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Dowling v Director-General, Department of Justice and Attorney-General[2020] QCAT 340

Dowling v Director-General, Department of Justice and Attorney-General[2020] QCAT 340

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Dowling v Director-General, Department of Justice and Attorney-General [2020] QCAT 340

PARTIES:

Franz james Dowling

(applicant)

 

v

 

director-general, Department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML153-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

25 August 2020

HEARING DATE:

12 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

The decision of the respondent that the applicant’s case is an exceptional one within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where 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 issue of negative notice – where application for review – where applicant has convictions – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 13, 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360

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

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

WJ v Chief Executive Officer, Public Safety and Business Agency [2015] QCATA 190

APPEARANCES &

REPRESENTATION:

Applicant:

S Reidy of Counsel

Respondent:

N Rajapakse

REASONS FOR DECISION

Background

  1. [1]
    The applicant is a young man aged 23. He applied for a renewal of his positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to enable him to undertake placement as part of his university studies and to undertake volunteer work. He had previously held a positive notice and blue card between 2015 and 2018.
  2. [2]
    As a result of the applicant’s criminal history the respondent proposed to issue a negative notice so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant. The applicant provided submissions in response.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, 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 positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    The respondent issued a negative notice on 27 March 2019 and the applicant seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28 day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    Mr Dowling is not a disqualified person and sought review of the decision within the prescribed period.

The legislative framework

  1. [7]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[6] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[7] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[8] Thus, the review does not focus on any errors made by the primary decision maker. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[9] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[10]
  2. [8]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[11] The principles under which the WWC Act is to be administered are:
  1. the welfare and best interests of a child are paramount;
  2. every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[12]
  1. [9]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[13]
  2. [10]
    For the present purposes, a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.[14]
  3. [11]
    The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[15]

  1. [12]
    In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. These matters are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[16]
  2. [13]
    ‘Conviction’ is defined in Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  3. [14]
    In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.[17] The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.[18]

Consideration of s 226(2) of the WWC Act

  1. [15]
    The matters listed in s 226(2) of the WWC Act must be considered by the Tribunal and are addressed below.

Whether the offence is a conviction or a charge

  1. [16]
    For the purposes of the WWC Act[19] the applicant has one conviction for ‘person enters in or flies over an area that is prohibited’ and one conviction for ‘wilful damage at cemeteries etc’.
  2. [17]
    Mr Dowling has a charge of ‘unlawfully enter prohibited area’ which was dismissed, and the applicant discharged. The applicant said that this charge arose out of the Pine Gap conduct and was withdrawn as the consent of the Commonwealth Attorney-General, required prior to prosecution, had not been obtained. Once the requisite consent was obtained Mr Dowling was recharged. The Tribunal accepts that the withdrawn charge arises out of the same incident as that for which the applicant was convicted and in the circumstances the Tribunal affords no weight to this charge in its review.

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

  1. [18]
    Neither of the offences on the applicant’s criminal history are serious offences[20] or disqualifying offences[21] under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card.

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

  1. [19]
    The offence of ‘person enters in or flies over an area that is prohibited’ was committed in September 2016. The wilful damage offence arose out of events which occurred at the Toowong Cemetery in March 2017.

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

  1. [20]
    In September 2016, the applicant and his co-offenders approached the boundary of the Pine Gap prohibited area. They crossed the perimeter fence, entering the prohibited area. Once there they played musical instruments they had with them. When arrested by the Australian Federal Police they said their purpose in entering the prohibited area was to ‘express their concerns about the use to which they believe the Pine Gap facility was being put, particularly in relation to drone strikes and bombing raids in the Middle East and in Asia.’[22]
  2. [21]
    The police brief indicates that in March 2017 the applicant and his co-defendants, being members of the activist group ‘Catholic Worker Movement’, attended the Toowong Cemetery and approached an Australian war memorial. One of the co-defendants climbed a ladder and removed a sword attached to the sandstone crucifix on the memorial, damaging the sandstone. Using an anvil and hammer another co-defendant reshaped the sword into a ploughshare. During this time the applicant played the guitar and sang. A large painted sign, the anvil, hammer, damaged sword, and some pamphlets were left at the base of the memorial. The activity was recorded by one of the co-defendants. Some of the co-defendants posted images of the activity on social media and issued a media release naming those involved.
  3. [22]
    The material indicates that Mr Dowling’s offending occurred in association with political protests. Mr Dowling acknowledged that he made the decision to walk onto the Pine Gap prohibited area but said that he did not appreciate that he was acting unlawfully in the cemetery. His offending was not undertaken in the course of employment and there has been no suggestion that children were present on either occasion.

In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision

  1. [23]
    In sentencing His Honour Justice Reeves of the Northern Territory Supreme Court said:
    1. (a)
      That the offence carried a maximum penalty of seven years’ imprisonment was an indication of the seriousness with which Parliament regarded the offence;
    2. (b)
      The applicant and his co-offenders were not being sentenced because they had exercised their right of free speech, but because they ‘deliberately chose to break the law’;
    3. (c)
      There was ‘clearly a need to send a signal to the public that protestors exercising their rights of free speech in this country should exercise those rights lawfully’;
    4. (d)
      ‘each of you were offered the opportunity to express contrition for your offending on this occasion and none of you did – [this] must be taken into account but you may have misunderstood what it was you were expected to be contrite about’;
    5. (e)
      The offending was considered to be ‘at the lowest end of the scale’; and
    6. (f)
      ‘While the conduct was calculated and deliberate you did no damage to any property, nothing to adversely affect the continuing operation of the facility, posed no real threat to the security of the facility, did not resist arrest and cooperated with the Australian Federal Police. None of you had any implements or any means of causing harm to the facility’.
  1. [24]
    In relation to the applicant specifically the Court noted:
    1. (a)
      The applicant’s young age and the likely influence of his father;
    2. (b)
      While the wilful damage offence occurred subsequent to the Northern Territory offence, at the time of sentencing for wilful damage there was limited information available about the Northern Territory offence so the judge did not take account of it in sentencing. The Northern Territory Supreme Court observed the penalty imposed upon Mr Dowling in relation to the wilful damage offence; and
    3. (c)
      the applicant’s youth and relatively unblemished record.
  2. [25]
    The applicant was convicted and fined $1,250.
  3. [26]
    In sentencing in relation to the wilful damage offence, the Magistrate observed that Mr Dowling was involved in planning the activity, though to a lesser extent than the others and was clearly a party to the activity and acquiesced in it. He was fined $1,000, with no conviction recorded.

Any information about the person given to the chief executive under section 318, 319, 335, 337 or 338 of the WWC Act

  1. [27]
    No information was requested or received under these sections.

Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person

  1. [28]
    Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.

The material and the evidence

  1. [29]
    The applicant provided the Tribunal with his life story[23] and a document titled ‘Ethics and Values’[24] as well as documents which have the nature of further statements from Mr Dowling dated November 2018[25] and 7 November 2019.[26] He provided numerous character references and statements from two witnesses with expertise in ethics. He provided written submissions[27] and oral submissions were made on his behalf.
  2. [30]
    The respondent provided the Tribunal with a bundle of documents paginated BCS-1 to BCS-39 and BCS-50 to BCS-54.[28] The respondent had the opportunity to cross-examine Mr Dowling, Ms Garvey, Ms Simons, Rev. Dr Preston, Ms Wellauer, Mr Barringham and Rev. Dr Arnold. It made oral submissions and provided written submissions.
  3. [31]
    Mr Dowling grew up in a large family. He said his parents ‘were quite radical and strongly believed in Christian values of living simply, and in “voluntary poverty”’. Activism was also a strongly held value in his upbringing, with his parents seeking to ensure that their children put ‘the most vulnerable and marginalised people in the world at the forefront of our concerns.’[29]
  4. [32]
    Mr Dowling said he holds strong to his Catholic faith which, guided by the framework of Catholic Social Teaching and the Corporal Works of Mercy, he seeks to embody in his everyday life. He said that living in a community house, sharing his room and his life with ‘our society’s most marginalised people has developed and strengthened my philosophy and calling in life.’[30] He has worked and volunteered to work with various organisations offering support to people who face social isolation, complex trauma and different abilities and disabilities. He said that his commitment to non-violent peace activism is inherently linked to his faith.
  5. [33]
    Mr Dowling acknowledged that he was involved in the lengthy preparations for the Pine Gap protest. He said that as a symbolic act he attended at the facility on the anniversary of Pine Gap’s existence, with a small group of protestors, where they performed a ‘musical lament for the unknown innocent lives that had been taken due to the operations of the arm of the US war machine that was sitting right before our eyes.’[31] In so doing he knowingly broke the law, but considered that it was his moral responsibility. Upon reflection, he said he participated in this action because he wanted to draw attention to the Pine Gap facility and is disappointed that he was unable to stop the drones in the Middle East.
  6. [34]
    In relation to the wilful damage offence Mr Dowling said that he participated in a ‘peaceful and reflective prayer service at the Toowong War Memorial’, as ‘simply’ a bystander, although he acknowledged that everyone in attendance was aware that the sword was to be removed and damaged. He considered the actions to be a ‘peaceful symbolic action that sought to address the hypocrisy of the Church in its continued support of unjust wars.’[32] He said his involvement was that he played guitar and sang hymns and that he was charged still confuses him, particularly given his personal involvement and that not all those who were involved in the action were charged.
  7. [35]
    The applicant is studying and is a part time disability support worker. He volunteers in the community and is active in his church and the church choir. He said that following his offending he committed himself to ‘finishing my degree, living in a small Catholic Worker community of hospitality, volunteer roles within the community, and working as a support worker.’[33] He considers that he poses no threat to children and said that he would not encourage a young person to break the law but ‘holds onto his right to act out of conscience and conviction in order to fight against the forces of violence and hatred that are present in our society’.[34]
  8. [36]
    Mr Dowling said that his past activism has not ever come up in any professional role and that if it did he would always discourage the vulnerable people with whom he works, including children, from participating in any illegal activities, as his priority is their wellbeing.
  9. [37]
    Mrs Garvey has known the applicant since he was three years old.[35] She had read the respondent’s reasons and is aware that the applicant is opposed to war and violence. She has not spoken with the applicant about his offending, saying that he does not raise his beliefs in conversation. She spoke of Mr Dowling as a kind and generous person who understands people’s struggles ‘more than most’ and goes out of his way to help others. Mrs Garvey observed Mr Dowling’s talent for music. Having observed Mr Dowling’s interactions with his siblings and with her own children she considers him a good influence and a positive role model. She does not consider Mr Dowling poses a risk to children.
  10. [38]
    Ms Simons, a registered teacher, knows the applicant through their families and more recently through her involvement in the church.[36] She spoke of his commitment to his community house, as a volunteer with the church, and to people who are vulnerable, homeless or who have disabilities. She has experienced his generosity in her own times of need and her children enjoy spending time with Mr Dowling. In observing Mr Dowling to be a healthy male role model for her children, she said that he proactively invests in a good relationship with her children and others with whom he interacts. She considers him committed to helping people. She is aware of Mr Dowling’s application for a blue card and his convictions and considers him well suited to working with children.
  11. [39]
    Elizabeth Wellauer is a qualified and experienced teacher and has worked as a children’s worker in the church, which included coordinating activities for children, youth and their families, organising Sunday School and Youth Groups and running a parenting course.[37] She has known the applicant for about four years and sees him regularly due to their common interests including sport and church. She considers Mr Dowling to be a quiet person who interacts respectfully with young people. She spoke highly of the applicant’s engagement with those who are marginalised by society, including through his involvement with the Catholic Worker Movement. She has observed him to be genuinely concerned for social issues and inequalities, not afraid to make a stand for his beliefs and genuine in his interactions with young people.
  12. [40]
    Neil Barringham, Mr Dowling’s employer, has read the respondent’s reasons for refusal and is aware of the applicant’s criminal history.[38] He has a long involvement in youth and community work and has known the applicant for many years through community engagement and since 2019 as his employer.
  13. [41]
    In his work supporting vulnerable people with complex needs and disabilities to sustain life in their communities, Mr Barringham reported that Mr Dowling readily became a trusted and responsible employee, ‘committed to respecting people with disabilities who are often excluded and disrespected by others…highly collaborative, trustworthy and dependable.’ He considers Mr Dowling has both the self-control and restraint which are vital in his work.
  14. [42]
    Mr Barringham is aware of the applicant’s moral and ethical beliefs. Based on Mr Barringham’s personal observations and regular feedback received from staff, Mr Barringham considers Mr Dowling able to separate his views from his work. He expressed the view that Mr Dowling is a very positive role model having shown commitment in the conduct of the community household of which he has been a part for about five years. He considers Mr Dowling to be of no risk to children and supports his application. The Tribunal found Mr Barringham to be a compelling witness, well placed to give evidence about the applicant’s conduct in the workplace, including with vulnerable members of the community. 
  15. [43]
    Rev. Dr Preston is a retired academic and retired United Church Clergyman whose doctoral studies are in the field of Social Ethics. He does not know Mr Dowling, although he met members of his family years ago. He has read some of the material relevant to this review including the respondent’s reasons and material related to the charges arising out of the Toowong Cemetery action. He spoke of the highly developed moral code which non-violent civil disobedience follows and which ‘should extend consistently to the whole of these activists’ life circumstances.’[39] He concluded that ‘Mr Dowling’s actions as dealt with by the Courts are consistent with the tradition of non-violent civil disobedience.’ In view of the rigorous process of training, action and reflection he said is generally undertaken by those in the Catholic Worker Movement in its approach to non-violent action, he considers it unlikely that Mr Dowling has limited insight into his actions.
  16. [44]
    Although he has not met Mr Dowling he formed the opinion that his actions are ‘evidence of a highly moral person who is able to exercise proper self-control, judge behaviour and present an appropriate role model.’
  17. [45]
    Rev Dr Arnold has had an extensive career in the political, education and community arenas. He is presently an assistant priest and a Reader in Public Ethics at St Barnabas Theological College. During his university days Dr Arnold said he was an activist against the Vietnam War and conscription, and has had significant involvement in non-violent disobedience, which led to three arrests.
  18. [46]
    He is aware of Mr Dowling’s arrests and has read his life story, which led him to the view that Mr Dowling has ‘acted politically on the basis of ethical and moral imperatives informed by his faith.’[40] Just as he, when he subsequently became a teacher, respected that the classroom was not the place for political activism, he ‘has no doubt that [Mr Dowling] would also equally recognise and respect the particular responsibilities which apply to those working with young children.’ From the information which he has, he does not consider there to be any justification for refusal of Mr Dowling’s blue card. Dr Arnold has not met the applicant and acknowledged that his opinions were based upon the material with which he had been provided.
  19. [47]
    As to the role of remorse for those who practice civil disobedience, Dr Arnold said that they accept they will pay whatever price must be paid but that being asked to be remorseful would be in effect asking Mr Dowling to recant that which motivated him. He considers that self-control and restraint are crucial in non-violent actions as it is essential to consider in advance your response to all the things that might happen in the course of the action.
  20. [48]
    Theresa Hogan, a fellow parishioner, spoke of Mr Dowling’s exemplary behaviour in his interactions with children and young people in church and social settings, and considers him a positive role model for children. She is aware of the applicant’s criminal history.[41]
  21. [49]
    Mr Dowling looks after Ms Pascoe’s youngest son on some weekends and in school holidays and supports his learning.[42] She is aware of Mr Dowling’s criminal history and considers Mr Dowling’s values and beliefs make him a great role model for her son.
  22. [50]
    Ms Toivanen works in an organisation which assists people experiencing mental health issues. She knows the applicant in a community and professional context, through his involvement in voluntary and paid engagements supporting people facing social isolation, complex trauma and different abilities and disabilities, as well as through her place of employment. She spoke of the high-quality support the applicant, as part of a team, provides to people with highly complex physical and psychosocial disabilities. Ms Toivanen has read the respondent’s reasons and is aware of the applicant’s criminal history. She considers Mr Dowling to be ‘a very generous, compassionate and gentle-natured person who is deeply committed to his values and acting in accordance with them.’[43] Positive feedback has been received by her from those whom Mr Dowling supports, and their families. She considers him suitable to hold a blue card.
  23. [51]
    These last three witnesses were not called to give evidence and for this reason the Tribunal places limited weight upon their evidence.
  24. [52]
    The respondent is not concerned by the applicant exercising his freedom of expression but said that this should not extend to breaking the law. It said that the recent nature of the applicant’s offending supports a finding that the applicant’s case is exceptional. Further, the respondent said that because of his convictions the applicant is not an appropriate role model for children and his offending behaviour raises concerns about his ability to exercise proper restraint and self-control and judge appropriate behaviour.

Consideration

  1. [53]
    The applicant alleged that the respondent made errors in its decision making. As this is a merits review, the Tribunal stands in the shoes of the decision maker and makes the correct and preferable decision by way of a fresh hearing on the merits of the evidence presented. It does not focus on any errors made by the original decision maker. Nor is it necessary to identify an error in that decision for the purposes of this review.
  2. [54]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[44]
  3. [55]
    In making this decision the Tribunal is mindful that the effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the reasons the applicant has sought the card. Conditions cannot be imposed on a blue card and once issued it is unconditional and fully transferable across all areas of regulated employment and business.
  4. [56]
    The applicant presented as an honest and reliable witness and a young man with strong convictions, who seeks to make the world a better place. The applicant said his actions were undertaken with the intention of attracting attention to his causes, with a view to making the world a better place, now and in the future, consistent with his personal beliefs. The right to protest is accepted in society and recognised, and indeed protected, by law. As observed upon sentencing, Mr Dowling was not punished because he exercised his right to free speech but because he deliberately broke the law.
  5. [57]
    The Tribunal accepts that Mr Dowling is a young man of strong faith, whose faith motivates him to support the marginalised and vulnerable in the community and to pursue activism. While the applicant maintains surprise at being convicted of wilful damage, disputing that his actions at the Toowong Cemetery warranted his conviction, it is not for the Tribunal to go behind the fact of the conviction. He has accepted the consequences of his actions.
  6. [58]
    Mr Dowling attended at Pine Gap with the intention of crossing onto prohibited land and attended at the Toowong Cemetery knowing that some of those in attendance would damage the war memorial. He demonstrated insight into the impact of his conduct in so far as it was designed to raise awareness of the issues. However, he indicated limited insight into the consequences of his actions for others, including that members of the public might be offended or upset by the actions taken at the war memorial.
  7. [59]
    Numerous of the witnesses called by Mr Dowling spoke of his commitment to his faith, his highly commendable community work, including his involvement with the Catholic Worker Movement, his significant volunteer work and his engagement with those marginalised by society and those with complex needs and disabilities. They considered him to be generous, kind, and compassionate, with a gentle nature. They spoke of Mr Dowling’s significant involvement in his church and church activities and his talent for music. Many of the witnesses had first-hand experience of his positive interactions with children and considered him a positive role model. They spoke of his interactions with young people as being based on listening to them rather than promoting himself.
  8. [60]
    Generally, the witnesses were aware of the respondent’s reasons for refusal and the applicant’s criminal history and supported his application for a blue card. They observed Mr Dowling’s ability to separate his beliefs from his work and to monitor his behaviour. The Tribunal accepts this evidence.
  9. [61]
    Many of the witnesses spoke of the applicant’s ability to work with children and his behaviour with them. The applicant said he would prioritise the wellbeing of those in his care and would discourage them from breaking the law, demonstrating insight into appropriate behaviour for, and in the presence of, children. The Tribunal finds that Mr Dowling would promote and protect the safety and wellbeing of children.
  10. [62]
    The Tribunal accepts that the offences noted are the only entries recorded on the applicant’s criminal history. The applicant has not engaged in any concerning or offending behaviour since the offending behaviour three years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case.[45] This risk factor must be considered in the context of all the relevant circumstances.
  11. [63]
    In undertaking this review the Tribunal is acting in an administrative capacity and consequently is a ‘public entity’ of the purposes of the Human Rights Act 2019 (Qld) (‘HR Act’). Thus, pursuant to s 48 of the HR Act, the Tribunal must interpret statutory provisions in a way that is compatible with human rights, and in undertaking this review is required to conduct itself in accordance with s 58 of the HR Act.
  12. [64]
    As observed above, it is not the purpose of this review and decision to impose additional punishment on the applicant for his past conduct, but rather to protect children.
  13. [65]
    This review does not constitute a retrial as the Tribunal’s role is not to determine the applicant’s guilt. Rather, the Tribunal’s function is to review the respondent’s decision that the applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for the applicant to be issued a positive notice and blue card. The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme ‘…to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[46]
  14. [66]
    As required by s 361(1) WWC Act, the hearing was held in private, which the Tribunal considers to be compatible with the human rights set out in s 31 of the HR Act.
  15. [67]
    The applicant submitted that the decision to issue a negative notice infringed his human rights, including:
    1. (a)
      Freedom of thought, conscience, religion and belief;
    2. (b)
      Freedom of expression;
    3. (c)
      Peaceful assembly and freedom of association; and
    4. (d)
      Take part in public life.
  16. [68]
    As this review comprises a fresh hearing it is not necessary for the applicant to identify an error in the decision of the respondent in order to succeed on review. As to the applicant’s human rights, the Tribunal does not cavil with the applicant’s rights outlined above. The Tribunal accepts that it is the applicant’s right to hold and to express his personal opinions. The Tribunal does not seek to interfere with the applicant’s rights of freedom of expression, religion or peaceful assembly. Rather, the matter for consideration by the Tribunal is whether the applicant’s case is exceptional such that it would not be in the best interests of children for a positive notice to be issued.
  17. [69]
    The applicant’s human rights, in particular, his rights to a fair hearing[47] and not to be tried or punished more than once[48] were considered by the Tribunal. The Tribunal has also considered the right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[49] The Tribunal is satisfied that this decision is compatible with human rights and that to the extent that there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of the HR Act.
  18. [70]
    After consideration of all of the evidence, the findings of fact, the risk and protective factors, and the relevant matters in the WWC Act, including
    s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
  19. [71]
    The parties indicated at the conclusion of the hearing that orders for deidentification or non-publication of the reasons for the Tribunal’s decision were not required. 

Orders

  1. The decision of the respondent that the applicant’s case is an exceptional one within the meaning of s 221(2) of the WWC Act is set aside and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.

Footnotes

[1]  WWC Act, s 221(2).

[2]  WWC Act, s 169.

[3]  WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’).

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 33(3).

[5]  WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’).

[6]  QCAT Act, s 19(a).

[7]  Ibid, s 20.

[8]  Ibid.

[9]  WWC Act, s 360.

[10]  QCAT Act, s 24(1).

[11]  WWC Act, s 5.

[12]  Ibid, s 6.

[13]  As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

[14]  WWC Act, s 221.

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

[16] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [42].

[17]  Ibid, [30].

[18] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[19]  Schedule 7 (definition of ‘conviction’).

[20]  WWC Act, Schedule 2.

[21]  Ibid, Schedule 4.

[22]  Ex 15, BCS 16.

[23]  Ex 2.

[24]  Ex 1.

[25]  Ex 3.

[26]  Ex 4.

[27]  Ex 14 and further submissions dated 15 May 2020.

[28]  Ex 15.

[29]  Ex 2.

[30]  Ex 1.

[31]  Ex 3.

[32]  Ex 4.

[33]  Ex 2.

[34]  Ex 3.

[35]  Ex 5.

[36]  Ex 6.

[37]  Ex 9.

[38]  Ex 10.

[39]  Ex 7.

[40]  Ex 13.

[41]  Ex 11.

[42]  Ex 12.

[43]  Ex 8.

[44]  WWC Act, s 360.

[45] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[46] WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17] (Thomas J).

[47]  HR Act, s 31.

[48]  HR Act, s 34.

[49]  HR Act, s 26(2).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 340

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    25 Aug 2020

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