KAP v Director General, Department of Justice and Attorney General
[2020] QCAT 457
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- KAP v Director General, Department of Justice and Attorney General[2020] QCAT 457
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KAP v Director General, Department of Justice and Attorney General[2020] QCAT 457
KAP v Director General, Department of Justice and Attorney General[2020] QCAT 457
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | KAP v Director General, Department of Justice and Attorney General [2020] QCAT 457 |
PARTIES: | KAP (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO: | CM348-18 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 7 July 2020 |
HEARING DATES: | 8 August 2019 and 31 October 2019 |
HEARD AT: | Cairns |
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 as an approved foster carer – whether an exceptional case is determinative on the basis of unsubstantiated child protection allegations – whether lengthy and substantial traffic history is a determining factor in blue card matters – concerns regarding the applicant’s mental health issues – the applicant twice attempted to commit suicide – the applicant denies any attempt to suicide and claimed the incidents were accidental – the applicant did not initially disclose an earlier attempted suicide when his blue card was renewed –– 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 – the publication of identity of the applicant, witnesses and non-parties contrary to public interest – the de-identification of the applicant is necessary to avoid endangering the applicant’s mental health Child Protection Act 1999 (Qld), Chapter 4, Division 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19(c), s 20, s 20(1), s 24(1), s 63, s 66, s 66(1), s 66(2), s 66(2)(b) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 353, s 354, s 360, s 361 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 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 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 |
APPEARANCES & REPRESENTATIONS: | |
Applicant: | Self represented |
Respondent: | A Bryant, in-house solicitor |
REASONS FOR DECISION
Introduction
- [1]The applicant (‘KAP’) has applied to the tribunal for a review of a decision made by the Director General, Department of Justice and Attorney General (‘the respondent’) to issue him with a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’). That negative notice was issued on 28 November 2018.
- [2]In 2003, KAP was issued with a blue card. Since 2009, he and his partner (‘RMD’) have been approved as foster carers.[1] KAP’s blue card was renewed in 2011 and 2014. That latest renewal took place notwithstanding a concerning incident in May 2013 where he attempted suicide by overdosing on prescription medication. I will return later in these reasons to discuss that incident.
- [3]In November 2017, KAP attempted to renew his blue card. After receiving police information about KAP, the respondent undertook an assessment and reached a conclusion he should be issued with a negative notice. He now seeks a review of that decision.
The tribunal’s role
- [4]The Working with Children Act allows KAP to make an application to the tribunal for a review of the respondent’s decision to issue him with a negative notice.[2] Unlike a judicial review, the tribunal’s function is to review the decision, not the process by which it was arrived at, nor the reasons for making it.[3] When undertaking an administrative review, the tribunal effectively stands in the shoes of the original decision maker.[4]
- [5]
- [6]Upon reaching that correct and preferable decision, the tribunal is afforded a discretion 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 the tribunal considers appropriate.[7]
The applicant
- [7]KAP was born in Brisbane and is currently aged 57. For the majority of his adult life, he has been a professional driver in the sense that he was employed to drive trucks, buses and a taxi. At times his work schedule saw him working six days a week, sometimes seven and he drove for anywhere up to 12, 14 or sometimes 16 hours per day depending how busy it was. He accepts that over a long period of time he did accumulate a substantial amount of traffic infringements.
- [8]In 2001, KAP started a relationship with RMD. In December 2004, he was involved in a serious traffic accident after a drunk driver collided with him. He suffered a significant back injury that still causes him pain. After recovering from the traffic accident, he and RMD moved to the Atherton Tablelands area where they operated a small business.[8] In early 2006, KAP attempted suicide by ingesting of a mixture of prescription medication. This incident is discussed in greater detail later in these reasons.
- [9]By 2009, KAP and RMD had returned to live in Cairns. They became foster carers and were approved by the Department of Child Safety, Youth and Women (‘the department’) for that role.[9] Since then, they have cared for 60 children, most of whom were indigenous, being either aboriginal or islander heritage and some had disabilities or challenging behavioural problems.
- [10]Within the first few years of KAP being approved as a foster carer, concerning incidents were reported to the department. The first incident related to a child in his care being privy to an argument between KAP and RMD. The child overheard the argument and said KAP was rude and swearing. The department’s investigation showed that although this matter was of concern, no action is taken. KAP and RMD continued as foster carers.
- [11]Two months after that incident, the department received information from a child in KAP’s care who allegedly saw him was watching a pornographic movie on his laptop computer. This took place at 2:00am in the morning. The department’s investigation concluded the child did not see the movie but only assumed it was a pornographic movie. Consequently the information was unsubstantiated.
- [12]In 2012, a three year old child in the care of KAP and RMD was struck and killed by a motor vehicle outside their home. The screen door to their house was not secured correctly and the child crawled out of the house onto the road and was struck by a vehicle. This was a tragic accident and KAP received counselling for several months. He described the incident as nearly destroying him and RMD.
- [13]Prior to the negative notice being issued, it appears the concerning issues raised about KAP as a foster carer were investigated by the department. Arising from those investigations, the allegations were categorised as unsubstantiated, and in some cases substantiated. Despite those outcomes, the department still assessed KAP as suitable to maintain his accreditation as a foster carer.
- [14]A feature of KAP’s as a foster carer and the involvement of the department is that role is even after his attempted suicide in May 2013, his blue card was re-issued. The department was aware he suffered depression and knew of his suicide attempt.[10] The measures the department took were to implement an action plan for KAP to engage with a psychologist because he was caring for children at the time he self harmed.
- [15]In assessing whether the department’s investigations, assessments and findings are determinative in regard to the proposition of a case being an exception or not, that depends on the facts and circumstances of the individual case. It is unsafe apply any general rule as these are a matter of discretion and each case should be considered on its own merits and facts.[11]
- [16]Therefore, having regard to the department’s findings about those matters, and the continued approval of KAP as a foster carer, I am satisfied that very little weight should be placed upon the department’s information in regard when giving consideration as to whether KAP’s case is exceptional.
The applicant’s police information
- [17]The police information suggests the applicant is not adversely recorded as the subject to any criminal or quasi-criminal charges before any court. However, he does have a substantial number of entries on his traffic history spanning almost three decades. Over a period from 1988 to 2016, there are 24 entries on his traffic history. Each of those entries relate to the manner which KAP operated a motor vehicle. Examples are exceeding the speed limit, using a hand-held mobile phone whilst driving, smoking in a public passenger vehicle, disobeying a keep left sign and disobeying a red traffic control light.
- [18]None of the offences recorded on KAP’s traffic history provide any evidence his manner of driving involved children in his care or impacted upon any child. As I have discussed earlier, there is no general rule to be applied and each case depends upon its own facts and circumstances. In my view, unless the traffic history of an applicant provides clear evidence of a connection between that applicant’s offending and the future care of children, then very little weight should be placed upon it and the information is not determinative whether KAP’s case is exceptional.
History of self harming – attempted suicides in 2006 and 2013
- [19]In my view, the most compelling facts in this matter relate to the concerns surrounding KAP’s mental health. The information surrounding the applicant’s self harming, or attempted suicides became known to the respondent following KAP’s application to renew his blue card and positive notice in late 2017.
- [20]It is now known KAP made two suicide attempts. The first was in January 2006 and the second in May 2013. At the time of making the decision to issue a negative notice to KAP, the respondent was only aware of the 2013 incident. KAP had not disclosed the 2006 incident. That disclosure was only made when he was under oath in the review hearing and he was asked to comment on a notation in his medical file about ‘previous overdoes’.
- [21]Turning first to the 2013 incident, the medical records of the Cairns Base Hospital[12] outlines that on 19 May 2013, KAP was admitted to the Cairns Base Hospital. He remained there overnight and was discharged the following day.
- [22]Those medical records show KAP reported dissatisfaction with his family, including RMD and two foster children in their care. The day prior to his suicide attempt, it was his fiftieth birthday.[13] It was an important day for him. His family did not celebrate it with him, and he felt they completely neglected him. He woke the following morning to find RMD packing a bag to leave. He took the car keys and they argued.
- [23]The Cairns Base Hospital records are corroborated by the department’s case notes. A child who is in the care of KAP and RMD at that time disclosed –
[RMD] and [KAP] had an argument over [KAP’s] 50th birthday because [RMD] didn’t buy him a present; he heard it as he was in his room; they were yelling. [RMD] was trying to calm [KAP] down; this point made him sad.
- [24]At some point, KAP swallowed up to 25 diazepam tablets (each tablet 5mg) and locked himself in a bedroom. RMD was unable to gain access to the bedroom, so she called the Queensland Ambulance Service (‘the QAS’). The QAS were able to gain entry to the locked bedroom and found KAP angry and refusing to be assessed and he started pacing around the residence. Having concern for KAP, the QAS called the Queensland Police Service (‘the QPS’). The QPS, with the assistance of the QAS took him to the Cairns Base Hospital subject to an emergency examination authority.
- [25]The QAS officers reported to the hospital’s treating medical staff that KAP told the QAS officers “I don’t care anymore”; “I do not give a shit”; and “I just want to die”.[14] KAP went on say if he was released he will again try again to commit suicide, or will self harm at the first chance he got.
- [26]When the treating medical staff asked KAP why he took the tablets, he replied “because they were there”. He denied any suicidal intent and said that he wanted his family to celebrate his birthday and felt that yesterday “was the shittiest day of my life”.
- [27]The Cairns Base Hospital records show that KAP had an extensive medical history, mostly related to diabetes and Hasimoto’s thyroiditis and he had been bedridden for four months. He stopped taking his medication, as he did not think the antidepressant medication prescribed to him was working. He was sick of fighting, sick of fighting diabetes, sick of fighting hasimotos, he was “just sick of it”.[15] He said he was “not doing it anymore”.[16]
- [28]He told the treating medical team he had previously seen a psychologist after the life threatening car accident in 2004 and his son had been killed in a separate incident in 2010. Although it appears the medical team were aware of previous overdoes,[17] the medical records do not reflect any suggestion KAP disclosed his earlier suicide attempt in 2006.
- [29]Upon KAP’s discharge from hospital, the hospital’s discharge notes indicate the May 2013 incident was an impulsive overdose in the context of disappointing events. The notes went on to record there were ongoing stressors including medical problems. KAP denied suicidal ideation to the medical staff.
- [30]KAP disclosed in a written document to the tribunal his version of what occurred. He wrote –
It was my 50th Birthday and I was upset because it wasn’t acknowledged and I was upset. I had had a bit of an argument over this with [RMD]. I took tablets for Restless Sleep and probably took more than I should have. I went to bed to sleep. [RMD] panicked because she couldn’t get the door unlocked and I was taken by Ambulance to the hospital on security watch. [RMD] came to the hospital the next morning, Mental Health did a short assessment and I was released. As I’ve said before I am acutely aware of the negative impact this could have on my family and also any foster children involved. I wish I could wind the clock back and this never happened even though it was accidental I am still remorseful for my actions.[18]
- [31]In regard to KAP’s evidence at the tribunal, he said the events of the May 2013 incident were a one off thing and it was out of character for him. He denied ever deliberately trying to commit suicide. He went on to say he only took 8 to 10 tablets, no more than that. When using the tablets as part of his medication regime, he usually took two tablets, sometimes three, and all he wanted was get a good night’s sleep. He said his only mistake was locking the door.
- [32]It is not clear from what KAP meant when he suggested he wanted was a good night’s sleep. The oddity that surrounds this comment is the QAS officers attended at his address at little after 1:00pm in the afternoon.
- [33]KAP claimed the taking of the diazepam related to his back injury pain and not being able to cope with the pain associated with that injury. He went on to say that it was probably the darkest period of his life. He did not accept he argued with RMD on that occasion and he denied the incident was an attempt to take his own life.
- [34]It was during KAP’s cross-examination that he disclosed a previous suicide attempt in 2006 when he was living on the Atherton Tablelands. Because he could not provide any specific details regarding that event, the proceedings were adjourned so suitable enquiries could be made with the Atherton Hospital.
- [35]When the tribunal resumed,[19] the information received from the Atherton Hospital corroborated the proposition about KAP’s admission to that hospital following a suicide attempt. KAP disclosed he and RMD moved to the Atherton Tablelands sometime around April 2005. He was treated at the Atherton Hospital in January 2006 because he attempted suicide,[20] however he would not accept the 2006 suicide attempt was similar to the 2013 attempt. This is despite the Cairns Base Hospital records for the 2013 attempted suicide showed he consumed 25 diazepam tablets, and the Atherton Hospital records showed he mixed up a concoction consisting of five to 10 tablets from six different types of medication. The number of tablets used on that occasion ranged between 30 – 60 tablets. Nor did KAP accept he argued with RMD in the May 2013 attempt, however the medical records relating to both suicide attempts show the common denominator in both attempts was him overdosing on prescription medication after he argued with RMD.
An ‘exceptional case’
- [36]The focus of administrative reviews for blue card matters is the protection of children from future harm with the paramount consideration being the welfare and best interests of children.[21] Undeniably, children are entitled to be cared for in a way that protects them from harm. That principle is supported by a legislative objective that promotes and protects the rights, interests and wellbeing of children.[22]
- [37]The primary consideration in child related applications pursuant to the Working with Children Act is whether or not an exceptional case exists. It is well documented that the legislation provides no definitive description of what is an ‘exceptional case’. The term has been found by the courts to mean ‘unusual, special and out of the ordinary course’.[23]
- [38]Discretion should be used and each case should be considered on its own merits and facts,[24] after all, various courts have determined it would be unwise to lay down any general rule about what an exceptional case is. 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.[25]
Evidence from other witnesses
- [39]KAP relied upon evidence from a number of people to support his application, including references about his good character.
- [40]RMD is KAP’s partner. Her evidence was given to the tribunal prior to KAP making himself available for cross-examination. In an earlier written statement provided to the tribunal, her comments about the May 2013 were –
[KAP’s] apparent suicide attempt is totally out of character for him. Although it was me that rang the Ambulance. I only did this because I wasn’t able to check on him and get access to the bedroom. I thought I needed to be sure that he was OK. I was at the hospital when [KAP] had a mental assessment the next morning which literally lasted ten minutes and it was deemed that at no stage was he considered a suicide risk.[26]
- [41]In her evidence, she corroborated KAP’s past history and involvement as a foster carer. She described KAP’s attempted suicide in May 2013 and “an alleged suicide”. She told the tribunal there had been no further incidents of KAP self harming after the May 2013 incident, and she was not aware of KAP having any other mental health issues or aware of him being admitted to hospital prior to 2013.
- [42]I particularly note RMD’s suggestion that she was not aware of any previous suicide attempt by KAP. This is clearly at odds with what KAP later told the tribunal, and contrary to the medical notes obtained from the Atherton Hospital. In my view, no weight should be placed upon her evidence as she is not a witness of truth, particularly with regard to KAP’s underlying mental health issues and his history of attempting suicide.
- [43]SAH’s involvement with KAP commenced after his attempted suicide in May 2013. No reference was made in SAH’s written statement, and nor did he tell the tribunal he was aware of KAP having a history of suicide attempts.
- [44]SAH provided a written statement to the tribunal,[27] and personally appeared at the hearing to give evidence. He is employed by a service provider for children in care. He has known KAP since early 2014. The association between them relates to SAH making visits to KAP’s residence in a child advocacy role, which he has done on at least 30 occasions. He said there had been no concerns raised about the safety of the children in KAP’s care, and nor were there any discipline issues raised. SAH said the children always indicated they felt safe and secure in KAP’s care.
- [45]MMJ gave evidence and provided a written statement.[28] He and KAP have been friends for 30 years. In his statement, he said –
I have personally witnessed [KAP] in his role as foster father and carer to most of the children that have come into his care, and I sit back in amazement of the job he does. It must be remembered that most of these children have come from many disabilities, both physical and mental, but this has not deterred [KAP] in any way, shape or form.[29]
- [46]Notwithstanding the many positive comments that MMJ made about KAP, and despite being KAP’s close friend, it seems that he is unaware of KAP’s previous suicide attempts. If he was aware, he did not address this in his evidence, and nor did he address what he knew of KAP’s strategies to deal with those significant issues in his life.
- [47]KAP provided a report from Dr MAE.[30] In her report, Dr MAE said KAP’s mood had been stable for a long time and he had a good relationship with his counsellor. Dr MAE reported –
[KAP] has been treated by me since 15/07/2010 and at this clinic since 21/04/2015. [KAP] lost his Blue Card late last year due to historical traffic offences that happened when he was doing long hours as a taxi driver, and three incidents with Child Safety. Due to losing his Blue Card, [KAP] and [RMD] no longer foster care [child’s name redacted], who they had looked after for 2 years. This has been very distressing for all three parties.
- [48]There was no reference in Dr MAE’s report to either the May 2013 or the January 2006 suicide attempts. Although there is a reference to KAP having a good relationship with his counsellor, there is no explanation as to why he needed counselling, and nor is there any reference made to KAP’s current mental health.
- [49]UKL provided a statement in support of KAP.[31] At the age of three, she was placed in the care of the department. For a period of time during her young life, KAP and RMD were her foster parents. She is now an adult and said KAP was –
kind-hearted, loving, smart and protective of every kid that comes to be under his care.
- [50]She made many other positive comments about KAP and he obviously had a positive influence on her life. However, she was unaware of the concerning incidents of KAP’s attempted suicides in 2006 and 2013.
- [51]QR provided a statement in support of KAP, but did not give evidence at the hearing. QR said she had read and understood the reasons for the decision to issue KAP with a negative notice, along with KAP’s submissions in response. Notwithstanding the positive comments she made about his character, she does not seem to address the concerning issues surrounding his attempted suicides in 2006 and 2013. It is unknown whether she had actual knowledge of those events and the contents of her statement provide little assistance in the final determination of this matter.
- [52]KAP also relied upon a statement provided to the tribunal by PBB. PBB is a clinical psychologist, although no formal CV was provided with her report to validate her experience or qualifications. Notwithstanding that, I accept that KAP consulted with PBB and received some counselling.[32]
- [53]In her report, PBB said KAP first attended counselling in 2012, although no reference is made of why counselling was required at that time, what issues were addressed during the counselling, how many counselling sessions were attended by KAP or the outcome of the counselling.
- [54]PBB went on to state –
In relation to the allegation of attempted suicide in 2013 (6 years ago) [KAP] attended counselling during that period of time and at the time in counselling stated he “did not want to commit suicide” and this incident was very out of character for him. [KAP] has learned skills and is more aware of how to manage his emotions and what techniques to use if upset including attending counselling if that support is needed. [KAP] has not had any incidences since and in my opinion is not a suicide risk.[33]
Discussion
- [55]It is noted that witnesses in this matter have described the May 2013 suicide attempt by KAP as an ‘alleged suicide attempt’, or an ‘allegation of attempted suicide’. I am satisfied the hospital notes, along with the observations and reports by the QAS officers, are a clear indication the actions of KAP go beyond any suggestion of what took place was an ‘alleged’ event.
- [56]Looking objectively at the evidence, it is my view that after feeling aggrieved by the failure of his family to recognise the importance of his fiftieth birthday, he argued with RMD. Following that argument, he deliberately consumed a large quantity of prescribed medication and locked himself in a bedroom. I am satisfied that no other conclusion can be drawn from his actions other than it amounted to a self harming incident, or at the very least, an attempt to take his own life.
- [57]What took place during the May 2013 incident has striking similarities to KAP’s earlier attempted suicide in January 2006. On that earlier occasion, he argued with RMD and consumed a concoction of prescription medication and was admitted for medical treatment at the Atherton hospital. Neither KAP nor RMD felt compelled to disclose that earlier incident, and the circumstances of that event only came to light after KAP was cross-examined about a notation made in the medical records from the Cairns Base Hospital.
- [58]For the correct and preferable decision to be reached in this matter, I have to be satisfied that protective factors exist which satisfactorily mitigates any concerns of a risk to children. I accept KAP possesses a particular skill set with regard to the care of children, particularly those with disabilities or those who are otherwise from disadvantaged backgrounds.
- [59]However, if there is an unacceptable risk to children from future contact with KAP, any benefit which might be thought to flow to children by having access to his knowledge, experience or flair is of no relevance.[34] The paramount principle relating to the welfare and protection of children clearly supports that concept.
- [60]In respect to blue card matters, if concerning behaviour has been displayed by applicants who have experienced mental health issues in the past, then the tribunal is entitled to know what, if any, is a risk of the repetition of that concerning behaviour. This is crucial information 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.
- [61]Already explained in these reasons are the two previous occasions where KAP was hospitalised after overdosing on prescribed medication. Both occasions have striking similarities to each other. They each followed an argument with his partner, RMD, and the latest incident occurred when was exercising his role as a foster carer and children were in his care.
- [62]KAP’s counsellor suggested he has learned skills and is now more aware of how to manage his emotions. This is notwithstanding he attended counselling sessions with PBB within the 12 months prior to the second occasion when he attempted suicide in May 2013.
- [63]I am of the view that it is not sufficient for KAP to rely solely upon him attending counselling. He must show he has acquired the necessary ability or skills to cope with stressful situations. That is, there must be evidence to support the hypothesis the counselling he received greatly reduces the risk of his susceptibility to self harming in stressful situations.
- [64]In this matter, the questions are; did the counselling KAP receive enable him to identify the triggers of concerning behaviour; and did it enable him to cope and overcome any urge to overdose on prescription medication in stressful situations. Although the evidence may suggest he attended counselling, I am convinced the evidence does not negate the required criteria as just explained.
Conclusion
- [65]The object, purpose and nature of the provisions of the Working with Children Act require a precautionary approach in blue card matters. Afterall, it is fundamentally impossible to predict with certainty any future risk. Notwithstanding that principle, there are times when the best indicator of future behaviour is past behaviour. I accept KAP’s first attempted suicide was not child related, however the second was. The striking similarities of both events are an aggravating feature, and there still exists a concern of him being unable to identify and appropriately manage the triggers for his concerning behaviour which led to those events happening.
- [66]Although the evidence shows the existence of some protective factors, overall, I am not satisfied those protective factors negate the risk factors. Having regard to the features that led to KAP overdosing on prescription medication in January 2006 and May 2013, he 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. That counselling should be focused on addressing whether he has developed insight into his mental health condition; what triggered his propensity to overdose on prescription medication; the adoption of the skills and strategies he gains from counselling; and whether he has the ability to address and apply coping strategies to overcome and/or manage stressful situations.
- [67]I am satisfied the evidence of this matter indicates KAP is not suitable to be issued with a positive notice and a blue card unless he can positively address those identified concerns.
- [68]In conclusion, having regard to the merits of this application and the evidence before the tribunal at the time of the hearing,[35] I am satisfied the correct and preferable decision is to confirm the respondent’s decision made on 28 November 2018 to issue KAP with a negative notice.
Non-publication decision
- [69]The enabling legislation, being the Working with Children Act, does not provide a mechanism for the tribunal to de-identify any particular party in blue card hearings. This is notwithstanding the legislation expressly providing for a blue card hearing to be held in private.[36] The discretion to undertake the de-identification of the contents of a document, the evidence given at the hearing, or a party or another person affected by the proceedings is afforded to the tribunal pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld).[37]
- [70]The tribunal has the discretion[38] to de-identify a party if it considers the order is necessary to avoid interfering with the proper administration of justice; or to avoid endangering the physical or mental health or safety of a person; or to avoid offending public decency or morality; or to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice.[39]
- [71]In regard to KAP, there is evidence before the tribunal of concerns about his mental health. It is my view the identification of KAP as a participant in these proceedings, along with the concerns raised about his mental health persuades me to de-identify him to avoid any risk to endangering his mental health.[40]
- [72]Having regard to the issues just identified, I am satisfied the only appropriate step is to prohibit 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 to the extent that it could lead to the identity of KAP, or any member of his family or any non-party to the proceedings.
Footnotes
[1]Pursuant to the provisions of the Child Protection Act 1999 (Qld).
[2]Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353–354. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.
[3]Queensland Civil and Administrative Tribunal Act 2009, s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
[6]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
[8]They moved to the Atherton Tablelands area in 2005.
[9]Pursuant to the Child Protection Act 1999 (Qld), Chapter 4 – Regulation of care, Division 3 – Approval of foster carers and kinship carers.
[10]Notice to produce documents made available to the tribunal by the Department of Child Safety, Youth and Women. NTP-73.
[11]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.
[12]Documents produced to the tribunal pursuant to Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63.
[13]18 May 2013.
[14]Cairns Base Hospital Emergency Department Triage notes contained with the NTP documents at p 26.
[15]Cairns Base Hospital Emergency Department Triage notes contained with the NTP documents at p 5.
[16]Cairns Base Hospital Emergency Department Triage notes contained with the NTP documents at p 17.
[17]Cairns Base Hospital Emergency Department Triage notes contained with the NTP documents at p 19.
[18]Exhibit 10. KAP’s life story.
[19]On 31 October 2019.
[20]The Atherton Hospital records show the incident took place on 4 January 2006.
[21]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 360.
[22]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.
[23]Kent v Wilson [2000] VSC 98, [22] referencing the Oxford English Dictionary.
[24]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.
[25]Kent v Wilson [2000] VSC 98, [22].
[26]Exhibit 4. RMD’s statement at p 3.
[27]Exhibit 5.
[28]Exhibit 3.
[29]Exhibit 3. MMJ’s statement at p 1.
[30]Exhibit 1.
[31]Exhibit 9.
[32]Exhibit 2.
[33]Exhibit 2. PBB’s statement at p 1.
[34]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
[35]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.
[36]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361.
[37]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.
[38]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).
[39]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2).
[40]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)(b).