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ZB v Director-General, Department of Justice and Attorney-General QCAT 82
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
ZB v Director-General, Department of Justice and Attorney-General  QCAT 82
director-general, department of justice and attorney-general
9 March 2021
11 March 2020
The decision of the Director-General, Department of Justice and Attorney-General dated 4 January 2019 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 confirmed.
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – administrative review – blue card – where negative notice issued – whether an exceptional case – where convicted of offences other than a ‘serious offence’ – consideration of mandatory factors
Human Rights Act 2019 (Qld), s 8, s 13, s 21, s 23, s 26, s 27, s 31, s 34, s 36, s 48, s 58, s 108
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 16, s 221, s 226, s 355, s 358, s 360, s 536, s 580, Schedule 2, Schedule 4, Schedule 5
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 Eales  QCATA 303
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Kehl v Board of Professional Engineers of Queensland  QCATA 58
Re TAA  QCST 11
M Jago, in house lawyer, Blue Card Services, Department of Justice and Attorney-General
REASONS FOR DECISION
- ZB previously held a ‘blue card’ entitling him to work in child related employment. Upon a change to ZB’s police history, referred to in more detail below, the Director - General, Department of Justice and Attorney-General (‘Chief Executive’) cancelled what was then known as a positive notice and issued a negative notice. Subsequently, ZB applied to cancel the negative notice. The Chief Executive refused this application (‘the Decision’). ZB sought review of the Decision (‘the Application’).
- On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration. The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits. There is no presumption that the decision under review is correct.
- The delay in finalising these proceedings is regrettable and relates to resourcing issues.
- The Chief Executive submitted, and I accept, that:
- (a)ZB was not convicted of a disqualifying offence as prescribed under the WWC Act either before or after the amendments. In those circumstances, the Application is not required to be dismissed under sections 355 and 536 of the WWC Act.
- (b)as ZB was not convicted of a serious offence as defined under the WWC Act the presumption is that a working with children clearance (‘Clearance’) should issue except where the Chief Executive or the Tribunal in the Chief Executive’s place is satisfied it is an exceptional case in which it would not be in the best interests of children for him to be issued with a Clearance and must issue a negative notice.
- The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.
- The WWC Act is to be administered having regard to the principles 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.
- The WWC Act does not define what is an ‘exceptional case’. The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
- The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales has also provided some guidance. In exercising the discretion as to whether there is an exceptional case the Tribunal undertakes a risk assessment. This usually involves identifying and considering risk factors and mitigants in the context of the WWC Act.
- Section 226 of the WWC Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence. I address the considerations below.
- ZB contends that his case is not an ‘exceptional’ case and he should be issued with a Clearance. He contends he is no risk to any child or to any member of his family.
- His evidence is, and I accept, that:
- (a)he requires a blue card to allow him to undertake work experience, which is a prerequisite to him continuing his tertiary education in the health sector;
- (b)the work experience will not necessarily require him to work with children and he will be supervised;
- (c)he has had to defer his studies until he is issued with a blue card;
- (d)he is also prevented from assisting young members of his community through tutoring them after school.
- The Chief Executive submits, and I accept, that any detriment to ZB of not being granted a ‘blue card’ is not a relevant consideration.
- Notices to produce documents were issued to the Department of Child Safety, Youth and Women (‘Department of Child Safety’) and a Magistrates Court.
- ZB’s evidence is that his wife used to seek orders against him while he was at work by making false allegations against him. He stated he then needed to go to Court to seek their dismissal. The documents show that in May 2015, ZB’s wife filed two Applications to withdraw domestic violence applications and that she subsequently alleged ZB had pressured her into withdrawing the applications.
- The 2016 Application for Protection Orders was dismissed upon ZB’s letter of undertaking, without admissions, to be of good behaviour for two years from 11 April 2017.
- His oral evidence is that:
- (a)he accepts that his wife has the right to put orders in place as that ‘is how she feels’;
- (b)his wife suffered from depression and anger issues although he did not take her to a doctor for assistance with these issues;
- (c)there is better communication between him and his wife now.
- In relation to many allegations he essentially stated that if people wish to make allegations they can. I accept that it can be difficult to ‘disprove’ a false allegation.
- In denying allegations against him, his oral evidence was that:
- (a)he hated violence;
- (b)he was not an angry person;
- (c)you need to be a positive influence on children;
- (d)he wants to do what is best for society and his family;
- (e)he wants to contribute to society and help people.
- ZB’s police history was in evidence before me. He has convictions for:
- (a)assault (13 November 2000). Convicted on 19 March 2001. Penalty – imprisonment four months wholly suspended, good behaviour 18 months.
- (b)public nuisance (29 May 2005). Convicted on 28 June 2005. Penalty – no conviction recorded, recognisance $200, good behaviour six months.
- (c)assaults occasioning bodily harm (29 May 2005). Convicted 28 June 2005. Penalty – no conviction recorded, probation 12 months; and
- (d)contravention of DVO (24 January 2014). Convicted 24 April 2014. Penalty – no conviction recorded. An extract of the Magistrate’s sentencing remarks is in evidence before me. It shows that the Magistrate took into account ZB’s plea of guilty and that there were no allegations of violence on this occasion in determining the penalty imposed.
- In reviewing the Decision, I take into account ZB’s police history not to re-prosecute the offences but because it is relevant to protecting children.
- ZB’s evidence is that:
- (a)he and his wife immigrated to Australia in 1997 as refugees;
- (b)the 2000 and 2005 offences related to incidents with his wife. During oral evidence he denied hitting his wife on either occasion. It is difficult to reconcile this evidence with the convictions for these offences. This evidence seeks to contradict the police brief before me, which identifies that in 2000 he grabbed his wife by the throat, threw her to the floor and struck her head with a coffee table. This evidence also contradicts the police brief before me, which identifies that two members of the public witnessed the 2005 incident and states that ZB admitted to slapping his wife’s face but denied he punched her. The sentencing remarks are not before me. I place more weight on the convictions and the police briefs than ZB’s oral evidence. I accept that there is evidence of ZB’s propensity to act aggressively in situations of domestic conflict. This evidence raises concerns as to his ability to exercise restraint and self-control;
- (c)in 2005 he undertook an anger management course to help himself and others and tried to get his wife to deal with her anger issues. He believed that he was referred to the course by the Court and that no certificate was issued;
- (d)in relation to the 2014 offence, he did not know the DVO was in place. He went to his home to look after his children, one of whom was ill, having been left on their own by his wife. He refused to leave when the police attended and told him he was required to leave due to the DVO because he takes his ‘responsibility as a parent seriously’. This evidence also contradicts information contained in the police brief, which states that ZB acknowledged that he was aware of the order and knew his presence at the house was in breach of the conditions;
- (e)he has learnt to walk away when his wife has outbursts and encourages his wife to express issues to prevent her from lashing out;
- (f)you can’t avoid conflict, so you have to find a way to approach and solve issues to make sure it doesn’t happen again.
- At the time of the 2014 offence ZB held a blue card. This offending caused his eligibility to hold a blue card to be reassessed.
- His oral evidence was that he and his wife had not sought marriage counselling but in 2015 visited their family overseas and sought advice generally ‘about family life’ but did not discuss incidents the subject of the offending.
- ZB’s evidence was that he accesses support through a men’s group at his church, which he attends when shift work allows about twice a week. He also seeks support by calling his Reverend, who provided a reference, but was unavailable to be questioned as he was overseas at the time of the hearing. The reference does not specifically refer to the Reverend having read the Chief Executive’s reasons for the Decision although it is clear he has some knowledge of the events leading to the cancellation of ZB’s blue card in 2014. In these circumstances, I place limited weight on the reference.
- PC gave evidence in support of ZB and was available to be questioned in person. He also immigrated to Australia at the same time as ZB and his wife. They had reconnected in 2005 and he has spent some, but not much, time with ZB and his family at their home. He described his observations of ZB’s relationship with his wife and family as a ‘loving’ and ‘normal’ relationship. His evidence was that ZB had helped other children from their community to reconcile with Australian culture and had assisted in mediating some issues between PC and PC’s wife.
- PC’s oral evidence was that:
- (a)he had not read the Chief Executive’s reasons for the Decision and was not aware of ZB’s police history. He was aware of the general nature of allegations made by ZB’s wife but not the specifics;
- (b)he and ZB see each other at least once a month primarily through activities in their community;
- (c)he had never seen ZB acting in an aggressive way;
- (d)ZB’s approach, which he had observed, was to mediate conflict by being a very friendly, trusted and sincere person;
- (e)ZB was a very patient and calm person;
- (f)he was not aware that ZB’s wife had any mental health issues and that in his opinion she is ‘very honest’. It is difficult to reconcile this evidence with ZB’s evidence about his wife’s mental health issues and her making false allegations over an extended period of time. There is no independent evidence to support ZB’s evidence as to these matters.
- On the evidence before me, PC has spent more time with ZB than with ZB and his family. I place limited weight on PC’s evidence as to his observations of ZB’s relationship with his wife and family.
- There is very little independent evidence, upon which I can rely, which supports ZB’s contentions, including in relation to strategies he now employs to address his offending behaviours and how he will prevent its reoccurrence. There is no independent psychological assessment, which could have provided evidence of insights and strategies.
- Assessing whether it would not be in the best interests of children for ZB to be issued with a Clearance involves an assessment of ZB’s risk of re-offending and therefore whether ZB poses a risk to children.
- The following evidence suggests ZB poses a risk to children:
- (a)ZB’s convictions in 2001, 2005 and 2014 where he either assaulted his wife or breached a DVO. The evidence of ZB’s offending suggests he has a propensity to react with violence in situations of domestic conflict;
- (b)his offending behaviours continued despite a suspended prison sentence, imposition of good behaviour and probation orders and DVOs, which raises concerns about his ability to exercise restraint and self-control;
- (c)he takes no responsibility for the offending. His evidence is that all of the matters are simply untrue allegations, even though he has been convicted of the offences;
- (d)ZB displays limited insight into his offending and no apparent remorse. Genuine insight has long been regarded as reducing the risk of re-offending;
- (e)although the 2014 offence did not directly involve violence, it and the previous offending suggests he has a propensity to disregard the law, which raises concerns about his ability to be a good role model for children;
- (f)some of the Department of Child Safety documents and the Magistrates Court documents contain allegations of aggression in the presence of or within the hearing of his children;
- (g)there is no documentary or other supporting evidence to confirm completion of the anger management course in 2005;
- (h)although there is no evidence of convictions since 2014:
- there is evidence of an application for a DVO in 2016, which was resolved by ZB giving a written undertaking, which was in place until April 2019;
- there was a significant gap between ZB’s offending in 2005 and 2014, such that the passage of time is not necessarily evidence that he now deals with situations of conflict differently.
- The Chief Executive submits, and I accept, that mitigants are that:
- (a)ZB volunteers in his community;
- (b)his church and his community provide support;
- (c)he wishes to complete his tertiary studies in the health sector.
- Having regard to the evidence of the risks and the mitigants and the limited independent evidence, I am not satisfied that the risk of ZB re-offending is low. Further, having regard to the paramount principle of the WWC Act, I find that ZB’s circumstances are an exceptional case in which it would not be in the best interests of children to issue a Clearance at this time.
- The Human Rights Act 2019 (Qld) (‘HR Act’) commenced on 1 January 2020. At the oral hearing no submissions were made as to the applicability of the HR Act. The transitional provisions provide that the HR Act does not affect proceedings commenced or concluded before the commencement. These proceedings were commenced before the HR Act commenced. I find that the HR Act does not apply.
- If I am wrong and the HR Act applied, in deciding this Application I would be acting as a public entity in an administrative capacity. In those circumstances, I accept that a decision under the WWC Act potentially impacts ZB’s human rights and the right of every child to protection. I have considered ZB’s human rights and am satisfied that the decision is compatible with human rights as the limitations on those rights are reasonable and justifiable. It has long been recognised that it is not possible to impose conditions on the use of a ‘blue card’. A Clearance once obtained entitles the holder to work in any child related employment. The limitation of ZB’s human rights is consistent with the paramount principle in the WWC Act.
- I confirm the Decision.
- The Tribunal previously made an order prohibiting the publication of information that may enable the applicant and nominated others to be identified. This decision is to be published only in a de-identified format.
 Decision dated 31 July 2014.
 Decision dated 4 January 2019.
 Exhibit 1.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (‘QCAT Act’).
 Ibid, s 20.
 Kehl v Board of Professional Engineers of Queensland  QCATA 58, .
 11 March 2020.
 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 580 (‘WWC Act’).
 Directions dated 20 January 2021.
 Filed 9 February 2021.
 WWC Act, s 16, Schedules 4 and 5.
 WWC Act, Schedule 2.
 Previously known as a positive notice.
 WWC Act, s 221(2).
 Ibid, s 5.
 Ibid, s 6.
 Ibid, s 358.
 Ibid, s 360.
  QCA 492.
  QCATA 303.
 Often referred to as protective factors.
 WWC Act, s 221(2).
 AX v Commissioner for Children and Young People and Child Guardian (No 2)  QCATA 248, .
 Sometimes referred to as Domestic Violence Orders (‘DVO’).
 Exhibit 7.
 Exhibit 7, attachment 12.
 Oral evidence, 11 March 2020.
 Exhibit 8, NTP173.
 Ibid, NTP185.
 Exhibit 11.
 Oral evidence, 11 March 2020.
 Exhibit 3.
 Exhibit 4.
 As contemplated by direction 2 made 23 May 2019.
 Re TAA  QCST 11.
 Exhibit 7, attachment 12.
 Human Rights Act 2019 (Qld), s 108.
 Ibid, s 21, s 23, s 27, s 36(2).
 Ibid, s 26(2).
 Ibid, s 8, s 13, s 26(2), s 31, s 34, s 48, s 58.
 QCAT Act, s 66. Decision dated 17 July 2019.
- Published Case Name:
ZB v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
ZB v Director-General, Department of Justice and Attorney-General
 QCAT 82
09 Mar 2021