SBL v Director General, Department of Justice and Attorney General
[2020] QCAT 405
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- SBL v Director General, Department of Justice and Attorney General[2020] QCAT 405
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SBL v Director General, Department of Justice and Attorney General[2020] QCAT 405
SBL v Director General, Department of Justice and Attorney General[2020] QCAT 405
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | SBL v Director General, Department of Justice and Attorney General [2020] QCAT 405 |
PARTIES: | SBL (applicant) |
| v |
| DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO: | CM002-19 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 28 October 2020 |
HEARING DATE: | 4 October 2019 |
HEARD AT: | Rockhampton |
DECISION OF: | Member Pennell |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – the applicant was previously issued with a positive notice and a blue card – the applicant was convicted of dangerous operation of a motor vehicle – the offence is not a serious or disqualifying offence within the meaning of the relevant legislation – the applicant deliberately drove her motor vehicle at a person –intention to scare that person – the applicant suffered PTSD and anxiety at the time of the offence – the applicant has undertaken counselling – mental health issues involved – whether the protective factors negate the risk factors EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – de-identifying of the proceedings undertaken by the Tribunal on its own initiative – publication of identity of applicant, witnesses and non-parties contrary to public interest Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20(1)(, s 20(2), s 24(1), s 66, s 66(2) 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 Maher & Anor [2004] QCA 492 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 John Fairfax and Sons Ltd v Police Tribunal of New South Wales [2001] NSWSC 1024 Kent v Wilson [2000] VSC 98 Perry and Brown Patents (1930) 48 RPC 200 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 TAA [2006] QCST 11 |
APPEARANCES & REPRESENTATIONS: | |
Applicant: | Self represented |
Respondent: | A Bryant, in-house Solicitor
|
REASONS FOR DECISION
Introduction
- [1]SBL applied for a review of a decision made by the respondent to issue her with a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
- [2]By way of background information, on 11 September 2013 the respondent issued SBL with a positive notice and a blue card. A later change in SBL’s police information triggered a reassessment of her eligibility to hold a positive notice and a blue card.[1] The respondent assessed that an exceptional case existed, and a negative notice was issued to her.
- [3]After the passing of a little over two years, SBL applied to have the negative notice cancelled.[2] She was invited to make submissions and provide information as to why she should be issued with a positive notice and a blue card. After assessing SBL’s case, it was the respondent’s determination that it was not in the best interests of children for a positive notice and a blue card to be issued to SBL. Therefore, the negative notice was continued.[3] SBL subsequently filed an application with the Tribunal to review that decision.
The Tribunal’s role
- [4]Because the respondent made a decision to issue SBL with a negative notice, the Working with Children Act presents an opportunity for her to apply to the Tribunal for a review of that decision.[4] In undertaking an administrative review, the Tribunal effectively stands in the shoes of the original decision maker. In matters relating to blue cards, it is incumbent upon the Tribunal to apply the principle that the welfare and best interests of children are paramount[5] and any decision reached by the Tribunal must be based on the merits of the application and the evidence before it at the time of the review hearing.[6]
- [5]After an evaluation of the available material and evidence, it is the Tribunal’s responsibility to reach the correct and preferable decision[7] in regard to SBL’s eligibility to work with children and young people. When reaching that correct and preferable decision, a discretion is afforded to the Tribunal to either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute that decision with its own decision; or set aside the respondent’s original decision and return the matter for consideration to the original decision maker with directions that the Tribunal considers appropriate.[8]
The applicant’s police information
- [6]None of the offences recorded on SBL’s police information are serious or disqualifying offences as defined within the Working with Children Act. Apart from having a minor traffic history, much of the entries on SBL’s police information relate to an incident which occurred on 30 July 2015. At about 3:00pm on that day, SBL was in a fast food restaurant waiting for her order when she got involved in an argument with another patron (‘TVP’). After collecting her food order, SBL left the restaurant and walked to her vehicle which was parked in the car park. As she got into her vehicle, she saw TVP standing on the footpath outside the restaurant with her mobile phone. She was video recording SBL.
- [7]After leaving the parking bay, SBL accelerated her vehicle and drove at speed towards where TVP was standing. The front wheels of the vehicle mounted the gutter and the vehicle collided with TVP’s left shin, just below the knee. SBL reversed her vehicle and left the area. She was seen waving out of the vehicle’s window at TVP as she left. TVP subsequently made a complaint to police.
- [8]On 10 August 2015, SBL was apprehended by police and taken into custody. During an interview, she admitted to police that when TVP left the restaurant and started to video record her, she decided to drive her vehicle towards TVP to scare her. She had full control of her vehicle at the time and knew exactly what she was doing. She remembered feeling the front wheels mount the gutter and heard the axle scrape on the ground. However, she denied that her vehicle came into contact with TVP’s leg.
- [9]SBL was prosecuted for two offences arising from this incident. The most serious charge was operating her vehicle in a dangerous manner. The other charge was assaulting TVP with her vehicle (common assault), which was later discontinued when the police offered no evidence to that charge.[9] SBL suggested the charge was withdrawn because video evidence showed no contact by her vehicle with TVP, although there is no information before the Tribunal confirming why that charge was withdrawn.
- [10]
- [11]In respect to operating her vehicle in a dangerous manner, she pleaded guilty and was placed on probation for 18 months.[12] No conviction was recorded. Her licence to drive a vehicle was disqualified for a period of six months.
- [12]The only other entry in SBL’s police information refers to a fine she received for exceeding the speed limit on 13 November 2018. Notwithstanding the entries in the police information, on 20 December 2018 SBL filed her application to review the respondent’s decision.[13] In that application she wrote –
I’m not the person they are making me out to be. I have suffered for my actions on so many levels. I have never ever been in trouble with the law – not even speeding fines for 20+ years.[14]
- [13]A closer inspection of SBL’s traffic history reveals that a mere five weeks prior to submitting her application to the Tribunal, she was issued an infringement notice for speeding. Although the erroneous content of her comment was noted, it was not an overall determining factor why the ultimate decision was reached.
An ‘exceptional case’
- [14]The paramount consideration in this matter is the welfare and best interests of children[15] and every child is entitled to be cared for in a way that protects them from harm. Those well known values are supported by a legislative objective which promotes and protects the rights, interests and wellbeing of children in Queensland.[16] The focus in this matter is on protection of children from future harm within places of employment, not the placing of additional punishment upon SBL because she has acquired a police record. To do that would otherwise punish her twice.[17]
- [15]Notwithstanding that the offences committed by SBL are not defined within the legislation as serious or disqualifying offences, once SBL’s police information became known to the respondent, the respondent was obligated to have regard to a number of factors relating to that information.[18] After considering the circumstances of the information, the respondent was satisfied that the criteria of an ‘exceptional case’ existed and was obligated to issue her with a negative notice.[19]
- [16]The overarching consideration in child related applications pursuant to the Working with Children Act is whether or not an exceptional case exists. Whilst no definitive description is given within the legislation of what defines an ‘exceptional case’, the courts have found the term to mean ‘unusual, special and out of the ordinary course’.[20] Various courts have determined it would be unwise to lay down any general rule about what an exceptional case is, and discretion should be used. Each case should be considered on its own merits and facts.[21] Therefore, each case must be examined in the light of the legislation, the legislative intention and the interests of the parties involved and it would be wrong and undesirable to attempt to theoretically define what the relevant factors are.[22]
Discussion
- [17]SBL was born, raised and educated in Victoria. She is the oldest of four siblings and comes from a well balanced and close knit family. From the age of 21 through to her early 30s, she travelled extensively overseas. She visited 32 separate countries and lived in England, Ireland, Spain, Canada and the Netherlands.
- [18]During the last 18 months she lived overseas, she was subjected to significant mental and verbal abuse by her then partner. He physically assaulted her and caused some major injuries. He later broke into her house and over several hours he repeatedly raped her. This prompted her return to Australia. Understandably, that attack troubled her greatly and as a coping mechanism she turned to alcohol. She described herself as a heavy drinker during that period but has since rid herself of that habit.
- [19]For some time SBL operated her own business in Victoria, which she sold prior to moving to Queensland in July 2013. After relocating to Queensland, she became involved with Variety Queensland. This is a charity organisation that assists children and their families who are facing challenges through illness or are otherwise disadvantaged or living with special needs.
- [20]At present, she is unemployed and receives a disability support pension. Notwithstanding her application suggesting she required a positive notice and a blue card because she was a volunteer with Variety Queensland, SBL told the Tribunal she did not need a positive notice and a blue card because she would not be engaging in employment which involves children. She just wanted the imposition of the negative notice against her removed.
- [21]SBL said she felt the respondent discriminated against her because of her mental health issues. She explained the incident involving TVP happened because she was under extreme pressures at that time. She had fallen upon hard times, her accommodation was no longer available, she had been homeless and had couch surfed for six weeks. Her hours of work had diminished from 60 to 70 hours per week down to 15 hours. When initially confronted by TVP inside the fast food restaurant, this heightened her PTSD. That information is somewhat supported by the sentencing Magistrate’s comments –
I appreciate that you were under significant personal stress at the time. And I accept that in that situation that you were then in, you had a limited ability to be able to adequately process and deal with the situation at hand and that it would have blown things out of proportion for you.[23]
- [22]Immediately after the incident involving TVP, she returned to Melbourne where she consulted with her doctor. The medical advice provided to her centered on her obtaining a mental health plan when she returned to Queensland. When she came back to Queensland, the mental health plan was obtained, and she is now actively managing her mental health. She returned to counselling sessions to help deal with what happened and will continue counselling for an unforeseen length of time, possibly forever. Her goal is to return to a position where she can again work and travel.
- [23]In support of SBL, there were numerous references provided on her behalf. Each of those references positively spoke of her character and ability to interact with adults and children. Although I accept the positive comments about SBL, the test to be applied is, would the issuing of a positive notice and a blue card to her be in the best interest of children. That test has to be weighed against the available evidence, including the positive comments made on her behalf.
- [24]Favourable to SBL were some features of the medical reports she provided. In a very brief report, SBL’s treating psychiatrist said that she had a working diagnosis of complex PTSD.[24] Her condition is fully diagnosed, treated and stabilised, and unlikely to significantly improve with or without reasonable treatment inside the next two years. The psychiatrist went on to opine this will have an impact on SBL’s ability to work eight hours or more per week for the next two years.[25]
- [25]The author of SBL’s mental health treatment plan[26] reported that SBL had consulted with a psychologist in Melbourne sometime in 2012 for treatment for PTSD. She also attended sexual assault counselling (was raped in 2006) and had a mental breakdown a few years ago. At the time of the plan being compiled, SBL locked herself in the house for days at a time and was not able to go outside. She was scared of people and did not trust anyone. She was very anxious, suffered bad nightmares, could not control her emotions and was having blackouts due to high stress levels. In regard to her history of drug and alcohol use, it was reported she had not been drinking as much alcohol recently but will consume alcohol which assisted her to cope with extreme anxiety. The plan noted that although SBL had made some progress, she required further counselling sessions.[27]
- [26]In July 2016, SBL’s treating psychologist wrote a short three paragraph report. He treated her in April 2016 after she was referred for treatment relating to anxiety disorders. Her diagnosis was severe anxiety and moderate depression with a probable diagnosis of PTSD.[28]
- [27]The respondent was concerned that notwithstanding SBL’s treatment regime for her mental health from three different professionals, she had not provided a recent comprehensive health report. A further concern related to the absence of any independent material specifically speaking to a number of matters, including how she manifested preventative strategies to manage her mental health. Nor is there any independent material addressing whether or not she has insight into her involvement in the incident with TVP.
- [28]In my view, insight is a significant determining component for an assessment of whether or not the test for an exceptional case has been met. Afterall, the Tribunal in TAA [2006] QCST 11 at [97] (‘TAA’) said that insight is a protective factor, particularly with regard to the effect of a person’s actions upon children. That is –
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.
Conclusion
- [29]SBL provided references from a number of people, although no witnesses were made available to give personal evidence at the hearing. Only three of those character references indicated any awareness of SBL’s police information, and it is not entirely clear what they knew of the incident involving TVP and the surrounding circumstances. Only two of the character witnesses indicated any awareness that SBL suffered from mental health issues. None of the three professional witnesses who provided material indicated any knowledge of the police information.
- [30]The Tribunal has to be satisfied of the existence of protective factors which sufficiently mitigate any concerns of a risk to children. In regard to situations involving applicants in blue card matters who experience mental health issues, I am of the view that if those mental health issues have impacted to the point where the applicant has displayed concerning or aggressive behaviour, the Tribunal is entitled to know what, if any, is a risk of the repetition of that concerning behaviour. That is important information which is required for any assessment as to whether the risk of harm to children is sufficiently negated so that a conclusion can be reached that there was little or no likelihood of a risk to children.
- [31]It is not sufficient for any applicant to rely solely upon the fact that they have attended counselling to address any concerns about their ability to cope with stressful situations. But rather, there has to be evidence of counselling greatly reducing the risk of the applicant being susceptible in stressful situations. That is, with respect to SBL, has the counselling enabled her to identify the triggers of concerning behaviour and enabled her to cope and overcome any urge to act in an aggressive or inappropriate manner. Although the evidence provided by SBL satisfies the question as to whether or not she has attended counselling, the evidence does not negate the required criteria as just explained.
- [32]The object, purpose and nature of the provisions of the Working with Children Act support a precautionary approach to making decisions on blue card matters. It is almost inherently impossible to predict any future risk with certainty, however at times the best indicator of future behaviour is past behaviour. I accept that although SBL’s past concerning behaviour was not directly child related with regard to her interactions with TVP, there still exists a concern of her being able to identify and appropriately manage the triggers for any concerning behaviour.
- [33]The principle reached in TAA regarding insight is particularly important to SBL’s circumstances. Immediately after an argument with TVP, she became agitated when TVP video recorded her. She then used her vehicle as a weapon. This all occurred against the backdrop of the mental health issues she suffered at the time. Notwithstanding the passage of time, the evidence does not definitively show any display of insight by SBL into her use of the vehicle against TVP. But rather, she places emphasis on the withdrawal of the common assault charge because there apparently was no actual contact between her vehicle and TVP.[29]
- [34]The issuing of a positive notice and a blue card is unconditional and fully transferable. That is, the holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. It is SBL’s position that she does not seek a positive notice and a blue card, she only seeks the removal of the negative notice. In my view, the removal of a negative notice has the same effect as saying that a person is eligible to be issued with a positive notice and a blue card.
- [35]Although I am satisfied that some protective factors do exist which favours SBL, I am not satisfied that those protective factors negate the risk factors. Whilst I accept that she has taken some steps to address her mental health issues, she would require the benefit from further psychological counselling on a continual and protracted basis prior to further consideration for a positive notice and a blue card.
- [36]At this particular time, the circumstances of this matter suggest that SBL is not suitable to be issued with a positive notice and a blue card unless she is able to positively address those concerns that I have already identified. The paramount principle relating to the welfare and protection of children clearly overrides and rejects SBL’s argument that her case is not an exceptional one.
- [37]Having regard to the merits of this application and the evidence before the Tribunal at the time of the hearing,[30] I am satisfied that the correct and preferable decision is to confirm the decision of the Director General, Department of Justice and Attorney General dated 28 November 2018 to issue SBL with a negative notice.
Non-publication decision
- [38]Although the Working with Children Act[31] provides that blue card hearings are to be held in private,[32] the legislation does not provide a discretion for the de-identification of any particular party. That discretion is afforded to the Tribunal pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).[33]
- [39]Notwithstanding openness and transparency are the characteristics of the principle of open justice, that principle can only succeed if there is fair and accurate reporting of what takes place in the Tribunal.[34] This principle is overcome by the provisions of the QCAT Act. The Tribunal may de-identify a party if it considers the interests of justice warrant it, and an important point is, any decision to de-identify the proceedings should not be exercised lightly. The discretion should only be exercised if the Tribunal considers the order is necessary after assessing all the information.[35]
- [40]In this matter, there is evidence before the Tribunal of a sexual offence committed upon SBL for which the alleged perpetrator has not been prosecuted. There is also evidence relating to SBL’s mental health which has been exacerbated by the memories of that traumatic event. Having regard to those features, I am satisfied it would not be in the interests of justice for SBL to be identified. Therefore, pursuant to section 66(1) of the QCAT Act, the publication of the contents of any document or other thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness is prohibited to the extent that it could lead to the identity of SBL, or any member of her family or any non-party to the proceedings.
Footnotes
[1]On 11 August 2015.
[2]The application to cancel the negative notice was made on 19 July 2018.
[3]28 November 2018.
[4]Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353, 354. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.
[5]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
[9]On 8 December 2015.
[10]On 23 May 2016
[11]31 May 2016.
[12]On 3 August 2016.
[13] SBL’s application was dated 18 December 2018 and received by the Tribunal on 20 December 2018.
[14]SBL’s application filed on 20 December 2018 at page 4.
[15]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6.
[16]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.
[17]Commissioner for Children and Young People Bill 2000 (Qld), second reading speech, Queensland Parliament Hansard, 14 November 2000 at page 4391.
[18]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.
[19]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2).
[20]Kent v Wilson [2000] VSC 98, [22] referencing the Oxford English Dictionary.
[21]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] per Philippides J endorsing the approach taken by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 in adopting the warning of Luxmore J in Perry and Brown Patents (1930) 48 RPC 200.
[22]Kent v Wilson [2000] VSC 98, [22].
[23]Respondent’s material at BCS-68. Sentencing remarks of Magistrate Clarke in the Gladstone Magistrates Court on 3 August 2016.
[24]The report dated 4 July 2018 and comprising two paragraphs.
[25]Respondent's material at BCS-57.
[26]Dated 23 May 2017.
[27]Respondent's material at BCS-58 to BCS-59.
[28]Respondent's material at BCS-61.
[29]Although there may have been a myriad of reasons why the assault charge was discontinued, perhaps it is misconstrued by SBL that there is a requirement for actual contact to occur for the elements of assault to be satisfied. This is not so. The law does not require actual touching by one person to another for an assault to occur. The elements of an assault offence can be fulfilled by either the actual, attempted or threatened application of force from one person to another: See Criminal Code Act 1899 (Qld), s 245.
[30]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Brennan J
[31]The enabling Act.
[32]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361.
[33]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.
[34]John Fairfax and Sons Ltd v Police Tribunal of New South Wales [2001] NSWSC 1024, [23].
[35]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2).