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JJJ v Director-General, Department of Justice and Attorney-General[2021] QCAT 193

JJJ v Director-General, Department of Justice and Attorney-General[2021] QCAT 193

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

JJJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 193

PARTIES:

JJJ

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML305-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

26 May 2021

HEARING DATE:

28 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that JJJ’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. The Tribunal  prohibits the publication of the names of the Applicant, any non-expert witnesses and the names of any victims, alleged victims, children or third parties referred to in the filed material and at the hearings.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 221, s 226, s 358

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

Re FAA [2006] QCST 15

GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self represented

Respondent:

N Rajapakse

REASONS FOR DECISION

  1. [1]
    This application was determined by me as directed by the President of the Queensland Civil and Administrative Tribunal pursuant to s 168(1) of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’). I have had regard to the filed material, the transcript, and the records of proceedings of the Tribunal as previously constituted.
  2. [2]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (hereafter ‘Blue Card’),  dated 24 September 2018, to refuse to cancel the applicant’s negative notice. JJJ had previously applied for a positive notice in 2008, and she was issued with a negative notice in 2009. In 2016 JJJ applied to cancel her negative notice. On 24 September 2018 the respondent refused to cancel the applicant’s negative notice.
  3. [3]
    JJJ had applied for a Blue Card based on it being a requirement for employment as a cleaner.
  4. [4]
    As part of their application processing Blue Card Services undertook a criminal history check in relation to JJJ. This check and previous information from the Police disclosed the following criminal history:

Convictions

  1. (a)
    Townsville Magistrates Court - offences of possession of utensil or pipes etc (two charges) on 20 February 1999, permitting use of place on 20 February 1999, failed to properly dispose of needles and syringe on 20 February 1999; on all breaches no conviction recorded, probation 12 months’ community service 60 hours.
  2. (b)
    Townsville Supreme Court – on 23 August 2001, enter on premises and commit an indictable offence and break on 1 May 2001, conviction recorded, imprisonment three months; perjury on 18 April 2001, conviction recorded, imprisonment two years, suspended three years after having served a term of six months’ imprisonment, concurrent sentence, declared that the time spent in pre-sentence custody deemed as time already served under the sentence (days between 10 May 1999 and 13 May 1999).
  3. (c)
    Townsville Magistrates Court – on 5 September 2001 stealing (two charges); on 2 May 2001 and 9 May 2001 one penalty imposed, convicted and fined $500,  restitution of $60.00.
  4. (d)
    Charters Towers Magistrates Court – on 21 April 2008 obtain financial benefit, date unknown, sentenced to community service of 120 hours.

Charge

  1. (e)
    Townsville Supreme Court - enter premises and commit indictable offence and break on 1 May 1999, murder (recorded on police information as punishment for murder) on 1 May 1999 on 18 April 1999. On all charges a nolle prosequi was entered.
  1. [5]
    Ultimately it was the decision of the Director of Blue Card Services that the best interests of children would not be served if the applicant was granted a Blue Card at the time the decision was made. Reasons given for this included that despite the applicant’s criminal history not changing since her negative notice was issued in 2009, consideration must still be given to the serious nature of the applicant's murder charge and perjury conviction in particular. Blue Card were of the view that this material continued to raise significant concerns about the applicant's ability to work unsupervised with children. It was stated that Blue Card’s role was not to impose additional punishment upon the applicant but to focus on the best interests of children.

The ‘Blue Card’ legislative framework

  1. [6]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’, ‘WWC Act’ or ‘the Act’). The object of the 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.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [7]
    A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [8]
    As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’?

  1. [9]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [10]
    Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [11]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [12]
    The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

The applicant’s evidence and submissions 

  1. [13]
    The applicant's submission to the tribunal was that the decision the Tribunal should  make is to  set aside the negative notice and substitute in its place a decision that a positive notice be issued to JJJ.
  2. [14]
    The applicant filed a Life Story and provided statements from RPO, FFF, ILM and  NPN.
  3. [15]
    On 2 October 2020 the applicant sent to Blue Card only and did not file in the Tribunal written submissions. Blue Card Services provided a copy of this document to the Tribunal.

Applicant’s oral evidence

  1. [16]
    JJJ provided oral evidence and was cross examined. She said she lived in a rural area and that she worked as a cleaner and this involved working in places where she required a Blue Card.

Drug Offences

  1. [17]
    The applicant was asked about her charges in 1999. She said at that time she was in a relationship with an extremely violent man. He became very dangerous, he veered into drugs and things got out of hand. She described her criminal history as follows: a perjury charge, break and enter committing an offence, possession of utensils and pipes, permitting use of a place, failing to properly dispose of needles and syringes, stealing on two counts and obtaining financial advantage.
  2. [18]
    JJJ’s version of events was that she was only charged with possession because she was the owner of the flat; however, they were not her needles. She was charged with not disposing of needles and possession of utensils. She admitted that at the time of these charges her then 13-year-old niece lived with her. She did not acknowledge the utensils and needles etc being in her possession, however she agreed that she had been convicted of this offence. The applicant provided evidence that she used marijuana at this time but said it was because of her partner. She now had nothing to do with drugs and she had moved on with her life. She described herself as very immature at the time. JJJ said she had a new partner now and she did not do drugs at all and she is very much against them.
  3. [19]
    Under cross examination JJJ admitted that she had pleaded guilty to the offences that she said she was not guilty of. The applicant was asked about her previous offending and she replied that  she had tried to move forward in her life. Her evidence was that  she could not really recall what she said when the police showed up. She thought she had cried because her then partner was such a violent man. The applicant clearly placed the blame for her being in trouble on her ex-partner. The applicant repeatedly said that she could not really recall this period of time when she was charged with the drug offences. Her reason for this  lack of memory was that she was in a messed up relationship at that time.
  4. [20]
    During cross examination it was suggested that a small plant of cannabis had been found growing in a pot and this pot was in her niece’s bedroom. She had been unaware of that despite having the care of her 13 year old niece at that point in time. She said that she was very ashamed and against using drugs and that she had only become involved because of her partner at the time. She repeated that he was a violent man and she was frightened of him.

Murder charge, perjury and Break and Enter

  1. [21]
    The applicant entered a plea of guilty to an offence of break and enter premise on 1 May 2001. When sentenced in the Townsville Supreme Court it was accepted that she was present at the scene of the murder. JJJ’s answer to questions about this conviction included:  “I can't really recall going back that far mate. I don't remember a lot of it”. When asked again she said: “I really don't remember a lot of it mate”.
  2. [22]
    The applicant was cross examined on the point that she was originally charged with murder. This charge was  eventually discontinued. She was asked to explain her knowledge of that offence and she again repeated – “no I can't remember a lot of it mate, not really I can't recall a lot of it”.[9] She said it was just a big mistake. She was then asked about her conviction for perjury. The applicant’s reply was:

I was charged with perjury for not telling the truth about (de-identified -her then partner) holding - not holding - a gun or holding something… I lied on one [of] the statements apparently. I can't really recall it and I'm not telling the truth about something about it but not telling the truth about something about (de-identified – her then partner) I can't really recall about it's too long ago to even think about but it had to do with lying in one of the statements I think.[10]

  1. [23]
    When asked if she had reflected on her offending the applicant said, “I should have told the truth and I shouldn’t have lied and I regret lying but I was under a lot of pressure and I was frightened and the person was very violent to me”.[11] She said she had learned from her actions. Under further cross examination the applicant alleged that she was at home during the time of the offending. It was put to her that she was not at home because she had pleaded guilty to enter premises and she was sentenced for that charge. The applicant agreed that this was the case. JJJ then changed position again and said again – “I was at home, I can't really recall a lot of it mate, I don't remember a lot of it. What's on the statement would be right”. She said “my paper works was all over the place”.[12] She further stated – “I can't recall a lot of it darl. I don't remember a lot of it, it's been [a] long time ago, I'm trying to move forward in my life, rather than bringing him back up. It was a struggle”.[13]
  2. [24]
    When asked for her reflections on those convictions and charge the applicant said she was very embarrassed, humiliated about herself and remorseful. She described it as the biggest mistake of her life . She said that up until then she had enjoyed a good life and no criminal history until she met her then partner.

Stealing convictions

  1. [25]
    When JJJ was examined on her more recent convictions relating to two offences of stealing in 2001, where she was alleged to have taken money from purses in staff rooms where she was a cleaner,  she  said “I'm not guilty of that”. Her version was that she found the money and she just did not hand it back. She agreed that she had pleaded guilty to those charges on the basis the money had not been picked up off the ground but stolen from purses.
  2. [26]
    Cross examination also traversed the applicant’s conviction for obtaining financial advantage in 2008. She blamed this offending on her then partner  (still her partner) due to his literacy issues. She said he was working in a remote region and she had to contact Centrelink and report his earnings. She was not sure about the full amount he was earning, and she did not have his payslips, so she estimated the amount. She was asked if she had reflected on the conviction and she said she had done so. Her reflection was that now she needed to tell the truth and get the paperwork. She again deflected blame from herself, saying it was a mistake that happened. It was caused by her then partner not being able to tell her what he was earning because he had no payslips.[14] JJJ’s evidence was that she had been with her current partner for 15 years.
  3. [27]
    She suffered anxiety and she had  been prescribed medication from doctors although she was not on it now. This was due to her not needing it. The applicant indicated that she attempted to get a health report, however a psychiatrist had told her that she had too much history and there was too much to go into.
  4. [28]
    The applicant said that she had never done anything to affect her niece and she said she had not exposed her niece to any drugs. She said it was a positive thing that she been her niece’s carer  from her niece’s early teens. It was her opinion that  her niece had never been affected by any of her behaviour.
  5. [29]
    Moving forward she said that her attempts to change her lifestyle involved her not getting involved with people who got her in trouble, also bettering herself in good ways by being kind to people and helping and moving forward and bettering her life. She said it was to this end that she wished to obtain a Blue Card. Her view was that it had been over 20 years now and she should be able to move forward. She believed this because the mistakes that she made she paid for and she regretted everything that had happened.[15]

RPO

  1. [30]
    The applicant submitted that she had known RPO for 32 years. He was referred to as a retired police officer and being aware of her  criminal history. It was JJJ’s submission  that since her release from prison, RPO has not observed the applicant engage in any anti-social behaviour and that he had no hesitation in allowing her to care for his children.
  2. [31]
    JJJ’s submissions did not relate to his evidence at the hearing.
  3. [32]
    Throughout his  evidence RPO referred to the applicant as T and S despite the applicant being named J. He was unable to correct this when prompted and the applicant had to tell him what her name was. He said his interactions with her were through visits to the shops once or twice a month and he was not friends with her. He said that although he knew what the applicant had been charged with, he did not want to go into depth about it but he knew she had gone to prison. He was aware that a person had been killed. He was not aware of the reasons why the applicant's blue card application had been declined as she had not told him. He did not include any details of her offending and was able to offer very little information.

FFF

  1. [33]
    The applicant said that she had known FFF for 10 years and the witness was aware of her criminal history. She said FFF was aware of the  positive relationship the applicant had with her current partner.
  2. [34]
    During her evidence FFF said that the applicant was nurturing . She knew JJJ through the applicant being a client, along with her current partner, at the witness’s business. She knew about the applicant’s early history as a youth, stating that was not who the applicant is now. When asked what she meant by this she referred to the applicant's drug use around 1990. She stated the applicant would have been approximately 30 years old when she was talking about this. She said the applicant’s history involved dealing drugs over the back fence of schools. When asked about other  parts of the applicant’s criminal history she said  “I wasn't involved - I don't have a clue.  I knew she had an issue with drugs - the rest I don't know about”.
  3. [35]
    She was unaware of  the full details of the applicant's criminal history and therefore it was submitted by the respondent that the weight to be afforded to the evidence should be limited as she had not known the full information.

ILM

  1. [36]
    The applicant submitted that she had known ILM for a number of years and that she was her mother-in-law. She said the witness was aware of her criminal history.
  2. [37]
    ILM was not  called to give oral evidence at the hearing. In her statement said she was aware of the previous history and charges. She did not elaborate on this. The respondent submitted that it was not clear from the statement that she had knowledge of the applicant’s full criminal history. It was submitted that the weight to be afforded to the evidence should be limited. ILM’s statement suggested that the applicant’s offending was a result of bad influences. She did not specify which of the offending behaviours were caused by these influences.

NPN

  1. [38]
    The applicant stated that she had known the witness all of the witness’s life as she was her niece.  She was aware of the applicant’s criminal history. The witness lived with the applicant at the time the police entered JJJ’s flat and found the cannabis plants, used syringes and other drug related items.
  2. [39]
    Under cross examination NPN said that she was a child and was living with the applicant at the time of some of the applicant’s offending. She had a full understanding of the applicant’s criminal history. She stated  that after coming out of prison the applicant is just being a normal person now. She said that she was not exposed to the applicant's drug use. When asked about how the applicant had demonstrated remorse and regret she stated that the applicant was remorseful that she had  ended up in Townsville prison and that this would have been a shock for the applicant. She felt her aunt was remorseful due to  what had happened to her life; she had  previously been an accomplished person and  now regrets  having been caught up with her ex-partner as she used to get “knocked around” by him.
  3. [40]
    The respondent submitted that NPN’s evidence about her lack of exposure to drugs as a child was inconsistent with all the material filed including the applicant’s statements as well as the applicant’s written submissions. The respondent submitted the Tribunal should exercise caution in accepting the evidence of the niece as a credible witness.  The respondent also submitted that the evidence of NPN indicated that the applicant’s remorse and /or regrets  mostly related to the impact of her offending on herself rather than the victims, society or children.

Applicant’s further written submissions

  1. [41]
    The applicant acknowledged the risk factors set out by the respondent in their statement of reasons for their decision. She acknowledged her criminal offences and said she was deeply regretful that she committed the offences.
  2. [42]
    The applicant's further submissions again returned to the theme of her relationship with her then partner as a key factor in the commission of the drug possession, murder (charge), entering premises, perjury and stealing offences. She acknowledged that she could have done more to remove herself from the position she was in and should have fully cooperated with the police after the commission of the offences.
  3. [43]
    Her relationship with her ex-partner (her partner at the time of the murder) has now ended and since then, aside from the obtaining financial advantage, she said she had no criminal history.
  4. [44]
    She said that she had made a number of changes in her life to ensure she did not put herself in the same position, including entering a stable relationship where she was not exposed to domestic violence or drug use.
  5. [45]
    She deeply regretted putting her niece  in a position where she was exposed to drug use. At the time, she felt unable to remove herself and her niece from that situation.
  6. [46]
    While she submitted that there are a number of protective factors, the only one the applicant articulated was her 16 year relationship with her current partner. She said that aside from the obtaining financial advantage  conviction  she had no criminal history since she commenced a relationship with her current partner.

The respondent’s submissions

  1. [47]
    The respondent made submissions on the legal framework and relevant issues including that the Tribunal must be guided by the principle under which the Act must be administered i.e. that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing (original footnotes from submissions omitted).
  2. [48]
    It was submitted that the term 'exceptional case' is not defined in the Act. What is 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]
  3. [49]
    Further reference was made to section 226 of the Act in the context of a charge or a conviction as has occurred in this matter. This section does not present an exhaustive list of considerations. The respondent submitted that the paramount principle should be used by the Tribunal to inform the standard of proof required in decisions under the Act.
  4. [50]
    The respondent submitted that given the paramount principle and the nature of decisions under the Act, the gravity of the consequences for children is what is the important consideration i.e. that is, if a working with children clearance were to issue, what would be the potential consequences for children. Any consequences, in terms of prejudice or hardship to the applicant, are not relevant in child-related employment decisions. The potential consequences for children, however, of issuing a working with children clearance are significant and, as such, the Tribunal ought to require cogent evidence to establish, on the balance of probabilities, any facts asserted in favour of the Applicant. This approach is consistent with the reasons outlined by the Appeal Tribunal in Masri.[17] In that case the QCAT Appeal Tribunal referenced the paramount principle in holding that this approach is consistent with the Briginshaw test and ought to be employed "bearing in mind the nature of the reviewable decision".[18]
  5. [51]
    The respondent made further submissions citing the decision of Maher.[19]
  6. [52]
    It was submitted that looking at each of the relevant considerations, the respondent contends that the Tribunal can be satisfied, on the balance of probabilities and bearing in mind the gravity of consequences involved, that the applicant's case is an exceptional case in which it would not be in children’s best interests for the applicant to be issued with a working with children clearance and blue card.[20]
  7. [53]
    The Respondent submitted that the applicant said she had knowledge of her criminal offending and she was deeply regretful. It was submitted that the applicant did not demonstrate this e.g. in relation to her drug related conviction, she sheeted home responsibility to her ex-partner.
  8. [54]
    She also said that she was remorseful for exposing her niece to drug related activity and in her oral evidence she said her niece was not exposed to any drug related activity. It was submitted that this raised concerns in relation to the applicant’s genuine remorse and insight if the applicant did not recognise any of the risks of exposing her niece to the circumstances that she was living in at the time.
  9. [55]
    In relation to the charge of murder and related convictions for enter premises and commit indictable offence by break and perjury JJJ stated in written material she was not at the scene of the murder and that her car had been stolen. Under cross examination she agreed that she had entered pleas of guilty on a different factual basis to that.
  10. [56]
    JJJ said that she could not remember the events  and was evasive in her responses. The applicant referred to the offending as a big mistake. As for her conviction for perjury the best the applicant could say was apparently she lied to police or something and it was too long ago. She did not demonstrate any reflection or understanding of the seriousness of the event and the seriousness of providing false information. She made no reference to or demonstrated no insight regarding the person who was killed.
  11. [57]
    When asked about her stealing convictions she gave a different version to the one that she entered a plea of guilty on. When questioned she said she could not remember. She also had a lack of insight into her obtaining financial advantage offence which also involved her current partner who she lists as a protective factor.
  12. [58]
    It was also noted by the respondent that the applicant did not provide a health report. The respondent submitted that the applicant said she accepts her behaviours, however she spent a considerable amount of time in both written and oral evidence describing why she was acting in that manner due to the actions of others.
  13. [59]
    In summary, the applicant’s material and evidence did not detail sufficient  understanding or demonstrate appropriate insight or remorse in relation to the impact of her behaviours of concern on others, including children, e.g. such as their exposure to illicit drug use, her violent ex-partner and her impact on others, especially the victim of the murder.

Transferability

  1. [60]
    Submissions under the heading of transferability centred on the fact that once granted a Blue Card an applicant is able to work in any child related employment or conduct a child related business supervised or unsupervised as regulated by the Act and not just for the purpose for which the applicant sought the card. The Tribunal  has no power to ensure a Blue Card is conditional. Once a Blue Card is issued it is fully transferable across all areas of regulated employment. It was submitted that the Tribunal’s decision is not whether the applicant should be employed in her chosen job. The Tribunal’s decision is whether having regard to the paramount principle under the WWC Act the applicant's case is an exceptional case in which it would not be in the best interests of children for her to be issued with a positive notice. The respondent submitted that the Tribunal  should take a precautionary approach to decision making in child-related employment matters.

Findings

The Human Rights Act 2019 (Qld) (HRA)

  1. [61]
    The commencement date of the HRA was 1 January 2020 and as JJJ’s review was commenced on 22 October 2018, the legislation has no applicability to this case.

Considerations concerning risk factors

  1. [62]
    In considering the decision of Maher I also had recourse to the decision of  Eales.[21] In that case the Appeal Tribunal considered the decision in Maher and determined that:

The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise ...

At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person.

... No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording "unacceptable level of risk" was made by the Court of Appeal in the Maher case.

  1. [63]
    In considering the relevant factors I took a qualitative approach. It was not simply a mathematical equation of risk versus protective factors.
  2. [64]
    The applicant said she accepts her behaviours, however she spent a considerable amount of time in both written and oral evidence describing her belief that she acted in a criminal manner due to the actions of others. I do not accept this to be a reasonable excuse for her criminal offending and I think it is indicative of her lack of insight and remorse. It is simply not acceptable for a Tribunal to be asked to decide to issue a positive notice to a person who states they cannot remember something they have been involved in that is as serious as a murder or perjury.
  3. [65]
    The applicant’s evidence to the Tribunal was lacking in detail, evasive and at times contradictory. Little weight could be placed on the applicant's view of her changed circumstances when she could point to so few things in her past that she felt she was responsible for.  She appeared to exhibit at best naivety and at worst wilful disregard for the circumstances of her niece at the time she was living with her. It was the applicant’s oral evidence that she had caused no damage to her niece, however in writing she had disagreed with this. The respondent submits that n exposing her niece to the applicant’s lifestyle at that time could not have been in the best interests of a child and I accept that submission.
  4. [66]
    The applicant called three witnesses, one being her niece who spoke to her aunt being remorseful about her own loss of a good life and having to go to prison. She was unable to provide further detail to the Tribunal and, despite her denial, the objective fact remained that she had been exposed to the applicant's offending behaviours as a child. Another witness, RPO, appeared to have been very confused  and provided evidence of very little value. The third witness, FFF, was unaware of the full extent of the applicant's offending and therefore the weight that could be given to her evidence was also reduced. Finally, the statement written by the applicant's current mother-in-law held little weight  because it did not  include detail of her knowledge of the applicant’s criminal offending  and her evidence was not tested under cross examination.
  5. [67]
    As already stated  no medical report or health practitioner’s report was provided for the benefit of the Tribunal.
  6. [68]
    Of note is the fact that not once in the proceedings did the applicant or any of her witnesses or any of her material refer to the victim of the murder that she was involved in. Even if she had the charge of murder dismissed, she had been charged with perjury in relation to her statements about this murder  and had pleaded guilty to being at the scene of the crime where the murder took place. This absence of consideration for the victim and their family could only go to my finding of how little insight and/or remorse the applicant had developed in relation to this incident. She continues to cast herself as the victim  in this situation without mention of the victim of the crime who lost their life.
  7. [69]
    The applicant said she had multiple factors that she could point to as positive factors, however in her submissions all she did was point to her current relationship with her partner. From the applicant’s own evidence she describes this partner’s literacy problem as being to blame for her committing  the obtaining a financial advantage offence. With all of her criminal offending the applicant sought to minimise responsibility for herself and blame others. She claimed that there were circumstances other than those that the sentencing courts dealt with her on. She gave evidence that this meant that she was not fully responsible.
  8. [70]
    The applicant also indicated that she was heavily influenced by others including her ex-partner and that is why she had gotten herself into trouble. The Tribunal is not an appellate body for any of the sentencing courts that have dealt with the applicant. It is not appropriate for me to go behind those convictions and I accept on the balance of probabilities that the events of criminal offending that the applicant pleaded guilty or was found guilty of are as they were described in the remarks of the courts that dealt with her at those various times.

The factors in s 226(2) of the Act are factors that must be considered in deciding about whether it is an exceptional case.

  1. [71]
    I accept that in terms of the level of satisfaction required to meet section 221(2) of the Act, while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[22] I am aware that there is no power under the legislation for the Tribunal to issue a positive notice with conditions.
  2. [72]
    I refer to the following factors in my consideration of whether this is an exceptional case: factors which must be considered and factors I consider relevant. I make the following observations:

Whether the offence is a conviction or a charge

Convictions

  1. (a)
    Townsville Magistrates Court - offences of possession of utensil or pipes etc (two charges) on 20 February 1999, permitting use of place on 20 February 1999, failed to properly dispose of needles and syringe on  20 February 1999; on all breaches no conviction recorded, probation 12 months’ community service 60 hours.
  2. (b)
    Townsville Supreme Court – on 23 August 2001 enter on premises and commit an indictable offence and break on the 1 May 1999 conviction recorded, imprisonment three months; perjury on 18 April 2001, conviction recorded, imprisonment two years, suspended three years after having served a term of six months’ imprisonment concurrent sentence, declared that the time spent in presentence custody deemed as time already served under the sentence (days between 10 May 1999 and 13 May 1999).
  3. (c)
    Townsville Magistrates Court – on 5 September 2001 stealing (two charges); on 2 May 2001 and 9 May 2001 one penalty imposed, convicted and fined $500 in restitution of $60.00.
  4. (d)
    Charters Towers Magistrates Court – on 21 April 2008 obtain financial benefit, date unknown, sentenced to community service of 120 hours.

Charges

  1. (e)
    Townsville Supreme Court – enter premises and commit indictable offence and break on 1 May 1999, and murder (punishment for murder is description  on criminal history information). On these  charges a nolle prosequi was entered.
  1. [73]
    The applicant’s version of events that led to her convictions and charges at times contradicted the material provided by both police and the relevant Courts. Her evidence was at times inconsistent on these points and certainly under cross examination by the respondent the applicant indicated either  confusion or deceit in answering about her understanding of the matters. The applicant blamed much of her criminal history on others especially her ex-partner. I accept that  domestic relationships are complex, however this does not change the fact that the applicant had been offending as recently as 2008 when she was in a relationship with a person she says is her greatest protective factor. The applicant sought to place the blame for that  offending on this person.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [74]
    The offences JJJ had been convicted of are not a serious or disqualifying offence within the meaning of the Queensland legislation. However, the offence of punishment of murder is classified as a  serious offence under the WWC Act.

When the offence was committed or is alleged to have been committed

  1. [75]
    The offences of JJJ range in date from 1999 to 2008. Her charges occurred in 1999.

The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children.

  1. [76]
    The applicant has committed offences in 1999, 2001 and 2008. Even  in the circumstances of no further offending since 2008 it is the intention of the legislation that any previous offending remains significant in an assessment of whether or not the applicant is an appropriate person to be granted a positive notice.
  2. [77]
    The applicant says she has taken steps to rehabilitate herself, however the  only provided evidence was that she was kind to other people and removed herself from situations where people had a bad influence on her. She described her current partner as her main protective factor, however  she attributed to him blame for  the last criminal offence that she was convicted of.
  3. [78]
    The applicant’s evidence demonstrated very little information to support the belief that it would be appropriate for her to have children in her care in the course of holding a Blue Card. Even if the applicant is not intending to be employed working with children, a Blue Card is fully transferable and therefore I must approach this on the basis as though at some times she may well have contact with children through her employment and it is on that basis that a blue card is required.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [79]
    In relation to the charges of murder and enter premises and  commit an indictable offence and break, the prosecuting authority entered a nolle prosequi and the applicant was discharged. The applicant was convicted and sentenced to terms of imprisonment for offences of perjury and enter premises and  commit an indictable offence and break. The penalties imposed for these offences reflected the very serious nature of  her offending. The applicant’s other convictions attracted fines, community service orders and probation. The sentencing judge in  the perjury matter made a statement to the effect that perjury struck at the very heart of the justice system. Although the applicant said that she had reflected on the sentencing remarks nothing in her evidence indicated that this was actually the case. Ultimately, under cross-examination JJJ did not appear to dispute these convictions had occurred; she did however dispute the circumstances or severity of the events.

Other relevant circumstances

  1. [80]
    I have considered the evidence, statements and submissions filed in this matter in coming to a decision about whether this is 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. I considered the nature of the offending. The applicant's evidence was that she was not to blame for much of her criminal history. This history includes the serious charge of  murder. Her drug offending appeared to have been perpetrated in front of a child. It is not for the Tribunal to go behind the fact of the convictions nor accept a different version of events based on the applicant’s evidence.
  2. [81]
    The applicant in this proceeding said that she had not exposed her niece to her offending behaviour. This contradicts her written submissions. This statement assisted in me forming the belief that I cannot be comfortable accepting that JJJ demonstrates full range of insight into the impact of her behaviour upon her niece. The applicant says she acknowledges her own behaviour, however she appears to have been unable to move past minimalisation and blame shifting. It is not clear to the Tribunal that the applicant has developed genuine insight into the harm caused by her unlawful offending. She also appears to view her life situation and offending in the terms of her own trauma and the actions of others.
  3. [82]
    The applicant has not provided the Tribunal with evidence which would allow it to reach a finding that she has insight into the impact that her criminal offending would have had on vulnerable persons such as children. The applicant’s evidence and that of her witnesses made not one reference to the person killed. On consideration of the evidence it does not support a finding that the applicant is genuinely remorseful for all of her offending behaviour.
  4. [83]
    The respondent urged me to consider the nature of the offending. The applicant seemed to be unable to move past describing her ex-partner and her current partner as being largely to blame for many of her offences.
  5. [84]
    I accept the respondent’s submissions concerning the object of the WWC Act and the principle that the welfare and best interests of a child are paramount. I accept that this supports a precautionary approach to decision making regarding child related employment.
  6. [85]
    In considering whether this is an exceptional case I must determine the correct or preferable decision in the context of the paramountcy of the welfare and the best interests of children. I accept the transferable nature of a Blue Card once it is issued. There is evidence that the applicant has made steps forward in that she has not been convicted since 2008.
  7. [86]
    The overall evidence indicated that, contrary to what she says about the circumstances of her offending, JJJ does have convictions  and was charged with a serious offence under the WWC Act. I accept that some of this behaviour occurred in the context of a previous relationship. However, in the absence of further evidence regarding the steps, treatment and programmes she has undertaken to address her risk related behaviour I cannot be satisfied that her offending behaviours are no longer a significant risk factor.
  8. [87]
    It is my view that JJJ minimised her conduct and having regard to the risk and protective factors, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued.

Non -publication order

  1. [88]
    The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. A non-publication order should be made in this instance to protect the identity of the applicant, her family, any victims and any children and/or third parties named in the proceedings. [23]

Orders

  1. The decision of the Director-General, Department of Justice and Attorney-General that JJJ’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  1. The Tribunal prohibits the publication of the names of the Applicant, the names of any victim/alleged victim, children and third parties.

Footnotes

[1]Working with Children Act, s 5.

[2]‘Child-related employment decision’ is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

[3]Working with Children Act, s 360. See also s 6.

[4]Working with Children Act, s 221.

[5]Re FAA [2006] QCST 15, [22].

[6]Working with Children Act, s 226(2)(a).

[7]Working with Children Act, s 226(2)(f) as amended was s 226(2) ( e) at time of application.

[8]Re FAA [2006] QCST 15, [29], citing the second reading speech of the Commissioner for Young Children and Young People Bill, p 4391.

[9]Transcript page 9 lines 36 to 47.

[10]Transcript page 10 lines 2 to 14.

[11]Transcript page 10 lines 24 to 27.

[12]Transcript page 11 lines 1 to 4.

[13]Transcript page 11 lines 6 to 8.

[14]Transcript page 11 lines 37 to 45 and page 12 lines 7 to 24.

[15]Transcript page 15 lines 40 to 45.

[16]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] (citing Kent v Wilson [2000] VSC 98, [22]) (emphasis added).

[17]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].

[18]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].

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

[20]Respondent’s written submissions dated 21 July 2020, paragraphs 31 to 35 under heading of HRA.

[21]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

[22][2004] QCA 492, [30].

[23]GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 193

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    26 May 2021

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
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
2 citations
Jump To
Cite 1 - [2016] QCATA 86
Cite 2 - [2016] QCATA 86
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
1 citation
Jump To
Cite 1 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
1 citation
Jump To
Cite 1 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113
2 citations
Jump To
Cite 1 - [2020] QCAT 113
Cite 2 - [2020] QCAT 113
Kent v Wilson (2000) VSC 98
1 citation
Jump To
Cite 1 - (2000) VSC 98
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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