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RAH v Director-General, Department of Justice and Attorney-General[2020] QCAT 406

RAH v Director-General, Department of Justice and Attorney-General[2020] QCAT 406

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RAH v Director-General, Department of Justice and Attorney-General [2020] QCAT 406

PARTIES:

RAH

(applicant)

v

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML138-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

21 October 2020

HEARING DATE:

17 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 11 March 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed;
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses and any relevant child;
  1. Accordingly, these reasons have been de-identified.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – 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 – application for review – where applicant has conviction – where not categorised as serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant has charges for serious and disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant was found not guilty by a jury – 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, 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, 580, Schedule 7

Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28

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 and 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

APPEARANCES &

REPRESENTATION:

Applicant:

A Stolar of Stolar Law Pty Ltd

Respondent:

D Taylor

REASONS FOR DECISION

Background

  1. [1]
    The applicant, a 45-year-old male, was issued with positive notices and blue cards under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), in 2012 and 2015. There was a charge in the applicant’s police information which caused the respondent to reassess the applicant’s eligibility to hold a positive notice and blue card and on 13 July 2018, as a result of this reassessment, the applicant was issued with a negative notice.
  2. [2]
    The applicant later applied to cancel the negative notice to enable him to complete the placement component of his studies and to engage in future employment. The respondent proposed to refuse the application, so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant.
  3. [3]
    On 11 March 2019, the respondent advised of its decision to refuse to cancel the negative notice. 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.
  4. [4]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[1] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[2] within the prescribed 28-day period.[3] 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. [5]
    RAH is not a disqualified person and sought the review of the decision within the prescribed period.

The legislative framework

  1. [6]
    Pursuant to amendments to the WWC Act which came into effect on 31 August 2020, in undertaking this review the Tribunal must apply the amended WWC Act.[4]
  2. [7]
    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.[5] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[6] 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.[7] 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.[8] 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.[9]
  3. [8]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[10] The principles under which the WWC Act is to be administered are:
  1. (a)
    the welfare and best interests of a child are paramount;
  1. (b)
    every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[11]
  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.[12]
  2. [10]
    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. [11]
    As the applicant has a conviction for an offence other than a serious offence and charges for a disqualifying offence which have been dealt with other than by a conviction, 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. [12]
    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.[13]

  1. [13]
    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.’[14]
  2. [14]
    ‘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. [15]
    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.[15] 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.[16]

Consideration of s 226(2) of the WWC Act

  1. [16]
    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. [17]
    For the purposes of the WWC Act the applicant has a conviction for ‘common assault – domestic violence offence’ and two charges for rape.
  2. [18]
    On 15 November 2017, in the Brisbane District Court, a jury found the applicant not guilty of both charges of rape.[17] However, Parliament intended that charges on a person’s criminal history be taken into account in determining a person’s suitability to work with children. Accordingly, the Tribunal is able to take into account charges for an offence, and any relevant surrounding circumstances.

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

  1. [19]
    While the assault offence is not categorised as either a serious offence[18] or a disqualifying offence[19] under the WWC Act, 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.
  2. [20]
    Rape is now categorised as both a serious offence[20] and a disqualifying offence[21] under the WWC Act, reflecting the gravity with which Parliament considers offences of this nature.

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

  1. [21]
    The applicant’s alleged offending occurred in May 2016 and the offending occurred in June 2017.

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

  1. [22]
    The applicant pleaded guilty to the assault charge. The relevant transcript of proceedings[22] indicates that the applicant and the complainant, EE, had a verbal argument over parenting duties. EE went outside and the applicant followed her. While holding his six-month-old child in one hand, he slapped the complainant twice and punched her once because she left the door open.
  2. [23]
    This behaviour raises concerns about the applicant’s ability to exercise restraint, utilise appropriate conflict resolution strategies and deal with difficult and stressful situations appropriately, including in the presence of children. The material reflects poorly on the applicant’s ability to provide a safe and protective environment to children in his care.
  3. [24]
    Following this assault, in June 2017, the Court granted a protection order naming the applicant as the respondent and EE and a child as protected persons. The order requires that RAH must be of good behaviour towards EE and the child, must not commit domestic violence against them and must not expose the child to domestic violence. The order remains in force until 28 June 2022.[23]
  4. [25]
    The applicant was found not guilty of the two 2016 rape charges. It was alleged, and the applicant agreed before the Tribunal, that:
    1. (a)
      he and the complainant made contact through a social dating application;
    2. (b)
      they exchanged messages and arranged to meet in person;
    3. (c)
      prior to meeting the applicant and the complainant had an exchange of messages;
    4. (d)
      prior to meeting the complainant advised the applicant that recent pelvic abdominal surgery meant that she could not have sexual intercourse for a few more weeks;[24] and
    5. (e)
      that they met at a café and then went for a drive to a small grassed embankment.
  5. [26]
    RAH said that while there he performed oral sex on the complainant and had sexual intercourse with her, both of which he said in evidence in the trial and before the Tribunal, were consensual. The complainant said at the trial that she did not consent to oral sex or sexual intercourse with the applicant.[25]
  6. [27]
    On 8 July 2016, the Office of the Health Ombudsman advised the applicant of its intention to conduct an investigation relating to the rape charges. Conditions were imposed on the applicant’s student nurse registration and an interim prohibition order was issued.
  7. [28]
    Upon the applicant being found not guilty of the charges the Health Ombudsman’s Office advised the applicant that the conditions on his registration were removed and the interim prohibition order was revoked on the basis that RAH was found not guilty of the charges of rape and they were no longer necessary to protect public health or safety, and its investigation was closed.[26] The Tribunal observes that the Office of the Health Ombudsman is concerned with a legislative regime which is different to that which concerns the Tribunal in these proceedings.
  8. [29]
    The nature of the offending and the charges raise concerns about the applicant’s suitability to hold a blue card.

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. [30]
    The applicant was fined $600 for the domestic violence offence, with no conviction recorded. As the Court accepted the applicant’s guilty plea this is a conviction for the present purposes. The sentencing Magistrate observed that the applicant pleaded guilty and had not been in trouble before.

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

  1. [31]
    The Office of the Director of Public Prosecutions provided material pursuant to s 318 WWC Act[27] which included the court brief, witness statements and transcripts of the field interviews and pretext call.
  2. [32]
    No information was given under sections 319, 335, 337 or 338 of the WWC Act.

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. [33]
    Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.

The material and the evidence

  1. [34]
    The applicant provided the Tribunal with his life story and five references. Three of the referees were called to give evidence. Written submissions dated 31 August 2020 and 14 September 2020 were made on his behalf following the conclusion of the hearing.
  2. [35]
    The respondent provided the Tribunal with its reasons for decision and a bundle of documents paginated BCS-1 to BCS-415. Included in this material were the transcripts of the witness interviews in relation to the charges of rape. The respondent also provided documents obtained pursuant to notices to produce paginated NTP-1 to NTP-18. The respondent had the opportunity to cross-examine RAH and three of his referees and provided written submissions dated 4 September 2020 following the conclusion of the hearing.
  3. [36]
    Included in the material from both parties was the transcript of the two day trial relating to the rape charges.
  4. [37]
    RAH said that following his arrival in Australia in 2011 he completed a certificate 3 in aged care and then worked in that industry as an assistant nurse. That employment ceased when he was issued a negative notice as a result of the charges of rape. RAH said that the rape allegations turned his world upside down, his relationship broke down, he was unable to work in his usual career, and he fell into a deep depression. He said that his fragile mental state has prevented him from finding other employment. Since that time, he has worked as a driver and as a security officer. He seeks a blue card to enable him to ‘pick up the pieces’ of his life and to return to his studies and work. He said that he would not harm children. RAH said that EE wants him to have the negative notice cancelled in order that he start contributing to the household.[28]
  5. [38]
    The Tribunal found RAH to be a poor historian who provided inconsistent evidence.
  6. [39]
    In his life story dated 24 May 2019[29] he stated that ‘[m]y wife and I are in a normal married relationship and despite a Protection Order issued in 2017, we have reconciled and live as a family with our two lovely children.’ In cross-examination he said that his statement was wrong if it said that he was married, that at the date of his statement he did not live as a family with EE and their two children, they had never lived in the same house, and the relationship ended in 2017 or 2018.
  7. [40]
    In written submissions that evidence was sought to be explained as ‘in his culture, if he is in the same house as his partner and they have children together, then it is acceptable to call his partner his wife.’[30] The Tribunal does not accept that explanation; the applicant acknowledged in evidence that his statement was wrong.
  8. [41]
    When asked if he had been in a serious relationship prior to his arrival in Australia he answered ‘no’. Upon further questioning, he said that he had been married and divorced prior to his arrival in Australia.
  9. [42]
    In relation to his evidence regarding his offending and alleged offending, his evidence became increasingly inconsistent.
  10. [43]
    In respect of the assault, the applicant said he lost his temper because EE was smoking near the child while he was feeding the child. He told the Tribunal that he was holding his then six month old son in his left hand and EE by her hair with his right hand so that he could look at her face, and then he slapped EE with his right hand. He denied punching EE. The transcript of the proceedings relating to the facts of the domestic violence offence provides:

The defendant, whom [sic] was holding his six month old child, went through the door and punched the victim in the head. The defendant then grabbed the victim’s hair with the hand that was holding the child, and with the other hand slapped the victim two times to the back of her head….

During the interview the defendant stated that he had slapped the victim twice, but concedes today one punch and two slaps.[31]

  1. [44]
    When taken to this transcript, the applicant told the Tribunal he disagreed with the version of events set out there. He said that what he told the Tribunal at the hearing is correct. He later conceded to the Tribunal that he had in fact punched EE, in addition to slapping her twice. The Tribunal notes that RAH pleaded guilty to those facts.
  2. [45]
    RAH initially told the Tribunal that he did not take his son outside during these events but later said that he had done so. The applicant further disagreed with the facts to which he pleaded as set out in that transcript,[32] telling the Tribunal that EE restrained him from closing the door. It is clear from that transcript that the applicant’s version of events also changed before the Magistrate.[33]
  3. [46]
    RAH said that he pleaded guilty to the assault, not appreciating that assault was a criminal offence, to enable him to move on, to avoid a protracted legal proceeding and to save EE from being burdened by the proceedings.
  4. [47]
    Following the assault, a protection order was made which remains in force until June 2022.[34] The grounds for seeking the protection order[35] say that the applicant was verbally abusive towards EE for a few hours before the assault and ‘the aggrieved further stated that whilst the respondent had not previously been physically violent, he was verbally abusive and constantly degraded her saying she was from a lower class family and that she was a loser.’ RAH said there was no pattern of domestic violence in the relationship and that the assault was a one-off incident which was out of character for him. He denied that he was ever violent or emotionally or physically abusive towards EE.
  5. [48]
    In relation to the allegations of rape, the applicant maintains the sex was consensual, while the complainant denied that it was. It is not the role of this Tribunal to determine the innocence or guilt of the applicant in relation to these offences. That has already been determined. RAH was found not guilty of the charges. However, that the applicant was found not guilty of the charges is not determinative of his suitability to work with children.
  6. [49]
    In submissions to the respondent in June 2018 the applicant said that the assault occurred at a time of ‘extreme stress brought on by an extended period of time being excluded from my chosen studies and work, an inability to secure other work, a relationship breakdown, the responsibilities of a new family, the feelings of inadequacy around not being able to support this family and other personal issues.’[36] Further, RAH said in May 2019 that his ‘fragile mental state’ prevented him from obtaining other employment.[37] RAH told the Tribunal that to address this he sought help from his GP and saw a mental health professional once but does not recall when this occurred. There was no medical evidence available to the Tribunal.
  7. [50]
    RAH has completed a Phase One Anger Management Group course which he undertook to address his conduct with EE, to ensure that he did not make that mistake again. His evidence in relation to how he came to select this course was inconsistent, with RAH initially saying he found the course and later telling the Tribunal that his GP found it for him. He outlined to the Tribunal the skills he learnt from this course.
  8. [51]
    The Tribunal found RAH to be an unconvincing witness who provided inconsistent evidence to the Tribunal and accordingly affords his evidence limited weight.
  9. [52]
    EE said that she believed RAH’s intention in pleading guilty to the assault was to avoid prolonged legal proceedings and avoid any distress that may have been caused to her by giving evidence. She confirmed her desire that RAH be granted a working with children clearance to enable him to work to support their children,[38] saying that his inability to work, and thus provide financially, was hard on her family. This raises a concern for the Tribunal that EE’s support for RAH in these proceedings may have been motivated, to some degree, by her reliance upon the applicant for financial support.
  10. [53]
    EE’s evidence was that she was previously in a relationship with RAH and he is the father of her twins. They reconciled following the assault charges but separated in about 2017 or 2018, and now enjoy a cordial relationship. She said there has been only the single incidence of domestic violence between them and that there was no emotional abuse or prior physical violence in the relationship. Contrary to the grounds contained in the police protection notice, EE denied that RAH ‘was verbally abusive and constantly degraded her saying she was from a lower class family and that she was a loser’,[39] reiterating that the assault was a one off incident. The grounds for the protection order state that the applicant was verbally abusive towards EE for a few hours prior to the assault.
  11. [54]
    Before the Tribunal, EE said that her neighbour called the police at the time of the assault. She acknowledged that her statutory declaration was incorrect, in so far as she said there that she called the police.
  12. [55]
    She considers RAH a remarkable father and she has no concerns about his spending unsupervised time with their children or his treatment of them. She said he is a kind and loving father who assists her financially. EE became evasive when questioned in relation to her knowledge of the rape charges.
  13. [56]
    The Tribunal did not form the view that EE was a reliable witness and places limited weight upon her evidence.
  14. [57]
    AA has known the applicant for about seven years and considers him to be an able, willing and caring guardian and a doting father.[40] He socialises with RAH and his children and has observed him to be very good around their children and with children at social events. He was aware of the domestic violence incident and that the applicant was found not guilty of rape charges but was unaware of the details of these events.
  15. [58]
    TT has known the applicant through her husband for about five years, and considers him kind, respectful and trustworthy. She considers him a family man having observed him in a family environment, saying he was protective of his children. Although aware of the rape charges and the assault, she said that she was certain the assault was a one-off incident.
  16. [59]
    RAH provided statements from two additional referees but they were not made available for cross-examination. In the circumstances, the Tribunal affords limited weight to their evidence.
  17. [60]
    The respondent submits that the material suggests there remain concerns about the applicant’s ability to act protectively of women and children, the level of his insight into his offending and the harm it has caused and says that there is little evidence to support the applicant’s claim that he is now able to effectively manage his anger and stress. The respondent further submits that the applicant’s charges and the totality of the evidence raise the possibility of a risk to children such that it would not be in the best interests of children for the applicant to be issued with a working with children clearance. Thus, it says the Tribunal should find that this is an exceptional case.

Consideration

  1. [61]
    The applicant alleged that he was denied procedural fairness by the respondent in its decision to refuse RAH a positive notice and blue card and that the decision was punitive and unreasonable. 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. [62]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[41]
  3. [63]
    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.[42]

  1. [64]
    The applicant demonstrated some insight and remorse in relation to the assault, indicted by his engagement in an anger management course in an endeavour to ensure that he did not repeat the behaviour, and his plea of guilty. RAH told the Magistrate at the time of sentencing that he regretted his actions and was ashamed.[43] However, the applicant expressed limited insight or remorse for the assault on EE in the course of his evidence in the Tribunal.
  2. [65]
    The assault occurred while RAH was holding one of his children. It is likely that the violence distressed the child. Further, the applicant’s actions had the potential to place the child at risk of physical violence. The applicant did not demonstrate to the Tribunal insight into the harm to which he exposed his child. The Tribunal finds that RAH demonstrated a limited appreciation of the consequences of his conduct for that child.
  3. [66]
    While his evidence in the Tribunal was inconsistent, RAH at times disputed some of the facts leading to his conviction. It is not for the Tribunal to go behind the fact of the conviction, nor to accept a different version of events. The applicant’s evidence in relation to the assault was also similarly inconsistent before the sentencing Magistrate.[44]
  4. [67]
    The applicant was charged, tried and acquitted of allegations of rape. The prosecution did not prove, beyond a reasonable doubt, that the applicant committed the offences. The issue appears to have been one of consent. The Tribunal’s function is distinct from that of the jury and the court in RAH’s trial and it is not for the Tribunal to adjudicate upon whether the applicant committed those offences.
  5. [68]
    However, charges that do not result in convictions can and must still be taken into account in the Tribunal’s consideration.[45]
  6. [69]
    RAH maintains his innocence of these charges, as he is entitled, and it was submitted on his behalf that reading the totality of the transcripts of the hearing supports the fact that the applicant and the complainant had consensual sex. There is a different standard of proof and a different test applicable to the present proceedings, to that which was applicable in the consideration of the charges. This Tribunal’s paramount consideration is the welfare and best interests of children and the prevention of potential harm to children, in reaching the correct and preferable decision.[46]
  7. [70]
    The Tribunal accepts that the applicant now appreciates that stress was a significant contributing factor to his behaviour in the assault of EE. He has undertaken a ‘Phase One Anger Management Group’ workshop for which he provided a statement of attendance and articulated skills he learnt in this course. There was no independent evidence in relation to the acquisition of these skills by the applicant.
  8. [71]
    It is of particular concern to the Tribunal that the applicant has taken limited steps to reduce or otherwise manage his stress and address his fragile mental state. Many of the stressful factors which he recounted are still in existence in the applicant’s life. While these triggers remain unaddressed the possibility that conduct of concern can manifest if not effectively managed on an ongoing basis, and trigger further offending behaviour, is a risk factor.
  9. [72]
    It was not apparent to the Tribunal that RAH has learnt from his experiences that the vulnerable in the community must be protected or has demonstrated genuine insight into the effect of his conduct. Of further concern to the Tribunal is the inconsistency of RAH’s evidence before the Tribunal, particularly as this evidence related to each of his offending, his conduct and his acceptance of responsibility.
  10. [73]
    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 more than three years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case.[47] This risk factor must be considered in the context of all the relevant circumstances.
  11. [74]
    As the protection order remains in place until 28 June 2022, the applicant remains subject to this supervision.
  12. [75]
    AA and TT spoke of RAH as a kind man who is a good father and good with children. He has the support of these friends which is a protective factor for him. Since his blue card was cancelled he has obtained employment. The Tribunal accepts that the applicant’s desire to support his family and to return to his studies and work to enable him to do so are also protective factors for RAH.
  13. [76]
    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.
  14. [77]
    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.
  15. [78]
    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’.[48]
  16. [79]
    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.
  17. [80]
    The applicant’s human rights, in particular, his rights to a fair hearing[49] and not to be tried or punished more than once[50] 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’.[51] 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. [81]
    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.
  19. [82]
    On balance, 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 an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued to the applicant.
  20. [83]
    The decision of the respondent is confirmed.

Non-publication

  1. [84]
    Given that this case involved sensitive issues including domestic violence, and charges of rape, pursuant to s 66 of the QCAT Act the Tribunal prohibits the publication of the names of the applicant, the complainants, any witnesses and any relevant child.
  2. [85]
    Accordingly, these reasons have been de-identified.

Footnotes

[1] WWC Act, s 17 (definition of ‘disqualified person’).

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

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

[4] WWC Act, s 580.

[5] QCAT Act, s 19(a).

[6] Ibid, s 20.

[7] Ibid.

[8] WWC Act, s 360.

[9] QCAT Act, s 24(1).

[10] WWC Act, s 5.

[11] Ibid, s 6.

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

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

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

[15] Ibid, [30].

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

[17] Ex 7, BCS 66.

[18] WWC Act, Schedule 2.

[19] Ibid, Schedule 4.

[20] Ibid, Schedule 2.

[21] Ibid, Schedule 4.

[22] Ex 7, BCS 60 to BCS 64.

[23] Ex 8, NTP 2.

[24] Ex 7, BCS 210.

[25] Ex 7, BCS 236.

[26] Ex 7, BCS 44 to BCS 45.

[27] Ex 7, BCS 66 to BCS 130.

[28] Ex 7, BCS 38.

[29] Ex 1.

[30]Respondent’s Written Submissions dated 14 September 2020.

[31] Ex 7, BCS 60.

[32] Ex 7, BCS 64.

[33] Ibid.

[34] Ex 8, NTP 2.

[35] Ex 8, NTP 6.

[36] Ex 7, BCS 38.

[37] Ex 1.

[38] Ex 2.

[39] Ex 8, NTP 6.

[40] Ex 3.

[41] WWC Act, s 360.

[42] [2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

[43] Ex 7, BCS 64.

[44] Ibid.

[45] WWC Act, s 226.

[46] WWC Act, s 6 and see also Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84] applying similar legislation.

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

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

[49] HR Act, s 31.

[50] HR Act, s 34.

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

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 406

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    21 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
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
2 citations
Jump To
Cite 1 - (2008) WASCA 28
Cite 2 - (2008) WASCA 28
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
1 citation
Jump To
Cite 1 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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