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Hartley v Director-General, Department of Justice and Attorney-General[2017] QCAT 369

Hartley v Director-General, Department of Justice and Attorney-General[2017] QCAT 369

CITATION:

Hartley v Director-General, Department of Justice and Attorney-General [2017] QCAT 369

PARTIES:

Prudence Hartley

(Applicant)

 

v

 

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML052-17

MATTER TYPE:

Childrens matters

HEARING DATE:

25 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

1 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the Director-General, Department of Justice and Attorney-General made on 21 February 2017 that this is an ‘exceptional case’ 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 there is no exceptional case.

CATCHWORDS:

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

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue card – where applicant issued with negative notice – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 353, s 354, s 358

Baker v The Queen (2004) 223 CLR 513

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

D and Department for Community Development [2007] WASAT 154

Re FAA [2006] QCST 15

R v Kelly [2000] QB 198

RPG v Public Safety Business Agency [2016] QCAT 351

APPEARANCES:

 

APPLICANT:

Ms Prudence Harley appeared for herself

RESPONDENT:

Mr Iain McCowie represented the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, made on 21 February 2017 to issue a negative notice in respect of the application by Ms Prudence Hartley for a blue card.
  2. [2]
    Ms Hartley obtained casual employment at the Ekka in 2016.  As part of her employment, she had a valid pass to enter the showgrounds.  When she arrived for work on 12 August, her pass did not scan and she was denied entry into the Ekka.  After the applicant was turned away, she decided to attempt to run through the gate in order to avoid being late for work.  During the course of this attempt, she collided with a gate attendant, who was aged 17 years.  The gate attendant was caused to stumble backwards, and suffered from pain and discomfort.  Ms Hartley was subsequently identified by the police from closed circuit television footage.
  3. [3]
    Ms Hartley pleaded guilty to common assault.  She was released on a $600 recognisance and required to be of good behaviour for a period of 12 months.  No conviction was recorded.
  4. [4]
    A few days later, on 23 August 2016, Ms Hartley had a conversation with an officer of Blue Card Services.  She is recorded as having stated that her career was over, that she had nothing left, that she had purchased a gun and was planning to commit suicide at the weekend.

The background to the application for review

  1. [5]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act).  A person who is not a disqualified person[1] is entitled to apply for review of a ‘chapter 8 reviewable decision’ within 28 days.[2]  This includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.[3]
  2. [6]
    The Tribunal is to decide the review in accordance with the Working with Children Act and the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act).  The Tribunal has all the functions of the decision-maker for the decision being reviewed.[4]  The purpose of the review is to produce the correct and preferable decision. In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[5]

The ‘blue card’ legislative framework

  1. [7]
    The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[6] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [8]
    A child related employment decision[7] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[8] The overriding concern is the potential for future harm to children.
  3. [9]
    The Working with Children Act deals with ‘blue card’ applications in two broad categories:
    1. Where a blue card must be issued 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 blue card to be issued;[9] and
    2. Where a blue card must not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.[10]
  4. [10]
    The first category applies here.

What is meant by ‘exceptional case’

  1. [11]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special.'
  2. [12]
    In Baker v The Queen[11] Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward)16[12] to the application of 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:

We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

  1. [13]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case[13] but I must have regard to the particular matters set out in s 226(2) of the Working with Children Act.
  2. [14]
    Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[14]
    1. Whether it is a conviction or charge;
    2. Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. When the offence was committed;
    4. The nature of the offence and its relevance to employment that may involve children; and
    5. In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [15]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[15]
  4. [16]
    The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[16] 

The applicant’s evidence and submissions

  1. [17]
    Ms Hartley gave evidence that she was experiencing significant personal stressors in her life at the time of the incident.  She had unsatisfactory living arrangements, was faced with employment and financial uncertainty, and lacked social support.
  2. [18]
    Since the incident, Ms Hartley has done further work with her psychologist, Ms Challee O'Reilly, in relation to her management of stressful situations.  She has also resolved the stressors that were affecting her at the time, including issues relating to her accommodation and social support.  Ms Hartley intends to continue treatment with Ms O'Reilly.
  3. [19]
    Ms Hartley disputed that she had told a Blue Card Services officer on 23 August 2017 that she had purchased a gun.  When questioned by me, she accepted that she may have said something like ‘I may as well buy a gun and shoot myself’.  She does not own a gun, and has never sought to purchase a gun.
  4. [20]
    Ms O'Reilly provided the Tribunal with reports dated 17 September 2017 and 3 March 2017.  She also previously provided a reference to Blue Card Services dated 12 October 2016.  I note the following points from these reports and her evidence at the hearing:
    1. Ms O'Reilly has been treating Ms Hartley for over 13 years.  Much of this treatment has related to a childhood trauma suffered by Ms Hartley.
    2. Ms Hartley has been diagnosed with major depression disorder (currently in remission), post-traumatic stress disorder and obsessive compulsive disorder.
    3. Ms Hartley demonstrates clear insight into her offending behaviour and the impact on the victim, and displays remorse.
    4. Ms Hartley has made significant efforts to address her psychological functioning, including a range of cognitive and behavioural techniques, which result in ‘an extremely marginal risk of any further offending behaviour’.
    5. Ms Hartley has also made a number of adaptive changes in her life which reduce the burden of stress in her life.
  5. [21]
    Ms Hartley also provided evidence from Kym Mulvey, Amber Simmons, Meredith Dixon and Dan Bowden.  These persons each spoke highly of Ms Hartley in their various capacities as friends and colleagues, and considered the incident to be completely out of character.  They also provide her with social support.

The respondent’s evidence and submissions

  1. [22]
    In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[17] (Maher) which involves identifying and balancing ‘risk’ factors with ‘protective’ factors arising from the circumstances of the particular case.
  2. [23]
    In applying that approach, the respondent identified the following protective factors:
    1. Ms Hartley, during her evidence at the hearing, accepted responsibility for her conduct and demonstrated insight into the effects of her actions.
    2. Ms Hartley continues to see Ms O'Reilly fortnightly.
    3. Ms O'Reilly considers Ms Hartley to ‘does not represent or demonstrate any risk of harm to young or vulnerable persons’.
    4. Ms Hartley has adopted a healthier lifestyle.
    5. Ms Hartley has relocated to Beaudesert to be closer to her family.
  3. [24]
    The respondent identified the following risk factors:
    1. The principal risk factor is that only a limited period of time has elapsed since the offending in August 2016.  This period has not been sufficient to test the effectiveness of Ms Harley’s psychological strategies.
    2. Ms Hartley was aged 27 at the time of the offending.
    3. The offence involved an error of judgment, high stress and a lack of logical thinking or due consideration.  This indicates that Ms Hartley’s ability to act in the best interests of children may be compromised at times of high stress.
    4. Ms Hartley’s continuing psychological issues suggest that she may not yet have fully mitigated the risks of further offending conduct.
    5. Ms Hartley had already been receiving long term treatment from Ms O'Reilly for 13 years at the time of the incident.
    6. A blue card is fully transferrable, and risk must be considered beyond the applicant’s planned activities as a gymnastics coach, which occur in a regulated environment.

Is this an exceptional case?

  1. [25]
    The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
  2. [26]
    In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[18]
  3. [27]
    There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[19]
  4. [28]
    Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:

Whether the offence is a conviction or a charge

  1. [29]
    The applicant pleaded guilty to common assault.  Although no conviction was recorded, this is regarded as a conviction as defined in Schedule 7 of the Working with Children Act.

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

  1. [30]
    The offence is not a serious or disqualifying offence.

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

  1. [31]
    The offence was committed on 12 August 2016.

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

  1. [32]
    The offence involved a child, in that the gate attendant was 17 years of age. 

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [33]
    As noted above, Ms Hartley was released on a $600 recognisance and required to be of good behaviour for a period of 12 months.  No conviction was recorded.

Other relevant circumstances

  1. [34]
    While I consider Ms Hartley’s conversation with a Blue Card Services officer on 23 August 2016 to be a matter of poor judgment, I do not consider that it represents a threat with respect to firearms.  I accept Ms Hartley’s evidence that she said that she may as well get a gun and shoot herself, rather than the officer’s account recording that she has purchased a gun.  She does not own a gun, and has never sought to purchase one.
  2. [35]
    I accept that the period of 14 months which has elapsed since the time of the incident is a limited period of time.  However, I have placed considerable weight on the evidence of Ms O'Reilly, who has had a long term and continuing therapeutic relationship with Ms Hartley.  The focus of this treatment appears to have changed following the incident, from dealing with Ms Hartley’s childhood traumas to managing her behaviours in high stress situations.  Ms Hartley has developed a number of psychological strategies to cope with stressful situations, and has reduced a number of the main stressors in her life.  Ms O'Reilly’s professional opinion is that the risk of reoffending by Ms Hartley is ‘extremely marginal’. 
  3. [36]
    I have also placed weight on Ms Hartley’s previous employment as a gymnastics instructor, and the absence of any incidents involving children in her care during the course of her employment.  Ms Mulvey and Mr Dowden, who are respectively a former colleague and a former employer of Ms Hartley, speak highly of her manner in dealing with children. 
  4. [37]
    Finally, I note that the incident did not involve a child in Ms Hartley’s care, and while the gate attendant was 17 years of age I accept that it was not readily apparent to Ms Hartley that the attendant was not an adult.

Conclusion

  1. [38]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is not an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
  2. [39]
    I therefore set aside the decision under review and substitute a new decision that there is not an exceptional case for Ms Hartley.

Footnotes

[1]  Working with Children Act, s 169.

[2]  Working with Children Act, s 354(1).

[3]  Working with Children act, s 353(a)(i).

[4]  QCAT Act, s 19.

[5]  QCAT Act, s 20.

[6]  Working with Children Act, s 5.

[7]  Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

[8]  Working with Children Act, s 360.  See also s 6.

[9]  Working with Children Act, s 221.

[10]  Working with Children Act, s 225.

[11]  (2004) 223 CLR 513 at 573, cited in D and Department for Community Development [2007] WASAT 154.

[12]  [2000] QB 198, 208.

[13] Re FAA [2006] QCST 15, [22].

[14]  Working with Children Act, s 226(2)(a).

[15]  Working with Children Act, s 226(2)(e).

[16] Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill p 4391.

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

[18] Maher, [30].

[19]  Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 369

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    01 Nov 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Baker v R (2004) 223 CLR 513
2 citations
Jump To
Cite 1 - (2004) 223 CLR 513
Cite 2 - (2004) 223 CLR 513
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
D and Department For Community Development [2007] WASAT 154
2 citations
Jump To
Cite 1 - [2007] WASAT 154
Cite 2 - [2007] WASAT 154
R v Kelly (Edward) (2000) QB 198
2 citations
Jump To
Cite 1 - (2000) QB 198
Cite 2 - (2000) QB 198
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 351
2 citations
Jump To
Cite 1 - [2016] QCAT 351
Cite 2 - [2016] QCAT 351

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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