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CA v Director-General, Department of Justice and Attorney-General[2020] QCAT 452

CA v Director-General, Department of Justice and Attorney-General[2020] QCAT 452

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

CA v Director-General, Department of Justice and Attorney-General [2020] QCAT 452

PARTIES:

CA

(applicant)

v

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML015-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

18 November 2020

HEARING DATE:

24 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” 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 there is no exceptional case.
  2. Publication of information which may enable the identification of the applicant is prohibited.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS -  review jurisdiction – blue card -  long criminal history involving aggression and violence – no offending for a period of seven years – whether exceptional case warranting departure from the general rule that positive notice must be issued – numerous protective factors – consideration of mandatory factors

Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 16, s 17, s 221, s 225, s 226, s 227,

s 228, s 229, s 231, s 353(a), s 354, s 355,  s 536

AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Jago, in house lawyer, Blue Card Services, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    This is an application for review of a decision by the Chief Executive, Blue Card Services made on 2 January 2019 refusing the applicant’s application to cancel a negative notice issued to him in 2013. The applicant had also applied to cancel the negative notice in 2016. That application was refused.
  2. [2]
    The respondent’s decision was 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 with a positive notice and blue card.[1]
  3. [3]
    The applicant has a lengthy criminal history covering the period 2002 to 2013. Of specific concern is that over the period he has been convicted of over 50 offences, including:
    1. (a)
      five convictions for violent offences recorded between 2004 and 2012 and three convictions for breaching a domestic violence order in 2003;
    2. (b)
      three convictions for threatening others, including offences related to threats, and use a carriage service to make threats to kill, recorded between 2006 and 2012;
    3. (c)
      convictions for assaulting or obstructing a police officer, unlawful possession of weapons, contravening a direction or requirement and committing a public nuisance which occurred between 1 January 2013 and 5 January 2013.
  4. [4]
    There is no evidence of any further offences or convictions from 5 January 2013.
  5. [5]
    Penalties have ranged from fines to imprisonment. The applicant was released on parole in May 2013. He completed his parole and previous suspended sentence terms in October 2013.
  6. [6]
    The respondent has filed documents in relation to the applicant’s criminal history, police charge notification sheets, relevant police reports, and the transcript of sentencing remarks. The respondent has also filed records of the Department of Child Safety, Youth and Women and records produced by the Brisbane Magistrates Court.

Legislative framework

  1. [7]
    A review of the decision of 21 January 2019 must be made in accordance with the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Amendments to the WWC Act

  1. [8]
    Significant amendments have been made to the WWC Act after the date of filing of the application and the hearing in the matter. The amended Act commenced on 31 August 2020.
  2. [9]
    By transitional provision section 536 of the WWC Act if before the commencement of the amended WWC Act on 31 August 2020, a person applied under section 354 for a review of a chapter 8 reviewable decision and as at the commencement date the review has not been decided and the person about whom the chapter 8 reviewable decision was made is not a new disqualified person, the Tribunal must apply the amended Act in relation to the matter the subject of the review. Section 580 of the transitional provisions is in similar terms with respect to undecided reviews and appeals.
  3. [10]
    On the facts of this matter the decision of 21 January 2019 is a “chapter 8 reviewable decision”, being a decision as to whether there is an exceptional case for the applicant, because the Chief Executive has refused to cancel a negative notice issued to him.[2]
  4. [11]
    Section 536 of the transitional provisions goes on to declare that section 355 of the WWC Act applies in relation to such an application for review. The effect of section 355 is that if a person becomes a disqualified person as a result of changes to the WWC Act, then the application and any proceeding in relation to the application must be dismissed by the Tribunal.
  5. [12]
    I have sought submissions on the point from the parties. The applicant did not make a submission. The respondent states[3] that the applicant is not subject to any new disqualifying offence or new serious offence under the WWC Act as amended.[4] By further written submissions the respondent submitted that the applicant’s criminal history does not contain any convictions for a serious offence under the WWC Act prior to amendment.

Relevant provisions of the WWC Act

  1. [13]
    The review will proceed by reference to the WWC Act current as at 31 August 2020.
  2. [14]
    The WWC Act deals with the issue of a blue card, or as it is described in the Act “a working with children clearance” in the following circumstances, which I refer to in summary:
    1. (a)
      Under s 221 the Chief Executive must issue a working with children clearance if the Chief Executive:
      1. (i)
        is not aware of police or disciplinary information about the person,
      2. (ii)
        is not aware of a conviction for any offence but is aware of - investigative or disciplinary information, a charge for an offence other than a disqualifying offence, a charge for a disqualifying offence dealt with other than by a conviction; or
      3. (iii)
        is aware of a conviction for an offence other than a serious offence.

However, a negative notice must issue if in the latter two cases the Chief Executive is satisfied it is an exceptional case, in which it would not be in the best interests of children if the clearance were granted.

  1. (b)
    Under s 225 the Chief Executive must issue a negative notice if aware that the person is a relevant disqualified person or has been convicted of a serious offence.

However, if the Chief Executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a clearance to be issued, the Chief Executive must issue a clearance.

  1. (c)
    Serious offences are listed in Schedule 2 to the Act; disqualifying offences are listed in Schedules 4 or 5 of the Act.
  2. (d)
    By s 226 (2) the Chief Executive must have regard to the following if deciding whether or not there is an exceptional case for the person and is aware that the person has been convicted of or charged with an offence:
    1. (i)
      in relation to the commission, or alleged commission, of an offence by the person –
  1. whether it is a conviction or a charge; and
  2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. when the offence was committed or is alleged to have been committed; and
  4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and

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 s 357, the court’s reasons for its decision.

  1. (ii)
    Any information about the person given to the chief executive by the department of public prosecutions (s 318); and corrective services (s 319).
  2. (iii)
    Any report about the person’s mental health given to the chief executive (s 335).
  3. (iv)
    Any information about the person from the Mental Health Court (s 337) or the Mental Health Review Tribunal (s 338).
  4. (v)
    Anything else relating to the offence which the chief executive reasonably considers relevant.
  1. (e)
    By s 227 and s 228 if investigative or disciplinary information exists the chief executive must have regard to when the alleged offence was committed and anything else which is relevant; and any decision and review of a decision in relation to disciplinary information.
  2. (f)
    By s 229 a person is to be given a right to make submissions in relation to the information the chief executive is to consider.
  3. (g)
    Relevantly by s 231 a negative notice remains in force until it is cancelled under part 5A of the amended Act.
  1. [15]
    By s 354 of the WWC Act, the Tribunal is given jurisdiction to review a decision not to cancel a negative notice given to an applicant, who is not a disqualified person.[5]
  2. [16]
    The applicant is not a disqualified person as defined in the WWC Act.
  3. [17]
    The Tribunal is to decide the review in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Tribunal has all the functions of the decision maker for the decision being reviewed.  The purpose of the review is to produce the correct and preferable decision.  The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[6]
  4. [18]
    The overarching objective of the WWC Act which the Tribunal must observe is to ensure that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
  5. [19]
    The Tribunal must consider the factors in s 226(2) of the WWC Act. It must also consider matters which strongly suggest it is not in the best interests of children that a blue card be granted and which overcome the starting point that someone who is charged with an offence that is not a serious offence will be issued with a blue card.
  6. [20]
    The Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations.[8]

The Decision

  1. [21]
    The decision of 2 January 2019 records that the applicant has been convicted of an offence other than a serious offence as defined in the Act.  Accordingly, the Chief Executive made the decision in accordance with s 221 of the Act.
  2. [22]
    The Chief Executive by the decision maker concluded that an exceptional case exists in which it would not be in the best interests of children for the application to be granted. Critical factors include:
    1. (a)
      risk factors identified in 2013 and 2016 continue to be of concern.
    2. (b)
      The applicant’s criminal history demonstrates that he has repeatedly been prepared to engage in violent, threatening, aggressive and other anti-social behaviour. Concerns are raised in relation to the applicant’s ability to exercise proper restraint and self-control in his dealings with others and resolve conflict in a calm and law-abiding manner. These skills are vital to work with children where situations of conflict may be expected to occur, either with children or in the presence of children.
    3. (c)
      The repeated nature of the applicant’s offending raises concerns as to his ability to present as a good role model for children.
    4. (d)
      The offending behaviour persisted until the applicant was a mature adult of 36 years of age. The passage of time from 2013 does not diminish the overall seriousness of his violent offending. Insufficient time has passed to test the applicant’s resolve and ability to continue living a changed life on a long-term basis.
    5. (e)
      No real insight is demonstrated into the potential harmful effect of his offending.
    6. (f)
      The applicant’s treating psychiatrist does not provide in his report detailed information regarding the extent of the applicant’s rehabilitation, his current mental health plan and the specific strategies used to manage his mental health.  The decision maker said that she was not satisfied the risks had been adequately addressed. Further, the applicant’s submissions indicate that his past trauma and substance abuse issues were significant contributing factors to his criminal behaviour. The applicant’s ability to deal with issues associated with his childhood trauma and maintain sound mental health on a long-term basis is of utmost importance in the assessment.
    7. (g)
      The character references relied upon by the applicant do not disclose whether the referees are aware of the applicant’s offending and if their support would change with that knowledge.

Evidence

The applicant

  1. [23]
    As part of his statement of evidence[9] the applicant filed a number of good character references. Some of the referees were not called to give evidence. Little weight has been given to those refereneces. The applicant also filed his life story on 7 June 2019, to which I have had regard.
  2. [24]
    The evidence is that the applicant is 43 years old. He came to Australia as a refugee. He suffered a traumatic childhood as a result of civil war..  Over a period from 2002 to 2013 he was involved in many violent offences and abused drugs and alcohol. In 2014 he was made the subject of a temporary protection order.  In 2002 the applicant was misdiagnosed with schizophrenia and spent seven years on heavy medication. In 2009 that diagnosis was corrected to PTSD from his years as a child  in South Sudan. The applicant says: ‘I don’t wish to use that as an excuse, but the misdiagnosis didn’t help my wellbeing and thought processes in the past.’
  3. [25]
    The applicant has obtained qualifications in acting and horticulture. He has worked as an actor in paid and unpaid roles. He has participated in a television program and has co-authored a published book.
  4. [26]
    The applicant has had custody of his daughter since her birth in 2018. He also has a son who lives with his mother, but frequently visits him and his daughter.
  5. [27]
    Under cross examination the applicant was frank about his criminal history and acknowledged his conduct was wrong. Occasionally, the applicant disputed certain facts from his criminal history, and said that he was encouraged to plead guilty or he had not read and understood what was being alleged. The applicant’s evidence is that once he was imprisoned for four months it cleared his mind and taught him a lesson. The applicant spoke of undertaking anger management courses in order to gain access to his son. He said that he learned to walk out and let a person cool down. The applicant’s evidence is that he stopped drinking in mid-2013 through will-power and says that he will not drink again. The applicant manages stress by going to the gym and talking to friends. He says that people in his community look up to him. The applicant’s philosophy is that there is always a solution and that nothing is too late.

Treating Psychiatrist

  1. [28]
    The applicant’s treating psychiatrist  provided a medical report dated 23 May 2019.[10]  The psychiatrist addresses some of the decision maker’s concerns.
  2. [29]
    The psychiatrist has treated the applicant since 2014. He reports that after the applicant’s arrival in Australia the applicant suffered from the effects of post-traumatic stress disorder (PTSD) as well as substance abuse, primarily cannabis. He had a number of diagnoses, including schizophrenia, depression, post-traumatic stress disorder and substance induced psychosis. His diagnosis has been clarified as PTSD rather than a psychotic illness such as schizophrenia. Cannabis induced psychosis has not been evident since being abstinent from cannabis.
  3. [30]
    The psychiatrist reports that the applicant engaged well with his counsellor as part of the Queensland Program of Assistance to Survivors of Torture and Trauma; his medication was reviewed and changed from an antipsychotic medication which was causing significant side effects. He has more recently been managing without any medications.
  4. [31]
    The psychiatrist reports that the applicant has successfully pursued a career in acting. He has worked very hard to regain access to his son and he has custody of his daughter.
  5. [32]
    Protective factors for the applicant are said to be the applicant’s work and his focus on being a good father to his children. The psychiatrist expressed the opinion that the applicant’s risk of re-offending is very low. He says that the applicant expressed a great deal of remorse about his past behaviour and offending. The psychiatrist expressed the belief that the applicant genuinely understands the impact of his offending on others and on himself. He says that the applicant has addressed the underlying factors in his offending - being substance abuse and untreated active mental illness. Both factors are said to have been appropriately treated and managed.
  6. [33]
    The psychiatrist gave evidence and was cross-examined extensively. In particular, he said that he had not been given full particulars of the applicant’s criminal history, but the applicant had told him the nature of the offences.
  7. [34]
    The psychiatrist re-affirmed that the applicant has resolved any substance abuse problems and that he has made a functional recovery from PTSD which has a low likelihood of re-occurring.
  8. [35]
    As to psychosis it was acknowledged that if the applicant was unwell that may be a risk, however, the applicant does not have schizophrenia and he is in full remission from substance abuse and stress induced psychosis.

Witness AB

  1. [36]
    Witness AB, a journalist and author, also provided a reference[11] and gave evidence for the applicant. AB first met the applicant in mid-2018 when he was contracted by  publishers to help the applicant tell his life story in a memoir.
  2. [37]
    AB has spent long periods of time with the applicant, staying with him for a week at a time whilst they worked on the book. AB noted that the applicant’s clean and tidy home speaks of a man who has his life in order, he is the sole carer for his infant daughter and looks after her carefully and competently.
  3. [38]
    AB reported that the applicant had spelled out in detail and with great contrition and remorse the trouble he found himself in with the law. AB has reviewed the applicant’s criminal record in full and finds it difficult to reconcile with the person he has come to know and who he describes as a very decent fellow.
  4. [39]
    AB expressed the view that if the occasion ever arose, he would have no hesitation in leaving his own young children in the applicant’s care. He concluded that the applicant is trustworthy, personable, empathetic and patient. He is said to be a living, breathing cautionary tale who could impart unique and powerful wisdom to people who might benefit from it.
  5. [40]
    In cross-examination AB was unshakeable in his support for the applicant.

Witness CD

  1. [41]
    Witness CD is a Christian church Pastor. CD provided a reference[12] and gave evidence at the hearing. He met the applicant approximately three and a half to four years ago as part of a church outreach program at Marooka. Since then the applicant has been attending the Pastor’s church with his children. CD gave evidence that he had observed the applicant to be loving, playful and interested in what can make children better.
  2. [42]
    CD acknowledged that he did not know the details of the applicant’s criminal history, but he did know that the applicant had a criminal history. He did not know the details of any past medical history. However, he said that the church has experience of people with mental health issues. The applicant presents as normal, kind and helpful.

Consideration

  1. [43]
    The respondent submits that the Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[13]
  2. [44]
    The reviewable decision under review is whether the applicant’s case is exceptional.
  3. [45]
    The respondent relies on the reasons of the decision maker referred to earlier.
  4. [46]
    The respondent and the applicant have each identified risk factors and protective factors on the evidence.[14]The purpose of analysing the evidence through the lens of risk and protective factors is to decide whether it would not be in the best interests of children for the applicant to be issued with a working with children clearance and blue card. It is not a balancing exercise, but rather a way of considering the cogency of the evidence in deciding the question.

Protective factors

  1. [47]
    The relevant protective factors are said to be:
    1. (a)
      the context of the offending. The parties both refer to the severe hardship faced during the applicant’s childhood in Sudan and as a refugee in Australia. I do not accept that this is a protective factor, except to the extent that these factors are no longer current. In the end, the applicant’s history may be an explanation for his conduct, but it does not offer any protection against the applicant reverting to old behaviours.
    2. (b)
      Management of the applicant’s mental health. The psychiatrist has given evidence that the applicant has achieved and maintained full remission from his substance abuse. Further, the applicant is in full remission from stress induced psychosis and he does not have schizophrenia. I accept the psychiatrist’s professional opinion.  The applicant has been seeing the psychiatrist since 2014 and has successfully received counselling through the Queensland Program of Assistance to Survivors of Torture and Trauma. I accept the applicant’s evidence in relation to his determination never to drink or take drugs and accept that he is managing his mental health. In this regard he is continuing to and will continue to regularly see his psychiatrist to ensure he stays on top of his psychological condition. In particular, I accept the applicant’s evidence that he has learned how to manage feelings of anger and that he is able to deploy appropriate strategies. I find that these are protective factors.
    3. (c)
      Positive lifestyle changes. Since his offending in 2013 the applicant has obtained tertiary qualifications, progressed his career in film and television and has engaged in volunteer work. He wishes to give back to the community. I accept that this is a protective factor. I accept the applicant’s evidence in relation to his current lifestyle and find that he is sincerely attempting to live a good and productive life. I also note that the applicant is raising an infant daughter and has access to his son. The applicant says that he regularly attends church because it helps him to reflect and to continue to be present in the community and his family.  He thinks the church does good work and is something that he wants to be a part of.  I consider these are all protective factors.
    4. (d)
      Witness and support network. The applicant has the support of at least eight people from whom he has provided good references. I accept the evidence given by AB in relation to the applicant’s current way of life and the positive characteristics he exhibits. I find AB to be a reliable witness because he has full knowledge of the applicant’s criminal history and life events and he has lived with the applicant for significant periods of time whilst assisting the applicant in writing his life story so far. These factors are protective.
    5. (e)
      The applicant adds that having a book published and appearing on television demonstrates honesty about his past and is something that drives him to keep his image and continue to set a good example to his family and community. I agree that honesty about the applicant’s past and evidence of the progress he has made, is a protective factor in terms of maintaining good public opinion of the applicant.

Risk factors

  1. [48]
    The following are said by the respondent to be risk factors.

Criminal history.

  1. [49]
    The respondent stresses the violence and aggression associated with much of the applicant’s offending. The applicant has been convicted of many offences and in fact imprisoned.  I accept that the extent and nature of the offending is significant. On the other hand, no serious or disqualifying offence as defined in the WWC Act has been committed.
  2. [50]
    The applicant’s offending is set out earlier in this decision. As required by s 226(2) of the WWC Act I have considered the relevant factors associated with the applicant’s criminal history contained in the respondent’s material filed in the Tribunal.
  3. [51]
    Because of the extent of the offending, especially the violence, the applicant’s criminal history is a risk factor, unless I can be sure that the applicant can now exercise self-control and is unlikely to re-offend. The nature of the offending is such that it is relevant to employment or carrying on a business that involves or may involve children.
  4. [52]
    The applicant gives evidence that he is able to exercise self-control and that he has learned appropriate techniques to manage anger.  He points to the period of seven years which has elapsed since his last offence in 2013. The respondent says that length of time since offending is only one factor. I agree, however, I do think that seven years is a significant period of time, during which many positive changes have been made in the applicant’s life and most of the reasons for offending have been overcome. I also address the question of insight later in this decision which has a bearing on the risk of re-offending.
  5. [53]
    The respondent points to a domestic violence order made in 2014 and comments that the applicant may be engaging in undesirable conduct without it necessarily resulting in a criminal conviction. I acknowledge that possibility, however there is no evidence that is the case. The applicant was questioned in relation to the circumstances surrounding the 2014 order. He gave a different, plausible version of events to those which prompted the relevant police officer to seek the order. It is not possible in this hearing to say where the truth lies.
  6. [54]
    The countervailing evidence I have in relation to the risks posed by the applicant’s criminal history and risk of re-offending is the evidence from the psychiatrist and AB, which I find compelling. There is also evidence from the applicant about his current life and the steps he has taken to manage his mental health and emotions.
  7. [55]
    Given the applicant’s extraordinary background, the risk of re-offending cannot be ruled out. It is not necessary that I be satisfied there is no risk of re-offending.  Because of the supporting evidence from the psychiatrist and AB and the favourable view I have formed as to the sincerity of the applicant, I am comfortable that the applicant’s risk of re-offending is low.

Lack of remorse and insight.

  1. [56]
    The respondent does not consider the applicant’s material demonstrates the necessary remorse and insight. I find based on the applicant’s evidence at the hearing that although he gives reasons for his offending, he is not relying on that evidence as a mitigating factor. When various offences were put to the applicant in cross-examination, he appropriately acknowledged his wrongdoing, unless he could offer a different version of events. He appropriately expressed sorrow and said that he had made mistakes and that particular actions were not the right thing to do. I am satisfied that the applicant is remorseful for his past and that he has insight into the triggers for his conduct and the impact of his conduct on others. I find that the applicant’s level of remorse and insight is a protective factor.[15]
  2. [57]
    A further significance of the finding that the applicant exhibits remorse and insight is that when combined with the length of time which has passed without any apparent offence being committed by the applicant, the passage of 7 years can be seen as a protective factor.[16]

Other factors

  1. [58]
    The respondent refers to material obtained from the Department of Child Safety, Youth and Women, including that as at 2018 when the applicant’s daughter was born, it was considered that neither parent was able and willing to provide adequate care and protection to the child. Despite that, I note that the applicant has provided principal care for his daughter, with early assistance; and now the case has been closed by the Department. His apparently successful parenting of a baby and now toddler, largely on his own, is a considerable achievement. Additionally, the applicant has won custody of his daughter and has access to his son. I find that the applicant’s current circumstances are so improved that the earlier view of the Department of Child Safety is of limited relevance.

Transferability.

  1. [59]
    The respondent makes the point that if a blue card is issued it is unconditional and fully transferable across all areas of regulated employment and business. Accordingly, it is submitted that a precautionary approach is required. The respondent says that the WWC Act is premised on past behaviour being an indicator of future behaviour. I accept that is the thrust of the WWC Act, however the Act does not contemplate that all past misconduct will continue to follow an applicant for all time. A consideration of all the relevant factors may suggest otherwise.

Conclusion

  1. [60]
    The respondent submits that the risk factors in this case render the case an exceptional case. I have concluded to the contrary and find that this is not an exceptional case for the applicant such that it would not be in the best interests of children for the applicant to be issued with a working with children clearance and blue card.
  2. [61]
    I have found that the applicant’s risk of re-offending is low.  He shows remorse and insight into the reasons for and the effect of his offending. A long passage of time has elapsed since the applicant last offended. I am comforted by my findings in relation to the applicant’s successful management of his mental health and use of strategies to control anger; he is sober and drug free. The applicant has created a new stable life for himself over the past 7 years, whereby he is qualified for work, he is supported by friends and community and he has the care of infant children. Importantly, I rely on the evidence of the applicant’s treating psychiatrist that the applicant’s risk of re-offending is low, that he understands the impact of his offending on others and that the underlying factors in offending have been treated and managed. I rely on the psychiatrist’s evidence that the applicant has resolved substance abuse problems and has made a functional recovery from PTSD. I also rely on the evidence of AB as to his observations of the good life currently lived by the applicant and the trust he places in the applicant. Specifically, I do not consider that the applicant is a threat to the welfare and best interests of any child. [17]
  3. [62]
    The respondent submits and I accept that this Tribunal cannot direct the issue of a positive notice.[18]
  4. [63]
    I find that the correct and preferable decision is that the decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” 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 there is no exceptional case.
  5. [64]
    In conducting this review regard has been had to the Human Rights Act 2019 (Qld). I am satisfied that this decision is compatible with human rights and that to the extent there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of that Act.[19]
  6. [65]
    Finally, I consider that it is not in the public interest to release identifying information regarding the applicant and any witnesses for the applicant Accordingly, this decision is to be published in a de-identified format. Pursuant to s 66 of the QCAT Act I order that publication of information that may enable the applicant and witnesses to be identified is prohibited.

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2) (WWC Act).

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

[3]  Respondent’s outline of submissions dated 17 September 2020.

[4]  WWC Act, s 16, s 17.

[5]  WWC Act, s 17: a person convicted of a disqualifying offence (as set out in Schedule 4) unless an eligibility declaration is in force; or subject to particular reporting obligations or orders; or respondent to an application for an offender prohibition order under the Offender Reporting Act.

[6]  QCAT Act, s 19, s 20.

[7]  WWC Act, s 6.

[8]AX v Commissioner for Children and Young People and Child Guardian (No2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No2) [2008] WASCA 171.

[9]  Exhibit 4.

[10]  Exhibit 1.

[11]  Exhibit 2.

[12]  Exhibit 3.

[13]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, citing with authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[14]  Ibid.

[15]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [51], [52].

[16]          Ibid.

[17]RPG v Public Safety Business Agency [2016] QCAT 331, [27]-[29].

[18]          Ibid.

[19]Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 452

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    18 Nov 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
AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248
2 citations
Jump To
Cite 1 - [2012] QCATA 248
Cite 2 - [2012] QCATA 248
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
1 citation
Jump To
Cite 1 - (2008) WASCA 171
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
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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