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MAP v Director-General, Department of Justice and Attorney-General[2020] QCAT 527

MAP v Director-General, Department of Justice and Attorney-General[2020] QCAT 527

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 527

PARTIES:

MAP

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML155-19

MATTER TYPE:

Children’s matters

DELIVERED ON:

15 May 2020

HEARING DATE:

21 February 2020

HEARD AT:

Cairns

DECISION OF:

Member Stepniak

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. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to that extent that such could identify or lead to the identification of the applicant, any child, witness, or third party in these proceedings.

CATCHWORDS:

Charter of Rights and Responsibilities Act 2006 (Vic)

Domestic and Family Violence Act 2012 (Qld) s 8

Family Law Act 1975 (Cth) s 4AB

Human Rights Act 2019 (Qld) ss 3, 4, 8, 9,13, 24, 25, 31, 34, 48, 58, 59, Part 2, Division 2 and 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 18, 19, 20, 21, 24, 28, 63, 66, 90

Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 2, 5, 6, 8, 156, 167, 168, 221, 226, 317, 318, 311, 320,  335, 337, 338, 353, 360, 361. Chapter 8 Part 4 Division 7, Schedule 1; Schedule 4 Schedules 2 and 7

Chief Executive Officer of Child Protection v Grindrod (No2) (2008) WASCA 28

Chief Executive Officer of Child Protection v Scott (No2) [2008] WASCA 171.

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

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

GP v Commissioner for Children and Young People [2013] QCAT 324

Kent v Wilson [2000] VSC 98

LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244

PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VCS 32

R v Cotic [2003] QCA 435

R v Liddy (No 2) [2002] SASC 306

Re FAA [2006] QCST 15

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1

Re Kracke and Mental Health Review Board (2009) 29 VAR 1

TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES &

REPRESENTATION:

Applicant:

Represented by, S. Williams, Counsel, instructed by J Cutler, O'Reilly Stevens Lawyers.

Respondent:

D. Taylor, Counsel, for Director General, Department of Justice and Attorney-General.

REASONS FOR DECISION

BACKGROUND AND INTRODUCTION

  1. [1]
    MAP (the Applicant) is a 31-year-old man. For the past 14 years, the Applicant has lived with JS, his de-facto spouse. They have two children, Z, a son aged 10, and a one-year- old daughter.
  2. [2]
    In 2010 the Applicant commenced work with Anglicare as a youth worker. In 2014 the Applicant, his de-facto wife and his mother, NP, relocated from Western Australia to far-north Queensland.
  3. [3]
    The applicant commenced studying psychology at James Cook University, Cairns and obtained work with Anglicare.
  4. [4]
    Anyone intending to undertake employment involving children or young people, classified as ‘regulated employment’ under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act),[1] is required to obtain a Blue Card.[2]
  5. [5]
    Consequently, in order to work with Anglicare as a residential youth worker, the Applicant lodged a blue card application with Blue Card Services of the Department of Justice and Attorney-General (the Respondent) and was issued a positive notice and blue card on 23 February 2015.
  6. [6]
    On 4 February 2017, the Applicant was charged with three criminal offences allegedly committed on 3 February 2017.
  7. [7]
    At the time of the offences the Applicant was living on a property with JS, his de-facto spouse, and their 8-year-old son, Z. The Applicant’s father also lived on the property in self-contained accommodation. The complainant with respect to the three charges was the Applicant’s father’s partner, SJ. Following the breakdown of SJ’s relationship with the Applicant’s father, and disagreements with the Applicant, she was asked to leave, and did so around 10 days prior to the incident central to this review.
  8. [8]
    On 6 February 2017, following a successful police application, the Applicant was placed on a Domestic Violence Order for 2 years.[3] The Order remained in force until 5 February 2019. As JS objected to the inclusion of a non-contact condition the terms of the Order merely required the Applicant to be of good behaviour towards, and not commit domestic violence, against JS and SJ. The Applicant’s and JS’s son, Z was not mentioned in the terms of the Domestic Violence Order.
  9. [9]
    In accordance with the Working with Children Act[4] the Queensland Police Service informed Blue Card Services of changes to the Applicant’s police information.
  10. [10]
    A subsequent check of the Applicant’s criminal history with Queensland and Interstate police services[5] revealed that:
    1. (a)
      On 22 June 2011, the Applicant was convicted in Western Australia, of exceeding the permitted alcohol level while driving. He was fined $600 and disqualified from holding a driver’s licence for 4 months; and that
    2. (b)
      On 4 February 2017, the Applicant was charged with:
      1. Unlawful possession of weapons (on 3 February 2017), and
      2. Dangerous conduct with weapons – domestic violence offence (on 3 February 2017)
      3. Deprivation of liberty – unlawfully detain/confine – domestic violence offence (on 3 February 2017).
  1. [11]
    On 9 March 2017 Blue Card Services invited the Applicant to make submissions as to why he should not be issued a negative notice and specifically, whether his case was an ‘exceptional case’.[6] In response, on 13 April 2017, the Applicant tendered a personal submission supported by 15 references.
  2. [12]
    Nevertheless, he was issued a negative notice on 16 June 2017. The Applicant’s submission and references are attached to Blue Card Services’ notification and reasons for why he was issued a negative notice.[7]
  3. [13]
    In June 2017, the Applicant and JS who had lived apart following the 3 February 2017 incidents, resumed cohabitation.
  4. [14]
    On 28 November 2017 the Applicant appeared before Acting Magistrate Heggie and entered a plea of guilty to:
    1. (i)
      Unlawful possession of weapons (on 3 February 2017), and
    2. (ii)
      Trespass – entering or remaining in dwelling or yard (on or about 3 February 2017)
  5. [15]
    No convictions were recorded for these offences, and the Applicant was placed on a recognizance of $1500 to be of good behaviour for 12 months.
  6. [16]
    The Applicant also appeared on charges of:
    1. (i)
      Dangerous conduct with weapons – domestic violence offence (on 3 February 2017), and
    2. (ii)
      Deprivation of liberty – unlawfully detain/confine – domestic violence offence (on 3 February 2017).
  1. [17]
    As the prosecution offered no evidence, these charges were dismissed. The ‘no evidence to offer’ was authorised on the grounds of insufficient evidence and public interest. Information obtained from the Queensland Police Service discloses the nature of the agreement,

The submission from the defence has been accepted and the charges of dangerous conduct with firearm and deprivation of liberty will be withdrawn and a charge of trespass will be substituted. The defendant will then plead guilty to the charge of unlawful possession of a firearm and trespass.[8]

  1. [18]
    On 6 February 2018, the Applicant lodged an Application (dated 24 January 2018), with Blue Card Services seeking the cancellation of his negative notice.
  2. [19]
    In the course of the Respondent’s reassessment of the Applicant’s suitability he was invited on 27 March 2018 to make submissions as to whether his case was an ‘exceptional case’.[9] The Applicant’s forwarded his submissions and materials on 13 April 2018.
  3. [20]
    At the conclusion of the reassessment of his suitability, the Respondent informed the Applicant of her 19 March 2019 decision, to refuse to cancel his negative notice. This decision, together with reasons for the decision and other information required by the Act, were provided to the Applicant.
  4. [21]
    On 11 April 2019, the Applicant lodged an application with the Queensland Civil and Administrative Tribunal (the Tribunal) to review the decision made on behalf of the Respondent by the Director, Screening Services Unit Blue Card Services, Department of Justice and Attorney-General, on 19 March 2019.

THE NATURE OF THIS REVIEW

The Working with Children Act and the QCAT Act

  1. [22]
    This Tribunal has jurisdiction to review a ‘reviewable decision’,[10] defined in s 353 of the Working with Children Act as including decisions by the Respondent,

as to whether or not there is an exceptional case for the person, if because of the decision … [the Respondent] issued a negative notice…, or refused to cancel a negative notice …issued to the person.

  1. [23]
    As noted above, it is the Respondent’s decision to refuse to cancel a negative notice issued to her, that led the Applicant to lodge an application, pursuant to s 18 of the Queensland Civil and Administrative Act 2009 (QCAT Act). In his application he asks the Tribunal to review the Respondent’s decision that his case is an ‘exceptional case’ in which it would not be in the best interest of children for him to be issued with a positive notice and blue card.
  2. [24]
    The Applicant’s stated reasons for asking the Tribunal to review the Respondent’s decision are, that:
    1. (a)
      There has been insufficient weight given to the factual basis, nature of offences           and penalty imposed in the Mareeba Magistrates Court, dated 28 November 2017;
    2. (b)
      There has been insufficient weight given to the Applicant’s rehabilitation and positive references and material in general in support of the Applicant’s application; and that
    3. (c)
      There has been an incorrect assessment as to the existence of an exceptional case.[11]
  3. [25]
    As to how the Tribunal is to undertake such a review, the QCAT Act states that—

In exercising its review jurisdiction, the tribunal...(a) must decide the review in accordance with this [the QCAT] Act and the enabling Act under which the reviewable decision being reviewed was made [the Working with Children Act].[12]

  1. [26]
    In such a review, the Tribunal ‘has all the functions of the decision-maker for the decision being reviewed’,[13] and ‘must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits’.[14]
  2. [27]
    Consequently, the Tribunal’s review is not a review in the sense of passing judgment on an earlier decision. Instead, the Tribunal takes on the role of the earlier decision maker ‘to produce the correct and preferable decision’.[15]
  3. [28]
    As the Tribunal’s review of the Respondent’s decision, is by way of a fresh hearing, the Tribunal is required to consider not only the materials before the Respondent at the time of the decision under review, but also any new materials presented by the parties at the review hearing.[16]  Additionally, materials may also be secured by the Tribunal, as the QCAT Act provides that the Tribunal, ‘May inform itself in any way it considers appropriate’.[17]
  4. [29]
    Consequently, pursuant to s 63 of the QCAT Act, the Tribunal issued Notices to Produce to the Magistrates Court, the Department of Child Safety, Youth and Women and the Queensland Police Service. The materials thus obtained and made available to parties included those relating to the domestic violence order, police investigations of the charges, and an investigation by Child Safety officers.
  5. [30]
    In June 2018, Blue Card Services became aware of the 6 February 2017 Domestic Violence Order naming the Applicant as Respondent.
  6. [31]
    Following its review of a reviewable decisions the Tribunal may—
  1. (a)
    confirm or amend the decision; or

set aside the decision and substitute its own decision; or

  1. (c)
    set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers

     appropriate.[18]

The Human Rights Act

  1. [32]
    The Human Rights Act 2019 (Qld) (the Human Rights Act) requires the Tribunal to give ‘proper consideration to a human right relevant to the decision’.[19]
  2. [33]
    The Human Rights Act states that its ‘main objects’[20] are to be achieved by (amongst other means) —
  1. (b)
    requiring public entities to act and make decisions in a way compatible with human rights, and….
  1. (f)
    requiring courts and tribunals to interpret statutory provisions, to the extent that is consistent with their purpose, in a way compatible with human rights.[21]
  1. [34]
    Many of the Act’s provisions relate to public entities. The Human Rights Act states that ‘a public entity does not include…a court or tribunal except when acting in an administrative capacity’.[22] Consequently, whether for the purposes of the Human Rights Act, the Tribunal is a ‘public entity’ depends on whether it can be said to be acting in an ‘administrative capacity’.
  2. [35]
    Queensland’s relatively new Human Rights Act is based on Victoria’s Charter of Human Rights and Responsibilities Act 2006 (the Charter). Consequently, Victorian courts’ consideration of the Charter’s provisions provides valuable guidance to the interpretation and application of the Queensland Human Rights Act.
  3. [36]
    In Patrick’s case[23] Justice Bell drew on his judgment in Kracke[24] to set out a rationale and test for determining whether a Tribunal is acting as a judicial or a public entity. Justice Bell observed that ‘quasi judicial’ tribunals act in both judicial and administrative capacities’ and that ‘an administrative decision made by a decision-maker, and who is required to act judicially, remains administrative in character’.[25]
  4. [37]
    On this basis his Honour went on to hold that when acting in an administrative capacity in its original and review jurisdictions the tribunal is a [public entity].[26] This led Justice Bell to conclude that to determine the capacity on which a Tribunal is acting in a particular case, calls for an examination of the jurisdiction and the powers being exercised.[27]
  5. [38]
    Adopting Justice Bell’s approach, whether the Human Rights Act’s provisions relating to public entities also apply to the Tribunal acting in its merits review jurisdiction, appears dependent on whether the Tribunal is acting in an administrative capacity when exercising its jurisdiction with respect to the Working with Children Act.
  6. [39]
    As noted above, in reviewing the Respondent’s decision, the Tribunal undertakes a fresh review on the merits and in accordance with the enabling Act. In so doing, it exercises all the functions of the Respondent as decision maker.
  7. [40]
    On this basis, it is my view that, for the purposes of the Human Rights Act, when reviewing the Respondent’s decision, regarding screening for child related employment, the Tribunal is acting in an administrative capacity, and therefore is a ‘public entity’ for the purposes of the Human Rights Act.
  8. [41]
    Consequently, the Tribunal is required to comply with the Human Rights Act’s provisions directed at public entities, including those requiring public entities ‘to act and make decisions in a way that is compatible with human rights’,[28] to give proper consideration to a human right  relevant to the decision’,[29] and to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights.[30]
  9. [42]
    Compliance with the Human Rights Act, and giving proper consideration to relevant human rights requires the Tribunal to take specific steps in this review.
  10. [43]
    First, in order to comply with relevant requirements of the Human Rights Act, the Tribunal must identify the protected human rights that may be affected by statutory provisions and their interpretation, and also by the Tribunal’s decisions and other actions.
  11. [44]
    The Human Rights Act sets out a number of key Civil and Political Rights[31] as well as some Economic, Social and Cultural Rights.[32] With respect to other human rights, the Human Rights Act states in section 12 of the Act that—

A right or freedom not included or only partly included in this Act that arises or is recognised under another law must not be taken to be abrogated or limited only because the right or freedom is not included or is only partly included

  1. [45]
    Secondly, having identified relevant rights and freedoms, the Tribunal must determine whether relevant statutory provisions, their interpretation as well as the Tribunal’s actions and decisions are compatible with human rights.
  2. [46]
    As already noted, the Human Rights Act specifically requires ‘courts and tribunals to interpret statutory provisions to the extent that is consistent with their purpose, in a way compatible with human rights.’[33]‘Section 48(1) repeats this requirement and adds a qualification in s 48(2).
    1. (i)
      All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.’[34]
  1. (ii)
    If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
  1. [47]
    Thus, the Act recognises that some statutory provisions are not capable of being interpreted so as to make them entirely compatible with human rights. In such a case they should be interpreted in a way that is most compatible with human rights.’[35]
  2. [48]
    Thirdly, even where a limit or interference with a human right is identified, it may nevertheless be deemed compatible with human rights, as long as it only ‘limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13’.[36] Section 13(1)(a) the Act states—

A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

  1. [49]
    Human rights that may be affected will be identified, and the compatibility of specific statutory provisions, acts and decisions with such human rights will be addressed as I consider and make findings about individual statutory criteria for determining whether the Applicant’s case is an exceptional case.
  2. [50]
    In determining whether a limit imposed on a human right by an act, decision or statutory provision is justified and reasonable, the Tribunal considers the list of factors set out in section 13(2) of the Act that ‘may be relevant’ to the determination. They are—
  1. (a)
    The nature of the human right;
  1. (b)
    The nature and purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom.
  1. (c)
    The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. (d)
    Whether there are any less restrictive and reasonable available ways to achieve the purpose;
  1. (e)
    The importance of the purpose of the limitation;
  1. (f)
    The importance of preserving the human right, taking into account the nature and extent of the limitation of the human right;
  1. (g)
    The balance between the matters mentioned in paragraphs (e) and (f).

WHAT CONSTITUTES AN ‘EXCEPTIONAL CASE’?

  1. [51]
    A review of the Respondent’s decision that the Applicant’s case constitutes an ‘exceptional case’, must commence with a clear determination the meaning of ‘exceptional case’.
  2. [52]
    As the Working with Children Act does not define ‘exceptional case’ the meaning is to be determined by giving the words their ordinary meaning, in the context of the Act, and taking into account the intention of the legislation.
  3. [53]
    To determine the ordinary meaning of ‘exceptional’, dictionary definitions are of assistance. According to The Macquarie Dictionary exceptional means ‘beyond what is ordinary’, while the Oxford Dictionary defines ‘exceptional’ as ‘forming an exception, unusual, or not typical’.
  4. [54]
    In addition, as Justice Hedigan has held, determining the meaning of ‘exceptional case’ calls not only for a consideration of ‘the context of the legislation [but also] the intent and purpose of the legislation and the interests of the persons who it is designed to protect’.[37] 
  5. [55]
    The meaning of ‘exceptional case’ is determined in the context of the Act as a whole to ensure that the meaning adopted is consistent with the express or implied intention of the legislation. Such an approach calls for consideration of the Act’s stated object[38] the term’s location in the Act, its employment elsewhere in the Act, the context of the specific sections in which it is employed, and , as in this case, it is in the context of a review, the purpose of the review.
  6. [56]
    The stated object of the Working with Children Act is ‘to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring…the screening of persons employed in particular employment or carrying on particular business.’[39]
  7. [57]
    The principles for administering the Act state 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’.[40]
  8. [58]
    Consequently, what is clear is that the Act seeks to benefit the interests of children by protecting them from harm through the screening of those who work with, or intend to work with children. Consequently, for the Tribunal to find that the Applicant’s case is an exceptional case the Tribunal is required to find that even though the Applicant’s case is one in which the Respondent would otherwise be obliged to issue a positive notice, it is exceptional in that issuing a positive notice would not be in the best interests of children.
  9. [59]
    What makes a case exceptional will undoubtedly vary from case to case, as different factors may lead to a conclusion that a case is, or is not, an ‘exceptional case’. For that reason, what constitutes an exceptional case needs to be decided on its own facts and has been described as a ‘question of fact and degree in the whole of the circumstances of each particular case’.[41]
  10. [60]
    Ultimately, whether the Applicant’s case is an ‘exceptional case’ is for the Tribunal to determine, weighing the evidence presented by the parties, and reaching a decision on the balance of probability, while bearing in mind the gravity of the consequences involved.[42]
  11. [61]
    While such determinations have also been described as ‘matters of discretion’,[43] the decision maker’s discretion is not unfettered. The Working with Children Act provides the decision maker with a detailed and mandatory guide and check list with the aid of which to determine whether a particular case is exceptional.

Specific Factors that a Decision Maker Must Consider in Deciding Whether a Case is an ‘Exceptional Case’

  1. [62]
    Section 226 of the Working with Children Act lists specific factors to which the decision maker must have regard when deciding whether or not the Applicant’s case is an exceptional case. The section also requires the decision maker to have regard to ‘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.’[44]
  2. [63]
    I turn to consider the evidence presented to the Tribunal, as it relates to each of the mandatory considerations set out in s 226(2)(a), to which the decision maker must have regard in relation to the commission or alleged commission of the offences by the Applicant.

First: Whether the commission or alleged commission of offences by the Applicant, relates to a conviction or a charge.[45]

  1. [64]
    The Working with Children Act defines a charge as ‘a charge in any form’ for example ‘a charge on an arrest’ and  ‘conviction’ as ‘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.’[46]
  2. [65]
    Thus, it is clear that parliament intended that consideration must not only be given to convictions for offences but also to alleged commissions of offences and to charges.
  3. [66]
    The Applicant has a 2011 drink driving conviction for excess 0.08g/100ml, and two convictions in 2017 for unlawful possession of weapons and for entering or remaining in a dwelling or yard. For the purposes of the Working with Children Act, the two most recent convictions qualify as ‘convictions’ even though the Applicant pleaded guilty and convictions were not recorded.
  4. [67]
    This case also concerns two charges, one for dangerous conduct with a weapon, the other for deprivation of liberty. While these charges were withdrawn, for the purposes of the Working with children Act, each of these charges still qualifies as a ‘charge’.
  5. [68]
    Why a charge that does not lead to a conviction is nevertheless to be considered was addressed in TNC Chief Executive Officer, and Public Safety Business Agency[47]

A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. This legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

  1. [69]
    Consequently, I find that even though the Applicant pleaded guilty to the charge, and no conviction was recorded, for the purposes of the Working with Children Act, the Applicant was ‘convicted’ of an offence.
  2. [70]
    I also find that even though no evidence was offered with respect to the remaining two charges, and that consequently they were dismissed, the charges remain as ‘charges’ for the purposes of the Act, and must be considered in determining whether the case qualifies as an ‘exceptional case’.
  3. [71]
    It may appear that considering the offences for which the Applicant was convicted amounts to a retrial and punishment. I propose to briefly address this perception as it questions the provisions’ compliance with human rights - the issue of human rights central to this review.

Is the Applicant being Tried and Punished Again?

  1. [72]
    If this process was in fact a retrial or a punishment for an offence for which the Applicant was acquitted, then it would be incompatible with section 34 of the Human Rights Act, which states that—

A person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law.

  1. [73]
    In the course of parliamentary debates of the Working with Children Bill, a simple, yet significant explanation was given for why the Working with Children Act appears to impose additional punishment or place again on trial those convicted or acquitted.  It also explains why the Act makes it so difficult for those with a criminal history or about whom there exists police or disciplinary information, to be permitted to work with children.

It is about putting gates around employment to protect children. It is not about punishing people twice; it is about protecting children from future abuse. [48]

  1. [74]
    However, a refusal to issue a positive notice does not constitute a retrial as the Tribunal’s role is not to determine whether the Applicant is guilty of the charge. The Tribunal’s function is to undertake an analysis and evaluation of risk that would be posed to children if a positive notice was issued. It is not concerned with proving or disproving the commission of offences which the Applicant may have committed previously, but with the prevention of future potential harm.[49]
  2. [75]
    Referring to the Western Australian Court of Appeal decision in Grindrod[50]  the Tribunal held that—

It is not this Tribunal’s function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non conviction charges in question.  The relevant function involves an analysis and evaluation of risk.  It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of future potential harm.[51]

  1. [76]
    In the matter of TNC[52], the Tribunal held that it is not a matter for the Tribunal to be satisfied on a balance of probabilities that the offence occurred. But rather it was sufficient for the decision maker to be satisfied ‘that the circumstances raise the possibility of a risk to children.’[53] Consequently, in focusing on the risk to children and young people, rather than on the evidence regarding the commission of the offence,  the Tribunal held that ‘in making that assessment of risk the totality of the evidence was to be considered, not merely the charges’[54]
  2. [77]
    Clearly, the Tribunal’s finding that an exceptional case exists must be based on the best interests of any children that the Applicant would be able to work with if issued a positive notice. In that sense, the decision to be made by the Tribunal is unrelated to any findings as to the Applicants criminal culpability.
  3. [78]
    On that basis I find that this review by the Tribunal does not constitute a retrial of the Applicant for the three offences for which he had been tried and found guilty.
  4. [79]
    However, parliament has conceded that screening for the purposes of the Working with Children Act may have the unintended effect of punishing a person in the Applicant’s position. This limitation of the right cannot be avoided through statutory interpretation as the provisions cannot be interpreted in a way that is entirely compatible with the human right.
  5. [80]
    Having identified that a limitation or interference with the right cannot be avoided through statutory interpretation, the Human Rights Act obliges the Tribunal to interpret the relevant provisions of the Working with Children Act ‘to the extent that is consistent with the purpose of the Working with Children Act, in a way that is most compatible with human rights.’
  6. [81]
    To the extent that the human right is limited or interfered with, the Tribunal must note that the Human Rights Act recognises that human rights may be limited and yet be compatible with the human right as long as the limits are reasonable and justifiable.
  7. [82]
    Applying the factors that the Act states ‘may be relevant’ to determining whether a limit is reasonable and justifiable, I note that the purpose of the limitation as expressed by the object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children and young people.[55]
  8. [83]
    The importance of the purpose of this limitation may justify a limitation of the right not to be punished more than once for offence for which they have already been punished by law. However, to be reasonable the limit must be demonstrably proportionate, needed and least restrictive of the human right not to be punished twice.[56]
  9. [84]
    In effect for a decision maker to make decisions likely to impinge on the Applicant’s right not to be punished twice, decisions need to be made in a way compatible with the Applicant’s human right.
  10. [85]
    In considering the second factor to which the chief executive, or in this case the Tribunal, must have regard, I will later make some observations about an apparently prevailing view as to the link between exceptional case decisions and certain offences that appear to be incompatible with not only the human right not to be tried or punished more than once, but also with the clear intention of the legislature.
  11. [86]
    It is also important to differentiate criminal liability from suitability to work with children. The Applicant’s acquittal in a criminal trial is not necessarily a finding that concerns responsibility for the charge being laid were without foundation. Unlike the Magistrates Court trial, the Tribunal is able to consider all available evidence relating to the alleged commission of the offence that the chief executive (in this case, the Tribunal] reasonably considers to be relevant to the assessment of the person.
  12. [87]
    In a criminal case the prosecution bears the onus of establishing beyond reasonable doubt that a person charged with a crime is guilty. Criminal trials are also governed by strict rules of evidence. On this basis not all available evidence was presented at the Applicant’s trial. In fact, the Applicant chose not to present any evidence and relied solely on testing the prosecution case. Consequently, that the Magistrate found the Applicant not guilty does not necessarily mean any more than that the prosecution failed to persuade the Court that the Applicant was guilty beyond any reasonable doubt. It does not necessarily mean that the charge lacked substance or veracity.
  13. [88]
    In contrast, the Tribunal reviews all available evidence without any party bearing the onus of proof, and without the strictures of the rules of evidence.
  14. [89]
    Most importantly, I reiterate that the focus of this hearing is not on The Applicant’s culpability but on whether facts suggest that the Applicant’s case is an exceptional case, in that it would not be in the best interests of children for a positive notice to be issued.

Second: Whether in relation to the commission or alleged commission of offences by the Applicant, any offence is a ‘serious offence, and if it is, whether it is a disqualifying offence’.[57]

  1. [90]
    None of the Applicant’s offences are defined as a ‘serious offence’ for the purposes of the Working with Children Act, as defined in s 167 of the Working with Children Act. [58]  The offences for which the Applicant had been charged are similarly not defined as ‘disqualifying offences’.[59]
  2. [91]
    The classification of an offence, or alleged offence determines how parliament intends the decision maker to consider the issuing of a positive or negative notice.[60]
  3. [92]
    The Applicant’s case falls into the category where ‘the chief executive is aware of a conviction of the person for an offence other that a serious offence,’[61] or is aware of a charge for an offence other than a disqualifying offence’.[62]  A case falling into this category must be issued a positive notice unless the chief executive is satisfied that it is an exceptional case.[63]
  4. [93]
    In the Working with Children Act, Parliament has determined that different procedures should be adopted for different categories of cases. Consequently, how the chief executive is required to address an application seeking the reissue of a positive notice is determined by the category of the offence or alleged offence. 
  5. [94]
    Consequently where as in this case offence or alleged offences fall into a category of offences that requires the decision maker to issue a positive notice, a presumption is created that a positive notice is to be issued unless the case found to be an exceptional case.
  6. [95]
    For a specific offence or alleged offence that falls into such a category to be presumed to warrant a negative notice is clearly contrary to the intention of the legislature as expressed in the Act. Such a departure from the unambiguous meaning of the statutory provision would in my view also constitute an infringement of an Applicant’s right not to be tried or punished twice.
  7. [96]
    For this reason, I express my concern about a remark reported to have been made by a Child Safety Officer when interviewing the Applicant on 21 June 2017.
  8. [97]
    When addressing the Applicant’s possession of an unlicensed firearm and its unsecured storage, the summary of the interview records that the

CSO discussed with [the Applicant] that he would have lost his blue card because of this, not only because of this incident, that he was using a gun despite not having a gun licence and was not storing it legally.

  1. [98]
    The loss of a blue card is not punishment for a minor crime. It simply does not follow that a negative notice should be expected simply because a person is found to have a firearm without a valid gun licence in unsecured storage.
  2. [99]
    If Parliament intended this to be the case, offences relating to firearms would be classified as a serious or disqualifying offence.

Third: When the offences and alleged offences were committed.[64]

  1. [100]
    The Applicant was convicted of the drink driving offence in June 2011. This offence was committed almost nine years ago and apart from the question of the Applicant’s excessive alcohol consumption, appears to be unrelated to the more recent offences and charges. Consequently, I will largely confine my deliberations to the 2017 offences.
  2. [101]
    The Respondent submits that for the purposes of the review, the Applicant’s February 2017 offences qualify as recent offences.
  3. [102]
    One implication of the offences being recent is that they are less likely to be viewed in terms of something the Applicant may have once done, but due to passage of time would be unlikely to do again.
  4. [103]
    The Respondent submits that it could also be said that the Applicant is less likely to have had time to take all the steps necessary to address the behaviours which led him to be charged with the offences. However, this argument carries less weight when considered in light of judicial reluctance to hear arguments based on what a person would have done rather than what they actually did.[65]
  5. [104]
    While it is true that many offenders take a significant time to accept responsibility, gain insight into the triggers of their behaviour, and put in place measures designed to ensure that they do not reoffend, each offender must be assessed individually. Indeed, in the Applicant’s case it could be said that the short time since his offences merely highlights his immediate and comprehensive response and addressing of behaviours associated with his offending.
  6. [105]
    The steps taken by the Applicant to address the causes of the events that led to the reassessment of his suitability were attested to by his many referees and the evidence of his witnesses.
  7. [106]
    As the offender was 28 at the time of his February 2017 offences, his actions at the time cannot be dismissed as having been committed before he acquired the judgment and maturity to know better.
  8. [107]
    On the other hand, the mitigating factor of youth arguably has a little more relevance to his drink driving offence at the age of 22.

Fourth: The nature of the offences or alleged offences and their relevance to employment, or carrying on a business, that involves or may involve children. [66]

  1. [108]
    What the Applicant did, and is alleged to have done, on and around 3 February 2017 is central to this review by the Tribunal. Consequently, I propose to set out the agreed facts and then the key elements of the contested evidence.
  2. [109]
    I will then consider the nature of this evidence in terms of its relevance to the Applicant’s employment, or carrying on a business that involves, or may involve children.
  3. [110]
    I do not consider the evidence as to events that led to the Applicant being charged in order to re-evaluate the Applicant’s culpability on the lower civil standard of balance of probabilities. As the Tribunal held in TNC,[67] it is not the Tribunal’s role to determine whether the Applicant committed the alleged offences. Instead, the evidence is assessed in order for the Tribunal to determine whether the evidence is ‘sufficient for a decision maker to be satisfied that the circumstances raise the possibility of a risk to children’.[68]
  4. [111]
    It is also important to note that the Tribunal’s focus is not confined to the assessment of evidence relating the assessment of criminal culpability. The Tribunal must consider all available evidence that is both related to the offences and alleged offences and relevant to the assessment of the Applicant.

Agreed Facts

  1. [112]
    The following is a summary of the facts relating to the charges to which the Applicant had pleaded guilty that were presented to the Court by the prosecution.[69]
  2. [113]
    Late on 3 February 2017, following an argument between JS and the Applicant, JS left their property and drove to SJ’s property, ‘to seek shelter’. Later that evening after determining where SJ had gone, the Applicant also drove to SJ’s property.
  3. [114]
    The Applicant stopped his car at the locked entry gate to SJ’s property, approximately 400 metres from her house. Having noticed the headlights of his car stop at the locked gate, and expecting the Applicant to be approaching the house on foot, SJ drove down the gravel driveway towards the gate.
  4. [115]
    SJ says that when she saw the Applicant, she recognised him. When he came out from behind a tree, when she approached to within 10 metres of him, she yelled at him ‘in relation to him being at the address’.[70]
  5. [116]
    SJ then drove her car back to the house. The Applicant arrived at the house yard, just as JS was attempting to leave the property.
  6. [117]
    When police arrived, they found JS’s small yellow car parked on SJ’s property near the gate. On the back seat of the car police found a rifle. Ammunition for the rifle was also found in the car. Police checked the Weapons Licensing System and discovered that the Applicant had never held a weapons license required for him to be in possession of the rifle.
  7. [118]
    Police located the Applicant and his partner JS at their home and arrested the Applicant.

Contested Evidence

  1. [119]
    The following evidence was not presented in courts as no evidence was offered in relation to the Dangerous Conduct with Weapons and Deprivation of Liberty charges.
  2. [120]
    SJ told police that when she saw the Applicant behind a tree, he was holding a gun, and she called for him to drop the gun. His response, according to SJ, was to point the gun at her and tell her, ‘You don’t fucking know me. I’m fucking psycho, you don’t know me.’[71]
  3. [121]
    SJ says she then drove her car back to the house where she urged JS to drive out of the property via another driveway. However, JS ‘inadvertently’ drove towards the Applicant, who then proceeded to bash the passenger side of JS’s car while yelling at both JS and SJ.
  4. [122]
    The Applicant is then alleged to have once again pointed the rifle at SJ telling her, ‘This is all your fault’. SJ says that he then fired the gun at the ground.
  5. [123]
    According to SJ, the Applicant then got into the passenger side of the car. The car was then driven towards the gate, while SJ attempted unsuccessfully to telephone the police. SJ told police that while this was happening, she could hear JS screaming. A few minutes later SJ says she saw a vehicle being driven away from the gate along the road.
  6. [124]
    Police believed that as JS’s car was not able to be driven through a locked gate, the Applicant and JS climbed over the gate or fence and drove away in the Applicant’s car.  One of the few things that JS says she remembers about that night is being angry with the Applicant and while driving home, yelling at him while he called her a ‘slut’.
  7. [125]
    Police report that when they found the Applicant and JS in their home, JS looked terrified. The Applicant refused to be interviewed and was subsequently charged with three offences.
  8. [126]
    At first JS was uncooperative and denied the allegations made by SJ. However, eventually JS did make a statement. She said that she and the Applicant had been arguing over finances for a few days. She also said that earlier that evening she and the Applicant had been drinking and that an argument caused her to leave the house and drive to SJ’s house. JS told police that she remembered being at SJ’s house but did not remember the Applicant making threats armed with a gun, nor did she remember any of the Applicant’s alleged other actions on SJ’s property, as she was asleep at the time.
  9. [127]
    Later, police determined that the Applicant had telephoned JS and had left a voice mail message, in which he said, ‘You are very mean and you don’t care about us at all’. The police report also states that ‘The suspect is then heard to prompt [Z] to say ‘Mummy you don’t care about us at all.’ The Applicant is then heard to say, ‘we are worried about you and you don’t give a fuck about us’[72].
  10. [128]
    The Applicant denies that any children were present during any of the events on 3 February. He states that Z was asleep in his bed and that he had arranged for his father to look after him before he left the house to look for JS.
  11. [129]
    The Applicant also denies using the rifle at any time during the incident. He states that the rifle belonged to a neighbour and that he used it to shoot kangaroo and pigs on his property.
  12. [130]
    As to why he drove out to SJ’s property looking for JS, the Applicant states that he was concerned for her driving while intoxicated and did not want her to associate with SJ with whom he had a poor relationship.

Relevance

  1. [131]
    Trespass - The applicant pleaded guilty to trespassing onto SJ’s property. The evidence suggests that when he came onto SJ’s property and remained there against her wishes, he was intoxicated and intent on making JS come home.   In doing so, he demonstrated a lack of respect for the property and for the wishes of others. He also appeared to be dismissive and disapproving of his father’s former partner. 
  2. [132]
    Respect for the lifestyles, choices and property of others is clearly important if the Applicant’s influence on children and young people is to be positive rather than negative.
  3. [133]
    In the absence of clear evidence of the Applicant recognising such behaviours as undesirable and detrimental to young people with whom he may work, and addressing these behaviours, I would have concerns regarding his suitability to work with children and young people.
  4. [134]
    Next, I turn to the firearms possession conviction
  5. [135]
    Unlawful Possession of Firearm - The Applicant’s conviction for unlawful possession of weapons raises issues of disregard for laws requiring the Applicant to obtain a firearm licence and a lack of responsibility in failing to ensure that the firearm was stored unsecured in his garden shed.
  6. [136]
    The safety factor is particularly concerning in view of the presence in the household of the Applicant’s then 8-year-old son, Z.
  7. [137]
    The disregard for legal requirements governing the possession of weapons and failure to take appropriate safety precautions in storing the weapon, have a direct bearing on employment involving children, where a display or condoning of such attitudes would clearly not be in the best interests of children.
  8. [138]
    Finally, I consider the two domestic violence offences with which the Applicant was charged – dangerous conduct with weapons and deprivation of liberty.
  9. [139]
    Dangerous Conduct with Weapons - As noted earlier, the charge of dangerous conduct with weapons was withdrawn because of lack of the supporting evidence required to prove the commission of the crime beyond reasonable doubt. The charge was also withdrawn in return for a guilty plea to the possession and trespass charges.
  10. [140]
    I note that police were unable to find evidence of the gun being fired into the ground. However, while the evidence as to the gun’s presence being used to threaten SJ and force JS to return home was insufficient to satisfy the criminal standard of proof, sufficient evidence is available to make the issue relevant to this review.
  11. [141]
    This charge is almost totally reliant on the evidence of SJ, the former partner of the Applicant’s father. The evidence given by the Applicant and JS is not altogether convincing as an explanation for why SJ would fabricate her account of the Applicant twice pointing the gun at her and firing into the ground.
  12. [142]
    I find that the Applicant was less than forthcoming, and in some respects misleading, in his statements to the police in order to conceal dangerous conduct with a weapon.
  13. [143]
    Resorting to using a weapon to intimidate or frighten another person, as the evidence suggests, is not the behaviour expected of a person working with children. However, I note that the evidence also suggests that this behaviour was not part of a pattern of behaviour and represented the cumulative effect of several factors leading to what appears to be an isolated incident.
  14. [144]
    The evidence as to this serious charge is further considered below, when weighing up protective and risk factors.
  15. [145]
    Deprivation of Liberty - The Applicant had also been charged with the domestic violence offence of deprivation of liberty, unlawfully detain/contain.
  16. [146]
    As previously noted, the prosecution was unable to find sufficient evidence to prove this offence beyond reasonable doubt ,and agreed not to offer evidence in return for a guilty plea to lesser charges.
  17. [147]
    The alleged commission of this offence related to the Applicant forcing his way into JS’s car, having her drive to the gate and taking her home in his car. 
  18. [148]
    JS says that her only recollection is driving home with the Applicant yelling and both of them verbally abusing each other. Consequently, in her statement SJ did not offer conclusive and clear evidence of deprivation of liberty.
  19. [149]
    The Applicant states that he argued with JS but did not force her to go home against her will.
  20. [150]
    On balance, what the evidence establishes is that an inebriated Applicant probably arrived at SJ’s property where he verbally abused SJ and later his partner for having gone to SJ. The evidence also suggests that an inebriated JS also yelled and abused the Applicant. He insisted, and probably demanded, that she come home with him, which she did, while screaming and arguing.
  21. [151]
    Irrespective of whether the Applicant’s actions amounted to deprivation of liberty, there is sufficient evidence to establish on balance that the Applicant imposed his will on JS using verbal coercion, if not also some physical force, as reported scratches on JS’s face suggest.
  22. [152]
    The Applicant and JS have consistently maintained that in the past they had put each other down, yelled at each other, called each other names and that JS had previously left following an argument. They have also consistently maintained that previously there had been no physical violence, intimidation or imbalance of power within their relationship.

Domestic Violence

  1. [153]
    Evidence of how the Applicant and JS dealt with disagreements, clearly establishes that even in the absence of physical violence their actions did constitute domestic violence.
  2. [154]
    On this basis, on 6 February 2017, police applied for a domestic violence  order, to protect JS and Z from the Applicant.[73] Police concerns related to the alleged dangerous conduct with weapons and deprivation of liberty, based on allegations made by SJ that the Applicant had made threats by pointing a rifle, and that he forced SJ to return home with him against her will. In addition, police had also received information to suggest that Z had been present and witnessed the events of that night. Police also believed that the Applicant had been controlling of JS for some time.[74]
  3. [155]
    In their application for a domestic violence protection order, Police stated that they did not believe JS’s statements that she could not remember the offending actions allegedly committed by the Applicant. JS attributed this loss of memory to excessive alcohol consumption.
  4. [156]
    The Domestic and Family Violence Protection Act 2012 (Qld) defines domestic violence as

Domestic behaviour by a person towards another person with whom the first person is in a relevant relationship that—

  1. (a)
    is physically or sexually abusive; or
  1. (b)
    is emotionally or psychologically abusive;
  1. (c)
    is economically abusive; or
  1. (d)
    is threatening; or
  1. (e)
    is coercive; or
  1. (f)
     any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.[75]
  1. [157]
    For the purposes of the Family Law Act 1975 (Cth) family violence means

Section 4AB …violent, threatening or other behaviour by a person, that coerces or controls a member of the person’s family or causes the family member to be fearful.

  1. [158]
    The Act lists examples of behaviour that constitute family violence. These include ‘repeated derogatory taunts’[76]. The Act also deems a child to be exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.[77]
  2. [159]
    When domestic violence is considered in its broader sense as recognised by state and commonwealth legislation, there is little doubt that domestic violence characterised the relationship between the Applicant and JS. There is also little doubt that their son, Z, was exposed to the negative effects of the domestic violence.
  3. [160]
    The Applicant’s resort to verbal violence against an intimate partner reflects the presence of negatives attitudes towards his partner and perhaps women in general. It also appeared to implicitly condone control and verbal abuse as a means of resolving arguments. These traits were undesirable and dangerous for Z and for children with whom the Applicant would work if given a positive notice.
  4. [161]
    As a result of the events on 3 February 2017, the Department of Child Safety investigated ‘information [suggesting] that the child [Z] is at an unacceptable risk of experiencing significant emotional harm as a result of living with domestic violence’. The information included a report that while at home and possibly with the child present the Applicant pointed a gun at JS and called her a ‘fucking slut’.
  5. [162]
    Child Safety Officers expressed ‘concerns for the emotional impact on the child given the severity of the offence’, and even though unaware of any other domestic violence in the home indicated that ‘no parent [was]willing and able to protect the child from being exposed to such events’.[78]
  6. [163]
    The outcome of the child safety investigation of the risk to Z was assessed as low, and concluded that Z was not in need of protection. Child Safety had found that there was ‘insufficient evidence to indicate that Z has been, or is at risk of physical and emotional harm and that his safety and wellbeing is at risk in his current environment’.
  7. [164]
    There is no evidence that Z witnessed the argument between the Applicant and JS before she left the house and drove to SJ’s property. The police also reported that Z was asleep when they came to the Adult’s house and arrested him. However clear evidence as to Z being prompted by the Applicant to accuse her of not caring and leaving them, even if not recalled by his parents, does evidence Z being used as a weapon in at least that argument between his parents.
  8. [165]
    Child safety officers, who spoke with Z about his parents’ arguments, report that ‘he did feel worried when they fought (and by fighting he means they sometimes yell at each other) and he did not like this’.
  9. [166]
    The Domestic Violence Order stated that

The Court is satisfied that the respondent has committed an act of domestic violence against the aggrieved and that the respondent is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence.

  1. [167]
    While the Applicant agreed to attend counselling regarding domestic violence, JD indicated that she has not and is not interested in contacting a DV service due to this not being prevalent in their relationship.
  2. [168]
    The Applicant’s domestic violence is significant in that children exposed to domestic violence have been shown to suffer a variety of detrimental effects.
  3. [169]
    However, the Applicant has stated that he has a clear insight into the inappropriateness of domestic violence as a means of resolving disputes and maintaining a respectful relationship. He says that he and JS have altered the manner in which they address and resolve arguments.
  4. [170]
    The manner and extent to which the Applicant has addressed this issue is further discussed below.

Fifth, the penalty imposed by the court and reasons for not imposing an imprisonment order and reasons for its decision.[79]

  1. [171]
    Acting Magistrate Heggie gave the following reasons for not recording a conviction:

In light of [the Applicant’s] evident remorse, his otherwise good character, the fact that he’s a contributing member of society. His prospects are considerable in terms of his contribution to the community. It would appear to be an aberration, perhaps fuelled by alcohol, which we hope doesn’t happen again and on that basis I won’t be recording a conviction.[80]

  1. [172]
    The Magistrate added:

I note also the fact that he’s had these charges weighing over him for the past… nine months, but he’s persisted in otherwise pursuing his goals despite the potential adverse outcome to him, which demonstrates his character.[81]

  1. [173]
    In formally sentencing the Applicant, by imposing one penalty for the two offences, and placing the Applicant on a 12-month good behaviour bond, the Magistrate listed the factors he took into account in determining an appropriate penalty.
  2. [174]
    The Magistrate observed that the Applicant had pleaded guilty to two charges, which the Magistrate held indicated remorse. He also told the Applicant that his lack of any [criminal] history ‘in the light of the very favourable references’ suggested that ‘this incident is out of character for you and is not likely to occur again’.[82]
  3. [175]
    The Magistrate also remarked that the materials tendered suggested that  ‘obviously’ the Applicant had ‘learned a rather significant lesson’.[83] He further observed that the Applicant had acknowledged that he had issues and had taken steps to seek counselling to make sure ‘this does not happen again’.[84] 
  4. [176]
    While the two most serious charges were dismissed by the court it was not necessarily because they were necessarily unfounded. It was largely because the Applicant and his partner JS were less than forthcoming with information during police investigation and even appeared to instruct their son Z not to discuss their domestic life with child safety officers and police.[85]
  5. [177]
    Consequently, it was not surprising that the charges were withdrawn and evidence was not offered for the two most serious offences in return for a plea of guilty on the lesser two charges.
  6. [178]
    On the other hand, inferences as to outcomes at the trial need to also take into account the submission that the Applicant’s decision to plead guilty and not contest the domestic violence order may reflect the financial strain of protracted legal representation.
  7. [179]
    In drawing inferences from sentences imposed, it is important to keep in mind that findings in criminal proceedings are based on evidence presented by the parties. A Magistrate may be presented with limited evidence or even no evidence, as occurred in this case with respect to the two domestic violence offence charges. In addition, in the criminal proceedings against the Applicant the prosecution had to satisfy the Magistrate beyond reasonable doubt of the Applicant’s culpability.
  8. [180]
    In contrast, this Tribunal’s findings as to the existence of an exceptional case draws on all available evidence, is not confined by rules of evidence, nor by a focus on the Applicant’s criminal culpability.
  9. [181]
    This review is not concerned with determining the Applicant’s culpability, is able to consider any evidence it deems relevant, and  seeks to determine on the balance of probabilities not whether the Applicant  committed the offences, but rather whether on the balance of probabilities there is a risk that the Applicant’s working with children would not be in their interest.
  10. [182]
    In conclusion, the leniency of the penalty imposed by the Magistrate highlights aspects of the Applicant’s character and reputation that appear to support the submission that the incident was one-off and out of character.
  11. [183]
    However, both the leniency of the penalties imposed for two offences and the dismissal of the two other charges need to also be assessed in the context of the reasons for the ‘no evidence to offer’ arrangement and the consequent limited evidence presented to the Court.

Sixth, Information about the person received by the Respondent.[86]

  1. [184]
    No relevant information about the person was given to the Chief Executive by the Director of Public Prosecutions or by the Corrective Services under section 318 or 319.[87] No report about the Applicant’s mental health was given to the Chief Executive under section 335.[88] And, no information about the Applicant was given to the chief executive under sections 337 or 338 by the Mental Health Court or the Mental Health Review Tribunal.[89]

Lastly, ‘Anything else relating to the commission, or alleged commission, of the offence that the [decision maker] reasonably considers to be relevant to the assessment of the person.[90]

  1. [185]
    The final mandatory consideration requires the chief executive (or in this case, the Tribunal) to consider anything else that both, a) relates to the commission of the offence and b) that the chief executive reasonably considers to be relevant to the assessment of a person’s suitability to work with children.
  2. [186]
    Some issues that were not elements of the charges brought against the Applicant have already been considered. Consequently, I propose to focus on the Applicant’s consumption of alcohol and on remaining aspects of the issue of domestic violence and its effect on the Applicant’s son, children and young people with whom the Applicant would work if issued a positive notice.

Domestic Violence

  1. [187]
    The domestic violence protection order was applied for by police who formed the view that despite her denials, JS was in danger of domestic violence from the Applicant.
  2. [188]
    While the Applicant denied the presence of domestic violence in his relationship, he did concede that he and JS had been belittling of each other and that during a period of financial strain he had denigrated JS for her financial contribution and her spending.
  3. [189]
    At the time of the offences, police also expressed concern about the impact of the perceived domestic violence on the Applicant’s and JS’ son, Z. Their concerns were referred to the Department of Child Safety, Youth and Women. The Tribunal ordered the Department to produce among other documents, any ‘family risk or social assessments ‘dating from 1 January 2010 to 1 July 2019, pertaining to the Applicant.[91]
  4. [190]
    According to Child Safety documents, the specific allegations were that JS had told SJ that she had been scared when she left her home following an argument with the Applicant during which he had pointed a gun at her and told her she was a, ‘fucking slut’. 
  5. [191]
    The concerns identified by the Department also noted that before the Applicant drove to SJ’s property, he had left a phone message for JS in which he prompted Z to say, ‘Mummy you don’t care about us at all’.
  6. [192]
    Following the incident on SJ’s property police located the Applicant and SJ at home and noticed that Z was asleep during their visit. When providing a detailed statement to the police, SJ told them that ‘she believes his acts were the result of drunken choices…[but] still believes that she requires protection from him’.
  7. [193]
    According to the Department’s outline of concerns received, JS’s reluctance ‘to assist with inquiries into this matter ‘it cannot be ascertained whether Z witnessed his parent’s arguments and in particular the Applicant threatening JS with a rifle just prior to her departure to SJ’s property.[92]
  8. [194]
    Although there was some suggestion that Z may have been present in the car driven by the Applicant, the Department notes that that evidence suggested that the child was at home asleep.
  9. [195]
    With respect to the child being in danger from domestic violence the Department observes that Z ‘is not listed as a named person on the DVO and that there is nothing within bail conditions that prohibits Mark from seeing the child.’[93]
  10. [196]
    Initially the concerns were assessed as suggesting that Z is ‘at an unacceptable risk of experiencing significant emotional harm as a result of living with domestic violence’ and that, ‘there is currently no parent willing and able to protect the child from [being] exposed to such events’.[94] Consequently. the matter was referred to and investigated by the Child Safety Officers.
  11. [197]
    When Child Safety Officer interviewed Z at school, Z appeared to be well looked after and ‘spoke positively about [the Applicant]’. The Child Safety Officer reports that Z said that he did feel worried when [his parents] fought, adding that ‘by fighting he means they sometimes yell at each other and he does not like this.’ Z is also reported as saying that he had never seen his parents ‘hurt each other’.[95]
  12. [198]
    When the Applicant and JS were confronted about yelling each other they said that, ‘it has been a problem in the past and is something they will continue to work on with their psychologists to address these concerns.’[96]
  13. [199]
    When the Child Safety Officers interviewed the Applicant some four months after the incident the Applicant conceded that  due to his study of psychology and his work as a youth worker, he should be more aware of the detrimental impact of domestic violence on children, and added that, ‘this is why he is continuing to work on his relationship and continue with psychologist sessions’.
  14. [200]
    The outcome of Child Safety Investigation was that Z was found not to be in need of protection. The report risk evaluation was assessed as ‘low due to no child protection history recorded…current housing, psychological care of child being met by parents and no history of mental health, drug and alcohol misuse and criminal history.’ However, the qualification is that the ‘investigation and assessment is recorded as unsubstantiated [due to] insufficient evidence.[97]
  15. [201]
    There were also some suggestions that Z had been subject to physical punishment and otherwise abused, but the investigation established that the allegations were unfounded.[98]
  16. [202]
    While the accusations were strenuously denied by the Applicant and JS, the issues were clearly brought to their attention and the evidence suggests, heard by Z’s parents.
  17. [203]
    While both the Applicant and JS remain reluctant to accept that terms and stigma like domestic violence apply to them, they have recognised the need to address these issues in a manner likely to lessen the prospects of these elements appearing again in their lives.
  18. [204]
    The Applicant and JS have recognised the nature of their confrontations. The Applicant has taken positive steps, and both parties have attended couples counselling.
  19. [205]
    While the Respondent is critical of the couple’s counselling not addressing the offences, I note that both individual and couples counselling addressed communication, interpersonal communication and a respectful ways of handling differences and arguments.

Excessive Consumption of Alcohol

  1. [206]
    The final factor that I propose to consider is the excessive consumption of alcohol by the Applicant and his partner at the time of the incident. The evidence suggests that the couple resort to alcohol had accompanied the stresses of financial difficulties and resulting stresses on their relationship.
  2. [207]
    I accept that the offences proved to be a wake-up call as to the impact of excessive alcohol consumption. There is no evidence of an alcoholic dependence issue but rather a need to recognise significant consumption of alcohol can cause other issues to escalate to dangerous levels.
  3. [208]
    While not the subject of a charge or conviction, excessive use of alcohol was clearly a catalyst or trigger for the Applicant’s behaviour. The use of alcohol on the evening of the offences was not a one-off occurrence. I note the Applicant’s conviction for drink driving in 2011, and accounts of frequent drinking by JS and the Applicant. I also note that the Applicant and JS were most likely intoxicated whilst driving to and from SJ’s property.
  4. [209]
    In order to set an appropriate example to children and not endanger them by the effect of alcohol on his behaviour, the Applicant needed to demonstrate a commitment to responsible alcohol intake if his employment in child related employment is not to be regarded as not being in the best interest of children.

RISK AND PROTECTIVE FACTORS

  1. [210]
    The Tribunal’s practice of identifying and weighing-up risk factors against protective factors when deciding whether a particular case is an exceptional case, was approved by the Court of Appeal in Maher.[99]
  2. [211]
    When identifying risk factors, the Tribunal in GP v Commissioner for Children and Young People[100] adopted the approach of New South Wales courts in corresponding cases by defining ‘risk’ in this context to mean, ‘real and appreciable risk’.[101] The Tribunal held that when identifying risks,

as part of its consideration of whether an exceptional case exists ... the tribunal is not concerned with what may be mere possibilities but rather will require foundation in fact. The Tribunal is looking at whether in all the circumstances there is a real and appreciable risk’

  1. [212]
    Regarding protective factors, Courts have held that in order for a factor to be a relevant protective factor, it must be protective of children or must lessen risks to children. Thus, in Scott[102] Buss J held that, ‘The Act is only intended to benefit children in so far as it is intended to protect them.[103]

Protective Factors

One: The Applicant’s Employment History

  1. [213]
    The Respondent notes that ‘the Applicant has a history of employment in numerous different roles and has more recently worked successfully as a youth worker with a number of different organisations.’[104]
  2. [214]
    As the focus of the Tribunal’s review is on potential risk to children, judicial authority is clear that any hardship suffered by the Applicant through his loss of the blue card is irrelevant to the Tribunal’s deliberations.[105]
  3. [215]
    As noted above, I accept that in order to be deemed a protective factor the Applicant’s work record, and likely work if issued a positive notice, must benefit children by protecting them. As Justice Buss said in Scott[106] ‘any benefit that might be thought to flow to children by having access to the Applicant’s knowledge, experience or flair in working with children is of no relevance if there exists an unacceptable risk to children in future contact.’
  4. [216]
    I agree with the Respondent’s implied submission that the applicant’s work, especially that with youth, has been beneficial to them by lessening risks and thus promoting their welfare. In sentencing the Applicant, Magistrate Haggie noted the value of the Applicant’s work in assisting youth through his case reports in ‘sentencing occasions’.[107] Mr Feeney, Counsel for the Applicant in the trial, outlined to the Court, how through his work, the Applicant had promoted the welfare and reduced risk to the youth of the area.
  5. [217]
    With the Applicant’s eligibility to be issued a blue card in mind, Mr Feeney consequently urged the Magistrate not to record a conviction.[108] In not recording a conviction and not imposing a custodial sentence, the Magistrate stressed the benefit of the Applicant’s work to the community and youth in particular.[109]
  6. [218]
    I note that judicial authority about an Applicant’s work with children not constituting a protective factor is qualified in that such work is deemed relevant where the Applicant’s work benefits children by protecting them, as long as it does not (re)introduce an unacceptable risk to children.
  7. [219]
    I find the qualification to apply in this case.  The materials and especially the references and court transcript provide ample evidence that the Applicant has made positive contribution and is likely to do so in the future. His work is recognised as protecting young people and contributing to their well being and best interests.
  8. [220]
    Consequently, I find that the Applicant’s contribution to the promotion of the welfare and protection from risk of youth in his community is a significant protective factor. 

Two: Beneficial Counselling

  1. [221]
    The Respondent submits that, ‘Given the nature of the charges and convictions in this matter, the provision of appropriate psychological evidence is critical’.[110]
  2. [222]
    While agreeing, I see a need to qualify this statement by observing that the determination of the nature and duration of required counselling needs to be considered in the light of evidence suggesting that apart from the drink driving offence in 2011, the offences and charges that led to a reassessment of the Applicant’s suitability to be issued a positive notice relate to one alcohol-fuelled evening.
  3. [223]
    As the Respondent notes, the Applicant, ‘has sought individual counselling for himself and has undertaken couples counselling with JS, and maintains that his counselling and has led to improvements in his life’.[111]
  4. [224]
    The Applicant has provided three letters of support and reports from Psychologists. In his ‘life story’ submission to the Tribunal he notes that he has had 12 one-hour sessions from February to November 2017. These sessions he told the Tribunal, focused on awareness and control of his anxiety and stress levels.[112]
  5. [225]
    The Applicant also stated that between February 2017 and June 2018, he attended 16 one-hour counselling sessions with Pastor C, focusing on forgiveness, healing and strengthening.[113]
  6. [226]
    The Applicant has emphasised that through the 13, one-hour couples counselling sessions in 2017, he learned effective communication skills and in his words, ‘how to positively express my thoughts and feelings…how to positively deal with my emotions, reduce stress and communicate positively’.[114] He also states that the counselling has strengthened his relationship with JS. 
  7. [227]
    The Applicant’s recent two offences are the relatively minor offences of possession of a fire arm, which the evidence on balance suggests was used for hunting kangaroos and pigs, and trespass when the Applicant jumped over a fence in order to bring his partner home.
  8. [228]
    The first offence, while clearly not to be condoned, does not disclose significant, if any, issues for counselling. The evidence, I find, establishes that the Applicant has come to accept his irresponsibility in leaving the gun unsecured in his shed.
  9. [229]
    The second offence, when seen in the context of its commission by an intoxicated person, discloses a need to ascertain whether the Applicant respects boundaries, property rights and the autonomy of others, including his partner, and whether he recognises alcohol as a trigger and has an ongoing problem with alcohol.
  10. [230]
    Such issues can in some cases require protracted counselling and treatment. However, psychological reports and other evidence presented in this case establishes to my satisfaction, that the convictions were a wake-up call to the Applicant, and that he understands that what he did was wrong, and that he has come to recognise triggers, and has adequately addressed the offending behaviours.
  11. [231]
    The dismissed charges brought against the patient are classified as domestic violence offences and significantly more serious. But, at least to some extent, the charges relate to an isolated incident or, at most, the culmination of patterns of behaviour in the Applicant’s relationship, that appear to be no longer present.
  12. [232]
    The charge of dangerous conduct with weapon relates to the alleged pointing of a gun at SJ and firing into the gun into the ground. It had also been suggested by Child Safety Officers that the Applicant pointed the gun at JS before she left home to travel to SJ’s property, and that Z may have been a witness to that incident.[115] These charges have been consistently and strenuously denied by the Applicant, and rely on limited and potentially partial evidence.
  13. [233]
    Nevertheless, on balance, I suspect that the Applicant did bring the weapon to SJ’s property and used it to frighten her for harbouring JS. Having said that, I am not persuaded that the gun was fired into the ground. Even though police located the gun not long after it was allegedly fired, no evidence has been tendered to substantiate this allegation. What evidence there is, appears to be countered by indications that the gun was not fired.
  14. [234]
    The charge of deprivation of liberty is less clear. There is little evidence as to the Applicant forcing his way into JS’s car, of preventing her from leaving the car and of forcing her to drive home in his car.
  15. [235]
    I wish to stress that I make the above findings not because I see it as my role to make a finding as to criminal culpability at a lower standard of proof. I do so to ensure that any implications for working with children, and the need for counselling, relate to founded allegations and charges that were not in part, or in whole, withdrawn because the police came to doubt the veracity of the allegations and convictions based on pleas of guilty entered for reasons other than a concession of culpability.
  16. [236]
    The issues that are the context of the events of 3 February 2017 and disclosed by the offences or alleged with which he was charged, relate mainly to the Applicant’s handling of stress and relationship disagreements. While this may appear to understate the seriousness of the charges, what cannot be ignored is the absence of any evidence suggesting that the Applicant was prone to physical violence, or verbal abuse other than within the parameters of his relationship with JS. Equally, there is no evidence of the Applicant mistreating his son or exposing him to any risks apart from witnessing and hearing his parents’ mutual verbal abuse.
  17. [237]
    The Respondent submits that ‘the limitations of the psychological evidence’ constitutes a risk.[116] For example, the Respondent submits that the health reports submitted on behalf of the Applicant are deficient in that they do not do not comply with certain requirements of Practice Directions and a rule of the Uniform Civil Procedure Rules.[117]
  18. [238]
    While I accept that there are some deficiencies, I do not consider that they are such as would render the content of their reports inadmissible as the reports of expert witnesses. This is particularly the case for the two reports prepared by Psychologists who attended the hearing to give oral evidence and through examination were able to redress any missing information. 
  19. [239]
    In particular, I note the Respondent’s concern about the lack of information regarding ‘the basis upon which some of the psychological assessments have been made. While some of this information was able to be gathered in examination of the witnesses, I note the Respondent’s concern and propose to take into account any gaps in the information and conclusions provided.

Three-The Applicant is now a Non-Drinker

  1. [240]
    The Applicant says that he abstains from consuming alcohol. I note supporting evidence that he has not consumed alcohol since 2017 and that he intends in the long term to limit his drinking to the occasional social drink. 
  2. [241]
    While the evidence suggests that excessive drinking at home with JS at least in part triggered the verbal abuse, the steps taken by Applicant appear to be sufficient to establish that he has recognised and is addressing this trigger.
  3. [242]
    On the basis of all the evidence I accept and agree with the opinion offered by LL at the hearing that alcohol abuse has not been identified as an ongoing issue.

Four – Supportive References and Support Network

  1. [243]
    The Applicant has submitted a large number of references as to his good character, and provided statements supportive of his application, from friends, work colleagues and a number of professional people who know him and are familiar with his work history and community involvement. They attest to him being caring and responsible, a loving family man, a leader to young people, and a father who has a strong bond with his son.
  2. [244]
    The references tendered by the Applicant are unchallenged in presenting the Applicant as someone who was charged and convicted of acts committed on an evening that was out of character with his personal reputation.
  3. [245]
    Writing in support of the Applicant’s suitability to resume work with young people, the witnesses not only attest to how he has changed since that evening, but also reveal the presence and nature of the Applicant’s support group.
  4. [246]
    The references are from people very well placed to know him and able to offer their views of why his lapse should not prevent him from returning to contributing to community in the way that he is best suited.
  5. [247]
    The references are on the whole, written by people who have and will continue to interact with the Applicant both professionally and socially. In particular I note that the Applicant’s mother, NP, who occupies a prominent and responsible position in her profession, has a good relationship with the Applicant, JS and their two children. She and other supportive friends appear to be well placed to offer any assistance and guidance if required in the future.
  6. [248]
    I turn to consider in greater detail the testimony of the witnesses called to attend the hearing to be examined.

Witnesses who gave oral evidence

  1. [249]
    RD is a Program Manager, familiar with the Applicant in his capacity as a youth worker. She stated that she was aware of the charges against him and had read Blue Card Services reasons for issuing him with a negative notice.
  2. [250]
    She told the Tribunal that she was shocked to hear the news that he had been charged, as he had worked well with youth from 2014-2017. She described his inability to continue in this work as a massive loss and indicated that she would encourage him to apply if he regains his positive notice.  She described his ability to remain calm as a key asset.
  3. [251]
    The second witness called by the Applicant was PJ, a Psychologist with significant experience in working with domestic violence issues. She told the Tribunal that the Applicant did not display any apparent risk markers for domestic violence.
  4. [252]
    PJ was questioned regarding the possibility that JS was simply declining to admit the domestic violence in her relationship with the Applicant. PJ replied that based on her experience this was not the case, explaining that was particularly the case when she was able to see an alleged victim without the allegedly abusive partner. She said that in such a situation any presence of domestic violence would ‘leak out’.
  5. [253]
    The Applicant’s spouse, JS, also appeared as a witness. Her testimony offered some insights into the tensions in their household prior to the events of 3 February 2017. She explained their financial stresses, observing that she worked in a coffee shop on a permanent part-time basis and was reckless with money while the Applicant was frustrated.
  6. [254]
    She was asked to explain why she drove to see SJ on the night of the incident. She told the Tribunal that she and the Applicant had started drinking around 5 pm. They argued over finances and she decided to leave so as to make the Applicant ‘distraught’, as he did not want her to be ‘influenced by’ SJ. She stated clearly that she did not go to SJ to seek shelter but rather to drink and annoy the Applicant.
  7. [255]
    When quizzed as to why the police reported that she looked terrified when they found her and the Applicant at home following the incident at SJ’s property, she replied that she was terrified of the police coming to the house in the early hours of the 4 February 2017.
  8. [256]
    She conceded that she attended couples counselling with the Applicant, so that they could see each other while prevented from doing so for legal reasons.
  9. [257]
    Like the Applicant, JS described the events as a wake-up call. She told the Tribunal that the nature of their arguments had changed, in that they had become more open and conscious of the impact on the other. Through counselling with Psychologist, LP, she said, they had acquired coping strategies.
  10. [258]
    As to the presence and alleged use of the gun, JS stated that she first became aware of the gun when the Applicant transferred it from his car to hers.
  11. [259]
    Throughout her presence in the witness box, JS denied the presence of domestic violence and stated that she never considered herself a victim of domestic violence.
  12. [260]
    NF, a senior medical practitioner who said that he had a close relationship with the Applicant and his mother, NP, was also called as a witness. NF stated that he was aware of the charges and of the reasons given to deny the Applicant a positive notice.
  13. [261]
    He testified that the Applicant was appropriate in his dealings with children and that he was happy to leave his children in the Applicant’s care. He also testified that he had not seen the Applicant consume alcohol even when alcohol was served.
  14. [262]
    The final witness was LL, a psychologist, who told the Tribunal about the Applicant’s high levels of stress relating to his court case and social issues in 2017. Consequently, her work with the Applicant at the time focused on assisting him manage high level stress, and the sessions concluded after the court action.
  15. [263]
    She observed that she was aware of the charges but that the Applicant had his own version of events, particularly with respect to the alleged deprivation of liberty, possession of firearm and domestic violence order.
  16. [264]
    On being examined about the aim of the therapy, LL replied that she focused on assisting the Applicant to better cope with then current stresses and consequently to be able to better cope in the future. She conceded that his childhood traumas were not discussed.
  17. [265]
    As to the Applicant’s alcohol consumption, LL stated that the Applicant’s drinking was discussed in 2017 sessions. She observed that his drinking had been a major factor and while she did not identify the drinking as an ongoing issue, she considered it an issue that led him to be charged.
  18. [266]
    Finally, I turn to the Applicant’s testimony and responses to questions at the Tribunal hearing. I will confine my outline to aspects not previously addressed.
  19. [267]
    The Applicant emphasised that he had no history of violence or dealings with the law.
  20. [268]
    He stated that he had taken responsibility for what had occurred through counselling with professions and his Pastor, explaining that this was with Psychologist LL, Pastor C and Psychologist LP for couples counselling.
  21. [269]
    When questioned about precursors to what had occurred, the Applicant conceded that on reflection it may have been an ‘unresolved childhood trauma’.
  22. [270]
    While stating that he was a non-drinker since 4 February 2017, he conceded that what had made him stop drinking was that he was required not to drink through counselling. The Applicant further stated that he had never been a violent drunk and that what had assisted his change was having a second child, counselling and self reflection.
  23. [271]
    Regarding his relationship with SJ. The Applicant said that he had asked SJ to leave as she had broken up with his father, had not being paying rent and because his father had told him that she had cheated on him. SJ left 10 days before the incident to move into a rental property.
  24. [272]
    The Applicant described SJ as full-on and self-centred. At the same time, he recognised that JS had a ‘civil relationship’ with SJ.
  25. [273]
    In his testimony regarding his pre-incident argument with JS, the Applicant mentioned that JS’s absence for a week had made their arguments over finances worse. He, nevertheless, said that their arguments had been ‘normal’ prior to the day of the incident. According to the Applicant, both he and JS had consumed six or seven vodka and cokes of increasing concentration before JS left the house.
  26. [274]
    The Applicant explained that the incident had not been discussed in counselling sessions as he was not allowed to under bail conditions.

Risks Present

  1. [275]
    I note the following as potential risk factors.

One - The Serious Nature of the Charges and Offences

  1. [276]
    The Respondent notes that the charges are relatively recent and relate to matters that are very serious. There are also indications that the Applicant’s son potentially witnessed and was involved in, part of the incident. These allegations are deeply concerning.
  2. [277]
    However, as I note elsewhere, even when the conflicting evidence is assessed at a civil standard of proof, the conflicting evidence, the context and the Applicant’s clean record, and the Applicant’s response reduce the level of concern significantly.
  3. [278]
    There is no doubt that the Applicant’s son has witnessed his parents arguing and abusing each other. Evidence from Child Security Officers indicates that Z did not like his parents arguing. On balance, Z appears to have been used by the Applicant to pressure JS through a phone call to come home.

Two - Domestic Violence

  1. [279]
    In issuing the domestic violence order the Court was responding to police concerns that the Applicant had a history of committing domestic violence against JS and that she and their son Z were at risk.
  2. [280]
    However, no evidence has been presented substantiating the allegations sufficiently to present an accurate perception of the issues in the household. In particular, allegations that involved threats of violence or use of weapons were contested, and even if partially accepted to be true, as I accept, do not evidence much more than a one-off incident that seemed to be out of character.
  3. [281]
    I have already concluded that the verbally volatile relationship between the Applicant and JS did amount to legal definitions of domestic violence and that Z had been subjected to domestic violence by witnessing his parents fight and belittle each other.
  4. [282]
    Finally, I note that the investigation by Child Safety Officers did not disclose a cause of concern beyond Z being unhappy and frightened when his parents argued. [118]
  5. [283]
    As on balance, evidence suggests that any arguments between Z’s parents are no longer conducted in front of him. The Tribunal has also heard testimony that the Applicant and JS have become more considerate of the other when arguing. Consequently, I do not see the domestic violence identified in 2017 to constitute a significant risk factor for the assessment of the Applicant’s suitability to work with children and young people.

Three – Transferability

  1. [284]
    When the Applicant last held a blue card, he was a youth worker. Consequently, in seeking to be reissued a positive notice, he did so, intending to return to this work. However, I note that he completed his Bachelor of Psychology studies in December 2019, and now works with adults as a Drug and Alcohol Counsellor.
  2. [285]
    As the Respondent points out, once granted a blue card the Applicant would be able to work in any child related employment or conduct any child related business supervised or unsupervised – not just the purpose for which Applicant has sought the card.[119]
  3. [286]
    I accept that as the Tribunal is not able to issue a conditional blue card the Applicant could work with children of any age gender or vulnerability.[120]
  4. [287]
    However, no evidence has been brought to my attention that would suggest that the Applicant’s involvement in particular child related employment or business would especially pose risks to the children or young people involved. Consequently, my assessment of risk is with respect to all categories of employment and business that is child related.
  5. [288]
    It is on this basis that I conclude that no evidence has been brought or able to be inferred from investigations and other materials that would suggest that transferability creates a risk to be taken into account.

Conclusion

  1. [289]
    In view of the object, purpose and nature of decisions enshrined in the Working with Children Act, and the inherent impossibility of predicting future risk with certainty, it is not surprising that past risks has been seen as indications of future risks justifying decisions being made with caution. 
  2. [290]
    However, I note that speculative risk is insufficient, and not able to be justified as being compliant with human rights. Any limits on the human rights of Applicants imposed by statutory provisions must be reasonable and justifiable, even where the overriding objective is to protect the safety and welfare of children. Consequently, when interpreting relevant statutory provisions, a decision maker is now obliged to consider and justify any limiting of an Applicant’s human rights. 

Weighing up Risks and Protective Factors

  1. [291]
    I have addressed the risks and protective factors flowing from the Applicant’s commission of offences, alleged offences, excessive consumption of alcohol and behaviour amounting to non physical domestic violence. Excessive consumption of alcohol has clearly been identified as a trigger to the Applicant’s actions around the time of the incident.
  2. [292]
    Although, the Applicant and JS have been reluctant to describe their controlling and verbally abusive domestic conflict as constituting domestic violence, it is again clear that their 8-year-old son was living in a domestic violence household.
  3. [293]
    However, the Tribunal’s role is to consider having weighed up the protective factors and identified risks factors whether the issuing of a positive notice to the Applicant would on balance pose a real and appreciable risk of harm to children and young people with whom he would work. 
  4. [294]
    The evidence overwhelmingly suggests that the factors that led to the events of 3 February 2017, are unique and confined to the then current circumstances. I am also satisfied that the events were a wake-up call for the Applicant and accept that he has addressed the issues relating to that night sufficiently to ensure that they do not reoccur.
  5. [295]
    With respect to the Applicant’s volatile and sometimes abusive relationship with his spouse, and his alcohol consumption, I am also satisfied that the Applicant’s resort to alcohol no longer poses a risk. Three years after the Applicant’s offences, and viewed against the Applicant’s life and behaviour since, and to a large extent before 3  February 2007 I find that the factors previously identified as risks are no longer relevant or have, through changes to the Applicant’s circumstances and understanding, become less than real and appreciable risks.
  6. [296]
    The proposed risks cannot be described as ‘real and appreciable’[121] and are overwhelmingly outweighed by protective factors of the Applicant’s past life and response to the incidents that led to his negative notice.

Non-Publication Order

  1. [297]
    These proceedings have raised the question of whether the closed hearings and the non disclosure of the identities of the child, parties, witnesses and third parties to these proceedings is compatible with human rights.
  2. [298]
    The Human Rights Act clearly states that a party to civil proceedings has a right have their proceeding decided after a public hearing. It also states that judgments and decisions made by a tribunal in a proceeding must be publicly available.
  3. [299]
    The relevant section of the Human Rights Act that lists the right to a fair hearing as a human right is Section 31. It provides (with my emphasis) that—
  1. (1)
    A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
  1. (2)
    However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice.
  1. (3)
    All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
  1. [300]
    The two aspects of this right that may appear to be limited by statutory provisions and the decision of this Tribunal relate to the hearings of these proceedings being closed to members of the media and general public, and secondly to the non publication order that I propose to make restricting the information regarding this decision and reasons for this decision that will be made publicly available.

Closed Hearing

  1. [301]
    Turning firstly to the matter of the proceedings being closed to members of the media and the public in general, I note the relevant statutory provisions governing this Tribunal’s process.
  2. [302]
    Section 90(1) of the QCAT Act provides that ‘Unless an enabling Act, that is an Act, provides otherwise, a hearing of a proceeding must be held in public’.
  3. [303]
    The qualification in s 90(1) relates to the provisions of enabling Acts. In this case the enabling Act is the Working with Children Act, which in s 361(1) states that, ‘A hearing of a proceeding for a QCAT child-related employment review must be held in private.’
  4. [304]
    In addition, the QCAT Act provides that a tribunal may direct a hearing to be closed if the tribunal ‘considers it necessary—
  1. (a)
    to avoid interfering with the proper administration of justice; or
  2. (b)
    to avoid endangering the physical or mental health or safety of a person; or
  3. (c)
    to avoid offending public decency or morality; or
  4. (d)
    to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  5. (e)
    for another reason in the interests of justice.[122]
  1. [305]
    The exclusion of the media and public from hearings in these proceedings, permitted under the provisions of the QCAT Act and the Working with Children Act, I find to be compatible with human rights as set out in section 31(1) and qualified in section 31(2) of the Human Rights Act.
  2. [306]
    However, even in the unlikely event that these provisions were found to limit the right to a public hearing, then they would be deemed to be reasonable and justified limits of the right, as provided in s 13(1) and (2) of the Human Rights Act.

Limits on Publication

  1. [307]
    The interests of justice that require proceedings to be closed may also require restraints on the publication of decisions and reasons for decisions such as these.
  2. [308]
    As set out above, the section 31(3) of the Human Rights Act requires all tribunal decisions to be publicly available.  The Act does not list any exceptions to this requirement. However, the Tribunal has made non-publication orders throughout these proceedings to protect the identity of Z, the Applicant, witnesses and third parties. I also intend to do so with respect to this decision and these reasons given for the decision.
  3. [309]
    The QCAT Act in section 66(1)(c) permits a tribunal to make a non publication order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.
  4. [310]
    However, the Tribunal may only make such an order if it considers the order necessary for a number of specific reasons[123] including ‘to avoid the publication of confidential information or information whose publication would be contrary to the public interest’[124], and ‘for any other reason in the interests of justice’.[125]
  5. [311]
    As the proceedings concern child-related employment under the Working with Children Act, the interests of justice require that nothing be published that could identify Z, as ‘he is clearly affect by the proceeding’. In addition, to permit his identity to be published would not only not be in the interests of justice but would also be inconsistent with the protection accorded during proceedings. 
  6. [312]
    I also consider it necessary  to prohibit the publication of the names or anything otherwise identifying the Applicant, witnesses or any third party to these proceedings, I consider this necessary, as the  publication of their names not only may, but in the circumstances is likely to unintentionally lead to not only the identification of the child,  but also to the disclosure of confidential information.
  7. [313]
    As to compatibility with the right enshrined in s 31(3) of the Human Rights Act, I find that the provisions permitting non publication orders and the actions of this Tribunal in issuing directions regarding non publication limit this right. However, I also find that the limit imposed is reasonable and justifiable for the purposes of s 13 of the Human Rights Act.
  8. [314]
    In this respect I note the factors that ‘may be relevant’ in accordance with section 13(2) of the Act. In particular I rely on ‘the importance of the purpose of the limitation’,[126] ‘the importance of preserving the human right, taking into account the nature and extent of the limitation on the right’[127], ‘the balance between the [last two factors]’[128] and ‘whether there are any less restrictive and reasonably available ways to achieve the purpose’.[129]
  9. [315]
    I note that the limit on the human right imposed by the QCAT Act is only exercisable if shown to be necessary. I also note that a non publication order that does not disclose names does not significantly impact the benefits and importance of public accountability.  Decisions and reasons are still published with only the identification of persons excluded. In addition, the publication of their identities may also not be in the interests of justice in that it may have the undesirable effect of deterring witnesses in similar cases from coming forward to testify. Finally, I note that in view of my findings and decision, the public interest does not require the Applicant to be identified.
  10. [316]
    On this basis, I consider it appropriate and necessary to make a non-publication order prohibiting the publication of statements, documents and any other information in these proceedings that may be capable of identifying the Applicant, any child, witness or third party in these proceedings.

CONCLUSION REGARDING COMPATIBILITY WITH HUMAN RIGHTS

  1. [317]
    I have considered the relevant human rights as set out in the Human Rights Act and other laws. In this review the Tribunal has acted in an administrative capacity and consequently, is ‘a public entity’ for the purposes of the Human Rights Act.
  2. [318]
    Acting as a public entity the Tribunal is required to state ‘the human rights Parliament specifically seeks to protect and promote’[130] and to act and make decisions in a way compatible with human rights’.[131] The Tribunal must also interpret statutory provisions  ‘to the extent possible that is consistent with their purpose in a way that is compatible with human rights’.[132]
  3. [319]
    On the basis of—
    1. (a)
      my specific findings above about the applicant’s:
      1. right to not be tried or punished more than once for an offence in relation to which he has been finally convicted or acquitted in accordance with law, and
      2. right against self incrimination and his right to a public hearing, and
      3. right to a fair hearing
  1. (b)
    relevant provisions of the Working with Children Act, and
  2. (c)
    the QCAT Act, as well as
  3. (d)
    the actions and decisions of this Tribunal,

I am satisfied that in this matter, the Tribunal has—

  1. given proper consideration to human rights relevant to the decision,[133]
  2. acted and made this decision in a way compatible with human rights,[134] and
  3. interpreted statutory provisions ‘to the extent that is consistent with their purpose, in a way compatible with human rights’.[135]
  1. [320]
    I am also satisfied that where the Tribunal identified limits on rights, the Tribunal has determined whether any limits imposed are reasonable and justifiable in accordance with s 13 of the Human Rights Act.

OVERALL FINDINGS

  1. [321]
    I have considered all the materials before the Respondent at the time the reviewable decision was made, as well as the additional materials produced for this review, and the sworn evidence given at that hearing. I have also considered the evidence in the light of the statutory factors listed in s 226(2), to which the Tribunal, as decision maker, must have regard, the Act’s object and principles, and I have identified and weighed the risks against the protective factors.
  2. [322]
    As the Court of Appeal held in Maher[136] in order to confirm a decision that a case is exceptional, the Tribunal is ‘required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would harm the best interest of children for a positive notice to be issued’[137]
  3. [323]
    With that in mind, on the basis of all my findings and recognising that the paramount consideration is the welfare and best interest of children and young people, I make the following finding and decision.
  4. [324]
    I am not satisfied that the Applicant’s case is, in terms of s 221(2) of the Working with Children Act, ‘an exceptional case in which it would be in the interest of children for the chief executive to issue a positive notice.

Decision

  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.
  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to that extent that such could identify or lead to the identification of the applicant, any child, witness, or third party in these proceedings.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000, s 156, Schedule 1.

[2] Working with Children (Risk Management and Screening) Act 2000, Chapter 8 Part 4, Division 4.

[3] Provided in response to the Tribunal’s Notice to Produce issued on 23 September 2019.

[4] Working with Children (Risk Management and Screening) Act 2000, s 317.

[5] In defined circumstances, the Working with Children (Risk Management and Screening) Act 2000authorises the chief executive to ask the Queensland Police Commissioner (s 311) and obtain certain police information interstate police commissioners for certain information about a person’s criminal record (s 320).

[6] Request for Submissions letter to Applicant from Blue Card Services dated 27 March 2018.

[7] Reasons for refusing to cancel a negative notice, 19 March 2019, Materials presented by Respondent, BCS-1.

[8]  Information provided by Queensland Police Service on 19 March 2018, cited by Respondent in Reasons for Refusing to Cancel a Negative Notice, dated 19 March 2019, at p 6.

[9] ‘Request for Submissions’ letter to Applicant from Blue Card Services, dated 27 March 2018, Respondent’s materials, BCS-61.

[10] Queensland Civil and Administrative Tribunal Act 2009, s 17.

[11] MAP, Application to Review a Decision, 11 April 2019, Part C.

[12] Queensland Civil and Administrative Tribunal Act 2009, s 19(a).

[13] Queensland Civil and Administrative Tribunal Act 2009, s 19(c).

[14] Queensland Civil and Administrative Tribunal Act 2009, s 20(2).

[15] Queensland Civil and Administrative Tribunal Act 2009, s 20(1).

[16] Queensland Civil and Administrative Tribunal Act 2009, s 21(2)(b), (3).

[17] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(c).

[18] Queensland Civil and Administrative Tribunal Act 2009 s 24(1).

[19] Human Rights Act 2019 s 58.

[20] Human Rights Act 2019 s 3.

[21] Human Rights Act 2019 s 4.

[22] Human Rights Act 2019 s 9(4)(b).

[23] PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327.

[24] Re Kracke and Mental Health Review Board (2009) 29 VAR 1 at para [279].

[25] PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at para [117].

[26] PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at para [123].

[27] Re Kracke and Mental Health Review Board (2009) 29 VAR 1, at para [279].

[28] Human Rights Act 2020 ss 4(b), 58(1)(a).

[29] Human Rights Act 2020 s 59(1)(b).

[30] Human Rights Act 2020 ss 4(b) and (f); 58(1).

[31] Human Rights Act 2020 Part 2 Division 2.

[32] Human Rights Act 2020 Part 2 Division 3.

[33] Human Rights Act 2020 s 4(f).

[34] Human Rights Act 2020 s 48(1).

[35] Human Rights Act 2020 s 48(2).

[36] Human Rights Act s 8(b).

[37] Kent v Wilson [2000] VSC 98 at [22], cited with approval by the QCAT in Commissioner for Children and Young People v FGC [2011] QCATA 291 at [31].

[38] Working with Children (Risk Management and Screening) Act 2000, s 5.

[39] Working with Children (Risk Management and Screening) Act 2000, s 5.

[40] Working with Children (Risk Management and Screening) Act 2000, s 6.

[41] LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244 citing Re FAA [2006] QCST 15, [22].

[42] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at paragraph [30] citing test in Briginshaw v Briginshaw & Anor [1938] HCA 34 as authority.

[43] Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

[44] Working with Children (Risk Management and Screening) Act 2000, (2)(e).

[45] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(i).

[46] See, Working with Children (Risk Management and Screening) Act 2000, Schedule 7.

[47] TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para [83].

[48] Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391. Ms Bligh, cited by Member McConnell in Luong v Director-General, Department of Justice and Attorney-General [2019] QCAT 302 at [9].

[49] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 referring to Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28 at para 84.

[50] Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28 at para 84.

[51] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 para 58.

[52] TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489.

[53] TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para 89.

[54] TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para 90.

[55] Working with Children (Risk Management and Screening) Act 2000, s 5.

[56] Human Rights Act 2019, s 13(2).

[57] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(ii).

[58] Working with Children (Risk Management and Screening) Act 2000, s 167; schedule 2.

[59] Working with Children (Risk Management and Screening) Act 2000, s 168, schedule 4.

[60] Working with Children (Risk Management and Screening) Act 2000, s 221 and Chapter 8 Part 4 Division 9   in general.

[61] Working with Children (Risk Management and Screening) Act 2000, s 221(1)(c).

[62] Working with Children (Risk Management and Screening) Act 2000, s 221(1)(b)(iv).

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

[64] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iii).

[65] See for example R v Cotic [2003] QCA 43 at paras 5-6. Though the remarks are with reference to the sexual abuse of children, they undoubtedly have wider application.

[66] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iv).

[67] TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489.

[68] TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489 at para 89.

[69] Transcript of Proceedings, 28 November 2017, Documents submitted by the Respondent, BCS-92 and 93.

[70] Transcript of Proceedings, 28 November 2017, Documents submitted by the respondent, BCS-93, 16-17.

[71] Police brief of facts, Documents submitted by the respondent, BCS-49.

[72] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-5.

[73] Provided in response to the Tribunal’s Notice to Produce issued on 23 September 2019.

[74] Notice to Produce materials Department of Justice and Attorney-General, Grounds for Application for Protection Order by Queensland police Service, p 5.

[75] Domestic and Family Violence Protection Act 2012 (Qld) s 8(1).

[76] Family Law Act 1975 (Cth), s 4AB (2)(d).

[77] Family Law Act 1975 (Cth), s 4AB (3).

[78] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-13.

[79] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(1)(v).

[80] Acting Magistrate Heggie, Transcript of Proceedings Mareeba Magistrates Court 28 November 2017; BCS 97.

[81] Acting Magistrate Heggie, Transcript of Proceedings Mareeba Magistrates Court 28 November 2017; BCS 98.

[82] Acting Magistrate Heggie, Transcript of Proceedings Mareeba Magistrates Court 28 November 2017; BCS-100.

[83] Acting Magistrate Heggie, Transcript of Proceedings Mareeba Magistrates Court 28 November 2017; BCS 100.

[84] Acting Magistrate Heggie, Transcript of Proceedings Mareeba Magistrates Court 28 November 2017; BCS 100.

[85] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-37.

[86] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(b), (c) and (d).

[87] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(b).

[88] Working with Children (Risk Management and Screening) Act 2000 s 226(2)(c).

[89] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).

[90] Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).

[91] Order dated 23 September 2019, pursuant to Queensland Civil and Administrative Act 2009 s 63.

[92] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-4.

[93] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-6.

[94] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-13.

[95] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-17.

[96] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-17.

[97] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-38.

[98]Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-37.

[99] Commissioner for Children and Child Guardian v Maher and Anor [2004] QCA 492.

[100] GP v Commissioner for Children and Young People [2013] QCAT 324.

[101] GP v Commissioner for Children and Young People [2013] QCAT 324 at [14].

[102] Chief Executive Officer of Child Protection v Scott (No 2) 2008 WASCA 171.

[103] Chief Executive Officer of Child Protection v Scott (No 2) 2008 WASCA 171, [109].

[104] Respondent’s Outline of Submissions p 12.

[105] Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171 at [109].

[106] Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171 at [109].

[107] Transcript of Proceedings, Mareeba Magistrates Court 28 November 2017, BCS-95.

[108] Transcript of Proceedings, Mareeba Magistrates Court 28 November 2017, BCS-95-96.

[109] Transcript of Proceedings, Mareeba Magistrates Court 28 November 2017, BCS-96, 100.

[110] Respondents Outline of Submissions, p 15.

[111] Respondent’s Outline of Submissions, p 12.

[112] Applicant’s ‘Life Story’ 19 June 2019, pp 2-3.

[113] Applicant’s ‘Life Story’ 19 June 2019, pp 3.

[114] Applicant’s ‘Life Story’ 19 June 2019, p 3.

[115] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-13.

[116] Respondent’s Outline of Submissions p 15.

[117] Respondent’s Outline of Submissions p 15.

[118] Department of Child Safety, Youth and Women, Notice to Produce materials, NTP-38.

[119] Respondent’s Outline of Submissions, p 16.

[120] Respondent’s Outline of Submissions, p 16.

[121] GP v Commissioner for Children and Young People [2013] QCAT 324 at [14].

[122] Queensland Civil and Administrative Tribunal Act 2009, s 90 (2).

[123] Queensland Civil and Administrative Tribunal Act 2009, s 66(2).

[124] Queensland Civil and Administrative Tribunal Act 2009, s 66(2)(d).

[125] Queensland Civil and Administrative Tribunal Act 2009, s 66(e).

[126] Human Rights Act 2019, s 13(2)(e).

[127] Human Rights Act 2019, s 13(2)(f).

[128] Human Rights Act 2019, s 13(2)(g).

[129] Human Rights Act 2019, s 13(2)(d).

[130] Human Rights Act 2019, s 4(a).

[131] Human Rights Act 2019, s 4(b).

[132] Human Rights Act 2019, s 48(1).

[133] Human Rights Act 2019, s 58(1)(b).

[134] Human Rights Act 2019, s 58(1)(a).

[135] Human Rights Act 2019, s 4(f).

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

[137] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [30].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 527

  • Court:

    QCAT

  • Judge(s):

    Member Stepniak

  • Date:

    15 May 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
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
3 citations
Jump To
Cite 1 - (2008) WASCA 28
Cite 2 - (2008) WASCA 28
Cite 3 - (2008) WASCA 28
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
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 Maher & Anor [2004] QCA 492
5 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Cite 5 - [2004] QCA 492
GP v Commission for Children and Young People [2013] QCAT 324
4 citations
Jump To
Cite 1 - [2013] QCAT 324
Cite 2 - [2013] QCAT 324
Cite 3 - [2013] QCAT 324
Cite 4 - [2013] QCAT 324
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244
2 citations
Jump To
Cite 1 - [2017] QCAT 244
Cite 2 - [2017] QCAT 244
Luong v Director-General, Department of Justice and Attorney-General [2019] QCAT 302
1 citation
Jump To
Cite 1 - [2019] QCAT 302
PJB v Melbourne Health & Anor (Patrick's Case) [2011] VCS 32
1 citation
Jump To
Cite 1 - [2011] VCS 32
PJB v Melbourne Health and Anor (Patrick's case) [2011] VCS 327
3 citations
Jump To
Cite 1 - [2011] VCS 327
Cite 2 - [2011] VCS 327
Cite 3 - [2011] VCS 327
R v Cotic [2003] QCA 435
1 citation
Jump To
Cite 1 - [2003] QCA 435
R v Liddy (No 2) [2002] SASC 306
1 citation
Jump To
Cite 1 - [2002] SASC 306
R v McKiernan[2003] 2 Qd R 424; [2003] QCA 43
1 citation
Jump To
Cite 1 - [2003] QCA 43
Re FAA [2006] QCST 15
2 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Re Imperial Chemical Industries Ltd's Patent Extension Petitions (1983) VR 1
2 citations
Jump To
Cite 1 - (1983) VR 1
Cite 2 - (1983) VR 1
Re Kracke v Mental Health Review Board (2009) 29 VAR 1
3 citations
Jump To
Cite 1 - (2009) 29 VAR 1
Cite 2 - (2009) 29 VAR 1
Cite 3 - (2009) 29 VAR 1
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
7 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489
Cite 3 - [2015] QCAT 489
Cite 4 - [2015] QCAT 489
Cite 5 - [2015] QCAT 489
Cite 6 - [2015] QCAT 489
Cite 7 - [2015] QCAT 489
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
3 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243
Cite 3 - [2010] QCAT 243

Cases Citing

Case NameFull CitationFrequency
Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 342 citations
Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 392 citations
1

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