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SGD v Director-General, Department of Justice and Attorney General[2017] QCAT 395

SGD v Director-General, Department of Justice and Attorney General[2017] QCAT 395

CITATION:

SGD v Director-General, Department of Justice and Attorney General [2017] QCAT 395

PARTIES:

SGD

(Applicant)

v

Director-General, Department of Justice and Attorney General

(Respondent)

APPLICATION NUMBER:

CML012-17

MATTER TYPE:

Children Matters

HEARING DATE:

24 August 2017

HEARD AT:

Cairns

DECISION OF:

Member Pennell

DELIVERED ON:

15 November 2017

DELIVERED AT:

Townsville

ORDERS MADE:

  1. The decision of the Director General, Department of Justice and Attorney General dated 16 December 2016 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.
  1. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the identity of the Applicant, CS, the Child K and the Child J. 
 

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – review of a decision to issue a negative notice – applicant investigated after assault allegations made by a child – applicant charged with assault and contravention of a domestic violence order – charges against applicant discontinued because of conflicting evidence between witnesses – whether untested allegations of a child should be accepted as evidence – 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 produced by Queensland Police Service and Department Communities, Child Safety and Disability Services relating to a child – whether it is in the interests of justice to identify the applicant and witnesses – exercise of discretion when making a non-publication order

 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 20(1), s 20(2), s 24, s 24(1), s 24(2),  s 66(1), s 66(3) 

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 6(a), s 221, s 226, s 226(2), s 227, s 353, s 354, s 360, Schedule 1, Schedule 4

Briginshaw v Briginshaw (1938) 60 CLR 336

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

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589

FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350

GKE v EUT [2014] QDC 248

EBH v DH [2001] QDC 016

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Kent v Wilson [2000] 98 VSC

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1

Re Perry and Brown's Patents (1930) 48 RPC 200

Rehsa Shipping Co SA v Edmunds [1985] 2 All ER 712

Water Conservation & Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492

APPEARANCES:

APPLICANT:

RESPONDENT:

Self-represented

Ms H Marunda, Government Legal Officer

REASONS FOR DECISION

INTRODUCTION

  1. [1]
    For much of the last 10 years, the Applicant has been working in the social and human services sector.  In 2010, he graduated from university with a Bachelor of Psychology (Hons).  In the same year, he commenced a relationship with CS.  They both worked for the same employer, and their occupations involved the provision of therapeutic services for children who had been placed on guardianship orders. 
  2. [2]
    At the time of the development of their relationship, CS was the mother of the Child K.  The Applicant and CS later became parents to the Child J.  The Child K has experienced his own difficulties throughout his young life, he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Reactive Attachment Disorder (RAD).  He frequently displayed behaviour difficulties.
  3. [3]
    The relationship between the Applicant and CS experienced a significant amount of difficulties, attributable to those difficulties was CS’s abuse of alcohol.  There are current Domestic Violence Orders (“DVO”), in which both the Applicant and CS are nominated as the Respondents.  Effectively there were cross-orders made by the Magistrates Court. 
  4. [4]
    CS has struggled for many years with the behaviour of the Child K.  Her parenting style is more laissez-faire as opposed to a controlled style.  Consequently, the Child K’s behavioural issues and differences with CS appear to have deteriorated in the family home. 
  5. [5]
    When the Applicant and CS commenced their relationship, the Child K perceived this as a threat to his own relationship with his mother.  His reaction and behaviour were quite often the cause of major conflict within the family unit.
  6. [6]
    In 2015, the relationship between CS and the Applicant ceased, however the Child K’s behavioural issues have not entirely abated.  CS still experiences behavioural difficulties with him, and in recent times he deliberately caused damage to CS’s motor vehicle.
  7. [7]
    In regard to the Child J, after the dissolution of the Applicant’s relationship with CS, a parenting plan was implemented between them for the parenting of this child.  The Applicant has the Child J in his care on a full-time basis and although they both have moved on to start new relationships; they have remained friends.  CS gave evidence at the Tribunal hearing in support of the Applicant.

Legislative Pathway

Introduction

  1. [8]
    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.[1] 
  2. [9]
    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.[2]
  3. [10]
    If an application is made for a Blue Card, the Respondent is not automatically obliged to issue a positive notice to the person making the application (“an Applicant”).  If the Respondent is satisfied that an exceptional case exists, in which it would not be in the best interests of children to issue a positive notice, the Respondent must issue a negative notice.  That situation may arise if the Respondent becomes aware that an Applicant has been convicted of an offence, or an Applicant has been charged with an offence other than a disqualifying offence.[3] 
  4. [11]
    Consequently, there are a number of considerations that the Respondent is obliged to undertake when assessing whether it is appropriate to issue an Applicant with a negative or a positive notice.  Some of the considerations involve whether an exceptional case exists because an Applicant has been the subject of an investigation or has been prosecuted, and whether the facts, evidence or information of the investigation suggest that it is not in the best interests of a child for the issuing of a positive notice.
  5. [12]
    If the Respondent issues a negative notice, and an Applicant undertakes a review of that decision, that decision must be reviewed under the principle that the welfare and best interests of a child is paramount.[4]  The review is to establish whether the person's case is an exceptional case, displacing the presumption as provided in the Working with Children Act that a positive notice should be issued to an Applicant.[5] 

Deciding exceptional case if conviction or charge

  1. [13]
    If the Respondent is deciding whether there is an exceptional case for an Applicant; and the Respondent is aware that the Applicant has been charged with an offence, the Respondent must have regard to a number of factors, including whether it is a conviction or a charge; whether the offence alleged was a serious offence or a disqualifying offence; and the nature of the offence and its relevance to employment, or the carrying on of a business that involves or may involve children.[6] 
  2. [14]
    In addition to all those considerations, the Respondent may consider anything else relating to the commission, or alleged commission, of the offence that the Respondent reasonably considers to be relevant to the assessment of an Applicant.[7]

The Tribunal’s Role

  1. [15]
    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.[8]  The Tribunal must then hear and decide the review by way of a fresh hearing on the merits of the application.[9]  However, the Tribunal is not confined to the evidence or materials which were presented in the original decision-making process.  In undertaking its function in a review hearing, the Tribunal ‘stands in the shoes’ of the original decision maker and discharges the purpose of the review hearing.  The Tribunal’s purpose is to produce the correct and preferable decision.[10] 
  2. [16]
    A pertinent feature of the Tribunal is that the Tribunal is obliged to act judicially, and with judicial fairness and detachment.  In undertaking a review of an administrative decision, the Tribunal is subject to the general constraints to which the Respondent whose decision is under review was subjected to, namely, that the relevant power must not be exercised for a purpose other than that for which it exists.[11] 
  3. [17]
    A point that must be understood is that unlike a judicial review, the Tribunal’s function is to review the decision, not the process by which it was arrived at, nor the reasons for making it.  Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made, and there is no presumption that the original decision is correct.[12]
  4. [18]
    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 the time that the original decision was made, but rather whether the decision of the Tribunal is the correct and preferable one based on the material before the Tribunal at the time of the review hearing.[13] 

Review Jurisdiction

  1. [19]
    In carrying out its review function, the Tribunal may under the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), (“the QCAT Act”) 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]

Exceptional Case Discussion

  1. [20]
    An observation of the Working with Children Act is that the protection of children is paramount, and its legislative intent is not to punish people twice; it is about protecting children from future abuse”.[15]  In respect to any proceedings involving the question of whether a positive notice should be issued to an Applicant, regard must be given to the intent, purpose and design of the Working with Children Act and the Tribunal need only weigh up the competing facts and apply the balance of probabilities principle.  The threshold in deciding whether a person should be issued with a positive notice is the determination by the Respondent of whether the circumstances of that person’s case renders it an exceptional case. 
  2. [21]
    Although the term “exceptional case” is not defined in the Working with Children Act, it has been the subject of previous discussions in a variety of jurisdictions, including the Tribunal’s own appeal jurisdiction.  The term is said to be a question of fact and degree to be decided in each individual case, and is a matter of discretion.[16] 
  3. [22]
    In proceedings involving Blue Cards, any consideration by the Tribunal of the phrase “exceptional circumstances” must be undertaken in accordance with the context of the Working with Children Act[17] and the phrase has been said to mean unusual, special, out of the ordinary course and the court noted that it would be undesirable to attempt to define in the abstract what the relevant facts are.[18]
  4. [23]
    Neither party bears the onus in determining whether an exceptional case exists.  This very point was a matter of consideration by the Tribunal’s appeal jurisdiction in Commissioner for Children and Young People and Child Guardian v Storrs[19] where the Tribunal observed:

“The Tribunal agrees that a proper analysis of the law must lead to the conclusion that there is no onus on the Commissioner to convince the Tribunal that on the balance of probabilities Mr Storrs’s case was an exceptional case such that it would harm the best interest of children for him to have a blue card.  The Tribunal is required to determine whether an exceptional case exists or not after evaluating all available evidence before it without any party bearing the onus of proof that an exceptional case exits”.

  1. [24]
    The question for the Tribunal to decide is whether an exceptional case exists bearing in mind the gravity of the consequences involved. In Commissioner for Children and Young People and Child Guardian v Maher & Anor[20] it was observed that:

“It was accepted by both parties that the test in Briginshaw v Briginshaw (1938) 60 CLR 336 was applicable in respect of the level of satisfaction needed …………that is, that the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued”.

  1. [25]
    An observation was made in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions[21] that particular attention should be paid to the warning given in the frequently cited definition of “exceptional case” which arises out of Justice Luxmoore’s comments in Re Perry and Brown's Patents (1930) 48 RPC 200, where it was observed that:

“it would be most unwise to lay down any general rule about what an exceptional case is.  Discretion should be used and each case should be considered on its own facts”.

  1. [26]
    In Children and Young People and Child Guardian v Maher & Anor[22], the court adopted and endorsed the approach taken in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions by commenting that:

“…it would be most unwise to lay down any general rule with regard to what is an exceptional case.  All these matters are matters of discretion”.

  1. [27]
    The provisions of the Working with Children Act relating to the Respondent deciding an exceptional case do not expressly or impliedly confine the Respondent to considering only the matters specified therein and there is no basis for construing the provision in such a restrictive manner.[23] 
  2. [28]
    If the Respondent arrives at a decision and determines that a case is exceptional because of a person’s criminal history, or because of an event that occurred involving an Applicant, then that decision may be justified if the Respondent made a decision in the best interests of children and refused to issue the Applicant with a positive notice.[24] 
  3. [29]
    Notwithstanding that, the facts of each case must be examined in the light of the intention of the Working with Children Act and each case must be judged on its own merits. 
  4. [30]
    However, any consideration given by the Respondent to an application does not expressly or impliedly decree that the Respondent must only consider the matters specified therein.  As observed in Children and Young People and Child Guardian v Maher & Anor, there is no basis for applying an unnecessary limitation on the interpretation of this provision. 

DISCUSSION

The alleged incident which led to the Respondent’s decision

  1. [31]
    On the evening of 27 October 2015, the Applicant and CS and were at CS’s residence.  The Child K and the Child J were also there.  The Child K became upset and complained that the Child J had used his iPad and flattened the battery.  Child K’s behaviour escalated, he argued with his mother and he snatched her cigarettes from her and scrunched them up.  He was then sent to his room as punishment. 
  2. [32]
    After dinner had been prepared by CS for the family, the Child K came out of his bedroom and walked into the living area.  He then grabbed a mobile telephone from the coffee table and moved quickly into the laundry area.  Both the Applicant and CS went after him to retrieve the mobile phone from him.  The individual recollections of what followed as described by the Applicant, CS and the Child K differ somewhat.  The Child K alleged that the Applicant assaulted him.  This was denied by the Applicant.  CS did not see any assault, but later spoke to the Child K who told her that he had been assaulted by the Applicant.
  3. [33]
    The Applicant left the premises about 10 minutes later.  CS then went upstairs to speak to the Child K.  It was then that the Child K handed her what she described as a handful of hair and he disclosed that the Applicant had pulled his hair out.  CS placed the hair into her pocket and some time later rang the police.  The police later attended upon the residence. 
  4. [34]
    The following day[25] CS went to the police station where she provided a statement to the Police.  Around that same time, the Applicant voluntarily went to the same police station where he was interviewed and charged with assaulting the Child K.  He was also charged with contravening the conditions of a DVO. 
  5. [35]
    Apart from obtaining a statement from CS and interviewing the Child K, it appears that the Police undertook no further investigations into this matter.  Notwithstanding the involvement of the police, an investigation into the child protection issues surrounding CS and her children were undertaken by Child Safety Officers from the Department of Communities, Child Safety and Disability Services (“the Department of Child Safety”). 

CS’s evidence

  1. [36]
    CS’s evidence was provided to the Tribunal by way of a Statutory Declaration[26] as well as her oral testimony.  The Tribunal was impressed by the candid, frank and open manner in which she gave her evidence. 
  1. [37]
    CS told the Tribunal that it would be a huge misjudgement of character for the Applicant to have his Blue Card removed because of the issues between the Child K and her.  She went on to tell the Tribunal that the Applicant was well respected in the industry in which he works, and he was in the process of finishing his probation period for registration as a Psychologist. To her knowledge, the Applicant has never had any complaint made against him, either professionally or personally arising out of his employment.
  2. [38]
    She confirmed that she had provided a statement to police following the incident where it was alleged that the Applicant assaulted the Child K.  She also confirmed that she later approached the police prosecutor and provided a statutory declaration which resulted in the criminal charges being dropped against the Applicant. 
  3. [39]
    She said that the events on the night in question were a result of the Child K having a major tantrum.  For days after the event, the Applicant and the Child K still had contact with each other and the child felt safe enough to stay with him.  The Applicant still visits her residence and she says that he is not a concern to her safety or the safety of the Child K. 
  4. [40]
    CS also told the Tribunal that for many years she had struggled with parenting Child K’s behaviour.  The Applicant has been a great support to the Child K and she has observed that they have a loving and bonded relationship.  When the Child J was born, it appeared over time that the Child K saw his younger sibling as a threat to his relationship with CS and the Applicant.  CS added that at times the Child K would often cause major conflict.
  5. [41]
    CS also told the Tribunal that she had consumed alcohol on the evening of the incident and was affected by alcohol when the incident occurred.  She recognised that it was not only her consumption of alcohol which was the problem, it was also her failure to recognise when it was appropriate to stop drinking.  She explained this in greater detail by telling the Tribunal that it was not unusual for her to consume 12 to 13 schooners of beer in a very short period of time. 

Circumstances which led to the issue of a negative notice

  1. [42]
    Prior to the Applicant being charged by the police[27] with assaulting the Child K, and contravening a DVO, he had been the holder of a Blue Card for a number of years.  That Blue Card had been renewed by the Respondent despite the court convicting him in 2013 for an offence under the Liquor Act 1992 (Qld).[28]
  2. [43]
    It was after the Applicant had been charged with the offences arising out of the 27 October 2015 incident that a negative notice was issued to him by the Respondent.  The charges have since been discontinued and no evidence was offered by the police.  The Applicant’s evidence to the Tribunal was that the charges preferred against him were discontinued because of two pivotal reasons.  The Applicant said that those reasons were the medical evidence relating to his own physical condition; and CS had time to think about the consequences for him. 
  3. [44]
    CS had provided a statutory declaration to the police in which she said that she was intoxicated at the time.  She also said that the Applicant only got involved in the dispute between her and the Child K because it had become physical between her and the Child K.  Her version of the events was that the Applicant did not touch the Child K.  It was the Child K who pulled his own hair out.[29] 
  4. [45]
    What must be considered is that even though the police offered no evidence against the Applicant, that is not the end of the matter so far as the Respondent’s responsibility.  The Working with Children Act provides that if the Respondent is aware that the Applicant had been charged with an offence; regard must be given to when the acts constituting the alleged offence were committed; as well as the nature of the alleged offence and its relevance to the Applicant’s employment, if the Applicant’s employment involved children.[30]  In addition to that, regard must also be given to anything else relating to the commission of the offence that the Respondent reasonably considers relevant to the assessment of the Applicant.[31]  Another part of the Respondent’s assessment of the Applicant is whether he has any recorded criminal history, and what relevance that criminal history is to the facts and circumstances of the matter under consideration. 
  5. [46]
    The Applicant has entries recorded against his criminal history dating back to 1985 in both Queensland and New South Wales.  None of those offences are deemed to be serious[32] or disqualifying offences[33] as provided for within the Working with Children Act.  It appears that the facts and circumstances of all the offences on his criminal history were known to the Respondent, either at the time of the Applicant’s application for a Blue Card, or at the relevant times when his Blue Card was renewed.  It is apparent that the explanations given by the Applicant on those previous occasions satisfied the Respondent that the circumstances of his recorded history did not make it an exceptional case.
  6. [47]
    Clearly the Respondent’s position changed once notification was received that the Applicant had been prosecuted by the police for allegedly assaulting the Child K.[34]  In seeking information from the Queensland Police Service about the allegations, the Respondent was advised in June 2016 that the prosecution of the offences against the Applicant were discontinued because there was insufficient evidence to support a successful prosecution.[35]
  7. [48]
    Even though the police discontinued the prosecution against the Applicant, and the Applicant disputed the allegations.  It can be fairly said that no criticism should be attributed towards the Respondent for issuing a negative notice to the Respondent because the Act requires it to act accordingly.

The Applicant’s evidence

  1. [49]
    The Applicant has always maintained an unwavering position that he did not assault the Child K.  Since the subsequent issuing of the negative notice by the Respondent, his reputation and his employment has been hampered.  He said that he is devastated that his life, his reputation and career have been disrupted because of an unsubstantiated allegation.
  2. [50]
    What was uncontested in the Applicant’s evidence was his excellent work history, particularly in regard to the positions he has held, and the interactions he has had through his profession with indigenous communities.
  3. [51]
    The Tribunal was impressed with the Applicant’s evidence.  He portrayed a persona of someone who had come from a humble background and had undertaken significant education as an adult to achieve the professional qualifications that he currently holds.  A commendable feature of his evidence was his insight into his past behaviours and the ready acceptance that he has been less than perfect in some areas, and his actions were less than ideal and would have impacted upon others.

The Respondent’s argument

  1. [52]
    Generally, the civil standard of proof,[36] as applied to these proceedings, requires the Tribunal to undertake a reasonable attempt to find the facts in the circumstances of a particular case.[37]  In undertaking that task, it is appropriate for the Tribunal to take into account the factors relating to the nature of the subject matter of the allegations and the gravity of the matters alleged.  The Respondent’s position is that the allegations raised by the Child K should not be disregarded or ignored just because they are disputed and not prosecuted before a court exercising its criminal jurisdiction. 
  2. [53]
    The Respondent relied upon the disclosed documents from the Queensland Police Service and the Department of Child Safety to show to the Tribunal the circumstances of the Applicant's alleged violent offending and his associated behaviour, all of which involved a child. 
  3. [54]
    The Respondent asked the Tribunal to note that the Applicant was charged, but not convicted of the common assault charge and contravening the conditions of a DVO.  The Tribunal’s attention was directed to the material that has been received from the Department of Child Safety which suggested that on the balance of probabilities the Applicant did commit acts of violence and abuse towards the Child K and CS.  Reliance was placed upon the comments the Child K made to the Department of Child Safety during an ICARE interview.[38]
  4. [55]
    The Respondent also suggests that the Tribunal should note that there have been a number of applications for DVOs made by the police either on behalf of the Applicant himself, or on behalf of CS, in which those applications alleged domestic violence between CS and the Applicant.  The Respondent went on to add that notwithstanding the decision of the police to discontinue prosecuting the Applicant with the criminal charges, there had been domestic violence involving the Applicant which exposed children to associated domestic violence.  The Respondent also argued that therefore the Applicant’s behaviour would have had an impact upon the emotional well-being of the children of his relationship with CS.

Discussion

  1. [56]
    In addressing the Respondent’s argument, it may be seen that although on a prima facie basis, the original allegations appeared sufficiently strong enough that a Court could have in all the circumstances returned an adverse finding against the Applicant on the criminal charges. 
  2. [57]
    However, doubt was raised over the veracity of the allegations when CS recanted her statement to Police.  Notwithstanding all of that, the Respondent suggests that the Tribunal should ignore this and place sufficient weight upon the untested evidence of the Child K and find on the balance of probabilities that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to him.
  3. [58]
    When considering the evidence in this matter, in particular the disclosures made by the Child K, it is for the determination of the Tribunal as to what weight should be placed upon the untested allegations raised.  There are significant consequences for either party arising from the Tribunal accepting, or not accepting the disclosures made by the Child K.
  4. [59]
    The test for what weight should be applied is perhaps best found in the detailed analysis made by Dixon J in Briginshaw v Briginshaw,[39] where comments were made about the development of the standards of proof in criminal and civil matters, noting that the civil standard was depending on the reasonable satisfaction of the Tribunal.  That analysis continued on to observe:

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters ‘reasonable satisfaction’ should not be inexact proofs, indefinite testimony, or indirect inferences”.[40]

  1. [60]
    Dixon J commented further that:

“The nature of the issue necessarily affects the process by which reasonable satisfaction is attained.  When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ….  But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected”.[41] 

  1. [61]
    One of the matters for consideration when applying the Briginshaw test is the reference to the gravity of the consequences flowing from a particular finding.  This is a consideration for the Tribunal when deciding whether it has been reasonably satisfied on the balance of probabilities.[42] 
  2. [62]
    When dealing with an application to review a decision in regard to whether or not a positive notice should be issued, this consideration does no more than emphasise that when making a decision on these issues, it is appropriate for the Tribunal to have regard for all the circumstances, including the consequences of confirming the decision or setting aside the decision.

CONCLUSION

  1. [63]
    The Applicant was the holder of a Blue Card; however, he has since been issued with a negative notice because he was charged with assaulting a child and breaching a DVO.  The prosecution for those offences was discontinued. 
  2. [64]
    Already outlined in these reasons is the principle that regard must be given to the context of the legislation, along with the intent, purpose and design of that legislation for the protection of children; and the protection of children is paramount.  Every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.
  3. [65]
    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[43] and it may exercise its discretion as provided by the QCAT Act.[44]
  4. [66]
    There are questions for the Tribunal to consider in this matter.  Firstly, whether it can be satisfied that there are protective factors in place which sufficiently mitigate the concerns relating to a risk to children; and secondly, whether sufficient weight should be placed upon the untested evidence of a child.  A third question which arises is whether the Tribunal can be satisfied that there is little or no risk of the repetition of the Applicant’s behaviour, 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. 
  5. [67]
    In answering those questions, a complete analysis is required of all the circumstances relating to the alleged incident and the people involved.  The determination reached from that analysis should then be balanced against the principle that the welfare and best interests of a child are paramount as provided by the Working with Children Act.[45]
  6. [68]
    However, it is clear that if the offences for which the Applicant has been charged with are not disqualifying offences or serious offences as defined in the Working with Children Act, then 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. 
  7. [69]
    In arriving at that correct and preferable decision in this matter, the Tribunal has given a great deal of consideration as to what weight should be placed upon the untested evidence of the Child K, and whether there is a general unfairness discretion which should be applied to that evidence.
  8. [70]
    What is known by the Tribunal is that the Applicant has denied assaulting the Child K.  Despite being in the same room and being involved in the incident, CS did not see any assault take place.  The allegation was raised by the Child K telling CS that he had been assaulted by the Applicant.  The police charged the Applicant, but later withdrew those charges.
  9. [71]
    The Tribunal has the discretion to accept the uncorroborated and untested evidence of the child, however caution should be exercised in doing this.  The reliability or veracity of the evidence of Child K has not been tested and because of that, the general fairness discretion should be considered.  In determining what weight should be placed upon the untested evidence of the Child K, regard must be had to the principle enunciated in Briginshaw v Briginshaw that the greater the consequences flowing from a particular finding, the higher the test or onus of proof is. 
  10. [72]
    A further important issue to consider is the overall general character of the Applicant, in particular his involvement with children within his usual course of employment.  There is nothing within his employment or personal history which suggests that a similar incident has taken place before, or indeed would likely take place in the future.
  11. [73]
    Having regard to whether the Child K’s evidence should be accepted, the Tribunal’s view is that having regard to all the facts, circumstances and evidence before it, the Tribunal is satisfied that the correct approach would be to apply the general fairness discretion and not place any weight upon the disclosures made by the Child K in the interview with the police or the disclosures he made to the Department of Child Safety during the ICARE interview. 
  12. [74]
    The correct and preferable decision of the Tribunal is to set aside the Respondent’s decision and substitute it for its own.

NON-PUBLICATION ORDER

  1. [75]
    The Tribunal has the authority to use its initiative and make a non-publication order de-identifying a person, witnesses and the locality of where those individuals live.  It can also make that order upon an application of a party to the proceedings.[46] 
  2. [76]
    That authority is provided by the QCAT Act which allows the Tribunal to make a non-publication order prohibiting the publication of the contents of any document or thing produced to the Tribunal, or evidence given at the Tribunal hearing, or other information that might enable a person who appeared before the Tribunal to be identified.[47]
  3. [77]
    Because of the nature and sensitivity of matters involving children, consideration should always be given by the Tribunal to de-identifying Applicants who are seeking positive notice relating to a Blue Card.  In this matter, the Respondent made an oral application for a non-publication order because the information and material provided to the Tribunal involved a child.
  4. [78]
    However, before the Tribunal can take that step, it must reach a conclusion that the non-publication order is necessary to protect the identity of those people who appeared before the Tribunal in the proceedings, or their identity might otherwise be discovered if that order was not made.  The Tribunal must also consider whether the making of the order would avoid, amongst other things, the publication of confidential information; or information whose publication would be contrary to the public interest. 
  5. [79]
    In these proceedings, material has been provided to the Tribunal by the Queensland Police Service and the Department of Child Safety.[48]  In addition to that material, written and oral evidence was given to the Tribunal by the Applicant and CS.  In both the material provided and the evidence given, the identity of Child K and the Child J were revealed, both of whom played an innocent role of these proceedings. 
  6. [80]
    Because the identity of the children must be protected, the Tribunal is satisfied that it is necessary to make a non-publication order in relation to these proceedings because to do so would avoid the publication of confidential information; or information whose publication would be contrary to the public interest.  The Tribunal is also satisfied that it would not be in the best interests of the Applicant, CS, the Child K or the Child J for their identity to be known.

ORDERS

  1. [81]
    The Orders of the Tribunal are: 
  1. The decision of the Director General, Department of Justice and Attorney General dated 16 December 2016 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.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the identity of the Applicant, CS, the Child K and the Child J. 

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

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

[3]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2).

[4]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.

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

[6]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.

[7]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(e).

[8]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 353, s 354.

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

[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[11]Water Conservation & Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492.

[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[13]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[14]Queensland Civil and Administrative Tribunal Act 2009, s 24(1).

[15]Queensland Parliament Hansard, 14 November 2000 at p. 4391.

[16]FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350, [18].

[17]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] (citing Kent v Wilson [2000] VSC 98, [22]).

[18]Kent v Wilson [2000] VSC 98, [22].

[19][2011] QCATA 28, [19].

[20][2004] QCA 492, [30].

[21][1983] 1 VR 1.

[22][2004] QCA 492, [34].

[23]Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [42].  The observations and considerations by Philippides J were undertaken with respect to the previous legislation, the Commission for Children and Young People and Child Guardian Act 2000, s 102.  The equivalent of those provisions is contained in Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226. 

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

[25]28 October 2015.

[26]Exhibit 1.

[27]The Applicant was arrested and charged by the police on 28 October 2015.

[28]The conviction was for being drunk or disorderly in premises to which a Liquor Act 1992 (Qld) permit or licence relates.  Fined $110.00.

[29]Respondent’s reasons for the decision at page 48.

[30]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 227.

[31]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 227.

[32]Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.

[33]Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 4.

[34]Respondent’s letter to the applicant dated 17 November 2015 attached to the respondent’s material produced to the Tribunal at page BCS-20.

[35]Correspondent dated 15 June 2016 under the hand of the Acting Deputy Commissioner for the Queensland Police Service attached to the respondent’s material produced to the Tribunal at page BCS-19.

[36]On the balance of probabilities.

[37]Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712.

[38]An ICARE interview is an interviewing model used when interviewing children and recording evidence (ICARE).  This interviewing model encompasses an electronically recorded free narrative of the witnesses’ recollection of the event. 

[39]Briginshaw v Briginshaw (1938) 60 CLR 336, 360–363.

[40]Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[41]Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

[42]EBH v DH [2001] QDC 016 at [28]; GKE v EUT [2014] QDC 248, [36].

[43]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[44]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[45]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a).

[46]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3). 

[47]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).

[48]Documents and audio recording produced on direction made by the Tribunal on 14 March 2017.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 395

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    15 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
5 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Cite 4 - (1938) 60 C.L.R 336
Cite 5 - (1938) 60 C.L.R 336
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
4 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
2 citations
Jump To
Cite 1 - (1979) 24 ALR 577
Cite 2 - (1979) 24 ALR 577
EBH v DH [2001] QDC 16
2 citations
Jump To
Cite 1 - [2001] QDC 16
Cite 2 - [2001] QDC 16
FGC v Commisisoner for Children and Young People and Child Guardian [2010] QCAT 350
2 citations
Jump To
Cite 1 - [2010] QCAT 350
Cite 2 - [2010] QCAT 350
GKE v EUT [2014] QDC 248
2 citations
Jump To
Cite 1 - [2014] QDC 248
Cite 2 - [2014] QDC 248
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Kent v Wilson (2000) VSC 98
3 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Cite 3 - (2000) VSC 98
Perry and Browns Patents (1930) 48 RPC 200
2 citations
Jump To
Cite 1 - (1930) 48 RPC 200
Cite 2 - (1930) 48 RPC 200
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
2 citations
Jump To
Cite 1 - [1983] 1 VR 1
Cite 2 - [1983] 1 VR 1
Rhesa Shipping Co SA v Edmunds & Anor (1985) 2 All ER 712
2 citations
Jump To
Cite 1 - (1985) 2 All ER 712
Cite 2 - (1985) 2 All ER 712
Water Conservation and Irrigation Commission (N.S.W.) v Browning (1947) 74 CLR 492
2 citations
Jump To
Cite 1 - (1947) 74 CLR 492
Cite 2 - (1947) 74 CLR 492

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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