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FGH v Director-General, Department of Justice and Attorney-General[2020] QCAT 401

FGH v Director-General, Department of Justice and Attorney-General[2020] QCAT 401

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

FGH v Director-General, Department of Justice and Attorney-General [2020] QCAT 401

PARTIES:

FGH

(applicant)

v

director-General, Department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML400-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

19 October 2020

HEARING DATE:

10 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General 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 (Qld) is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
  1. These reasons are to be published in a de-identified format only.

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 working with children clearance 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, s 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, s 580

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

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

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

Re TAA [2006] QCST 11

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

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

G Yates

REASONS FOR DECISION

Background

  1. [1]
    The applicant is a 35-year-old male, who held a blue card between 2006 and 2015, but allowed it to lapse when his parents ceased fostering children. He applied for a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to enable him to work as a learn to swim teacher.
  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 told the Tribunal that due to the issues he was dealing with at the time he did not provide material in response to this request.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice (as it was then called), 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 4 October 2019 and FGH 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.
  6. [6]
    FGH is not a disqualified person and sought review of the decision within the prescribed period.

The legislative framework

  1. [7]
    Amendments to the WWC Act came into effect on 31 August 2020. The transitional provisions of the WWC Act provide that in undertaking this review the Tribunal must apply the amended WWC Act.[5]
  2. [8]
    The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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] 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]
  3. [9]
    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. [10]
    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. [11]
    Section 221 of the WWC Act provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division 4 and sections 199, 295(1) and 296.

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance, the chief executive must issue a negative notice to the person.
  1. [12]
    For the present purposes, a working with children clearance 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 working with children clearance to be issued.
  2. [13]
    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.[14]

  1. [14]
    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. The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[15]
  2. [15]
    ‘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. [16]
    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.[16] 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.[17]

Consideration of s 226(2) of the WWC Act

  1. [17]
    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. [18]
    The applicant has one conviction for ‘serious assault person over 60’ and one conviction for ‘using a carriage service to menace, harass or cause offence’.

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

  1. [19]
    None of the offences on the applicant’s criminal history are serious offences[18] or disqualifying offences[19] 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. [20]
    The applicant’s offending occurred between December 2015 and July 2016.

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

  1. [21]
    The police brief in relation to the assault charge[20] indicates that the applicant was at a restaurant with work colleagues and became involved in a verbal argument with some of them. As a result of this behaviour the manager of the restaurant asked him to leave and the applicant refused. A security guard then asked him to leave. He did not leave and proceeded to verbally abuse the security guard and then pushed her in the chest and throat. The applicant was restrained by restaurant patrons until police arrived. The applicant was not cooperative with police. Following inquiries at the restaurant the applicant was arrested and taken into police custody.
  2. [22]
    While the applicant told the Tribunal that he did not have a good recollection of the events he said he disagreed with some of the information contained in the police brief. In particular, he said that he had a verbal argument with one colleague, that he pushed the security guard in the chest (not the throat) and he was restrained by work colleagues.
  3. [23]
    While the applicant pleaded guilty on the basis of stated facts it is not apparent on the material available to the Tribunal what those facts were, except to indicate that there was agreement on the facts and that there were ‘possibly as few as 2 pushes’.[21] The reasons of the District Court on appeal against sentence in relation to the later offence[22] indicate that details put before the Magistrate were that:

… [the applicant’s] health had deteriorated and he [had] taken substantial sick leave for treatment and recovery. There was a widespread suspicion at work that he was malingering. He grew increasingly concerned people were gossiping about him. Matters came to a head at the office Christmas party, where a group of people confronted him about it and he was forced to disclose the real nature of his condition to defend himself.

  1. [24]
    The decision of Her Honour on appeal in relation to sentencing for using a carriage service to menace, harass or cause offence indicated that the circumstances of the offending were:
    1. (a)
      Posts were created on the applicant’s two websites and amended over a few days;
    2. (b)
      They named 10 people and set out extremely personal and sensitive information about them including matters related to their health and sexuality;
    3. (c)
      Some of the details were removed after five days. Others remained on the internet for a month, at which time FGH removed all of it, apparently of his own volition; and
    4. (d)
      It was conceded that there was no evidence any of the 10 people were aware of the post. It could not be said whether anyone had seen the post, only that there was that potential.[23]
  2. [25]
    The people named on the website were individual staff members of the applicant’s previous employer.
  3. [26]
    There is nothing to indicate that the applicant’s offending was child related or that children were present in the course of the offending conduct.

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. [27]
    In relation to the assault, the Magistrate took into account FGH’s early plea, PSY’s assessment of FGH’s distress and remorse following the assault, that the assault was out of character, that the applicant had significant family support, that the applicant was affected by a combination of prescribed medication for depression and alcohol, that FGH had taken steps to address issues related to the offending and that he did not know the complainant was 61 years of age. He was ordered to pay a fine of $500, with no conviction recorded.
  2. [28]
    At first instance the applicant pleaded guilty to the offence of using a carriage service to menace, harass or cause offence. He was convicted and fined $950. On appeal against the severity of the sentence no conviction was recorded, and he was placed on recognisance of $950 with a two-year good behaviour period. In the decision on appeal Her Honour noted that:
    1. (a)
      The was evidence of remorse, in that he shut down the website, pleaded guilty at the earliest opportunity, and had endeavoured to rehabilitate himself;
    2. (b)
      He was 31 years old at the time of the offence, with a good work history. After a period of unemployment following the offence, he recommenced employment;
    3. (c)
      He understood the need for ongoing long-term therapy and prior to the hearing of the appeal had been ‘working conscientiously towards better self-care’; and
    4. (d)
      Relying upon PSY’s letter of 20 July 2017, that the applicant’s ‘declining mental health significantly impaired his judgement and lessened his moral culpability for the offence.’

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

  1. [29]
    No information was or received under these provisions.

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. [30]
    Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.

The material and the evidence

  1. [31]
    The applicant provided the Tribunal with his life story, statements from his psychiatrist dated 21 April 2020,[24] 21 October 2019,[25] 20 July 2017[26] and 9 February 2016,[27] statements from his GP dated 16 March 2020[28] and 9 February 2016[29] and his mother dated 28 October 2019,[30] 20 July 2017,[31] and 10 February 2015.[32] There is also a statement from his mother dated 11 August 2019[33] as provided to the respondent in the course of the consideration of his application. These witnesses were not available for cross-examination. The applicant was offered the opportunity to adjourn the proceedings to a date that would enable his witnesses to give evidence, but he declined the offer, and expressed the desire to proceed with the hearing without the benefit of that oral evidence. The applicant made oral submissions in support of his application.
  2. [32]
    While some of the reports and statements were not prepared for this review but for other court proceedings, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[34] The Tribunal considers these statements and reports reflective of the circumstances at the time they were written.
  3. [33]
    The respondent provided the Tribunal with its reasons for decision, a bundle of documents paginated BCS-1 to BCS-52[35] and documents obtained pursuant to notices to produce paginated NTP-1 to NTP-61.[36] The respondent made oral submissions and provided written submissions.
  4. [34]
    The applicant lives at home with his parents and his sister, a vulnerable person. He has two foster siblings and two adopted siblings. After completing high school, he maintained full time employment while undertaking university studies.
  5. [35]
    2015 was a tumultuous time for FGH and caused him to be vulnerable. He reunited with his birth mother which he said was traumatic. He commenced medication for his chronic illness which was confronting as he realised that he would be taking medication for the rest of his life. While he accepts responsibility for his offending behaviour, he acknowledged that he was not managing well for a period of about nine months, which encompassed his offending and that his mental health was significantly impaired during this time.
  6. [36]
    FGH said that as a result of the first incident, which occurred while out at a restaurant with work colleagues, he was dismissed from his employment. Following the assault his employer investigated the incident. He found the content of the transcripts of the interviews of his previous work colleagues distressing as he considered them to be his friends. His victim in the second offence was his previous employer.
  7. [37]
    He found this period from the first to the second offence stressful. As a result of all these matters, he made poor decisions, including posting information about his colleagues on the internet.
  8. [38]
    He told the Tribunal of his understanding of the distress his actions caused his victims, his parents, his work colleagues and the other patrons in the restaurant and expressed remorse for this. As a result of his conduct his work colleagues endured a workplace investigation which placed a burden on his workplace and his colleagues and took them away from their primary focus of protecting the community, for which he expressed remorse.
  9. [39]
    FGH indicated that he experienced distress as a result of the various court processes and was aware of not wanting to put himself in that position again. He learnt from these events the need to establish appropriate boundaries in a work environment and not to put personal information on social media. In the future he would take time to make better decisions including considering the impact of his actions on others and not make decisions at a time of personal distress.
  10. [40]
    FGH said he continues to engage with PSY and his long-term GP and enjoys the support of his parents and his adopted and foster siblings. He increased the regularity of his consultations with PSY following his offending and that in consultation with PSY he has taken steps to establish appropriate personal boundaries. FGH expressed an understanding of the link between his physical health and his mental health, understands his treatments and takes responsibility for it. He expressed commitment to ensuring maintenance of his mental health including continued consultation with his doctors, to his further studies and to not further offending.
  11. [41]
    Recognising that his particular treating team may not always be available to him, he has in place strategies in the event that they are not available.
  12. [42]
    The applicant said that some of the triggers for his past conduct are no longer triggers. He has strategies in place to deal with the remaining triggers now which include strategies to assist him in decision making, regular exercise, establishing personal boundaries and the support of his family. He manages the stresses in life and his health with the support of medical professionals and his parents and siblings.
  13. [43]
    In 2019 FGH’s birth mother passed away unexpectedly. FGH found her body and was subsequently involved with the police inquiry and coronial inquiry into her death. FGH explained that these events coincided with the respondent’s request for submissions about his application. He accepted that as he did not provide information in response to the respondent’s invitation, it had limited information upon which to base its decision.
  14. [44]
    The applicant’s mother, SS, and her husband were foster parents for over 30 years. SS was aware of the applicant’s offending, with some of the statements provided to the Tribunal being her statements to the courts in relation to those charges. As FGH lives at home with his parents and adopted sister, SS has the opportunity to observe FGH daily. She spoke of the positive relationship FGH has with his foster sister also living at home and considers FGH a positive role model for children, having observed his interactions with the many children who have been in their household over the years. She said FGH is deeply remorseful for his offending conduct and expressed the opinion that his actions were out of character.
  15. [45]
    She acknowledged the difficulties FGH experienced at the time he reunited with his birth mother and was dealing with his chronic health condition. However, she observed that by October 2019, FGH had been employed full time since March 2018, was committed to his personal and professional wellbeing, was committed to regular engagement with medical professionals to support his mental health and had commenced further studies.
  16. [46]
    PSY has been the applicant’s treating psychiatrist since April 2012 and has consulted with him on a regular basis since that time. The Tribunal has been provided with a number of reports by PSY. While they were not all prepared for the purposes of these proceedings, they are useful as they provide timely information in relation to FGH’s offending. PSY had read the respondent’s reasons.
  17. [47]
    PSY considers the applicant very conscientious with attendance at his appointments. She consulted with him four days after the first offence, at which time she observed him to be distressed recalling the incident and his emotional state leading up to it. She indicated that due his intoxication at the time of the assault his recollection was patchy but that he was remorseful for and distressed by his actions. At the time she also indicated FGH received significant emotional and practical support from his parents. She had been treating FGH for four years at this time and considered that his actions with the security guard were out of character for him, based on her knowledge of him and information provided by his family. She indicated that the medication he was taking for depression may have adversely reacted with the alcohol he consumed on the night.
  18. [48]
    PSY provided a report dated 20 July 2017 for the purpose of the Court’s consideration of FGH’s appeal against his sentence in relation to the second offence. She indicated that FGH showed evidence of deteriorating mental health, with substance abuse, impulsive behaviour, and heightened sensitivity to the comments of others in 2015/2016 and that in mid-June to early July 2016 both she and FGH’s GP were on leave. She also considered that FGH’s substance abuse, state of extreme distress and irregular compliance with his anti-depressant medication contributed to his behaviour. At that time, she said he was remorseful and had made some progress in terms of more effective strategies to deal with impulse control. At that time he was maintaining his physical health, mindful of his chronic illness.
  19. [49]
    In October 2019, PSY indicated that she continued to consult regularly with FGH who she considered had managed life challenges very successfully for the previous two years.
  20. [50]
    In PSY’s report for the purposes of these proceedings,[37] she indicated that she considers FGH has developed insight into his behaviours and its impacts on others and is remorseful for it. She identified risk and protective factors for the applicant as well as preventative strategies in place for the applicant. PSY confirmed FGH’s support network, including professional support and his family and opined that FGH had experienced life events since his offending, including the death of his biological mother, and managed them appropriately, with the support of his established network.
  21. [51]
    GP has been FGH’s general practitioner since 2010. He had read the respondent’s reasons and provided a report to the Court in relation to the assault charge. GP indicated that FGH expressed remorse for the assault which he considered contrary to FGH’s usual character. He confirmed the applicant’s engagement with his medical support team and the support of the applicant’s family. He opined that FGH has insight into his triggers and has developed skills to manage those triggers if they re-presented. He confirmed PSY’s opinion of FGH’s management of life challenges since his offending.
  22. [52]
    The respondent argues that in the absence of oral evidence the Tribunal should treat the evidence of the applicant’s witnesses cautiously. Further, it says that there is insufficient evidence of FGH’s protective factors and this combined with the recent nature of the applicant’s offending supports a finding that the applicant’s case is an exceptional case.

Consideration

  1. [53]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[38]
  2. [54]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.[39]

  1. [55]
    FGH presented as an honest and reliable witness, who sincerely regrets his past behaviour. While the Tribunal did not have the benefit of the cross-examination of FGH’s mother or his doctors, to the extent their evidence is corroborative of FGH’s evidence and of each other, the Tribunal accepts it.
  2. [56]
    The applicant, his mother and his medical support considered that the applicant was vulnerable at the time of his offending behaviour. This vulnerability was attributable to a number of factors including his chronic health condition, medication he was taking to treat this, the mental and physical side effects of this medication and its interaction with alcohol and reuniting with his birth mother. These factors contributed to poor decision making by the applicant resulting in his offending behaviour.
  3. [57]
    Since that offending conduct, most recently in July 2016, the applicant said he now better manages life’s stressors. Further, he said that he manages his mental and physical health with the support of his long-term medical support team, and his supportive family, including his parents, siblings and his birth mother, until her passing in April 2019. He exercises regularly, recognising its importance in maintaining his health. The applicant has undertaken further study since his offending and has been in full time employment again since March 2018. He most recently dealt with the passing of his birth mother in a manner which his psychiatrist indicated was, in her opinion, handled appropriately. The Tribunal accepts this evidence.
  4. [58]
    The applicant professes remorse for his offending conduct, and this is confirmed by his mother, his psychiatrist and his GP. His has developed insight into the impact of his conduct upon his victims, his family, and the community. The Tribunal finds that the applicant has demonstrated genuine remorse and insight into his offending behaviour.
  5. [59]
    The Tribunal accepts that the applicant appreciates that his mental health was a significant contributing factor to his behaviour. The applicant has made a regular commitment to counselling to support his mental health. This commitment is confirmed by SS, GP and PSY. GP and PSY also attest to his current progress and the strategies he has implemented to mitigate further risk. The Tribunal finds that the applicant has developed insight into his health, and the need for him to continue to be adherent to medical treatment.
  6. [60]
    The Tribunal accepts that the offences noted are the only entries recorded on the applicant’s criminal history. Until the offending in 2015 he had no criminal history. The applicant has not engaged in any concerning or offending behaviour since the offending behaviour more than four years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case.[40] This risk factor must be considered in the context of all the relevant circumstances.
  7. [61]
    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.
  8. [62]
    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.
  9. [63]
    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 working with children clearance. 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’.[41]
  10. [64]
    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.
  11. [65]
    The applicant’s human rights, in particular his rights to a fair hearing[42] and not to be tried or punished more than once,[43] 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 bests interests, because of being a child’.[44] 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.
  12. [66]
    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.
  13. [67]
    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 working with children clearance to be issued.

Non-publication

  1. [68]
    Pursuant to s 66 of the QCAT Act, the Tribunal may make non-publication orders. Due to the nature the evidence in these proceedings, including in relation to the health and mental health of the applicant, the Tribunal prohibits the publication of anything that may identify, or be likely to identify the applicant, any complainants and any witnesses for the applicant.
  2. [69]
    Accordingly, these reasons have been de-identified.

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), s 33(3) (‘QCAT Act’).

[5]WWC Act, s 580.

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

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

[16]Ibid, [30].

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

[18]WWC Act, s 15.

[19]Ibid, s 16.

[20]Ex 11, BCS 17.

[21]Ex 11, BCS 52.

[22]Ex 13.

[23]Ex 13.

[24]Ex 2.

[25]Ex 3.

[26]Ex 4.

[27]Ex 5.

[28]Ex 6.

[29]Ex 7.

[30]Ex 8.

[31]Ex 9.

[32]Ex 10.

[33]Ex 11 BCS 32.

[34]QCAT Act, s 28.

[35]Ex 11.

[36]Ex 12.

[37]Ex 2.

[38]WWC Act, s 360.

[39][2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

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

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

[42]HR Act, s 31.

[43]HR Act, s 34.

[44]HR Act, s 26(2).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 401

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    19 Oct 2020

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
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 Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
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
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
2 citations
Jump To
Cite 1 - [2016] QCAT 210
Cite 2 - [2016] QCAT 210
Kent v Wilson (2000) VSC 98
1 citation
Jump To
Cite 1 - (2000) VSC 98
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
2 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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