KMV v Director General, Department of Justice and Attorney-General
[2017] QCAT 34
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- KMV v Director General, Department of Justice and Attorney-General[2017] QCAT 34
- Add to List
KMV v Director General, Department of Justice and Attorney-General[2017] QCAT 34
KMV v Director General, Department of Justice and Attorney-General[2017] QCAT 34
CITATION: | KMV v Director General, Department of Justice and Attorney General [2017] QCAT 34 |
PARTIES: | KMV (Applicant) v Director General, Department of Justice and Attorney General (Respondent) |
APPLICATION NUMBER: | CML143-16 |
MATTER TYPE: | Children's matters |
HEARING DATE: | 11 November 2016 |
HEARD AT: | Townsville |
DECISION OF: | Member Pennell |
DELIVERED ON: | 27 January 2017 |
DELIVERED AT: | Townsville |
DECISION MADE: |
|
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW OF NEGATIVE NOTICE – review of a decision to issue a negative notice and cancel a blue card – conviction for serious offence – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice. NON PUBLICATION – identity of applicant – identity of witnesses – confidential information – whether discretion should be exercised in the interests of justice to make a non publication order. |
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 167(1)(a), s 225(1)(c), s 226(2), s 360 and Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66(1) and s 66(3) Criminal Code 1899 (Qld), s 409(1) and s 411(2) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1. Kent v Wilson [2000] VSC 98. R v Smith [2004] QCA 31. Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58. Shi v Migration Agents Registration Authority (2008) 235 CLR 286. Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27. | |
APPEARANCES and REPRESENTATIONS: | |
APPLICANT: | Self Represented |
RESPONDENT: | Mr J J Thompson for the Director General, Department of Justice and Attorney General. |
REASONS FOR DECISION | |
Introduction |
- [1]The Applicant is a 32 year old single woman. She has a recorded criminal history which includes the offence of armed robbery with actual violence. She acknowledges that she has made some poor choices in her past. She requires a Blue Card because she wants to become a volunteer worker with Lifeline as a telephone crisis supporter. Her intention is to attend university to undertake studies for a degree in social work, which she will use to contribute to helping the community.
- [2]The Respondent is the Director General, Department of Justice and Attorney General. In respect to matters such as this application, the Respondent’s main functions are to administer the scheme under the Working with Children (Risk Management and Screening) Act 2000 (“Working with Children Act”) for the screening of people employed, or proposed to be employed in certain child related employment; and people carrying on, or proposing to carry on certain child related businesses.
- [3]The central focus of the Working with Children Act is the protection of children. It is not the intention of the legislation that this focus would impose additional punishment on someone who has an adverse police or disciplinary record, but rather, is intended to put gates around employment to protect children from harm.[1]
- [4]The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children in Queensland.[2] The paramount consideration in any employment screening decision made under Chapter 8 of the Working with Children Act is the welfare and best interests of children. The legislation is to be administered under the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[3]
- [5]In this application, the Applicant has been convicted of a serious offence as defined in the Working with Children Act. Accordingly, the legislation provides that the test to be applied is that a negative notice must be issued, unless it is an exceptional case in which it would not harm the best interests of children for the Applicant to be issued with a positive notice.[4]
Review Jurisdiction
- [6]A person affected by a decision of the Respondent may apply to the Queensland Civil and Administrative Tribunal (the Tribunal) for a review of that decision. The Tribunal must then hear and decide the review by way of a fresh hearing on the merits of the application. The purpose of the review hearing is to produce the correct and preferable decision.[5] In carrying out its functions to produce that correct and preferable decision, 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.[6]
The Applicant’s position
- [7]The Applicant’s childhood and upbringing was less than an idyllic one. Before reaching the age of 10, her mother was in her third relationship. During each of those relationships, the Applicant was subjected to physical abuse by each of her step-fathers. An exacerbating feature of her childhood was that prior to reaching her seventh birthday, she had been sexually abused by two of her mother’s partners.
- [8]Her abuse did not stop there. On a regular basis, her younger brother who suffered attention deficit disorder was physically violent towards her. That violence included choking her, dragging her by her hair, throwing furniture at her and had numerous times threatened to stab her with various sharp household implements.
- [9]In addition to those features suffered by the Applicant, her family unit was somewhat dysfunctional and moved frequently. They lived in the south-east part of Queensland, then moved to a small town in south-west Queensland. Eventually the family moved to the North Queensland area.
- [10]When she was aged 14, the Applicant was referred to the Child and Youth Mental Health where she was assessed as being suicidal and was placed on medication for depression. Her education suffered and not surprisingly she dropped out of school half way through grade 10. It was about this time that she first experimented with drugs and smoked cannabis. To her credit, she later returned to school to continue her education and completed years 11 and 12. By this time she was aged 18.
- [11]She then enrolled into a TAFE course and attained a Certificate III in Community Services, Community work. She was 19 when she qualified but could not find employment. She then started volunteering to help people with disabilities, eventually being employed in that area as a full time residential support worker.
- [12]When she was aged 24, the Applicant entered a relationship with her former husband. This was a relationship punctuated by frequent domestic violence and drug use. There were periods when the Applicant and her former husband would separate, but they would always reunite. This was a revolving pattern of their relationship. She was caught in a net of her own making, which ultimately led to her being charged with criminal offences, including armed robbery with violence. She was sentenced to a term of imprisonment. Not long after her release from prison she reunited with her former husband and the pattern of domestic violence continued. He not only controlled her emotionally and physically, but also financially.
- [13]She fell pregnant with their first child and the turning point of her life occurred when the child was born. Her outlook on life changed, she realised that her life was no longer just about her, she had the added responsibility of raising and protecting her child. She later had a second child to that relationship. She educated herself through domestic violence counselling, and learnt about the circle of power and control, equality and how domestic violence impacts upon children. She has since divorced her former husband.
- [14]She has received medical treatment for anxiety and has consulted at great depth with a psychologist. She told the Tribunal of her insight into her past criminal behaviour. She said that she finds it difficult to talk about the robbery offence because what she was involved in not only effected every member of her own family, but also ruined the victim's quality of life.
The Applicant’s criminal history
- [15]The Applicant’s criminal history shows that on 30 November 2008 she was in company with two accomplices who attempted to break into a liquor store. Entry was not gained into the premises. She fully co-operated with the police by admitting to her involvement in the offence. That involvement was to act as a “lookout” for her accomplices. Her co-operation extended to providing the identity of the two accomplices, one of which was her former husband.
- [16]On 1 December 2008, the premises of a motorcycle shop were broken into. A motorcycle was unlawfully removed from the shop and parked in the adjacent carpark. The Applicant later admitted to the police of her involvement in this offence. She told the police that the reason for the attempted stealing of the motorcycle was to sell it for drugs. As with the offence listed above, the Applicant acted as a “lookout” for the same accomplices, and she provided their identity to the police.
- [17]On 5 December 2008, the Applicant and the same two accomplices took their offending to another level. Her former husband selected a convenience store to rob because it lacked security. She drove their vehicle to the location and waited with her former husband whilst a female accomplice entered the store and committed the robbery. The aggravating feature of this offence was the use of a knife which was placed against the victim’s throat during the robbery. The store was robbed of $200 cash and a packet of cigarettes. The Applicant co-operated with the police and admitted to her involvement in the robbery.
- [18]She later pleaded guilty in the District Court to all the offences. She was sentenced to nine (9) months imprisonment for the break and enter offences and three (3) years imprisonment for the armed robbery offence. The Applicant was released after serving seven (7) months with the remainder of the sentences suspended. The operational period of the suspension was three (3) years.[7]
Supporting Evidence
- [19]There were several character references in support of the Applicant’s application. The Respondent advised the Tribunal that only three of the witnesses who provided character references were required for cross examination.
Psychologist Mr WA
- [20]On 17 August 2016, the Tribunal recommended[8] to the Applicant that she should obtain a report from a registered psychologist as to her suitability for child related employment. The Applicant subsequently consulted with Psychologist Mr WA, and obtained a report from him. He reported that he envisaged that the need for the Applicant’s regular monthly consultations with him will cease shortly and this will reduce to a six monthly consultation, or whenever the need arises.
- [21]In responding to the question as to the extent to which the Applicant has insight into her behaviour which resulted in her current criminal history and the impact that her behaviour has on other people, including children, Mr WA reported that the Applicant is sufficiently aware, if not more than most, of how her offending behaviour had the capacity to impact upon other children including her own. Mr WA also felt that to a large degree that the Applicant’s own experiences provided her with valuable insight into the realities confronting children today. He was satisfied that she displayed sufficient insight into not only how offending behaviour impacted upon individuals, but also how it impacted upon society in general.
- [22]In his response to a question as to what risk factors, or triggers, if any, continue to be present which could contribute to a risk of similar behaviour being repeated, Mr WA reported that he had not been able to identify any risk factors that could contribute or result in her offending behaviour being repeated.
- [23]The Applicant has previously been diagnosed with anxiety and depression, for which she was medicated. Mr WA reported that she is now in good physical health and is currently off all medications. The Applicant has found that attending her psychological therapeutic sessions was beneficial, and this has armed her with the tools and knowledge that she needs to control her symptoms, thereby improving her mental health and lifestyle.
- [24]Regarding what protective factors, if any, are present to reduce the risk of a repetition of her prior behaviour, Mr WA reported that the Applicant exhibits excellent pro-social behaviour, engaging well in pro-social groups at her daughter's school and her son's play-group and many other community and school related activities. She has current and permanent government housing for her and her family. She is well educated with a Grade 12 Certificate and Certificates III and IV in Disabilities and Community Services respectively. She has divorced her domestically violent husband and now resides in a location unknown to him.
- [25]Mr WA went on to report that so far as the Applicant’s mental health, she has acquired both the knowledge and skills necessary to permanently reduce the previously debilitating effects of both her anxiety and her depression from reaching the debilitating heights again. Mr WA concluded that excluding an unforeseen event of huge proportions, he envisaged no repetition of the Applicant’s past negative experiences.
- [26]When reporting on what preventative strategies, if any, does the Applicant use to reduce the risk of repetition of such behaviour, Mr WA said that although she has no preventative strategies about reoffending as such, she does have preventative strategies as outlined in her protective factors with a view to prevent the deterioration or decline of her current protective factors. Mr WA further reported that as identified in her criminal history, the Applicant’s criminal offending period spanned a very brief period and was notably completely out of character. It is clearly identifiable that the violent domestic situation she found herself in was the major contributing factor associated with her offending behaviour, thus all preventative strategies are naturally focused on this main area.
- [27]Mr WA reported that to educate herself regarding this factor, the Applicant attended several domestic violence sessions to arm herself with the necessary tools to equip her in the event of any future occurrence. He also said that the Applicant’s past association with her former husband was not a risk in her life, and there was not a risk of her entering another domestically violent relationship. Mr WA added that there is every indication to suggest that she would avoid anyone that even resembles those characteristics associated with domestic violence.[9]
- [28]When asked what has changed, Mr WA said that once the Applicant identifies that something in her environment is not safe, she is more inclined to leave.[10] Mr WA added that the Applicant is now looking for positive outcomes for both her and her children as opposed to her original relationship with her former husband. In that relationship, she was subjected to significant intimidation and violence and the safest thing that she felt that she could do at that time was to be quiet and to do what she was told. Now she is a lot more confident and she can say no to people without fear of any form of confrontation. Mr WA said that the Applicant was now more mature and has a greater ability to identify her options.[11]
RAK
- [29]RAK is a qualified social worker employed by a state government department and was recently accepted an offer of an Australian Post-Graduate Award Scholarship through a recognised university to complete her PhD studies. Those studies are relevant to the issues involved in this matter, such as, what is in the best interests of children. RAK not only has a professional qualification relevant to the decision of this matter, but also knows the Applicant on a personal level. Notwithstanding that personal involvement with the Applicant, the Tribunal accepts that this witness could provide an objective professional opinion so far as whether the Applicant’s case was an exceptional one.
- [30]This witness was aware of the details of the Applicant’s criminal history and said that the Applicant has demonstrated exceptional resilience and courage in her personal recovery and wellbeing in relation to her childhood and early adult life experiences.
- [31]In considering whether the Applicant’s case was an exceptional one, RAK told the Tribunal that indeed it was. This opinion was based on RAK’s experiences with the Applicant in the years that they had known each other. When asked of the likelihood of the Applicant re-establishing herself in a domestically violent relationship, RAK responded by saying that it would be incredibly surprising for that to be occur.[12]
- [32]Having worked with many victims of violence, as well as many perpetrators of violence, RAK told the Tribunal that when assessing the Applicant in comparison to others who have been involved in domestically violent relationships, it would be very surprising for the Applicant to ever put herself or her children in that situation again.[13]
Professor TR
- [33]Professor TR is a retired Professor of Social Work. Apart from being a volunteer community social worker, she also holds an executive position with an organisation called the Family Inclusion Network (FIN).[14] FIN is a registered charity in Queensland. The primary objective of the charity is to support families when child protection services become involved in their lives.
- [34]Professor TR’s experience in social work expands a considerable number of years and she has known the Applicant since 2012 when the Applicant became involved with FIN. Professor TR is aware of the Applicant’s criminal history and has read the negative notice concerning the Applicant’s application for a Blue Card. Professor TR told the Tribunal that the Applicant’s involvement with FIN has progressed to a point where the Applicant is now one of FIN's most valued spokespeople. She increasingly engages in FIN’s activities, which are aimed at community education and at effecting changes in policy and practices with child safety. An example is the Applicant, with the help of FIN, produced a DVD of the Applicant’s life experiences. This DVD was made available as a teaching aid for university students undertaking studies in social work.
- [35]There have been many conversations between Professor TR and the Applicant over a long period of time which enabled Professor TR to form the view that when the Applicant was involved in the criminal offences, she had acted under duress from her often violent former husband. She is aware that the Applicant is committed to leaving her past behind her and she now leads a law abiding life as single mother to two children. Despite a rough start in life and some unfortunate early adult experiences, the Applicant has now taken control of her life and is making wise choices. She is motivated, and has the capacity to give back to society through becoming a social worker.
- [36]Professor TR was of the opinion that the Applicant has great potential to make a very good social worker. This ability consists of her communication skills with others, her empathy, her ability to build purposive relationships with a view to enabling people to recover from trauma, and to grow and to make changes in their lives. Professor TR went on to say that the Applicant’s case must be seen as exceptional. Professor TR reinforced that comment by saying that as far as she had observed, the Applicant poses absolutely no risk to the safety of children, and indeed, works very well with children, and has a very good rapport and communication in playing and talking with children.[15]
The Respondent’s position
- [37]In issuing a negative notice to the Applicant, the Respondent said that it would not be in the best interests of children for a positive notice to be issued. The Respondent relied upon the case of Commission for Children and Young People and Child Guardian v Ram (2014) QCATA 27[16] (Ram’s case) where a deal of emphasis was placed upon the term “insight”.[17] The question the Respondent posed to the Tribunal was whether the evidence established that the Applicant’s case, her life and her circumstances could be properly considered to be exceptional.
- [38]In determining whether a case is exceptional, the task is made easier by seeking to identify risk and protective factors. The Respondent said that the principle risk factors are the Applicant’s criminal offending and her preparedness to be involved in that offending. The Respondent added that consideration should be given to her involvement in a relationship that was in many ways destructive, and which had a negative influence on her life.
- [39]The Respondent acknowledged that there are significant protective factors in the Applicant’s favour, such as her dedication to her children, which has been shown throughout her evidence, along with the observations of the other witnesses who have professional backgrounds. Those professional backgrounds would have assisted the witnesses when they assessed the Applicant.
- [40]The Respondent further acknowledged the Applicant’s involvement with counselling, her research into the impact of domestic violence, and the service which she gives to others are all protective factors. Other positive features in her favour were her engagement in appropriate courses to improve her own parenting skills; her demonstrated willingness to share the things she has learned in both informal and potentially formal settings; the development of strategies to deal with her anxiety; and her level of insight that she describes in her evidence.[18]
- [41]The Respondent concedes that there are significant factors in the Applicant’s favour. The Respondent quite correctly acknowledged that although the robbery offence committed by the Applicant was one involving violence, she did not directly involve herself with the use of that violence, but was nevertheless a party to the offence by the strict definition of the law.[19] It was also acknowledged by the Respondent that the offence was not one that directly involved children in any way. There was certainly no violence used against a child.
- [42]The Respondent accepted that the centre of the consideration of whether her case is an exceptional one was an analysis of whether the changes that she made to her life, the engagement that she has had with respect to her personal and professional development, her willingness to assist others, and her plans for a future life are all protective factors which favour the Applicant’s application.
- [43]Ultimately, it comes down to whether there are sufficient factors in her favour to make her case exceptional. The Respondent argued that when the Tribunal considers the reasons document, the decision under review should be confirmed.
- [44]The Respondent suggested that the centre of that consideration was an analysis of whether the changes that the Applicant made in her life, the engagement that she undertook with respect to her personal and professional development, her willingness to assist others, and her plans for a future life are considerations which the Tribunal might appropriately focus its attention on when deciding whether she has established that her case was exceptional.
What is an “exceptional case”?
- [45]Exceptional is a term most relevant in this application. The term “exceptional case” is not defined in the Working with Children Act. However, it has been the subject of prior discussion in many jurisdictions, including the Tribunal’s appeal jurisdiction. The term “exceptional case” was said to be a question of fact and degree to be decided in each individual case. Regard must be had to the context of the legislation, along with the intent, purpose and design of that legislation for the protection of children.[20]
- [46]The most frequently cited definition of “exceptional case” is taken from the judgment of Luxmoore J in Re Perry and Brown's Patents (1930) 48 RPC 200. Particular attention should be paid to the warning of Luxmoore J where he said that it would be most unwise to lay down any general rule about what is an exceptional case. It is a matter of discretion and each case is to be considered on its own facts.[21]
- [47]That term exceptional was also discussed in Kent v Wilson [2000] VSC 98. In that case, reference was made to the definition of exceptional as meaning unusual, special, out of the ordinary course.[22] The Respondent in this application argued that the decision in Ram’s case reaffirmed the notion that if someone brings their life back to what generally might be expected of a member of the community, that does not amount to the making of the case as an exceptional one. In support of that argument, the Respondent referred the Tribunal to Kent v Wilson where Hedigan J said –
“The respondent, of course, contended that the circumstances here did arise since the order was made. As a consequence, he is driven to rely upon the essential human normality of the behaviour, but saying there was something exceptional, that is, that it was an exceptional circumstance to get a job, leave home and live with a woman independently. These are, to my judgment, merely changed circumstances. Not only are they not exceptional but, if not normal, at least commonplace. It cannot have been the legislative intention, nor is it the Act's reasonable construction, that an exceptional circumstance was one that with respect to the relevant offender amounted to no more than a change of lifestyle from abnormal to normal”.[23]
- [48]In deciding whether there is an exceptional case for the Applicant, 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 her current or future employment, if the offence involved children; and anything else reasonably considered relevant to the assessment of her eligibility.[24]
Discussion
- [49]The Applicant was convicted of robbery with actual violence. The definition of robbery is defined in section 409[25] of the Criminal Code 1899 and the punishment for robbery is defined in section 411.[26] The circumstances of the offence of robbery with actual violence of which the Applicant was convicted is one in which the prescribed maximum penalty is life imprisonment.[27] The criminal courts have long considered that significant terms of imprisonment are warranted as general deterrence, with the need to protect those who, especially during the evening or at night time, are present within convenience stores, which are generally considered quite vulnerable situations.[28]
- [50]By the meaning of section 167 and schedule 2 of the Working with Children Act, robbery is classified as a serious offence. As a consequence of it being a serious offence, the normal onus is reversed. In this case, there was a mandatory obligation imposed upon the Respondent to issue the Applicant a negative notice because of that conviction. That decision will remain unchanged unless the Applicant satisfies the Tribunal that her case is an exceptional one and it would not harm the best interests of children for a positive notice to issued.
- [51]In her original application and information to the Respondent for a Blue Card, the Applicant provided the Respondent with information about how she enlisted support to remove herself and her children from her previous domestically violent relationship and that she was currently building a new life for herself and her children. She listed programs she had undertaken to improve her parenting skills, and her involvement in playgroups with her children. The Respondent accepted that those were all protective factors in her favour. However, the Respondent’s position is that this merely demonstrated that the Applicant had achieved changes in her life which were in the ordinary course of living a law abiding existence. Those changes were not exceptional.
- [52]Careful consideration was given by the Respondent to the Applicant’s criminal history, in particular the offence of armed robbery with personal violence which is categorised as a “serious offence” under the Working with Children Act.[29] Having considered all the material available at the time that the original decision was made, the Respondent reached a decision that the Applicant had not demonstrated any insight into the negative impact suffered by the victim of the armed robbery. As such, the Respondent determined that the Applicant’s case was not an exceptional one.
- [53]In considering this matter, the Tribunal’s function is to review the original decision, not the process by which it was arrived at, nor the reasons given for making it. The Tribunal is not required to identify an error in either the process or the reasoning that led to the original decision being made and there is no presumption the original decision is correct.[30]
- [54]Invariably, considerable time can pass between when an original decision is made and the matter being determined by the Tribunal. The Applicant has since provided further information to the Tribunal, and in fairness to the Respondent, the Tribunal acknowledges that this important new information was not available at the time the original decision was made. Notwithstanding that, when making a decision, the Tribunal is generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration[31] and if substituting the original decision for another decision, the Tribunal should take in consideration all of evidence available to it at that time.
- [55]Earlier in these reasons, the Appeal Tribunal’s decision of Ram was mentioned. In Ram’s case, the Appeal Tribunal applied the interpretation of “exceptional” and observed that that Mr Ram was functioning in the community at a level expected of a person of his stage and age in life. The changes that he made to his life did not take his circumstances outside of what is otherwise the ordinary course.
- [56]In Ram the Appeal Tribunal confirmed that the Working with Children Act placed a barrier to people with a conviction for a “serious offence” from working with children. The offence of robbery in company and the use of personal violence has been categorised in the Working with Children Act as a serious offence despite not intrinsically being an offence against children. The Appeal Tribunal determined that changes in a person's circumstances which simply amount to them living as society expects, and functioning at a level expected of a person at their stage and age in life, are not generally considered to be exceptional. Living in a law abiding manner is the expected ordinary course to be taken by members of society, including those that have served terms of imprisonment.[32]
- [57]Insight is an important element in the analysis of whether an Applicant understands the impact of their behaviours actions upon others. After all, insight is the ability to gain an accurate and deep understanding of someone or something, or to see into the inner character or underlying truth of a matter. A deeming feature in Ram was his failure to show that he possessed insight into how his past violence, and his disregard for legal restrictions might affect his dealings with others, particularly vulnerable people.[33] The Appeal Tribunal determination was that the proper inference to draw must be that it would harm the best interests of children for persons with convictions for a “serious offence” to work with children, unless it is an “exceptional case”.[34]
- [58]The Tribunal is satisfied that this application is distinguishable from the circumstances in Ram’s case. Mr Ram appears to have undertaken very little to enhance his position or participate in a reform process to acknowledge and appreciate insight into his behaviour. On the other hand, the Applicant has demonstrated a far more constructive undertaking of her responsibilities to society and has sought to improve herself and better understand the impact of her behaviour upon others.
Conclusion
- [59]The Tribunal must be satisfied whether the nature of the Applicant’s offending behaviour, which involved the commission and conviction of a serious offence, is such that there are exceptional circumstances to justify reaching a decision that a positive notice should be issued to her.
- [60]The Tribunal found the evidence of Mr WAR, RAK and Professor TR to be persuasive and helpful. Their individual assessment of the Applicant provided the Tribunal with a description of her insightfulness along with the desires and direction, which now differs greatly to what was within her personality at the time she was imprisoned for her criminal behaviour.
- [61]Until the commission of those criminal offences, the Applicant had an unblemished record. Since her conviction, she has remained offence free. The Tribunal is satisfied that there are several significant protective factors currently in the Applicant’s favour. Those factors have already been discussed in these reasons.
- [62]Notwithstanding her conviction for a serious offence, the Tribunal view is that the Applicant’s case is an exceptional one and the issuing of a positive notice would not harm the best interest of children.
- [63]In conclusion, the Tribunal is satisfied that the correct and preferable decision in this matter is to set aside the Respondent’s decision.
Non-Publication Order
- [64]The Queensland Civil and Administrative Tribunal Act provides the Tribunal with the discretionary power 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.[35]
- [65]In this matter, neither party made submissions as to whether the identity of the Applicant or other witnesses should be de-identified. Notwithstanding that, the Tribunal has the discretion to use its initiative and make a non-publication order.[36] Having regard to circumstances of this application, the Tribunal is satisfied that a non-publication order is necessary to avoid the publication of confidential information.
Change of Respondent’s name
- [66]At the time that these proceedings were commenced, the Respondent was called the Chief Executive Officer, Public Safety Business Agency. Since then, the Respondent’s name has been changed to the Director General, Department of Justice and Attorney General. The naming of the Respondent’s new title reflects that change.
Decision
- [67]The decisions of the Tribunal are that –
- The name of the Respondent to be changed to the Director General, Department of Justice and Attorney General.
- The decision of the Director General, Department of Justice and Attorney General dated 19 May 2016 to issue a negative notice to the Applicant is set aside.
- 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]Second reading speech Commission for Children and Young People Bill – p. 4391.
[2]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.
[3]Ibid, ss 6 and 360.
[4]Ibid, s 225(1)(c).
[5]Queensland Civil and Administrative Tribunal Act, s 20.
[6]Ibid, s 24.
[7]Exhibit 2. Sentencing remarks of Judge Pack DCJ.
[8]Directions of Member Joachim arising from a Compulsory Conference between the parties.
[9]Transcript of proceedings at page 16, lines 34 – 41.
[10]Transcript of proceedings at page 17, lines 9 – 12.
[11]Ibid, at page 17, lines 14 – 47.
[12]Ibid, at page 22, line 6.
[13]Ibid, at page 22, lines 19 – 23.
[14]Formed at Townsville in 2008.
[15]Transcript of proceedings at page 41, lines 16 – 22.
[16]At paragraph [47].
[17]The decisive factor determined in Ram’s case is discussed later in these reasons.
[18]Transcript of proceedings at page 52, lines 32 – 40.
[19]Criminal Code 1899, s 7 – Principal Offenders.
[20]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]).
[21]Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 per Fullager J.
[22]Kent v Wilson [2000] VSC 98 at paragraph [22].
[23]Ibid, at paragraph [29].
[24]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2).
[25]Section 409(1). Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.
[26]Section 411(2). If an offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with 1 or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life.
[27]Criminal Code 1899, s 411(2).
[28]R v Smith [2004] QCA 31 at page 3, per de Jersey CJ.
[29]Working with Children (Risk Management and Screening) Act 2000, s 167(1)(a) and Schedule 2.
[30]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
[31]Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299.
[32]Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [47].
[33]Ibid, at [47].
[34]Ibid, at [46].
[35]Queensland Civil and Administrative Tribunal Act, s 66(1).
[36]Ibid, s 66(3).