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DEF v Director-General, Department of Justice and Attorney-General[2022] QCAT 127

DEF v Director-General, Department of Justice and Attorney-General[2022] QCAT 127

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127

PARTIES:

DEF

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML368-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

12 April 2022

HEARING DATE:

28 March 2022

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. 1.The decision of the Director-General, Department of Justice and Attorney-General made on 13 August 2020 is confirmed.
  2. 2.Publication of the applicant’s name, as well as those of the complainants and all witnesses, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. 3.Publication of the documents filed by the parties as evidence in these proceedings is prohibited, save as was and is necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons, under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

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

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

Human Rights Act 2019 (Qld), s 13

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, Schedule 7

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

DL v Chief Executive, Department of Justice and Attorney-General [2021] QCAT 61, [49].  Cf

Re FAA [2006] QCST 15

JCW v Director General, Department of Justice and Attorney General [2022] QCAT 66

JQB v Department of Justice and Regulation (Review and Regulation) [2015] VCAT 1721

RPG v Public Safety Business Agency [2016] QCAT 351

TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

C Davis

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General made on 13 August 2020, to issue a negative notice and to cancel the Applicant’s blue card.
  2. [2]
    Blue Card Services undertook a criminal history check in relation to the Applicant. This check disclosed the following criminal history:
    1. (a)
      Exceed speed limit in speed zone by more than 40 km/h, which was committed on 13 August 2006.  The Applicant was fined $700 and lost 8 demerit points.
    2. (b)
      High speed suspension until 19/04/2007 and Demerit point suspension until 19 January 2007, with effect from 20 October 2006.
    3. (c)
      Exceed speed limit in speed zone by at least 13 km/h not more 20 km/h, which was committed on 29 April 2008.  The applicant was fined $150 and lost 3 demerit points.
    4. (d)
      Exceed speed limit in speed zone by at least 20 km/h not more 30 km/h, which was committed on 17 December 2009.  The applicant was fined $333 and lost 4 demerit points.
    5. (e)
      Start/drive vehicle in a way that makes unnecessary noise or smoke, which was committed on 14 October 2011.  The applicant was fined $320.
    6. (f)
      Exceed speed limit in speed zone by less than 13 km/h, which was committed on 6 December 2014.  The applicant was fined $151 and lost 1 demerit points.
    7. (g)
      Exceed speed limit in speed zone by less than 13 km/h, which was committed on 23 March 2015.  The applicant was fined $151 and lost 1 demerit points.
  3. [3]
    In DL v Chief Executive, Department of Justice and Attorney-General,[1] the Tribunal held that entries on a person's traffic history constitute charges for the purpose of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’).
  4. [4]
    I note in passing that the Applicant has submitted that his traffic history does not fall within the definition of a charge. Without embarking on a detailed examination of the issue, I would observe that to apply the restrictive approach put forward by the Applicant appears to be contrary to the definition contained within Schedule 7 to the Working with Children Act.  That definition is an inclusive and non-exhaustive definition, and provides that a charge means ‘a charge in any form’.  I am unable to see why this would not extend to an offence initiated by an infringement notice.  Accordingly, I decline to depart from the approach taken by the Tribunal in DL.
  5. [5]
    That said, as will become apparent, the concerns of Blue Card Services do not lie with the Applicant’s traffic history.

The “blue card” legislative framework

  1. [6]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children Act. The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[2] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [7]
    A child related employment decision[3] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[4] The overriding concern is the potential for future harm to children.
  3. [8]
    As applicable to this case, the Working with Children Act requires that a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[5]

What is meant by ‘exceptional case’

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

The allegations relied upon by Blue Card Services

  1. [13]
    Blue Card Services has raised as a concern a number of allegations which are unrelated to the Applicant’s criminal history.  These were summarised in the submissions of Blue Card Services as follows:

Allegations about inappropriate touching by the Applicant have been made by an 18- year-old female in care and the Applicant's wife's 13-year-old niece ('Applicant's niece' or 'his niece').

Material produced to the Tribunal by the Applicant's former employer, [omitted], indicates the 18-year-old female, [S], is alleged to have impaired decision­ making capacity, an intellectual impairment, and to be “equivalent to” an 11-year-old.  [S] is alleged to have disclosed that the Applicant “touched her' while she and the Applicant were sitting on the couch “the other night when [the Applicant] was on shift”.  [S] is further alleged to have said, “I wouldn't let [the Applicant] near younger children”.

Material produced to the Tribunal by the Queensland Police Service indicates that the allegations made about the Applicant by the Applicant's niece were initially recorded in a scrapbook in a note akin to a journal entry. The scrapbook was found by the Applicant's niece's father in March 2019. The note is to the following effect:

... I've been cut free for more than four months now, but in recent events I've been put back into that same dark mindset. [The Applicant] is a bit pervey. he touches my boobs and my inner thighs. I really hate it, this only happens sometimes though and I try and stop him every time he does but I haven't told anyone [about] it embarrassing almost ...

The Applicant's niece is alleged to have subsequently disclosed further incidents that occurred during the period 1 April 2018 to 1 March 2019. She is alleged to have provided a detailed account of three (3) separate incidents - as reflected in the materialand to have further alleged that there were “numerous occasions”, ie “too many occasions to speak about each one”, where the Applicant would place his hands on her inner thigh close to her groin.

[footnotes omitted]

The Applicant’s evidence and submissions

  1. [14]
    The Applicant provided the Tribunal with his life story filed on 21 December 2020.  The applicant also filed statements dated 30 March 2021, 1 May 2021 and 8 May 2021.  He also gave oral evidence at the hearing. 
  2. [15]
    Relevantly, the Applicant’s response to the allegations are summarised in his statement dated 8 May 2021 as follows:

The complainant in 2017, who was an adult in care, alleged that I inappropriately touched her during the course of my work as a Youth Worker at [omitted].  I deny any touch happened at any point that could ever be interpreted as inappropriate.  It is also worth noting that there is no defining of what is alleged, other than inappropriate touching.  There appears to be no further evidence apart from those words, no specific allegations.  As the matter was not investigated beyond the allegation of inappropriate touch, I cannot really provide any explanation as to why the allegation was made without there being any context provided to myself or the Department.  I am hoping that submissions provided to the Tribunal by both [omitted] and the Queensland Police can prove this.  As the matter was closed off and found to be an unsubstantiated allegation by the complainant, I returned to my work and continued in my employment with [omitted] for another three years approximately.

In 2019 I was made aware of an allegation made against me by my niece, whom had been living with my family for some time prior.  The allegation pertained to indecent dealing with a child under 16, and I was thoroughly investigated and interviewed by the QLD Police Child Protection and Investigative Unit, as well as my wife and other relevant persons.  The decision made by the CPIU approximately one week later was that the investigation was being filed pending further evidence, and that the QLD Police would be taking no further action.  The Investigating Officer, Plain Clothes Senior Constable Candice Walsh communicated the above to both the Department and [omitted] via email and phone.  As of this date, no further actions have been taken.

  1. [16]
    The applicant went on to state that:
    1. (a)
      While he denies any wrongdoing, he is very sorry if any of his actions have unintentionally made the young people concerned uncomfortable.
    2. (b)
      He has decided to no longer work in youth or community work.
    3. (c)
      He does not have children sleep over at his house any more.
    4. (d)
      He has no further contact with either complainant.
  2. [17]
    The Applicant’s wife provided statements dated 8 May 2021, 1 September 2019 and 25 August 2019.  She also gave oral evidence at the hearing.  The Applicant’s wife is supportive of the Applicant, and stated that she had never seen him act inappropriately towards children.
  3. [18]
    The Applicant’s parents-in-law also provided a joint statement dated 8 May 2021.  They were available to give oral evidence at the hearing, but were not cross-examined.  They stated that they had never seen the Applicant act inappropriately towards children.
  4. [19]
    A number of other favourable written character references were provided to Blue Card Services.

Is this an exceptional case?

  1. [20]
    The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
  2. [21]
    In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[10]
  3. [22]
    There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[11]
  4. [23]
    Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:

Whether the offence is a conviction or a charge

  1. [24]
    The Applicant’s police information contains charges for nine traffic offences.

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

  1. [25]
    The offences with which the Applicant was charged were not a serious or disqualifying offences.

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

  1. [26]
    The Applicant’s traffic offending occurred between August 2006 and March 2015.

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

  1. [27]
    The Applicant’s traffic history is not of significant concern in this matter.

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

  1. [28]
    The Applicant was fined for his traffic offences, and his licence was also suspended.  No convictions were recorded.

Other relevant circumstances

  1. [29]
    In Commissioner for Children and Young People and Child Guardian v Maher & Anor,[12] Philippides J held:

Section 102(5) [as it existed prior to renumbering in 2010] does not expressly or impliedly confine the Commissioner to considering only the matters specified therein and there is no basis for construing the provision in such a restrictive manner. In my view, s 102(5) merely specifies certain particular matters which the Commissioner is obliged to consider in deciding the application.

  1. [30]
    Blue Card Services has submitted that I should take into account the allegations outlined above.  The position of Blue Card Services is set out in their submissions as follows:

The Applicant disputes the allegations made by [S] and his niece and says he “adamantly'' denies that anything inappropriate occurred. He further raises several issues with the allegations made and otherwise says he is “very sorry” if his actions “unintentionally'' made [S] or his niece feel uncomfortable.

… [T]he Respondent submits that the Tribunal should be cautious in accepting the Applicant's denials and assertions (particularly his denial that nothing “inappropriate” occurred) for the following reasons:

  1. DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127Allegations have been made by two (2) separate and unrelated complainants alleging that the Applicant had violated their personal boundaries.
  2. DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127Material produced to the Tribunal regarding the allegations made by the Applicant's niece suggests the Applicant was not charged in 2019 because there was insufficient evidence upon which to base a charge, rather than it being a case where investigators did not believe that the incidents had occurred. The material suggests “[i]nvestigators believe that the incidents have occurred but there are conflicting versions and at this stage are unable to prove the level of gross indecency that is required for an indecent treatment charge”. A note contained in the material produced to the Tribunal by the Department suggests that police advised the Department that the Applicant was unlikely to be charged because there was insufficient evidence to meet the criminal standard of beyond reasonable doubt.
  3. The Applicant appears to have had the opportunity to engage in the alleged behaviour, for example he is alleged to have been the sole carer for his niece for “short periods of the day”. The Applicant's niece said the Applicant's inappropriate touching “usually happens when we're alone”. Further, the Applicant's niece's father said his daughter disclosed that the Applicant touched her on the “leg and boob” in the lounge room and “playstation room” when another person was “in her room or not near us” and/or when another person was at work.
  4. Many of the Applicant's statements that attempt to discredit [S] and his niece do not appear to be supported by other evidence. This issue will be explored further at the hearing.

In the Respondent's view, the allegations:

  1. at best - suggest the Applicant inadvertently made [S] and his niece feel uncomfortable by unintentionally violating their personal boundaries and by failing to recognise when they were feeling uncomfortable;
  2. at worst - suggest the Applicant intentionally violated the personal boundaries of [S] and his niece and disregarded their right to feel safe and free from being violated; and
  3. in either case - the alleged behaviours raise questions about his suitability to be entrusted with the care of children and young people.

[footnotes omitted]

  1. [31]
    The approach to be taken in cases involving allegations which do not lead to a conviction, or in this case which did not lead to charges, was discussed by the Tribunal in Volkers v Commission for Children and Young People and Child Guardian.[13]  In that case, Member Cowdroy stated:

It is not this Tribunal’s function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non conviction charges in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of future potential harm

  1. [32]
    Similarly, in TNC v Chief Executive Officer, Public Safety Business Agency,[14] Member Rogers stated:

I do not need to be satisfied on a balance of probabilities that the offences occurred and I do not make that finding. I am satisfied, on the balance of probabilities, that the circumstances raise the possibility of a risk to children.

  1. [33]
    I would reiterate and emphasise that the Tribunal’s role is not to make findings as to whether or not the allegations made against the Applicant are substantiated.  My findings in this case are limited to a far narrower proposition, namely that allegations of the nature made against the applicant are capable of raising the possibility of future potential harm to children.
  2. [34]
    My task then is to assess whether the applicant has provided sufficient evidence to displace the possibility of future risk to children.
  3. [35]
    The Applicant has provided evidence that he now limits contact with children other than his own.  While this is an understandable response to the allegations, it has equally deprived the applicant of the opportunity to submit that time has passed without evidence of repeat behaviour.
  4. [36]
    I have also considered the evidence of the Applicant’s wife and parents-in-law, as well as the other character references.  While I place weight on their evidence that they have never seen the Applicant act inappropriately towards children, the nature of the allegations are such that the behaviour would be unlikely to occur in circumstances where it was witnessed.
  5. [37]
    In my view, the factors in this case are finely balanced.  On the one hand, there are two serious allegations of inappropriate conduct on the part of the Applicant.  The allegations were made by separate and unrelated complainants.  On the other hand, neither allegation has resulted in charges, let alone a conviction.  That said, in the case of the Applicant’s niece, the investigators were recorded as having believed the allegations, but that the evidence was insufficient to meet the criminal standard of proof.
  6. [38]
    What could potentially have tilted the balance in the Applicant’s favour is if he had provided a health report expressing favourable views in relation to the matters raised in paragraphs 1(d) and 2 of the directions made on 12 March 2021.  Those directions

1. [The applicant] must file in the Tribunal two (2) copies and send to the Director-General, Department of Justice and Attorney-General one (1) copy of all material upon which he intends to rely at the hearing. The material must:

(d) contain any health reports, including any reports by a psychologist or psychiatrist; by:

4:00pm on 8 May 2021.

3. If his material includes any health report, [the Applicant] must provide the report writer with a copy of the Director-General, Department of Justice and Attorney-General’s reasons for the decision to issue a negative notice.

Any report should consider:

(a) the extent to which [the Applicant] has insight into their offending behaviours and its impact on society, the victim(s) and any children associated with [the Applicant];

(b) what risk factors, or triggers, if any, continue to be present which could contribute to a risk of further offending behaviours;

(c) what protective factors, if any, are present to reduce the risk of further offending behaviours;

(d) what preventative strategies, if any, does [the Applicant] to reduce their risk of further offending behaviours?

  1. [39]
    In the circumstances, I have placed considerable weight on the absence of such a health report in assessing whether an exceptional case exists.  The assessment of risk by the Tribunal can only be conducted on the basis of the evidence before it, including the limitations of the evidence adduced by the Applicant.  It may be that such evidence could lead to a different application in any future application for a blue card made by the Applicant.

Conclusion

  1. [40]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
  2. [41]
    I have considered the provisions of the Human Rights Act 2019 (Qld), and I am satisfied that any limitation on the Applicant’s human rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people.[15]
  3. [42]
    I therefore confirm the decision under review.

Non-publication order

  1. [43]
    Given that the allegations involve a child related to the Applicant, I order that the publication of his name, as well as the names of the complainants all witnesses in the proceeding, be prohibited other than to the parties to the proceeding pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. [44]
    I also order, pursuant to s 66(1)(a) of the QCAT Act, that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons.

Footnotes

[1]  [2021] QCAT 61, [49].  Cf JCW v Director General, Department of Justice and Attorney General [2022] QCAT 66.

[2]  Working with Children Act, s 5.

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

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

[5]  Working with Children Act, s 221.

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

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

[8]  Working with Children Act, s 226(2)(f).

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

[10]  [2004] QCA 491, [30].

[11]  Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27].

[12]  [2004] QCA 492, [42].

[13]  [2010] QCAT 243, [58].

[14]  [2015] QCAT 489, [89].

[15] Human Rights Act 2019 (Qld), s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 127

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    12 Apr 2022

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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