Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

SM v Director-General, Department of Justice and Attorney-General[2021] QCAT 116

SM v Director-General, Department of Justice and Attorney-General[2021] QCAT 116

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SM v Director-General, Department of Justice and Attorney-General [2021] QCAT 116

PARTIES:

SM

(applicant)

v

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML336-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

24 March 2021

HEARING DATE:

3 March 2021

 

Written submissions filed by the parties on 17 March 2021.

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General made on 31 July 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the following decision:

This is not an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to refuse to cancel the applicant’s negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – where application made to cancel negative notice – where application to cancel negative notice refused – application for review – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 108

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 221, s 226, s 294, s 304G, s 360, s 580, Schedule 2, Schedule 7

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

ED v Director-General, Department of Justice and Attorney-General [2021] QCAT 56

Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

CM Borger, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    The applicant applied for a working with children clearance, referred to as a blue card, under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) in 2015 but was issued with a negative notice on 16 October 2015.
  2. [2]
    A person may apply to cancel a negative notice if the application is made more than two years after the notice was issued.[1] The applicant applied to cancel his negative notice in 2018 but, on 31 July 2019, the respondent made a decision to refuse to cancel his negative notice.
  3. [3]
    Pursuant to s 354, a person who is not a disqualified person may apply to the Tribunal for a review of a “chapter 8 reviewable decision”. A “chapter 8 reviewable decision” is defined in s 353 to include:
  1. a decision of the chief executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive—
  1. issued the person a negative notice; or
  2. refused to cancel a negative notice issued to the person; …
  1. [4]
    Under s 294, if a provision of Part 5A requires the chief executive to decide whether to cancel a person’s negative notice, the chief executive must decide the matter as if it were a decision about a working with children check application and, for that purpose, relevantly, Part 4, Division 9 applies. Any reference in that division to issuing a negative notice is to be read as a reference to deciding not to cancel a person’s negative notice.[2] Correspondingly, any reference to issuing a working with children clearance is to be read as a reference to deciding to cancel a person’s negative notice.[3]
  2. [5]
    The applicant has one conviction in 2007 for the offence of using a carriage service to menace, harass or cause offence. As the offence is not a serious offence nor a disqualifying offence, the default position is that the applicant should have his negative notice cancelled,[4] unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to cancel a person’s negative notice.[5]

The issue

  1. [6]
    The issue central to this review is whether this is an exceptional case in which it would not be in the best interests of children for the chief executive to cancel the applicant’s negative notice.

Relevant statutory framework

  1. [7]
    The relevant statutory framework has been summarised in ED v Director-General, Department of Justice and Attorney-General[6] as follows:

[8] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act. The purpose of the review is to produce the correct and preferable decision, on the evidence before it and according to the law current at the time of the review.

[9] In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits. On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the original decision-maker.

[10] The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children. It is protective legislation.

[11] A child related employment decision, which is defined to include a ‘chapter 8 reviewable decision’, is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount. The overriding concern is the potential for future harm to children.

[12] A ‘chapter 8 reviewable decision’ is defined to include a decision as to whether or not there is an exceptional case for the person if, because of the decision, a negative notice was issued.

[13] Section 221 provides, relevantly:

  1. Subject to subsection (2), the chief executive must issue a positive notice to the person if —

  1. the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [Emphasis added]

[14] The term ‘exceptional case’ is not defined in the WWC Act. It has been observed, by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher that:

… it would be most unwise to lay down any general rule with regard to what is an exceptional case … . All these matters are matters of discretion.

[15] Thus, what might be an exceptional case is a question of fact and degree, to be decided in each individual case having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.

[16] In deciding whether there is an exceptional case in circumstances where the applicant has been convicted of, or charged with, an offence, the Tribunal is obliged to consider the factors in s 226(2) of the WWC Act. These factors, unlike the position under differently worded, equivalent legislation in other States are not exhaustive. 

  1. [8]
    The mandatory s 226 factors are as follows:
  1. The chief executive must have regard to the following—
  1. in relation to the commission, or alleged commission, of an offence by the person—
  1. whether it is a conviction or a charge; and 
  2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. when the offence was committed or is alleged to have been committed; and
  4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  5. in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. any information about the person given to the chief executive under section 318 or 319;
  2. any report about the person’s mental health given to the chief executive under section 335;
  3. any information about the person given to the chief executive under section 337 or 338;
  4. information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
  5. 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.

Consideration

  1. [9]
    The applicant was convicted of an offence in 2007 for ‘using a carriage service to menace, harass or cause offence’. The offending was committed on 11 November 2007 and involved the applicant sending a text message to the 13-year-old daughter of family friends. At the time, the applicant was seeing the 13-year-old’s mother as he and the girl’s mother had both experienced marriage breakdowns.
  2. [10]
    There is some dispute as to the exact content of the text and the girl’s reply.
  3. [11]
    The respondent submits that the text read:

Hey nice tits, where’s your mum?

  1. [12]
    To which the girl replied:

What the hell?

  1. [13]
    The applicant submits that the text read:

Hey nice big tits, wheres mum, please tell her to give me a call.

  1. [14]
    To which the girl replied about half an hour later:

WTF

  1. [15]
    The applicant gave evidence seeking to explain the context of the text. He said that the respective families had known each other for 15 years and that both marriages had broken down. After the marriages broke down the applicant said he provided emotional support to the girl’s mother which was protective in nature but on occasions extended to sexual contact of a non-serious nature. The applicant said he had received a number of threatening calls from the mother’s ex-partner and from his mates prior to the text. The applicant submits:

The child involved in the incident was very self conscious and the victim of bullying at school regards to her size and weight, whilst the message was inappropriate it was meant to encourage acceptance of her size and body, there was no malliace (sic) intended from my behalf and again I am very sorry for any distress this caused.

Prior to this incident and furthermore after this incident there has been no occurrences (sic) of any child safety issues concernng (sic) myself at any stage. I apoligise (sic) for my poor choice in the text and any emotional damage this may have caused and can not be apologetic enough.[7]

  1. [16]
    The offence is neither a serious offence nor a disqualifying offence[8] and occurred more than 13 years ago.[9]
  2. [17]
    The nature of the offence, as described above, was a one-off text which referred to the girl’s breasts in the form of a greeting and, for that reason, was clearly inappropriate. There was no evidence which suggested that the text was related in any way to any interest by the applicant of a sexual nature towards the girl. I accept however, that the text objectified a young girl’s body and, in circumstances where the applicant was aware of her insecurities regarding her weight and body image, was harmful and concerning. It also constituted a boundary violation in the context of a relationship of trust.
  3. [18]
    The Magistrate imposed a $500 fine and made the following brief sentencing remarks:[10]

Unfortunately for you, there will be a conviction notwithstanding it is a first offence because of the nature of that legislation [Crimes Act 1914 (Cth), s 16] Other than that, I do agree that a fine is appropriate under the circumstances. Certainly, your behaviour was not appropriate on the day in relation to a 13 year old child. I am sure you realise that now.[11]

  1. [19]
    I note that no information was requested or received pursuant to ss 318, 319, 335, 337 or 338, given they were not relevant or applicable to the matter.[12]
  2. [20]
    In terms of other relevant matters,[13] the respondent submits that the applicant was 38 years old at the time of the offence and should have been aware of the inappropriateness and offensiveness of the text message; that he had continued to minimalise his behaviour by saying it was a “silly thing” and that the complaint  had been part of a personal vendetta by the girl’s father against him; and that the applicant was in a position of trust in relation to the girl, having known her as a family friend and being, at the time of the offence, in a relationship with her mother.
  3. [21]
    Further, the respondent submits that, apart from predatory concerns, the text shows a lack of appreciation of personal boundaries and:

a mistaken belief that a child’s body image is their own means of self-identity, that girls should be proud of their breasts rather than other characteristics or accomplishments.[14]

  1. [22]
    The applicant provided a reference from his current employer at a recreational sports centre where the applicant performs administration and labour duties. The reference states that the applicant has worked there for five years and is a “kind, considerate, giving individual” who is in “no way a danger to any child or the community”.
  2. [23]
    The applicant also filed a report from a psychologist, Mr Jotham Joubert. The applicant saw Mr Joubert for a series of five consultations in the context of this review[15] and also underwent a Minnesota Multiphasic Personality Inventory second edition assessment, a psychometric test for measuring adult psychopathology. The assessment was undertaken in the last week before the fifth consultation. Mr Joubert reported that the applicant’s MMPI -2 assessment was statistically valid and that no abnormal elevations were detected to suggest psychopathology or concerning behaviours or attitudes. Mr Joubert also stated that these outcomes were congruent with his clinical impression of the applicant and with Mr Joubert’s understanding of his history and current circumstances. Mr Joubert concluded, based on his clinical impressions and the results of the MMPI-2 profile, that he did not deem the applicant to be a danger or threat to the public or to children specifically. I have taken into account the submissions by the respondent that, while there was no objection to Mr Joubert’s report being admitted into evidence, the Tribunal should give Mr Joubert’s report lesser weight because Mr Joubert was not available for cross examination.
  3. [24]
    PM, a co-worker and long-term friend of the applicant’s, provided a written reference and gave evidence at the hearing. PM was living with the applicant at the time of the offence. He explained that they were both factory workers at the time and that that’s how they spoke then but that they would never speak like that these days. He said that the text was sent innocently but that the applicant had been treated as though he was a paedophile. PM said he remembered both of them being horrified and shocked at the way the text had been taken because “our minds just didn’t go there”. He said that if the applicant or anyone else at their workplace had had any such intentions they would have “ended up in a ditch”. PM also said that since the offence he had seen the applicant become withdrawn to the point where he was too afraid to say anything in case it was taken the wrong way.
  4. [25]
    On balance, I am not satisfied that the applicant’s is an exceptional case in which it would not be in the best interests of children for him to have his negative notice cancelled. I am satisfied that the text was an error of judgement, and the product of immaturity and a lack of insight, rather than anything sexually motivated. This is consistent with the applicant’s explanation in oral evidence of the context of the text, with his genuine regret and deep remorse and with the lack of any criminal convictions or charges whatsoever since that time. I accept the evidence of the applicant that he has “learned his lesson”, that he has never made such a reference to a child or anybody else since and that he would never do anything similar again. While I accept that the text was harmful to the girl because it transgressed boundaries in the context where it objectified her body at a time when she was self-conscious and trusted the applicant, I accept that the applicant is fully aware that it was wrong for those reasons and would never send such a text now.
  5. [26]
    No oral or written submissions were made regarding the application of the Human Rights Act 2019 (Qld) which commenced on 1 January 2020. The transitional provisions provide that the Human Rights Act does not affect proceedings commenced or concluded before its commencement.[16] As these proceedings were commenced before the Human Rights Act commenced, I find that the Human Rights Act does not apply.
  6. [27]
    In my view, the applicant is not a risk to children. Further, I am not satisfied, based on the factors in s 226 of the WWC Act, including the other matters raised by the respondent, that the applicant’s case is an exceptional case in which it would not be in the best interests of children to cancel his negative notice.
  7. [28]
    Accordingly, I make the following order:
    1. The decision of the Director-General, Department of Justice and Attorney-General made on 31 July 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the following decision:

This is not an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

Footnotes

[1]WWC Act, s 304G(2)(a).

[2]WWC Act, s 294(3)(b)(iii).

[3]WWC Act, s 294(3)(a)(iv).

[4]WWC Act, s 221(1)(c).

[5]WWC Act, s 221(2).

[6][2021] QCAT 56.

[7]Applicant’s letter to the Tribunal dated 28 December 2020.

[8]WWC Act, s 226(2)(a)(ii).

[9]WWC Act, s 226(2)(a)(iii).

[10]WWC Act, s 226(2)(a)(v).

[11]Transcript of Sentence, 14 January 2008, BCS-36.

[12]WWC Act, s 226(2)(b)-(d).

[13]WWC Act, s 226(2)(f).

[14]Respondent’s submissions filed 17 March 2021, [55].

[15]Report by Jotham Joubert filed on 5 November 2020.

[16]Human Rights Act 2019(Qld), s 108.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 116

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    24 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.