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ABD v Director-General, Department of Justice and Attorney-General[2021] QCAT 57

ABD v Director-General, Department of Justice and Attorney-General[2021] QCAT 57

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ABD v Director-General, Department of Justice and Attorney-General [2021] QCAT 57

PARTIES:

ABD

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML410-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 February 2021

HEARING DATE:

1 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

  1. The decision of the delegate of the Director-General of the 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. Disclosure of the identity of the Applicant or the relatives of the Applicant is prohibited.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where the chief executive was provided with police information about the Applicant and issued a negative notice – where Applicant not charged or convicted of a ‘disqualifying offence’ or a ‘serious offence’ – whether an ‘exceptional case’

Commission for Children and Young People and Child Guardian Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 13(2)(b), s 26(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28(3), s 28(3)(b)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 168, s 169, s 221(1)(b), s 221(1)(c), s 221(2), s 225, s 225(2), s 226, s 226(1), s 226(2), Schedule 2, Schedule 3, Schedule 4, Schedule 5

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 & Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

APPEARANCES &

REPRESENTATION:

Applicant:

D Gates, Barrister

Respondent:

G Carrington, Legal Officer, Department of Justice Attorney-General

REASONS FOR DECISION

  1. [1]
    In accordance with the Decision of the Tribunal dated 9 October 2020, the identity of the Applicant and relatives of the Applicant are not identified in this decision.
  2. [2]
    ABD is a 50 year-old man who had been working in the community care sector. To continue with this work, he was required to obtain a Blue Card to permit him to engage in regulated child-related activities. On 20 June 2018 he applied for a blue card.
  3. [3]
    On 22 November 2018 Blue Card Services[1] wrote to ABD advising him of information received from police that may influence the decision to grant him a blue card, and invited him to respond to this information.
  4. [4]
    On 12 December 2018 ABD responded to Blue Card Services’ letter with further information and a request that he be granted a blue card.
  5. [5]
    On 30 October 2019 ABD was advised in writing by Blue Card Services that he had been refused a blue card on the basis that he had been convicted of offences other than serious offences but that his case was exceptional, meaning that Blue Card Services issued a negative notice and refused to grant him a blue card.[2]
  6. [6]
    Blue Card Services sent a letter dated 30 October 2019 to, among others, his employer in the community care sector advising that ABD had been denied a blue card. It seems that being so advised, his then employer terminated ABD’s employment.
  7. [7]
    ABD now seeks to have this Tribunal review all the facts, set aside the decision of Blue Card Services, and make a decision favourable to him, allowing him to be issued a blue card.
  8. [8]
    ABD is presently working in aged care in a business with his wife. While he is not required to have a blue card to work in aged care, he wishes to engage in work with vulnerable people including children and young people.
  9. [9]
    ABD was born in Russia and migrated to Australia with his family in 1998. He holds a degree in Computer Science, and a Diploma in Multimedia Software Development. Since working in the care sector he has obtained a Certificate III in Individual Support (Ageing, Home and Community) in 2018, and a Certificate III in Individual Support (Disability) in 2019.
  10. [10]
    His family presently comprises his wife, mentioned earlier, a son, aged 25, who lives overseas, and a daughter, aged 18, who lives at home with her parents.

Why was the Applicant issued a negative notice?

  1. [11]
    The Respondent’s decision to issue a negative notice comprised a set of Reasons dated 30 October 2019 covering 23 pages.
  2. [12]
    The decision of the Respondent was based substantially on criminal history information from the Queensland Police and the Victoria Police concerning ABD as follows:

Court

Date

Offence

Order

Dandenong Magistrates Court (Vic)

28/09/2007

Intentionally cause injury

Dismissed

Dandenong Magistrates Court (Vic)

29/08/2007

Recklessly cause injury

Assault by kicking (2 charges)

Dismissed

Southport Magistrates Court

07/01/2015

Assault or obstruct police officer (on 27/04/2014)

Assault or obstruct police officer (on 27/04/2014)

On all charges:

Fined $250

No conviction recorded

Southport Magistrates Court

08/12/2017

Commit public nuisance (on 27/11/2017)

Assault or obstruct police officer (on 27/11/2017)

On all charges:

Fined $500

No conviction recorded

Southport Magistrates Court

02/03/2018

Serious assault person over 60 domestic violence (on 27/01/2018)

No evidence to offer

  1. [13]
    None of the offences listed above and identified in the Respondent’s Reasons are disqualifying or serious offences.[3]
  2. [14]
    In addition to the record listed above, ABD has seven road traffic offences recorded between 2008 and 2016, the most serious being two occasions involving alcohol in 2014.
  3. [15]
    ABD was also the subject of two Applications for a Protection Order sought by his wife in 2014, and Queensland Police, on behalf of his father-in-law, in early 2018, both of which were granted by the Magistrates Court. These Orders have since been lifted.
  4. [16]
    While the Respondent did not mention the road traffic offences or the granting of two Domestic Violence Orders in its Reasons dated 30 October 2019, I am entitled to take these into account when making my decision in this matter, and I do so.

The relevant statutory provisions

  1. [17]
    The role of the Tribunal in this case is to stand in the position of the respondent decision-maker to arrive at the correct and preferable decision.[4] The Tribunal must decide the review by way of a fresh hearing on the merits. It is not necessary to establish any error in either the process or the reasoning that led to the decision and there is no presumption that the reviewable decision was correct.[5]
  2. [18]
    In conducting a proceeding, the Tribunal on review is not bound by the rules of evidence,[6] but must observe the rules of natural justice and, among other things, ‘ensure, so far as is practicable, all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.’[7]
  3. [19]
    ABD has not been charged with or convicted of any disqualifying offence.[8] Therefore, he is not automatically excluded from being issued a positive notice.
  4. [20]
    The general rule is that an applicant for a blue card must be issued a positive notice, and hence a blue card, if the person has been convicted of an offence other than a serious offence,[9] unless one of the following applies:
    1. (a)
      There exists police or disciplinary information about the applicant; or
    2. (b)
      There exists one or more of the following about the applicant, none of which involve a conviction:[10]
      1. (i)
        investigative information;
      1. (ii)
        disciplinary information;
      1. (iii)
        a charge for an offence other than a disqualifying offence; or
      1. (iv)
        a charge for a disqualifying offence that has been dealt with other than by a conviction; and
      1. (v)
        the decision maker is satisfied it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued a positive notice, in which case the chief executive must issue a negative notice to the person.[11]
  5. [21]
    In this case police information, such as the charges against ABD listed in paragraph [12], above, exists.
  6. [22]
    As also noted above, ABD has also been found guilty of offences other than serious offences, which the original decision maker could take into account when making the decision about whether ABD’s application involved an exceptional case.
  7. [23]
    WWC Act, s 226 deals with what constitutes an exceptional case for this purpose. Section 226(1) says that this section applies if the chief executive:
  1. (a)
    is deciding whether or not there is an exceptional case for the person; and
  1. (b)
    is aware that the person has been convicted of, or charged with, an offence.
  1. [24]
    By virtue of s 226(1) the Respondent could consider both the police information and the earlier charges and convictions and, based on the evidence available, made the decision that this was an exceptional case and ABD should be issued a negative notice.
  2. [25]
    Section 226(2) of the WWC Act sets out the factors the Respondent, and therefore this Tribunal, must take into account when assessing whether an application represents an exceptional case when an applicant has been charged or convicted of an offence. These are:
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (v)
    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. (e)
    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.
  1. [26]
    These factors are not exhaustive[12] and will not necessarily be given equal weight in assessing an application.[13]

What the Tribunal has to consider

  1. [27]
    The Tribunal has to determine whether the application by ABD involves an exceptional case. If it is not an exceptional case, ABD should be issued a positive notice and a blue card.
  2. [28]
    The statutory provisions mentioned in paragraph [25] above are relevant in making this decision.
  3. [29]
    There remain other factors that the Tribunal must consider when assessing whether the instant case is an exceptional case. When considering the previously titled Act[14] to the WWC Act, the Appeal Tribunal posited the following factors be taken into account, in Commissioner for Children and Young People and Child Guardian v Ram:[15]

… rehabilitation from a previous proclivity of engaging in offending behaviour is only one aspect of the protective factors that would be necessary to be established in this case before a blue card should be issued. Remorse and insight are other aspects.

  1. [30]
    Further, there are no restrictions that can be placed on a blue card upon a positive notice being issued by Blue Card Services. This means the holder of a blue card may engage in any form of regulated employment. Ram’s Case also provides guidance when it comes to assessing the implications of blue card transferability and whether a matter is an exceptional case, when it says:[16]

It is also true that the Commission Act does not mandate that the Tribunal, on review, must consider the transferability of a blue card as being a relevant factor in determining whether there is an ‘exceptional case’ for the purposes of s 225. However that factor is relevant to consideration of the issue in s 225(2) that the decision maker must be satisfied that it would not harm the best interests of children for a positive notice to be issued. Issuing a positive notice means that the holder of a blue card may engage in any type of employment or business activity. Such a person could change employment or activity from one with a low incidence of involvement with children to one with a high level and intimate level of contact with children.

  1. [31]
    While the quote above from Ram’s Case deals with an ‘exceptional case’ for the purposes of s 225, it is just as appropriate to take the same factors into account when considering an ‘exceptional case’ under s 226, which applies in this case.
  2. [32]
    As a result, the Tribunal has to be cognisant of the fact that a blue card holder may be in close and intimate contact with children and young people and any consequence this may have for their safety and well-being, irrespective of the original basis on which a blue card was issued.
  3. [33]
    The Respondent eschews what it terms the ‘balancing’ approach between ‘protective factors’ and ‘risk factors’.[17] Rather, the Respondent encouraged the Tribunal to apply the paramount principle of the welfare and best interests of children by applying additional weight to any risk factors that are established.
  4. [34]
    The first two charges in the list above, which were dismissed, appear to constitute one episode only, were committed over 13 years ago, and have little contemporary relevance to the Applicant’s conduct insofar as it is concerns his application here, so will be treated as stale and have little influence on my decision. The dates of these charges, which I have taken from the Respondent’s Reasons, are reproduced above verbatim, but appear to be erroneous; for this reason, I have treated them as contemporaneous.

Applicant’s evidence

  1. [35]
    Through his counsel, ABD submitted that this application does not involve an exceptional case. The principal reasons for this being:
    1. (a)
      That the police offences, which form the basis of the original decision, are dated offences;
    2. (b)
      That the violence involved in the offences was at a low level;
    3. (c)
      That the offences listed were not serious offences and, even when proven, were punished only by minor financial penalties and, in all cases, no conviction recorded;
    4. (d)
      No children were involved in any of the offences; and
    5. (e)
      Each of the offences was inspired by alcohol consumption, over which ABD has now demonstrated his rehabilitation.
  2. [36]
    The Applicant also submitted that in assessing evidence, drawing conclusions and making a decision, the decision maker should apply the Briginshaw test because of the consequences a negative finding would have upon the applicant.[18]
  3. [37]
    The wife of ABD gave testimony before the Tribunal. She affirmed the truth of her statement dated 5 August 2020.
  4. [38]
    She was cross-examined by the Respondent concerning the incidents of violence committed by ABD against her and her father.
  5. [39]
    In her testimony, the wife of ABD was vague as to the circumstances surrounding the violence, and appeared to downplay the effects of the violence on her and her father. She claimed that the first DVO was issued because she over-reacted; that she had not been arguing with her husband; that she had not been undergoing marital problems. The statement attributed to her on the police record concerning the violence was, according to her, a misunderstanding by the police of what she said. When asked by the Respondent what she meant to say to the police, she replied, “I don’t know”.
  6. [40]
    Allowing for the fact that ABD’s wife is not fluent in English, the Tribunal had the benefit of a Russian interpreter to assist. There was no apparent reason why she could not provide substantive answers to the questions put to her, and there are inconsistencies with testimony given by her husband in which he concedes his violent conduct, yet she seeks to minimise its importance and effect. I formed the view that ABD’s wife was not forthcoming with honest answers, most likely in an attempt to portray her husband in a good light. I found ABD’s wife an unsatisfactory witness and place little weight on her evidence.
  7. [41]
    Melissa Beaton, a forensic psychologist, was called by ABD to give testimony on his behalf. She provided her evidence by telephone.
  8. [42]
    Ms Beaton conducted three consulting sessions with ABD, and one session for feedback. She was not aware of the two DVOs against ABD prior to giving evidence before the Tribunal, and emphasised that her role was to prepare an assessment of ABD, not to provide him with intervention or coping strategies.
  9. [43]
    The following facts arose from her evidence:
    1. (a)
      ABD has had a long-term problem with alcohol. During the period when he abused alcohol his then circle of peers contributed to his alcohol consumption which was common among the Russian expatriate community; and
    2. (b)
      He was separated from his wife for about two years (2015 to 2017) following a business collapse in 2013. It was not unusual for him to consume 750ml of vodka each evening during his separation.
  10. [44]
    Ms Beaton offered her opinion concerning relevant matters I should consider, as follows:
    1. (a)
      ABD expressed fearfulness, shame and regret arising from his conduct as it concerns his wife and the community;
    2. (b)
      ABD has a tendency to minimise the effect of his conduct on others, such as his violent offending at the shopping mall in 2017;
    3. (c)
      Since his last offending, ABD has reported that he has developed a support group comprising the church, his wife, with whom he appears to be reconciled, his peer group, and that he has ceased consuming alcohol;
    4. (d)
      If ABD abstains from alcohol his risk of recidivism is low;
    5. (e)
      There appear to have been no instances where children were the victims of ABD’s conduct, although they may have been wary on some occasions, such as his violent conduct at the shopping mall in 2017; and
    6. (f)
      In her judgement, she draws no link between ABD’s previous behaviour and potential risks to children.
  11. [45]
    Ms Beaton’s testimony was measured and balanced, and I am inclined to place significant weight on her opinions as they affect my decision.
  12. [46]
    ABD gave testimony before the Tribunal to affirm the truth of his statement dated 5 August 2020. He was then cross-examined by the Respondent.
  13. [47]
    ABD frankly conceded that the reasons for his negative notice related to his conduct. He admitted that, until the last two years or so, he drank to excess, and that each episode of violence can be related to his alcohol consumption.
  14. [48]
    His wife obtained a DVO in 2014, although they then continued to live in the same house until about 2015 when ABD moved out and began to live at a friend’s house. During his absence he and his wife continued to have contact.
  15. [49]
    ABD returned to the marital home in 2017 and, as he testified, began to drink only on social occasions. On one occasion, when drinking with his father-in-law, who was aged over 60 years, a dispute arose between them and aggression followed. The evidence as a whole suggests that ABD’s wife contacted the police to intervene, and that the police sought and obtained the resulting DVO.
  16. [50]
    Despite this altercation, ABD continued to live with his wife, family, and father-in-law at the house, and assisted his father-in-law in the last year of his life during his declining health.
  17. [51]
    ABD has been engaging with, and continues to participate in, intervention programs relating to alcoholism. He said that he has ceased drinking alcohol for “… almost 2 years …”. In particular, ABD has participated in, and appears to be continuing to participate in, a program run by the Queensland Government through AODS: Alcohol and Other Drugs Service.
  18. [52]
    On questioning by the Respondent ABD made comments about his life as he now sees it, including:
    1. (a)
      He is accepting of setbacks such as business failures. These will not inspire him to resume alcohol consumption;
    2. (b)
      He avoids his former friends with whom he used to drink;
    3. (c)
      He values the relationship with his wife on whom he is much more focused;
    4. (d)
      He has returned to his church and gains support from this;
    5. (e)
      He would not turn to alcohol in the event of problems; and
    6. (f)
      He participates in organisations that support him to turn away from alcohol.
  19. [53]
    He also noted that, despite being refused a blue card, and losing his job as a result, he did not resume drinking alcohol.
  20. [54]
    The daughter of ABD gave testimony. She affirmed the correctness of her statement dated 1 August 2020. Her testimony under cross-examination was brief. It was evident that she was supportive of her father and, while she does recall her father drinking, she does not appear to have been adversely affected by her father’s earlier conduct.
  21. [55]
    Finally, the pastoral adviser to the family gave testimony remotely by telephone on behalf of ABD.
  22. [56]
    The pastoral adviser affirmed the correctness of his statement dated 1 August 2020.
  23. [57]
    The pastoral adviser stated that he has known ABD for 15 years, but has come to know him better over the last three years during which ABD has had more regular involvement with the church.
  24. [58]
    The pastoral adviser stated that he understood that ABD had been refused a blue card on the basis of his criminal history, his abuse of alcohol, and the violence involving his father-in-law. He also said that ABD had discussed these issues with him.
  25. [59]
    The pastoral adviser stated that he understands the significance of a blue card and that the church requires adults dealing with young people to hold a blue card.
  26. [60]
    He went on to make the following observations relevant to my decision:
    1. (a)
      He has counselled ABD about alcohol abuse, where such abuse is commonplace in the Russian immigrant community;
    2. (b)
      He believes that ABD has conscientiously built-up his relationship with his family since becoming more involved with the church;
    3. (c)
      He observes ABD participating in the life of the church to his (ABD’s) benefit;
    4. (d)
      He believes that ABD has turned a corner and has stabilised his life;
    5. (e)
      He has never observed any problems when ABD interacts with children; and
    6. (f)
      If he observed any person dealing inappropriately with children he would immediately terminate that person’s involvement with children. He has no such concern with ABD.
  27. [61]
    The pastoral adviser presented as a straight-forward, no-nonsense person who expects proper conduct from members of his congregation. I am inclined to accord his evidence significant weight.

Respondent’s evidence

  1. [62]
    The Respondent’s evidence comprised, among other material, the Respondent’s Reasons dated 30 October 2019 referred to earlier, and the Respondent’s Outline of Submissions dated 27 November 2020 tendered at the end of the hearing.
  2. [63]
    The risk factors that the Respondent raised that speak against the issue of a positive notice are:
    1. (a)
      The Applicant’s criminal history, which should be considered in toto, whether it ended in a conviction or not;
    2. (b)
      The relative recency of the charges and convictions;
    3. (c)
      The Applicant’s violent behaviour involving the events over which he was charged and, therefore, concerns over his ability to make appropriate behavioural choices, exercise judgment and resolve conflict in a calm and non-violent manner;
    4. (d)
      The Applicant’s tendency to resort to alcohol, which preceded each episode of conduct leading to criminal charges;
    5. (e)
      The fact that the Applicant engaged in domestic violence, and that his wife expressed some concern that their children, who were then young, were witnesses to the violence;
    6. (f)
      Concern over the Applicant’s ability to manage stressful events in his life; and
    7. (g)
      Instances where the Applicant has minimised the impact of his offending, suggesting a lack of sufficient insight into his behaviour.
  3. [64]
    The Respondent acknowledged that there are a number of competing human rights that arise in this case. It said that any limit placed on the Applicant’s human rights is justified by the factors outlined in s 13 of the Human Rights Act[19] and, more specifically, because it is consistent with promoting and protecting the rights, interests and wellbeing of children and young people.[20]

Applying the evidence

  1. [65]
    In assessing whether this is an exceptional case the Tribunal has to consider at least the following factors that are derived from the WWC Act and cases considered above:
    1. (a)
      in relation to the commission, or alleged commission, of an offence by the person—
      1. (i)
        whether it is a conviction or a charge; and
      1. (ii)
        whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      1. (iii)
        when the offence was committed or is alleged to have been committed; and
      1. (iv)
        the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      1. (v)
        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; and
      1. (vi)
        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; and
    2. (b)
      The rehabilitation of the applicant from a previous proclivity of engaging in offending behaviour; and
    3. (c)
      the remorse of the applicant; and
    4. (d)
      the insight of the applicant; and
    5. (e)
      the fact that there are no restrictions that can be placed on a blue card.
  2. [66]
    As mentioned earlier, in assessing ABD’s suitability to hold a blue card, I am taking into account the three charges heard against him by the Southport Magistrates Court in 2015, 2017, and 2018, as well as the two DVOs issued against him, and his driving penalties.
  3. [67]
    It would be correct to say that each of these offences, apart from some historical driving matters, related to ABD’s abuse of alcohol. It is also correct to say that the more significant of these matters involved a level of violence.
  4. [68]
    In assessing the significance of these offences as they are relevant to ABD’s suitability for a blue card, I also consider the following factors:
    1. (a)
      None of the charges against ABD involved a disqualifying or serious offence;
    2. (b)
      None of these offences were committed against children, although ABD’s children may have been witness to one or more instances of his violence. His daughter, however, gave evidence that was supportive of her father so that, on this basis, I conclude that any harm to his children was at the lower end of the scale and appears to have been, in any event, forgiven;
    3. (c)
      The evidence before me is sufficient for me to conclude that ABD has abstained from alcohol for some two years by the date of the hearing and has not, in that time, been brought to the attention of the police. Moreover, he has taken significant steps, through his participation with his church and alcohol and drug rehabilitation programs, to ensure that he does not revert to using alcohol to relieve his problems and anxieties;
    4. (d)
      The penalties imposed by the courts in respect of ABD’s charges were at the lower end of the scale which, with no convictions recorded, suggests that his offending conduct was similarly at the lower end of the scale;
    5. (e)
      Over the last two years ABD appears to have maintained little, if any, contact with those of his peers who inspired him to consume alcohol. Further, he has re-established a closer relationship with his church and his spiritual adviser which has supported his redemption from alcohol;
    6. (f)
      While ABD was the subject of two DVOs, these have both been lifted at the motion of his family, suggesting that they may have had a more salutary and precautionary effect on ABD than being necessary to protect his family from violence; and
    7. (g)
      ABD was supported at the hearing by both his wife and daughter, so I conclude that he has family support that should assist him to continue his reformed life.
  5. [69]
    The evidence before me satisfies me that ABD has demonstrated that, for the past two years, he has taken positive steps to overcome the alcoholic dependence which has been the prime cause of his offending.
  6. [70]
    I am satisfied that ABD has demonstrated remorse, in particular based on the evidence from his pastoral adviser, and Ms Beaton. While ABD has a degree of insight into his offending, he appears yet to fully understand and embrace the significance of his offending on others; therefore, his insight could be described as developing. His continuing involvement with his church and his future work with vulnerable people may aid in his development of insight. I am sufficiently satisfied that ABD is capable of developing his insight and accepting that his conduct can have a profound effect on others.
  7. [71]
    Finally, ABD has not demonstrated any conduct that adversely affects children and young people, apart from incidentally as they may have been potential observers to his earlier violent episodes. There is no evidence to suggest that ABD presents any threat or compromise to the well-being of children or young people.
  8. [72]
    I have considered the effects of the Human Rights Act[21] on the interests of ABD and any children or young people with whom he may come into contact as the holder of a blue card, and I am satisfied that there is no unreasonable compromise of the human rights of any affected, or potentially affected, person.
  9. [73]
    I am satisfied to the relevant standard that this is not an exceptional case and it would not harm the best interests of children and young people if a blue card were issued to ABD.

Decision

  1. [74]
    The Tribunal makes the following Orders:
  1. The decision of the delegate of the Director-General of the 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. Disclosure of the identity of the Applicant or the relatives of the Applicant is prohibited.

Footnotes

[1]Blue Card Services is a unit within the Queensland Department of Justice and Attorney-General.

[2]Detailed reasons for the decision are set out in the Reasons dated 30 October 2019 by Michelle Miller, Director, Blue Card Services.

[3]Within the meaning of those terms in the Working with Children (Risk Management and Screening) Act 2000 Qld (‘WWC Act’), Schedules 2, 3, 4, or 5.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.

[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58.

[6]QCAT Act, s 28(3)(b).

[7]QCAT Act, s 28(3).

[8]WWC Act, s 168, s 169.

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

[10]WWC Act, s 221(1)(b).

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

[12] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, [23]; Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[13]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [53].

[14] Commission for Children and Young People and Child Guardian Act 2000 (Qld).

[15][2014] QCATA 27, [39].

[16]Ibid, [24].

[17]Respondent’s Outline of Submissions dated 27 November 2020, [27].

[18] Briginshaw v Briginshaw (1938) 60 CLR 336; see also Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[19] Human Rights Act 2019 (Qld).

[20]Ibid, s 13(2)(b).

[21]Including ss 13(2)(b) and 26(2).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 57

  • Court:

    QCAT

  • Judge(s):

    Member Dr Collier

  • Date:

    12 Feb 2021

Appeal Status

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