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- Unreported Judgment
Q v Director-General, Department of Justice and Attorney-General QCAT 369
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Q v Director-General, Department of Justice and Attorney-General  QCAT 369
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
04 December 2019
2 December 2019
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – 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,
Baker v The Queen (2004) 223 CLR 513
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492
D and Department for Community Development  WASAT 154
Re FAA  QCST 15
R v Kelly  1 QB 198
RPG v Public Safety Business Agency  QCAT 331
REASONS FOR DECISION
- This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, made on 17 September 2018, to cancel Q’s positive notice and to issue her with a negative notice.
- Blue Card Services undertook a criminal history check in relation to Q. This check disclosed the following criminal history which Blue Card Services considers to be of concern in relation to Q’s application for a blue card:
- (a)Q was convicted of multiple prostitution related offences between 1984 and 1986. She was fined between $160 and $400.
- (b)Q was convicted of the offence of assault occasioning bodily harm, which took place on 23 February 2008. Q hit the complainant across the head with a pool cue during an argument, causing injuries to the complainant’s face, elbow, arm and chest. Q was fined $500 and no conviction was recorded.
- (c)Q was charged with the offence of assault occasioning bodily harm whilst armed/in company – domestic violence offence, which was alleged to have taken place on 25 September 2017. Q was found not guilty of this offence on 27 November 2019.
- (d)Q was charged with the offence of contravention of a domestic violence order, which was alleged to have taken place on 25 September 2017. This charge is set down for hearing on 12 December 2019.
- In respect of the charge mentioned in the preceding paragraph, I offered to adjourn the hearing until after the outstanding charge was heard. Q declined this offer, and indicated that she wished to proceed.
- Blue Card Services obtained further material from the Queensland Police Service, which indicates:
- (a)Q was taken to Logan Hospital by police on 11 March 2011 and 14 February 2014.
- (b)Q ingested 25 Temazepam (10mg) in an attempt to commit suicide on 23 November 2016.
- (c)Q was in care at a private hospital as a result of taking four (4) boxes of Panadol Forte and one (1) box of Endone on 6 December 2018.
- (d)Q absconded from Logan Hospital while being treated for a suicide attempt involving paracetamol overdose on 26 December 2018.
- Blue Card Services also obtained material from the Beenleigh Magistrates Court. This indicates that a domestic violence order was issued against Q on 5 May 2017, after she hit her then-partner over the head with a ‘metal pooper scooper’.
The ‘blue card’ legislative framework
- 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’). 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. It is protective legislation and has been described as ‘precautionary’ in its approach.
- As applicable to this case, the Working with Children Act requires that 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.
What is meant by ‘exceptional case’
- What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.
- 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:
- (a)Whether it is a conviction or charge;
- (b)Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
- (c)When the offence was committed;
- (d)The nature of the offence and its relevance to employment that may involve children; and
- (e)In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
- Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.
- 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.
The applicant’s evidence and submissions
- Q provided the Tribunal with her life story dated 10 July 2019, and a handwritten statement dated 20 November 2018.
- In her handwritten statement, Q submitted:
I have had 2 incidents in over 30 years. The first in 2008 was dealt with and my card was kept. There was also no mention of the beating I received on the night which lead to the incident.
10 years on and I was defending myself from a violent narcissistic partner. I have chosen to go to trial as I have evidence of his abuse and witnesses. The abuse was ongoing for over 12 mths. On the night he bailed me up in a corner and attacked me after trying to rape me. He had to exits to leave [sic] but instead he cornered me. I picked up the only thing in my presence in the corner in the kitchen. I feared for my life and had no other way of defending myself. I was aware that he was a black master in one of the martial arts and threatened to kill me on numerous occasions and if I left him.
This has still not gone to trial and I am innocent until proven guilty.
- At the commencement of the hearing, Q provided a ‘Verdict and Judgment Record’ showing that she was found not guilty on 27 November 2019.
- Q was cross-examined on her criminal history. She did not dispute the assault in 2008, or hitting her then partner on the head with a metal pooper scooper in 2017. She also did not dispute that knives were involved in the 2017 incident, in which she was found not guilty.
- Q was cross-examined on her mental health history. She stated that her suicide attempt in December 2018 related to her mother being diagnosed with cancer and Alzheimer’s disease. She feels her mental state has improved since commencing treatment.
- Q has also provided a health report from Vanessa Carson, psychologist, dated 11 July 2019. Relevantly, Ms Carson wrote:
[Q] was referred to our service 19/03/2019 by her private Psychiatrist Dr Fuls for referral to our DBT program due to a history of suicide [sic] thinking and interpersonal relationship issues impacting on her ability to hold a job or relationship. [Q] has told us of her history of childhood trauma and domestic violence with current charges against her for holding a knife to her previous partner when she felt threatened.
[Q] has a diagnosis of Borderline Personality Disorder Emotionally Unstable Type. She was assessed by our service as meeting all criteria for acceptance into the full Dialectical Behaviour Therapy Program in May this year and she is currently a participant.
[Q] has also been seen for medication review by our Psychiatric Registrar Dr Naveed on 4/06/19 where she had disclosed her history of aggression and a desire to improve her behaviour. Hx of BPD and depression. He notes she currently has stable mental state and there was no evidence of depression, mania or psychosis. There were no acute risks to self or others but chronic moderate risk of suicide due to her underlying impulsivity and personality structure.
[Q] appears to have improved insight into her offending behaviour and has disclosed to our service her distress and remorse about her past aggressive [sic] and her goals of gaining skills through the DBT program to facilitate the changes she wants in her life.
The program runs for twelve months and she has indicated a commitment to completing the program that could improve her coping strategies and an opportunity to gain a life worth living which we fully support.
- I offered to adjourn the hearing until after Q had completed her 12 month DBT course. Q declined this offer, and indicated that she wished to proceed.
- Ms Caron gave evidence that Q was approximately half way through the course, and that the course constitutes stage 1 of her treatment. Stage 2 involves discussing in detail the trauma suffered by Q, and this has yet to commence.
- I asked Mr Carson whether she was able to make an assessment of Q’s risk to children and young people if she held a blue card. Ms Carson indicated that she had ‘no concerns’ about risks to children.
- In cross-examination, Ms Carson stated that she had not read the Blue Card Services decision, and had no information from the police.
- Favourable references were provided by seven persons, all of whom also gave oral evidence. Further favourable references were provided by another four persons, who were not required for cross-examination.
The respondent’s evidence and submissions
- 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 which involves identifying and balancing ‘risk’ factors with ‘protective’ factors arising from the circumstances of the particular case.
- In applying that approach, the respondent identified the following protective and risk factors:
- (a)Q had engaged with DV Connect, YFS and WAVES for assistance in relation to her relationship with her former partner.
- (b)Q has volunteered at various organisations.
- (c)Q provided statements from 11 friends, all of whom speak well of her.
- (d)Q’s criminal history contains offending between 1984 and 2008, and alleged offending in 2017.
- (e)The recent nature of Q’s alleged offending in 2017 suggests that she has not addressed the underlying triggers to her behaviours of concern.
- (f)The repeated nature of Q’s violent offending in 2008 and alleged offending in 2017 suggests that she has been unable to refrain from violent offending on a long term basis.
- (g)Q engaged in the behaviours of concern in 2008 and 2017 while being the holder of a blue card.
- (h)Q may have untreated mental health issues which may manifest in behaviours of concern, thereby impacting on Q’s ability to act protectively towards children and their best interests. Given her current therapy, it may be that Q requires further time to apply the strategies and skills she has learnt, or will learn, to demonstrate the positive and long term impact of such therapy on her behaviour management.
- (i)Q has not demonstrated any insight into her criminal offending.
- (j)If Q is issued a blue card, she would be able to work in any child-related employment.
- I note that a number of these submissions have been overtaken by Q’s not guilty finding, although the charge of contravention of a domestic violence order remains outstanding.
Is this an exceptional case?
- The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
- 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.
- 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.
- 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
- Q was convicted of multiple prostitution offences and assault occasioning bodily harm. She was charged with assault occasioning bodily harm whilst armed/in company – domestic violence offence, but was found not guilty. She was also charged with contravention of a domestic violence order, which has yet to be heard.
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence
- The offences Q was convicted of or charged with are not a serious or disqualifying offences.
When the offence was committed or is alleged to have been committed
- The prostitution offences Q was convicted of took place between 1984 and 1986.
- The assault occasioning bodily harm offence Q was convicted of took place in 2008.
- The outstanding charge, and the charge which Q was acquitted of, relate to events in 2017.
The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children
- Q’s criminal history includes assault. Children are dependent upon adults around them to manage conflicts in an appropriate manner. Q’s offending suggests that she may lack the appropriate skills to manage conflict in an appropriate way.
In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision
- In relation to the prostitution offences, Q was fined between $160 and $400. In relation to the assault occasioning bodily harm offence, Q was fined $500 and no conviction was recorded.
Other relevant circumstances
- I have considered the risk and protective factors in Q’s life.
- This is a finely balanced case. On the one hand, Q’s prostitution offences occurred more than 30 years ago. The assault occasioning bodily harm took place over 10 years ago. Although the charge for contravention of a domestic violence order remains outstanding, she has recently been found not guilty of the more serious offence of assault occasioning bodily harm whilst armed/in company – domestic violence offence.
- Q also has provided favourable references from a large number of persons.
- On the other hand, Q admitted that she engaged in violent behaviour in 2017, namely hitting her then partner over the head with a metal pooper scooper, which led to a domestic violence order being issued. As noted above, a charge relating to a breach of that domestic violence order remains outstanding.
- The information obtained by Blue Card Services from the Queensland Police Service also indicates that Q has a lengthy mental health history, involving multiple suicide attempts.
- It is to Q’s credit that she is engaging in a dialectical behaviour course to address her mental health issues, and appears to be making good progress in that course. However, it remains the case that she has is only half way through stage 1 of a two stage course of treatment.
- I note that Ms Carson gave evidence that she had ‘no concerns’ about Q being a risk to children and young people. However, she also said that she was not aware of information from the police relating to Q. I note that this answer appears to be inconsistent to some extent with her letter, in which Ms Carson indicated that she had an awareness of the charges against Q. Nevertheless, Ms Carson’s incomplete knowledge of Q’s history of interactions with the police limits the weight I can place on her report.
- What could potentially have tilted the balance in Q’s favour is if the outstanding charge had been resolved in her favour, and if she had completed her course of treatment. I offered Q an adjournment in respect of both of these issues, but she declined. I note that Q will have an opportunity to make a further application for a blue card in the future.
- 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 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.
- I therefore confirm the decision under review.
- Given Q’s psychological vulnerabilities, I order that the publication of her name is prohibited other than to the parties to the proceeding pursuant to s 66(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Working with Children Act, s 5.
Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.
Working with Children Act, s 360. See also s 6.
Working with Children Act, s 221.
Re FAA  QCST 15, .
Working with Children Act, s 226(2)(a).
Working with Children Act, s 226(2)(e).
Re FAA  QCST 15, , citing the Second Reading Speech, Commissioner for Young Children and Young People Bill, 4391.
 QCA 492.
RPG v Public Safety Business Agency  QCAT 331, .
- Published Case Name:
Q v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
Q v Director-General, Department of Justice and Attorney-General
 QCAT 369
04 Dec 2019