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TD v Director-General, Department of Justice and Attorney-General QCAT 138
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
TD v Director-General, Department of Justice and Attorney-General  QCAT 138
director-general, department of justice and attorney-general
19 April 2021
13 March 2020
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – review jurisdiction – blue card – criminal conviction for breach of privacy – whether exceptional case warranting departure from the general rule that positive notice must be issued – numerous protective factors – consideration of mandatory factors
Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226
AX v Commissioner for Children and Young People and Child Guardian (No 2)  QCATA 248.
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
APPEARANCES & REPRESENTATION:
M Jago, in house lawyer, Blue Card Services, Department of Justice and Attorney-General
REASONS FOR DECISION
- This is an application for review of a decision by the Director, Blue Card Services made on 30 November 2018 whereby a negative notice was issued under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (the WWC Act).
- The respondent’s decision was that the applicant’s case was an ‘exceptional’ case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card.
- The applicant seeks a blue card so that he can care for his niece as part of a kinship care arrangement.
- A review of the decision of 30 November 2018 must be made in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- After the application was filed but before the matter was decided, the WWC Act was amended. The amendments commenced on 31 August 2020. I apply the WWC Act as amended.
- The Tribunal has all the functions of the decision maker for the decision being reviewed. The purpose of the review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits.
- The WWC Act deals with the issue of a blue card, or as it is described in the Act “a working with children clearance”.
- The overarching objective of the WWC Act which the Tribunal must observe is to ensure that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- Under s 221 of the WWC Act the Chief Executive must issue a working with children clearance if the Chief Executive:
- (a)is not aware of police or disciplinary information about the person;
- (b)is not aware of a conviction for any offence but is aware of - investigative or disciplinary information, a charge for an offence other than a disqualifying offence, a charge for a disqualifying offence dealt with other than by a conviction; or
- (c)is aware of a conviction for an offence other than a serious offence.
However, a negative notice must issue if in the latter two cases the Chief Executive is satisfied it is an exceptional case, in which it would not be in the best interests of children if the clearance were granted.
- The Act does not define an “exceptional case”. It is a matter of fact and degree to be decided in each case having regard to the interests of children. Determining whether an exceptional case exists involves the exercise of discretion by the Tribunal.
- The Tribunal must consider matters which strongly suggest it is not in the best interests of children that a blue card be granted and which overcome the starting point that someone who is charged with an offence that is not a serious offence will be issued with a blue card.
- Upon its review the Tribunal must consider the factors in s 226(2) of the WWC Act.
- The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.
- Neither party bears an onus in determining whether an ‘exceptional case’ exists.
The Decision made 30 November 2018
- In making its decision the respondent had regard to the applicant’s criminal history and the applicant’s submission and references. On 17 August 2015 the applicant was convicted of Attempted observations or recordings in breach of privacy (on 27 May 2015). No conviction was recorded. The applicant was fined $1,500.00.
- The respondent provided a statement of reasons for the decision, including that:
- (a)The applicant took a video of a female person’s anal and genital area in a public place for his own pleasure. Police located numerous photos on the applicant’s phone which appeared to have been taken up the skirts of other unknown females.
- (b)The offending raises serious concerns about his ability to judge appropriate behaviour and exercise self-control. Such skills are important to the creation of a safe and protective environment for children.
- (c)The material suggests an inability to respect personal boundaries and another person’s right to feel safe.
- (d)The applicant was a mature adult of 40 years. His actions cannot be mitigated on the basis of youth and/or lack of maturity.
- (e)No information as to the causes of the applicant’s offending behaviour have been provided so that it could be concluded the triggers that led to the offending behaviour are no longer present such that I could be satisfied he is not likely to re-offend.
- (f)Notwithstanding the applicant demonstrating remorse, there is a perceived lack of insight.
- (g)The one reference submitted does not sufficiently mitigate the decision maker’s concerns. The reference was written without knowledge of the applicant’s offending so little weight can be attributed to it.
- (h)Once issued, a blue card is fully transferable across all areas of regulated employment and business, and may not just be used for the purpose currently relevant to the applicant.
Information for consideration
- I now turn to the relevant provisions of s 226(2) of the WWC Act to which I must have regard.
- The offence of which the applicant has been convicted is not a serious offence nor a disqualifying offence under the WWC Act. The offence occurred approximately six years ago. There is no evidence of any other offending by the applicant since that time. In terms of the penalty imposed it was relatively minor, without diminishing the serious nature of the offending.
- I consider the offence is relevant to the welfare of children because it demonstrates a lack of judgment about the appropriateness of infringing the privacy of women. Such a lack of judgment suggests the applicant may not be an appropriate role model for children. I agree with the decision maker that children are entitled to be cared for by adults who do not engage in anti-social or offensive behaviour.
- Although there is a sexual aspect to the offence there is no suggestion that the applicant sought to photograph children nor that he is a threat to children in that sense. The photographs found on the applicant’s phone related to adults.
Other relevant matters - third-party notice to produce
Material produced by the Department of Child Safety, Youth and Women
- The respondent acknowledges that no concerns have been raised by the Department. In fact, the Department believed the applicant and his partner were “doing a great job of looking after the child and believe the child should remain living with them as she is with family who love and care for her”.
- The applicant gave evidence and relied upon his application, his life story document dated 19 February 2019 and his statement dated 19 May 2019.
- The applicant impressed me as truthful and genuine in his remorse for what he calls the biggest mistake of his life.
- The applicant explained that on the day of the offence he had something to drink at lunch with his workmates. He had seen a girl in a tight outfit similar to pyjamas and he thought it might be amusing to take a photograph to show his work mates. He did not think at the time that it was harmful but now recognises that privacy is a right and that he would not like the same thing to happen to his partner. Although it is crude and inappropriate behaviour, I accept the applicant’s explanation for his conduct and can see how a male workplace might think such an image funny. To that extent the conduct is not aberrant.
- As to the other photographs on the applicant’s phone he says that the images were downloaded from the internet on one occasion. The women were clothed. I accept that the applicant was not seeking to minimise the issue, merely to explain how he had the images and that he had not followed people to obtain them. I accept that images of the sort are common on the internet.
- The applicant said that he cannot blame anyone for his conduct other than himself and he takes responsibility for it. Given the effect on his life the applicant says he understands the seriousness of his actions.
- The applicant gave evidence that he has sought counselling which helps with his social awkwardness. He did not think he needed more help in relation to his conduct because he understands the consequences of his actions and that they were wrong.
- The applicant spends each night with his uncle as his niece lives at his home with his partner and until he has a Blue Card he is unable to spend the night at that home.
- The applicant’s evidence reveals his love for his niece and his desire to do whatever is necessary to care for her.
- The applicant gave evidence of the support he receives from his partner and his sister and uncle.
Witnesses for the applicant
- A psychologist gave evidence for the applicant consistent with his report. The psychologist was familiar with the applicant’s conviction and the reasons for the negative Blue Card notice.
- The psychologist confirmed that over a number of sessions the applicant had been taught parenting skills and through cognitive behaviour therapy addressed behaviour in public.
- He confirmed that the applicant understood the consequences of his action. He said that the applicant now has improved mental health, he has stopped drinking and disassociated with his previous cohort. The result is that risk factors are considerably reduced.
- Protective factors were addressed in terms of the strong desire to care for the applicant’s niece and the fact that the applicant and his partner have discussed in depth how to prevent any future incidents.
- The psychologist confirmed that there was an error in his report and that in his opinion the applicant is not an exceptional case.
- The applicant’s partner of 20 years gave evidence consistent with her statement.She said that she knew the applicant would never engage in the offending conduct again and that he is motivated to care for his niece.
- The applicant’s uncle gave evidence consistent with his statement. He is fully aware of the charge and conviction and said that he had no hesitation in backing the applicant because he has learnt from his mistake and he has stepped up to care for his niece as most of her family have passed away.
- The uncle confirmed that the applicant has not drunk alcohol for years and that he would not hesitate to have the applicant around children.
- The respondent submits that there are a number of risk factors associated with the applicant including the social unacceptability of his conduct, his mature age at the time of the offence, the presence of other “upskirt” images on his phone and an attempt to minimise his involvement. It is said there was unsatisfactory evidence as to what the applicant intended to do with the images and why he had them.
- It is said the evidence as to drinking and toxic friendships as triggers for the offending was unclear.
- Finally, the unsatisfactory evidence demonstrates a lack of insight into the applicant’s offending which will limit the effectiveness of his preventative strategies.
- The respondent says that past behaviour is a predictor of future behaviour and precautionary action needs to be taken. In the respondent’s view the risk factors render the case an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a positive notice and blue card.
- Although given the opportunity to make oral or written submissions the applicant did not do so.
- The WWC Act is framed such that the existence of a criminal conviction should not of itself stand in the way of an applicant being issued with a positive notice to be granted a Blue Card. All criminal convictions are undesirable, likely represent serious lapses of judgment and diminish the status of a person as a good role model for children. Without more those are not good reasons why a person should be characterised as an exceptional case and refused a working with children clearance.
- I do not accept, as a general proposition, the submission as put by the respondent that past behaviour is a predictor of future behaviour and that is why a precautionary approach should be taken. If that were the case the WWC Act would not require that a working with children clearance “must” be issued to a person if the chief executive is aware of a conviction of the person, for an offence other than a serious offence. It is only if there is an exceptional case in which it would not be in the best interests of children for a clearance to be issued, that the clearance may be refused.
- This is a case of a single, relatively minor offence which occurred a number of years ago. The offence did not involve children.
- I consider the risk factors associated with similar future offending to be low.
- I consider that the strong desire of the applicant to raise his niece, the support he has from his partner and uncle and the fact that there are no longer negative influences in his life are strong protective factors.
- I am also satisfied by the evidence given at the hearing that the applicant knows his conduct was wrong and that he will not repeat that conduct. I think that is appropriate insight.
- I do not think it is necessary for a tidy psychological explanation to be given as to why the applicant engaged in the conduct that he did. It was stupid. It has been acknowledged by the applicant as stupid. People often do stupid things without understanding why they acted in that way.
- The applicant is benefitting broadly from counselling which in large part is directed to assisting in raising his niece. He has however received therapy in relation to appropriate public behaviour.
- I rely on the expert opinion of the psychologist that the applicant is not an exceptional case such that it would not be in the best interests of children for a clearance to be issued.
- For all these reasons I am satisfied on the balance of probabilities, that the applicant’s case is not exceptional.
- By way of clarification I wish to point out that in recognising the applicant’s desire to care for his niece as a protective factor I have not made my finding that the applicant’s case is not exceptional because of any hardship or prejudice to the applicant if he were not to be granted a positive notice.
- In conducting this review regard has been had to the Human Rights Act 2019 (Qld). I am satisfied that this decision is compatible with human rights and that to the extent there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of that Act.
- 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.
- Finally, I consider that it is not in the public interest to release identifying information regarding the applicant and any witnesses for the applicant. Accordingly, this decision is to be published in a de-identified format. Pursuant to s 66 of the QCAT Act I order that publication of information that may enable the applicant and witnesses to be identified is prohibited.
 WWC Act, s 221(2).
 WWC Act, 2 580.
 QCAT Act, s 19, s 20.
 WWC Act, s 6.
 Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
 Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
 WWC Act, Schedules 2, 3, 4 and 5.
 NTP material from the Department of Child Safety, Youth and Women, NTP-1 to NTP-50.
 Exhibit 2.
 Exhibit 1.
 Exhibit 2.
 Exhibit 2.
 AX v Commissioner for Children and Young People and Child Guardian (No 2)  QCATA 248.
 Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58.
- Published Case Name:
TD v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
TD v Director-General, Department of Justice and Attorney-General
 QCAT 138
19 Apr 2021