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TSG v Director-General, Department of Justice and Attorney-General[2021] QCAT 98

TSG v Director-General, Department of Justice and Attorney-General[2021] QCAT 98

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TSG v  Director-General, Department of Justice and Attorney-General [2021] QCAT 98

PARTIES:

TSG

 

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF

JUSTICE AND ATTORNEY-GENERAL

 

(respondent)

APPLICATION NO/S:

CML172-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

16 March 2021

HEARING DATE:

25 June 2020

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. The time for filing the Application to review a decision is extended to 3 May 2019.
  2. The decision of the Director-General, Department of Justice and Attorney-General dated 22 March 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 set aside and is substituted with the Tribunal’s decision that there is no ‘exceptional’ case.
  3. Publication of information which may enable the identification of the applicant is prohibited other than to the parties.

CATCHWORDS:

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 28, s 31, s 34, s 36, s 58, s 108   

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 61, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 16, s 221, s 226, s 353, s 355, s 358, s 360, s 536, s 580, Schedule 2, Schedule 3, 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:

D Taylor, in house lawyer, Blue Card Services, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    TSG applied for a ‘blue card’ entitling her to work in child related employment.  The Chief Executive refused her application and issued a negative notice (‘the Decision’).[1] TSG sought review of the Decision (‘the Application’).[2]    
  2. [2]
    Such an Application is required to be commenced within 28 days after the person is given notice of the decision.[3] The Application was commenced out of time.[4] TSG filed an Application to extend time stating that she ‘needed just a couple more days to gather all information necessary for these applications and waited on a letter from my recent employer’.[5]
  3. [3]
    The Tribunal has power to extend a time limit for starting a proceeding.[6] An extension may be given even if the time for complying with the relevant requirement has passed.[7] At the oral hearing, I invited the Chief Executive to make a submission in relation to whether an extension should be granted.  The Chief Executive’s submission was that no objection to the time limit being extended was made.  In the absence of objection and in view of the short extension required, I extend time.
  4. [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.[8] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[9] There is no presumption that the decision under review is correct.[10]
  5. [5]
    After the Application was heard[11] but before the matter was decided 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.  Further amendments have been made since that time.[12] I apply the WWC Act as amended.[13]  
  6. [6]
    I issued directions requesting submissions addressing the Tribunal’s jurisdiction to hear and decide the proceeding in view of the amendments.[14] Submissions have been received from the Chief Executive.[15] No submissions were received from TSG.
  7. [7]
    The delay in finalising these proceedings is regrettable and relates to resourcing issues.
  8. [8]
    The Chief Executive submitted, and I accept, that:
    1. (a)
      TSG was not convicted of a disqualifying offence as prescribed under the WWC Act either before or after the amendments.[16] In those circumstances, the Application is not required to be dismissed under sections 355 and 536 of the WWC Act.
    2. (b)
      as TSG was not convicted of a serious offence as defined under the WWC Act[17] the presumption is that a working with children clearance (‘Clearance’)[18] 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 her to be issued with a Clearance and must issue a negative notice.[19]    
  9. [9]
    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.[20]
  10. [10]
    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.[21]
  11. [11]
    The decision under review is a child-related employment decision.[22] Such decisions are to be reviewed under the principle that the welfare and best interests of a child are paramount.[23]
  12. [12]
    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[24] 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. 
  13. [13]
    The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales[25] 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[26] in the context of the WWC Act. 
  14. [14]
    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.
  15. [15]
    TSG contends that her case is not an ‘exceptional’ case and she should be issued with a Clearance.[27]  

Is it not in the best interests of children for TSG to be issued with a Clearance?  

  1. [16]
    I find that TSG’s circumstances are not an exceptional case in which it would not be in the best interests of children to issue a Clearance.  I find TSG’s risk of re-offending is low.
  2. [17]
    Assessing whether it would not be in the best interests of children for TSG to be issued with a Clearance involves an assessment of TSG’s risk of re-offending and therefore whether TSG poses a risk to children. 
  3. [18]
    Her evidence is, and I accept, that:
    1. (a)
      she applied for a blue card prior to commencement of employment with an early childhood education business and worked in that role for approximately ten months while awaiting the outcome of the blue card application without any incident or complaint.
    2. (b)
      she commenced early childhood education studies to assist her employment in this sector. 
    3. (c)
      upon receipt of the negative notice she lost her job, which impacts on her ability as a single parent to provide for her young child. 
  4. [19]
    The Chief Executive submits, and I accept, that any detriment to TSG of not being granted a ‘blue card’ is not a relevant consideration.[28]
  5. [20]
    TSG’s police history was in evidence before me.  She has charges or convictions for:
    1. (a)
      unauthorised dealing with shop goods (maximum $150) (18 March 2015).  Convicted on 16 April 2015.  Penalty – no conviction recorded.  Fined $250.
    2. (b)
      possession of dangerous drugs, possession of utensils or pipes etc for use and possession of property suspected of having been used in connection with the commission of a drug offence (31 July 2015).  The charges were discontinued as a co-offender pleaded guilty of all charges.[29] 
    3. (c)
      supplying dangerous drugs (8 May to 15 May 2016), possessing dangerous drugs and possession of tainted property (15 May 2016).  Pleaded guilty to the three offences.  Convicted 7 July 2016.  Penalty – no conviction recorded, probation nine months, special condition to not consume illicit substances and submit to drug testing as required.
    4. (d)
      unauthorised dealing with shop goods (maximum $150) (17 December 2016). Convicted on 19 January 2017.  Penalty – no conviction recorded.  Fined $300.
  1. [21]
    The sentencing remarks are not in evidence before me.
  2. [22]
    TSG’s traffic record is also in evidence before me.[30] It shows the following:
    1. (a)
      unlicensed driving (18 May 2014).  Convicted and fined $250 on 4 June 2014.
    2. (b)
      learner driver driving vehicle not under direction (28 December 2015). Demerit points – 4. Enforcement order $188 on 24 February 2016. 
    3. (c)
      learner failure to display legible L plate at front and rear of motor vehicle (28 December 2015).  Demerit points – 2. Enforcement order $188 on 24 February 2016. 
    4. (d)
      learner driver driving vehicle not under direction (27 February 2016).  Demerit points – 4. Enforcement order $188 on 25 April 2016. 
    5. (e)
      learner failure to display legible L plate at front and rear of motor vehicle (27 February 2016).  Demerit points – 2. Enforcement order $188 on 25 April 2016. 
    6. (f)
      SPER suspension 3 March 2016 until 25 April 2016.
    7. (g)
      demerit point suspension 23 March 2016 until 22 June 2016.
    8. (h)
      demerit point suspension 31 May 2016 until 30 August 2016.
    9. (i)
      exceed speed limit in speed zone by less than 13 km/hr (9 March 2018).  Demerit points – 1. Enforcement order $168 on 12 May 2018.
    10. (j)
      exceed speed limit in speed zone by less than 13 km/hr (1 March 2019).  Demerit points – 1. Enforcement order $174 on 8 May 2019.
  1. [23]
    In reviewing the Decision, I take into account TSG’s police and traffic history not to re-prosecute the offences but because it is relevant to protecting children.  It raises issues about whether the applicant has a propensity to disobey the law.
  2. [24]
    The evidence is that TSG’s offending occurred over a relatively short period.[31] The most significant traffic infringements occurred over a slightly longer period.[32] Both of these periods occurred while she was quite young.  At the time of her first infringement she was 17 years old and at the time of her last offence she was 19 years old.  At the time of the oral hearing TSG was 23 years old.
  3. [25]
    TSG’s oral evidence was that: 
    1. (a)
      all of the police history offending occurred while she was in the company of others;
    2. (b)
      after the supply charge[33] she decided to cut connections with all people she felt she could get into trouble with;
    3. (c)
      the December 2016 shoplifting offence occurred about two months after she found out she was pregnant and at a time when she was having trouble with the father of her child.  It occurred while she was in the company of the partner of a friend of the father of her child, with whom she didn’t ordinarily spend time;
    4. (d)
      it was ‘pretty hard’ hearing about her offending again, that she felt ‘so silly’ to have done the things she did and that she regretted her actions, including because it would depict to her child that she was a poor role model;
    5. (e)
      she was trying really hard to set up a good life for her and her child;
    6. (f)
      the primary strategy she put in place to avoid further offending was to cut connections with people who commit criminal actions and concentrate on her child and herself and spend time with her family;
    7. (g)
      since she lost her job, she is looking to enrol in a course in another sector;
    8. (h)
      she is ‘super remorseful’ and realises that her offending, in particular her drug related offending, could have harmed other people’s lives and the community.  At the time she was not thinking about anyone else;
    9. (i)
      since becoming a mother she has reflected that she wouldn’t want her child to be a victim of the types of crimes she committed;
    10. (j)
      she feels wiser and realises she should have been setting an example as she is now attempting to do;
    11. (k)
      she is not the same person that she was a few years ago. 
  4. [26]
    There is evidence before me from her former employer,[34] her mother,[35] and her child’s father’s sister[36] as to her positive interactions with not only her own child but also other children and her caring nature. Some authors of references before me were not available to confirm their references.  I place less weight on those references. 
  5. [27]
    A representative of her former employer, the nominated supervisor, was available to confirm her statement, give oral evidence and answer questions.  Her evidence was that she had read the Chief Executive’s reasons for Decision and that TSG:
    1. (a)
      had been a valuable and hard-working member of the team, who had a good rapport with the children and their families and her work colleagues. 
    2. (b)
      based on their many conversations, had matured since the birth of her child and had moved away from particular friendships, which had changed her life in a positive way and had realised the seriousness of her actions.  
    3. (c)
      did not want to set a bad example to children.
    4. (d)
      had learned from her mistakes, was not a risk to children and she would be happy to re-employ her and had no concerns about her attitude, behaviour or ability to care for children enrolled at their service.
  6. [28]
    Her child’s father’s sister was available to confirm her statement, give oral evidence and answer questions.  Her evidence was that she had not read the Chief Executive’s reasons for Decision and was aware of the drug related offending but not the shoplifting.  Her evidence was that TSG had been hanging around with the wrong people and that she now knows her offending behaviour was wrong.  
  7. [29]
    The following evidence suggests TSG poses a risk to children:
    1. (a)
      her convictions in 2015, 2016 and 2017 and in particular, the conviction in relation to supplying cannabis for financial gain.  Her offending raises concerns as to whether she is an appropriate person to work with children as drug use and drug supply raises doubts as to her ability to provide a protective environment for children and present as an appropriate role model for them;  
    2. (b)
      she displays some but perhaps not complete insight into her offending and the harm caused by drugs and shoplifting.  In most of her evidence she reflected upon the impact on herself and child.  Genuine insight has long been regarded as reducing the risk of re-offending.[37]   
  8. [30]
    It has also 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.  
  9. [31]
    The Chief Executive sought production of documents from the Department of Child Safety, Youth and Women (the Department) held by it in respect of TSG for the period 1 January 2017 to 29 November 2019.[38] The Department informed the Tribunal that
  1. (a)
    search of its records indicated that it did not hold any such information concerning TSG and therefore was unable to produce any such documents.[39]
  1. [32]
    The Chief Executive submits, and I accept, that there is evidence of the following mitigants:
    1. (a)
      TSG acknowledges that she made some wrong choices when younger;
    2. (b)
      she has taken steps to turn around her life and no longer associates with people she spent time with in 2015 to 2016;
    3. (c)
      she is now a mother and is devoted to her child.  She has reflected upon her offending and the harm such behaviour may have had on her own child;
    4. (d)
      there is no evidence of offending behaviour, including drug taking, since 2016;[40]
    5. (e)
      she has the support of her former employer and family members, who each speak positively about TSG’s ability to work with children and be a role model for them. 
  2. [33]
    Towards the conclusion of the hearing TSG gave further evidence of her reflections upon her offending.  Although TSG struggled at times to articulate those reflections, I am satisfied that she has sufficient insight into the impact of her offending on victims and the community to reduce the likelihood of re-offending. 
  3. [34]
    Having regard to the evidence of the risks and the mitigants I am satisfied that the risk of TSG re-offending is low.  Further, having regard to the paramount principle of the WWC Act, I find that TSG’s circumstances are not an exceptional case in which it would not be in the best interests of children to issue a Clearance at this time.  
  4. [35]
    The Human Rights Act 2019 (Qld) (‘HR Act’) commenced on 1 January 2020.  At the oral hearing submissions were made in relation to relevant competing human rights under the HR Act.  
  5. [36]
    The transitional provisions provide that the HR Act does not affect proceedings commenced before the commencement.[41] These proceedings were commenced before the HR Act commenced. I find that the HR Act does not apply.
  6. [37]
    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.[42] In those circumstances, I accept that a decision under the WWC Act potentially impacts TSG’s human rights[43] and the right of every child to protection.[44] I have considered those rights. 
  7. [38]
    I set aside the Decision and substitute my decision that there is no ‘exceptional’ case.  
  8. [39]
    The Tribunal may make an order prohibiting the publication of information that may enable a person who appeared before the Tribunal to be identified.[45] The Tribunal may act on its own initiative to make a non-publication order.[46] I consider that it is not in the public interest to identify the applicant and her witnesses as to do so may identify her child. 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] Decision dated 22 March 2019, stated to have been received on 25 March 2019.

[2] Exhibit 1 filed 3 May 2019.

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 353 (definition of ‘prescribed period’) (‘WWC Act’).

[4] 11 days.

[5] Filed 3 May 2019, Part B.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1)(a) (‘QCAT Act’).

[7] Ibid, s 61(2).

[8] Ibid, s 24.

[9] Ibid, s 20.

[10] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[11] 25 June 2020.

[12] Commencing 15 September 2020 and 1 February 2021.

[13] WWC Act, s 580.

[14] Directions dated 20 January 2021.

[15] Filed 9 February 2021.

[16] WWC Act, s 16, Schedules 4 and 5.

[17] Ibid, s 15, Schedules 2 and 3.

[18] Previously known as a positive notice.

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

[20] Ibid, s 5.

[21] Ibid, s 6.

[22] Ibid, s 358.

[23] Ibid, s 360.

[24] [2004] QCA 492.

[25] [2013] QCATA 303.

[26] Often referred to as protective factors.

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

[28] AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248, [22].

[29] 29 February 2016.

[30] Exhibit 7, BCS51.

[31] March 2015 – December 2016.

[32] May 2014 – April 2016.

[33] May 2016.

[34] Exhibit 5.

[35] Exhibit 4.

[36] Exhibit 6.

[37] Re TAA [2006] QCST 11.

[38] Direction made 26 November 2019.

[39] Letter dated 16 December 2019.

[40] Other than minor traffic infringements.

[41] Human Rights Act 2019 (Qld), s 108.

[42] Ibid, s 58.

[43] Ibid, s 21, s 23, s 27, s 28, s 31, s 34, s 36(2).

[44] Ibid, s 26(2).

[45] QCAT Act, s 66.

[46] Ibid, s 66(3).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 98

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    16 Mar 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
AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248
2 citations
Jump To
Cite 1 - [2012] QCATA 248
Cite 2 - [2012] QCATA 248
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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