HDK v Director-General, Department of Justice and Attorney-General
[2021] QCAT 97
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- HDK v Director-General, Department of Justice and Attorney-General[2021] QCAT 97
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HDK v Director-General, Department of Justice and Attorney-General[2021] QCAT 97
HDK v Director-General, Department of Justice and Attorney-General[2021] QCAT 97
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | HDK v Director-General, Department of Justice and Attorney-General [2021] QCAT 97 |
PARTIES: | HDK (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) |
APPLICATION NO/S: | CML229-19 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 11 March 2021 |
HEARING DATE: | 10 December 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – administrative review – blue card – where cancellation of ‘positive notice’ – whether an exceptional case warranting departure from the general rule that a working with children clearance must be issued – where convicted of offences other than a ‘serious offence’ – consideration of mandatory factors – consideration of human rights – whether non-publication order should be made Human Rights Act 2019 (Qld), s 8, s 13, s 21, s 23, s 26, s 27, s 28, s 31, s 34, 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 221, s 226, s 358, s 360, s 580, Schedule 2, Schedule 4, Schedule 5 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Re TAA [2006] QCST 11 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | G Yates, in house lawyer, Blue Card Services, Department of Justice and Attorney-General |
REASONS FOR DECISION
- [1]HDK applied for and was granted a ‘blue card’ in September 2017 entitling him to work in child related employment. The evidence is that he had previously been issued a ‘blue card’ on various occasions from as early as 2003.
- [2]By decision dated 10 June 2019 the Director-General, Department of Justice and Attorney-General (‘Chief Executive’) decided to cancel HDK’s positive notice (‘the Decision’) and therefore his entitlement to work in child related employment.
- [3]On 20 June 2019, HDK filed an Application to review a decision (‘the Application’) seeking review of the Decision.[1]
- [4]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.[2] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[3] There is no presumption that the decision under review is correct.[4]
- [5]After the Application was filed and before the matter was heard the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) was amended in significant respects. Those amendments commenced on 31 August 2020. I apply the WWC Act as amended.[5]
- [6]The Chief Executive submitted, and I accept, that HDK was not convicted of a serious or disqualifying offence.[6] In those circumstances, the presumption is that a working with children clearance (‘Clearance’)[7] 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.[8]
- [7]The object of the 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.[9]
- [8]The 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.[10]
- [9]
- [10]The 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[13] 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.
- [11]The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales[14] 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[15] in the context of the WWC Act.
- [12]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.
- [13]HDK contends that his case is not an ‘exceptional’ case and he should be issued with a Clearance.[16]
- [14]The evidence is that HDK was charged with the offence of unlawful stalking. The offence was committed over an extended period of time. The evidence was that the offending behaviour consisted of sending hundreds of SMS and MMS and two handwritten letters. It occurred during the period February 2017 until February 2018.
The offending behaviour did not involve a child or children, although the victim was a woman, who HDK had initially met many years previously, when she was a child. The offending behaviour was not directly related to employment involving children. However, the Chief Executive submits, and I accept, that it does raise concerns about HDK’s ability to exercise judgement as to appropriate behaviour and to be an appropriate role model to children.
- [15]No conviction was recorded. The penalty imposed was 12 months’ probation. A restraining order was also imposed, which was current up to and including 17 July 2020.[17] The sentencing remarks were in evidence before me and noted that the offending was serious in nature and would ordinarily attract a term of imprisonment.[18]
- [16]The Chief Executive became aware of this offending and after seeking submissions, cancelled HDK’s then ‘positive notice’.
- [17]HDK contends that the events which led to this charge were a misunderstanding. In his oral evidence he described it as a ‘silly mistake’ and said he ‘got carried away’.[19] He noted that:
- (a)he otherwise had a clean criminal history;
- (b)the complainant was not a child at the time of the events and did not file a victim impact statement;
- (c)he would find it difficult to get employment as a bus driver if his blue card was not re-instated;
- (d)he had never had a complaint made against him in his roles dealing with children.
- [18]The Chief Executive submits, and I accept, that any detriment to HDK of not being granted a ‘blue card’ is not a relevant consideration.[20] In reviewing the Decision, I take into account HDK’s police history not to re-prosecute the offence but because it is relevant to protecting children.
- [19]HDK’s treating psychiatrist gave evidence in this matter and was available to be questioned by phone. The evidence was that:
- (a)HDK first sought treatment from him in 2011;
- (b)from about 2012 HDK discontinued seeing him and re-engaged in 2018;
- (c)the impetus for being referred to see him again was the stalking charge;
- (d)HDK did not agree with the specific diagnosis but had been compliant with taking prescribed medication and usually sees him every four to six weeks;
- (e)patients who accept their diagnosis are more likely to be compliant with their medication;
- (f)HDK was likely off his medication or taking a lower dose than required to control his illness, which contributed to the offending behaviour;
- (g)HDK suffered side effects from the medication and during 2020 they had trialled other medication, but they were less suitable. Since May 2020 HDK had returned to his long-term medication at the current dosage, which strikes a balance between side effects and controlling his illness;
- (h)HDK now accepts that he needs to continue to take his prescribed medication and he has HDK on his follow up list, which mitigates the risk of HDK ceasing to attend for treatment;
- (i)he didn’t consider HDK was a risk to children.
- [20]HDK gave oral evidence at the hearing. He conceded that he sent too many texts and should have stopped when the victim asked him to do so. The evidence is that the victim asked him to stop multiple times before making a complaint to the police. He stated that he went to Court to explain that in his mind he was ‘simply defending’ himself. His insight into his offending and the harm it caused the victim was limited. His evidence was that if the victim had told him that his communications were upsetting her, he would have stopped and that he only realised that she was upset when the police contacted him. It is difficult to reconcile this evidence with the undisputed evidence that the victim asked him to stop multiple times.
- [21]He acknowledged that he should have talked to someone about what was happening and sought assistance. It is somewhat difficult to reconcile this evidence with other evidence which he gave, which was that, in the period when he was not receiving treatment from his treating psychiatrist:
- (a)he was seeking treatment from his General Practitioner(s) and felt he was getting better and did not require medication;
- (b)he had breaks from his medication of up to three months but was on a consistent dose at the time of the offending behaviour and acknowledged he should have been taking a higher dose;
- (c)he sought assistance from a psychologist.
- [22]A report dated 23 March 2018 from a psychologist who saw HDK on five occasions between 21 March and 6 May 2017 was in evidence before me.[21] The report indicates that HDK had reported that his medication had at that time recently been decreased at his request, that the practitioner had advised him not to make further contact with the victim but he found it difficult to accept that advice and recommended a medication review.
- [23]The evidence is that he did seek out assistance but did not accept the advice to stop the offending behaviour.
- [24]HDK’s evidence was that:
- (a)his goal is to decrease his medication dosage as he is concerned about the side effects but that he is also concerned about his mental health;
- (b)his circumstances were different now to the time of the offending behaviour as he is seeing his treating psychiatrist regularly and taking his medication, he is doing yoga from time to time to assist with his anxiety and is being more open with his family and friends.
- [25]For these reasons, he essentially submitted he would not now behave inappropriately or re-offend.
- [26]A long-standing friend of HDK’s, XL, gave evidence in support of HDK and was available to be questioned in person.[22] He acknowledged he had not read the Chief Executive’s reasons for the Decision, but it is clear from his evidence, that he had quite detailed knowledge of the stalking charge and the offending behaviours. His evidence was inconsistent with HDK’s evidence in certain respects. His evidence is that HDK has always been very open with him and that he told HDK that the victim was not communicating with him in the way he believed prior to the police contacting HDK. HDK’s evidence was that he only spoke to XL about his interactions with the victim, which constituted the offending behaviour, after the police contacted him.
- [27]The Chief Executive submits, and I accept, that mitigants are:
- (a)the professional support provided by his treating psychiatrist and HDK’s General Practitioner;
- (b)support provided by friends, in particular by XL and by family. I note, however, no evidence was before me from members of HDK’s family to confirm HDK’s evidence about the support sought by HDK and the support they provide to HDK and how this was now different to the time of the offending behaviour. In these circumstances, I place less weight on this mitigant;
- (c)he now participates in yoga to deal with anxiety.
- [28]Genuine insight has long been regarded as reducing the risk of re-offending.[23] I am not satisfied that HDK has genuine insight. Whilst HDK states that he regrets his offending behaviour, there were multiple references to his behaviour being a ‘misunderstanding’ of communication, that he pleaded guilty to the stalking charge although he thought it was not really stalking but rather a breach of the telecommunications legislation and that the victim did not make a victim impact statement so he did not really know the impact on her. He described his behaviour as causing the victim ‘some distress’ and stated that he was ‘sorry that she was affected’.[24] His characterisations appear to be seeking to minimise his offending.
- [29]I accept XL’s evidence that in the last 12 months or so HDK seemed ‘a lot more stable’ and was ‘not having strange thoughts’. XL’s evidence was that he assumed the change related to HDK’s treatment with his treating psychiatrist. XL stated that he could not see there was anything else different.[25] On the evidence before me, the support structures available now are largely the same as prior to and at the time of the offending.
- [30]Having regard to the evidence of the risks and the mitigants and in particular given the relative recency of the offending, his limited insight as to the harm caused by his offending and the relative recency of his current medication regime together with his stated desire to reduce his level of medication, I am not satisfied that the risk of inappropriate behaviour or re-offending is low. Further, having regard to the paramount principle of the WWC Act, I find that HDK’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.
- [31]The Human Rights Act 2019 (Qld) commenced on 1 January 2020. The Chief Executive made submissions about relevant competing human rights.[26] The transitional provisions provide that the HR Act does not affect proceedings commenced or concluded before the commencement.[27] These proceedings were commenced before the HR Act commenced. I find that the HR Act does not apply.
- [32]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 HDK’s human rights[28] and the right of every child to protection.[29] I have considered HDK’s human rights and am satisfied that the decision is compatible with human rights as the limitations on those rights are reasonable and justifiable.[30] 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 HDK’s human rights is consistent with the paramount principle in the WWC Act.
- [33]I confirm the Decision.
- [34]The Tribunal may make an order prohibiting the publication of information that may enable a person who appeared before the Tribunal to be identified.[31] The Tribunal may act on its own initiative to make a non-publication order.[32] Confidential information relating to HDK’s mental health formed a significant portion of the evidence. I consider that it is not in the public interest to identify the applicant and his witnesses. This decision is to be published only in a de-identified format. I order that publication of information that may enable the applicant to be identified is prohibited other than to the parties.
Footnotes
[1]Exhibit 1.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (‘QCAT Act’).
[3]Ibid, s 20.
[4]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[5]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 580 (‘WWC Act’).
[6]Serious offences are listed in Schedule 2 of the WWC Act. Disqualifying offences are listed in Schedules 4 and 5 of the WWC Act.
[7]Previously known as a positive notice.
[8]WWC Act, s 221(2).
[9]Ibid, s 5.
[10]Ibid, s 6.
[11]Ibid, s 358.
[12]Ibid, s 360.
[13][2004] QCA 492
[14][2013] QCATA 303.
[15]Often referred to as protective factors.
[16]WWC Act, s 221(2).
[17]Exhibit 11.
[18]Exhibit 10.
[19]Oral evidence 10 December 2020
[20]AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248, [22].
[21]Exhibit 7.
[22]Exhibit 4.
[23]Re TAA [2006] QCST 11.
[24]Oral evidence 10 December 2020
[25]Ibid.
[26]Exhibit 12, [80] – [81].
[27]Human Rights Act 2019 (Qld), s 108.
[28]Ibid, s 21, s 23, s 27, s 28, s 36(2).
[29]Ibid, s 26(2).
[30]Ibid, s 8, s 13, s 26(2), s 31, s 34, s 48, s 58.
[31]QCAT Act, s 66.
[32]Ibid, s 66(3).