of the ordinary course.[24] If a decision is to be made that a case is exceptional, consideration must be given to all the circumstances, and regard must be taken of when the offence was committed, the nature of the Applicant’s offending behaviour, its relevance to his current or future employment, if the offence involved children; and anything else reasonably considered relevant to the assessment of the Applicant’s eligibility.[25]
Test to be applied
- [39]The Working with Children Act is not a statute intended to impose additional punishment on a person who has charges or convictions on their criminal history. Rather, the legislation is intended to put gates around employment to protect children from harm. Blue card holders occupy a position of trust and authority in relation to children in their care. The welfare of children really depends on the Applicant’s ability to exercise proper judgment to protect children from harm.
- [40]An observation of the Working with Children Act is that the protection of children is paramount. Its legislative intention was explained to the Queensland Parliament[26] during the second reading of the Children Services Tribunal Bill; Commission for Children and Young People Bill as:
“This Bill is not about denying employers options to employ people who would be good at the job. It is about putting gates around employment to protect children. It is not about punishing people twice; it is about protecting children from future abuse”.[27]
- [41]Principally, the test under the Working with Children Act is whether the Applicant’s case is an exceptional case such that it would not be in the best interest of children to issue him with a positive notice and a blue card. The paramount consideration for the Tribunal in applying the provisions of the Working with Children Act is that any decision has to be made in the best interests of children. The protection of, and the well-being of children is paramount. Children have a right to be protected from harm and an entitlement to be cared for in a way that is their best interests.
- [42]The Applicant was charged with stalking and a number of wilful damage offences. The victim of the Applicant’s criminal behaviour was his former neighbour. The Applicant pleaded guilty to the offences and was given a lengthy period of probation and ordered to pay a substantial amount of restitution to the victim. The sentencing magistrate exercised the court’s discretion to not record a conviction.[28]
- [43]The offences the Applicant committed are not disqualifying or serious offences as defined in the Working with Children Act.[29] Accordingly, a positive notice must be issued unless it is an exceptional case and it would not be in the best interests of children for the Applicant to be issued with a positive notice.[30]
- [44]In Children and Young People and Child Guardian v Maher & Anor,[31] the Court of Appeal endorsed an approach of identifying and balancing the relevant risk and protective factors arising from the circumstances of the particular case.
- [45]
- (a)The Applicant’s conviction for stalking and wilful damage. It is clear from the evidence that prior to the convictions for these offences, there was no earlier criminal history. Nor is there evidence that he was adversely recorded by the police. The court in convicting him exercised its discretion to not record a conviction. Since then, he has not been charged with, or convicted of any offence.
- (b)The offences of stalking and wilful damage are not disqualifying or serious offences as defined in the Working with Children Act.
- (c)The offences were committed between 2012 and 2014, some three to five years ago.
- (d)The offences were committed against an adult neighbour and did not involve children or the Applicant’s place of employment. The nature of the offences bears no relevance to his employment at that time.
- (e)When convicted of the stalking and wilful damage offences, the Applicant was not imprisoned. He was placed on a lengthy period of probation and ordered to pay a significant amount of restitution to the victim.
- [46]With regards to the remaining points, the considerations as provided within section 226(2)(b) – 226(2)(e) of the Working with Children Act do not apply in these proceedings. However, the Tribunal’s considerations are not merely confined to those points just mentioned.
- [47]As determined by Philippides J in Children and Young People and Child Guardian v Maher & Anor, the provisions of section 226(2) do:
“not expressly or impliedly confine the [Tribunal] to considering only the matters specified therein and there is no basis for construing the provision in such a restrictive manner”.[34]
- [48]The questions that should be addressed in this matter are whether, having regard to all the evidence placed before it, is the Tribunal satisfied of a risk of repetition of the Applicant’s offending; and, is the risk of harm to children sufficiently negatived so that it could be concluded that a positive notice would not harm the best interests of children.
- [49]In answering those questions, a complete analysis is required of all the circumstances relating to the Applicant. The determination reached from that analysis should then be balanced against the principle that the welfare and best interests of a child are paramount.[35]
- [50]In arriving at an answer to those questions, the Tribunal is satisfied that the Applicant has adopted strategies to enable him to deal with stressful situations. That is, he has undertaken counselling and is being managed by his doctor with a Mental Health Plan. The Tribunal accepts, and is satisfied to the requisite standard that the Applicant possesses insight into his past behaviour which led to him being charged.
- [51]The Tribunal also acknowledges that the Applicant possesses insight into the impact that his behaviour had on the victim. As is often the case, it can never be assumed that there is absolutely no risk of the Applicant reoffending, however all the evidence points towards any risk of him re-offending as being very low.
Conclusion
- [52]The QCAT Act requires that when the Tribunal is determining a review of a reviewable decision, its purpose is to produce the correct and preferable decision[36] and it may exercise its discretion as provided by the QCAT Act.[37] Having regard to all the evidence before it, the Tribunal is satisfied that the correct and preferable decision is to set aside the Respondent’s decision and substitute it for its own.
- [53]Having regard to the facts, circumstances and evidence in this matter, the Tribunal is satisfied that the correct and preferable decision is to set aside the Respondent’s decision and declare that the Applicant’s case is not an exceptional one.[38]
Non-Publication Order
- [54]The Tribunal has the discretion to make a non-publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.[39] Further to this, the Tribunal can use its initiative and make a non-publication order.[40]
- [55]Because of the nature and sensitivity of this application, the Tribunal is satisfied that a non-publication order is necessary to avoid the publication of confidential information whose publication would be contrary to the public interest.[41]
ORDERS
- [56]It is the Orders of the Tribunal that:
- The decision of the Director General, Department of Justice and Attorney General dated 1 September 2015 to issue a negative notice to the Applicant is set aside and it is declared that the Applicant’s case is not an exceptional case.
- Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the Applicant and any witnesses appearing for the Applicant.
Footnotes
[1]Sentencing remarks of Magistrate Mosch, Exhibit 2, pp 68 – 69.
[2]Exhibit 7, Respondent’s outline of submissions, paragraph 26.
[3]Exhibit 7, Respondent’s outline of submissions, paragraph 29(a).
[4]Exhibit 7, Respondent’s outline of submissions, paragraph 31.
[5]Working with Children (Risk Management and Screening) Act 2000, s 5.
[6]Working with Children (Risk Management and Screening) Act 2000, s 6.
[7]Working with Children (Risk Management and Screening) Act 2000, s 360.
[8]Working with Children (Risk Management and Screening) Act 2000, s 353.
[9]Working with Children (Risk Management and Screening) Act 2000, ss 353 – 354.
[10]Queensland Civil and Administrative Tribunal Act 2009, s 20(2).
[11]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] (citing the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336).
[12]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 at [15].
[13]Queensland Civil and Administrative Tribunal Act 2009, s 20(1).
[14]Queensland Civil and Administrative Tribunal Act 2009, s 24.
[15]Transcript of proceedings at p. 47, lines 23 – 45.
[16]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
[17]Dr Farhan Khalid from the Kirwan GP Clinic.
[18]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] (citing Kent v Wilson [2000] VSC 98 per Hedigan J at [22]).
[19](1930) 48 RPC 200.
[20]Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 (Fullager J).
[21][2004] QCA 492 at [34] per Philippides J.
[22][1983] 1 VR 1.
[23][2000] VSC 98.
[24]Kent v Wilson [2000] VSC 98 at [22].
[25]Working with Children (Risk Management and Screening) Act 2000, s 226(2).
[26]By the Hon A M Bligh, the then Minister for Families, Youth and Community.
[27]Queensland Parliament Hansard, 14 November 2000, p 4391.
[28]Penalties and Sentences Act 1992, s 12. A court may exercise a discretion to record of not record a conviction.
[29]Working with Children (Risk Management and Screening) Act 2000, Schedules 2 and 4.
[30]Working with Children (Risk Management and Screening) Act 2000, s. 221
[31][2004] QCA 492
[32]Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [34] (Philippides J).
[33]Working with Children (Risk Management and Screening Act) 2000, s 226(2).
[34][2004] QCA 492 at [42].
[35]Working with Children (Risk Management and Screening) Act 2000, s 6(a).
[36]Queensland Civil and Administrative Tribunal Act 2009, s 20(1).
[37]Queensland Civil and Administrative Tribunal Act 2009, s 24.
[38]Working with Children (Risk Management and Screening) Act 2000, s 226(2).
[39]Queensland Civil and Administrative Tribunal Act 2009, s 66(1).
[40]Queensland Civil and Administrative Tribunal Act 2009, s 66(3).
[41]Queensland Civil and Administrative Tribunal Act 2009, s 66(2)(d).